Yashwant Singh And Anr. vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1790 Del

JUDGMENT

S. Ravindra Bhat, J.

CM No. 2097/2007

1. After hearing counsel for the parties I am of the opinion that ends of justice require that the reliefs claimed should be acceded to. The application is accordingly allowed.

CM No.1101/2007

The writ petition was dismissed for non-prosecution on 11.12.2006. Apparently, the case was taken up from the regular list and there was no appearance and the petitioner was unrepresented. The order discloses that there was no representation on behalf of the respondent. In these circumstances after hearing counsel for the parties I am of the opinion that ends of justice require that this application ought to be allowed. Ordered accordingly. The writ petition is restored to its original position.

W.P.(C) 4819/1997

1. With consent of counsel for the parties the case was heard finally today.

2. The petitioner claims to be aggrieved by an order of eviction made against him on 29.9.1997 by the learned Additional District Judge, rejecting his appeal. He also challenges the order dated 8.1.1996 of the Estate Officer directing their eviction from Government quarter No. 609(Z-167) Timar Pur, Delhi. The admitted facts declaring are that the second petitioner, who was at the time working as an Assistant, was allotted the said Government accommodation in 1953, according to his entitlement. He attained the age of superannuation on 31.12.1982. He was entitled to hold premises for two months. In the meanwhile his son, the first petitioner secured employment in 1976 the Central Government apparently in the same pay scale; he was appointed as a Head Clerk in the year 1976.

3. The petitioners approached the authorities for a regular allotment but to no avail. The representations for regularization of occupation were turned down in 1994. The Central Government acting through the Estate Officer issued a notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971; the petitioners resisted the proceedings and suffered an order of eviction on 8.1.1996. They unsuccessfully appealed to the Additional District Judge. Claiming to be aggrieved, by the order of the appellate court, they have approached this Court.

4. The petitioners rely upon a circular dated 1.5.1981 which entitles the son/child of a Government servant allotted accommodation, upon the latterer retiring, to the same accommodation provided that such son, etc. resided with the Government servant for at least 3 years preceding the date of retirement. That circular is extracted below:

No. 12035(7)/79-Pol.II Government of India Ministry of Works and Housing (Directorate of Estates) New Delhi, the 1st May, 1981 OFFICE MEMORANDUM

Subject:- Concession of ad-hoc allotment of General Pool accommodation admissible to eligible dependants/relations of Govt. employees on their retirement.

In exercise of the powers/conferred under S.R. 317-B-25 of the Allotment Residences (General Pool in Delhi) Rules, 1963 the Central Government have decided that when a Government servant, who is an allottee of General Pool accommodation retires from service his/her son, unmarried daughter or wife or husband, as the case may be, may be allotted accommodation from the General Pool on an ad-hoc basis, provided the said accommodation in General Pool and had been continuously residing such retiring government servant for at least three years immediately proceeding the date of his/her retirement. In case, however, a person is appointed to government service within a period of three years proceeding the date of retirement or had been transferred to the place of posting of the retiring Government servant any time within the proceeding three years, the date on which he was so appointed for transferred would be the date applicable for the purpose. This decision would cover cases of Government servants retiring on or after 07.11.1979.

In the case of those Government servants who retired prior to the 7th November 1979, the concession of making ad-hoc allotment to an eligible dependent i.e. his/her son, unmarried daughter or wife or husband only would be considered on fulfillment of the old conditions i.e. the dependent was residing continuously for a period of six months with the retired Government servants immediately prior to his retirement. This concession would also be extended on request to the eligible dependents i.e. son, unmarried daughter, wife or husband of those officers who vacated the Government accommodation after 1st May, 1978.

In all such cases, the Government servants will be required to pay license fee at market rate for the period of unauthorised occupation of the Government accommodation.

The above concession will, however, be not available in cases where the retiring officer or the member of his family owns a house in the place of his/her posting.

In respect of other pools of Government accommodation like Railways and Posts & Telegraphs the respective Ministries would consider the matter and take their own decision.

The clearance of all dues outstanding in respect of the premises in occupation of the retired officer shall be an essential condition for the consideration of an allotment to an eligible dependents.

The eligible dependents will be allotted accommodation one type below his/her retirement, provided that in no case, except otherwise specified allotment will be made to a higher type of quarter then in occupation of the retiring Government servant. Provided further that where the eligible Government servant is entitled to type II or any higher type of accommodation, he/she will be allotted accommodation in type II on ad hoc basis even if the retiring Government servant was occupying type I accommodation.

These orders will take immediate effect.

5. This petition was entertained on 12.11.1997; an interim order was made on that date directing the respondents not to dispossess the present petitioner. Subsequently, the court issued rule and confirmed the order.

6. During the pendency of these proceedings on 16.7.2002 the respondents allotted the same quarter to the first petitioner i.e. the son. In these circumstances it is contended that the substantial relief has been granted yet the petitioners apprehend that they would be exposed to a claim for damages.

7. I have considered the submissions of parties and carefully examined the materials on record. A bare examination of the circular dated 1.5.1981 would show that if the son or child of the Government servant is also working for three years, preceding his parent's retirement and entitled to a general pool accommodation of a similar kind, the quarter occupied by the father/parent as the case may be can be regularized. In the present case there is no denial that the petitioner was indeed working since 1976 apparently in the same pay scale of his father i.e. the second petitioner. Facially, therefore the office memorandum dated 1.5.1981 was applicable.

8. The respondent's plea in these proceedings is that the orders of eviction were issued correctly, because the father's entitlement was not to a General Pool accommodation, though the other conditions for allotment were satisfied. Therefore, its counsel submitted that the court should not relieve the direction to pay damages, even though the petitioners in the light of the subsequent development may not be evicted.

9. Having regard to the subsequent development i.e. the allotment of the same quarter to the first petitioner (the son) I am of the opinion that ends of justice would be met with if the respondents are injuncted from seeking to recover any amounts as damages for the interregnum period when the present proceedings were pending. This view is supported by a subsequent circular dated 9.11.1987. Clause viii of that circular reads as follows:

Date of regularisation:

It has been decided that the date of regularization should be from the date of cancellation in case the eligible dependent is already in Govt. service and is entitled for regularization and not from the date of issue of the orders which was the practice being followed till now.

In view of the express position, and the undeniable fact that the father was allotted General Pool accommodation, the petitioners cannot be deprived benefit of the 1981 and 1987 circulars.

10. The writ petition is accordingly allowed. The respondents are hereby directed not to recover any amount as damages for the period of the petitioner's occupation of the premises; the allotment shall be treated as regularization of the occupation from the year 1983. Rule made absolute in the above terms.