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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
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.
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