UNION OF INDIA & ANRversusONKAR NATH DHAR

194                      [2021]REPORTS
               SUPREME COURT    8 S.C.R. 194               [2021] 8 S.C.R.


A                         UNION OF INDIA & ANR
                                        v.
                            ONKAR NATH DHAR
                         (Civil Appeal No. 6619 of 2014)
B                              AUGUST 05, 2021
               [HEMANT GUPTA AND A. S. BOPANNA, JJ]
            Constitution of India:
             Art. 21 – Right to claim government accommodation, if falls
C     under the right to shelter – Held: Right to shelter does not mean
      right to government accommodation – Government accommodation
      is meant for serving officers and officials and not to the retirees
      who have demitted office, as a benevolence and distribution of
      largesse – No exception for persons who held constitutional posts
      – Allowing the displaced persons to retain the Government
D
      accommodation already allotted or to allot an alternative
      accommodation that too with a nominal licence fee defeats the very
      purpose of the Government accommodation which is meant for
      serving officers – On facts, the High Court allowed the government
      officer-Kashmiri migrant, to retain government accommodation after
E     retirement, on basis of compassion showed to displaced persons on
      account of terrorist activities in the State, relying on J L Koul case
      – Orders passed by the High Court wholly arbitrary and irrational,
      in the absence of any policy of allotment of government
      accommodation to a retired government servant, who may be victim
      of terrorism - Order passed by the High Court set aside –
F
      Government officer granted time to hand over vacant physical
      possession of the premises, after 15 years of his attaining the age
      of superannuation – Public Premises (Eviction of Unauthorised
      Occupant) Act, 1971.
             Art. 142 – Applicability of the case of J.L. Koul v. State of
G     Jammu & Kashmir – Direction in J.L. Koul’s case, that accepting the
      rehabilitation scheme finalized by the State Government, retired
      government employees allowed to stay in the government
      accommodation even after retirement for safety reasons, in terms of
      Art. 142 – Held: Direction given on special facts, in exercise of
H     jurisdiction under Art. 142 not a binding precedent – J L Koul’ case
                                       194
      UNION OF INDIA & ANR. v. ONKAR NATH DHAR                        195


was based on special facts and direction was in terms of Art. 142 –   A
Thus, the orders passed by the High Court relying on JL Koul’s case
without any basis and, JL Koul’s case is inapplicable.
      Allowing the appeal, the Court
      HELD: 1.1 The Government accommodation could not have
been allotted to a person who had demitted office. No exception       B
was carved out even in respect of the persons who held
Constitutional posts at one point of time. The Government
accommodation is only meant for in-service officers and not for
the retirees or those who have demitted office. Therefore, the
view of the Delhi High Court and that of the Punjab & Haryana         C
High Court is erroneous on the basis of compassion showed to
displaced persons on account of terrorist activities in the State.
The compassion could be shown for accommodating the displaced
persons for one or two months but to allow them to retain the
Government accommodation already allotted or to allot an
alternative accommodation that too with a nominal licence fee         D
defeats the very purpose of the Government accommodation
which is meant for serving officers. The compassion howsoever
genuine does not give a right to a retired person from continuing
to occupy a government accommodation. [Para 13][206-G-H; 207-
A-C]                                                                  E
        1.2 According to a policy framed by the government, a
displaced person is to be lodged in a transit accommodation and
if it is not available then cash compensation is to be provided.
But the displaced persons cannot occupy government
accommodation. If a retired government employee had no                F
residence, they have an option to avail transit accommodation or
to receive cash compensation in the place of transit
accommodation. The right of shelter is taken care of when
alternative Transit accommodation is made available to the
migrants to meet out the emergent situation. There is no policy
of the Central Government or the State Government to provide          G
accommodation to displaced persons on account of terrorism in
the State of Jammu & Kashmir. Such directions of the Delhi High
Court and of the Punjab & Haryana High Court is de hors any
policy of allotting accommodation to the migrants under the guise
of the right to shelter which is clearly in excess of jurisdiction    H
196           SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     vested with the Courts. The hardship faced by them does not
      lead to a corresponding duty of the State to provide them
      alternative government accommodation. [Para 14][207-C-F]
             1.3 Respondent was an officer of the Intelligence Bureau.
      He has drawn his salary and availed of alternative accommodation
B     for 15 years after his retirement along with pensionary benefits.
      There is no indefeasible right in any citizen for allotment of
      government accommodation on a nominal licence fee. The
      government accommodation is meant for the serving government
      employees to facilitate the discharge of their duties. The
      government accommodation is not meant for the retirees. The
C     accommodation to the retirees is at the cost of serving officers.
      In terms of the policy which was considered in *J.L. Koul’ s case,
      the Kashmiri migrants are entitled to transit accommodation and
      if transit accommodation could not be provided then money for
      residence and expenses. Respondent and such like persons are
D     not from the poorest section of the migrants but have worked in
      the higher echelons of the bureaucracy. To say that they are
      enforcing their right to shelter only till such time the conditions
      are conducive for their safe return is wholly illusory. No one is
      sure that at what point of time the condition will be conducive to
      the satisfaction of the migrants. Such benevolence and preferential
E     right to section of the citizens is unfair to the serving officers.
      Respondent like persons should have compassion for their fellow
      employees who may be without any government accommodation.
      The right to shelter does not mean right to government
      accommodation. The government accommodation is meant for
F     serving officers and officials and not to the retirees as a
      benevolence and distribution of largesse. [Para 19][210-A-E]
            1.4 J.L. Koul is a case, accepting the rehabilitation scheme
      framed by the State authorities based on which appropriate
      accommodation was provided to 31 appellants and was given
G     accommodation which was in their possession. Such direction was
      in terms of Art. 142 of the Constitution. The Courts should
      therefore be careful to ascertain and follow the ratio decidendi,
      and not the relief given on the special facts. [Para 16][208-B-D]


H
      UNION OF INDIA & ANR. v. ONKAR NATH DHAR                       197


      1.5 The orders passed by the High Court are absolutely         A
without any basis and in the absence of any policy of allotment of
government accommodation to a retired government servant,
who may be victim of terrorism. The orders passed are wholly
arbitrary and irrational. The order passed by the High Court is
set aside and the writ petition challenging the order under the
                                                                     B
Act is restored. However, the respondent is granted time to hand
over vacant physical possession of the premises on or before
31.10.2021, i.e., after 15 years of his attaining the age of
superannuation. [Para 20, 21][210-F-H]
     J.L. Koul v. State of J & K (2010) 1 SCC 371 : [2009]
     15 SCR 452 – held inapplicable.                                 C

     Lok Prahari (I) v. State of Uttar Pradesh & Ors. (2016)
     8 SCC 389 : [2016] 4 SCR 1026; Lok Prahari (II) v.
     State of Uttar Pradesh & Ors. (2018) 6 SCC 1 : [2018]
     6 SCR 1076; S.D. Bandi v. Divisional Traffic Officer,
     Karnataka State Road Transport Corporation & Ors.               D
     (2013) 12 SCC 631 : [2013] 17 SCR 1; Shiv Sagar
     Tiwari v. Union of India & Ors. (1997) 1 SCC 444 :
     [1996] 10 Suppl. SCR 925; Union of India & Ors. v.
     Vijay Mam (2012) SCC OnLine Del 3218; Indian Bank
     v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 :               E
     [2006] 1 Suppl. SCR 52; Ram Pravesh Singh & Ors. v.
     State of Bihar & Ors. (2006) 8 SCC 381 : [2006] 6
     Suppl. SCR 512 – referred to.
                      Case Law Reference
[2009] 15 SCR 452             held inapplicable      Para 18, 19     F
[2016] 4 SCR 1026             referred to            Para 7
[2018] 6 SCR 1076             referred to            Para 7
[2013] 17 SCR 1               referred to            Para 7
[1996] 10 Suppl. SCR 925      referred to            Para 7          G

[2006] 1 Suppl. SCR 52        referred to            Para 16
[2006] 6 Suppl. SCR 512       referred to            Para 17

                                                                     H
198                SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6619
      of 2014.
            From the Judgment and Order dated 07.07.2011 of the High Court
      of Punjab & Haryana in L.P.A. No. 1128 of 2011(O&M).
           Ms. Vimla Sinha, Ms. Seema Bengani, Rajan Kumar Chourasiya,
B     Amrish Kumar, Ms. Sushma Suri, Advs. for the Appellants.
                Yoginder Handoo, Adv. for the Respondents.
                The Judgment of the Court was delivered by
                HEMANT GUPTA, J.
C
             1. The order passed by the learned Division Bench of the High
      Court of Punjab & Haryana on 07.07.2011 is the subject matter of
      challenge in the present appeal. The learned Single Bench has allowed
      the writ petition of a Kashmiri migrant, the respondent1 who shifted to
      Jammu in the year 1989 or so. He was transferred to the office of the
D     Intelligence Bureau in Delhi. Later he was transferred to Faridabad
      where he has been allotted a government accommodation. The respondent
      attained the age of superannuation from service on 31.10.2006.
             2. The respondent gave representation to the appellant to allow
      him to retain the government accommodation, which was allowed and
E     Dhar was allowed to retain house for another one year. Dhar submitted
      another representation on 18.6.2007 to allow him to retain house allotted
      to him on a nominal licence fee till the circumstances prevailing in Jammu
      & Kashmir improve and the Government makes it possible for him to
      return to his native place.
F           3. Dhar was served with a notice under the Public Premises
      (Eviction of Unauthorised Occupant) Act, 19712. An order for eviction
      against Dhar was passed but was stayed by the learned Additional District
      Judge, Delhi. An objection was raised of territorial jurisdiction of the
      Delhi Court. Dhar withdrew his appeal and filed it in the Court of learned
      Additional District Judge, Faridabad which was dismissed on 19.08.2009.
G     Such orders were the subject matter of challenge before the learned
      High Court of Punjab & Haryana in the civil writ petition, which was
      allowed on 24.10.2010.

      1
          Onkar Nath Dhar, in short ‘Dhar’
      2
H         For short, the ‘Act’
          UNION OF INDIA & ANR. v. ONKAR NATH DHAR                               199
                     [HEMANT GUPTA, J.]

       4. The learned Single Bench relied upon an order passed by this           A
Court in J.L. Koul v. State of J & K3. It was held, that it is not possible
for Dhar to return to his own State and that due to which order of eviction
shall be kept in abeyance, although the appellants are at liberty to provide
alternative accommodation to Dhar on nominal licence fee in Faridabad.
The same was affirmed by the learned Division Bench of High Court of
                                                                                 B
Punjab & Haryana.
       5. J.L. Koul was a case arising out of residential accommodation
allotted to the appellant who was a government servant at Jammu in the
year 1989-90. The appellant therein was permitted to retain the house
allotted at Jammu for safety reasons. In terms of the interim order passed
by the Court, the Chief Secretary of the State had filed an affidavit on         C
06.10.2009 and disclosed that out of 54 appellants who were in Court,
23 had already vacated government accommodation and the same had
been allotted to the government employees whereas 31 migrants are still
occupying the government accommodation. 37,280 families have been
registered for the relief including the accommodation and only 5,000             D
families have been provided with the accommodation. The affidavit
stipulates providing transit accommodation and alternatively Rupees One
Lakh per family towards rental and incidental expenses to those who
were not able to be accommodated in the transit accommodation. The
relevant clause is as under:
                                                                                 E
         “(b) 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.”
                                                                                 F
       6. This Court passed an order in J.L. Koul that no further action
is required, wherein it was held as under:
         “8. 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        G
         further action/direction is required.
         9. 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,
3
    (2010) 1 SCC 371                                                             H
200             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A            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 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.”
B
             7. Learned counsel for the appellant refers to the judgment of this
      Court reported as Lok Prahari (I) v. State of Uttar Pradesh & Ors.4
      wherein the executive instructions termed as Ex-Chief Ministers
      Residence Allotment Rules, 1997 were found to be illegal and Lok
      Prahari (II) v. State of Uttar Pradesh & Ors.5 wherein an Act enacted
C     by the Uttar Pradesh Government regularising the allotment of the
      Government houses to the Ex-Chief Ministers was set aside. Reference
      was also made to judgments of this Court reported as S.D. Bandi v.
      Divisional Traffic Officer, Karnataka State Road Transport
      Corporation & Ors.6 and Shiv Sagar Tiwari v. Union of India &
D     Ors. 7
             8. Mr. Handoo, the learned counsel for the respondent referred to
      a judgment by learned Division Bench of High Court of Delhi reported
      as Union of India & Ors. v. Vijay Mam8. The order of the learned
      Single Bench which was the subject matter of appeal in which it was
E     inter alia ordered that Union shall provide alternative accommodation
      to the petitioner and his or her family anywhere in Delhi but can be even
      in NCR region, subject to payment of normal license fee. The learned
      Division Bench was hearing appeals of Union directed against 24
      occupants including one, a former Director-General of Border Security
      Force. The Court referred to Section 2(1)(d) of the Protection of Human
F     Rights Act, 1993 as the rights relating to life, liberty, equality and dignity
      of the individual guaranteed by the Constitution or embodied in the
      International Covenants and enforceable by Courts in India. Reference
      was made to the report of May, 2008 prepared by UN Committee on
      Economic, Social and Cultural Rights, inter alia, reporting that national
G     authorities have the primary duty and responsibility to provide protection
      and humanitarian assistance to internally displaced persons within their
      4
        (2016) 8 SCC 389
      5
        (2018) 6 SCC 1
      6
        (2013) 12 SCC 631
      7
        (1997) 1 SCC 444
      8
H       2012 SCC OnLine Del 3218
       UNION OF INDIA & ANR. v. ONKAR NATH DHAR                                     201
                  [HEMANT GUPTA, J.]

jurisdiction. Principle 7, inter alia, provides that the authorities shall ensure   A
that proper accommodation is provided to displaced persons. The Court
also referred to the judgment in J.L. Koul as a binding precedent. The
learned Delhi High Court, inter alia, held as under:
       “16. No doubt the matter raises certain fundamental issues. It is a
       mix of constitutional rights of the respondents on the one hand              B
       and the right of the Government to claim back the possession of
       the accommodation after their retirement. It is also necessary to
       make a preliminary remark that the issue has arisen in exceptional
       circumstances and exceptional circumstances call for exceptional
       remedies. The underlined objective has to be to dispense justice,
       of course, justice in accordance with law, but at the same time              C
       justice pragmatic with mercy and compassion, wherever it is
       possible within the parameters of law and without doing violence
       to the legal principles.
       17. The simplistic overtures, as perceived by the appellants taking
       it to be simple cases under PP Act, has to be denounced. The                 D
       Court cannot countenance trivialization of the issue as sought to
       be projected. This matter definitely has strong hue of human rights.
       The approach of learned Single Judge in examining the matter
       from that angle is definitely reasonable, just and proper. The said
       approach is adopted with the purpose of doing justice in the broader         E
       sense of the matter keeping aside the narrow and pedantic
       approach. Situations may arise when, to do complete justice in
       the matter, courts have to ignore the technicalities of law.
                  xxx                xxx                xxx
       31. We also make it clear that the Central Government would be               F
       free to frame a rehabilitation scheme specifically for such retired
       employees like the respondents and in such a scheme, it can
       specify the terms and conditions on which such persons would be
       entitled to rehabilitate/alternate residence, which may include the
       term that these respondents or their family members do not have              G
       any residence in any part of the country. It would also be open to
       the Government to specify the nature of accommodation to which
       such retired Government servants would be entitled to or the place
       where they would be rehabilitated which may not necessarily be
       in Delhi but can be even in the NCR region. After the scheme is
       framed, the cases of the respondents can be scrutinized in terms             H
202            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A           of that scheme and those not found eligible for rehabilitation in
            terms thereof can be ousted from the present accommodation.
            Subject to our observations made immediately above, the appeals
            are hereby dismissed with costs.”
             9. We have heard learned counsel for the parties and find that the
B     orders of the High Court are unsustainable. In Shiv Sagar Tiwari, the
      large-scale allotment of Government houses made out of turn in eleven
      categories was examined under the Allotment of Government Residences
      (General Pool in Delhi) Rules, 1963. All such categories were of serving
      employees who were given out-of-turn allotments. The then Minister of
      Urban Development in the Central Government was asked to pay a sum
C     of Rs.60 lakhs as exemplary damages by order dated 8.11.1996. The
      Court examining the argument of right to shelter, held as under:
            “3. …May we also observe that life, livelihood and shelter are so
            mixed, mingled and fused that it is difficult to separate them. To
            take away life, it would be enough to take away livelihood; and to
D           earn livelihood, which in urban areas is ordinarily at places away
            from one’s own home and hearth, shelter would be necessary —
            be it a house or even a pavement. This Court has dealt with cases
            of pavement-dwellers. The locus classicus in Olga Tellis [Olga
            Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545] and the
E           latest rendering is in Ahmedabad Municipal Corpn. v. Nawab
            Khan Gulab Khan [JT (1996) 10 SC 485]. In the case at hand,
            we are, however, not concerned with those who per force occupy
            pavements near the places of their work. The primary subject-
            matter of the present petition is providing of residential
            accommodation in quarters built by the Government for its
F           employees — highly or lowly paid. (Emphasis Supplied)
                      xxx              xxx              xxx
            40. The star question as to who should face eviction is, therefore,
            answered by stating that it would be all those whose names find
G           place in Categories IV, VI, IX, X, XI and such of Category VII
            who had not become actually entitled to in-turn allotment by the
            date(s) the respective reports were submitted. Those IAS, IPS
            and IFS and other officers who are occupying General Pool
            quarters, despite being eligible for quarters in the Tenure Pool,
            would also be evicted.
H
                      xxx              xxx              xxx
UNION OF INDIA & ANR. v. ONKAR NATH DHAR                                203
           [HEMANT GUPTA, J.]

46. The arbitrary exercise of power by the authorities in a big         A
way had led almost to the collapse of the whole system of
allotment. There was a crisis-like situation and this Court had to
deal with an extraordinary situation and a special procedure had
to be devised to do justice to all concerned. Natural justice being
a flexible principle and we being concerned with the issue of out-
                                                                        B
of-turn allotment in thousands, it was felt by us that a collective
hearing would meet the requirement of natural justice as the
Committee had given individual hearing to those who appeared
before it. This view was taken because the basic question to be
determined was whether the allotment given to an employee was
on out-of-turn basis or not. In case it were to be so, it is apparent   C
that unless an exception is made, the allottee has no right to stay,
no right to occupy the premises. The hearing given by us on two
occasions brought home eloquently to us that the out-of-turn
allottees, who were notified and had appeared, had two principal
contentions to advance — the same being the plea not to evict
                                                                        D
either on the ground of serious illness of one or the other close
relatives, or to include them in the functional category. Nothing
else could have really been pleaded not to evict them. These two
aspects have been adequately borne in mind by us as would appear
from the aforesaid discussion.
          xxx               xxx              xxx                        E

95. Finally, we hope that coming years would not see any scam or
misuse of power in making allotments of government quarters.
The trust which is reposed in this context on high public
functionaries would be discharged, we are sure, only to advance
the object of providing of suitable conditions of work to government    F
employees so that the Government is run on even keel; and shelter,
which is a very pressing necessity of any human being, would not
come to be denied if the same is otherwise due to the incumbent.
A satisfied bureaucracy is as much necessary, as good political
leadership, to deliver the goods. The Government of free India          G
have many promises to keep after its tryst with destiny on the
midnight of 14-8-1947. We have no doubt that all the public
functionaries would so act that the meeting with destiny really
sees the dawn of an era of hope for all.”

                                                                        H
204            SUPREME COURT REPORTS                             [2021] 8 S.C.R.


A            10. In S.D. Bandi, the occupation of a government accommodation
      by the members of three branches of the State i.e., legislature, executive
      and the judiciary beyond the period for which the same was allotted
      came up for consideration. This Court, inter-alia, held as under: -
            “33.18 Since allotment of Government accommodation is a
B           privilege given to the Ministers and Members of Parliament, the
            matter of unauthorized retention should be intimated to the
            Speaker/Chairman of the House and action should be initiated by
            the House Committee for the breach of the privileges which a
            Member/Minister enjoys and the appropriate Committee should
            recommend to the Speaker/Chairman for taking appropriate action/
C           eviction within a time bound period.
            33.19 Judges of any forum shall vacate the official residence within
            a period of one month from the date of superannuation/retirement.
            However, after recording sufficient reason(s), the time may be
            extended by another one month.
D
            33.20 Henceforth, no memorials should be allowed in future in
            any Government houses earmarked for residential accommodation.
            34. It is unfortunate that the employees, officers, representatives
            of people and other high dignitaries continue to stay in the residential
E           accommodation provided by the Government of India though they
            are no longer entitled to such accommodation. Many of such
            persons continue to occupy residential accommodation
            commensurate with the office(s) held by them earlier and which
            are beyond their present entitlement. The unauthorized occupants
            must recollect that rights and duties are correlative as the rights
F           of one person entail the duties of another person similarly the duty
            of one person entails the rights of another person. Observing this,
            the unauthorized occupants must appreciate that their act of
            overstaying in the premise directly infringes the right of another.
            No law or directions can entirely control this act of disobedience
G           but for the self realisation among the unauthorized occupants.
            The matter is disposed of with the above terms and no order is
            required in I.As for impleadment and intervention.”
             11. The Uttar Pradesh Government has framed Ex-Chief Ministers
      Residence Allotment Rules, 1997. This Court in Lok Prahari (I) set
      aside the allotment of houses to the former Chief Ministers and Ministers
H
      UNION OF INDIA & ANR. v. ONKAR NATH DHAR                                 205
                 [HEMANT GUPTA, J.]

to retain government accommodation even after they demit office. This          A
Court has approved the judgment in S.D. Bandi’s case, holding as under:
      “37. If we look at the position of other constitutional post holders
      like Governors, Chief Justices, Union Ministers, and Speaker, etc.
      all of these persons hold only one “official residence” during their
      tenure. The respondents have contended that in a federal set-up,         B
      like the Union, the State has also power to provide residential
      bungalow to the former Chief Minister. The above submission of
      the respondent State cannot be accepted for the reason that the
      1981 Act does not make any such provision and the 1997 Rules,
      which are only in the nature of executive instructions and contrary
      to the provisions of the 1981 Act, cannot be acted upon.                 C

      38. Moreover, the position of the Chief Minister and the Cabinet
      Ministers of the State cannot stand on a separate footing after
      they demit their office. Moreover, no other dignitary, holding
      constitutional post is given such a facility. For the aforestated
      reasons, the 1997 Rules are not fair, and more so, when the subject      D
      of “salary and allowances” of the Ministers, is governed by Section
      4(2)(a) of the 1981 Act.
                xxx               xxx               xxx
      46. So far as allotment of bungalow to private trusts or societies is    E
      concerned, it is not in dispute that all those bungalows were allotted
      to the societies/trusts/organisations at the time when there was
      no provision with regard to allotment of government bungalows to
      them and therefore, in our opinion, the said allotment cannot be
      held to be justified. One should remember here that public property
      cannot be disposed of in favour of any one without adequate              F
      consideration. Allotment of government property to someone
      without adequate market rent, in absence of any special
      statutory provision, would also be bad in law because the
      State has no right to fritter away government property in
      favour of private persons or bodies without adequate                     G
      consideration and therefore, all such allotments, which have
      been made in absence of any statutory provision cannot be
      upheld. If any allotment was not made in accordance with a
      statutory provision at the relevant time, it must be discontinued
      and must be treated as cancelled and the State shall take
                                                                               H
206            SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A           possession of such premises as soon as possible and at the same
            time, the State should also recover appropriate rent in respect of
            such premises which had been allotted without any statutory
            provision.”
                                                          (Emphasis Supplied)
B            12. In Lok Prahari (II), this Court struck down U.P. Ministers
      (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 as
      amended in the year 2016 consequent to an order passed by this Court
      in the above-mentioned proceedings. The Court held as under:
            “16. The Preamble to the Constitution of India embodies, inter
C           alia, the principles of equality and fraternity and it is on the basis
            of these principles of equality and fraternity that the Constitution
            recognises only one single class of citizens with one singular voice
            (vote) in the democratic process subject to provisions made for
            backward classes, women, children, SC/ST, minorities, etc. A
D           special class of citizens, subject to the exception noted above, is
            abhorrent to the constitutional ethos.
                      xxx               xxx               xxx
            36. In the light of the above views, the allocation of government
            bungalows to constitutional functionaries enumerated in Section
E           4(3) of the 1981 Act after such functionaries demit public office(s)
            would be clearly subject to judicial review on the touchstone of
            Article 14 of the Constitution of India. This is particularly so as
            such bungalows constitute public property which by itself is
            scarce and meant for use of current holders of public offices.
F           The above is manifested by the institution of Section 4-A in the
            1981 Act by the Amendment Act, 1997 (8 of 1997). The questions
            relating to allocation of such property, therefore, undoubtedly, are
            questions of public character and, therefore, the same would be
            amenable for being adjudicated on the touchstone of reasonable
            classification as well as arbitrariness.” (Emphasis supplied)
G
             13. In view of the judgments referred above, the Government
      accommodation could not have been allotted to a person who had demitted
      office. No exception was carved out even in respect of the persons who
      held Constitutional posts at one point of time. It was held that the
      Government accommodation is only meant for in-service officers and
H     not for the retirees or those who have demitted office. Therefore, the
       UNION OF INDIA & ANR. v. ONKAR NATH DHAR                                207
                  [HEMANT GUPTA, J.]

view of the learned Delhi High Court and that of the Punjab & Haryana          A
High Court is erroneous on the basis of compassion showed to displaced
persons on account of terrorist activities in the State. The compassion
could be shown for accommodating the displaced persons for one or
two months but to allow them to retain the Government accommodation
already allotted or to allot an alternative accommodation that too with a
                                                                               B
nominal licence fee defeats the very purpose of the Government
accommodation which is meant for serving officers. The compassion
howsoever genuine does not give a right to a retired person from
continuing to occupy a government accommodation.
       14. According to a policy framed by the government, a displaced
person is to be lodged in a transit accommodation and if it is not available   C
then cash compensation is to be provided. But the displaced persons
cannot occupy government accommodation. If a retired government
employee had no residence, they have an option to avail transit
accommodation or to receive cash compensation in the place of transit
accommodation. The right of shelter is taken care of when alternative          D
Transit accommodation is made available to the migrants to meet out the
emergent situation. There is no policy of the Central Government or the
State Government to provide accommodation to displaced persons on
account of terrorism in the State of Jammu & Kashmir. Such directions
of the Delhi High Court and of the Punjab & Haryana High Court is de
hors any policy of allotting accommodation to the migrants under the           E
guise of the right to shelter which is clearly in excess of jurisdiction
vested with the Courts. The hardship faced by them does not lead to a
corresponding duty of the State to provide them alternative government
accommodation.
                                                                               F
       15. It was argued by Mr. Handoo that the right of shelter is a
fundamental right under article 21 of the Indian Constitution. A right to
shelter is a fundamental right, that may not be disputed, but such a right
of shelter is granted to millions of Indians who do not have shelter. A
section of society, more so retired government employees, who had
earned pension, drawn retirement benefits cannot be said to be in such         G
condition, where the government should provide government
accommodation for an unlimited period. The direction to allow a retired
government servant to retain government accommodation for an indefinite
period, to say the least, is a distribution of state largesse without any
policy of the State. A section of the migrants cannot be treated as
                                                                               H
208                SUPREME COURT REPORTS                              [2021] 8 S.C.R.


A     preferential citizens to give them the right to shelter at the cost of millions
      of other citizens who do not have a roof over their heads. The right of
      shelter to the displaced person is satisfied when accommodation had
      been provided in the transit accommodation. Such right of shelter does
      not and cannot extend to provide a government accommodation.
B            16. J.L. Koul is a case, accepting the rehabilitation scheme framed
      by the State authorities based on which appropriate accommodation was
      provided to 31 appellants and was given accommodation which was in
      their possession. Such direction was in terms of Article 142 of the
      Constitution. This Court in a judgment reported as Indian Bank v. ABS
C     Marine Products (P) Ltd.9 held that the High Courts repeatedly followed
      a direction issued under Article 142, by treating it as the law declared by
      this Court. It was held that the Courts should therefore be careful to
      ascertain and follow the ratio decidendi, and not the relief given on the
      special facts. This Court held as under:

D              “26. One word before parting. Many a time, after declaring the
               law, this Court in the operative part of the judgment, gives some
               directions which may either relax the application of law or exempt
               the case on hand from the rigour of the law in view of the peculiar
               facts or in view of the uncertainty of law till then, to do complete
E              justice. While doing so, normally it is not stated that such direction/
               order is in exercise of power under Article 142. It is not uncommon
               to find that courts have followed not the law declared, but the
               exemption/relaxation made while moulding the relief in exercise
               of power under Article 142. When the High Courts repeatedly
               follow a direction issued under Article 142, by treating it as the
F              law declared by this Court, incongruously the exemption/relaxation
               granted under Article 142 becomes the law, though at variance
               with the law declared by this Court. The courts should therefore
               be careful to ascertain and follow the ratio decidendi, and not
               the relief given on the special facts, exercising power under Article
G              142. One solution to avoid such a situation is for this Court to
               clarify that a particular direction or portion of the order is in exercise
               of power under Article 142. Be that as it may.”



      9
          (2006) 5 SCC 72
H
          UNION OF INDIA & ANR. v. ONKAR NATH DHAR                                 209
                     [HEMANT GUPTA, J.]

        17. In another judgment reported as Ram Pravesh Singh & Ors.               A
v. State of Bihar & Ors.10, it was held that any direction given on special
facts, in the exercise of jurisdiction under Article 142, is not a binding
precedent. This Court held as under:
          “23. The appellant next submitted that this Court, in some cases,
          has directed absorption in similar circumstances. Reliance is placed     B
          on the decision in G. Govinda Rajulu v. A.P. State Construction
          Corpn. Ltd. [1986 Supp SCC 651 : 1987 SCC (L&S) 71] We
          extract below the entire judgment: (SCC p. 651, paras 1-2)
             “1. We have carefully considered the matter and after hearing
             learned counsel for the parties, we direct that the employees         C
             of the Andhra Pradesh State Construction Corporation Limited
             whose services were sought to be terminated on account of
             the closure of the Corporation shall be continued in service on
             the same terms and conditions either in the government
             departments or in the government corporations.
                                                                                   D
             2. The writ petition is disposed of accordingly. There is no
             order as to costs.”
          The tenor of the said order, which is not preceded by any reasons
          or consideration of any principle, demonstrates that it was an order
          made under Article 142 of the Constitution on the peculiar facts         E
          of that case. Law declared by this Court is binding under Article
          141. Any direction given on special facts, in exercise of jurisdiction
          under Article 142, is not a binding precedent. Therefore, the
          decision in Govinda Rajulu [1986 Supp SCC 651 : 1987 SCC
          (L&S) 71] cannot be the basis for claiming relief similar to what
          was granted in that case. A similar contention was negatived by          F
          the Constitution Bench in Umadevi (3) [(2006) 4 SCC 1 : 2006
          SCC (L&S) 753] : (SCC p. 39, para 46)
             “The fact that in certain cases the court had directed
             regularisation of the employees involved in those cases cannot
             be made use of to found a claim based on legitimate                   G
             expectation.”
       18. Therefore, the direction issued in J.L. Kaul that the retirees
shall continue to possess the accommodation in their possession is a

10
     (2006) 8 SCC 381                                                              H
210             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     direction under Article 142 of the Constitution. This Court had accepted
      the rehabilitation scheme finalized by the State Government.
             19. Dhar was an officer of the Intelligence Bureau. He has drawn
      his salary and availed of alternative accommodation for 15 years after
      his retirement along with pensionary benefits. There is no indefeasible
B     right in any citizen for allotment of government accommodation on a
      nominal licence fee. The government accommodation is meant for the
      serving government employees to facilitate the discharge of their duties.
      The government accommodation is not meant for the retirees. The
      accommodation to the retirees is at the cost of serving officers. In terms
      of the policy which was considered in J.L. Koul, the Kashmiri migrants
C     are entitled to transit accommodation and if transit accommodation could
      not be provided then money for residence and expenses. Dhar and such
      like persons are not from the poorest section of the migrants but have
      worked in the higher echelons of the bureaucracy. To say that they are
      enforcing their right to shelter only till such time the conditions are
D     conducive for their safe return is wholly illusory. No one is sure that at
      what point of time the condition will be conducive to the satisfaction of
      the migrants. Such benevolence and preferential right to section of the
      citizens is unfair to the serving officers. Dhar like persons should have
      compassion for their fellow employees who may be without any
      government accommodation. The right to shelter does not mean right to
E     government accommodation. The government accommodation is meant
      for serving officers and officials and not to the retirees as a benevolence
      and distribution of largesse.
             20. Thus, we find that the orders passed by the High Court are
      absolutely without any basis and in the absence of any policy of allotment
F     of government accommodation to a retired government servant, who
      may be victim of terrorism. The orders passed are wholly arbitrary and
      irrational. We are unable to agree with the reasoning recorded by Delhi
      and Punjab & Haryana High Courts.
             21. Consequently, the present appeal is allowed. The order passed
G     by the High Court is set aside and the writ petition challenging the order
      under the Act is restored. However, the respondent- Dhar is granted
      time to hand over vacant physical possession of the premises on or before
      31.10.2021, i.e., after 15 years of his attaining the age of superannuation.

H
        UNION OF INDIA & ANR. v. ONKAR NATH DHAR                               211
                   [HEMANT GUPTA, J.]

        22. The appellant shall submit a report of the action taken against    A
the retired Government officials who are in Government accommodation
post their retirement by virtue of the orders of the High Courts on or
before 15.11.2021.


Nidhi Jain                                                   Appeal allowed.
                                                                               B




                                                                               C




                                                                               D




                                                                               E




                                                                               F




                                                                               G




                                                                               H