JASMINE CHAWLA SHARMA Vs. REKHA

JUDGEMENT

(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.) 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.