JUDGMENT
N. Sahu, Member (A)
1. Prayer in this O. A. is to declare that the applicant continued to be in lawful possession and occupation of Type ‘C’ Govt. accommodation bearing No. 14/819. Lodhi Colony, New Delhi since his transfer on 22.10.96 to the north-eastern region and declaring the cancellation letter dated 30.12.96 and subsequent proceedings under Sections 4 and 7 of the Public Premises (Eviction of unauthorised occupants) Act 1971 as illegal. The undisputed facts of the case are in a brief compass:–
2. The applicant was posted to Shillong (Meghalaya) in the office of Area Accounts Officer under the organisation of C.D.A. Guwahati by order dated 18.10.96. After complying with the order the applicant made a representation dated 22.10.96 stating that he was not in a position to shift his family to the new Station of posting and requested for retention of the quarter allotted to him at Lodhi Colony. He informed that his basic pay was 2900/- and he was entitled to a type IV Govt. accommodation whereas he was already occupying a type III Govt. accommodation. This was followed by another representation dated 14.11.96 in proper form to respondent No. 2. On 7.1.97, he further mentioned about the continuing education of his children and also the fact that they were appearing for the examinations. He referred to the orders contained in the Ministry of Works and Housing. Directorate of Estate O.M. No. 12035/24/77-Pol. II dated 15.2.84 and 2.6.84. The respondents, by their letter dated 7.1.97, informed him that they have decided to sanction an alternative type ‘B’ residential accommodation in adjoining locality of Lodhi Colony
for the bonafide use of his family to enable him to vacate type ‘C’ accommodation which was under his occupation. This was subject to recovery of licence fee at the rate of 1-1/2 times of the standard licence fee as defined under FR 45-A or 15% of the emoluments drawn. By an order dated 30.12.96, the accommodation was cancelled and thereafter by) a letter dated 27.2.97, a notice under Sub-section (1) Clause (b) of Sub-section (2) of Section 4 of the Public Premises (Eviction) of Unauthorised Occupants Act. 1971 was issued. This notice referred to the cancellation order dated 30.12.96 and thereafter treated the stay as unauthorised.
3. The applicant pleaded orally about his difficulties and sought continuation of old accommodation. Meanwhile the applicant approached the Tribunal and obtained status -quo order. On 31.1.97, the respondents offered type II accommodation quarter No. 2022, Lodhi Road Complex. A note has been appended under the notice that this allotment was communicated to the applicant’s wife and this note was attended on 3.3.98. About a year later, the applicant was again transferred back to Delhi and he joined on 15.9.97. He made a request that his earlier quarter which was cancelled and for which a notice of unauthorised occupation has been issued, be regularised. Respondents have regularised the same but as per page 13 of the counter, they have communicated to the cashier to accept deposit of Rs. 39418/- by way of arrears of rent for unauthorised occupation. The applicant states that he was eligible for type IV accommodation on the date when he was transferred to north-eastern region in Shillong and therefore he was entitled to the existing accommodation. For this purpose, he relied on the decision of the Guwahati Bench in O.A. 286/96 dated 16.4.97 (Ashok Kumar v. Union of India). Ld. Counsel for applicant has drawn my attention to the observations of the Hon’ble Judge at page 4 of the order as under:
“I am of the view that in the implementation of the scheme the status of entitlement of an employee is determined by the pay drawn by the employee concerned at the time when the scheme is due to be implemented in his particular case, that is, when he moved out to the North Eastern Region on transfer and applied under the scheme for retention of the quarter occupied by him in the old station. Thus the applicant was entitled to Type VB quarter at the relevant time notwithstanding the plea of the respondents that there are no such type of quarter in Delhi Cantonment. He was however, occupying only a type V quarter in the last station. Clause (a) of the scheme dated 16.3.1985 (Annexure-A) pertaining to Defence Civilian Employees posted to North Eastern Region provides that the same quarter in the last station may be retained or an alternative accommodation may be allotted in accordance with the procedure prescribed thereafter. Clause (b) that follows provides that however if the accommodation already occupied is below entitlement, retention of the same accommodation would be permitted. There is no sufficient reason why the applicant could not be allowed retention of the quarter at 30 Baird Place. Delhi Cantonment. The impugned order dated 11.11.96 allotting a type IV quarter to the applicant was issued on a misconception that the quarter is one type below his entitled quarter.”
4. The second ground taken by the applicant is that the respondents were under the obligation to ensure allotment of suitable alternative accommodation which they failed to do. For this purpose, he impugns all the order namely cancellation, eviction and the subsequent consequential orders. Ld. Counsel for respondents vehemently contested each and every submission of the Ld. Counsel for applicant. It is stated that the basic pay drawn
by the applicant on 1.10.93 only enabled him for a type ‘C’ quarter. He could be allotted only one type below of his entitlement for keeping his family in Delhi and accordingly a type ‘B’ quarter was sanctioned on 7.1.97. The respondents are of the view that the applicant was transferred to North Eastern Region on 18.10.1996 but the crucial date was fixed on 1.10.93. As on 1.10.93. The applicant’s pay was Rs. 2675/- p.m. He was entitled only for a type ‘C’ accommodation.
5. I have carefully considered the submissions of the rival Counsel. One fact that strikes me is that the impugned order of cancellation dated 31.12.1996 was issued even before the applicant was shown an alternative accommodation which was dated 31.1.97. This action was to say the least both improper and unlawful and militated against the spirit of the concession granted to persons who are transferred to the North Eastern Regidn. The relevant rules are stated to be as under:–
“IX. Allotment of alternative Accommodation in the next below category to the allottees of General Pool on transfer to North Eastern States. A and N Islands, Lakshadweep and Sikkim–on first available vacancy basis.
In order to facilitate vacation of higher type of accommodation by the allottee posted to North Eastern States Andaman and Nicobar Islands. Lakshadweep and Sikkim in such cases it has been decided that the allotment of alternative accommodation shall be made on first available vacancy basis.
These orders will also apply in all cases where alternative accommodation
is to be allotted in lieu of higher type of GP accommodation occupied by the
allottee. (D.E.O.M. No. 12035(24)/77-Pol.11 dt. 12.9.90]
6. The whole purpose of this concession is to enable the Govt. servant to leave his family and children in the place of posting and join in a North Eastern State which is a difficult area. I have seen the representations made by the applicant repeatedly. It was totally uncalled for on the part of the respondents to cancel the existing allotment before making available an alternative accommodation. That cancellation order is absolutely unsustainable and is accordingly quashed. As the main impugned order is quashed, the subsequent period of stay cannot be called unauthorised and accordingly the notices under Sections 4 and 7 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are without jurisdiction and are accordingly quashed.
7. The next point to be mentioned is that the regularisation of this very quarter by the same respondents after the applicant joined the post belies their claim of unauthorised occupation under the P.P. Act Finally, I respectfully follow the guidelines laid down by the Guwahati Bench of this Tribunal and hold that the applicant’s entitlement shall be considered only on the basis of the pay which he had been drawing at the time of transfer even though this judgment has been passed with reference to a scheme and relates rules promulgated by the Ministry of Defence. Yet the spirit is that when an officer has been transferred and he wants to join a new post. All his eligibilities undergo a change. As a concession to a transfer in a difficult and inhospitable area. Govt. allowed this facility of accommodating the family of the applicant to continue to stay without any disturbance. The action of the respondents defeated the very purpose for which the concessions are allowed by the Govt. of India. The pertinent question to ask is; if the accommodation was cancelled on 31.12.96 and the allotment was given on 31.1.97, where would the family of the transferred employee stay if they were to faithfully comply with the orders of the respondents? lam of the considered view that the cancellation order is wholly unsustainable
Notices under Sections 4 and 7 are also quashed.
8. The O.A. is allowed. No costs.
