Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4064 OF 2004

S.D. Bandi .... Appellant(s)

Versus

Divisional Traffic Officer, KSRTC & Ors. .... Respondent(s)

J U D G M E N T

P.Sathasivam, J.

1)The instant case relates to the occupation of

government accommodation by members of all the three

branches of the State, viz., the Legislature, the Executive and

the Judiciary beyond the period for which the same were

allotted. The occupation of such government

houses/quarters beyond the period prescribed causes

difficulty in accommodating other persons waiting for

allotment and, therefore, the Government is at a loss on the

one hand in not being able to accommodate those persons

1

Page 2 who are in need and on the other is unable to effectively deal

with the persons who continue to occupy unauthorisedly

beyond the period prescribed.

2)Despite the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (in short ‘the Act’), it is seen that it has

not been effective enough in dealing with the eviction

inasmuch as the competent Authority, i.e., Estate Officer has

to first initiate proceedings and pass orders after hearing the

parties and thereafter, one statutory appeal lies to the

District Judge under Section 9 of the Act. After disposal of

the appeal, people resort to writ proceedings thereby

enjoying the scarce government accommodation. There are

cases where the occupants are so affluent that they are

willing to pay the penal/market rent and continue to occupy

government quarters especially in metropolitan cities where

such government quarters are a luxury situated in several

acres of land within the heart of the city.

3)Before proceeding further, it is useful to find out the

circumstances and basis on which the matter was agitated.

2

Page 3 One Shri S.D. Bandi filed the present appeal against the

order dated 25.03.2004 passed by the High Court of

Karnataka at Bangalore in W.A. No. 324 of 2002 whereby the

Division Bench of the High Court while disposing of the

appeal filed by the respondents herein granted time to the

appellant herein to vacate the government quarter by

30.04.2004. The appellant was working as a Driver in the

Karnataka State Road Transport Corporation (for short “the

Corporation”), Mysore Division at Mysore. By order dated

31.05.1992, he was transferred to the Mangalore Division

and for joining the place of duty, he was relieved from the

duty of Mysore Division on 12.06.1997. Challenging the

order of transfer, the appellant herein filed Reference No.21

of 1997 before the Industrial Tribunal, Mysore. At the same

time, he did join the place of posting at Mangalore but did

not vacate the quarter. On 19.07.1999, the competent

officer under the Karnataka Public Premises (Eviction of

Unauthorised Occupants) Act, 1974 passed an order of

eviction against the appellant in KPP No.3 of 1998. Against

the said order, the appellant preferred an appeal before the

3

Page 4 District Judge, which was dismissed and the order of eviction

was confirmed. Being aggrieved, the appellant preferred a

writ petition being W.P. No. 41762 of 2001 before the High

Court of Karnataka which was allowed on 10.12.2001. In the

meantime, on 03.07.2000, the Industrial Tribunal set aside

the order of transfer and ordered the appellant to be

restored to his original place of work at Mysore. Against the

said order, the Corporation filed a petition being Writ Petition

No. 3249 of 2001 in which rule nisi was issued and the award

of the Industrial Tribunal was stayed. Thereafter, the

Corporation preferred Writ Appeal being No. 324 of 2002

against the order dated 10.12.2001 in W.P. No. 41762 of

2001 which was allowed by impugned order dated

25.03.2004 and the appellant herein was also directed to

vacate the quarter by 30.04.2004. Challenging the said

order, the present appeal has been preferred before this

Court by way of special leave.

4)By order dated 13.07.2004, after hearing all the parties,

this Court dismissed the appeal and directed the competent

4

Page 5 officer of the Corporation, Mysore Division to at once evict

the appellant from the quarter.

5)Pursuant to the said order, this Court, taking note of the

fact that in government quarters, unauthorisedly, people are

continuing for years together to the detriment of the persons

who are entitled to occupy the same and also that the same

is the position in most of the State capitals and Head

quarters of the Union Territories, issued notices to the Union

of India, all the States and the Union Territories with a

direction to furnish the list of such unauthorized occupants of

government quarters in the State capitals and Head quarters

of Union Territories belonging to all the three limbs of the

State, viz., the Legislature, the Executive and the Judiciary.

This Court further directed to furnish all the details including

names of such persons, details of quarters, period of

unauthorized occupancy, steps taken for vacation and its

result etc., and also that in case no steps have been taken,

reasons for such inaction.

6)Pursuant to the above directions, the Union of India, all

the States and Union Territories were represented by their

5

Page 6 counsel. In order to eliminate the problem and frame

workable guidelines in addition to the existing statutory

provisions, this Court appointed Mr. Ranjit Kumar, learned

senior counsel and Ms. Anjani Aiyyagari, learned counsel as

amicus curiae to assist the Court.

7)Mr. Ranjit Kumar, learned amicus curiae, after

highlighting various aspects, particularly, the persons in all

the three wings occupying official

premises/quarters/bungalows even after expiry of their

term/period submitted that in addition to the statutory

provisions, this Court has to frame certain workable

guidelines. He took us through various provisions of the Act,

Fundamental Rules (FRs) applicable to the persons working

under Central Government, various State enactments similar

to the Central Act, some of the provisions of the Indian Penal

Code, 1860 (in short “the IPC”) and earlier decisions,

particularly, Shiv Sagar Tiwari vs. Union of India and

others (1997) 1 SCC 444 which dealt with the similar

problem confining to National Capital Territory of Delhi.

6

Page 7 8)We propose to deal with all these aspects in detail

hereinafter.

9)Pursuant to the notice issued by this Court, Union of

India and some of the States submitted their views and

suggestions and others though represented by counsel, did

not convey their views by filing affidavit or report which we

are going to discuss after quoting the report of learned

amicus curiae.

10)Learned amicus curiae in his report submitted as

under:-

“II(a) Menace of unauthorized occupation is required to be

dealt with firmly and the charging of penal rent/market

rent is not a sufficient alternative. In this connection, it

may be stated here that the States of Orissa and Uttar

Pradesh have amended Section 441 of the Indian Penal

Code, 1860 (in short ‘the IPC’) in its application to their

States by providing as under:-

….. or having lawfully entered into or upon such

property, remains there with the intention of taking

unauthorized possession or making unauthorized

use of such property and fails to withdraw such

property or its possession or use, when called upon

to do so by that another person by notice in writing,

duly served on him, is said to have committed

“criminal trespass”. (Orissa)

….. or having entered into or upon such property,

whether before or after the coming into force of the

Criminal Law (U.P. Amendment) Act, 1961, with the

intention of taking unauthorized use of such

property fails to withdraw from such property or its

possession or use, when called upon to do so by that

7

Page 8 another person by notice in writing, duly served

upon him, by the date specified in the notice, is said

to commit “criminal tresspass”. (Uttar Pradesh)

Thus, in these two States, the Governments are in a

position to file criminal proceedings for the offence of

criminal trespass in the case of unauthorized occupation of

Government accommodation. This acts as a deterrent for

any officer to live beyond the period prescribed.

(b)Though this Court in one of its Orders in these

proceedings had sought the opinion of the other States as

to whether they would like to make amendments on

similar lines vide Orders dated 24.07.2007 and

19.09.2007, The response of the various States was as

under:-

a) Union of India said ‘No’

b) The Government of Bihar said ‘No’

c) The Government of Haryana said they would follow if

the Union of India amends.

d) The State of Andhra Pradesh said the matter was

under consideration.

e) The State of Madhya Pradesh said that it will do so if

need arises.

f) The State of Karnataka said that it was drafting rules

for this purpose.

g) The State of Maharashtra said that it has approved

the amendment.

h) The State of Uttarakhand said that the proposal is

sent for amendment.

i) The State of Nagaland said that it will take steps for

the amendment.

j) The State of Sikkim said ‘No’

k) The State of Mizoram said that it will bring about the

amendment if the Supreme Court directs.

l) The State of Manipur said that it had amended and

sent it to the Union of India for approval.

m) The Union Territory of Chandigarh welcomed the

amendment but was bound to follow the Union of

India.

The remaining other States did not respond before

this Court.

III)Though the Act provides under Section 11 for

offences and penalty for unlawful occupation and makes

the offence cognizable under Section 11A, it has been

8

Page 9 found as a matter of practice that the Estate Officers do

not ordinarily take any action under the said Section

because of the proviso to Section 11(1) which reads as

under:-

“Provided that a person who, having been lawfully in

occupation of any public premises by virtue of any

authority (whether by way of grant, allotment or by

any other mode whatsoever) continues to be in

occupation of such premises after such authority has

ceased to be valid, shall not be guilty of such

offence.”

This proviso gives the window for not prosecuting a person

who had been allotted a premise but continues to occupy

so unauthorisedly after the authority to occupy the

premises ceases to be valid. Thus, the unauthorized

occupant continues to unlawfully occupy the government

accommodation without fear of any prosecution.

IV It has also been seen that even where outstanding

rents including penal/market rent are there, there are

persons continuing in occupation who do not pay the

amounts and there is difficulty in recovering the same. In

this regard, apart from the provisions under the Act, there

are provisions under the Public Demand Recovery Act and

Revenue Recovery Act which can be applied for the

recovery of the arrears as arrears of land revenue,

because if the totality of the government houses in all the

States of India are taken into account, the amount due

works out to several crores.

V.(a)Fundamental Rule 45-A prescribes for the

Government accommodation to be occupied and details

the licence fee etc. including the continued

occupation/retention beyond the permissible period and

guidelines have also been framed for that purpose.

However, these rules and guidelines do not state anything

about the eviction possibly on the premise that Public

Premises Act will take care of it.

(b)The Supplementary Rules in Chapter VIII Division 26

made under Fundamental Rule 45 provide for rules for

allotment of residences vide SR 311 to 316. Similarly,

under Chapter 26B, the Allotment of Government

Residences (General Pool in Delhi) Rules, 1963 are

provided in SR 317.

9

Page 10 What is of significance is that while providing these

rules, the government while allowing persons to continue

to retain the Government accommodation does not

provide for their eviction, again presumably because of

the provisions of the Public Premises Act. However, as

explained hereinabove on account of the proviso to

Section 11(1), the Estate Officer cannot take any penal

action against such unauthorized occupants except for

going through the process of eviction.

It would have been useful if the Government while

promulgating such rules/orders/notifications had also

provided for certain undertakings to be taken from the

Government officer prior to his allotment to make sure

that a person does vacate the quarters as soon as his

period prescribed for its retention gets over.”

11)After furnishing all these materials, he suggested the

following guidelines to be issued by this Court which are as

under:-

(i)At the time of allotment of the Government

accommodation to the three wings of the Government, viz.,

the Legislature, the Executive and the Judiciary, an

undertaking should be taken from the allotee that he/she

shall vacate the premises within the prescribed period under

the rules failing which he/she will be liable to disciplinary

action apart from any other liability that he/she may incur.

(ii)All arrears of rent including penal/market rent shall be

recovered as arrears of land revenue.

10

Page 11 (iii)The proviso to Section 11(1) of the Act should be

declared ultra vires as it is in conflict with the main

provisions of providing for offences and penalty for the

unauthorized occupation of government houses.

(iv)Any person who is in service and continues to

unauthorisedly occupy the government accommodation

beyond the period of retention should be suspended

immediately, pending disciplinary action as per the

undertaking given at the time of taking the Government

quarter.

(v)Since allotment of Government accommodation is a

privilege given to the Ministers and Members of Paliament,

the matter of unauthorized retention should be intimated to

the Speaker/Chairman of the House and action should be

initiated by the House Committee for the breach of the

privileges which a Member/Minister enjoys and the

appropriate Committee should recommend the same to the

Speaker/Chairman for taking deterrent action.

(vi)In view of paucity of Government accommodation, all

the allotments to persons belonging to categories other than

11

Page 12 the three wings of the Government should be henceforth

immediately cancelled and discontinued as such allotments

are made on discretion which is mostly abused.

(vii)All government houses which have been turned into

memorials should be retrieved, memorials in Government

houses should be removed and no more memorials should be

allowed in future.

12)Before considering the response of the Union of India,

States and the Union Territories as to the suggestions of

learned amicus curiae, let us consider the relevant provisions

of the Act applicable to the persons in service. The Act was

enacted to provide for eviction of unauthorized occupants

from public premises. Section 2(e) of the Act defines `public

premises’ as under:

“e) "public premises" means-

(1) any premises belonging to, or taken on lease or

requisitioned by, or on behalf of, the Central Government,

and includes any such premises which have been placed

by that Government, whether before or after the

commencement of the Public Premises (Eviction of

Unauthorised Occupants) Amendments Act, 1980, under

the control of the Secretariat of either House of Parliament

for providing residential accommodation to any member of

the staff of that Secretariat;

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Page 13 (2) any premises belonging to, or taken on lease by, or on

behalf of,-

(i) any company as defined in section 3 of the Companies

Act, 1956, in which not less than fifty-one per cent, of the

paid up share capital is held by the Central Government or

any company which is a subsidiary (within the meaning of

that Act ) of the first-mentioned company.”

Section 2(g) defines “unauthorized occupation ” as under:

“(g) "unauthorised occupation", in relation to any public

premises, means the occupation by any person of the

public premises without authority for such occupation, and

includes the continuance in occupation by any person of

the public premises after the authority (whether by way of

grant or any other mode of transfer) under which he was

allowed to occupy the premises has expired or has been

determined for any reason whatsoever.”

Section 4 of the Act speaks about issue of show cause notice

before passing an order of eviction and Section 5 deals with

eviction of unauthorized occupants. Section 7 relates to

direction for payment of rent or damages in respect of public

premises. Section 9 speaks about appeal against the order

of the Estate Officer. In terms of Section 10, the order

passed by the Appellate Authority shall be final and shall not

be called in question in any original suit, application or

execution proceedings whereas Section 11 speaks about

offences and penalty.

13

Page 14 13)Apart from the above provisions of the Act, for the

benefit of the persons working in Central service, the Central

Government framed certain rules which are called

“Fundamental Rules”. Among other rules, FR 45, 45A and

45B are relevant which are as under:-

“F.R.45 The Central Government may make rules or issue

orders laying down the principles governing the allotment

to officers serving under its administrative control, for use

by them as residences, of such buildings owned or leased

by it, or such portions thereof, as the Central Government

may make available for the purpose. Such rules or orders

may lay down different principles for observance in

different localities or in respect of different classes of

residences, and may prescribe the circumstances in which

such an officer shall be considered to be in occupation of a

residence.”

“F.R. 45-A I. Deleted

II.For the purpose of the assessment of licence fee, the

capital cost of a residence owned by Government

shall include the cost or value of sanitary, water

supply and electric installations and fittings; and

shall be either -

(a)the cost of acquiring or constructing the

residence including the cost of site and its

preparation and any capital expenditure incurred

after acquisition or construction; or when this is

not known;

(b)the present value of the residence, including the

value of the site.”

“F.R. 45-B. I. This rule applies to Government servants

other than those to whom Rule 45-A applies or than those

occupying residence belonging to the Indian Railway or

rented at the cost of railway revenues.

II.For the purpose of sub-clause(b) Clause III, the

capital cost of a residence owned by Government

shall not include the cost or value of such special

services and installations (including furniture, tennis

14

Page 15 courts and sanitary, water supply or electric

installations and fittings_ as it may contain; and shall

be either :–

(a)the cost of acquiring or constructing the

residence, including the cost of site and its

preparation and any capital expenditure incurred

after acquisition or construction; or, when this is

not known.

(b)The present value of the residence including the

value of site.”

14)This Court had an occasion to consider the similar

grievance/problem viz., availability of government

accommodation in Delhi in Shiv Sagar Tiwari (supra). In

this case, taking note of the fact that Delhi being the capital

of the country and is also the seat of the Central Government

and that the issue applies to a large number of persons, this

Court analysed the entire issue relating to government

accommodation and various rules applicable. Even in that

matter, Mr. Ranjit Kumar, the present amicus curiae assisted

this Court. Though the said order was confined to the

National Capital Territory of Delhi, this Court has categorized

various groups, viz., ‘vacated list’, ‘arrears list’, ‘change from

same type’, ‘change to higher type’, ‘medical cases within

the existing policy’, ‘medical cases outside the existing

policy’, ‘5 year category’, ‘infructuous cases’, ‘out of turn and

15

Page 16 above entitlement’, ‘functional grounds’, ‘eviction cases’,

‘procedure for eviction’ etc. After analyzing all these

categories with facts and figures as well as the provisions

applicable, this Court summed up various principles and

issued directions for the authorities concerned. Since we are

considering the problem of such government

accommodation/residential quarters/bungalows etc. at the

national level, the guidelines and the ultimate decision in

Shiv Sagar Tiwari (supra) framed for National Capital

Territory of Delhi may be immensely helpful.

15)We have already referred to the suggestions made by

learned amicus curiae; now let us consider the response of

Union of India, States and some of the Union Territories. On

behalf of the Union of India, Shri Manish Kumar Garg,

Director of Estates, Ministry of Urban Development,

Government of India, Nirman Bhavan, New Delhi has filed an

affidavit on 16.11.2011. Mr. P.P. Malhotra, learned Additional

Solicitor General, took us through the stand taken by the

Ministry of Urban Development. Since the department

concerned has expressed its views about suggestions put

16

Page 17 forward by learned amicus, we intend to incorporate the

same which are as under:-

“1. It is submitted that the allotment of government house

to the employees/officers of the three wings of the

government, the Legislature, the Executive and the

Judiciary is made under the provisions of allotment of

Government Residences (General Pool in Delhi) Rules,

1963 as amended from time to time. These rules provide

for allotment, cancellation, retention, penalties for non-

vacation of quarters within the permissible retention

period. It is submitted that the applicant has to be given

an undertaking in “Application Form” itself that he/she

agrees to abide by the Allotment of Government

Residences (General Pool in Delhi) Rules, 1963 also in the

Acceptance Form, the allottee undertakes to vacate the

accommodation allotted to him/her within the stipulated

period. However, because of certain unavoidable

circumstances which may be beyond the control of

allottee, the allottee sometimes retains the house for a

few days beyond the permissible retention period for

which damages rate is charged vis-à-vis action for eviction

under Public Premises (Eviction of Unauthorised

Occupants) Act, 1971. Therefore, the provision of

disciplinary may not be desirable. In case of unauthorized

occupation, in the case of subletting, apart from charging

damages (penal rent) and action is initiated for eviction,

disciplinary proceedings are initiated against the

unauthorized occupant. In view of these provisions

already existing in the rules further undertaking may not

be necessary.

2. As per the existing provisions penal/market rent is

recovered from the unauthorized occupant by raising bills

on the employee or his/her department. In case of retiring

employees, 10% of gratuity is withheld for adjustment of

outstanding dues on account of licence fee and damages.

The withheld amount of gratuity is released by the

employer only after the retired employee obtains a “No

Demand Certificate” from the Directorate of Estates after

making payment for all the dues and submits the same to

his/her employer. In case some retired employees do not

turn up for “No Demand Certificate”, and dues on account

of licence fee/damages remain unrecovered, action is

17

Page 18 initiated for recovery of dues as arrears of land revenue

under the provisions of the Act.

3. It is submitted that Section 11(1) of the Act deals

with three categories of unauthorized occupation – (i) A

person who unlawfully occupies a public premises (ii)A

person who having been lawfully in occupation of a public

premises by virtue of authority etc., continues to be in

occupation of such premises after such authority has

ceased to be valid and (iii) A person who has been evicted

from the public premises under the Act again occupies the

premises without any authority. While Section 11(1) of the

Act provides for punishment to unlawful occupants, the

proviso of the section deals with unauthorized occupants

due to expiry of licence or allotment period. Both the

categories i.e., (i) and (ii) are not comparable. Therefore,

the provisions meet the requirements to deal with various

types of unauthorized occupants and hence cannot be

declared ultra vires.

4. A person who is in Government service is liable to

surrender Government accommodation in case of his/her

transfer to an ineligible office at the same station or

outside. However, with a view to enable the government

servant to make arrangements for settling his family,

retention is permitted upto 8 months i.e. 2 months under

SR-317-B and 6 months under SR-317-B-22. In the case of

retention of accommodation beyond the permissible

retention period, the employee/family is liable to be

evicted from the house under the provisions of the Act and

damages are charged from the concerned employee.

However, there may be a few cases where the

allottee or his/her family retains the accommodation

beyond the permissible period due to unavoidable

circumstances, say, in the case of regularization, re-

posting or severe illness for which damages is charged vis-

à-vis action under the provisions of the Act. However, in

the case of unauthorized occupation on account of

subletting, the Directorate of Estates cancels the allotment

and initiates eviction proceedings and the controlling

department of the unauthorized allottee proceeds for

disciplinary action including placing him/her under

suspension. Therefore, the suggestion to put all serving

unauthorized occupants under suspension will be too

harsh and does not fall within the ambit of provisions of

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Page 19 the Act. Moreover, suspension is resorted to under certain

specific circumstances as a matter of administrative action

under CCS (CCA) Rules.

5. Allotment to a Union Minister is made by the

Directorate of Estates, Ministry of Urban Development as

per provisions of Ministers’ Residences Rules, 1962. The

Ministers, on ceasing to be a Minister, are required to

vacate the official accommodation within one month.

Alternate accommodation, if necessary, is allotted as per

their entitlement by the House Committee concerned. The

allotment to Members of Parliament is made by the

respective House Committees, viz., Lok Sabha House

Committee, Rajya Sabha House Committee. However, in

the event of unauthorized occupation, the respective

House Committees refer the case to the Directorate of

Estates for initiating eviction proceedings under the

provisions of the Act. Allotment to Members of Parliament

is also made by the Directorate of Estates from the

General Pool as per laid down guidelines. Hence, such a

matter does not fall within the purview of breach of

privilege.

6. Allotment of government accommodation to persons

belonging to categories other than the three wings of the

Government, viz., Journalists, eminent Artists, freedom

fighters, social workers etc. is made as per provisions in

the guidelines framed as per direction of the Supreme

Court in Writ Petition (C) No. 585/1984 titled Shiv Sagar

Tiwari vs. Union of India. These allotments are made out

of the 5% discretionary quota allowed by the Supreme

Court. In view of this, cancellation of such allotments

already made and discontinuation of such further

allotment may not be desirable.

7. The government houses which have been turned

into memorial were allotted on lease to respective

Trusts/Societies by the Cabinet Committee on

Accommodation in accordance with the guidelines framed

for the purpose as per direction of the Supreme Court in

C.P. (W) No. 585/1994 titled Shiv Sagar Tiwari vs. Union of

India. The lease agreement has been executed between

the Government of India and the respective Trusts etc. for

specified period. It would, therefore, be violation of the

agreement if such houses are retrieved before the lease

period is over. The guidelines formulated in November

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Page 20 2000 put complete ban on the conversion of Government

bungalows into memorials of the departed leaders. As

such, the suggestion given by the amicus curiae has

already been taken care of. The present guidelines

provide for allotment of accommodation to non-

Government organizations which are working for national

interest or for meeting international obligations.”

16)It is clear from the response submitted by the Ministry

of Urban Development that in view of various provisions in

the Act for taking action against unauthorized occupants,

existing provisions would suffice. It is also clear that in

respect of retiring employees, without clearing arrears of

rent/penal/ market rent and No Due Certificate from the

Directorate of Estates, the retirement benefits will not be

settled and as per the provisions, 10% of the gratuity is to be

withheld for adjustment of outstanding dues.

17)The Department also highlighted that for allotment to

Members of Parliament, it is the “House of Committee” which

controls such allotment and no further guidelines are

required for the same.

18)It was also pointed out that for the persons from special

categories, viz., journalists, eminent artists, freedom fighters,

20

Page 21 social workers etc., guidelines framed by this Court earlier,

govern the issue and no further direction is required.

19)On behalf of the State of Sikkim, the Principal Resident

Commissioner has filed an affidavit highlighting the position

and the procedure that is in vogue in the State. He

emphasized that the Government never allows anyone to

overstay including unauthorized retention of government

accommodation by the Ministers and Members of Parliament.

20)On behalf of the Government of Madhya Pradesh,

Directorate of Estates has filed an affidavit wherein it is

highlighted that so far as the employees of the State

Government, executive and judiciary are concerned, there is

no objection in taking an undertaking as suggested by this

Court. However, according to the government, the houses

allotted to the members of the legislative assembly,

members of parliament and ministers are concerned, the

matter needs to be examined after taking views of the

Secretary, Vidhan Sabha. It is also pointed out that the

Government of Madhya Pradesh has issued separate rules

called Madhya Pradesh Government Quarters Allotment

21

Page 22 Rules, 2000 which provides effective mechanism for eviction

of unauthorized persons and recovery of rent, if any.

21)On behalf of the State of Andhra Pradesh, Principal

Secretary to Government, General Administration (Accomm.)

Department has filed a reply affidavit furnishing information

as to the position in the State and the steps that are being

taken by them.

22)On behalf of the State of Jammu & Kashmir, Director,

Estates Department has filed an affidavit informing about

various steps being taken by them. He also submitted that

the government is ready to comply with further/additional

directions being issued by this Court.

23)Union Territory of Puducherry through its Secretary

(Housing) highlighted the availability of government

quarters, number of unauthorized occupants and the

procedure being followed for eviction of those persons. He

also informed this Court that all the directions and

instructions of the Government of India are being followed in

the Union Territory of Puducherry.

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Page 23 24)On behalf of the State of Maharashtra, Deputy

Secretary, General Administration Department filed an

affidavit highlighting various instructions issued to the

competent authority dealing with unauthorized occupants.

He also furnished a statement showing the eviction cases

pending with the competent authority and also the cases in

which rent recovery is going on.

25)On behalf of the State of Haryana, Special Secretary

Coordination from the office of Chief Secretary to

Government, Haryana filed an affidavit conveying their

comments on the propositions made by learned amicus

curiae.

26)On behalf of the State of Uttar Pradesh, Assistant

Estates Officer, Government of U.P. submitted his response

as to the suggestions of the learned amicus curiae. He also

highlighted that necessary amendments should be made in

their allotment rules. According to him, in respect of arrears

of rent and damages, the rules enable them to recover the

same as arrears of land revenue. The State has also

highlighted that stringent provision, viz., Section 11 of the

23

Page 24 U.P. Public Premises (Eviction of Unauthorised Occupants)

Act, 1972 is in force. As per the said provision, if any person

who has been evicted from any public premises again

occupies the same without authority for such occupation, he

shall be punishable with imprisonment for a term which may

extend to 1 year or fine which may extend to Rs. 1,000/- or

with both. He also highlighted the allotment procedure in

respect of journalists, the legislature, the executive, the

judiciary as well as memorials available in their State.

27)As per the details furnished by learned amicus curiae

and various comments made by Union of India as well as

some of the States and the Union Territories, it cannot be

said that at present there is no machinery to check eviction

of unauthorized occupants as well as recovery of arrears of

rent including penal charges. However, it is not in dispute

that in spite of existing provisions/rules, directions etc., the

fact remains same and the persons from all the three

branches either by their influence or by lengthy procedure as

provided in the Act, continue to stay in the government

accommodation by paying paltry amount either by way of

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Page 25 rent or penalty. In these circumstances, we are of the view

that in addition to the statutory provisions, there is need to

frame guidelines for the benefit of both Union of India/States

and Union Territories for better utilization of their premises.

28)The following suggestions would precisely address the

grievances of the Centre and the State governments in

regard to the unauthorized occupants:

Suggestions:

(i)As a precautionary measure, a notice should be sent to

the allottee/officer/employee concerned under Section 4

of the PP Act three months prior to the date of his/her

retirement giving advance intimation to vacate the

premises.

(ii)The Department concerned from where the government

servant is going to retire must be made liable for

fulfilling the above-mentioned formalities as well as

follow up actions so that rest of the provisions of the Act

can be effectively utilized.

(iii)The principles of natural justice have to be followed

while serving the notice.

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Page 26 (iv)After following the procedure as mentioned in SR 317-B-

11(2) and 317-B-22 proviso 1 and 2, within 7 working

days, send a show cause notice to the person

concerned in view of the advance intimation sent three

months before the retirement.

(v)Date of appearance before the Estate Officer or for

personal hearing as mentioned in the Act after show

cause notice should not be more than 7 working days.

(vi)Order of eviction should be passed as expeditiously as

possible preferably within a period of 15 days.

(vii)If, as per the Estate Officer, the occupant’s case is

genuine in terms of Section 5 of the Act then, in the first

instance, an extension of not more than 30 days should

be granted.

(viii)The responsibility for issuance of the genuineness

certificate should be on the Department concerned from

where the government servant has retired for the

occupation of the premises for next 15 days and further.

Giving additional responsibility to the department

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Page 27 concerned will help in speedy vacation of such

premises. Baseless or frivolous applications for

extensions have to be rejected within seven days.

(ix)If as per the Estate Officer the occupant’s case is not

genuine, not more than 15 days’ time should be

granted and thereafter, reasonable force as per Section

5(2) of the Act may be used.

(x)There must be a time frame within how much time the

Estate Officer has to decide about the quantum of rent

to be paid.

(xi)The same procedure must be followed for damages.

(xii)The arrears/damages should be collected as arrears of

land revenue as mentioned in Section 14 of the Act.

(xiii)There must be a provision for compound interest,

instead of simple interest as per Section 7.

(xiv)To make it more stringent, there must be some

provision for stoppage or reduction in the monthly

pension till the date of vacation of the premises.

(xv)Under Section 9 (2), an appeal shall lie from an order of

eviction and of rent/damages within 12 days from the

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Page 28 day of publication or on which the order is

communicated respectively.

(xvi)Under Section 9(4), disposal of the appeals must be

preferably within a period of 30 days in order to

eliminate unnecessary delay in disposal of such cases.

(xvii) The liberty of the appellate officer to condone the delay

in filing the appeal under Section 9 of the Act should be

exercised very reluctantly and it should be an

exceptional practice and not a general rule.

(xviii) Since allotment of government accommodation is a

privilege given to the Ministers and Members of

Parliament, the matter of unauthorized retention should

be intimated to the Speaker/Chairman of the House and

action should be initiated by the House Committee for

the breach of the privileges which a Member/Minister

enjoys and the appropriate Committee should

recommend to the Speaker/Chairman for taking

appropriate action/eviction within a time bound period.

(xix)Judges of any forum shall vacate the official residence

within a period of one month from the date of

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Page 29 superannuation/retirement. However, after recording

sufficient reason(s), the time may be extended by

another one month.

(xx)Henceforth, no memorials should be allowed in future in

any Government houses earmarked for residential

accommodation.

29)It is unfortunate that the employees, officers,

representatives of people and other high dignitaries continue

to stay in the residential accommodation provided by the

Government of India though they are no longer entitled to

such accommodation. Many of such persons continue to

occupy residential accommodation commensurate with the

office(s) held by them earlier and which are beyond their

present entitlement. The unauthorized occupants must

recollect that rights and duties are correlative as the rights of

one person entail the duties of another person similarly the

duty of one person entails the rights of another person.

Observing this, the unauthorized occupants must appreciate

that their act of overstaying in the premise directly infringes

the right of another. No law or directions can entirely control

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Page 30 this act of disobedience but for the self realization among the

unauthorized occupants. The matter is disposed of with the

above terms and no order is required in I.As for impleadment

and intervention.

...…………….………………………J.

(P. SATHASIVAM)

.…....…………………………………J.

(RANJAN GOGOI)

NEW DELHI;

JULY 05, 2013.

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