- (1.)In this petition under Articles 226/227 of the Constitution of India, the petitioner seeks a writ of certioral for quashing the order Annexure P-7 date 17th November, 1986 and for a writ of mandamus, requiring respondents 1 to 3 to allot the half- portion of house to he vacated by respondent No. 5 to the petitioner.
(2.)Briefly the material facts are that the petitioner who is serving as Assistant in Haryana Public Service Commission, Chandigarh, was allotted half portion of II-type House No. 108, Sector 20-B, Chandigarh, by order dated 21st June, 1980. On the same day, the other half portion of the said house was allotted to respondent No. 5, who was also an employee of the Haryana Government in Agricultural Deptt. Respondent No. 5 was transferred from Chandigarh to Karnal and he relinquished charge of his office at Chandigarh on 29th January, 1996. The allotment of residence in Chandigarh is regulated by the Government Residences (Chandigarh Admn Pool) allotment Rules, 1972. Under rule S. R. 317- AM-12, respondent No. 5-could retain the house in question for two months only upto Seth March, 1986. He, however, did not vacate and thus became an unauthorised occupant. The petitioner brought this fact to the pointed notice of the authorities by writing several letters including Annexures P-2 to P-5. Ultimately the allotment in favour of respondent No. 5 was cancelled on 15th August, 1986. Ejectment proceedings were initiated against him before the Estate officer under the Public Premises passed Eviction of Unauthorized Oceupants) Act, 1971. The Estate Officer passed eviction order on 15th September, 1986. Copy of the order is Annexure P-6. Respondent No. 5 failed to vacate the said portion of the house even after the expiry of the period allowed by the Estate Officer. In August, 1986, the headquarters of respondent No. 5 was shifted from Karnal to which station he had been transferred to Chandigarh. On an application made by respondent No 5, respondent No. 3 regularised the allotment in his favour with retrospective effect from 30th September, 1986 by order, Annexure P-7 dated 17th November, 1986. It was also decided in the same order that respondent No. 5 shall pay normal licence fee for the period 1st February 1986 to 1st March, 1986, double the standard licence fee for the period 1st April, 1986 to 29th September 1986 and normal licence fee from 3th September, 1986 onwards. Further case of the petitioner is that a policy decision was taken by respondent No. 1 on 11th January, 1982 to the effect that where a half house of the type IX. X, XI, XII and XIII falls vacant, it would he allotted to the sitting allottee, who is staying in the shared accommodation for five years or had rendered 15 years government Service Para 1 (ii) of the said instructions was modified by letter dated 6th July, 1984 Annexure P-1. In accordance with the said policy decision, the petitioner was entitled to the allotment of the half portion occupied by respondent No. 5. The petitioner challenged the validity of the impugned regularization ordered by respondent No. 2 the, representation of respondent No. 5 and he claimed that he was entitled to the allotment of the said portion in accordance with the policy decision of the respondents.
(3.)A return was filed on behalf of respondents 1 to 3. The facts mentioned above have not been disputed. It was, however, stated that Smt. Krishna Walia wife of respondent No. 5 made a representation to the Chief Commissioner, Chandigarh, that her husband was undergoing treatment in P.G.I. as an indoor Patient 27th September, 1987 and that his headquarters had also been shifted to Chandigarh and that allotment in favour of her husband may be regularised. In exercise of the powers under S. R. 317-AM 26 and 27, the Home Secretary, respondent No. 2 passed the impugned order, Annexure P-7. Rule 26, referred to above, empowered the Chief Commissioner for reasons to be recorded in writing to relax all or any of the provisions of these rules in case of any government servant or residence or class of government servants or types of residences. Rule 27 authorised the Chief Commissioner to delegate all or any of the powers vested in him under these rules to any of the officers under his control. The Chief Commissioner had delegated the power under rule 26 in favour of the Home Secretary, respondent No. 2 and it was in exercise of that delegated power that the Home Secretary had passed the impugned order. It was, therefore, maintained that the order, in question, was valid and in accordance with the rules. In the alternative, it was stated that the date from which the order had been given effect was such that there was a gap of not more than two months, which is allowed in case of transfer and another six months which can be allowed by the Chief Commissioner in special cases on payment of twice the standard licence fee.