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TMI Blog2013 (7) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K. Kapoor, Rituraj Biswas, B. Balaji, R. Rakesh Sharma, B.P. Singh Dhakray, Shakti Singh Dhakray, Dharam Bir Raj Vohra, Asha Gopalan Nair, Mukesh Verma, Yash Pal Dhingra, Hemantika Wahi, Nandini Gupta, D. Mahesh Babu, Mayur R. Shah, Savita Devi, Amit K. Nair, Suchitra Hrangkhawl, M. Balasudodu, B.S. Banthia, Pragyan P. Sharma, Rupesh Gupta, Mandakini Sharma, Gautam Dhamija, Surendra Kr. Maurya, Bijan Kumar Ghosh, Rituraj Choudhary, Mayur Chaturvedi, Liz Mathew, Sana Hashmi, Manoj Saxena, Shwetank Sailakwal, Ram Krishna, Vipin Kumar Jain, Abhay Kumar, Uday Pratap Singh, V. Mohana, Suraj Singh, Pradeep Misra, Krishan Singh Chauhan, Ajit Kumar Ekka, Kartar Singh, Ranjan Dwivedi, B.B. Singh, Atishi Dipankar, G.N. Reddy, Abha R. Sharma, K.R. Sasiprabhu, Ravinder Kumar, Ashok Kumar Srivastava, Aruneshwar Gupta, Arun Kumar Sinha, Jatinder Kumar Bhatia, Anil Kumar Jha, Ashok Mathur, Anis Ahmed Khan, Ajit Pudussery, Bharat Sangal, Harinder Mohan Singh, K.K. Mohan, Kamini Jaiswal, Lily Isabel Thomas, Lakshmi Raman Singh, M.K. Garg, M.P. Jha and M.C. Dhingra, Advs., Manoj Swarup and Co., Naresh K. Sharma, P.N. Gupta, P.D. Sharma, Pramod Dayal, Praveen Jain, P. Narasimhan, R.D. Upadhyay, Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71 (in short 'the Act'), it is seen that it has not been effective enough in dealing with the eviction inasmuch as the competent Authority, i.e., Estate Officer has to first initiate proceedings and pass orders after hearing the parties and thereafter, one statutory appeal lies to the District Judge under Section 9 of the Act. After disposal of the appeal, people resort to writ proceedings thereby enjoying the scarce government accommodation. There are cases where the occupants are so affluent that they are willing to pay the penal/market rent and continue to occupy government quarters especially in metropolitan cities where such government quarters are a luxury situated in several acres of land within the heart of the city. 3. Before proceeding further, it is useful to find out the circumstances and basis on which the matter was agitated. One Shri S.D. Bandi filed the present appeal against the order dated 25.03.2004 passed by the High Court of Karnataka at Bangalore in W.A. No. 324 of 2002 whereby the Division Bench of the High Court while disposing of the appeal filed by the Respondents herein granted time to the Appellant herein to vacate the government quarter by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a direction to furnish the list of such unauthorized occupants of government quarters in the State capitals and Head quarters of Union Territories belonging to all the three limbs of the State, viz., the Legislature, the Executive and the Judiciary. This Court further directed to furnish all the details including names of such persons, details of quarters, period of unauthorized occupancy, steps taken for vacation and its result etc., and also that in case no steps have been taken, reasons for such inaction. 6. Pursuant to the above directions, the Union of India, all the States and Union Territories were represented by their counsel. In order to eliminate the problem and frame workable guidelines in addition to the existing statutory provisions, this Court appointed Mr. Ranjit Kumar, learned senior counsel and Ms. Anjani Aiyyagari, learned Counsel as amicus curiae to assist the Court. 7. Mr. Ranjit Kumar, learned amicus curiae, after highlighting various aspects, particularly, the persons in all the three wings occupying official premises/quarters/bungalows even after expiry of their term/period submitted that in addition to the statutory provisions, this Court has to fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny officer to live beyond the period prescribed. (b) Though this Court in one of its Orders in these proceedings had sought the opinion of the other States as to whether they would like to make amendments on similar lines vide Orders dated 24.07.2007 and 19.09.2007, The response of the various States was as under: a) Union of India said 'No' b) The Government of Bihar said 'No' c) The Government of Haryana said they would follow if the Union of India amends. d) The State of Andhra Pradesh said the matter was under consideration. e) The State of Madhya Pradesh said that it will do so if need arises. f) The State of Karnataka said that it was drafting rules for this purpose. g) The State of Maharashtra said that it has approved the amendment. h) The State of Uttarakhand said that the proposal is sent for amendment. i) The State of Nagaland said that it will take steps for the amendment. j) The State of Sikkim said 'No' k) The State of Mizoram said that it will bring about the amendment if the Supreme Court directs. l) The State of Manipur said that it had amended and sent it to the Union of India for approval. m) The U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . What is of significance is that while providing these rules, the government while allowing persons to continue to retain the Government accommodation does not provide for their eviction, again presumably because of the provisions of the Public Premises Act. However, as explained hereinabove on account of the proviso to Section 11(1), the Estate Officer cannot take any penal action against such unauthorized occupants except for going through the process of eviction. It would have been useful if the Government while promulgating such rules/orders/notifications had also provided for certain undertakings to be taken from the Government officer prior to his allotment to make sure that a person does vacate the quarters as soon as his period prescribed for its retention gets over. 11. After furnishing all these materials, he suggested the following guidelines to be issued by this Court which are as under: (i) At the time of allotment of the Government accommodation to the three wings of the Government, viz., the Legislature, the Executive and the Judiciary, an undertaking should be taken from the allottee that he/she shall vacate the premises within the prescribed period und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of,- (i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent, of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company. Section 2(g) defines unauthorized occupation as under: (g) unauthorised occupation , in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Section 4 of the Act speaks about issue of show cause notice before passing an order of eviction and Section 5 deals with eviction of unauthorized occupants. Section 7 relates to direction for payment of rent or damages in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or construction; or, when this is not known. (b) The present value of the residence including the value of site. 14. This Court had an occasion to consider the similar grievance/problem viz., availability of government accommodation in Delhi in Shiv Sagar Tiwari (supra). In this case, taking note of the fact that Delhi being the capital of the country and is also the seat of the Central Government and that the issue applies to a large number of persons, this Court analysed the entire issue relating to government accommodation and various rules applicable. Even in that matter, Mr. Ranjit Kumar, the present amicus curiae assisted this Court. Though the said order was confined to the National Capital Territory of Delhi, this Court has categorized various groups, viz., 'vacated list', 'arrears list', 'change from same type', 'change to higher type', 'medical cases within the existing policy', 'medical cases outside the existing policy', '5 year category', 'infructuous cases', 'out of turn and above entitlement', 'functional grounds', 'eviction cases', 'procedure for eviction' etc. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is initiated for eviction, disciplinary proceedings are initiated against the unauthorized occupant. In view of these provisions already existing in the rules further undertaking may not be necessary. 2. As per the existing provisions penal/market rent is recovered from the unauthorized occupant by raising bills on the employee or his/her department. In case of retiring employees, 10% of gratuity is withheld for adjustment of outstanding dues on account of licence fee and damages. The withheld amount of gratuity is released by the employer only after the retired employee obtains a No Demand Certificate from the Directorate of Estates after making payment for all the dues and submits the same to his/her employer. In case some retired employees do not turn up for No Demand Certificate , and dues on account of licence fee/damages remain unrecovered, action is initiated for recovery of dues as arrears of land revenue under the provisions of the Act. 3. It is submitted that Section 11(1) of the Act deals with three categories of unauthorized occupation - (i) A person who unlawfully occupies a public premises (ii) A person who having been lawfully in occupation of a public premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within one month. Alternate accommodation, if necessary, is allotted as per their entitlement by the House Committee concerned. The allotment to Members of Parliament is made by the respective House Committees, viz., Lok Sabha House Committee, Rajya Sabha House Committee. However, in the event of unauthorized occupation, the respective House Committees refer the case to the Directorate of Estates for initiating eviction proceedings under the provisions of the Act. Allotment to Members of Parliament is also made by the Directorate of Estates from the General Pool as per laid down guidelines. Hence, such a matter does not fall within the purview of breach of privilege. 6. Allotment of government accommodation to persons belonging to categories other than the three wings of the Government, viz., Journalists, eminent Artists, freedom fighters, social workers etc. Is made as per provisions in the guidelines framed as per direction of the Supreme Court in Writ Petition (C) No. 585/1984 titled Shiv Sagar Tiwari v. Union of India. These allotments are made out of the 5% discretionary quota allowed by the Supreme Court. In view of this, cancellation of such allotments already made and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate of Estates has filed an affidavit wherein it is highlighted that so far as the employees of the State Government, executive and judiciary are concerned, there is no objection in taking an undertaking as suggested by this Court. However, according to the government, the houses allotted to the members of the legislative assembly, members of parliament and ministers are concerned, the matter needs to be examined after taking views of the Secretary, Vidhan Sabha. It is also pointed out that the Government of Madhya Pradesh has issued separate rules called Madhya Pradesh Government Quarters Allotment Rules, 2000 which provides effective mechanism for eviction of unauthorized persons and recovery of rent, if any. 21. On behalf of the State of Andhra Pradesh, Principal Secretary to Government, General Administration (Accomm.) Department has filed a reply affidavit furnishing information as to the position in the State and the steps that are being taken by them. 22. On behalf of the State of Jammu Kashmir, Director, Estates Department has filed an affidavit informing about various steps being taken by them. He also submitted that the government is ready to comply with furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng provisions/rules, directions etc., the fact remains same and the persons from all the three branches either by their influence or by lengthy procedure as provided in the Act, continue to stay in the government accommodation by paying paltry amount either by way of rent or penalty. In these circumstances, we are of the view that in addition to the statutory provisions, there is need to frame guidelines for the benefit of both Union of India/States and Union Territories for better utilization of their premises. 28. The following suggestions would precisely address the grievances of the Centre and the State governments in regard to the unauthorized occupants: Suggestions: (i) As a precautionary measure, a notice should be sent to the allottee/officer/employee concerned under Section 4 of the PP Act three months prior to the date of his/her retirement giving advance intimation to vacate the premises. (ii) The Department concerned from where the government servant is going to retire must be made liable for fulfilling the above-mentioned formalities as well as follow up actions so that rest of the provisions of the Act can be effectively utilized. (iii) The principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under Section 9 of the Act should be exercised very reluctantly and it should be an exceptional practice and not a general rule. (xviii) Since allotment of government accommodation is a privilege given to the Ministers and Members of Parliament, the matter of unauthorized retention should be intimated to the Speaker/Chairman of the House and action should be initiated by the House Committee for the breach of the privileges which a Member/Minister enjoys and the appropriate Committee should recommend to the Speaker/Chairman for taking appropriate action/eviction within a time bound period. (xix) Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement. However, after recording sufficient reason(s), the time may be extended by another one month. (xx) Henceforth, no memorials should be allowed in future in any Government houses earmarked for residential accommodation. 29. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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