advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, July 20, 2013

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short ‘the Act’),= occupation of government accommodation by members of all the three branches of the State, viz., the Legislature, the Executive and the Judiciary beyond the period for which the same were allotted. The occupation of such government houses/quarters beyond the period prescribed causes difficulty in accommodating other persons waiting for allotment and, therefore, the Government is at a loss on the one hand in not being able to accommodate those persons who are in need and on the other is unable to effectively deal with the persons who continue to occupy unauthorisedly beyond the period prescribed.= The following suggestions would precisely address the grievances of the Centre and the State governments in regard to the unauthorized occupants: Suggestions: (i) As a precautionary measure, a notice should be sent to the allottee/officer/employee concerned under Section 4 of the PP Act three months prior to the date of his/her retirement giving advance intimation to vacate the premises. (ii) The Department concerned from where the government servant is going to retire must be made liable for fulfilling the above-mentioned formalities as well as follow up actions so that rest of the provisions of the Act can be effectively utilized. (iii) The principles of natural justice have to be followed while serving the notice. (iv) After following the procedure as mentioned in SR 317-B-11(2) and 317- B-22 proviso 1 and 2, within 7 working days, send a show cause notice to the person concerned in view of the advance intimation sent three months before the retirement. (v) Date of appearance before the Estate Officer or for personal hearing as mentioned in the Act after show cause notice should not be more than 7 working days. (vi) Order of eviction should be passed as expeditiously as possible preferably within a period of 15 days. (vii) If, as per the Estate Officer, the occupant’s case is genuine in terms of Section 5 of the Act then, in the first instance, an extension of not more than 30 days should be granted. (viii) The responsibility for issuance of the genuineness certificate should be on the Department concerned from where the government servant has retired for the occupation of the premises for next 15 days and further. Giving additional responsibility to the department concerned will help in speedy vacation of such premises. Baseless or frivolous applications for extensions have to be rejected within seven days. (ix) If as per the Estate Officer the occupant’s case is not genuine, not more than 15 days’ time should be granted and thereafter, reasonable force as per Section 5(2) of the Act may be used. (x) There must be a time frame within how much time the Estate Officer has to decide about the quantum of rent to be paid. (xi) The same procedure must be followed for damages. (xii) The arrears/damages should be collected as arrears of land revenue as mentioned in Section 14 of the Act. (xiii) There must be a provision for compound interest, instead of simple interest as per Section 7. (xiv) To make it more stringent, there must be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises. (xv) Under Section 9 (2), an appeal shall lie from an order of eviction and of rent/damages within 12 days from the day of publication or on which the order is communicated respectively. (xvi) Under Section 9(4), disposal of the appeals must be preferably within a period of 30 days in order to eliminate unnecessary delay in disposal of such cases. (xvii) The liberty of the appellate officer to condone the delay in filing the appeal under Section 9 of the Act should be exercised very reluctantly and it should be an exceptional practice and not a general rule. (xviii) Since allotment of government accommodation is a privilege given to the Ministers and Members of Parliament, the matter of unauthorized retention should be intimated to the Speaker/Chairman of the House and action should be initiated by the House Committee for the breach of the privileges which a Member/Minister enjoys and the appropriate Committee should recommend to the Speaker/Chairman for taking appropriate action/eviction within a time bound period. (xix) Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement. However, after recording sufficient reason(s), the time may be extended by another one month. (xx) Henceforth, no memorials should be allowed in future in any Government houses earmarked for residential accommodation. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premise directly infringes the right of another. No law or directions can entirely control this act of disobedience but for the self realization among the unauthorized occupants. The matter is disposed of with the above terms and no order is required in I.As for impleadment and intervention.

              published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40526

                       REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION


                       1 CIVIL APPEAL NO. 4064 OF 2004




S.D. Bandi                                        .... Appellant(s)

            Versus

Divisional Traffic Officer, KSRTC & Ors.          .... Respondent(s)



                                      2



                               J U D G M E N T


P.Sathasivam, J.

1)     The  instant  case  relates   to   the  
occupation   of   government
accommodation by members of all the three branches of the State,  viz.,  the
Legislature, the Executive and the Judiciary beyond  the  period  for  which
the same were allotted.  The occupation of such  government  houses/quarters
beyond the  period  prescribed  causes  difficulty  in  accommodating  other
persons waiting for allotment and, therefore, the Government is  at  a  loss
on the one hand in not being able to accommodate those persons  who  are  in
need and on the other is unable to effectively deal  with  the  persons  who
continue to occupy unauthorisedly beyond the period prescribed.
2)    Despite the Public Premises (Eviction of Unauthorised Occupants)  Act,
1971 (in short ‘the Act’), it is seen that it has not been effective  enough
in dealing with the eviction inasmuch  as  the  competent  Authority,  i.e.,
Estate Officer has to first  initiate  proceedings  and  pass  orders  after
hearing the parties  and  thereafter,  one  statutory  appeal  lies  to  the
District Judge under Section 9 of the Act.  After disposal  of  the  appeal,
people resort to writ proceedings thereby  enjoying  the  scarce  government
accommodation. There are cases where the  occupants  are  so  affluent  that
they are willing to  pay  the  penal/market  rent  and  continue  to  occupy
government quarters especially in metropolitan cities where such  government
quarters are a luxury situated in several acres of land within the heart  of
the city.
3)    Before proceeding further, it is useful to find out the  circumstances
and basis on which the matter was agitated.
       One Shri S.D. Bandi filed the present appeal against the order  dated
25.03.2004 passed by the High Court of Karnataka at Bangalore  in  W.A.  No.
324 of 2002 whereby the Division Bench of the High Court while disposing  of
the appeal filed by the respondents herein granted  time  to  the  appellant
herein to vacate the government quarter by 30.04.2004.   The  appellant  was
working as a Driver in the Karnataka State Road Transport  Corporation  (for
short “the  Corporation”),  Mysore  Division  at  Mysore.   By  order  dated
31.05.1992, he was transferred to the Mangalore  Division  and  for  joining
the place of duty, he was relieved from  the  duty  of  Mysore  Division  on
12.06.1997.  Challenging the order of transfer, the appellant  herein  filed
Reference No.21 of 1997 before the  Industrial  Tribunal,  Mysore.   At  the
same time, he did join the place of posting at Mangalore but did not  vacate
the quarter.  On 19.07.1999,  the  competent  officer  under  the  Karnataka
Public Premises (Eviction of Unauthorised Occupants)  Act,  1974  passed  an
order of eviction against the appellant in KPP No.3 of  1998.   Against  the
said order, the appellant preferred an appeal  before  the  District  Judge,
which was  dismissed  and  the  order  of  eviction  was  confirmed.   Being
aggrieved, the appellant preferred a writ petition being W.P. No.  41762  of
2001 before the High Court of Karnataka which  was  allowed  on  10.12.2001.
In the meantime, on 03.07.2000, the Industrial Tribunal set aside the  order
of transfer and ordered the appellant to be restored to his  original  place
of work at  Mysore.   Against  the  said  order,  the  Corporation  filed  a
petition being Writ Petition No. 3249 of 2001 in which rule nisi was  issued
and the award of  the  Industrial  Tribunal  was  stayed.   Thereafter,  the
Corporation preferred Writ Appeal being No. 324 of 2002  against  the  order
dated 10.12.2001 in W.P. No. 41762 of 2001 which  was  allowed  by  impugned
order dated 25.03.2004 and the appellant herein was also directed to  vacate
the quarter by 30.04.2004.  Challenging the said order, the  present  appeal
has been preferred before this Court by way of special leave.
4)    By order dated 13.07.2004, after hearing all the parties,  this  Court
dismissed the appeal and directed the competent officer of the  Corporation,
Mysore Division to at once evict the appellant from the quarter.
5)    Pursuant to the said order, this Court, taking note of the  fact  that
in government quarters, unauthorisedly,  people  are  continuing  for  years
together to the detriment of the persons who  are  entitled  to  occupy  the
same and also that the same is the position in most of  the  State  capitals
and Head quarters of the Union Territories, issued notices to the  Union  of
India, all the States and the Union Territories with a direction to  furnish
the list of such unauthorized occupants of government quarters in the  State
capitals and Head quarters of Union Territories belonging to all  the  three
limbs of the State, viz., the Legislature, the Executive and the  Judiciary.
 This Court further directed to furnish all the details including  names  of
such persons, details of quarters, period of unauthorized  occupancy,  steps
taken for vacation and its result etc., and also that in case no steps  have
been taken, reasons for such inaction.
6)    Pursuant to the above directions, the Union of India, all  the  States
and Union Territories were  represented  by  their  counsel.   In  order  to
eliminate the problem and frame  workable  guidelines  in  addition  to  the
existing statutory  provisions,  this  Court  appointed  Mr.  Ranjit  Kumar,
learned senior counsel and Ms. Anjani Aiyyagari, learned counsel  as  amicus
curiae to assist the Court.
7)    Mr. Ranjit Kumar, learned amicus curiae,  after  highlighting  various
aspects,  particularly,  the  persons  in  all  the  three  wings  occupying
official premises/quarters/bungalows even after expiry of their  term/period
submitted that in addition to the statutory provisions, this  Court  has  to
frame certain workable guidelines.  He took us  through  various  provisions
of the Act, Fundamental Rules (FRs) applicable to the persons working  under
Central Government, various State enactments similar  to  the  Central  Act,
some of the provisions of the Indian Penal Code, 1860 (in short  “the  IPC”)
and earlier decisions, particularly, Shiv Sagar Tiwari vs.  Union  of  India
and others (1997) 1 SCC 444 which dealt with the similar  problem  confining
to National Capital Territory of Delhi.
8)    We propose to deal with all these aspects in detail hereinafter.
9)    Pursuant to the notice issued by this Court, Union of India  and  some
of the States submitted  their  views  and  suggestions  and  others  though
represented by counsel, did not convey their views by  filing  affidavit  or
report which we are going to discuss after quoting  the  report  of  learned
amicus curiae.
10)   Learned amicus curiae in his report submitted as under:-
      “II(a) Menace of unauthorized occupation is required to be dealt  with
      firmly and the charging of penal rent/market rent is not a  sufficient
      alternative.  In this connection, it  may  be  stated  here  that  the
      States of Orissa and Uttar Pradesh have amended  Section  441  of  the
      Indian Penal Code, 1860 (in short ‘the IPC’)  in  its  application  to
      their States by providing as under:-


           ….. or having lawfully  entered  into  or  upon  such  property,
           remains  there  with  the  intention  of   taking   unauthorized
           possession or making unauthorized use of such property and fails
           to withdraw such property or its possession or use, when  called
           upon to do so by that another person by notice in writing,  duly
           served on him, is said to have  committed  “criminal  trespass”.
           (Orissa)


           ….. or having entered into or upon such property, whether before
           or after the  coming  into  force  of  the  Criminal  Law  (U.P.
           Amendment) Act, 1961, with the intention of taking  unauthorized
           use of such property fails to withdraw from such property or its
           possession or use, when called upon to do  so  by  that  another
           person by notice in writing, duly served upon him, by  the  date
           specified in the notice, is said to commit “criminal tresspass”.
           (Uttar Pradesh)


      Thus, in these two States, the Governments are in a position  to  file
      criminal proceedings for the offence of criminal trespass in the  case
      of unauthorized occupation of Government accommodation.  This acts  as
      a deterrent for any officer to live beyond the period prescribed.


      (b)   Though this Court in one of its Orders in these proceedings  had
      sought the opinion of the other States as to whether they  would  like
      to make amendments on similar lines vide Orders dated  24.07.2007  and
      19.09.2007,  The response of the various States was as under:-
      a)    Union of India said ‘No’
      b)    The Government of Bihar said ‘No’
      c)    The Government of Haryana said they would follow if the Union of
           India amends.
      d)     The  State  of  Andhra  Pradesh  said  the  matter  was   under
           consideration.
      e)    The State of Madhya Pradesh said that it  will  do  so  if  need
           arises.
      f)    The State of Karnataka said that it was drafting rules for  this
           purpose.
      g)     The  State  of  Maharashtra  said  that  it  has  approved  the
           amendment.
      h)    The State of Uttarakhand said that  the  proposal  is  sent  for
           amendment.
      i)    The State of Nagaland said that  it  will  take  steps  for  the
           amendment.
      j)    The State of Sikkim said ‘No’
      k)    The State of Mizoram said that it will bring about the amendment
           if the Supreme Court directs.
      l)    The State of Manipur said that it had amended and sent it to the
           Union of India for approval.
      m)    The Union Territory of Chandigarh welcomed the amendment but was
           bound to follow the Union of India.
           The remaining other States did not respond before this Court.


      III)  Though the Act  provides  under  Section  11  for  offences  and
      penalty for unlawful occupation and makes the offence cognizable under
      Section 11A, it has been found as a matter of practice that the Estate
      Officers do not ordinarily take any  action  under  the  said  Section
      because of the proviso to Section 11(1) which reads as under:-


           “Provided that a person who, having been lawfully in  occupation
           of any public premises by virtue of any  authority  (whether  by
           way of  grant,  allotment  or  by  any  other  mode  whatsoever)
           continues to be  in  occupation  of  such  premises  after  such
           authority has ceased to be valid, shall not be  guilty  of  such
           offence.”

      This proviso gives the window for not prosecuting  a  person  who  had
      been allotted a premise but  continues  to  occupy  so  unauthorisedly
      after the authority to occupy the premises ceases to be valid.   Thus,
      the  unauthorized  occupant  continues  to   unlawfully   occupy   the
      government accommodation without fear of any prosecution.
      IV    It  has  also  been  seen  that  even  where  outstanding  rents
      including penal/market rent are there, there are persons continuing in
      occupation who do not pay the  amounts  and  there  is  difficulty  in
      recovering the same.  In this regard, apart from the provisions  under
      the Act, there are provisions under the Public Demand Recovery Act and
      Revenue Recovery Act which can be applied  for  the  recovery  of  the
      arrears as arrears of land revenue, because if  the  totality  of  the
      government houses in all the States of India are taken  into  account,
      the amount due works out to several crores.


      V.(a)  Fundamental   Rule   45-A   prescribes   for   the   Government
      accommodation  to  be  occupied  and  details  the  licence  fee  etc.
      including the continued occupation/retention  beyond  the  permissible
      period  and  guidelines  have  also  been  framed  for  that  purpose.
      However, these rules and guidelines do not state  anything  about  the
      eviction possibly on the premise that Public Premises  Act  will  take
      care of it.


      (b)   The Supplementary Rules in Chapter VIII Division 26  made  under
      Fundamental Rule 45 provide for rules for allotment of residences vide
      SR 311 to  316.   Similarly,  under  Chapter  26B,  the  Allotment  of
      Government Residences (General Pool in Delhi) Rules, 1963 are provided
      in SR 317.


           What is of significance is that while providing these rules, the
      government while allowing persons to continue to retain the Government
      accommodation does not provide for their  eviction,  again  presumably
      because of the provisions of the Public  Premises  Act.   However,  as
      explained hereinabove on account of the proviso to Section 11(1),  the
      Estate Officer cannot take any penal action against such  unauthorized
      occupants except for going through the process of eviction.


           It would have been useful if the Government  while  promulgating
      such  rules/orders/notifications  had  also   provided   for   certain
      undertakings to be taken from the  Government  officer  prior  to  his
      allotment to make sure that a person does vacate the quarters as  soon
      as his period prescribed for its retention gets over.”

11)   After furnishing all  these  materials,  he  suggested  the  following
guidelines to be issued by this Court which are as under:-
(i)   At the time of allotment of the Government accommodation to the  three
wings of the Government,  viz.,  the  Legislature,  the  Executive  and  the
Judiciary, an undertaking should be  taken  from  the  allotee  that  he/she
shall vacate the premises within  the  prescribed  period  under  the  rules
failing which he/she will be liable to disciplinary action  apart  from  any
other liability that he/she may incur.
(ii)  All arrears of rent including penal/market rent shall be recovered  as
arrears of land revenue.
(iii) The proviso to Section 11(1) of  the  Act  should  be  declared  ultra
vires as it is in  conflict  with  the  main  provisions  of  providing  for
offences and penalty for the unauthorized occupation of government houses.
(iv)  Any person who is in service and continues  to  unauthorisedly  occupy
the government accommodation  beyond  the  period  of  retention  should  be
suspended immediately, pending disciplinary action as  per  the  undertaking
given at the time of taking the Government quarter.
(v)   Since allotment of Government accommodation is a  privilege  given  to
the  Ministers  and  Members  of  Paliament,  the  matter  of   unauthorized
retention should be intimated to  the  Speaker/Chairman  of  the  House  and
action should be initiated by the House Committee  for  the  breach  of  the
privileges which a Member/Minister  enjoys  and  the  appropriate  Committee
should recommend the same  to  the  Speaker/Chairman  for  taking  deterrent
action.
(vi)  In view of paucity of Government accommodation, all the allotments  to
persons  belonging  to  categories  other  than  the  three  wings  of   the
Government should be henceforth immediately cancelled  and  discontinued  as
such allotments are made on discretion which is mostly abused.
(vii) All government houses which have been turned into memorials should  be
retrieved, memorials in Government houses should  be  removed  and  no  more
memorials should be allowed in future.
12)   Before considering the response of the Union of India, States and  the
Union Territories as to the suggestions of learned  amicus  curiae,  let  us
consider the relevant provisions of the Act applicable  to  the  persons  in
service.  The Act was  enacted  to  provide  for  eviction  of  unauthorized
occupants from public premises.  Section 2(e) of  the  Act  defines  `public
premises’ as under:
      “e) "public premises" means-
     
      (1) any premises belonging to, or taken on lease or requisitioned  by,
      or on behalf  of,  the  Central  Government,  and  includes  any  such
      premises which have been placed by that Government, whether before  or
      after  the  commencement  of  the   Public   Premises   (Eviction   of
      Unauthorised Occupants) Amendments Act, 1980, under the control of the
      Secretariat of either House of Parliament  for  providing  residential
      accommodation to any member of the staff of that Secretariat;
     
      (2) any premises belonging to, or taken on lease by, or on behalf of,-
     
      (i) any company as defined in section 3 of the Companies Act, 1956, in
      which not less than fifty-one per cent, of the paid up  share  capital
      is held by the Central Government or any company which is a subsidiary
      (within the meaning of that Act ) of the first-mentioned company.”
     
Section 2(g) defines “unauthorized occupation” as under:
      “(g) "unauthorised occupation", in relation to  any  public  premises,
      means the occupation by any person  of  the  public  premises  without
      authority  for  such  occupation,  and  includes  the  continuance  in
      occupation by any person of the public premises  after  the  authority
      (whether by way of grant or any other mode of transfer) under which he
      was allowed to occupy the premises has expired or has been  determined
      for any reason whatsoever.”

Section 4 of the Act speaks about issue of show cause notice before  passing
an order of eviction and Section  5  deals  with  eviction  of  unauthorized
occupants.  Section 7 relates to direction for payment of  rent  or  damages
in respect of public premises.  Section 9 speaks about  appeal  against  the
order of the Estate Officer.  In terms of Section 10, the  order  passed  by
the Appellate Authority shall be final and shall not be called  in  question
in any original suit, application or execution proceedings  whereas  Section
11 speaks about offences and penalty.
13)   Apart from the above provisions of the Act, for  the  benefit  of  the
persons working in Central service, the Central  Government  framed  certain
rules which are called “Fundamental Rules”.  Among other rules, FR  45,  45A
and 45B are relevant which are as under:-
      “F.R.45 The Central Government may make rules or issue  orders  laying
      down the principles governing the allotment to officers serving  under
      its administrative control, for use by them  as  residences,  of  such
      buildings owned or leased by it, or  such  portions  thereof,  as  the
      Central Government may make available for the purpose.  Such rules  or
      orders may lay down different principles for observance  in  different
      localities or in respect of different classes of residences,  and  may
      prescribe  the  circumstances  in  which  such  an  officer  shall  be
      considered to be in occupation of a residence.”


      “F.R. 45-A  I. Deleted
       II. For the purpose of the assessment of licence  fee,  the  capital
           cost of a residence owned by Government shall include  the  cost
           or value of sanitary, water supply  and  electric  installations
           and fittings; and shall be either -
           a) the cost of acquiring or constructing the residence including
              the  cost  of  site  and  its  preparation  and  any  capital
              expenditure incurred after acquisition  or  construction;  or
              when this is not known;
           b) the present value of the residence, including  the  value  of
              the site.”
      “F.R. 45-B. I. This rule applies to  Government  servants  other  than
      those to whom Rule 45-A applies  or  than  those  occupying  residence
      belonging to the Indian Railway or  rented  at  the  cost  of  railway
      revenues.


       II. For the purpose of sub-clause(b) Clause III, the capital cost of
           a residence owned by Government shall not include  the  cost  or
           value of such  special  services  and  installations  (including
           furniture, tennis courts and sanitary, water supply or  electric
           installations and fittings_ as it  may  contain;  and  shall  be
           either :–
           a)  the  cost  of  acquiring  or  constructing  the   residence,
              including the cost  of  site  and  its  preparation  and  any
              capital   expenditure   incurred   after    acquisition    or
              construction; or, when this is not known.
           b) The present value of the residence  including  the  value  of
              site.”




14)   This Court had an occasion to consider the  similar  grievance/problem
viz., availability of  government  accommodation  in  Delhi  in  Shiv  Sagar
Tiwari (supra).   In this case, taking note of the  fact  that  Delhi  being
the capital of the country and is also the seat of  the  Central  Government
and that the issue  applies  to  a  large  number  of  persons,  this  Court
analysed the entire issue relating to government accommodation  and  various
rules applicable.  Even in  that  matter,  Mr.  Ranjit  Kumar,  the  present
amicus curiae assisted this Court.  Though the said order  was  confined  to
the National Capital Territory of Delhi, this Court has categorized  various
groups, viz., ‘vacated list’,  ‘arrears  list’,  ‘change  from  same  type’,
‘change to  higher  type’,  ‘medical  cases  within  the  existing  policy’,
‘medical  cases  outside  the   existing   policy’,   ‘5   year   category’,
‘infructuous cases’,  ‘out  of  turn  and  above  entitlement’,  ‘functional
grounds’, ‘eviction cases’, ‘procedure for eviction’ etc.   After  analyzing
all these categories with facts  and  figures  as  well  as  the  provisions
applicable, this Court summed up various principles  and  issued  directions
for the authorities concerned.  Since we  are  considering  the  problem  of
such government accommodation/residential  quarters/bungalows  etc.  at  the
national level, the guidelines and  the  ultimate  decision  in  Shiv  Sagar
Tiwari (supra) framed  for  National  Capital  Territory  of  Delhi  may  be
immensely helpful.
15)   We have already referred to the suggestions  made  by  learned  amicus
curiae; now let us consider the response of Union of India, States and  some
of the Union Territories.  On behalf of the  Union  of  India,  Shri  Manish
Kumar Garg, Director of Estates, Ministry of Urban  Development,  Government
of India, Nirman Bhavan, New Delhi has filed  an  affidavit  on  16.11.2011.
Mr. P.P. Malhotra, learned Additional Solicitor  General,  took  us  through
the stand taken by the Ministry of Urban Development.  Since the  department
concerned has expressed its views about suggestions put forward  by  learned
amicus, we intend to incorporate the same which are as under:-
      “1. It is submitted that the allotment  of  government  house  to  the
      employees/officers  of  the  three  wings  of  the   government,   the
      Legislature, the  Executive  and  the  Judiciary  is  made  under  the
      provisions of allotment of  Government  Residences  (General  Pool  in
      Delhi) Rules, 1963 as amended from time to time.  These rules  provide
      for allotment, cancellation, retention, penalties for non-vacation  of
      quarters within the permissible retention  period.   It  is  submitted
      that the applicant has to be  given  an  undertaking  in  “Application
      Form”  itself  that  he/she  agrees  to  abide  by  the  Allotment  of
      Government Residences (General Pool in Delhi) Rules, 1963 also in  the
      Acceptance Form, the allottee undertakes to vacate  the  accommodation
      allotted to him/her within the stipulated period.  However, because of
      certain unavoidable circumstances which may be beyond the  control  of
      allottee, the allottee sometimes retains the  house  for  a  few  days
      beyond the permissible retention period  for  which  damages  rate  is
      charged vis-à-vis action for eviction under Public Premises  (Eviction
      of Unauthorised Occupants) Act, 1971.   Therefore,  the  provision  of
      disciplinary  may  not  be  desirable.   In   case   of   unauthorized
      occupation, in the case of subletting,  apart  from  charging  damages
      (penal rent)  and  action  is  initiated  for  eviction,  disciplinary
      proceedings are initiated against the unauthorized occupant.  In  view
      of these provisions already existing in the rules further  undertaking
      may not be necessary.


      2. As per the existing provisions penal/market rent is recovered  from
      the unauthorized occupant by raising bills on the employee or  his/her
      department.  In  case  of  retiring  employees,  10%  of  gratuity  is
      withheld for adjustment of outstanding dues on account of licence  fee
      and damages.  The withheld amount  of  gratuity  is  released  by  the
      employer  only  after  the  retired  employee  obtains  a  “No  Demand
      Certificate” from the Directorate of Estates after making payment  for
      all the dues and submits the same to his/her employer.  In  case  some
      retired employees do not turn up for “No Demand Certificate”, and dues
      on account  of  licence  fee/damages  remain  unrecovered,  action  is
      initiated for recovery of dues as arrears of land  revenue  under  the
      provisions of the Act.


      3.    It is submitted that Section 11(1) of the Act deals  with  three
      categories of unauthorized occupation – (i) A  person  who  unlawfully
      occupies a public premises (ii)   A person who having been lawfully in
      occupation of a public premises by virtue of authority etc., continues
      to be in occupation of such premises after such authority  has  ceased
      to be valid and (iii) A person who has been evicted  from  the  public
      premises under  the  Act  again  occupies  the  premises  without  any
      authority.  While Section 11(1) of the Act provides for punishment  to
      unlawful occupants, the proviso of the section deals with unauthorized
      occupants due to expiry of licence  or  allotment  period.   Both  the
      categories i.e., (i) and (ii)  are  not  comparable.   Therefore,  the
      provisions meet  the  requirements  to  deal  with  various  types  of
      unauthorized occupants and hence cannot be declared ultra vires.


      4.    A person who is in Government service  is  liable  to  surrender
      Government accommodation in case of his/her transfer to an  ineligible
      office at the same station or outside.  However, with a view to enable
      the government servant to make arrangements for settling  his  family,
      retention is permitted upto 8 months i.e. 2 months under SR-317-B  and
      6 months under SR-317-B-22.  In the case of retention of accommodation
      beyond the permissible retention period, the employee/family is liable
      to be evicted from the house under  the  provisions  of  the  Act  and
      damages are charged from the concerned employee.


            However, there may be a few cases where the allottee or  his/her
      family retains the accommodation beyond the permissible period due  to
      unavoidable circumstances, say, in the  case  of  regularization,  re-
      posting or severe illness  for  which  damages  is  charged  vis-à-vis
      action under the provisions of the  Act.   However,  in  the  case  of
      unauthorized occupation on account of subletting, the  Directorate  of
      Estates cancels the allotment and initiates eviction  proceedings  and
      the controlling department of the unauthorized allottee  proceeds  for
      disciplinary  action  including  placing  him/her  under   suspension.
      Therefore, the suggestion to put all  serving  unauthorized  occupants
      under suspension will be too harsh and does not fall within the  ambit
      of provisions of the Act.  Moreover, suspension is resorted  to  under
      certain specific circumstances as a matter  of  administrative  action
      under CCS (CCA) Rules.


      5.    Allotment to a Union Minister is  made  by  the  Directorate  of
      Estates, Ministry of Urban Development as per provisions of Ministers’
      Residences Rules, 1962.  The Ministers, on ceasing to be  a  Minister,
      are required to vacate the official accommodation  within  one  month.
      Alternate accommodation,  if  necessary,  is  allotted  as  per  their
      entitlement by  the  House  Committee  concerned.   The  allotment  to
      Members of Parliament is made  by  the  respective  House  Committees,
      viz.,  Lok  Sabha  House  Committee,  Rajya  Sabha  House   Committee.
      However, in the event of unauthorized occupation, the respective House
      Committees refer the case to the Directorate of Estates for initiating
      eviction proceedings under the provisions of the  Act.   Allotment  to
      Members of Parliament is also made by the Directorate of Estates  from
      the General Pool as per laid down guidelines.  Hence,  such  a  matter
      does not fall within the purview of breach of privilege.


      6.    Allotment of government accommodation to  persons  belonging  to
      categories other  than  the  three  wings  of  the  Government,  viz.,
      Journalists, eminent Artists, freedom fighters, social workers etc. is
      made as per provisions in the guidelines framed as  per  direction  of
      the Supreme Court in Writ Petition (C) No. 585/1984 titled Shiv  Sagar
      Tiwari vs. Union of India.  These allotments are made out  of  the  5%
      discretionary quota allowed by the Supreme Court.  In  view  of  this,
      cancellation of such allotments already made  and  discontinuation  of
      such further allotment may not be desirable.


      7.    The government houses which have been turned into memorial  were
      allotted on  lease  to  respective  Trusts/Societies  by  the  Cabinet
      Committee on Accommodation in accordance with  the  guidelines  framed
      for the purpose as per direction of the Supreme Court in C.P. (W)  No.
      585/1994 titled Shiv Sagar Tiwari  vs.  Union  of  India.   The  lease
      agreement has been executed between the Government of  India  and  the
      respective Trusts etc. for specified period.  It would, therefore,  be
      violation of the agreement if such houses  are  retrieved  before  the
      lease period is over.  The guidelines formulated in November 2000  put
      complete ban on the conversion of Government bungalows into  memorials
      of the departed leaders.  As such, the suggestion given by the  amicus
      curiae has already been taken care of.  The present guidelines provide
      for allotment of accommodation to non-Government  organizations  which
      are  working  for  national  interest  or  for  meeting  international
      obligations.”


16)   It is clear from the response  submitted  by  the  Ministry  of  Urban
Development that in view of various provisions in the Act for taking  action
against unauthorized occupants, existing provisions would  suffice.   It  is
also clear that in respect of retiring employees, without  clearing  arrears
of rent/penal/ market rent and No Due Certificate from  the  Directorate  of
Estates, the retirement  benefits  will  not  be  settled  and  as  per  the
provisions, 10% of  the  gratuity  is  to  be  withheld  for  adjustment  of
outstanding dues.
17)   The Department also highlighted  that  for  allotment  to  Members  of
Parliament, it is the “House of Committee”  which  controls  such  allotment
and no further guidelines are required for the same.
18)   It was also pointed out that for the persons from special  categories,
viz., journalists, eminent artists, freedom fighters, social  workers  etc.,
guidelines framed by this Court earlier, govern the  issue  and  no  further
direction is required.
19)   On behalf of the State of Sikkim, the Principal Resident  Commissioner
has filed an affidavit highlighting the position and the procedure  that  is
in vogue in the State.  He  emphasized  that  the  Government  never  allows
anyone  to  overstay  including   unauthorized   retention   of   government
accommodation by the Ministers and Members of Parliament.
20)   On behalf of the Government of Madhya Pradesh, Directorate of  Estates
has filed an affidavit  wherein  it  is  highlighted  that  so  far  as  the
employees of the State Government, executive and  judiciary  are  concerned,
there is no objection in taking an undertaking as suggested by  this  Court.
However, according to the government, the houses allotted to the members  of
the  legislative  assembly,  members  of  parliament   and   ministers   are
concerned, the matter needs  to  be  examined  after  taking  views  of  the
Secretary, Vidhan Sabha.  It is also pointed  out  that  the  Government  of
Madhya Pradesh has issued separate rules called  Madhya  Pradesh  Government
Quarters Allotment  Rules,  2000  which  provides  effective  mechanism  for
eviction of unauthorized persons and recovery of rent, if any.
21)   On behalf of the State  of  Andhra  Pradesh,  Principal  Secretary  to
Government, General Administration (Accomm.) Department has  filed  a  reply
affidavit furnishing information as to the position in  the  State  and  the
steps that are being taken by them.
22)   On  behalf  of  the  State  of  Jammu  &  Kashmir,  Director,  Estates
Department has filed an affidavit informing about various steps being  taken
by them.  He also submitted that the government  is  ready  to  comply  with
further/additional directions being issued by this Court.
23)    Union  Territory  of  Puducherry  through  its  Secretary   (Housing)
highlighted the availability of government quarters, number of  unauthorized
occupants and the procedure being followed for eviction  of  those  persons.
He also informed this Court that all the directions and instructions of  the
Government  of  India  are  being  followed  in  the  Union   Territory   of
Puducherry.
24)   On behalf of the  State  of  Maharashtra,  Deputy  Secretary,  General
Administration  Department   filed   an   affidavit   highlighting   various
instructions issued to the competent  authority  dealing  with  unauthorized
occupants.  He  also  furnished  a  statement  showing  the  eviction  cases
pending with the competent authority  and  also  the  cases  in  which  rent
recovery is going on.
25)   On behalf of the State  of  Haryana,  Special  Secretary  Coordination
from  the  office  of  Chief  Secretary  to  Government,  Haryana  filed  an
affidavit conveying their comments  on  the  propositions  made  by  learned
amicus curiae.
26)   On behalf of the State of Uttar Pradesh,  Assistant  Estates  Officer,
Government of U.P. submitted his response  as  to  the  suggestions  of  the
learned amicus  curiae.   He  also  highlighted  that  necessary  amendments
should be made in their allotment rules.  According to him,  in  respect  of
arrears of rent and damages, the rules enable them to recover  the  same  as
arrears of land revenue.  The State  has  also  highlighted  that  stringent
provision, viz., Section  11  of  the  U.P.  Public  Premises  (Eviction  of
Unauthorised Occupants) Act, 1972 is in force.  As per the  said  provision,
if any person who has been evicted from any public premises  again  occupies
the same without authority for such occupation, he shall be punishable  with
imprisonment for a term which may extend to 1 year or fine which may  extend
to Rs. 1,000/- or with both.  He also highlighted  the  allotment  procedure
in respect of journalists, the legislature, the executive, the judiciary  as
well as memorials available in their State.
27)   As per the details furnished by  learned  amicus  curiae  and  various
comments made by Union of India as well as some of the States and the  Union
Territories, it cannot be said that at present  there  is  no  machinery  to
check eviction of unauthorized occupants as well as recovery of  arrears  of
rent including penal charges.  However, it is not in dispute that  in  spite
of existing provisions/rules, directions etc., the  fact  remains  same  and
the persons from all the three branches either  by  their  influence  or  by
lengthy  procedure  as  provided  in  the  Act,  continue  to  stay  in  the
government accommodation by paying paltry amount either by way  of  rent  or
penalty.  In these circumstances, we are of the view  that  in  addition  to
the statutory provisions, there is need to frame guidelines for the  benefit
of both Union of India/States and Union Territories for  better  utilization
of their premises.
28)   The following suggestions would precisely address  the  grievances  of the  Centre  and  the  State  governments  in  regard  to  the  unauthorized occupants:
Suggestions:

  (i)   As  a  precautionary  measure,  a  notice  should  be  sent  to  the allottee /officer/employee concerned under Section  4  of  the  PP  Act  three months prior to the date of his/her  retirement  giving  advance   intimation to vacate the premises.
(ii)  The Department concerned from where the government  servant  is  going to retire must be  made  liable  for  fulfilling  the  above-mentioned  formalities as  well  as  follow  up  actions  so  that  rest  of  the   provisions of the Act can be effectively utilized.
(iii) The principles of natural justice have to be  followed  while  serving  the notice.
(iv)  After following the procedure as mentioned in SR 317-B-11(2) and  317-   B-22 proviso 1 and 2, within 7 working days, send a show cause  notice  to the person concerned in view of the advance intimation  sent  three  months before the retirement.
(v)   Date of appearance before the Estate Officer or for  personal  hearing    as mentioned in the Act after show cause notice  should  not  be  more   than 7 working days.
(vi)  Order of eviction  should  be  passed  as  expeditiously  as  possible   preferably within a period of 15 days.
(vii) If, as per the Estate Officer,  the  occupant’s  case  is  genuine  in  terms of Section 5  of  the  Act  then,  in  the  first  instance,  an  extension of not more than 30 days should be granted.
(viii)      The responsibility for issuance of the  genuineness  certificate  should be on  the  Department  concerned  from  where  the  government  servant has retired for the occupation of the  premises  for  next  15  days and further.  Giving additional responsibility to the  department concerned will help in speedy vacation of such premises.  Baseless  or   frivolous applications for extensions have to be rejected within seven  days.
(ix)  If as per the Estate Officer the occupant’s case is not  genuine,  not  more than 15 days’ time should be granted and  thereafter,  reasonable   force as per Section 5(2) of the Act may be used.
(x)   There must be a time frame within how much  time  the  Estate  Officer  has to decide about the quantum of rent to be paid.
(xi)  The same procedure must be followed for damages.
(xii) The arrears/damages should be collected as arrears of land revenue  as  mentioned in Section 14 of the Act.
(xiii)      There must be a provision  for  compound  interest,  instead  of    simple interest as per Section 7.
(xiv) To make it more stringent, there must be some provision  for  stoppage   or reduction in the monthly pension till the date of vacation  of  the  premises.
(xv)  Under Section 9 (2), an appeal shall lie from  an  order  of  eviction   and of rent/damages within 12 days from the day of publication  or  on  which the order is communicated respectively.
(xvi) Under Section 9(4), disposal of the appeals must be preferably  within  a period of 30  days  in  order  to  eliminate  unnecessary  delay  in   disposal of such cases.
(xvii) The liberty of the appellate officer to condone the delay  in  filing  the appeal under Section  9  of  the  Act  should  be  exercised  very  reluctantly and it should be an exceptional practice and not a general  rule.
(xviii) Since allotment of government accommodation is a privilege given  to  the Ministers and Members of Parliament, the  matter  of  unauthorized  retention should be intimated to the Speaker/Chairman of the House and  action should be initiated by the House Committee for  the  breach  of   the privileges which a  Member/Minister  enjoys  and  the  appropriate
    Committee  should  recommend  to  the  Speaker/Chairman   for   taking appropriate action/eviction within a time bound period.
(xix) Judges of any forum shall  vacate  the  official  residence  within  a period of  one  month  from  the  date  of  superannuation/retirement.
      However,  after  recording  sufficient  reason(s),  the  time  may  be  extended by another one month.
(xx)   Henceforth,  no  memorials  should  be  allowed  in  future  in   any  Government houses earmarked for residential accommodation.
29)   It is unfortunate that the  employees,  officers,  representatives  of
people and other high  dignitaries  continue  to  stay  in  the  residential
accommodation provided by the Government of India though they are no  longer
entitled to such accommodation.  
Many of such  persons  continue  to  occupy
residential accommodation commensurate  with  the  office(s)  held  by  them
earlier and which are beyond their present  entitlement.   
The  unauthorized
occupants must recollect that rights  and  duties  are  correlative  as  the
rights of one person entail the duties of another person similarly the  duty
of one person entails the rights of another  person.   
Observing  this,  the
unauthorized occupants must appreciate that their act of overstaying in  the
premise directly infringes the right of another.  
No law or  directions  can
entirely control this act of  disobedience  but  for  the  self  realization
among the unauthorized occupants.  
The matter is disposed of with the  above
terms and no order is required in I.As for impleadment and intervention.

                            ...…………….………………………J.


                                 (P. SATHASIVAM)










                            .…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
JULY 05, 2013.
-----------------------
29


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.