Dharam Vir vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 707 Del

JUDGMENT

Mukundakam Sharma, C.J.

CM 17228/2006

By this application the appellant prays for condensation of delay in filing the appeal.

For the reasons stated in the application, we allow the same. Delay in filing the appeal stands condoned and the appeal is taken on record.

The application stands disposed of.

LPA No. 2337/2006

1. Respondent No. 2/Delhi Development Authority had constructed about 853 flats in the Asian Games Village Complex from its own funds for accommodating the visiting sports persons and officials during Asiad 1982. After the Games were over, some of the aforesaid flats were taken over by the Directorate of Estates for accommodating Central Government employees in General Pool whereas some flats were allotted to Non-Resident Indians against foreign exchange. The question of disposal of the remaining flats was considered by the Union of India and it was decided that the remaining flats may be allotted to Government Departments/Public Sector Undertakings/Financial Institutions. Another decision was taken some time in 1987 with the approval of the then Minister of State in the Ministry of Urban Development to earmark 25% of the remaining 54 flats for allotment to deserving SC/ST persons. Consequently, DDA reserved 25% of the 54 flats i.e. 14 flats, for allotment to SC/ST persons.

2. Consequent upon the said decision DDA floated a scheme for allotment of the said flats at Asian Games Village Complex to SC/ST persons. There was only one applicant as against the said scheme and consequently the application of the said person was accepted and flat No. 540 was allotted to the said applicant. Immediately thereafter the scheme laying down the quota reserved for SC/ST was scrapped by the DDA. Subsequently, with the approval of the then Minister for Urban Development, after considering various individual applications received, allotments were made to 11 persons.

3. The appellant herein submitted an application to the then Minister of State for Urban Development for allotment of a flat at Asian Games Village Complex under the SC/ST quota for the first time on 16th October, 1989, i.e. after scrapping of the aforesaid scheme, stating that he could not avail of the opportunity for allotment under reserved category when the scheme was advertised by the DDA as he was not aware of the same. The scheme was scrapped in 1987 whereas the aforesaid application was filed in the month of October, 1989 on which, however, the then Minister ordered that if any Asiad flat from SC/ST quota is available, it may be allotted to the appellant. Subsequently, the succeeding Urban Development Minister reconsidered the case of the appellant and the same was rejected.

4. Being aggrieved by the said rejection order, the appellant approached the National Commission for SC and ST. The Commission directed that flat No. 846, being utilised by the DDA as staff quarters since 1986, should be got vacated and allotted to the appellant. The order of the Commission was considered by the Ministry and in view of the said order it considered to offer a flat to the appellant at Asian Games Village. On receipt of the aforesaid letter, the Vice Chairman, DDA requested the Ministry under letter dated 29th June, 1998 to reconsider its decision for allotment of one Asian Games Village flat to the appellant. In the meantime, a writ petition was filed by the appellant in this Court. In the counter affidavit filed by the DDA against the said writ petition it was pointed out that since 47 available flats were for allotted to general public, only 12 flats, being 25% of 47 flats, could be allotted to SC/ST, as reservation for SC/ST categories has to be viewed in the context of the total allotment of flats to general public. It was also mentioned therein that the earlier decision to reserve 14 flats for SC/ST categories was taken by the Ministry on the assumption that at that time 54 flats were available for allotment to general public, thereby requiring 14 flats reserved for SC/ST categories. Subsequently, as only 47 flats were allotted to general public, 12 flats were allotted to the SC/ST categories, which cover 25% reservation for the aforesaid categories. Records placed before us also indicate that altogether 12 flats stood allotted in SC/ST category i.e. six flats to each category and, therefore, quota of 25% out of 47 flats stood exhausted before the Minister made recommendation but no specific order for allotment of a flat to him was made.

5. The learned Single Judge considered the contentions raised in the writ petition and on going through the records it was held that the appellant did not apply for allotment of a flat during the period in which the aforesaid scheme was in vogue. He approached the Minister more than two years later and secured a recommendation for allotment under the SC/ST category, after closure of the scheme for such allotment. The learned Single Judge held that such allotment or recommendation made after the closure of the scheme was not in accordance with rules of prudence. It was also held that DDA or the Ministry of Urban Development could not have given a go by to the rule of seniority by allotting two flats to other applicants in the SC/ST category contrary to the panel of seniority. It was held that allotment of any flat could not have been made to the appellant and that nothings of officials in files and communication would not create any enforceable right in favor of the appellant. Consequently the writ petition was dismissed.

6. Mr.KTS Tulsi, the learned senior counsel appearing for the appellant, drawing our attention to the order passed by the Ministry of Urban Development on the application filed by the appellant, submitted that since there was already an order by the Minister, the same should have been respected and a flat should have been allotted. According to him the order of the Minister was communicated to the respondent-DDA and that the DDA passed an order for allotment of a flat in favor of the appellant, as can be gathered from the letter dated 12th March, 1999. The order of the Minister dated 10th November, 1989 was a mere recommendation and not an order of allotment.

7. However, a bare perusal of the said letter dated 12th March, 1999 would show that the same was an internal letter between the authorities in the DDA and the aforesaid letter was also issued in the light of the order passed by the National Commission for SC and ST, which is advisory in nature. Flat No. 846, which was sought to be given to the appellant, was a flat allotted towards residential accommodation of the staff of DDA and was being used as staff quarters of the DDA. Resultantly, the same could not have been directed to be allotted in favor of the appellant.

8. The scheme/policy under which the appellant claims allotment of a flat was scrapped in 1987. There could not have been an application by the appellant under the said scheme which could be considered by any authority nor any allotment of a flat could be made in a manner which is unknown and in violation of the provisions of law and rules. Order of the Minster on the application of the appellant was only recommendation and not an order of allotment. But in other two cases which are relied upon by the appellant there was an order of allotment by the Minister which was duly complied with by the DDA although may be through mistakes of legal position. Order dated 26th March, 1998 is a letter of the Department of Urban Development, Ministry of Urban Affairs and Employment, wherein a recommendation was made for allotment of a flat in view of the order passed by the National Commission for SC and ST. The other two letters which are relied upon by the appellant dated 29th May, 1998 and 12th March, 1999 are internal communications of the DDA and, therefore, the same have no relevance in respect of the claim of the appellant. From the office noting of the Ministry it is clear that in 1990-1991 there was no flat available for allotment against SC/ST category.

9. In this connection we may refer to the Division Bench decision of this Court in Girdhari Lal Tewari and Anr. v. Union of India and Ors. wherein it was held that personal opinion/advice of the ministers or intra-departmental communications cannot be construed as executive action of the competent authority. It was further held that such actions are neither binding nor conclusive.

10. Counsel for the appellant has also contended that the respondents have allotted in similar manner such flats against SC/ST quota at least in two cases, even when applications were made in 1989. The said contention could not be disputed by the counsel appearing for the respondents, but only submitted that in those cases, there was specific order of the Minister for allotment whereas in the case of the appellant, it was only a recommendation.

11. We are, however, of the opinion that if the competent authority committed a mistake and allotted flats to undeserving persons, the same cannot create any right to any other person and the said authority cannot be forced to perpetuate the same mistake. In the case of State of UP and Ors. v. Raj Kumar Sharma and Ors. , the Supreme Court has accepted the aforesaid position and has held that even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person and that Article 14 of the Constitution does not envisage negative equality. It was further declared that if the State committed mistake it may not be forced to perpetuate the same mistake. While declaring the aforesaid law, it reiterated the law laid down by the Supreme Court in several judgments which find mention in paragraph 15 of the said judgment.

12. Considering the facts and circumstances of the case, we are not impressed by the submissions of the counsel appearing for the appellant. We find no infirmity in the order passed by the learned Single Judge. The appeal has no merit and is dismissed.