HANSARIA, J.
1. 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 subserve 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 [Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 997 : 1968 (1) ALLER 694: 1968 (2) WLR 924, HL]. This apart, as pointed out in United States v. Wunderlich 342 US 98 : 96 L Ed 113 (1951).
"Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some ... official, some bureaucrat ... Absolute discretion is a ruthless master. It is more destructive of freedom than any of mans other inventions." *
2. 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 up to 70 per cent; and on top of that 8768 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 has resented following out-of-turn allotments a galore.
3. 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 ones own home and hearth, shelter would be necessary - be it a house or even a pavement. This Court has dealt with cases of pavement-dwellers. The locus classicus in Olga Tellis [Olga Tellis v. Bombay Municipal Corpn., 1985 (3) SCC 545 [LQ/SC/1985/219] ] and the latest rendering is in Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan 1996 (10) JT 485]. 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 as permitted by FR 45. Having felt that the operation of these Rules may cause undue hardship, FR 5-A was inserted with effect from 6-2-1971 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 be 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 had come into force on 15-5-1963.
4. Delhi being the capital of the country is the seat of the Central Government and, is known, it employs a very large number of persons. As per the figures given in Delhi at a Glance : 1996, the number of Central Government employees in 1994-95 was around 2, 15, 000. As against this, the number of government quarters in Delhi is about 65, 000. The paucity of government accommodation is thus apparent and speaks for itself when it is noted that the waiting period for Types III and IV quarters by July 1996 (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 on rent, as an employee would be compelled to do if government accommodation would not become available, the rent to be paid in a 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 becomes noticeable and then a scam surfaces.
5. Writ petition represents the scenario of what has come to be knows as Housing Scam. A practicing advocate of this Court, Shri Shiv Sagar Tiwari, claiming himself as a vigilant citizen, though it fit to file this petition under Article 32 of the Constitution, having read a news item published in the Indian Express of 5-9-1994 under the caption "Chirag Tale Andhera" (Darkness under the lamp). That news was about a son dying as his father was forced to vacate a government quarter. According to the petitioner, the news item made it crystal clear that toutism was prevalent in the Ministry of Urban Development, because of which money was said to prevail over the cause of needy employees. In the petition Shri Tiwari mentioned about various other anomalies relating to sub-letting and favoritism. He prayed that the respondents be directed not to allot quarters of Types V to VIII to anyone during the pendency of the petition and to order investigation about the corruption in allotment.
6. The petition came up for preliminary hearing before a Bench presided by one of us (Kuldip Singh, J.) on 4-10-1994 when, after hearing Shri Tiwari in person, notice was ordered making it returnable within 8 weeks. The process which thus started more than two years back is seeing its winding up today. The journey has been long. We hall mention about some milestones only. The first is the imprint left by the order passed on 27-4-1995, which states about taking suo motu cognizance of the news item appearing in the Indian Express of 24-4-1995 under the heading "CAG finds Govt. allotment of houses arbitrary". Notice was issued to the Urban Development Ministry (the Ministry for short) through its Secretary requiring filing of an affidavit within 6 weeks. The Court also took notice of the fact that number of government houses were under the occupation of unauthorised allottees. The Ministry was directed to file list of all those houses along with the names of the occupants, the period and the authority under which they were occupying the accommodation. The Director of Estates (the Director) did so.
7. He has since then filed other affidavits as well in compliance with various orders passed by the Court from time to time. Having known from one of such affidavits of the Director that there were out-of-turn allottees in abundance in Type III and above, this Court required the Director by its order dated 14-2-1996 to publish the names of those who may become liable to be evicted, so that they might, if so wished, file objections. This was confined to those who, as per prima facie view of the Court, may become so liable out of 8768 (8778 ) allottees in the "Special Compassionate Ground" category. The number of allottees who could become liable for eviction if those high up in the 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.
8. 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 in the Ministry of Urban Affairs and Employment and Shri K. T. S. Tulsi, learned Additional Solicitor General, were requested to be the other members of the Committee. This three-member Committee submitted its report relating to Type IV and above on 26-9-1996, whereafter a need for giving hearing by the Court to those recommended to be evicted by the Committed having been felt, they were so noticed and were heard on 9-10-1996. The report relating to Type III was placed before the Court on 4-11-1996. The incumbents recommended to be evicted in this category were heard on 9-12-1996, which was the date notified for their appearance in person or through counsel. By that date, submissions of all concerned had also been heard on various facets involved in the case.
9. Before the points involved are noted and dealt with, it would be appropriate to mention about another milestone of the case which relates to issuance of notice on Shrimati Shiela Kaul, who was the Minister of Urban Development in the Central Government at the relevant time, as to why she should not be asked to pay such damages as this Court may deem just and proper for the illegal allotments made by her concerning 52 shops/stallsThis order is dated 11-10-1996 1996 (6) SCC 558]. After cause was shown by Shrimati Kaul and after all concerned were heard, she was asked to pay a sum of Rs. 60 lakhs (on all counts) as exemplary damages by order dated 8-11- 1996 (6) SCC 599 [LQ/SC/1996/1926] ]. The final milestone is this date on which this judgment is being delivered.
10. Let us revert back to the main theme, which is relatable to the facets required to be examined in the case. The same are
11. This is the most important question to be decided in the case and it, therefore, merits to be taken as first. The two Gupta Committee Reports (one relating to Types IV and above and the other concerning Type III) would be taken by us as the basic framework within which this issue would be decided. A perusal of the two Reports shows that the out-of-turn allottees have come to be pigeon-holed in eleven categories because of the special features relating to them. These categories are.(1) Who should face eviction .
(2) (a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question
(b) What should be done in case of those government employees who had occupied quarters on out-of-turn basis, but who are not required to be evicted by now To put it differently, if they are not required to be evicted, how much licence fee they should be asked to pay
(3) How should those who were denied allotment, despite the same having become due as per the Rules, be compensated
(4) Should there be any out-of-turn allotment If the answer be in affirmative, how should it be regulated and what should be its limit
(5) Should private citizens (to wit, 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 these questions in seriatim
Who should face eviction
"Category I : Vacated list
Category II : Error list
Category III : Change from same type
Category IV : Change to higher type
Category V : Medical cases within the existing policy
Category VI : Medical cases outside the existing policy
Category VII : Five-Year category
Category VIII : Infructuous cases
Category IX : Out-of-turn and above entitlement
Category X : Functional grounds
Category XI : Eviction cases." *
12. The Committee, has gone through the case of each of the out-of-turn allottees whose names are to be found along with other details in the two Reports which are dated 26-9-1996 (supplemented on 10-10-1996) and 31-7-1996. It unanimous recommendation relating to the placement of the allottees in the different categories as regards Types IV and above was initially as belowCategory of No. of allottees No. of allottees included.
allottees included by the by the Committee.
Dte. of Estates
Category I 236 347
Category II 90 151
Category III 18 5
Category IV 285 97
Category V 29 28
Category VI 334 34
Category VII 276 371
Category VIII 386 518
Category IX 60 58
Category X 159 87
Category XI 218 65
Total 2091 1761
13. The aforesaid recommendation came to be modified in the supplementary report dated 10-10-1996 as under.
"Category of No. of allottees No. of allottees included
allottees included by the by the Committee after
Committee in its taking into account the
report dated corrigendum
26-9-1996
Category I 347 347
Category II 151 154
Category III 5 5
Category IV 97 82
Category V 28 28
Category VI 34 36
Category VII 371 371
Category VIII 518-1* 526
Category IX 58 58
Category X 87 89
Category XI 65 64
Total 1761 1760
* Double entry." *
14. The Following is the Committees view regarding Type III out-of-turn allottees
Affidavit of Dte. of Committees
Estates recommendations
Category I 28 217
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 898 598
2373
No. of persons who did
not represent before
the Director and/or
were not categorised
in his affidavit. 538
2911 2911
15. The Committees recommendation is that apart from those who are in Category I, namely those who had already vacated whose number is 347 and 217, respectively, those allottees placed only 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 their entitlement (Category IX); and (3) those who have not been included in any other category (Category XI). If we were to go by the recommendation of the Committee, the number of these allottees would be 220 insofar as Types IV and above are concerned, and 739 for Type III. Here again, it deserves to be pointed out that the Committee has stated that these allottees may be ordered to be evicted "subject to the conditions that if they are entitled to any lower type of accommodation on in-turn basis or if they were previously occupying any lower type of accommodation, the eviction will not take place for four weeks from the date on which the entitled in-turn accommodation or the lower type which was previously occupied is offered to the allottee". This is what finds place in para 6.1 of the report dated 26-9-1996
16. The recommendations of the Committee have been severely criticised, not only by a large number of allottees, who appeared in person, but by Shri Sibal, learned Senior Advocate and Shri Ranjit Kumar, learned advocate, as well, both of whom were requested to assist the Court. It would be appropriate to first deal with the written submissions of S/Shri Sibal and Ranjit Kumar. According to Shri Sibal the unauthorised occupants could be one of the three classes : (1) those occupying a public premises without any entitlement; (2) those occupying a quarter higher than their entitlement; and (3) those who jumped the queue. The learned counsel has put in writing as to how cases of those employees who came to be allotted quarters on death or retirement of the previous incumbents, on medical ground including physically handicapped and special compassionate ground, occupants of departmental pool on transfer, personal staff of Ministers, Judges of the Supreme Court, Speaker of Lok Sabha/Chairman of Rajya Sabha should be dealt with. Shri Sibal has opined that because of the dearth in accommodation, persons belonging to so-called special categories like journalists, freedom fighters, artists etc., who are not on the pay-roll of the Government, should not be allowed government quarters. As to sub-letting Shri Sibals views are that those government servants who had sub-let the premises should be made liable to major penalties, apart from forfeiture of the allotment debarring them from feature allotment and charging of penal rent at the market rent from the date of allotment
17. Shri Ranjit Kumar has opened his written submission by referring to the brief background relating to 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 reasons 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 PO1. 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 out 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 exhaustive written submissions) on each of the categories. We shall refer to the same at an appropriate stage. The submission has also dealt with the quantum of licence fee to be charged
18. It may be pointed out that the aforesaid statements really find place in the affidavit of 23-19-1996 filed on behalf of the Union of India through the Ministry of Urban Affairs and Employment. In this affidavit it has been further stated that despite attempts to keep the number of ad hoc allotments to 20 per cent, the efforts did not succeed and the result was that "even persons who would have normally got the allotment who were entitled (or one below) types of residences after a very short period in the normal course, has also to approach the Minister for getting the allotment of such accommodation to them". In other words, the situation was that almost everybody had to approach the Minister for getting allotment of such accommodation to them". In other words, the situation was that almost everybody had to approach the Minister for getting allotment houses to him/her or else to choose the option of waiting for allotment of accommodation in-turn for indefinitely long periods of time. And this gave rise to the SCAM
19. The allottees who appeared in person had made four submissions in the main. The first was relating to wrong categorisation by the Committee. The second was to allow to continue in the allotted quarters due to serious illness of one or the other near relative living with the allottee. The third contention was to include them in Category X which would hereinafter refer to as "Functional Category". Finally, they pleaded for non-charging of any amount beyond the normal licence fee
20. There was one general submission on behalf of out-of-turn allottees appertaining to Type III quarters. The same was to exclude all of the them from the purview of our consideration. A strong plea for such exclusion was advanced by S/Shri G. Ramaswamy and S. Ray, learned Senior Advocates, appearing for Central Government Employees (Allottees of Government Residences) Welfare Association
21. We propose to deal with the written submissions of Shri Ramaswamy first. It has been stated therein that the economic conditions of these allottees, whose basic pay is less than Rs. 2800 per month (the majority drawing less than Rs. 2500 per month) is not much better than the condition of Types I and II allottees whose cases are not being considered by us; and so, we should exclude Type III allottees also. As to this submission, it may be pointed that Type I and II accommodation are meant for those drawing basic monthly salary of less than Rs. 950 and between Rs. 950 to 1500 respectively. Type III is for the next slab namely, drawing monthly salary between Rs. 1500 to 2800. Then comes Type IV for those drawing salary between Rs. 2800 to 3600 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 ranks 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
22. 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 were entitled to get government accommodation, on these quarters falling vacant in normal course. It may be pointed out that Type II quarters have two rooms (each being of 10 x 10 x 10). Similar is the position in Type III, except that their location in better
23. Shri Ramaswamys final submission in this regard is that even if Types IV and above allottees are evicted without alternative accommodation, they will get in-turn allotment within a few years, which will be denied to Type III evictee where the waiting list is "impossibly long". This again is not quite so, because insofar as Type III is concerned the waiting period by now is of 20 years, whereas for Type IV it is 15 years
24. We now propose to record our view on the categorisation made by the Committee, bearing in mind the criticism also made in this regard, to which we have already adverted. We shall do so qua each category separately
Category 1 (Vacated list)
25. The number of this category of allottees which was given as 236 (for Types IV and above and 28 (for Type III) by the Directorate of Estates has been mentioned as 347 and 217 respectively in the Committees two Reports. It seems this might be due to the fact that the out-of-turn allottees got accommodation elsewhere on in-turn basis and so they moved out from their earlier quarters. Be that as it may, all that has to be done with regard to this category of allottees is to realise from them such amount as would become payable by them because of their having been in out-of-run accommodation. The amount to be realised would be calculated on the basis of what we would be saying regarding this later
26. It would be appropriate to note the comment made by the Ministry of Urban Affairs and Employment (the Ministry) in the affidavit referred above which is that the 347 cases mentioned in the first report of the Committee include a whole variety of cases from those of junior officers who never have got "in-turn" allotments for many years to those of from senior ones who had got the allotments in normal course within few weeks/months of their applications. The Ministry, therefore, feels that all the cases cannot be clubbed together and each of them needs to be considered individually. We have not felt inclined to accept this suggestion inasmuch as what we have ordered is to pay only extra licence fee qua these allottees which amount apparently would depend upon the period during which the incumbent has been in occupation of out-of-turn allotmentCategory II (Error list)
27. As the persons in this category are those to who allotments had merely been made in accordance with the existing policy but whose names had been erroneously included in the list of out-of-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)
28. 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)
29. 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 judgement because of their having occupied higher type of accommodation though not entitled
Category V (Medical cases within the existing policy)
30. In this category the only infirmity had been that the proper procedure for allotment was not adopted, namely, examination of the case by the Special Accommodation Committee. This infirmity deserves to be ignored. Therefore, the only observation we propose to make is that if the government servant had been allotted a higher type of accommodation than due to him, the same shall be dealt as ordered qua Category IV. This is also the stand taken by the Ministry in its aforesaid affidavit
Category VI (Medical cases outside the existing policy)
31. We find no justification to accepted this category, because this includes medical cases outside the existing policy. Nobody, not even a Minister, can be allowed to depart from the policy : and so, despite the fact that some of the persons belonging to this category might by suffering from "serious cases of life-threatening diseases", as put by the Committee in its Report, we feel constrained to state that these incumbents have to be dealt with like those falling in Category XI. We, however give liberty to the Government to get their cases examined by a high-powered Medical Board to ascertain its views whether out-of-turn allotment to them was justified. This would be done within two months. Follow-up action would be taken as per the views of the Board. In future, no allotment, even on medical ground, would be made dehors the policyCategory VII (Five-year category)
32. In this written submissions, Shri Ranjit Kumar has stated that "5-Year Policy" which is the basis of including allottees in this category causes "double jeopardy" this has been explained by mentioning about two persons who came to Delhi in 1991, one of whom got out-of-turn allotment in 1992 and another in 1995. Shri Ranjit Kumar has contended that the first person may not get an in-turn allotment by 1997 and would, therefore, be required to vacate; whereas the second incumbent may be covered (because of easing of the position ) by the year 2000 on in-turn allotment basis and would, therefore, be permitted to continue till 2000 despite being an out-of-turn allottee. The result would be, stated Shri Ranjit Kumar, that a person who had been given out-of-turn allotment later and in that since being junior to the other, would continue to occupy the quarter 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 report concerned 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-of-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)
33. 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 out 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 officers who are entitled to accommodation from Tenure Pool would not be allowed to draw from the General Pool
34. We further state that we find no necessity to divide this category in two (8-A and 8-B) as requested in the Ministrys aforesaid affidavit, because the basis on which this classification is desired, namely becoming entitled on the date of application or thereafter, but on or before 30-6-1996, has not much significance for the case at hand
Category IX (Out-of-turn and above entitlement)
35. It is apparent that allottees of this category shall have not only to vacate but pay such amount towards licence fee because of getting allotment of a higher type as would be indicated later
Category X (Functional grounds)
36. This is the most controversial part of the Committees recommendation. We have said so because, as mentioned by Shri Ranjit Kumar in his written submissions, the persons who have been included in this category, inter alia, belong to CPWD and two persons of the Directorate of Estates. This has led to the criticism that the Committee had gone soft to the personnel of the Directorate. This apart, it has been submitted that there is no rational basis on which some selected type of persons have been included in this category. This would be apparent from what has been stated in para 6.4 of the first report of the Committee in which the persons to be included in this category have been specified. They are : (1) Doctors working in government hospitals and dispensaries but not those in administrative departments; (2) Police officers engaged in maintenance of law and order duties; (3) CPWD officials up to the level of Executive Engineer in sensitive areas/postings; (4) Key officials dealing with allotment of government accommodation; and (5) officers of sensitive organisations like Customs, Central Excise and Directorate of Enforcement as well as All India Radio and Doordarshan. There is no gainsaying that if deep thought is given some other category of persons could be said to be similarly situated. It is because of this that the view taken by the Ministry itself in the aforesaid affidavit is different. According to that, the types of persons to be included in his category should be : (1) Ministers/Judges/Secretaries to Government of India and senior functionaries of equivalent/higher level 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 Ministers Officer, Cabinet Secretariat and personnel establishments of the Secretaries to the Government of India; (4) CPWD officials up to the level of Executive Engineers/Superintendent Engineers/Executive Engineers/Assistant Executive Engineers and other technical staff etc.; (5) officials working in Doordarshan and All India Radio; and (6) Law officers of the Government of India
37. 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
38. Having given our considered thought to this aspect of the case, we are of the opinion that endorsement of allotment to this category of persons by not treating them as out-of-turn allottees, despite their having so as per the extant rule/policy, would constitute departure from the same, so, we do not accept this recommendation and would require eviction of persons included in this category as well
Category XI (Eviction cases)
39. We accept the Committees recommendations relating to the category and state that in the case of these persons all that is required to be decided by us is the quantum of licence fee they should be asked to pay for the period of their intervening "irregular period of occupation" as put by the Committee in its report. We shall indicate this quantum while dealing with Point No. 2
40. The star question as to who should face eviction is, therefore, answered by stating that it would be all those whose names find place in Categories IV, VI, IX, X, XI and such of Category VII who had not become actually entitled to in-turn allotment by the date(s) the respective reports were submitted. Those IAS, IPS and IFS and other officers who are occupying General Pool quarters, despite being eligible for quarters in the Tenure Pool, would also be evicted
41. A new list would be drawn up in accordance with this judgment within one month 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 receipt of the noticeProcedure for eviction
42. It is required to be stated as to how eviction should take place. The need for expressing views on this aspect has arisen because in the first report of Gupta Committee some observations have been made in this regard in paras 6.1 to 6.3. In the written submission filed by Shri G. Ramaswamy it has been prayed on behalf of the aforesaid Association that recommendation in paras 6.2 and 6.3 may be directed to be complied with. We have considered this, and the recommendation made in para 6.1 reading as below
"6.1 Allottees in Categories IV, IX and XI may be ordered to be evicted subject to the condition that if they are entitled to any lower type of accommodation on in-turn basis or if they were previously occupying and lower type of accommodation, the eviction will not take place for 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 and 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." *
43. 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 judgment
44. It may be added that the aforesaid would apply to all those who would become liable to eviction because of this judgment of ours. As to what has been recommended in para 6.2 which is to the effect that the eligibility for in-turn allotment as on the date on which the eviction order would be passed, instead of the cut-off date of 1-10-1993, may be redetermined by the Estate Officer, we have no objection; but this redetermination has to take place within six weeks from today
45. Before closing our discussion on this facet of the case, something is merited to be said about the procedure adopted by us. The need for this exists because of the submission of Shri G. Ramaswamy that the allottees may be left to be dealt by the Estate Officer because in that case against the order of the Estate Officer, a right of appeal is available; and also because the Estate Officer is required to give an individual hearing before passing any adverse order
46. 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 extraordinary 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. The hearing given by us on two occasions brought home eloquently to us that the out-of-turn allottees, who were notified and had appeared, had two principal contentions to advance - the same being the plea not to evict either on the ground of serious illness of one or the other close relatives, or to include them in the functional category. Nothing else could have really been pleaded not to evict them. These two aspects have been adequately borne in mind by us as would appear from the aforesaid discussion
47. It is because of this that we did not think it is necessary to relegate the allottees to the Estate Officer for the reasons advanced by Shri Ramaswamy. The last forum for redressal for grievance being this Court, and this case being required to be decided by the Court as it was seized with an 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 than two years
48. 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 Mishra v. Principal, Rajendra Medical College [ 1973 (1) SCC 805 [LQ/SC/1973/117] : 1973 AIR(SC) 1260]. In Subhas Chandra case [Bihar School Examination Board v. Subhas Chandra Sinha, 1970 (1) SCC 648 [LQ/SC/1970/117] : 1970 AIR(SC) 1269] 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 personal hearing to many among those who chose to appear pursuant to the notice published in the newspaper, which alone was feasible. 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 employees concerned were knowing much aliunde also
49. Natural justice is after "no unruly horse, no lurking land mine" as characteristically stated by Krishna Iyer, J. in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee [ 1977 (2) SCC 256 [LQ/SC/1977/67] : 1977 SCC(L&S) 226 : 1977 AIR(SC) 965]. Its unnatural expansion without reference to these realities can be "exasperating" as observed by the learned Judge. It is also worthwhile to remember, as stated in para 24 of S. L. Kapoor v. Jagmohan [ 1980 (4) SCC 379 [LQ/SC/1980/396] : 1981 AIR(SC) 136] that where on admitted or indisputable facts only one conclusion is possible, the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent go the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard
2. (a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question
50. S/R 317-B-12 has visualised that after accommodation has been accepted, liability to pay licence fee commences from the date of occupation or the eighth day from the day of receipt of allotment whichever is earlier. As per S/R 317-B-22 where, after an allotment has been cancelled or is deemed to be cancelled under any provision of the rules, the officer a concerned becomes liable to pay damages for house on occupation for residence etc. as determined by the Government from time to time, or twice the licence fee he was paying whichever is higher. S/R 317-B-11 deals with the period during which allotment subsists and the concessional period for further retention. Sub-rule (2) has mentioned the period for which residence can be retained on the happening of the events mentioned under Column I, and for the period mentioned in Column II. Sub-rule (3) has stated that where residence is retained under sub-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
51. 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 is 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
52. 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 fee, as per the decision taken in 1970; but from 1-9-1987 the rate is required to be calculated per sq.m. depending upon the type of accommodation. From 1-4-1991 this rate has to be Rs. 40 per sq.m. for Types I to IV and Rs. 45 for Types V and above
53. 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.m., as the case may be. We are, however, desisting from doing so and would rather require treating the cases at hand as overstay after cancellation of allotment. As already noted, in cases of overstay, twice the 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 the licence fee; for Types IV and above three times the licence fee
2. (b) What should be done in case of those government employees who had occupied quarters on out-of-turn basis, but who are not required to be evicted by now To put it differently, if they are not required to be evicted, how much licence fee they should be asked to pay
54. According to us, 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
3. How should those who were denied allotment, despite the same having due as per the Rules, be compensated
55. 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 a 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 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 compensation 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 there be any out-of-turn allotment If the answer be in affirmative, how should it be regulated and what should be its limit
56. The decision of the present Central Government on this aspect as finding place in the letter of the Cabinet Secretary dated 18-7-1996 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 allotment is at all required, the submission advanced on behalf of the Union of India was that there are a few officers, who by virtue of the duties discharged, have to be accommodated in government quarters to facilitate smooth functioning of the Government. These persons are who are attached to Prime Ministers Office and personnel of Cabinet Secretariat. It was also submitted that personal staff of the Chief Justice of India and Judges of the Supreme Court, so also of Union Ministers, Chief Election Commissioner and Election Commissioners are required to be similarly dealt with
57. The aforesaid does make out a case to permit minimal out-of-turn allotment. But then there can be no denial that this has to be regulated and transparency has to be maintained in such allotments also. Indeed, the aforesaid letter of the Cabinet Secretary itself mentions about the framing of rules in this regard. We would, thereof, state that the concerned Ministries/Departments would frame appropriate rules relating to out-of-turn allotment and duly notify the same. This would be done within three months from today. The allotments to be made shall have to be as per the rules framed
58. Coming to the question of limit of the out-of-turn allotment, we were informed by the Directorate that roughly 7000 quarters, out of about 65, 000 fall vacant every year. Though the submission on behalf of the Union of India was that 10 per cent of the quarters which become vacant every year should be allowed to be allotted on out-of-turn basis, according to us, 10 per cent would be on the higher side. There is almost a consensus that 5 per cent would meet the ends of justice. This would be so for each type of house, that is, 5 per cent for those Type III quarters which fall vacant in year, 5 per cent for Type IV quarters and so on
59. The above apart, while making the out-of-turn allotment speaking order would be passed giving the reasons. List of 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 each House of Parliament
5. Should private citizens (to wit, journalists, freedom fighters, artists and social workers) be accommodated in government quarters If so, on what terms
60. We have been apprised that presently 120 quarters have been earmarked for journalists; 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 enure to the General Pool. If any freedom fighter by any chance would come forward even now, it would by open to the Ministry/Department concerned to accommodate him in the 5 per cent out-of-turn allotment which we have permitted
61. 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 the 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
62. 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 so the present houses under their occupation would take under the General Pool, as and when they would fall vacant for reasons similar to those mentioned in case of artists
63. This leaves us for consideration the case of journalists. They are of two broad types : (1) working journalists as they are called; and (2) freelancers. Being concerned with journalists, it would be quite appropriate to refer first to the views of the Press Council of India on the subject. It would be enough if we note two communications of the Council. The first is a letter dated 10-7-1996 addressed by its Secretary to Shri Tulsi. This communication was taken note of by this Court in its order passed on 19-7-1996. A need was felt by the Court requiring a fresh examination of the issue as various questions were involved, to wit, whether the journalists occupying government accommodation for a long period be permitted to continue indefinitely or some period is to be fixed; whether the existing eligibility and criteria/conditions need modification; if so, in what manner. The Press Council made its views known accordingly through letter of its Secretary dated 6-8-1996 addressed to the Registrar General of this Court. This Communication is styled "Guidelines on allotment of General Pool accommodation to the accredited press correspondents and news cameramen in print and electronic media". The perusal of the same shows that different aspects of the matter were examined and deep thought was bestowed on the subject, as the guidelines cover 10 printed pages of full size
64. The Press Council is of the view that government accommodation from the Press Pool should be given only to the accredited journalists and news cameramen, which would cover journalists/news cameramen accredited by the Central Press Accreditation Committee. This will not include, among others the freelancers
65. The freelancers viewpoint, as represented before us by their learned counsel, was that it would not be fair and just to deny them a share in the Press Pool because they are as much a part of the media and discharge the same type of public duty which the accredited journalists do. It was also contended that many of the freelancers stationed in Delhi are economically not well-off to enable them to take on rent private premises. It was submitted that the earning of most of the freelancers would not be more than what is being paid to the accredited journalists
66. There are also available to us, the comments of the Central Government. The learned Additional Solicitor General has requested for Courts view which the Government would adopt. In our opinion, there does not seem any justification to depart from he 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 freelancers do not belong to that category as they come to Delhi on their own will
67. Freelancers 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 known.
