TMI Blog1996 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up to 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 described 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the waiting period for Type III and IV quarters by July '96 (when the position was said to have eased) was about 20 and 15 years respectively. This is not all. If one were to take a private accommodation rent, as an employee would be compelled to do if Government accommodation would not be come available, the rent to be paid in city like Delhi would eat away a large chunk of the carry-home pay. This explains the mad rush to get a Government quarter allotted anyhow, by hook or by crook. The persons empowered and authorised to make allotments, being aware of the pressing need tend to misuse their powers. When the misuse is within tolerable limits, no uproar is heard, no media publication is seen. But when the magnitude of misuse assumes a menacing proportion, outburst of various types become noticeable and then a scam surfaces. 3. The writ petition represents the scenario of what has come to be known as Housing Scam. A practising advocate of this Court, Shri Shiv Sagar Tiwari, claiming himself as a vigilant citizen, thought it fit to file this petition under Article 32 of the Constitution, having read a news item published in Indian Express of 5.9.1994 under the captio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ottees who could become liable for eviction if those high up in waiting list i.e. likely to get allotment on in-turn basis within five years, was given as 4672 by the Director, after leaving out those regarding whom payment of special licence fee only was contemplated. The order of 19.7.1996 required giving of public notice to all these 4672 allottees to enable them to represent as to why their allotments should not be cancelled. 6. For better appreciation of the various representations which had been received from these allottees, who came to be categorised in eleven categories by the Director, and bearing in mind the submissions of the learned Counsel assisting the Court that categorisation made by the Director was not exhaustive and knowing of the complaints by many that they had not been categorised correctly, the Court decided on 31.7.1996 to constitute a three-member Committee headed by Shri D.P. Gupta (the then Solicitor General for India) to further examine all the aspects of the matter and look into the complaints and suggestions received from any quarter and place before this Court their final recommendations within four weeks. Shri M.S. srinivasan, Joint Secretary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) Should private citizens (to with, journalists, freedom-fighters, artists and social workers) be accommodated in Government quarters? If so, on what terms. (6) Should political parties and other organisations be given allotment of Government quarters? If so, which of them and on what terms? (7) Should high holders of political office, like President, Vice-President and Prime Minister be accommodated in Government quarters after demitting of office by them? If so, on what terms? (8) At what rate penalty has to be realised from those who were unauthorisedly occupying the Government quarters? (9) Has the Government any power to waive charges which have become payable as per the Rules in vogue? (10) What should be done regarding those Government employees who had sub-let their premises; and what should be done as regards the occupants of these premises? (11) Whether apart from the general pool and tenure pool, if required to be retained, there should be other pools; and, if so, for whom and how the same should be regulated? (12) How to prevent in future the scam of the type at hand? We propose to deal with those questions seriatim. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II out-of-turn allottees: Affidavit of Commottee's Dte. of Estates recommendations Category-I 28 347 Category-II 223 578 Category-III 112 136 Category-IV 221 90 Category-V 28 95 Category-VI 407 179 Category-VII 170 636 Category-VIII 157 176 Category-IX 29 50 Category-X 100 156 Category-XI 898 599 2373 No. of persons who did not represent before the director and/or were not categorised in his affidavit 538 --------------------------------- Total 2911 2911 --------------------------------- 13. The Committee's recommendation is that apart from those who are in Category I, namely those who had already vacated whose number 347 and 217 respectively, those allottees placed only in Categories IV, IX and XI should be asked to vacate the Government quarters presently, under their possession. These categories are : (1) who were earlier occupying a lower type of accommodation and were allotted the present higher type on out-of-turn basis (Category IV); (2) those to whom allotments were made not only on out-of-turn basis but higher type of a house above to their entitlement (Category-IX); and (3) those who have not been included in any other category (Category XI). If we were to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out-of-turn allotment and has stated that these have been made on Special Compassionate Ground and has submitted that SR 317-B-25, which is on the subject of relaxation of rules stating that the Government may for reason to be recorded in writing relax all or any of the provisions of the rules in the Division in the case of any officer or residence or class of officers or type of residences has not provided any upper limit or ceiling as regards the number of cases for which rules may be relaxed. He has, however, referred to Office Memorandum No. 12029/(1)/90 POI.II dated 24.1.1990 of the Directorate of Estates which has stated that the maximum number of out-of-turn allotments shall be one cut of five . It has been pointed out that actual percentage of ad hoc allotment over the years has exceeded this limit. The learned Counsel has observed that an important feature relating to the report of the Committee is that no IAS or IFS officer has been recommended to be evicted. He has thereafter commented in general (in his exhausted written submissions) on each of the categories. We shall refer to the same at appropriate stage. The submission has also dealt with the quantum of licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1500 respectively. Type III is for the next slab namely, drawing monthly salary between ₹ 1500 to 2,800. Then comes Type IV for those drawing salary between 2,800 to 3,600 and so on. It is thus clear that a line has to be drawn somewhere. If Type III allottees have to be left out as contended, Type IV allottees could also urge to exclude them as well. Similar argument can be advanced by others. Therefore, it was thought fit by us from the beginning that we would leave out of consideration the two lowest rank of employees. To extend the economic criterion argument for Type III allottees would require us to consider whether Type IV should also be left out. We do not think it necessary to retrace from the decision taken earlier, which was based on financial status of the employees. 20. Another argument advanced by Shri Ramaswamy is that when eviction would take place from types IV and above, most of those evicted will be eligible for some sort of lower type of government accommodation (including hostels), which facility will not be available to Type III allottees. We do not think if this submission is factually correct because Type III allottees could get Type II, if they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tees which amount apparently would depend upon the period during which the incumbent has been occupation of out-of-turn allotment. Category-II (Error list) 25. As the persons in this category are those to whom allotments had merely been made in accordance with the existing policy but whose names had been erroneously included in the list of out-turn allottees as submitted by the Directorate, it is apparent that nothing is required to be done as to them. Category-III (Change from same type) 26. In this category are the allottees who were in occupation of a type of accommodation on out-of-turn basis, before the present allotment on in-turn basis in a different area/floor. So there is not much to be stated about this category. Category-IV (Change to higher type) 27. These allottees came to occupy higher type of accommodation on out-of-turn basis, having been earlier occupying a lower type on in-turn basis. These allottees shall have to move to the type to which they are entitled. This apart, they would have to pay such amount of licence fee which would become chargeable from them by force of this judgment because of their having occupied higher type of accommoda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter whereas the former senior will have to vacate. This submission is based on some hypothesis which may be correct or may not be. We would rather state that the employees included in this category by the Committee have to be those who by the date of the concerned report had in fact become entitled to allotment on in-turn basis, if that would not be so, their names would be taken out of this category and included in category-XI We cannot allow an out-turn allottee, say of 1995, to continue till 2000 on the supposition that he would in that year become entitled to in-turn allotment. Category-VIII (Infructuous cases) 31. Shri Ranjit Kumar has submitted as to this category that these allottees mostly belong to IAS, IPS and IFS, who have come on deputation from States and adjusted in the Tenure Pool. The learned Counsel has submitted that this Pool be abolished, being discriminatory. We would deal with this submission while expressing our view on Point No. 11. to foretell our conclusion, there is a rational basis, according to us, for creation of a Tenure Pool. So, we would accept what has been stated by the Committee as regards this category. We would, however, state that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vel in the Central Government; (2) medical and police personnel; (3) officials working in the personnel establishments of the Ministers of the Union Government/dignitaries of equivalent level under the Central Government. Judges of the Supreme Court/High Court, and those working in the Prime Minister's Office, Cabinet Secretariat and personnel establishments of the Secretaries to the Government of India; (4) CPWD officials up to the level of Executive Engineers working in Maintenance Divisions and Addl. DGs/Chief Engineers/Superintendent Engineers/Executive Engineers/Assistant Executive Engineers and other technical staff etc.; (5) officials working in the Doordarshan and All India Radio; and (6) Law Officers of the Government of India. 35. This is not all. Many of the allottees who had appeared in person before us had staked their claims to get included in this category. Those who so claimed are, among others, Under-Secretary to Taxation and Legislative Department; Deputy Director of Estates; Assistant Director to some Departments; Under-Secretary, Finance; Assistant Director, Investigation; Officer of RAW. 36. Having given our considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four weeks from the date on which the entitled in-turn accommodation or the lower type which was previously occupied is offered to the allottees entitled to an alternate accommodation will be offered the same, until the arrears on the basis of enhanced licence fee recommended herein are deposited within two months. In case the allottee does not deposit the dues within two months, the Directorate should take action for eviction against such persons and for the period beyond two months, the allottees should be liable to pay at the damages rate . has our approval. This would apply to those others also who have become liable for eviction by the force of this judgment. We state the same regarding the following recommendation in para 6.3: 6.3 The Committee recommends that in case any allottee in Categories-IV, IX ad XI is due for retirement in the next one year from 27.9.1996, he may be exempted from eviction in view of the exceptional hardship that is likely to be faced by him and his family. 41. This would apply to others also as stated above. It is, however, made clear that they would have to pay enhanced licence fee for the period of their occupation as per this judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it necessary to relegate the allottees to the Estate Officer for the reasons advanced by Shri Ramaswamy. The last forum for redressal of grievance being this Court, and this case being required to be decided by this Court as it was seized with air Article 32 petition, the argument relating to availability of right of appeal against the order of Estate Officer is not such which would have required undoing of the labour undertaken for more tan two years. 46. May it also be stated that it is well settled that requirements of natural justice can be moulded in such a way as to take care of two basic facets of this principle : (1) to make known the nature of accusation; and (2) to give opportunity to state the case, as accepted by this Court in Hira Nath v. Rajendra Medical College . In Subhash Chandra's case , it has been even held that no hearing is required to be given to the candidates before cancelling the examination where mass copying was indulged, if a case for the same was otherwise made out. Present is also a case of large scale out-of-turn allotments, and so, on principle no hearing at all might have been given. But we did not go to that extent and gave even p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (2), the allotment shall be deemed to be cancelled on the expiry of admissible concessional period, unless immediately on the expiry thereof the officer resumes duty in an eligible office in Delhi. 49. It would be appropriate to refer in this connection to FR 45-A, Sub-rule (III) on the subject of calculation of standard licence fee. Sub-rule (V) has visualised that in special circumstances for reasons to be recorded, the Central Government may, inter alia, by special order waive or reduce the amount of licence fee to be recovered from an officer. Then FR 45-A(12) has dealt with charging of damages from unauthorised occupants and recovery of licence fee where general pool accommodation is allotted to ineligible person/organisation. Under FR 45-A(3) in case of allotment of higher accommodation at request, the incumbent can be charged three times the flat rate of licence fee, or under FR 45-A, whichever is higher. 50. A combined reading of the aforesaid provisions finding place in the Fundamental Rules and Supplementary Rules would permit charging of even damages, where allotment is made to an ineligible person. The rate of damages was earlier double the standard licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the normal licence 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. 4. Should thee be any out-of-turn allotment? If the answer be in affirmative, how should it be regulated and what should be its limit? 54. The decision of the present Central Government on this aspect as finding place in the letter of the Cabinet Secretary dated July 18, 1996 bearing DO No. 1/44/1/96-CAV is that where it is considered absolutely necessary small number of out-of-turn allotments would be made, for which purpose also the Ministries/Departments would formulate clear rules and guidelines. During the course of hearing, on being desired to know as to why out-of-turn allotm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 55 are occupied by freedom-fighters : 45 by artists and 20 by social workers. Of these, all quarters except 30 meant for journalists are in occupation. So far as the freedom-fighters are concerned, as there would be virtually none left by now to claim allotment of the government quarters, those quarters occupied by them presently as and when would fall vacant would enure to the General Pool. If any freedom-fighter by an chance would come forward even now, it would be open to the concerned Ministry/Department to accommodate him in the 5 per cent out-of-turn allotment which we have permitted. 59. As to artists, in future the allotment to be made to them would be from the aforesaid 5 per cent discretionary quota. The quarters presently being occupied by the artists would, therefore, be placed under General Pool, as and when they would fall vacant on the possession by the present incumbent being handed over either because of his death or deciding not to live personally in Delhi or on the termination of the allotment period. 60. So far as social workers are concerned, we state that it would be permissible to allow occupation in future from the 5 per cent discretionary quota; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be more than what is being paid to the accredited journalists. 64. There are also available to us, the comments of the Central Government. The learned Addl. Solicitor General has requested for Court's view which the Government would adopt. In our opinion, there does not seem any justification to depart from the views of the Press Council, which have been arrived at after great deliberation. We have also borne in mind in this context the basic idea of creating a Press Pool as made known by the Communication of the Press Council dated 16.9.1996. The same was to provide accommodation to journalists, who are compulsorily transferred from outstation to Delhi by their newspapers, to enable them to get a breathing time to find out accommodation for themselves. It is apparent that free lancers do not belong to that category as they come to Delhi on their own will. 65. Free lancers being those who work on contractual basis for different newspapers have to be treated differently. From other journalists who have virtually fixed income and have to budget their expenditure accordingly. It is know that there are free lancers whose monthly income is substantial. This apart, as some fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 HRA that the allottees receives from his/her employer in addition to the licence fee fixed under the Government of India Fundamental Rule 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting of office by them? If so, on what terms? 69. 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. 8. At what rate penalty has to be realised from those who were unauthorisedly occupying the Government quarters? 70. 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 hi 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strenuous submissions made by Shri Jain to the contrary. 74. FR 5-A, inter alia, requires concurrence of the Ministry of Finance for any order made with the aid of that rule. This apart, the power under that rule becomes available in cases of undue hardship and relaxation is permissible to such extent and subject to such conditions as the Ministry/Department may consider necessary for dealing with the case in just and equitable manner. The Government of India's order relating to that rule, of which mention has been made in Swamy's Compilation of FRSR (Part-I General Rules) 12th Edn. Reprint 1995 at page 3 has stated that this power is intended to be invoked only in rare and exceptional cases . It is the admitted case that the Government did not resort to the provisions of FR 5A in any case at hand. 75. This requires us to consider the submission of the Addl. Solicitor General that the power of waiver is available under Article 73. On being questioned by the Court, Shri Ahmad had stated that this is a subjective power, which of course, must be exercised in just and fair manner. As assistance was sought to be derived from the decision in Rai Saheb Ram Javava's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 29.11.196 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. 81. 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. 11. Whether apart from the general pool and tenure pool, if required to be retained, there should be other pools; and, if so, for whom and how the same should be regulated? 82. Apart from the General Pool, at present there are a Tenure Pool and Press Pool. Though it has been the submission of Shri Ranjit Kumar t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e care of foul play of the present type to a great extent. The construction of more government quarters is urgently called for to put a check on misuse of power in this regard, because after all it is dearth of accommodation and resultant long waiting period which makes employees move around the power corridor for out-of-turn allotments. The shortage speaks for itself, as, for about 2.15 lakhs Central Government employees, approximately 65,000 quarters only are available. The concerned authorities have, therefore, to seriously consider the need for building more accommodation. Let a high powered committee, which may include one or two representative of the Employees' Association to instill confidence and inculcate a feeling of participation, be formed for this purpose and let the committee report within six months. We do hope the Government would definitely act as per the recommendations of the committee. It is also a matter for consideration whether in the various residential colonies coming up in different parts of the city under the aegis of Delhi Development Authority and such other bodies, some percentage of houses, say between 5-10, should be reserved for government emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as directed in para 52 would permit, to freedom fighters, eminent artists, social workers and any organisation or institution or other defined category of persons. The guidelines would be framed within three months from today. (8) The guidelines would be duly notified and while making allotment reasons would be given. List of such allottees shall be notified and circulated to all the Government Departments. Further, a yearly statement of such allotments would be laid on the table of the each House of the Parliament. (9) From the Press Pool, allotment would be made in terms of what has been stated in para 61 if the Government were to accept the same; and action for eviction, wherever required, would be taken by asking to vacate the premises latest by 31st March, 1998. (10) Freedom fighters, artists and social workers would not be entitled to allotment from General Pool, but could be granted allotment from the discretionary quota, if guidelines would permit. The present occupants would be dealt with according to what has been stated quo them in paras 53, 54 and 55 respectively. (11)(a) The political parties would be entitled to allotment as per the policy to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd are in lower rung of the hierarchy. It has not been possible to exclude them altogether from the purview of our consideration for reasons given. We have made them available such benefit regarded reasonable by us. 88. When grave illegality of great magnitude is required to be cured, at times a sort of surgery becomes necessary, and then suffering cannot be avoided altogether. In out attempt to cause the minimum suffering, we softened the painful process by reducing the number of those who would have to be evicted from 3768 (8778?) to 4672 first and now to around 2000. Of them, some may get excluded if the Medical Board required to be set up so recommends. 89. So, we have taken care of the hardship aspect to the extent deemed permissible, keeping in view the call of law and equity. Let it be said that we have to keep well in mind the injustice which had been caused to those who had been denied allotment despite having become entitled to the same. There can be no denial that equity leans heavily in their favour. To state shortly, what we have finally ordered is what we must have, to be true to our conscience and to the cause this Court had undertaken to serve. 90. Before c ..... 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