TaxTMI 
TaxTMI 
TaxTMI 
2011 (8) TMI 1393
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....rising repeatedly before the High Court, this Court had issued notice vide order dated 3 rd June, 2011, declined to pass any interim order and directed that the matter be listed for final hearing at that stage itself. Resultantly, this matter was finally heard by this Court. 4. Before we dwell upon the legal issues arising in the present appeal, it will be necessary for us to refer to the basic facts giving rise to the same. The Appellant is an officer belonging to the Indian Administrative Services and had been allocated to the Haryana Cadre. She was allotted House No. 55, Sector 5, Chandigarh vide order dated 11 th October, 1996, when her husband was posted on deputation to the Government of India. She retired from service on 28th February, 2007. As per the Government Residences (Chandigarh Administration General Pool) Allotment Rules, 1996 which has been amended from time to time, (hereinafter referred to as 'the Allotment Rules'), she was entitled to retain the Government accommodation previously allotted to her while she was in service for a period of four months with further possible extension up to six months, in terms of Rule 13 of the Allotment Rules. This exten....
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....sed upon her and that no such penal rent would be payable till the Administrator of U.T. Chandigarh makes his decision in this regard. However, besides granting these reliefs to the Appellant, the Court also passed the following directions: Having heard Dr. Dhemka IAS in person and learned Senior Standing counsel for UT. Administration and keeping in view the fact that a number of Government houses kept un-allotted under the orders of this Court serve no one's purpose and rather their condition is deteriorating for want of proper up-keep and maintenance, the interim order dated 14.12.2009 is modified and the Chandigarh Administration is permitted to allot the vacant houses to the eligible applicants, subject to the following conditions/ directions: (i) No allotment shall be made in exercise of the discretionary powers of the Administrator, UT., or Chief Ministers of Punjab and Haryana. (ii) No house shall be allotted but of turn' without prior permission of this Court. (iii) No house shall be 'earmarked' for any particular office/officer till the earlier 'earmarked' house which were subsequently 'de-earmarked' and ....
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....itled Court on its own motion v. Advisor to the Administration, U.T. Chandigarh and Ors. had noticed the arbitrariness in the practice of allotment of houses in the Union Territory of Chandigarh (hereinafter referred to as 'U.T., Chandigarh'). It was noticed in that judgment that the allotments were being made contrary to the earlier Allotment Rules. The Bench struck down Rule 7 of the earlier Allotment Rules, that had been in force at the relevant time, as arbitrary, quashed certain allotments made in favour of the officers and issued certain directions vide its judgment dated 1 st June, 1995. The Chandigarh Administration had preferred an appeal before this Court against this judgment which, as already noticed, was registered as C.A. No. 8890 of 1996 and finally disposed of vide order dated 7 th May, 1996. A three Judge Bench of this Court had set aside the order of the High Court and approved the draft rules which were placed before it. This Court in its judgment also directed certain amendments to be carried out to the draft rules particularly Rules 2(k), 4 and provisos to Rules 13 and 19. In furtherance to this, the Chandigarh Administration issued a notification dated....
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....onstitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal (2000) 8 SCC 262 11. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependant upon certainty in State action, that is, the class of persons, subject to Regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the d....
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....uch orders as would be necessary for doing complete justice in the context of any case or matter pending before it. This provision contains no limitation which provides the causes or circumstances in which such power may be exercised. The exercise of power is left completely to the discretion of the highest Court of the country and its order or decree is thereafter binding on all Courts or Tribunals throughout the territory of India. However, in the case of Guruvayoor Devaswom Managing Committee v. C.K. Rajan (2003) 7 SCC 546 this Court, while specifying the scope and ambit of the Public Interest Litigation, clearly distinguished between the powers of the High Court under Article 226 of the Constitution and the powers of this Court under Article 142 of the Constitution and observed 'The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India'. Usefully, reference can also be made to the judgment of this Court in the case of Reliance Airport Developers (P) Ltd. v. Airport Authority of India and Ors.....
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....ints to be observed by the courts while exercising the jurisdiction under Article 226, one of them, which is relevant herein, is beyond dispute viz., while acting under Article 226, the High Court does not sit and/or act as an appellate authority over the orders/actions of the subordinate authorities/tribunals. Its jurisdiction is supervisory in nature. One of the main objectives of this jurisdiction is to keep the government and several other authorities and tribunals within the bounds of their respective jurisdiction. The High Court must ensure that while performing this function it does not overstep the well recognised bounds of its own jurisdiction, 15. It is a settled canon of Constitutional Jurisprudence that this Court in the process of interpreting the law can remove any lacunae and fill up the gaps by laying down the directions with reference to the dispute before it; but normally it cannot declare a new law to be of general application in the same manner as the Legislature may do. This principle was stated by a Seven-Judge Bench of this Court in the case of P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 16. On a proper analysis of the principles stated by....
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....iction so that they do not overstep the circumscribed judicial limits. 18. In light of the above legal framework, we would now revert to examine the legal questions raised before us. There are primarily three issues which require the consideration of this Court: 1. The interpretation and enforcement of the Allotment Rules framed by Notification dated 28 th June, 1996 and the amendments made to it from time to time; 2. The relevancy of the directions issued by this Court vide its judgment dated 8th December, 1995; and 3. The conflict between the directions of this Court and the Rules framed thereafter and the directions issued by the learned Single Judge of the Punjab and Haryana High Court. 19. We would further be required to examine whether the Allotment Rules, as amended from time to time, are in conflict with the earlier judgment of this Court or whether they suffer from any basic legal infirmity or are ex facie arbitrary and, if so, what directions could be passed to remedy such elements of arbitrariness, particularly, in view of the directions issued by the learned Single Judge of the High Court. We may notice that during the course of argument....
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....th June, 1996, to finally result in the Allotment Rules. These rules were also subjected to different amendments from time to time and major amendments were carried out in the years 1997, 1998, 2004, 2007 and 2009. Besides these, certain guidelines were also framed which became part of the Allotment Rules. These amendments related to changes in the definition clauses as well as the substantive rules. For example, Rule 7, which is related to the earmarking of houses was amended on 7 th May, 1998; Rule 8, concerning the Controlling Authority was amended vide Notification dated 2 nd June, 1997; Rule 11, which related to Out-of-Turn Allotment, was amended vide Notifications in 1997 and again vide Notification dated 4th August, 2004; Rules 13 and 14 relating to the period for which allotment subsists and concessional period for further retention and fixation of licence fee were amended by different amendments including those dated 17 th December, 2009 and 11 th October, 2007 respectively. These amendments have to be examined in light of the fact that this Court granted leave vide its judgment dated 7th May, 1996 to the Chandigarh Administration to amend the rules, as and when it conside....
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....Rules as such, but is one of the manner of exercise of power with reference to the Allotment Rules. 23. Rule 7 of the Allotment Rules, which deals with the creation of pools of residences, provides for earmarking of houses for specified officers from different branches of the State Administration and those houses which have not been so earmarked for any particular class of Government employees would be allotted to the general pool of the Chandigarh Administration. This Rule and its sub-Rules read together do not suffer from the vice of arbitrariness, as earmarking of houses is a known concept in relation to allotment of houses. The learned Single Judge of the High Court of Punjab and Haryana has given a clarificatory direction that when earmarked houses are occupied by an officer, who is at that time not entitled to that house, another house would not be earmarked for any particular officer, until the occupied house is vacated. One exception is carved out in favour of SSP, Chandigarh in terms of order dated 7th March, 2011. We do not think that this clarificatory direction is violative of any rule or is otherwise impermissible. These directions attempt to ensure that there shoul....
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.... government employee due to the 'functional requirements' of the post. This expression is neither explained nor have any guidelines been issued in this regard. The criteria provided in Guideline (2) for allotments made in public interest under Rule 11(1)(f) is quite similar to the criteria for determining functional requirements. Both these heads refer to the nature of official duties and functions to be performed by the officer concerned. Thus, the category of 'functional requirement' allotment is nothing but a category created to allow more and more allotments under this head.In light of these rules, the absolute restriction on Out-of-Turn Allotments imposed by the learned Single Judge may not be just and fair and will be opposed to the statutory provisions of the Allotment Rules. Therefore, we are unable to sustain such a restriction. However, we would further clarify that the powers vested in the concerned authority under Rules 8 and 11 of the Allotment Rules will only be exercised: (a) upon recommendation of the House Allotment Committee; (b) such recommendation should be supported by reasons with the requirements of the job and the data in support thereof; and....
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....to invite objections to each allotment apart from unnecessarily delaying allotments and rendering the working of the Rules more complex and difficult. Further, Rule 9(5) of the Allotment Rules is a complete safeguard in regard to proper maintenance of the seniority list of the applicants. Thus, we set aside the directions issued by the learned Single Judge in that behalf. However, we direct that the final list of allotments made by the House Allotment Committee should be placed on the website of the Government, as all interested persons would be entitled to know whether they have been allotted the accommodation or not. 29. Now, we will deal with the other two arguments that were raised before us. One argument was in regard to the allotment of two houses to a single officer and/or to his family, one in Chandigarh and one in some other part of the same State; and the second was regarding the period of retention of the allotted house after the employee is retired, promoted, transferred or is sent on deputation etc. These are matters of serious concern. There is no rule that has been brought to our notice or is available on the records providing that an officer who is posted outside....
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....Court cannot lose sight of the fact that a large number of employees under different categories, are awaiting their allotments and are being deprived of this benefit for long periods because of excessive invocation of such discretionary powers. The provision is unguided and arbitrary and cannot stand the scrutiny of law. More so, the licence fee indicated is obviously minimal in comparison to the market rent for the said premises. It is a matter which a Court can safely take judicial notice of. 32. Compelled by these circumstances, we find Rule 13(5) not sustainable and the authorities are directed not to take recourse to the said provision under any circumstance. No case of retention of government accommodation beyond the periods specified in the table to Rule 13(2) of the Allotment Rules shall be entertained by any authority under the Allotment Rules. 33. We have issued the above directions being conscious of the fact that the Allotment Rules are in place and that the authorities are acting fairly and judiciously. The directions that we have issued are primarily explanatory and are intended to narrow the scope of discretion exercisable by the concerned authorities. It is a ....