Dr. Jasmine Chawla Sharma & Anr. vs Dr. Rekha & Anr.
2013 Latest Caselaw 1318 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on: 14.03.2013
                              Judgment pronounced on : 18.03.2013

+     LPA 1115/2007

      DR. JASMINE CHAWLA SHARMA & ANR. ..... Appellants

                         Through: Mr Dinesh Agnani, Senior Adv. with
                         Mr Piyush Sharma and Mr Archit Yadav, Advs.
                         versus

      DR. REKHA & ANR.                                ..... Respondents

                         Through: Mr S.N. Chodhari, Adv for R-1
                                  And

+     LPA 1116/2007
      MCD                                               ..... Appellant
                         Through: Ms Manjira Dasgupta, Proxy Counsel
                         for Mr Shyel Trehan, Adv for MCD

                         versus
      DR. REKHA & ANR.                                ..... Respondents

                         Through: Mr S.N. Chodhari, Adv for R-1
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN




LPA 1115 and 1116/2007                                     Page 1 of 8
 V.K. JAIN, J.

1. Appellant No. 2 in LPA No. 1115/2007, namely, Dr. Kamla

Sharma, was allotted Type V flat No.D-1/6, 10, Rajpur Road, Delhi by

MCD. Vide allotment letter dated 14.06.2005, the aforesaid flat was

allotted to Dr. Rekha, respondent No.1, in LPA No. 1115/2007 on

medical grounds. Since Dr. Kamla Sharma was due to retire on

30.04.2007, she applied to MCD for regularization and allotment of the

aforesaid flat in favour of her daughter-in-law Dr. Jasmine Chawla

Sharma, appellant No. 1 in LPA No. 1115/2007. After turning down the

said request on two occasions, MCD vide order dated 08.03.2006

regularized the aforesaid flat in favour of Dr. Jasmine Chawla. The order

dated 08.03.2006 was followed by an allotment letter dated 05.04.2006 in

her favour. Vide letter dated 10.4.2006, MCD withdrew the allotment

which it had made to Dr. Rekha on 14.06.2005.

2. Being aggrieved from withdrawing the allotment made to her and

regularizing the said flat in favour of Dr. Jasmine Chawla, Dr. Rekha

filed W.P (C) No.642/2006. The learned Single Judge vide impugned

order dated 31.05.2007 quashed the allotment letter dated 05.04.2006,

issued in favour of Dr. Jasmine Chawla as also the cancellation letter

dated 10.04.2006, thereby restoring the allotment letter dated 14.06.2005

in favour of Dr. Rekha. She further directed MCD to allot any of the

vacant Type IV flats on the ground floor either at 10, Rajpur Road, or in

the nearby vicinity of Model Town and Naniwala Bagh, as specified in

the list of vacant flats furnished to the Court, but in accordance with the

extant Rules relating to housing accommodation, to Dr. Jasmine Chawla.

It was also directed that on receipt of allotment letter, she would

handover vacant possession of Type-V flat No.D-1/6, 10 Rajpur Road, to

MCD within two months thereafter and MCD, in turn, shall handover that

flat to the writ petitioner Dr. Rekha.

3. Being aggrieved from the aforesaid order, Dr. Jasmine Chawla and

Dr. Kamla Sharma have filed LPA No. 1115/2007, whereas MCD has

filed LPA No. 1116/2007. It is an admitted position before us that as per

the relevant rules, Dr. Jasmine Chawla, appellant No. 1 in LPA No.

1115/2007 was not entitled to allotment of a Type V flat from MCD. The

contention of the learned counsel for the appellants, however, is since

Rules For Allotment Of General Pool Quarter, framed by MCD vide its

Resolution No. 946 dated 14.03.1972, empowered the Commissioner, for

reasons to be recorded in writing, relax all or any of the provisions or the

regulations in the case of any officer or residence or class or type of

residence and in exercise of that power, the Commissioner had, vide his

order dated 08.06.2005, approved the aforesaid allotment, the said

allotment cannot be said to be illegal. The learned counsel for the

appellants in this regard also drew our attention to SR 317-B-26 of

Fundamental Rules framed by Government of India, which according to

the learned counsel, have been adopted by MCD. A perusal of

Government of India's orders issued vide G.I. M.W. & H., O.M. No.

12035(7) 79-Pol. II dated the 1st May, 1981 and M.U.D., Director of

Estates, O.M. No. 12035(14)82-Pol.II (Vol.II) (i) dated the 19th

November, 1987 would show that allotment to a dependent/relation of the

Government servant occupying a Government residence was permitted,

subject to certain conditions laid down in the said orders. Vide G.I., Min

of U.D. &P.A. (Directorate of Estates), O.M. No. 12035/23/2000-Pol.II,

dated the 26th December, 2000, the aforesaid decision was made

applicable also to the daughter-in-law of the allottee Government servant

in the event of his death/retirement.

4. The learned counsel for Dr. Rekha, however, withdrew our

attention to the orders, issued by Government of India vide G.I, M.U.A.

& E. (Directorate of Estates), O.M. No. 12035/2/97-Pol.II (Pt. II), dated

the 17th November, 1997. The aforesaid order was issued by the

Government pursuant to the decision of Supreme Court in WP(C) No.

585/1997 S.S. Tiwari vs. Union of India, AIR 1997 SC 2725, directing

the Government that discretionary/out-of-turn allotments be regulated and

transparency maintained by framing appropriate rules in this regard

which may also be duly notified. The Apex Court also directed that

ceiling of discretionary allotments shall be 5% of the total number of

vacancies occurring in each type of houses in a year. In the light of the

aforesaid decision, Government of India decided to lay down detailed

guidelines to regulate the discretionary allotment of Government

accommodation in future and directed that such allotments shall be

permitted only on medical, security and functional grounds and shall be

made through two Committees of Officers duly constituted for the

purpose, which shall consider each request within the laid down policy

guidelines. The composition of two committees was also notified in the

aforesaid order. Since the decisions taken by the Government of India

have admittedly been adopted by MCD, the guidelines regulating the

discretionary allotments would also apply to MCD, which after issue of

the aforesaid guidelines on 17.11.1997, was required to make

discretionary allotments strictly in accordance with those guidelines.

Thus, after 17.11.1997, discretionary allotments, which would include the

allotments made in relaxation of rules, could be made only though the

Committee of Officers, which the MCD was required to constitute in

terms of Government of India's decision dated 07.11.1997, issued

pursuant to the directions of the Apex Court in the case of S.S. Tiwari

(supra). In our opinion, any allotment, if not made as per entitlement of

the employee based on his pay, and at the time his number in the waiting

list matures for allotment, would be an out of turn allotment, irrespective

of whether such allotment is made by regularizing a flat already occupied

by another employee or in any other manner.

5. Since the discretionary allotment in favour of Jasmine Chawla was

made on 14.03.2006, without following the guidelines and the procedure

laid down in the O.M. dated 17.11.1997, pursuant to decision of Supreme

Court in S.S. Tiwari (supra), it was clearly in contravention of the

aforesaid guidelines, issued by Government of India, which also stand

adopted by MCD. A discretionary allotment made in contravention of

such guidelines and procedure cannot be sustained in law and, therefore,

we find no merit in the appeals, to the extent they challenge the

cancellation of regularization/allotment made in favour of Dr. Jasmine

Chawla.

6. Coming to allotment made to Dr Rekha admittedly, the aforesaid

allotment was made on 14.06.2005, which was much after the issue of

guidelines dated 17.11.1997. Admittedly, the allotment made in favour of

Dr. Rekha was out of turn allotment since she did not get the aforesaid

allotment on maturity of her number in the waiting list of MCD

employees seeking allotment of residential quarters from MCD, which

clearly means a discretionary allotment. Since the aforesaid allotment

admittedly was not made in terms of the OM dated 17.11.1997 and

though a Committee of Officers in terms of the decision of Government

of India, the aforesaid allotment was illegal and, therefore, we are of the

view that the learned Single Judge was not justified in restoring the said

allotment.

7. For the reasons stated hereinabove, we hold that the regularization

made in favour of Dr. Jasmine Chawla as well as the allotment made in

favour of Dr. Rekha were illegal. We, therefore, dispose of these appeals

by upholding the order of the learned Single Judge to the extent she

quashed the regularization/allotment in favour of Dr. Jasmine Chawla in

respect of flat No.D-1/6, 10, Rajpur Road. We, however, set aside the

order of the learned Single Judge to the extent she restored the allotment

of the aforesaid flat to Dr. Rekha and directed delivery of possession of

the said flat to her. We, however, make it clear that this order shall not

come in the way of MCD allotting a flat either to Dr. Jasmine Chawla or

to Dr. Rekha, as per their entitlement and at their turn, in accordance with

the Rules governing such allotments nor shall it come in the way of MCD

making an out of turn/discretionary allotment through a Committee of

Officers strictly in terms of the guidelines, issued and the procedure

prescribed by Government of India in compliance of the directions of the

Apex Court in the case of S.S. Tiwari (supra).

In the facts and circumstances of the case, there shall be no order as

to cost.

V.K.JAIN, J

CHIEF JUSTICE MARCH 18, 2013 bg