# SHIV SAGAR TIW ARI v. UNION OF INDIA AND ORS

- **Citation:** [1996] Supp. 10 S.C.R. 925
- **Court:** Supreme Court of India
- **Decided:** 1996-12-23
- **Bench:** Kuldip Singh, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-sagar-tiw-ari-v-union-of-india-and-ors-14715
- **Pages:** 48

## Headnote

B
Constitution of India, 1950 : Articles 21 and 32.
Housing Scam-Government residential quarters-Arbitrary Allotment
of-Large-scale out-<?f-tum allotments on 'Special Compassionate Ground' C
category in Delhi-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 complaints and suggestions received from any
/quarter-Constituted-Committee submitted report to Supreme Court after
hearing allottees concerned-Held : All persons whose names did not find D
place in Gupta Committee reports under Categories Iv, VI, IX, X, XI and
such of Category VII not entitled to in- tum allotment would face eviction-IAS, JPS, IFS and other officers occupying General Pool quarters,
though eligible to quarters in Tenure Pool would be evicted-Out-of-tum
allottees in illegal occupation of Type III quarters would pay twice the licence
fee and those of Type IV and above thrice the licence fee-Those denied E
in-tum allotments to be suitably compensated out of the licence fee recovered
from out-of-tum allottees-Disctetionary quota to be 5% out of which allotment could be made to freedom fighters, eminent artists, social workers and
organisation or institution or other defined category of persons-Allotm(!nt to
be made to journalists out of Press Pool as per guidelines framed--Political F
parties entitled to allotment as per policy framed-President, Vice-President
and Prime Minister to be accommodated in Government premises after;
demitting of office-Action to be taken against Government seniants who had
sub-let their premises-Earmarked quarters to be made available to high
Constitutional functionaries-Orders and directions issued in respect of the G
aforesaid aspects-Service Law-Fundamental Rules (framed under Art. 309
proviso), FRs. 5-A, 45-V(b), 45- A-Supplementary Rules (as permitted by
!
FR 45), SRs. 317-B-11, 12, 20, 21, 22-Allotment of Government Residences
(General Pool in Delhi) Rules, 1963, R.15-A-Housing Scam.
Article 21-Right to shelter-Held : fell within the ambit of Art. 21.
H
925
926
SUPREME COURTREPORTS[1996] SUPP.10 S.C.R.
A
Administrative Law :
B
Discretionary Power-Held: To be exercised to advance the purpose to ,,
sub-serve which, the power existe<J.,.-Even a Minister, if he/she was the
repository of discretionary power, could not claim that the discretion was
unfettered.
Natural justic~Allotment of Government residential quarters in
Delhi-Large-scale out-of-tum allotment-Writ petition against-Filed in
Supreme Court-Public notice published in newspapers to enable such allottees to represent be/ ore Supreme Court why their allotments should not be
C cancelle<J.,.-Committee appointed to examine and report to Supreme
Court-Held : In the circumstances of the case, collective personal hearing
given by Supreme Court was sufficient compliance with the principles of
natural justic~Supreme Court was last f arum for redress al of grievance and
seized of the matter under Art. 32-Hence, it was not necessary to relegate the
.D
E
allottees to the Estate Officer--<:onstitution of India, 1950, Art. 32. Natural
justice--Notic~Published in newspapers-To enable out-of-tum allottees of
Govemment residential quarters in Delhi to represent be/ ore Supreme Court
against proposed cancellation of allotments-Sufficiency of-Held.: All allottees being in Delhi and well educated, newspaper publication was definitely
sufficient.
Natural justic~Basic facets of-Held: Requirements of natural justice
could be moulded.
Service Law :
F
' Govemment residential quarters-Out-of-tum allottee-Payment of
damages-Held : liable to pay damages.
The petitioner filed a public interest petition, which represented the
scenario of what had come to be known as Housing Scam regarding
allotment of residential quarters. There were large-scale out-of-turn allotG ments on 'Special Compassionate Ground' category in Delhi. Public notice
was issued to such allottees to enable them to represent before

## Text

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SHIV SAGAR TIW ARI
A
v.
UNION OF INDIA AND ORS.
DECEMBER 23, 1996
[KULDIP SINGH AND B.L. HANSARIA, JJ.]
B
Constitution of India, 1950 : Articles 21 and 32.
Housing Scam-Government residential quarters-Arbitrary Allotment
of-Large-scale out-<?f-tum allotments on 'Special Compassionate Ground' C
category in Delhi-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 complaints and suggestions received from any
/quarter-Constituted-Committee submitted report to Supreme Court after
hearing allottees concerned-Held : All persons whose names did not find D
place in Gupta Committee reports under Categories Iv, VI, IX, X, XI and
such of Category VII not entitled to in- tum allotment would face eviction-IAS, JPS, IFS and other officers occupying General Pool quarters,
though eligible to quarters in Tenure Pool would be evicted-Out-of-tum
allottees in illegal occupation of Type III quarters would pay twice the licence
fee and those of Type IV and above thrice the licence fee-Those denied E
in-tum allotments to be suitably compensated out of the licence fee recovered
from out-of-tum allottees-Disctetionary quota to be 5% out of which allotment could be made to freedom fighters, eminent artists, social workers and
organisation or institution or other defined category of persons-Allotm(!nt to
be made to journalists out of Press Pool as per guidelines framed--Political F
parties entitled to allotment as per policy framed-President, Vice-President
and Prime Minister to be accommodated in Government premises after;
demitting of office-Action to be taken against Government seniants who had
sub-let their premises-Earmarked quarters to be made available to high
Constitutional functionaries-Orders and directions issued in respect of the G
aforesaid aspects-Service Law-Fundamental Rules (framed under Art. 309
proviso), FRs. 5-A, 45-V(b), 45- A-Supplementary Rules (as permitted by
!
FR 45), SRs. 317-B-11, 12, 20, 21, 22-Allotment of Government Residences
(General Pool in Delhi) Rules, 1963, R.15-A-Housing Scam.
Article 21-Right to shelter-Held : fell within the ambit of Art. 21.
H
925
926
SUPREME COURTREPORTS[1996] SUPP.10 S.C.R.
A
Administrative Law :
B
Discretionary Power-Held: To be exercised to advance the purpose to ,,
sub-serve which, the power existe<J.,.-Even a Minister, if he/she was the
repository of discretionary power, could not claim that the discretion was
unfettered.
Natural justic~Allotment of Government residential quarters in
Delhi-Large-scale out-of-tum allotment-Writ petition against-Filed in
Supreme Court-Public notice published in newspapers to enable such allottees to represent be/ ore Supreme Court why their allotments should not be
C cancelle<J.,.-Committee appointed to examine and report to Supreme
Court-Held : In the circumstances of the case, collective personal hearing
given by Supreme Court was sufficient compliance with the principles of
natural justic~Supreme Court was last f arum for redress al of grievance and
seized of the matter under Art. 32-Hence, it was not necessary to relegate the
.D
E
allottees to the Estate Officer--<:onstitution of India, 1950, Art. 32. Natural
justice--Notic~Published in newspapers-To enable out-of-tum allottees of
Govemment residential quarters in Delhi to represent be/ ore Supreme Court
against proposed cancellation of allotments-Sufficiency of-Held.: All allottees being in Delhi and well educated, newspaper publication was definitely
sufficient.
Natural justic~Basic facets of-Held: Requirements of natural justice
could be moulded.
Service Law :
F
' Govemment residential quarters-Out-of-tum allottee-Payment of
damages-Held : liable to pay damages.
The petitioner filed a public interest petition, which represented the
scenario of what had come to be known as Housing Scam regarding
allotment of residential quarters. There were large-scale out-of-turn allotG ments on 'Special Compassionate Ground' category in Delhi. Public notice
was issued to such allottees to enable them to represent before this court
as to why their allotments should not be cancelled. A three-mP-mber
Committee headed by Shri D.P. Gupta (the then Solicitor General for
India) was constituted to "further examine all the aspects of the matter
H and look into the complaints and suggestions received from any quarter".
SHIV SAGAR TIWARiv. U.O.I.
927
After hearing the allottees and submissions of all concerned the said A
Committee submitted a report to this Court.
Disposing of the petition, this Court
HELD : 1. Various facets of allotment of residential quarters includ·
ing large-scale out-of-tum allotments on 'Special Compassionate Ground' B
category in Delhi were examined and orders and directions are issued as
follows :- [968-C]
(1) All the persons whose names find place in the two reports of the
Gupta Committee under Categories IV, VI, IX, X, XI and such of Category
VII who had not become actually entitled to in-turn allotment by the C
. date(s) the two reports were submitted, would face eviction. [968-D]
(2) Those IAS, IPS, IFS and· other officers who are occupying
General Pool quarters, despite being eligible to the quarters in the Tenure
Pool though not actually allotted, would also be evicted. [968-E]
D
(3) A new list would accordingly be drawn up within two months
from the date of this judgment and the persons having become liable as
per this list for eviction would be served individual notice within 30 days
thereafter requiring them to vacate the quarters within 90 days of the
notice. [968-F]
E
(4) The out-of-turn allottees who would become liable to eviction on
account of their illegal occupation of the quarters would pay twice the
licence fee insofar as Type III quarters are concerned; and three times the
licence fee for Type IV and above. [968-G]
(S) The Government employees who had occupied accommodation
on out-of-turn basis but who are not to be evicted would be required to pay
licence fee as stated above, for the period they were in out-of-turn occupa·
tion. [968-G-H]
F
(6) Those Government employees who were denied allotments, G
despite having become eligible, would 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. H
•
928
SUPREME COURT REPORTS(l996) SUPP.10 S.C.R.
A The entire additional licence fee shall be kept in a separate fund which
would be used for the purpose of compensating those who were illegally
and unjustly denied allotments. To streamline this work a scheme shall be
framed by the Ministry within a period of three months and the illegally
denied employees would be paid as per the scheme within three months
B thereafter. [968-H; 969-A]
(7) The extent of discretionary quota would be 5 per cent in each type
of houses which would fall vacant in the year. From this 5 per cent quota,
allotment could also be made, as per guidelines to be framed, to freedom
fighters, eminent artists, social workers and any organisation or instituC tion or other defined category of persons. The guidelines would be framed
within three months from the date of this judgment. [969-B]
(8) The guidelines would be duly notified and while making allotment
reasons would be given. List of such allottees shall be notified and circulated to all the Government Departments. Further, a yearly statement of
D such allotments would be laid on the table of the each House of the
Parliament. [969-C]
(9) Even from the Press Pool, allotment would be made as follows if
the Government were to accept the same; and action for eviction, where
E required, would be taken by asking to vacate the premises latest by
31-3-1998:-
(i) The accommodation will be given by the government from the
Press Pool only to the accredited journalists and news cameramen. Accredited journalists/news cameramen will mean journalists/news
F
cameramen accredited by the Central Press Accreditation Committee.
They will not include: (i) those accredited journalists/news cameramen
whose total emoluments exclusive of the conveyance allowance exceed Rs.
15,000 p.m.: (ii) accredited editors or editors-cum-correspondents: (iii)
Freelance journalists: (iv) journalists engaged on contract basis: and (v)
G accredited correspondents who are not Indian Nationals and/or who do
not represent the Indian Media.
(ii) He/she does n_ot own a house or flat, either as an owner or as a
holder of power of attorney, in his/her own name or in the name of the
family member or dependent in the National Capital Territory of Delhi or
H Noida, at the time of the allotment of accommodation from the pool.
•
-
SHIV SAGAR TIWARiv. U.0.1.
929
(iii) The accommodation will be allotted by a Screening Committee A
according to seniority and pay limit as mentioned below :
(aa) The accredited journalists will be divided into two categories
namely: (i) those who are drawing in~ome upto Rs. 7,000 p.m.: and (ii)
those drawing income between Rs. 7,000 to Rs. 15,000 p.m.
(bb) The monthly income would mean all emoluments excluding
conveyance allowance.
B
(cc) 1\vo separate Lists namely, 'List I' and 'List II', of the above
categories (i) and (ii) of the journalists respectively would be prepared on
the basis of the aforesaid income criteria and according to the seniority C
on the basis of the date of application for the accommodation.
(dd) Depending upon the availability, the accommodation will first
be given to those in List I according to the seniority. If after satisfying the
needs of all the journalists in List I, more units of accommodation are D
available, they would be given according to seniority to the journalists in
List II.
\
(ee) The journalists in List I may occupy the accommodation so
.
.
given for a maximum period of five years but no longer.
Cm Those in List II may occupy the accommodation so given for a
maximum period of three years but no longer.
(gg) The allottee shall not be eligible for allotment of accommodation
from the pool more than once.
(hh) The allottee shall pay to the Government every month the
amount of HRA that the allottee receives froll1 his/her employer in addition
E
F
to the licence fee fixed under the Government of India Fundamental Rules,
Rule 45-A. It shall be his/her responsibility to pay all the sums due as
aforesaid to the government by the 10th of every month. Failure to pay the G
dues as aforesaid shall make him/her liable to be evicted forthwith.
(iv) Every allottee shall, by 31st March every y'!llr, intimate to the
Directorate of Estates, Ministry of U.A. & E the details of his emoluments
including basic pay, all allowances including the H.R.A. and also particulars of his/her family member/dependent or self having acquired as a H
930
SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A holder of power of attorney or otherwise, any accommodation in the ·
National Capital Territory of Delhi as defined above.
(v) The allottee shall vacate the accommodation within 30 days of
the expiry of the period of allotment. (969-D; 960-D-F; 961-A·H; 962-A·B]
B
(10) Freedom fighters, artists and social workers would not be
entitled to allotment from General Pool, but could be granted allotment
from the discretionary quota, if guidelines would permit. The present
occupants would be dealt with as follows :·
(i) So far as the freedom fighters are concerned, as there would be
C virtually none left by now to claim allotment of the Government quarters,
those quarters occupied by them presently, as and when would fall vacant
would enure to the General Pool. If any freedom fighter by any chance
would come forward even now, it would be open to the concerned Minis·
try/Department to accommodate him in the S per cent out-of· turn allotD ment.
(ii) As to artists, in future the allotment to be made to them would
be from the aforesaid S per cent discretionary quota. The quarters present·
ly being occupied by the artists would, therefore, be placed under General
Pool, as and when they would fall vacant on the possession by the present
E 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.
(iii) So far as social workers are concerned, it is stated that it would
be permissible to allow occupation in future from the S per cent discretionary quota; and so the present houses under their occupation would
F
take under the General Pool, as and when they would fall vacant for
reasons similar to those mentioned in case of artists. (969-E; 958-C-G]
(11) (a) The political parties would be entitled to allotment of govern·
ment accommodation provided they are recognised as national parties by
G the Election Commission. The Directorate should abide regarding the
number of units to be allotted to each political party, by the advice to be
given by the Speaker of Lok Sabha and Vice-Chairman of Rajya Sabha.
(b) Those political parties who would be in occupation of greater
number of units or would not be eligible as per the revised policy would
H be given reasonable time to vacate the accommodation under their occupa·
SHIVSAGAR TIWARiv. U.O.I.
931
tion. [969-F -G]
(12) Other organisation would not be entitled to allotment of quarters
from General Pool, but would be so adjusted from the discretionary quota
A
if guidelines would permit. That organisation which would not get allotment
from the discretionary quota shall have to vacate the premises under its
occupation within reasonable time in terms of the various interim orders B
passed concerning them from time to time. [969-H; 970-A]
(13) The President; Vice-President and Prime Minister of India
would be accommodated in government premises after demitting of office
by them according to the terms decided by the Government. [970-B]
(14) The unauthorised occupants of Government premises, who are
liable to pay damages, would do so as per the relevant rules. [970-B]
c
(15) The waiver orders as passed have no sanction of law; and while
undertaking recovery the same shall be ignored and the recovery proceed- D
ings would abide the order passed on 29-11-1996. [970-C]
(16)(a) Against those Government servants who have sub-let their
premises departmental proceedings would be initiated as stated in the
order 29-11-1996.
(b) The sub-lessees, being unauthorised occupants, would be evicted
most expeditiously. [970-D]
(17)(a) Apart from the General Pool, Tenure Pool and Press Pool,
other Pools would be created.
E
F
(b) Earmarked quarters would be made available to Speaker of Lok
Sabha, Vice-Chairman of Rajya Sabha, Judges of Supreme Court and High
Courts, Election Commissioners, Chairman, Law Commission of India,
Chairman, Press Council of India and Chairpersons or Members of
various other high statutory Bodies manned by retired Supreme Court or
High Court Judges. These quarter should become available subsequently G
to the concerned office holders only, and not to anybody !!lse. The pooling
of such accommodation may be necessary so far as the Judges of the
Supreme Court and the High Court are concerned, in view oflarge number
of quarters needed for them; and it would be appropriate if they are put
in charge of the Registrar General of the Supreme Court or the Registrar H
932
SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A of the Higlt Court, as the case may be. [967-A-C]
.__B
c
(18) The Central Government would examine the question of con·
stfuction of more accommodation. A high powered committee, which may
include one or two representatives of the Employees' Association to instill
confidence and inculcate a feeling of participation, be formed for this
purpose and let the committee report within six months. It is also a matter
for consideration whether in the various residential colonies coming up in
different parts ot the city under the aegis of Delhi Development Authority
and such other bodies, some percentage of houses, say between 5-10,
should be reserved for Government employees. [967-F-H]
(19) The concerned authorities shall examine the question as to
whether the persons owning houses in Gaziabad and Gurgaon should also
be debarred from getting the government accommodation in Delhi. [968-B]
Rai Sahib Ram Javaya Kapur v. State of Punjab, [1955] 2 SCR 225,
D referred to.
2.1. Life, livelihood and shelter are so mixed, mingled and fused that
it is difficult to separate them. To take away life, it would be enough to
take away livelihood; and to earn livelihood, which in urban areas is
ordinarily at places away from one's own home and hearth, shelter would
E be necessary • be it a house or even a pavement. [935-G-H]
Olga Tellis, [1985) 3 SCC 545 andAhmedabad Municipal Corporation
v. Nawab Khan Guiab Khan, JT (1996) 10 SC 485, relied on.
2.2. The administrative law has of late seen vast increase in discreF tionary powers. But then, discretion conferred has to be exercised to advance the purpose to sub-serve which, the power exists. Even the Minister,
if he/she were the repository of discretionary power, cannot claim that either
there is no discretion in the matter or the discretion is unfettered. [935·A·B]
G
Padfield 1968 AC 997 and United States v. Wunderlish, 342 US 98,
referred to.
3.1. The arbitrary exercise of power by the authorities in a big way
had led almost to the collapse of the whole system of allotment. There was
a crisis like situation and this Court had to deal with an extra-ordinary
H situation and a special procedure had to be devised to do justice to all
-
SHIV SAGAR TIWARiv. U.O.I.
933
concerned. Natural justice being a flexible principle and this Court being A
concerned with the issue of out-of-turn allotment in thousands, it was felt
that a collective hearing would meet the requirements of natural justice to
those who appeared before it. Public notice was published in newspapers
to enable such allottees to represent before this Court as to why their
allotment should not be cancelled. In the circumstances of the case, B
collective personal hearing given by this Court was sufficient compliance
with the principles of natural justice. The last forum for redressal of
grievance being this Court, as it was seized with an Article 32 petition, it
was not necessary to relegate the allottees to the Estate Officer. [953·C·G]
Bihar School Examination Board v. Subhas Diandra, AIR (1970) SC C
1269 and S.C. Kapoor v. Jag Mohan, AIR (1981) SC 136, relied on.
3.2. All the allottees liable to be adversely affected being in Delhi and
being well educated, newspaper publication was definitely sufficient to
enable them to know what they must have been informed. Indeed, the
concerned employees were knowing much aliunde also. [954-C]
D
3.3. 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 know the nature
of accusation: and (2) to give opportunity to state the case. Natural justice
is after all "no unruly horse, no lurking land mine". Its unnatural expansion E
without reference to the realities can be "exasperating". [954-A-B; D-E]
Harinath v. Rajinder Medical College, AIR (1973) SC and Board of
Mining Examination v. Ramjee, AIR (1977) SC 965, relied on.
4. An out-of-turn allottee is an ineligible person becaμse he has not F
become eligible as per the rules governing' the allotment. So strictly speak·
ing, an out-of-turn allottee is required to pay damages. [955-GJ
S. This Court is conscious that some percentage of those who were
given/had obtained oat-of-turn allotments would be required to be evicted
pursuant to this judgment. It is also known that the would-be-evictees G
include those who are Type III allottees and are in lower rung of hierarchy.
It has not been possible to exclude them altogether from the purview of
this judgment. When grave illegality of great magnitude is required to be
cured, at times a sort of surgery becomes necessary, and then suffering
cannot be avoided altogether. [970-G-H; 971-A-B]
H
934
SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A
6. The hardship aspect has been taken care of to the extent deemed
B
permissible, keeping in view the call of law and equity. It has to be kept in
mind the injustice which had been caused to those who had been denied
allotment despite having become entitled to the same. There can be no
denial that equity leans heavily in their favour. [971-C-D]
7. Finally, it is hoped that the coming years would not see any scam
or misuse of power in making allotments of government quarters. The
trust which is reposed in this context on high public functionaries would
be discharged only to advance the object of providing of suitable condition
of work to Government employees so that the Government is run on even
C keel; and shelter, which is a very pressing necessity of any human being,
would not come to be denied if the same is otherwise due to the incumbent.
A satisfied bureaucracy is as much necessary, as good political leadership,
to deliver the goods. The Government of free India have many promises to
keep after its tryst with destiny on the midnight of 14-8-1947. There is no
D doubt that all the public functionaries would so act that the meeting with
destiny really sees the dawn of an era of hope for all. [971-G-H; 972-A-B]
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 585 of
1994.
E
Under Article 32 of the Constitution of India.
In-Person for Petitioner, and Ranjit Kumar (AC.), M.L. Jain, G.L.
Sanghi, Altaf Ahmed, Additional Solicitor General, K.T.S. Tulsi, Raju
Ramchandran, G. Ramaswamy, Sr. Advs., T.C. Sharma, Hemant Sharma,
p
V.K. Verma, Mrs. Sushma Suri, Sanjay Hegde, T. Raja, S.K. Mehta, Dhruv
Mehta, Fazlin Anam, Ms. Minakshi Vij, Balraj Dewan, C.N Sreekumar,
Irshad Ahmad, AK. Sanghi, Kailash Vasudev, Ms. Meenakshi Arora, Vijay
Panjwani, S.K. Bandyopadhyay, U.S. Prasad, Prem Malhotra, R.D. Upadhyay, G.G. Upadhyay,'Raj Kumar Gupta, H.P. Sharma, AN. Bardiyar, Ajit
Kumar Sinha, Goodwill Indeevar, P. Parmeswaran, P.H. Parekh, Amit
G Dhingra, Rahul P. Dave, Manoj Pillai, Mohd. Iqbal Butt, Piyush, Ved
Prakash, Ranbir Singh Dhillon, Manoj Goel, R.M. Tufail, Mukesh K. Giri,
I.B. Gaur, M.P. Singh, B.B. Singh, Ms. Arnita Gupta, R.S. Sharma, C.N.
Sreekumar and K.C. Bajaj for the appearing parties.
H
The Judgment of the Court was delivered by
l
,-
\
SHIV SAGAR TIWARI v. U.O.l. [ HANSARIA, J.]
935
HANSARIA, J. The administrative law has of late seen vast increase A
in discretionary powers. But then, the discretion conferred has to be
exercised to advance the purpose to suberve which the power exists. Even
the Minister, if he/she be the repository of discretionary power, cannot
claim that either there is no discretion in the matter or unfettered discretion. This proposition was rejected emphatically by the House of Lords in B
landmark decision of Padfield, 1968 AC 997. This apart, as pointed out in
United States v. Wunderlish, 342 US 98 :
"Law has reached its finest moments, when it has freed man from
unlimited discretion of some ruler, some ... official, some
bureaucrat. . .Absolute discretion is a ruthless master. It is more C
destructive of freedom than any of man's other invention."
IA. 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 D
relating to allotment of accommodation to government employees. As
against the discretionary quota of 10 per cent, it shot upto 70 per cent;
and on top of that 8, 768 houses were allotted by stating that the same
was being done on "Special Compassionate Ground". This naturally led
to uproar and serious objection from those who were denied accommodation as per rules. After the present petition was entertained and E
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 tha
1t is under progress. What we propose to examine rather is how F
best we can take care of illegality which had described following out-ofturn allotments a galore.
2. May we also observe that life, livelihood and shelter are so
mixed, mingled and fused that it is difficult to separate them. To take
away life, it would be enough to take away livelihood; and to earn G
livelihood, which in urban areas is ordinarily at places away from one's
own home and hearth, shelter would be necessary - be it a house or even
a payment. This Court has dealt with cases of payment dwellers. The
locus classicus in Olga Tellis, [1985] 3 SCC 545 and the latest rendering is
in Ahmedabad Municipal Corporation v. Nawab Khan Guiab Khan, JT H
936
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A (1996) (10) SC 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
B 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
C 45. Having felt that the operation of these Rules may cause undue hardship,
FR 5-A was inserted with effect from 6th February, 1971 stating that where
any Ministry or Department of Government is of opinion that the operation
of any of these rules may cause undue hardship to any person, that Ministry
or Department, as the case may be, may by order, for reasons to be
recorded in writing, relax the requirement of that rule to such extent and
D 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. quarter
situate in Delhi, it may be pointed out that the same is further subject to
E Allotment of Government Residences (General Pool in Delhi) Rules, 1968
which had come into force on 15th May, 1968.
2A. Delhi being the capital of the country is the seat of the Central
Government and, as is known, it employs a very large number of
p
persons. As per the figures given in "Delhi at 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 Type
III and IV quarters by July '96 (when the position was said to have
G eased) was about 20 and 15 years respectively. This is not all. If one
were to take a private accommodation rent, as an employee would be
compelled to do if Government accommodation would not be come ..
available, the rent to be paid in city like Delhi would eat away a large
chunk of the carry-home pay. This explains the mad rush to get a
H Government quarter allotted anyhow, by hook or by crook. The persons
SHIV SAGAR TIWARI v. U.0.1. [ HANSARIA, J.]
'137
empowered and authorised to make allotments, being aware of the pressing A
need tend to misuse their powers. When the misuse is within tolerable
limits, no uproar is' heard, no media publication is seen. But when the
magnitude of misuse assumes a menacing proportion, outburst of various
types become notii::eable and then a scam surfaces.
3. The writ petition represents the scenario of what has come to be B
known as Housing Scam. A practising advocate of this Court, Shri Shiv
Sagar Tiwari, claiming himself as a vigilant citizen, thought it fit to file this
petition under Article 32 of the· Constitution, having read a news item
published in Indian Express of 5.9.1994 under the caption "Chirag Tale
Andhera" (Darkness under the lamp). That news was about a son dying as C
his father was forced to vacate a government quarter. According to the
petitioner, the news item made it crystal clear that tautism 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 favour- D
tism. He prayed that the respondents be directed not to allot quarters of
Type V to VIII to anyone during the pendency of the petition and to order
investigation about the corruption in allotment.
4. 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 E
Shri Tiwari in pers(m, 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 shall 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 24th April, 1995 under the heading F
"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 lis! of all those G
houses along with the names of the occupants, the period and the authority
under which they werl occupying the accommodation. the Director of
Estates (the Director) did so.
5. 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 H
938
SUPREME COURT REPORTS[1996) SUPP.10 S.C.R.
A one of such affidavits of the Director that there were out-of-turn allottees
in abundance in Type ID 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
B 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 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
C all these 4672 allottees to enable them to represent as to why their allotments should not be cancelled.
6. For better appreciation of the various representations which had
been received from these allottees, who came to be categorised in eleven
D 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 Co.mmittee headed by Shri D.P. Gupta (the then
Solicitor General for India) to "further examine all the aspects of the matter
E 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 threeF 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 Committee having been felt, they were
so noticed and were heard on 9.10.1996. The report relating to Type III
was placed before tl).e Court on 4.11.1996. The incumbents recommended
to be evicted in this category were heard on 9.12.1996. which was the date
G notified for their appearance in person or through counsel. By that date,
submission of all concerned had also been heard on various facets involved
in the case.
7. Before the points involved are noted and dealt with, it would be
H
appropriate to mention about another milestone of the case which relates
•
SHIVSAGARTIWARlv. U.0.1.[HANSARIA,J.)
939
to issuance of notice on Shrimati Shiela Kaul, who was the Minister of A
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 .;ilotments made by her concerning 58
shops/stalls. This order is dated October 11, 1996. After cause was shown
by Shrimati Kaul and after all concerned were heard, she was asked to pay B
a sum of Rs. 60 lacs (on all counts) as exemplary damages by order dated
November 8, 1996. The final milestone is this date on which this.judgment
is being delivered.
8. Let us revert back to the main theme, which is relatable to the
facets require to be examined in the case. The same are :
(1) who should face eviction ?
(2) (a) How much licence fee should be charged from those out-ofturn allottees who would become liable to eviction on account of their
illegal occupation of the quarter 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
c
D
evicted, how much licence fee they should be asked to pay?
E
(3) How should those who were denied allotment, despite the same
having become due as per the Rules, be compensated?
( 4) Should there by any out-of-turn allotment? If the answer be in
affirmative, how should it be regulated and what should be its limit?
F
(5) Should private citizens (to with, journalists, freedom- fighters,
artists and social workers) bi accommodated in Government quarters? If
so, on what terms.
( 6) Should political parties and other organisations be given allot- G
ment 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?
H
940
SUPREME COURTREPORTS(1996] SUPP.10 S.C.R.
A
(8) At what rate penalty has to be realised from those who were
B
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 reC quired 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?
D
We propose to deal with those questions seriatim.
Who should face eviction ?
9. This is 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)
E 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 :
F
"Category-I
Vacated list.
Category -II
Error list.
Category -III
Change from same type.
G
Category - IV
Change to Higher type.
Category-V
Medical cases within the existing policy.
Category-VI
Medical cases outside the existing policy.
H
Category-VII
Five Year category.
SHIV SAGAR TIWARI v. U.0.1. [ HANSARIA, J.)
941
Category-VIll
Category-IX
Category-X
Category-XI
· Infructuous cases.
Out-of-turn and above entitlement.
Functional grounds.
· Eviction cases." ·
10. The Committee, has gone·through the case of each of the outof-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. Its unanimous recommendation relating to the placement of
A
B
the allottees in the different categori~ as regards Types IV and above was C
initially as below :
Category of
No. of allottees
No. of allottees
allottees
included by the
included by the
Dte. of Estates
Committee
D
Category-I
236
347
Category-II
90
151
Category-Ill
18
5
E
Category-IV
285
97
Category-V
29
28
Category-VI
334
34
Category-VII
276
371
F
Category-VIII
386
518
Category-IX
60
58
Category-X
159
87
G
Category-XI
218
65
Total
2091
1761
11. The aforesaid recommendation came to be modified in the H
A
B
c
D
E
F
G
H
942
SUPREME COURTREPORTS[1996) SUPP.10 S.C.R.
supplementary report dated 10.10.1996 as under :
Category of
No. of allottees
No. of allottees
. allottees
included by the
included by the
Committee in its
Committee after
report dated
talcing into
26.9.1996.
account the
corrigendum
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."
12. The following is the Committee's view regarding Type III outof-turn allottees :-
Affidavit of
Commottee's
Dte. of Estates
recommendations
Category-I
28
347
Category-II
223
578
SHNSAGAR TIWARlv. U.0.1.[HANSARIA,J.)
943
Category-ID
112
136
A
Category-IV
221
90
Category-V
28
95
Category-VI
407
179
B
Category-VII
170
636
Category-VIII
157
176
Category-IX
29
50
c
Category-X
100
156
Category-XI
898
599
2373
No. of persons who
D
did not represent before
the director and/or were
not categor ised in his
affidavit
538
Total
2911
2911
E'
13. The Committee's recommendation is that apart from those who
are in Category I, namely those who had already vacated whose number
347 and 217 respectively, those allottees placed only in Categories IV, IX
and XI should be asked to vacate the·-Oovernment quarters presently,
under their possession. These categories are: (1) who were earlier occupyF
ing a lower type of accommodation and were allotted the present higher
type on out-of-turn basis (Category IV); (2) those to whom allotments were
made not only on out-of-turn basis but higher type of a house above to
their entitlement (Category-IX); and (3) those who have not been included
in any other category (Category XI). If we were to go by the recommen- G
dation of the Committee, the number of these allottees would be 220 in so
far as Types IV and above are concerned, and 739 for Type m. 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 condition 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 H
944
SUPREME COURTREPORTS[l996] SUPP.10 S.C.R.
A 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". This is what finds place in para 6.1 of
the report dated 26.9.1996.
14.