& Ors. Vs. State of J & K & Ors.  INSC 1678 (27 October 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO. 3809 OF 2005 J.L. Koul & Ors. ....
Appellants Versus State of J & K & Ors. .... Respondents
This appeal has been preferred by the appellants against the
judgment and order dated 14.3.1997 passed by the Division Bench of the Jammu
& Kashmir High Court by which Letters Patent Appeal (OWP) No.50 of 1997
against the judgment and order of the learned Single Judge dated 24.1.1997
passed in OWP Nos.139, 339 and 621 of 1995 has been dismissed.
The facts and circumstances giving rise to this case are that the
appellants are Kashmiri Pandits and had been in employment of the State
Government. They had been allotted residential accommodation at Jammu in
1989-90 being the Government servants.
The houses of the appellants were either destroyed or burnt down
by the militants in the valley. The appellants were permitted to retain their
respective accommodation at Jammu for safety reasons though they had retired
and had no right to continue in possession of their respective accommodation
and the accommodation could have been allotted to other government employees
who were waiting in the queue. However, such a step was considered necessary by
the State Government as the atmosphere was not congenial for the appellants to
move in the valley. More so, they had lost their respective houses.
The Government employees, who were waiting for allotment of residential
accommodation but could not get the same because the appellants were occupying
the government houses, filed writ petition nos.139, 339 and 621 of 1995 before
the High Court complaining that they were not provided with the government
accommodation by the State Government. None of the appellants herein had been
impleaded in either of those writ petitions nor any pleadings had been taken
against them. The claim of the writ petitioners had been that the Government
was duty-bound to provide for residential accommodation which was not being
done. Therefore, the High Court was requested to issue appropriate direction
for providing them the government 3 accommodation. The learned Single Judge
vide judgment and order dated 24.1.1997 allowed the writ petition and issued
the following directions:- "1. That all those persons who have ceased to
be Government servants, for any reasons, shall be evicted from the houses
allotted to them as Government servants immediately, this direction shall not,
however, apply to persons whose eviction has been stayed by High Court in any
Persons who are not in Government service but require Government accommodation,
because of security reasons, should be tried to be accommodated within one
complex so that their security is ensured and State has to incur lesser amount
for their security.
person who is not a Government servant, but is provided the Government
accommodation for security reasons, shall be given more than one Unit of
accommodation in the State of Jammu & Kashmir.
who are at present having Government houses both at Jammu and Srinagar be asked
for a choice and evicted from the other house. This shall also be done within
houses and the accommodation Units available with the State Government shall be
classified by a Committee to be appointed by the Chief Secretary of the State
within six months and the entitlement of a particular officer to a particular
type of accommodation shall be determined by that classification. A separate
queue shall be maintained for separate type of accommodation in which
applications shall be considered for the type of accommodation to which the
applicant will be entitled on the basis of his status and grade, which may be
classified by the Committee.
Government Officer who has his own house at the place where he is stationed,
shall not be entitled to Government accommodation."
In view of the fact that the present appellants, who were
occupying the said Government accommodation, were directed to be evicted from
the houses allotted to them and no other accommodation was available, they
preferred the Letters Patent Appeal (OWP No.50/1997) which stood dismissed vide
judgment and order dated 14.3.1997. However, the High Court had given the opportunity
to the appellants to approach the concerned authorities for appropriate relief.
Being aggrieved, the appellants approached this Court and this
Court vide order dated 11.4.1997 passed the interim order to maintain status
quo regarding possession of the properties. The matter had been heard on
several occasions since then and this Court made an attempt to find out as to
whether it could be practically possible to ask the appellants to occupy their
own houses and whether it would be possible for the State to ensure protection
of their person and properties as is evident from the order dated 26.8.1997.
During this period of 12 years this case remained pending and the Court had
been insisting upon the State to frame the scheme of rehabilitation of the
appellants and particularly for providing them accommodation. When the matter
was heard on 29.4.2008, the State 5 authorities were given time to prepare the
rehabilitation scheme. But no steps were taken by the respondent-State. This
Court vide order dated 3.12.2008 directed the respondent-State to frame the
rehabilitation scheme within a period of six months and place it before the
Court. As no material/scheme could be placed by the respondent-State before
this Court, this Court vide order dated 17.9.2009 directed the Chief Secretary
of the State to file his personal affidavit as to what steps had been taken in
pursuance of the orders passed by this Court on 29.4.2008 and 3.12.2008.
In pursuance of the said order, the Chief Secretary has filed the
affidavit dated 6.10.2009. In the said affidavit it has been disclosed that out
of 54 appellants 23 had already handed over the Government accommodation to the
State Department and the same had been allotted to the Government employees.
Only 31 migrants/retirees are presently in occupation of the Government
accommodation. It has further been clarified that there are 37,280 families who
have been registered for the relief including the accommodation and out of them
only 5,000 families could be provided the accommodation in the camps. However,
it had been undertaken that the Government would provide such facilities to all
6 Kashmiri migrants till they are residing at the present places. The relevant
part of the affidavit reads as under:- "5. That it is further submitted
that Govt. formulated a package for return and rehabilitation of Kashmiri
Migrants which involves an outlay of Rs.1618.40 crores. This is for the first
time since 1990, that Govt. of India has come up with a policy for Return and
Rehabilitation of Kashmiri Migrants. The policy has been framed on the
recommendations of a working group constituted by Govt. of India to suggest
various confidence building measures in the J&K State.
framing the policy various needs of the migrants have been taken into
consideration, such as housing, education, revival of Agriculture and
Horticulture land, employment etc.
details of the package announced on 5th June 2008 are reproduced as under:- i)
Return and Rehabilitation Package of Kashmiri Migrants:
package involves an outlay of Rs.1618.40 crore. The main components of the
package are as under:
Housing (i) Assistance @ Rs.7.5 lac for fully or partially damaged house left
behind by migrant.
Rs.2.00 lac for dilapidated/unused houses.
Rs.7.5. lac for purchase/construction of a house in Group Housing Societies for
those who have sold their properties during the period after 1989 and before
the enactment of "The J&K Migrant Immovable Property (Preservation,
Protection and Restraint of Distress Sale) Act, 1997" on 30.5.1997.
Transit Accommodation : Construction of transit accommodation at three sites @
Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.00 lac per
family towards rental and incidental expenses to those families who may not be
accommodated in transit accommodation.
Continuation of Cash Relief to Migrants: Migrants families at Jammu and Delhi
who are recipients of cash relief and free ration would continue to receive the
same @ Rs.5000 per family per month (including rations) for a period of two
years after their return to the valley.
it may be further submitted that unemployed youth were asked to convey their
willingness for serving in Kashmir Valley. In response to the same, 14074
unemployed youth have expressed their willingness in writing for serving in
it is further submitted that a form called "EXPRESSION OF INTEREST"
was circulated among the migrants in order to ascertain their willingness to
return to valley and so far 1676 families have expressed their willingness to
return to valley and avail the concession available under the package.
it is further submitted that land at the following three sites have already
been identified for construction of transit accommodation, the details whereof
are as under:
at Vessu, District Kulgam 100 Kanals.
at Qazigund, District Anantnag 25 Kanals.
at Khanpura, District Baramulla 50 Kanals
it may be further submitted that 200 flats are nearing completion at Sheikhpora
Budgam. In addition to this, 18 flats are available at Mattan Anantnag. These
flats are to be used as transit accommodation by the Kashmiri migrants who wish
to return to valley. The migrants shall stay in the transit accommodation till
they re-construct or renovate their houses.
it may be further submitted that State Government had also constituted an Apex
Advisory Committee to oversee the implementation of Return and Rehabilitation
package for Kashmiri Migrants in the month of September 2009 and immediately
after the constitution of the Apex Level 8 Committee, various suggestions were
put forth in a meeting held on 23.9.2009.
it may be further submitted that the State Cabinet vide its decision
No.130/11/2009 dated 1.10.2009 has approved the package for Return and Rehabilitation
of Kashmiri Migrants to Kashmir Valley. However, with regard to implementation
of employment scheme a Committee has also been ordered to be constituted to go
into the legal and other implications for making recruitments of the migrant
youth against various posts before the said scheme is formally notified. The
Committee has to submit its report within a period of two weeks.
the State Government is keen to rehabilitate the Kashmiri Migrants in the
Kashmir valley and shall provide every type of assistance for their return and
rehabilitation. The process for the rehabilitation in valley has been initiated
in June 2008 after Govt. of India announced the package for their return."
The aforesaid affidavit makes it clear that the State Authorities
have framed the rehabilitation scheme and for implementation of the same, it
got the resources also. In such a fact situation no further action/direction is
In view of the above affidavit/undertaking given by the State and
after hearing Mrs. Purnima Bhat Kak, Ld. Counsel for the appellants and Mr. Anis
Suhrawardy, Ld. Counsel for the State, we dispose of the appeal with a pious
hope that State shall take all endeavours to rehabilitate the persons who have
been victim of terrorism and till the State is able to rehabilitate 9 and
provide the appropriate accommodation to 31 appellants- retirees/oustees, they
shall continue to possess the accommodations which are in their respective
possession on this date.
..................................J. (TARUN CHATTERJEE)