WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 1 of 36 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 2 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 3 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 4 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 5 of 36 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 27th 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 6 of 36 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 2nd 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 7 of 36 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 23rd 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 1st to 9th days of the month and such accommodation would be allotted to him on maturity of his turn subject to his seniority. WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 8 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 9 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 10 of 36 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 1st and 9th of the month. An allotment is automatically made by the computer on 10th 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 11 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 12 of 36 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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 13 of 36 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 1st 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: WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 14 of 36 “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 WP (Civil) No. 6545/2010 & Cont. Case No. 820/2010 Page 15 of 36 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 Village Ground TN 3. A-1, Nanak Pura Ground TP 4. P-6.1(MS), Sector- 13, R.K. Puram 6th Floor with lift facility* GP * 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