Delhi High Court
Anup Kumar Srivastava vs Union Of India & Ors. on 11 February, 2011
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: January 24, 2011
Decision on: February 11, 2011
W.P.(C) 6545/2010 & CM No. 12957/2010
ANUP KUMAR SRIVASTAVA ..... Petitioner
Through : Mr. Amarendra Sharan, Senior Advocate
with Mr. Somesh Jha,
Mr. Ashutosh Jha and
Mr. Amit Anand Tiwari, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Mr. H.P. Raval, ASG with
Mr. B.V. Niren, CGSC and
Mr. Anirudh Sharma and for UOI.
Mr. Vijay K. Sondhi with
Mr. Sanjeev Kumar, Advocate for R-3.
CONT.CAS(C) 820/2010
ANUP KUMAR SRIVASTAVA ..... Petitioner
Through : Mr. Amarendra Sharan, Senior Advocate
with Mr. Somesh Jha,
Mr. Ashutosh Jha and
Mr. Amit Anand Tiwari, Advocates.
versus
NAVIN KUMAR & ORS ..... Respondents
Through : Mr. H.P. Raval, ASG with
Mr. B.V. Niren, CGSC and
Mr. Anirudh Sharma and
for UOI.
Mr. Vijay K. Sondhi with
Mr. Sanjeev Kumar, Advocates
for R-3.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 1 of 36
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
11.02.2011
Introduction
1. The writ petition and the connected contempt petition concern the
Petitioner‟s entitlement to Government accommodation. The case of the
Petitioner is that although he was at serial No. 1 in the General Pool category
and was entitled to a 5A type house either at Ashoka Road or Mahadev
Road, the accommodation at 60, Ashoka Road which fell vacant was allotted
to Respondent No. 3, who is a Member of Parliament („MP‟) in the Lok
Sabha. The writ petition has been filed challenging the said allotment made
in favour of Respondent No. 3.
2. This Court by an order dated 6th October 2010 directed that in regard to
accommodation at 60, Ashoka Road "till the next date of hearing, status quo
as regards possession will be maintained." However, on 19th November 2010
Respondent No. 3 was put in possession of the said accommodation. The
Petitioner then filed the aforementioned contempt petition alleging wilful
disobedience by the Respondents of this Court‟s order dated 6th October
2010.
Facts
3. The Petitioner was appointed as a Commissioner of Central Excise,
Customs and Service Tax on 24th October 2004. The Petitioner was
transferred from the Commissionerate of Customs, Meerut-II to the
Commissionerate Central Excise, Delhi-I on 8th March 2010. In terms of the
Allotment of Government Residence (General Pool in Delhi) Rules, 1963
(„General Pool Rules‟), the Petitioner was entitled to C-II type General Pool
accommodation. He applied for such accommodation on 11th March 2010
and was granted registration No. 10148364 on 12th March 2010. On 7th April
2010 the Petitioner made a representation to the Ministry of Urban
Development („MoUD‟), Respondent No. 1, stating that he was willing to
accept the accommodation below his entitlement, i.e. a D-II accommodation,
provided it was available on the ground floor. He also pointed out that he
was suffering from serious heart disease as well as problems in the knee
joint because of which he was advised not to climb stairs. He prayed for an
out-of-turn allotment on medical grounds. The Petitioner has enclosed with
the writ petition copies of his representations dated 7th April 2010, 20th April
2010, 12th May 2010 and 19th May 2010. He states that he did not receive
any reply to the representations.
4. The Petitioner states that he was in the wait list at serial No. 1 for a
General Pool accommodation both at Mahadev Road as well as Ashoka
Road. Yet, on 22nd May 2010 an order was issued allotting the General Pool
house at 7, Mahadev Road in favour of an MP although not entitled to such
allotment. Thereafter when another D-II type accommodation on the Ground
Floor at 60 Ashoka Road fell vacant, it was allotted by the Directorate of
Estates, Respondent No. 2 on 2nd June 2010 to another MP, i.e. Respondent
No.3. herein. This was however not known to the Petitioner at that time and
he sent further reminders on 30th July 2010 and 30th August 2010 to
Respondent No. 2. He pointed out that a D-II type category accommodation
was available at 60, Ashoka Road since the officer who had been staying in
the said accommodation had retired on 31st March 2010. The Petitioner
relied on the order passed by the Supreme Court 13th July 2006 in S.D.
Bandi v. Divisional Traffic Officer, KSRTC (Civil Appeal No. 4064 of
2004 ) (hereafter the S.D.Bandi case) which contained an observation to the
effect that the occupation of General Pool houses by MPs was uauthorised.
The Petitioner states that he learnt of the allotment made to Respondent No.
3 on 19th September 2010 and made a further representation on 20th
September 2010. In the circumstances, the present petition was filed on 23rd
September 2010 seeking quashing of the order dated 2nd June 2010 passed
by Respondent No. 2 allotting the accommodation at 60 Ashoka Road to
Respondent No. 3 and for a direction to Respondent No. 2 to allot the said
accommodation to the Petitioner
Proceedings before this Court
5. At the very first hearing on 27th September 2010 while directing notice to
issue, this Court passed the following order:
"CM APPL Nos. 12958 & 12959/2010 (for exemptions)
Exemptions allowed subject to all just exceptions.
Applications are disposed of.
WP (Civil) 6545/2010 & CM APPL No. 12957/2010 (for stay)
1. Notice. Mr. Abhishek Goyal, learned counsel accepts notice on
behalf of Respondents 1 & 2. In the first instance the Respondents
1 and 2 will inform this Court what is the correct status as regards
the General Pool D-II Type category accommodation i.e. 60,
Ashoka Road, New Delhi and whether the allotment thereof to a
Member of Parliament (Lok Sabha) is permissible. The
Petitioner‟s contention is that general pool accommodation is
exclusively for the Central Government servants.
2. It is made clear that if either no instructions are forthcoming, or
no reply is filed, the application for interim relief will nevertheless
be considered on the next date of hearing.
3. List on 6th October 2010. Order be given dasti."
6. Since no counter affidavit was filed and further time was sought for that
purpose on the next date, i.e., 6th October 2010, the following order was
passed by this Court:
"1. Counsel for Respondent Nos. 1 and 2 seeks and is granted two
weeks time to file a para-wise reply to the petition including a
response to the queries posed by this Court in its order dated 27 th
September 2010.
2. List on 9th November 2010. Till the next date of hearing, status
quo as regards possession will be maintained.
3. Order dasti."
7. Thereafter Respondent No. 2 filed a counter affidavit on 27th October
2010. A rejoinder thereto was also filed by the Petitioner on 2nd November
2010.
8. This Court did not sit on 9th November 2010 the date on which the writ
petition was listed. The Court Master recorded "the Hon‟ble Judge is not
holding Court today. List on 16th December 2010."
9. On 19th November 2010 Respondent No. 3 was given possession of the
accommodation at 60, Ashoka Road. Aggrieved by this, the Petitioner on 2 nd
December 2010 filed Contempt Petition No. 820 of 2010 praying for
initiation of contempt proceedings against the Secretary MoUD, the Director
of Estates as well as Respondent No. 3 in the writ petition. On 7th December
2010 notice was directed to issue in the contempt petition by this Court
returnable on 16th December 2010 when the writ petition was listed.
10. On 16th December 2010, a statement was made by the learned Additional
Solicitor General („ASG‟) that the Respondents are willing to offer an
accommodation to the Petitioner either at R.K. Puram or at Andrews Gunj.
The case was then adjourned to 21st December 2010 to enable the Petitioner
to seek instructions. On 21st December 2010, it was pointed out on behalf of
the Petitioner that he was being offered a D-II type flat whereas he was
entitled to a C-II type. The learned ASG sought time to obtain instructions
on whether the accommodations mentioned by the Petitioner in his rejoinder
affidavit were available for allotment.
Pleadings in the writ petition
11. In its counter affidavit Respondent No. 2 stated that the Petitioner
applied for a Type VA (DII) accommodation giving preference of localities
at Mahadev Road, Vinay Marg, Ashoka Road and specially DII/60, Ashoka
Road "on medical ground although not in the prescribed form." It was
further stated that the accommodation was in the name of one Shri Jogendra
Singh who after retirement was permitted to retain the flat up to 23 rd August
2010. At the time the counter affidavit was filed the action for evicting the
then occupier was stated to be still under progress. It was, however, admitted
that in the meanwhile on 2nd June 2010 the said accommodation had been
allotted to Respondent No. 3 "on vacation basis with the approval of the
Ministry of Urban Development." It was asserted in the counter affidavit
that MPs were entitled to allotment of a General Pool House of types V to
VIII as per the Guidelines dated 24th October 1985 of the Respondent No. 2
issued with the approval of the Cabinet Committee on Accommodation
(„CCA‟). It was claimed that there was no violation of any rule in the
allotment made to Respondent No. 3. It was stated in the counter affidavit
that flat No. DII/308, Pandara Road was allotted to the Petitioner in May
2010 as per his waiting position/locality/floor preference. However, for want
of specific medical certificate/other documents in terms of guidelines of
Respondent No. 2, the Petitioner‟s representation for an out-of-turn
allotment on medical grounds could not be considered. It was stated as and
when the Petitioner made such an application in the prescribed format it
would be considered by a Committee of medical experts. It was further
stated that Respondent No. 2 had since introduced an „Automated System of
Allotment.‟ The Petitioner was at liberty to opt for a house of his choice and
entitlement out of the houses offered each month between 1 st to 9th days of
the month and such accommodation would be allotted to him on maturity of
his turn subject to his seniority.
12. In the rejoinder filed on 2nd November 2010, the Petitioner pointed out
that the guidelines dated 24th October 1985 were outdated and did not hold
good after the decision of the Supreme Court in Shiv Shagar Tiwari v.
Union of India (1997) SCC 444 and the order passed by the Supreme Court
on 17th July 2006 in the S.D. Bandi case. It is stated that even in terms of the
1985 Guidelines Respondent No. 3 could only have a priority of 2009
whereas the priority date of the Petitioner was 2006. It is stated that despite
receiving the Petitioner‟s representation dated 19th May 2010 stating that flat
at DII/308, Pandara Road was not suitable for him and that he should be put
back on the waiting list for D-II in Mahadev Road or Ashoka Road, D-I in
Ravinder Nagar, Chanakya Puri and C-II in any central location (ground
floor), the Respondents failed to respond.
13. On 3rd January 2011, Mr. Harin P. Raval, ASG appeared and stated that
he would like to place on record an additional affidavit. This was filed on 4th
January 2011. In the said additional affidavit, it was pointed out by
Respondent No. 2 that initially the Petitioner had applied for allotment on
12th March 2010 for a type-IVA (DII) accommodation with preference of
localities as Mahadev Road, Vinay Marg, Shahjahan Road, Pandara Road
and Kaka Nagar. It was stated that the waiting list position of the Petitioner
for a Ground Floor D-II type accommodation in the General Pool locality
wise "including the officers senior to the Petitioner, who had given open
choices, i.e., for all the localities" was that in Mahadev Road his waiting list
was at serial No. 8 both as on 31st March 2010 and 30th April 2010. It was
claimed that that the Petitioner was allotted a D-II type flat at Pandara Road
as per his waiting list position and locality preference and that no vacant
house was available in Mahadev Road for April and May 2010. The
Petitioner did not accept the accommodation at Pandara Road and applied
for reconsideration in June 2010 along with modification of locality
preference to include Ashoka Road. It was stated that although a refusal for
allotment resulted in debarment of applicant for further allotment for a
period of one year, the Petitioner‟s request was accepted and he was
registered for Mahadev Road, Ashoka Road and Vinay Marg as per his
modified choices. His name was accordingly included in the waiting list as
on 30th June 2010. It is stated that allotment as per the waiting list was made
on 15th July 2010 and that no vacancy was available in General Pool for
allotment to Government servants as per the waiting list in Mahadev Road
and Ashoka Road. There was one vacancy in Vinay Marg but the Petitioner
could not be allotted the said accommodation as he was at serial No. 6 for
the ground floor. According to Respondent No. 2 "even for localities of
Mahadev Road and Ashoka Road there are five officers senior to him who
had given open choices, i.e., for all localities and as such any vacancy in
these areas, if available, would have gone to them." Since the Petitioner
applied for modification of choice in June 2010, after refusing the allotment
of D-II, Pandara Road accommodation, his name was not included in the
waiting list as on 31st May 2010 (for allotment in June 2010). A reference
was made to para 3 of the procedure outlined in the Hand Book on General
Pool Residential Accommodation.
14. Respondent No. 2 referred to the OM dated 17th November 1997 which
laid down the policy parameters for out-of-turn allotments both on
functional and medical grounds. It was stated that the Petitioner‟s
representation dated 20th April 2010 for out-of-turn allotment could not be
considered since it did not fall within the parameters outlined in the said
OM. The allotment of a General Pool Accommodation to MPs who are not
governed by the General Pool Rules was sought to be justified on the ground
that "being public representatives from various parts of the country, the
Members of Parliament are also required to be provided accommodation by
the Government to enable them to effective discharge their functions."
15. The additional affidavit of Respondent No. 2 proceeded to explain the
Automated System of Allotment introduced with effect from June 2010 in
terms of OM dated 8th April 2010. The new system extended to D-II type
accommodation with effect from 1st July 2010. It is stated that under the new
system the vacancies for allotment as on the last date of the month are put on
the website of Respondent No. 2. A combined waiting list of the applicants
was prepared and finalised on the last day of the month and placed on the
website. Officers in this combined list are directed to indicate their choices
for specific houses amongst those listed for allotment. These choices are
indicated by the wait listed officers between 1 st and 9th of the month. An
allotment is automatically made by the computer on 10 th of the month based
on the seniority of the officer in the waiting list and his choices out of the
houses available for the allotment. If the house is opted by the senior most
applicant he would get the allotment of that house to the exclusion of his
junior. The junior would get allotment of the house on the basis of
preferences given by him between 1st and 9th of each month provided no
officer senior to him in the waiting list has indicated his preference for the
same house. Respondent No. 2 stated that in terms of the Automated System
of Allotment the position of the Petitioner in the combined waiting list was
at No. 22 as on 31st July 2010, No. 11 as on 31st August 2010, No. 14 as on
30th September 2010, No. 13 as on 31st October 2010 and No. 16 as on 30th
November 2010. Annexed to the additional affidavit was a computer
generated report of the options exercised by the Petitioner.
16. The Petitioner filed a reply to the said additional affidavit on 6th January
2011 stating that the website still showed the waiting list position of the
Petitioner at serial No. 1 for Ashoka Road as well as Mahadev Road. Copy
of the print-out of the waiting list position, downloaded from the internet
was enclosed with the reply affidavit. It was reiterated by the Petitioner that
no MP could have been allotted a General pool accommodation and that the
impugned allotment was bad in law.
17. A second additional affidavit was filed by Respondent No. 2 on 12th
January 2011. The difference between the procedure followed for allotment
of Government accommodation prior to 1st July 2010 and that followed after
that date was further elaborated in this second affidavit as under:
"Prior to 01.07.2010
(A) A unified waiting-list (including all localities) of all the
applicants who have submitted their applications on or
before the last day of a particular month is prepared. This
waiting-list also indicates locality-wise preferences of the
applicants for allotment of houses.
(B) Based on the above unified waiting-list, a house available
for allotment is allotted to a wait-listed officer if nobody
else senior to him in the waiting list opted for the same
locality.
(C) A locality-wise waiting-list was also derived from the
unified waiting-list and shown separately on the web-site
just to indicate the chances of wait-listed officers in getting
allotment in various localities. However, as explained
earlier, only the unified waiting-list was used for actual
allotment.
(D)The difference between a unified waiting-list and the
locality-wise waiting-list for a particular locality is that the
unified waiting-list also includes names and particulars of
all those officers who have given open choices without
indicating any specific locality. They are considered for
allotment in all the localities. On the other hand, locality-
wise waiting-list does not include details of such officers
even though their numbers are indicated in the locality-wise
waiting-list under the heading „NC‟ and „Wait No‟ which
must be taken into consideration while working out one‟s
chances of allotment in a particular locality.
After 01.07.2010
(A) As already submitted by the Respondents in their additional
affidavit a new system of allotment of houses viz.,
Automated System of Allotment was made effective for D II
houses with effect from 1st July, 2010. This system is
designed to make a transparent and objective allotment of
houses to officers based on their choices and their positions
in the waiting-list automatically through a computer without
any human intervention.
(B) A unified waiting-list for purposes of Automated System of
Allotment is prepared in the same manner as in the old
system as on the last date of the month.
(C) All the vacant houses available for allotment as on the last
day of the month are also shown on the web-site.
(D)The wait-listed officers desirous of getting allotment are
required to indicate their choices/preferences for specific
houses out of those available for allotment on-line between
1st and 9th of the following month.
(E) At 10 A.M. on 10th of the month, the computer system
automatically makes allotment of houses based on the
choices of the officers and their position in the waiting-list.
An officer is allotted a house of his first choice if no other
officer senior to him in the waiting-list opts for the same
house. In case an officer does not get his 1 st choice then he
is considered for his second choice failing which for the
third choice and so on.
(F) In view of house-specific preferences/choices indicated by
the officer every month during the 1st and 9th of the month,
the locality-wise choice becomes irrelevant and
meaningless."
18. Thereafter, in paras 7 and 8, it was stated as under:
"7. As far as position of the Petitioner in the wait-list of
subsequent months i.e., as on 31st July, 2010 onwards is
concerned, it is reiterated that due to new system of seeking
choices and preferences of wait-listed officers for individual
house as explained above, the locality-wise waiting-list has
become irrelevant and meaningless. It is further submitted that
the officer was fully aware about the new system of allotment
and exercised his option for allotment of houses of his
choice/preference, viz., D I/323, Chanakyapuri, D I/49,
Bhartinagar and D I/49, Rabindra Nagar in July, 2010, D I/115,
Chanakyapuri, D I/103, Chanakyapuri in August, 2010, DII/41,
Kaka Nagar, D I/21, Rabindra Nagar in November, 2010 and D
II/11, Shahjahan Road in December, 2010. (Annexure-A-19 of
Additional affidavit) The Petitioner, however, did not succeed
in getting allotment of any of these houses as the officers senior
to him in the waiting-list had asked for the same. Suppressing
these factual position the Petitioner has deliberately harping on
locality-wise waiting list which is irrelevant and meaningless
with a clear intention to mislead the Hon‟ble Court.
8. It may be clearly seen from the foregoing submissions that
the Petitioner was never at position No. 1 of the waiting-list for
ground-floor D II houses in the localities preferred by him."
19. In para 10 of the second additional affidavit of Respondent No.2, it was
stated as under:
"10. Without prejudice to our contentions and submissions and
in difference to the submission made by the petitioner before
this hon‟ble Court, we are offering the petitioner following D-II
type ground floor houses for selecting one of them for
allotment. However, if no acceptance is conveyed by the
petitioner on or before the next date of hearing i.e. 17th Jan
2011, then the respondent would be constrained to release these
houses for further allotment to other waiting and eligible
officers.
SN House No. Floor Pool
1. 1/5, Andrews Ganj Ground TP
2. 139, Asian Games Ground TN
Village
3. A-1, Nanak Pura Ground TP
4. P-6.1(MS), Sector- 6th Floor GP
13, R.K. Puram with lift
facility*
* Under medical considerations, all floors in multi-storied
building with lift facility are considered at par with ground floor
in terms of Office Memorandum No. 12035/2/97-Pol. II (Pt.II)
dated 16.9.2009 (Para 6 of Annexure S-2)."
20. With the second additional affidavit, Respondent No. 2, annexed (as
Annexure S-4) a copy of the affidavit dated 30th August 2006 submitted by it
to the Supreme Court in the S.D. Bandi case placing on record the
Guidelines dated 24th October 1985.
21. Meanwhile, on 11th January 2011 Respondent No. 3 filed an affidavit
explaining inter alia that no notice in the writ petition was served on him
and, therefore, he was not aware of the order dated 6th October 2010. He also
relied upon the Guidelines dated 24th October 1985 to justify the allotment
of 60, Ashoka Road in his favour.
22. The Petitioner on 15th January 2011 filed a reply to the second additional
affidavit dated 6th January 2011 of Respondent No. 2 claiming that there was
no one senior to him who had opted for either of the accommodations at
Mahadev Road or Ashoka Road.
Pleadings in the contempt petition
23. As regards the contempt petition, along with the reply dated 7 th January
2011 the Director of Estates-II has placed on record a copy of the relevant
file notings. It is pleaded that there was a genuine communication gap as a
result of which counsel appearing for the Union of India failed to mention in
his communication dated 6th October 2010 that a status quo order had been
passed on that date. It is stated that the handing over of the possession of the
accommodation at 60, Ashoka Road to Respondent No. 3 on 19th November
2010 was pursuant to the allotment order that was issued on 2 nd June 2010. It
is only after the Petitioner approached Respondent No. 2 on 26th November
2010 that it became aware of the status quo order.
24. Respondent No. 3 has also filed a reply in the contempt petition stating
that he was not aware of the status quo order dated 6th October 2010 since
notice was not issued to him. It is only on 13th December 2010 that the
summons was served on him in the contempt petition and then a copy of the
writ petition provided to Respondent No. 3. Rejoinders were filed by the
Petitioner to both the replies.
Submissions of counsel
25. Mr. Amarendra Sharan, learned Senior counsel for the Petitioner took
strong exception to the willful disobedience by Respondent No. 2 of the
status quo order passed by this Court on 6th October 2010. Referring to the
note sheet, a copy of which has been placed on record by Respondent No. 2,
he pointed out that it is inconceivable that when the officials of the
Directorate of Estates briefed the Government counsel on 8th November
2010 for the hearing on 9th November 2010, they were not informed of the
status quo order dated 6th October 2010. He further pointed out that the
noting of 26th November 2010 suggested that an application should be filed
in this Court for withdrawal of the status quo order. It noted that handing
over of possession to Respondent No. 3 "has been kept in abeyance."
Clearly, therefore, the officials of Respondent No. 2 knew that possession
ought not to have been handed over to Respondent No. 3 in the teeth of this
Court‟s order dated 6th October 2010. He insisted that the Respondents
should purge the contempt before being heard in the main writ petition.
26. As regards the impugned allotment dated 2nd June 2010 in favour of
Respondent No. 3, Mr. Sharan submitted that the Guidelines dated 24th
October 1985 were no longer operative after the affidavit filed by the
Respondent No. 2 in the Supreme Court in the S.D. Bandi case. He
submitted that at no point in time did Respondent No. 2 inform the Supreme
Court that MPs could be allotted accommodation from the General Pool.
The impression given was that no house from the General Pool could be
allotted to an MP. Mr. Sharan further submitted that even in terms of the
Guidelines dated 24th October 1985, no allotment could have been made to
Respondent No. 3 since there was a separate pool of houses for MPs of the
Lok Sabha and Rajya Sabha. He submitted that the reasons for making the
allotment to Respondent No. 3 overlooking the claims of the Government
servants in the wait lists were not indicated. The said allotment to
Respondent No. 3 was dehors the rules. It was without any authority of law.
Mr. Sharan urged that the Automated Allotment System had not come into
effect when the Petitioner made his application. He pointed out that even as
of date, the Petitioner‟s name figured in waiting list at serial No. 1, both for
Mahadev Road and Ashoka Road and, therefore, the Petitioner‟s claim could
not have been overlooked. Alternatively, he submitted that the Petitioner‟s
case ought to have been considered for out-of-turn allotment on medical
grounds. He submitted that no equity could be created in favour of
Respondent No. 3, since the allotment in his favour was in the teeth of the
status quo order dated 6th October 2010.
27. Appearing for Respondent Nos. 1 and 2 in the writ petition as well as in
the contempt petition, Mr. Harin P. Raval, learned ASG submitted that the
guidelines of 24th October 1985 permit the allotment of houses to MPs from
the General Pool. According to him, affidavits filed by Respondent No. 2
before the Supreme Court in the S.D. Bandi case related to unauthorised
occupation by MPs of houses in the General Pool. This did not imply that no
house from the General Pool could be allotted to an MP.
28. Mr. Raval submitted that after the Automated Allotment System became
operational, the Petitioner did not figure at Serial No. 1 in the waiting list for
either Mahadev Road or Ashoka Road. There were officers senior to him
who could, if an accommodation fell vacant, lay a claim to it. In any event,
the Petitioner did not have a vested right in getting a particular
accommodation. He pointed out that the reasons cited by the Petitioner in his
representations to seek an out-of-turn allotment were not valid. As far as the
medical grounds were concerned, the Petitioner was required to make an
application in the prescribed format. Only thereafter could such request be
considered.
29. As regards the contempt petition, Mr. Raval first submitted that the
status quo order made on 6th October 2010 was to continue only till the next
date of hearing. The next hearing was meant to be on 9th November 2010, on
which date this Court did not sit. Therefore, the status quo order came to an
end on that date and thereafter it was not renewed. The handing over of
possession of the accommodation at 60, Ashoka Road to Respondent No. 3
on 19th November 2010, therefore, did not constitute contempt of this
Court‟s status quo order. He submitted that since the order dated 6 th October
2010 was not communicated by counsel for the Union of India to the officers
of Respondent No. 2 till 26th November 2010, they could not be held to have
wilfully disobeyed the status quo order dated 6th October 2010. He relied
upon the decisions of the Supreme Court in Kapildeo Prasad Sah v. State of
Bihar (1999) 7 SCC 569, Arjan Sigh v. Punit Ahluwalia (2008) 8 SCC 348,
Suresh v. Imran Khan (1995) Supp (3) SCC 306, and Ashok Kumar v.
State of Haryana (2007) 3 SCC 470.
30. Mr. Vijay Sondhi, learned counsel for Respondent No. 3 submitted that
his client was not aware of the status quo order by the time possession was
given to him of 60, Ashoka Road. Relying on the decision of the Allahabad
High Court in State of U.P. v. Committee of Management, DAV Inter
College 2009(3) AWC 3115 Mr. Sondhi submitted that in any event on 19 th
November 2010 no status quo order subsisted. Respondent No. 3 therefore,
was not liable for contempt.
Supreme Court proceedings in the S.D. Bandi case
31. In order to appreciate the above submissions, the background to the
present petition, in the context of allotment of government accommodation,
requires to be examined. In the S.D. Bandi case in the Supreme Court an
additional affidavit was filed by Respondent No. 2 on 14 th November 2005.
Paras 3, 4, 5 and 6 of the said affidavit reads as under:
"3. In this context, I wish to state that there are several pools of
houses allocated to different categories of personnel. The
largest among them is referred to as the General Pool, which is
administered by the Ministry of Urban Development. This
comprises of a total of 62,263 houses in various types ranging
from type-I at the lowest to type-VIII at the highest. The
following categories of personnel are entitled to
accommodation in the General Pool.
(a) Union Ministers
(b) Chairmen, Members and staff of various Commissions,
Tribunals, Authorities etc.
(c) Law Officers
(d) Central Govt. employee
(e) Private persons such as Freedom Fighters, Social Workers,
Journalists, Artists, Sports persons etc.
(f) Non-Governmental Organizations and
(g) Some for Members of Parliament as per the guidelines and
subject to availability
4. The various rules and guidelines that have been formulated
for allotment of accommodation to these different categories of
personnel from the General Pool will be placed before this
Hon‟ble Court in a separate compilation.
5. For other specific categories of personnel there are separate
pools of houses.
A) For the Members of Parliament there exist two pools
namely the Lok Sabha MP‟s Pool and Rajya Sabha MP‟s Pool.
These are administered entirely by specific committees
constituted by the respective Houses of Parliament. All
Members of Lok Sabha and Rajya Sabha are entitled to get their
accommodation from these pools. The details of
accommodation available at the disposal of the respective
House committees (i.e,, Lok Sabha Pool and Rajya Sabha Pool)
and the accommodation allotted from the General Pool to the
Members of Parliament are as under:
Category Lok Rajya
Sabha Sabha
Pool Pool
1 Total strength of Members of 545 245
Parliament
Union Ministers and are eligible
for General Pool accommodation
occupation of General Pool
Houses
allotment to Members of
Parliament=[1-(2+3)]
Availability of accommodation with Lok Sabha and
Rajya Sabha Pools
5 Bungalows 182 92
6 Flats 338 135
7 Total number of 520 227
Bungalows/Flats (5+6)
Ministers and in occupation of
houses allotted by House
Committees concerned.
respective Pools of Lok Sabha
and Rajya Sabha = [7-(4+8)]
B) In addition, there are separate housing pools for Judges
of the Supreme Court of India and High Court o Delhi. 27 type-
VIII bungalows have been placed in the Supreme Court Judges
Pool. 9 type-VIII and 23 type-VII bungalows have been placed
at the disposal of the High Court of Delhi Judges Pool. These
houses are allotted on the recommendations of the Chief Justice
of India and Chief Justice of the High Court of Delhi,
respectively.
C) Besides, the Defence Services, Indian Railways and other
Departments like P&T etc., maintain separate Pools for
allotment. Directorate of Estates, Ministry of Urban
Development has no administrative control over these
departmental pools.
6. In the management of higher type bungalows of the General
Pool, the major problem that arises is that sitting Members of
Parliament, upon ceasing to be Ministers, do not vacate the
General Pool houses allotted to them by virtue of their being
Ministers. As a Member of Parliament they are entitled to
accommodation only from the respective house pools and not
from the General Pool."
32. Annexed to the said affidavit was a list of 36 persons who were
occupying bungalows above their entitlement. It was stated that there were
465 cases of unauthorised occupants. After regularization of 20 and eviction
of 116, there remained 329 unauthorised occupants. On 13th July 2006, a
further affidavit was filed by the Directorate of Estates in the Supreme
Court. The Supreme Court order of that date recorded that 36 houses in the
General Pool were unauthorisedly being occupied by the MPs. Paras 7 and 8
of the said order read as under:
"7. It has been stated in various affidavits filed on behalf of
the Union of India that 36 houses of General Pool are in
occupation of the Members of Parliament though they are not
entitled to continue therein and the Department concerned is
entitled to get vacant possession thereof. We have been
informed that out of 36, one Member has vacated the
accommodation whereas 35 Members are still in occupation.
8. Issue notice to the Secretary General of Rajya Sabha and
Lok Sabha to file response in relation to statements made in
various affidavits filed on behalf of the Union of India before
this Court on 16th November, 2005, 23rd January, 2006, 5th
April, 2006 and 13th July, 2006 in relation to the aforesaid 35
houses. It has been stated in the affidavit that out of 35
occupants, occupation of five persons has been regularized. In
affidavit the Union of India shall explain under what
circumstances and authority, orders of regularization have been
passed."
33. On 31st August 2006, in response to the above order, the Director of
Estates filed a further affidavit. Paras 11, 12 and 13 of the said affidavit read
as under:
"11. That a list of 36 Members of Parliament, who were
occupying accommodation above their entitlement, was
submitted to this Hon‟ble Court. Allotment in respect of 5
Members of Parliament (Annexure-IX), who were occupying
accommodation above their entitlement, was regularized with
the approval of the Cabinet Committee on Accommodation
(CCA). The CCA has been constituted under the powers
derived from Rule 6(1) of the Government of India
(Transaction of Business) Rules, 1961, which itself has been
framed under the powers vested with the President of India
under sub-rule (3) of Article 77 of the Constitution of India.
Functions assigned to the CCA are given as under:
(i) To determine the guidelines/rules and terms and
conditions to govern out of turn allotment of
Government accommodation;
(ii) To decide upon allotment of Government
accommodation to various categories of non-
eligible persons and organizations and rates of rent
to be charged from them;
(iii) To consider the question of allotment of
accommodation from general pool to the Members
of Parliament;
12. That the CCA has framed guidelines to regulate
allotment of general pool accommodation to the Members of
Parliament. A cop of the guidelines dated 24.10.1985 is given at
Annexure-X.
13. Further the CCA has, under its inherent powers,
allotted/regularized allotment of accommodation in respect of
Members of Parliament, who are occupying accommodation
above than their entitlement. This has been done in
consideration of the merit of each case and wherever the CCA
has felt that the person deserve such special consideration."
34. The Supreme Court was further informed that out of 36 MPs, 5 had
vacated their accommodation and the vacated houses were allotted to other
eligible persons.
35. A further update was given in an affidavit dated 22nd July 2009 filed by
Respondent No. 2 before the Supreme Court in S.D. Bandi case. Para 6 of
the said affidavit reads as under:
"6. As regards the houses in the occupation of Members of
Parliament, it is submitted that in response to the
communications of this Directorate to the Secretary Generals of
Rajya Sabha and Lok Sabha in line with the directions of the
Hon‟ble Court, as submitted in the Affidavit dated 17 th
September, 2007 to take immediate action to allot
accommodations to the Members belonging to the two Houses,
a reference dated 25.10.2007 has been received in the meantime
from the Lok Sabha Secretariat conveying the approval of the
Chairmen for indicating the following position in relation to
accommodations presently held by the Members of Parliament:
"It may be submitted that in the Joint Sitting of the
Chairmen, House Committees of Lok Sabha and Rajya
Sabha held on 13.8.2007 the matter was discussed at
length. It was stated by the Chairmen that the Members
are eligible for allotment of Bungalow type
accommodation as per criteria laid down by the
respective House Committees. Further, it has been an
established practice to allow sitting Members to retain
the General Pool Houses allotted to them when they were
Ministers and transfer such houses to the respective pools
of Lok Sabha and Rajya Sabha when they cease to be
Ministers on „revert back basis‟. This practice should
continue to be followed in the instant case and bungalows
occupied by senior Members be transferred to the Lok
Sabha and Rajya Sabha Pools, as the case may be, „on
revert back basis‟."
The Guidelines dated 24th October 1985
36. At this juncture it is necessary to refer to the OM dated 24 th October
1985 on which Mr. Raval placed extensive reliance. It reads as under:
"No. 12016(2)/80-Pol.-II (Vol.III)(iii)
Government of India
Directorate of Estates
......
New Delhi, the 24th October, 1985
OFFICE MEMORANDUM
Subject: Review of guidelines for allotment of general pool
accommodation-Member of Parliament.
Guidelines for allotment of general pool accommodation to
Members of Parliaments were placed before the CCA which at its
meeting held on 12th Sept, 1985 has approved the following
guidelines:
(a) In future, no allotment of type EIII bungalow will be made from
the general pool to any Member of Parliament without the approval of
the Cabinet Committee on Accommodation.
(b) Members who are ex-Governors, ex-Chief Ministers and ex-
Cabinet Minister of the Centre, ex-speaker of the Lok Sabha, Ex-
Judge of the Supreme Court may be allotted houses of category VII
(type-EII) depending on availability.
(c) Other members who were Ministers of State/Ex-Deputy
Chairman, Rajya Sabha/Deputy Ministers in the Centre
Speaker/Chairman of legislature in the States and who were Cabinet
Ministers in the States may be allotted houses of type VI (EI).
(d) Other members may be allotted houses of category V(E) i.e.
flats in North/South Avenue, etc.
(e) Members of parliament who are already in occupation of
general pool type-EIII, EII and EI accommodation and who are not
entitled to retain the same as per above criteria are to be advised to
vacate the accommodation in their occupation and move to alternative
accommodation which may be allotted from general pool/MPs pool as
per above criteria.
2. It is requested that the above guidelines may also be brought to
the notice of the Chairman of the House Committee of Rajya
Sabha/Lok Sabha also in continuation of the communication sent by
Allotment Type Special Section earlier.
Sd/-
(V.S. Raman)
Deputy Director of Estates"
37. In the instant case, Respondent No. 3 was admittedly a former Cabinet
Minister in the State of Jammu and Kashmir. If at all, his case would fall
under Clause 1 (c) of the above OM dated 24th October 1985. It is only for
those MPs who do not get covered by clauses 1 (a), (b), or (c) that the
question of allotment of a house of category V (E) i.e. flats in North/South
Avenues in terms of Clause 1 (d) would arise. Prima facie, therefore, it
appears that the case of Respondent No. 3 could not have been considered in
terms of the 24th October 1985 Guidelines for allotment of a category V (E)
flat, as his case fell within the scope of clause 1 (c) of the OM dated 24th
October 1985.
Allotment in favour of Respondent No. 3 legally unsustainable
38. Mr. Raval urged that if a type VI (EI) accommodation was not available
in terms of clause 1 (c), Respondent No. 3 could be offered a lower type
accommodation viz. category V (E).
39. This Court is constrained to observe that this position does not
automatically flow from the OM dated 24th October 1985. The reasons for
this are that first, once an MP‟s case falls under any of the categories in
clauses 1 (a), (b) or (c) it has to be considered only in terms of those clauses
and not any other. The General Pool accommodation is essentially meant for
Government servants and is regulated by the General Pool Rules. The
Guidelines laid down by the OM dated 24th October 1985 permits allotment
of government accommodation from the General Pool de hors the General
Pool Rules. Consequently, the Guidelines which give extraordinary
discretion to Respondent No. 2 to allot a house to an MP from the General
Pool have to be strictly construed as applying in a narrow sphere.
40. Secondly, the affidavit filed by Respondent No. 2 before the Supreme
Court shows that there are houses in both the Lok Sabha and Rajya Sabha
pools for MPs. Therefore, even while exercising powers with reference to
Clause 1 (d) of the OM dated 24th October 1985, the CCA has to first ensure
that the MP concerned has no accommodation available in the said exclusive
pools of houses earmarked for the Lok Sabha and Rajya Sabha MPs. That
exercise was obviously not undertaken in the present case while making
allotment on 2nd June 2010 in favour of Respondent No. 3 of the
accommodation at 60 Ashoka Road.
41. Thirdly, the impression given to the Supreme Court in the various
affidavits filed by Respondent No. 2 in the S.D. Bandi case was that the
occupation of a General Pool accommodation by an MP was unauthorised.
Significantly, in the affidavit dated 14th November 2005, which was filed
after the OM dated 24th October 1985 was issued, no mention was made of
the said OM. It is only with the second affidavit dated 31st August 2006 that
the said OM was placed on record. The said Guidelines do not give an MP a
right to a General Pool accommodation. It is a matter of discretion to be
exercised by the CCA. There have to be special reasons disclosed in the file
for making such allotment in favour of an MP overriding the superior claims
of Government servants who are in the waiting list for accommodation for
several years. The CCA will have to consider all relevant materials including
the wait list position in respect of the accommodation in the General Pool,
the wait list position if any of the MPs, the availability of houses in the pools
meant for MPs and other incidental factors.
42. Fourthly, in para 13 of the affidavit dated 31st August 2006 filed in the
Supreme Court, it was stated by Respondent No. 2 that the CCA has
regularized allotment of accommodations given to the MPs who were
occupying them "above their entitlement." Clearly, the question of allotting
a house to an MP from the General Pool „below‟ the entitlement of such MP
was not considered to be within the domain of the CCA at all.
43. Thus, the powers of the CCA to make allotment in terms of the OM
dated 24th October 1985 is to be understood in the context of the orders
passed by the Supreme Court in S.D. Bandi case. Even though this Court is
not been called upon to pronounce on the validity of the said OM dated 24 th
October 1985, and even assuming that it is constitutionally valid, the
discretionary power of the CCA to allot an accommodation to an MP from
the General Pool meant for Government servants in terms of the OM dated
24th October 1985 cannot be lightly exercised. In other words, the said
discretionary power has to be coupled with a duty to act responsibly. The
reasons that weighed with the CCA to justify the exercise of the powers
thereunder have to be disclosed. The decision to allot a General Pool
accommodation to an MP can cause severe prejudice to a Government
servant who has been waiting for many years for accommodation. The
comparative period of waiting by an MP vis-à-vis a government servant for
accommodation would be a relevant factor. The allotment of houses from the
General Pool consecutively to MPs would, for instance, be unjustified as that
would frustrate the chances of allotment of government servants who have
after several years reached the top of the waiting list.
44. In the present case, there is no justification shown in any of the affidavits
filed by Respondent No. 2 for the allotment made from the General Pool in
favour of Respondent No. 3 by the impugned order dated 2nd June 2010. No
enquiry was made from the Secretariat of the Lok Sabha or Rajya Sabha to
ascertain if there was any accommodation available in either of their pools
for allotment to Respondent No. 3. Going by the affidavits filed by
Respondent No. 2 in the Supreme Court in the S.D.Bandi case, the allotment
made by CCA to Respondent No. 3 of a General Pool accommodation could
not be sustained unless there existed some special reasons. The impugned
order dated 2nd June 2010 issued by Respondent No. 2 allotting the General
Pool accommodation at 60 Ashoka Road in favour of Respondent No. 3 is,
in the considered view of this Court, unsustainable in law.
Balancing equities
45. It was argued on behalf of Respondent No. 3 that since he was not aware
of the order dated 6th October 2010 and was handed over the possession slip
on 19th November 2010, he bonafide occupied the house at 60, Ashoka Road
having given up his earlier rented accommodation. He submitted that
Respondent No. 3 would be put to tremendous inconvenience, if he is now
asked to vacate the premises at 60, Ashoka Road for no fault of his.
46. This Court is of the view that equities in such a situation can be balanced
by permitting Respondent No. 3 to stay on at 60, Ashoka Road for a period
of three months from today, during which period Respondent No. 2 as well
as Respondent No. 3 will ascertain from the Secretariat of the Lok Sabha if
any vacant accommodation is available in the Lok Sabha Pool for allotment
to Respondent No. 3. If available, Respondent No. 3 will shift to such
accommodation within the said period of three months. If, for some reason,
no accommodation is available in the Lok Sabha Pool, Respondent No. 3
will nevertheless vacate the premises at 60, Ashoka Road within three
months from today. It would be open to Respondent No. 3 in such event to
make a proper application stating the special reasons why his case for
allotment of a house should be considered in terms of the OM dated 24th
October 1985. The CCA will decide his entitlement in accordance with the
law as explained by this court in this order.
47. As regards the claim of the Petitioner to a C-II type accommodation, it
has already been noticed that the Petitioner is willing to take a D-II type
accommodation, below his entitlement, subject to such flat being on the
ground floor. The case of the Petitioner shall once again be considered by
Respondent No. 2 in the light of the application made by him and the
preferences given by him. If the alternative accommodation offered by
Respondent No. 2 in para 10 of the second additional affidavit dated 12 th
January 2011 is still available it would be open for the Petitioner to opt for
any one of the available accommodation within a period of ten days from
today. If he does so opt, then Respondent No. 2 will issue an appropriate
order formalising the allotment of such accommodation in favour of the
Petitioner within two weeks thereafter. If he does not so opt, the Petitioner
will submit a proper application in the prescribed format within the next two
weeks for claim for an out-of-turn allotment on medical grounds. If such
application is made within two weeks it will be considered by the Medical
Board of Respondent No. 2 within a further period of three weeks thereafter.
The Petitioner will be communicated within two weeks thereafter the
decision of Respondent No. 2 both on his claim for an allotment in his own
turn as well as his claim to an allotment on out-of-turn basis.
The Contempt Petition
48. As regards the contempt petition, this Court is not satisfied with the
explanation given by Respondent No. 2 regarding its understanding of the
status quo order passed by this Court on 6 th October 2010. In a technical
sense, the status quo order continued only till the next „hearing‟ of the case
after 6th October 2010. However, the next „effective‟ hearing of the case by
this Court took place only on 16th December 2010. Thereafter, from the point
of view of Respondent No. 2, it could not have presumed that the status quo
stood vacated on 9th November 2010. The note on file shows that this was
not even the understanding of Respondent No. 2. The stand of Respondent
No. 2 is that its counsel failed to inform it of the status quo order. The note
of 26th November 2010 shows that when Respondent No. 2 realized the
correct legal position, it decided that the allotment slip issued to Respondent
No. 3 should be kept in abeyance. In the circumstances, the plea put forth by
learned ASG that the status quo order passed on 6th October 2010 stood
vacated on 9th November 2010 and, therefore, there was no disobedience of
the said order when Respondent No. 3 was put in possession of the
accommodation at 60 Ashoka Road, is an afterthought. Consequently, this
Court does not consider it necessary to discuss the decisions cited on the
automatic vacation of the status quo order on 9th November 2010.
49. This contempt petition highlights the difficulties faced by Courts in
general in getting their orders implemented. The judiciary has to depend on
the State machinery for the implementation of its orders. It is on this implicit
understanding that the legitimacy and efficacy of the legal system depends.
If the mandatory orders passed by Courts, including the High Court,
requiring action to be taken by the State are not communicated to the
concerned officials or when communicated are not acted upon then it would
render the power of the Court futile and frustrate the working of the judicial
system. Much therefore depends on prompt obedience of court orders by the
State authorities.
50. With a view to ensuring that interlocutory orders sought against the
central or state government or state entity are not issued ex parte, this Court
requires, through a practice direction issued in that behalf, that copies of all
such petitions seeking interim reliefs are served in advance on the standing
counsel for the concerned government or state entity. Thus every effort is
made to ensure that an interlocutory order granting stay or status quo is
passed only after hearing counsel for the government or a state entity.
51. Even in this case no order was passed on 27th September 2010, the first
date that the writ petition was listed. On that date this Court observed in its
order that if no instructions of the Respondents to their counsel were
forthcoming, or no reply was filed, by the next date, "the application for
interim relief will nevertheless be considered on the next date of hearing."
Since neither a reply was filed nor instructions received by counsel on the
next date i.e. 6th October 2010 a status quo order was passed in the presence
of counsel for Union of India. A copy of that order was also directed to be
given dasti (by hand) to enable all the counsel to obtain an official copy of
the order immediately. It was expected that the counsel for the Union of
India would, after obtaining a copy of the order, send it to Respondent No. 2
forthwith. A copy of that order could also have been downloaded from the
website of the High Court. It was also expected that counsel for Respondent
No. 2 would have informed it of the status quo order on the same day
telephonically as well. It is difficult to believe that counsel for the Union of
India did none of this. The explanation offered in the affidavits filed in the
contempt petition to the effect that counsel for the Union of India did not in
fact communicate to Respondent No. 2 the status quo order dated 6 th October
2010 passed by this Court is not convincing.
52. Interestingly the note of 26th November 2010 shows that there was a
conference held with the Government counsel by the officers of Respondent
No. 2 on 8th November 2010. Yet the Directorate of Estates claims not to
have been informed even on that date of the status quo order dated 6th
October 2010. This is unbelievable. By 8th November 2010, the possession
of the accommodation at 60, Ashoka Road had not been handed over to
Respondent No. 3. Having decided on 26th November 2010 to keep the
allotment in favour of Respondent No. 3 "in abeyance", the correct course
for Respondent No. 2 to adopt would have been to apprise Respondent No. 3
of the status quo order of 6th October 2010 and require him to hand back the
possession of 60 Ashoka Road to Respondent No. 2, pending further orders
of this Court. That this was not done, is a further pointer to the casualness
with which Respondent No. 2 has reacted to this Court‟s status quo order
even after becoming aware of it.
53. Thus by a combination of factors, this Court‟s order dated 6th October
2010 has been frustrated and it has been presented with a fait accompli. This
Court is constrained to express its displeasure and cautions Respondent No.
2 to ensure that no such omission occurs in future.
54. As far as Respondent No. 3 is concerned, this Court is unable to find that
he wilfully disobeyed the status quo order dated 6th October 2010. It is a fact
that notice in the writ petition was not served upon Respondent No. 3 earlier
than on 19th November 2010. It is possible, therefore, that he was not aware
of the status quo order dated 6th October 2010 when he took possession of
the accommodation at 60, Ashoka Road. The contempt proceedings against
Respondent No. 3 are dropped.
Conclusion
55. The writ petition and the contempt petition are disposed of in the
following terms:
(i) The impugned order dated 2nd June 2010 issued by Respondent No.
2 allotting the General Pool accommodation at 60 Ashoka Road in
favour of Respondent No. 3 is held to be unsustainable in law and is
accordingly quashed.
(ii) Respondents 2 and 3 and the Petitioner will abide by the directions
issued in paras 44 and 45 of this judgment.
(iii) The contempt petition is disposed of in terms of paras 53 and 54
of this judgment.
(iv) Costs of these petitions in the sum of Rs. 5,000 will be paid by
Respondent No. 2 to the Petitioner within a period of four weeks.
S. MURALIDHAR, J.
FEBRUARY 11, 2011
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