Dr. (Mrs.) Gyanwati Darbar vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 2054 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The issue that arises for our consideration in this appeal is whether the appellant herein is entitled to retain possession of the government accommodation allotted in the name of her late husband as freedom fighter, in perpetuity i.e. till her death.

2. The appellant, who was stated to be of 77 years of age in the year 2002 when the writ petition was filed, is widow of the freedom fighter late Shri B.S. Darbar.

3. In 1984, Government formulated a policy for allotment of general pool quarters to freedom fighters. In terms of the said policy the husband of the appellant late Shri B.S. Darbar was allotted a general pool Government accommodation bearing house No. 23/211, Lodhi Colony, New Delhi. The allotment letter clearly stipulates that the allotment was purely on ad hoc basis and the allottee was liable to vacate the property when it was no longer required by him. The allotment letter also stipulates that the allotment was purely temporary and liable to be revoked by giving one month's notice.

4. Late Shri B.S. Darbar continued to occupy the property. On 19th April, 1994, the Government issued a fresh policy in form of office memorandum for Allotment of General Pool Residential Accommodation to Freedom Fighters. As per the new policy, general pool residential accommodation could be allotted to a freedom fighter provided she/he, spouse or dependents do not own a house or a flat in Delhi and the said accommodation was required for bona fide medical treatment of the freedom fighter or his/her spouse. While recommending the case for allotment, the Ministry of Home Affairs was required to give detailed justification necessitating allotment of accommodation and also recommend period of allotment, in cases of freedom fighters who were less than 70 years of age. However, in cases where freedom fighters were more than 70 years old, allotment was to be made for his/her life time period and not necessarily on medical grounds. Another clause in the said office memorandum dated 19th April, 1994 stipulated that the spouse of freedom fighter residing in Government accommodation shall be entitled to retain the office accommodation even after the demise of the freedom fighter but for the stipulated period of allotment. The relevant portions of the Policy formulated on 19th April 1994 are quoted herein:

Office Memorandum

Sub : review of guidelines for allotment of General Pool residential accommodation to freedom fighters.

Guidelines for allotment of General Pool residential accommodation to the freedom fighters were reviewed by the Govt. and it has been decided to revise the guidelines as follows:

2. Freedom Fighters of All India Standing may be allowed general pool residential accommodation provided:

(a) ...

(b) The accommodation is required for bonafide medical treatment of the freedom fighter or his/her spouse.

(c) The case is specifically recommended by the Ministry of Home Affairs who should give detailed justification necessitating allotment of accommodation and also recommend period of allotment in case of those freedom fighters who are below 70 years in age. In case of those above 70 years in age it should be for 'life-time' and not necessarily on medical grounds.

(d) Type of accommodation would be restricted to type-D and below.

(e) ...

(f) The spouse of freedom fighter residing in Govt. accommodation allotted to the freedom fighter shall be entitled to retain accommodation even after the demise of the freedom fighter, for the stipulated period of allotment.

(g) The revised guidelines shall be effective from 10.2.94, the date on which the decision was taken by the CCA.

5. After the office memorandum dated 19th April, 1994 was issued, representations were made by late Shri B.S. Darbar and thereupon the Directorate of Estates issued letter dated 21st March, 1995 to Late Shri B.S Darbar informing him that he being more than 70 years of age would be entitled to retain quarter No. 23/211, Lodhi Colony, New Delhi during his life time on payment of normal license fee on leave/license basis. It is claimed by the Appellant that the said letter though addressed solely to Late Shri B.S Darbar was in fact a communication meant for both i.e. late Shri B.S. Darbar and the appellant. It is contended by the counsel for the appellant the said letter allowed both of them to have possession of the Government accommodation for their life time.

6. On 17th November, 1997, the Ministry of Urban Affairs issued fresh guidelines for discretionary allotment of General Pool Residential Accommodation in Delhi. The above guidelines were issued pursuant to an order of the Supreme Court S.S. Tiwari v. Union of India Writ Petition (Civil) No. 585/1994. Under the new guidelines, widows of the freedom fighters are entitled to retain accommodation for a period of six months after death of the allottees/freedom fighters.

7. Late Shri B.S. Darbar expired on 7th April, 2001. The appellant herein, however, did not vacate the property and has made a claim that she is entitled to occupy the property even during her life time in terms of the office memorandum dated 19th April, 1994.

8. It may be noted here that even after the death of the husband of the appellant, no information about his death was furnished to the Directorate of Estates. It is the clear stand of the Directorate of Estates that as per the guidelines dated 17th November, 1997, the widow of the freedom fighter can be allowed to retain Government accommodation only for a period of six months after the demise of the allottee and consequently after the death of late Shri B.S. Darbar on 7th April, 2001, his widow, the present appellant could retain the Government accommodation only for a period of six months thereafter. The Directorate of Estates after coming to know about the death of late Shri B.S. Darbar revoked the leave and license with effect from 27th July, 2002 vide their letter dated 27th June, 2002 giving one month's notice to the appellant. The appellant did not vacate the aforesaid accommodation and thereafter eviction proceedings were initiated. The Estate Officer passed an order on 25th October, 2002 directing her eviction after following due process of law.

9. The appellant submitted requests to various authorities including the Minister for Home Affairs for retention of the house during her life time but the said requests have been rejected.

10. In these circumstances, the appellant filed a writ petition that she could not be evicted from the house during her life time. Reliance was placed upon the office memorandum dated 19th April, 1994. Plea of legitimate expectation and promissory estoppel was raised.

11. The learned Single Judge, before whom the writ petition was filed, considered the facts and circumstances and thereafter on appreciation thereof held that in terms of the aforesaid latest circular issued in 1997, the appellant is not entitled to retain the Government quarter and, therefore, she should vacate the same and accept the alternative accommodation that is provided to her in the Freedom Fighters Complex.

12. The aforesaid order of the learned Single Judge dismissing the writ petition of the appellant is under challenge in this appeal. Counsel for the appellant submitted before us that in the light of the circular issued by the Ministry of Home Affairs in the year 1984, the appellant has a legitimate expectation to retain possession of the government accommodation during her lifetime as she herself was a freedom fighter and, therefore, the order passed is illegal and unjustified. It was also submitted that the appellant is now ailing, being 82 years of age and her son is a resident of Australia and that since she is living alone, there is a humanitarian aspect involved in the case and as such the impugned order is liable to be set aside and quashed. It was also submitted before us that the alternative place, which is being made available for the accommodation of the appellant, is substandard and is not habitable by the appellant. It was also submitted that the said accommodation is not meant for women and she is unable to stay there as she is unable to look after herself.

13. The aforesaid submissions of the counsel for the appellant were, however, refuted by the counsel for the respondent, who submitted before us that there could be no legitimate expectation on the part of the appellant to believe that she would continue to be in possession of the aforesaid accommodation, which was meant only for occupation of her husband during his lifetime as was made clear in the circular dated 17th November, 1997, which was applicable to the appellant and also to her husband as her husband died only in the year 2001. It was also submitted that the alternative accommodation which is being provided to her is not substandard, as alleged and that it can definitely house the appellant and all facilities which are required by her can be made available to her by the Ministry of Home Affairs.

14. In the light of the aforesaid submissions, we have also examined the decision of the Supreme Court in S. Raghunathan and Ors. v. National Buildings Construction Corporation , which deals with the principles of legitimate expectation. In the said decision it was held that the aforesaid doctrine of legitimate expectation is akin to natural justice, reasonableness and promissory estoppel. It was held in the said decision that genesis of the said doctrine is fair play in administrative action. It was held in the said decision that the person seeking to invoke the doctrine must be aggrieved and there must be some evidence on record to show that the said person had altered his position and whether such expectation could be said to be legitimate or not is a question of fact.

15. Counsel for the appellant heavily relied upon the said decision to submit that the appellant had such legitimate expectation as she will be able to live in the said government accommodation during her lifetime. Whether or not there was any legitimate expectation of the appellant in the matter of occupation of the government accommodation till her lifetime was also a matter which was urged before the learned Single Judge by referring to the said guidelines and also relying on the said decision.

16. The learned Single Judge on consideration of the various aspects held that allotment of the aforesaid quarter was in the name of Shri B.S. Darbar and that with the change in the policy in 1997, pursuant to the directions of the Supreme Court, the appellant would not and could not have any legitimate expectation to continue in the said accommodation for lifetime. The learned Single Judge framed a question as to whether or not the appellant can have legitimate expectation or whether the principles of promissory estoppel would ensure for the benefit of the appellant.

17. In the light of the aforesaid, the following are the findings which are recorded by the learned Single Judge in that regard:

19. In so far as the aforesaid principles are concerned, there can be no dispute. The question, however, arises whether the petitioner can have any legitimate expectation or whether the principles of promissory estoppel would ensure for the benefit of the petitioner. It has to be appreciated that the matter is one of pure policy where the Government made the allotment to the late husband of the petitioner alone. The policy from time to time has been modified and though earlier policy was to make an allotment even to the wives for a life time, this policy was changed as far back as in 1997. Thus at the time of demise of the husband of the petitioner in the year 2001, a new policy had come into force almost four years prior to the same. The question of allotment in favor of the petitioner could arise only at the time of the demise of her husband and by that time the new policy was in existence. It is that policy which would apply.

20. This aspect has also to be considered in view of the fact that the complete issue of making such allotment was taken up by the Supreme court in S.S. Tiwari Case (supra) and directions had been issued. The new policy came into existence because of the same. Once the policy changed in 1997 there could have been no legitimate expectation of the petitioner for such an allotment. Prior to that date, there would have been no occasion to arise any legitimate expectation for the petitioner. Thus the principle of National Building Construction Corporation Case (supra) where the observation of Lord Diplock was cited with approval would have no application. It has also to be seen that even where such legitimate expectation would arise, the same would give way to a larger public cause and the change would be permitted if it was based on some valid principles and was not arbitrary. There could be no question of arbitrariness in the new policy since this has come into being in pursuance to the directions of the Supreme Court. The arbitrariness was prior to the Hon'ble Supreme Court considering the matter in public interest litigation and it was to end this arbitrariness that this policy came into being. I am thus of the considered view that the observations in the Narendra Kumar Maheshwari hardly support the case of the petitioner.

18. The learned Single Judge also noted the fact that one cannot ignore the fact that there is paucity of accommodation and the rights of the different persons have to be balanced and also the fact that the availability of accommodation is less as compared to the requirement. There being disparity between the demand and supply of the requirement, it was held that the aforesaid benefits would and should be interpreted as continuing during the lifetime of the freedom fighters and for the dependent wife for a period of six months in order to give proper and effective meaning to the availability of an accommodation and also the policy guidelines of the respondent.

19. We have quoted the terms and conditions of the original allotment letter dated 14th August, 1985. The said allotment letter clearly stipulated that the allotment was purely ad hoc, temporary and liable to be revoked by giving one month's notice. At that time when the allotment was made, there was no policy for life time allotment to freedom fighter and/or his/her spouse. Subsequently, vide office memorandum dated 19th April, 1994, the guidelines for allotment of general pool residential accommodation were amended. The relevant portion of the office memorandum dated 19th April, 1994 has been quoted above. The terms mentioned in the above memorandum dated 19th April, 1994 clearly stipulate that in case of freedom fighters more than 70 years of age, they would be entitled to retain the Government accommodation for their life time and freedom fighters, who are below 70 years of age, would be allowed to retain the Government accommodation for the period stipulated in the allotment letter. The said office memorandum also states that the spouse of a freedom fighter would be entitled to reside in the Government accommodation after demise of the freedom fighter for the period specified and stipulated in the allotment letter and not thereafter. Thus in terms of the office memorandum dated 19th April, 1994, a freedom fighter was entitled to retain Government accommodation for the period stipulated in the allotment letter in case he was below 70 years of age, or for his life time in case he was above 70 years of age. Spouse of the freedom fighter residing in the Government accommodation, after the death of the freedom fighter, was entitled to retain the Government accommodation after demise of the freedom fighter, but only for the period stipulated in terms of the allotment letter and not thereafter. The period stipulated in the allotment letter dated 26th June, 1995 was the life time of late Shri B.S. Darbar. Therefore, upon death of late Shri B.S. Darbar, the spouse i.e. the appellant, could not have retained the Government accommodation as the period of allotment stipulated in the allotment letter dated 26th June, 1995 was over. Allotment was not made in the name of the appellant but was in the name of late Shri B.S. Darbar and, therefore, she has no right in terms of office memorandum dated 19th April, 1994 to retain the said accommodation after death of her spouse late Shri B.S. Darbar. In terms of the office memorandum dated 19th April, 1994, the allotment in favor of late Shri B.S. Darbar was till a specified date i.e. during his life time. The appellant being the widow is entitled to Government accommodation till the specified date i.e. during the life time of late Shri B.S. Darbar and not thereafter.

20. We may refer here to the letter dated 26th June, 1995, which was written by the Directorate of Estates to late Shri B.S. Darbar. Photocopy of the said latter has been placed on record before us. The learned Single Judge has stated in the impugned judgment that the appellant herein has interpolated and added word 'both' in the said letter to justify the claim that late Shri B.S. Darbar and the appellant, both, were entitled to retain the Government accommodation during the life time of the appellant on payment of normal license fee on leave and license basis. Photocopy of the letter placed on record by the respondent indicates that the word 'both' is missing in the said letter. To clarify the situation, we reproduce the said letter with the word 'both' mentioned in brickets:

New Delhi, the 26.6.95

To

Shri B.S. Darbar, (Freedom Fighter) Flat No. A-23/211, Lodhi Colony New Delhi.

Sub : Continuing retention of Qr. No. A-23/211, Lodhi Colony, New Delhi by Shri B.S. Darbar (Freedom Fighter)

Sir,

I am directed to refer to your letter dated 27.2.95 on the subject cited above and to say that it has been decided to allow you (both) to retain Qr. No. A-23/211, Lodhi Colony on payment of normal license fee for life-time on leave and license basis. You are also requested to produce non-house owning affidavit once in every two years. The next will be due on Jan 97. Present rate of license fee is Rs. 200/- p.m.

Yours faithfully,

Sd/-

(Mahendra Singh) Assistant Director of Estates

21. It is clear that the letter dated 26th June, 1995 was written to late Shri B.S. Darbar and not to the appellant. We entirely agree with the findings of the learned Single Judge that the word 'both' has been added later on with a view to justify the claim and the stand of the appellant that she is entitled to retain the Government accommodation even after the death of late Shri B.S. Darbar. The word 'both' has been written by hand whereas the entire latter is typed. Even otherwise, addition of the word 'both' does not make any sense.

22. It may be stated here that late Shri B.S. Darbar expired on 7th April, 2001 and by the said date the respondent? Union of India had already introduced new policy dated 17th November, 1997 pursuant to the order passed by the Supreme Court in S.S. Tiwari's case. The said policy is, therefore, applicable in the present case and the new policy supersedes all previous guidelines. We do not think that doctrine of legitimate expectation is applicable in the facts and circumstances of the case as the initial allotment was made in the year 1985. The said allotment was purely on ad hoc, temporary basis, which could be terminated at any point of time. The appellant cannot claim any vested right in the policy dated 19th April, 1994, which stands superseded by fresh policy guideline made in the year 1997. We have also examined the policy dated 19th April, 1994 and find that the appellant cannot claim any right to continue to occupy the property after death of late Shri B.S. Darbar. In terms of the new policy guideline issued in 1997, the appellant was entitled to occupy the accommodation for six months after death of the original allottee i.e. late Shri B.S. Darbar. She has overstayed in the aforesaid property for six years. It is not that the appellant is not being provided with alternative accommodation. She has the option to shift to the Freedom Fighters Complex.

23. We have also been given an assurance by the counsel for the respondent that if the appellant shifts to the aforesaid accommodation, her needs and requirements will be looked after by the Ministry of Home Affairs. We take the aforesaid statement on record. If and when the appellant moves to the aforesaid alternative accommodation provided to her, she shall be provided with all facilities and requirements as may be required for a comfortable living as far as it could be provided by the Home Ministry.

24. We, therefore, find no error in the judgment passed by the learned Single Judge. In view of the circumstances and the stance of the Ministry of Home Affairs with respect to providing necessary facilities to the appellant, it is our considered opinion that the appeal has no merit and the same is dismissed.