Pawan Kumar vs The Estate Officer and Another

Jawahar Lal Gupta, J.—Does the son have a right to the allotment of the house occupied by the father on the latter''s retirement in spite of the fact that his own entitlement was for a lower category of house? This is the primary question that arises for consideration in this case. A few facts may be noticed.

A House No. 1522-A, Sector 20, Chandigarh was initially allotted to Mr. Lajpat Rai who was working as an Accountant. He retired from service on April 30, 1991. A little prior to his retirement, on April 18, 1991, Mr. Lajpat Rai made a request to respondent No. 2 that his son, the present petitioner, may be allotted this house. On January 21, 1992, the respondent issued an order allowing the petitioner''s father to retain the house on payment of double the standard rent till the allotment of an appropriate category of house to the petitioner. On September 10, 1992 the petitioner was allotted a 13 type house while his father was occupying a 12 type house. On September 15, 1992, the petitioner occupied it. However, the petitioner''s father did not vacate the house in his possession. He continued to represent. Vide order dated September 16, 1993, he was informed that his request could not be accepted. When he did not vacate the house, proceedings under Sections 4 and 5 of the Public Premises Act, 1971 were initiated. Order of eviction was passed against him. He filed an appeal before the District Judge. It was, however, withdrawn on September 27, 1994. Thereafter, the petitioner filed the present writ petition. He challenges the action of the respondents in not allotting House No. 1522-A, Sector 20, Chandigarh and the order dated September 16, 1993, a copy of which has been produced as Annexure P-7 by which it was held that Mr. Lajpat Rai was liable to vacate the house and pay penal rent at the rate of Rs. 1,140/- per month as he was in unauthorised occupation with effect from September 27,1992.

The claim has been controverted by the respondents by filing a written statement. The petitioner has filed a replication.

Counsel for the parties have been heard.

Mr. S.K. Sharma, learned counsel for the petitioner has made a two-fold submission. Firstly, he has contended that under the instructions issued by the Department vide letters dated January 30, 1989 and February 26, 1992, copies of which have been produced as Annexures P-4 and P-5 with the writ petition, the petitioner has a right to the allotment of a 12 type house. Secondly, it has been contended that the action of the respondents is discriminatory and thus violative of Article 14 of the Constitution. This claim has been controverted by Mr. Ashok Aggarwal, learned counsel for the respondents.

It is true that the Administrator of the Union Territory of Chandigarh had decided that "when a Government servant, who is an allottee of General Pool accommodation, retires from service, his/her son, unmarried daughter or wife or husband, as the case may be, may be allotted accommodation from the Gen. Pool on ''out of turn'' basis, provided the said relation is a Government servant eligible for allotment of accommodation from the Gen. Pool and had been continuously residing with the retiring Govt. servant after joining Govt. service, for at least three years immediately preceding the date of his/her retirement." It was further provided as under:-

"The eligible dependant will be allotted accommodation one type below his/her entitlement provided that in no case except (as) otherwise specified, allotment will be made of a type of house higher than (that) in the occupation of the retiring Govt. servant."

These instructions were partially modified vide letter dated February 26, 1992, whereby it was interalia provided that "where the eligible dependant is entitled to type 12 or 13 (old types)/Type-II or I (New types), he/she will be allotted accommodation of type 12 or 13/or Type-II or I as the case may be".

On a perusal of these instructions, it is clear that on the retirement of an employee, a house can be allotted to one of the relations, as mentioned in the letter on ''out of turn'' basis. This, is, however, subject to certain conditions. One of these conditions is that the relation should be a Government servant who is eligible for the allotment of accommodation from the General Pool. Furthermore, even though initially it had been provided that the allotment had to be "one type below his/her entitlement", yet in the case of 12 or 13 type houses, this condition has been waived vide letter dated February 26, 1992, Accordingly, the son of a retiring Government employee is entitled of a house. He has, however, to be allotted a house according to his entitlement.

In the present case, it is the admitted position that the petitioner is working as a Lift Mate in the Office of the Executive Engineer. On April 30, 1991 when his father retired and even subsequently till December 31, 1993, the petitioner was entitled to be considered for allotment of a 13 type house only. Since the number of available houses is much lesser than the number of Government servants claiming allotment, the competent authority faces a difficult task. However, the Administration was generous and vide order dated January 21, 1992, it allowed the petitioner''s father to retain the house till a 13 type house became available for allotment to the petitioner. This action was absolutely just and fair. Subsequently, on its becoming available, House No. 2943-A, Sector 20 (Type-13) was allotted to the petitioner on September 10, 1992. He occupied it on September 25, 1992. Yet, his father did not vacate the house and continued to occupy it. This was wholly unfair. The Administration was consequently constrained to proceed against him. Ultimately, it was held that his occupation of the house w.e.f. September 27, 1992 was unauthorised and that he was liable to pay penal rent. We find no infirmity in the order.

So far as the petitioner is concerned, we find that he was allotted a house according to his entitlement in September, 1992. The mere fact that his pay bad risen w.e.f. January 1, 1994 and on that account he had become eligible for the allotment of a 12 type house, cannot mean that he had a right to the allotment of the house in dispute on the retirement of his father in April, 1991 or in September, 1992 when the house had been actually allotted to him. In the very nature of things, the pay of every Government servant rises with the passage of time. Sometimes, even the pay scales are revised. As a result, one becomes entitled to the allotment of a higher type of house. Such a person has to wait in the queue till a house becomes available for allotment to him. In the present case, even if the petitioner had become eligible for the allotment of a 12 type house in January 1992, he had to wait in the queue till persons above him were actually allotted houses according to their entitlement and turn. The only concession available under the instructions is that a relation of a retiring employee is entitled to be considered for ''out of turn'' allotment. He has, however, no right to the allotment of a house beyond his entitlement. To illustrate, a Commissioner may be occupying a VI type house. On his retirement his son who may be working as Class III employee, cannot claim that the same house should be allotted to him. His rights would be determined according to the Rules and a house shall accordingly be allotted to him.

In the present case, the petitioner was not eligible for the allotment of a 12 type house in September, 1992. He was only entitled to the allotment of a 13 type house. It was allotted to him. The action of the respondents was in strict conformity with the Rules. We find no infirmity in their action.

Accordingly, we answer the question posed at the outset in the negative and hold that the son of a retiring employee can be allotted a house only according to his entitlement. He has no right to the allotment of the house occupied by his father.

Equally lacking in merit is the second contention raised by the counsel for the petitioner. It was contended that the action suffers from the vice of discrimination, as on the retirement of one Mr. R.S. Sandhu, his son had been allotted a 12 type house in Sector 23-D, inspite of the fact that he was not entitled to such an allotment at that time. On behalf of the respondents, it has been pointed out that the competent authority had relaxed the Rules. It is the admitted position that a power of relaxation vests in the Chief Commissioner. However, relaxation cannot be claimed as a matter of right. Still further, even if it is assumed for the sake of argument that the respondents had wrongly allowed a particular person to occupy a 12 type house, it does not confer a right on the petitioner to claim that a similar wrong order should be passed even in his case. Since neither Mr. Sandhu nor his son are a party in the present case and full facts are not available, it is not possible for us to examine this matter any further. The contention based on the plea of discrimination is, however, without any merit and is rejected.

The petitioner''s conduct has been far from satisfactory. He has intentionally with-held the fact of the allotment of a 13 type house to him since September, 1992. In fact, he has clearly disclosed his address as House No. 1522-A, Sector 20-B, Chandigarh and not given the number of the 13 type house which had been actually allotted to him. This was a clear attempt to suppress a vital fact which by itself should disentitle him to the grant of any relief in the exercise of discretionary jurisdiction under Article 226 of the Constitution. Still further, he had no locus standi to challenge the order dated September 16, 1993 by which the allotment of House No. 1522-A, Sector 20-B, Chandigarh in favour of his father had been cancelled and orders for the payment of penal rent were passed. It appears that the petitioner and his father had totally misused the facility of allotment of houses. They have continued to occupy both the houses in utter defiance of the directions given to them by the Administration. Their action was contrary to law. The petitioner is not entitled to the grant of any relief under Article 226 of the Constitution.

In view of the above, we find that the writ petition is wholly lacking in merit. It is, accordingly, dismissed in limine. In the circumstances of the case, we feel that the respondents are entitled to their costs. However, since the petitioner is a low paid employee, we quantify the costs at Rs. 500/- only.