VERY IMPORTANT POINT
The out-of-turn allottees of the Government quarters who would become liable to eviction on account of their illegal occupation of the quarters would pay twice of the licence fee in so for as Type III quarters are concerned and three times of the licence fee for Type IV and above.

Headnote:(i) GOVERNMENT RESIDENCES -Allotment of Government Residences (General Pool in Delhi) Rules, 1963-FR 5-A and FR 45-Discretionary power relating to allotment of accommodation to government employees-Gross misuse of-Out of turn allotments-Challenged-Allotees who could become liable for eviction-A three member Committee constituted-Its unanimous recommendation relating to placement of allottees in different categories-Procedure for eviction-Compliance of principles of natural justice.
       Held : (1) All the persons whose names find place in the two reports of the Gupta Committee (as supplemented) under Categories IV, VI, IX, X, XI and such of VII who had not become actually entitled to in-turn allotment by the date(s) the two reports were submitted, would face eviction.
       (2) Those IAS, IPS, IFS and other officers who are occupying General Pool quarters, despite being eligible to the quarters in the Tenure Pool though not actually allotted, would also be evicted.
       (3) A new list would accordingly be drawn up within two months from today and the persons having become liable as per this list for eviction would be served individual notices within 30 days thereafter requiring them to vacate the quarters within 90 days of the notice. (Para 82)
       Further held : The arbitrary exercise of power by the authorities in a big way had led almost to the collapse of the whole system of allotment. There was a crisis like situation and this Court had to deal with an extra-ordinary situation and a special procedure had to be devised to do justice to all concerned. Natural justice being a flexible principle and we being concerned with the issue of out-of-turn allotment in thousands, it was felt by us that a collective hearing would meet the requirement of natural justice as the Committee had given individual hearing to those who appeared before it. This view was taken because the basic question to be determined was whether the allotment given to an employee was on out-of-turn basis or not. In case it were to be so, it is apparent that unless an exception is made, the allottee has no right to stay, no right to occupy the premises. (Para 44)
       All the allottees liable to be adversely affected being in Delhi and being well educated, newspaper publication was definitely sufficient to enable them to know what they must have been informed. Indeed, the concerned employees were knowing much aliunde also. (Para 46)
       (ii) LICENCE FEE-FR 45 and S/R 317-B-12-Government residences-Out of turn allotments-Order of eviction on account of their illegal occupation-Licence fee to be charged from those out of turn allottees-What should be done in case of those Government employees who had occupied quarters on out of turn basis but not required to be evicted by now?
       Held : An out-of-turn allottee is an ineligible person because he has not become eligible as per the rules governing the allotment. So, strictly speaking, an out-of-turn allottee is required to pay damages; and as in these cases we are concerned with allotments made after 1.4.1991, the rate of damages could be either Rs. 40/- or Rs. 45/- per sq. metre, as the case may be. We are, however, desisting from doing so and would rather require treating the cases at hand as over-stay after cancellation of allotment. As already noted. In cases of over-stay, twice of licence fee becomes payable. We would like to make a distinction regarding the licence fee to be charged depending upon the type of quarter allotted. For Type III we would require this to be twice of the licence fee : for Type-IV and above three times of the licence fee. (Para 46)
       Further held : These allottees should also be treated for the purpose of charging of licence fee in the same way as those who would be required to be evicted by the force of this judgment, i.e., as per what has been stated under Point 2(a) above. (Para 47)
       (iii) COMPENSATION-Government residences-Out of turn allotments-Government employees who were denied allotment, despite the same having due as per rules-How should they be compensated ?
       Held : There can be no denial that those Government employees did suffer great injustice who were denied allotments, despite the same having become due as per the rules, because of the out-of-turn allotments. The result was that this category of employees had to take such premises on rent for residential purpose which they could not afford. There can also be no denial that taking of private accommodation on rent in city like Delhi must have hit hard these Government employees. We are, therefore, of the firm view that these employees have to be suitably compensated. To enable this to be done, the additional licence fee (over and above the normal licencee fee) which would be collected in terms of this judgment from the out-of-turn allottees, has to be used to compensate those employees who were illegally and wrongly denied their allotments which had become due. The entire additional licence fee shall be kept in a separate fund which would be used for the purpose of compensating those who were illegally and unjustly denied allotments. To streamline this work a scheme shall be framed by the Ministry within a period of three months and the illegally denied employees would be paid as per the scheme within three months thereafter. (Para 48)
       (iv) GOVERNMENT RESIDENCES -Discretionary power relating to allotments of-Extent of discretionary quota-It would be 5 percent in each type of houses which would fall vacant in one year-This has to be regulated and transparency has to be maintained in such allotments also-Appropriate rules to be framed -While making out of turn allotment speaking order would be passed giving reasons-List of allottees shall be notified and circulated to all Government Departments-A yearly statement of such allotments would be laid on table of each House of Parliament. (Paras 49 to 52)
       (v) GOVERNMENT RESIDENCES -Should private citizens including journalists, freedom fighters, artists and social workers be accommodated in Government quarters?-Yes, from discretionary quota of 5 per cent-Guidelines laid down.
       Held : The accommodation will be given by the government from the Press Pool only to be accredited journalists and news cameramen. Accredited journalists/news cameramen will mean journalists/news cameramen accredited by the Central Press Accreditation Committee. They will not include: (1) those accredited journalists/news cameramen whose total emoluments exclusive of the conveyance allowance exceed Rs. 15,000/- p.m. : (ii) accredited editors or editors-cum-correspondents : (iii) Freelance journalists: (iv) journalists engaged on contract basis: and (v) accredited correspondents who are not Indian Nationals and/or who do not represent the Indian Media.
       (2) He/She does not own a house or flat, either as an owner or as a holder of power of attorney, in his/her own name or in the name of the family member or dependent in the National Capital Territory of Delhi or Noida, at the time of the allotment of accommodation from the pool.
       Notes :
        (i) The term family in this context shall have the same meaning as defined in Government of India Supplementary Rule 2.
        (ii) The transfer of ownership to spouse/sons/daughter and/or its sale to third party within a period of five years prior to the date of application/allotment, shall render the applicant ineligible for pool accommodation.
       (3) The accommodation will be allotted by a Screening Committee (Composition of which is given in para 17) according to seniority and pay limit as mentioned below :
       The accredited journalists will be divided into two categories namely: (i) those who are drawing income upto Rs. 7,000 p.m.; and (ii) those drawing income between Rs. 7,001/- to Rs. 15,000/- p.m.
       The monthly income would mean all emoluments excluding conveyance allowance.
       Two separate Lists namely, List I and List II , of the above categories (i) and (ii) of the journalists respectively would be prepared on the basis of the aforesaid income criteria and according to the seniority on the basis of the date of application for the accommodation.
       (4) Depending upon the availability, the accommodation will first be given to those in List I according to the seniority. If after satisfying the needs of all the journalists in List I, more units of accommodation are available, they would be given according to seniority to the journalists in List II.
       (5) The journalists in List I may occupy the accommodation so given for a maximum period of five years but no longer.
       Those in List II may occupy the accommodation so given for a maximum period of three years but no longer.
       The allottee shall not be eligible for allotment of accommodation from the pool more than once.
       (6) The allottee shall pay to the Government every month the amount of HSA that the allottees receives from his/her employer in addition to the licence fee fixed under the Government of India Fundamental Rule 45A. It shall be his/her responsibility to pay all the sums due as aforesaid to the government by the 10th of every month. Failure to pay the dues as aforesaid shall make him/her liable to be evicted forthwith.
       (7) Every allottee shall, by 31st March every year, intimate to the Directorate of Estates, Ministry of U.A. & E., the details of his emoluments including basic pay, all allowances including the H.R.A. and also particulars of his/her family member/dependent or self having acquired as a holder of power of attorney or otherwise, any accommodation in the National Capital Territory of Delhi as defined above.
       (8) The allottee shall vacate the accommodation within 30 days of the expiry of the period of allotment. (Para 61)
       (vi) GOVERNMENT RESIDENCES -Should political parties and other organisations be given allotment of Government quarters?-Should high holders of political office, like President, Vice President and Prime Minister be accommodated in Government quarters after demitting of office?-(Yes)
       Held : The present allotment to the political parties is subject to the guidelines framed in 1985, and 34 quarters are presently in their occupation. It was made known to us on behalf of the Directorate that the present thinking is to allow occupation of government accommodation by those parties only which are recognised as national parties by the Election Commission. As to the number of units to be allotted to each political party, it seems that presently there is a great variance inasmuch as the Congress (I) has been allotted as many as to premises. We are of the opinion that the Directorate should abide regarding the number, by the advice to be given by the Speaker of Lok Sabha and Vice Chairman of Rajya Sabha. Coming to allotment of government quarters to "other organisations", we find no justification for the same in view of great necessity of accommodation prevailing even presently. It would, however, be open to the Ministry/Department to allot quarter(s) to such an organisation from the discretionary quota, if the rules to be framed in this regard would permit the same. The organisation which would not get such allotment within three months from today would be required to vacate the premises under its occupation within one year. (Paras 62 & 63)
       Further held : Keeping in view the very high constitutional position occupied by the President, Vice President and Prime Minister, we feel no difficulty in stating that they should be accommodated in government premises after demitting of office by them, so that problem of suitable residence does not trouble them in the evening of life. what should be the terms of the same is a matter to be decided by the Government. (Para 64)
       (vii) GOVERNMENT RESIDENCES -Persons unauthorisedly occupying Government quarters-Penalty to be raised-Public Premises (Eviction of Unauthorised Occupants Act, 1971-Section 7 and Rule 8 of Rules, 1971.
       Held : The penalty which becomes payable by those who have either continued to occupy premises beyond the permitted period or have not vacated the premises despite cancellation of allotment, has to be as per the rules holding the field to which we have already referred. We may refer in this connection to section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 also, which deals with payment of rent or damages in respect of public premises. Its sub-section (2) has provided that where any person is, or has at any time been in unauthorised occupation of any public premises, the Estate Officer may, having regard to such principle of assessment of damages as may be prescribed, assess the damages on account of the use of the occupation. Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 has mentioned about the factors to be taken into consideration in assessing the damage. (Para 65)
       (viii) FR 5-A-Has Government any power to waive charges which have become payable as per Rules in vogue?-(No)-Waiver orders as passed have no sanction of law-While undertaking recovery, the same shall be ignored-Recovery proceedings would abide the order passed on 29-11-1996. (Paras 71, 74)
       (ix) GOVERNMENT RESIDENCES -Sub -letting -What should be done regarding those Government employees who had sub let their premises? -What should be done as regards occupants of these let premises?
       Held : Sub-letting has been made a gross misconduct under rule 15-A of the Central Civil Services (Conduct) Rules, 1965, as amended by notification dated August 16, 1996, which was published in the Government Gazette of August 19, 1996. By our order of 29.11.1996 we had desired drawing of disciplinary proceedings against the concerned employees, being of the view that subletting of government accommodation for pecuniary gain is a grave misconduct. Some further directions were also given in this behalf. The concerned authorities would see that those directions are complied with fully. As SRs. 317-B-20 and 21 have exhaustively dealt with sub-letting and consequences thereof and as sub-letters become unauthorised occupants, all that we require is that the Director would do the needful in this regard most expeditiously; more particularly, urgent steps would be taken to evict the unauthorised occupants whosoever they may be. (Paras 76 & 77)
       (x) GOVERNMENT RESIDENCES -Whether apart from general pool and tenure pool, if required to be retained, there should be other pools? -For whom and how the same should be regulated?
       Held : It seems to us that apart from these three pools, the quarters which are presently occupied by the Speaker of Lok Sabha, Vice-Chairman of Rajya Sabha, Judges of Supreme Court and High Court, Election Commissioners, Chairman, Law Commission of India, Chairman, Press Council of India and Chairpersons or Members of various other high statutory today manned by retired Supreme Court or High Court Judges should be earmarked for them and should become available subsequently to the concerned office holders only, and not to anybody else. The pooling of such accommodation may be necessary so far as the Judges of the Supreme Court and the High Court are concerned, in view of large number of quarters needed for them; and it would be appropriate if they are out in charge of the Registrar General of the Supreme Court or the Registrar of the High Court, as the case may be. (Para 79)

JUDGMENT

Hansaria, J.-The administrative law has of late seen vast increase in discretionary powers. But then, the discretion conferred has to be exercised to advance the purpose to suberve which the power exists. Even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. This proposition was rejected emphatically by the House of Lords in the landmark decision of Padfield, 1968 AC 997. This apart, as pointed out in United States v. Wunderlish1 :

"Law has reached its finest moments, when it has freed man from unlimited discretion of some ruler, some...official, some bureaucrat...Absolute discretion is a ruthless master. It is more destructive of freedom than any of man s other invention."

1A. These high principles of administrative law have been placed at the forefront because, as would appear from what is being stated later, in the present case there was gross misuse of discretionary power relating to allotment of accommodation to government employees. As against the discretionary quota of 10 per cent, it shot upto 70 per cent; and on top of that 8,768 houses were allotted by stating that the same was being done on "Special Compassionate Ground". This naturally led to uproar and serious objection from those who were denied accommodation as per rules. After the present petition was entertained and the Court went into the matter in depth, it was found that what had taken place was a scam, and a big scam at that. In the present case, we do not propose to say anything regarding the allegation that the allotments were made for extraneous consideration, as investigation relating to that is under progress. What we propose to examine rather is how best we can take care of illegality which had resulted following out-of-turn allotments a galore.

2. May we also observe that life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in urban areas is ordinarily at places away from one s own home and hearth, shelter would be necessary - be it a house or even a payment. This Court has dealt with cases of pavement dwellers. The locus classicus in Olga Tellis2, and the latest rendering is in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan3. In the case at hand, we are, however, not concerned with those who per force occupy pavements near the places of their work. The primary subject matter of the present petition is providing of residential accommodation in quarters built by the Government for its employees - highly or lowly paid. There are rules as to who would be entitled to which type of residence, which have been classified as Types I to IV, V(A), V(B), VI(A), VI(B), VII(A), VII(B) and VIII. The basis of entitlement is monthly emoluments of the employees. These are to be found in the Fundamental Rules (FR) which have been framed under the proviso to Article 309 of the Constitution; and Supplementary Rules (SR) made in permitted by FR 45. Having felt that the operation of these Rules may cause undue hardship. FR 5-A was inserted with effect from 6th February, 1971 stating that where any Ministry or Department of Government is of opinion that the operation of any of these rules may cause undue hardship to any person, that Ministry or Department, as the case may be, may by order, for reasons to be recorded in writing, relax the requirement of that rule to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner. The proviso to the Rule states that no such order shall be made except with the concurrence of the Ministry of Finance. Being concerned with the allotment of Government quarters situate in Delhi, it may be pointed out that the same is further subject to Allotment of Government Residences (General Pool in Delhi) Rules, 1963 which

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1996 Supreme(SC) 2227

Cases Referred (7)