S.D. BANDIversusDIVISIONAL TRAFFIC OFFICER, KSRTC & ORS.

                      [2013] 17 S.C.R. 1


                          S.D.BANDI                                A
                               v.
       DIVISIONAL TRAFFIC OFFICER, KSRTC & ORS.
                 (Civil Appeal No. 4064 of 2004)
                         JULY05, 2013
                                                                   B
         [P. SATHASIVAMAND RANJAN GOGOi, JJ.]
    Public Premises (Eviction of Unauthorised Occupants) Act,
1971-ss. 2(e), 2(g), 4, 5, 7, 9, 10, 11, 11Aand14-Unauthorised
occupation of Government accommodation beyond the period of
allotment- Grievances relating thereto-Held: It cannot be said thatc
at present there is no machinery to check eviction of unauthorized
occupants as well as recovery of arrears of rent including penal
charges- However, 1nspite of existing provisions! rules, directions
etc., persons from all the three branches of the State either by their
influence or by lengthy procedure as provided in the Act, continue to
slay in the government accommodation by paying paltry amount D
either by way of rent or penalty- In the circumstances, 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- Suggestions accordingly given by the
Supreme Court to precisely address the grievances of the Centre E
and the State governments in regard to the unauthorized occupants
-Fundamental Rules-FR 45, 45A and 458- Supplementary Rules
- SR 317-8-11 (2) and 317-8-22.
     The appellant was working as a Driver in the State Road
Transport Corporation. He was transferred to another city.
Challenging the order of transfer, the appellant filed Reference F
before the Industrial Tribunal. At the same time, he did not
vacate the government quarter allotted to him. The competent
officer under the Karnataka Public Premises (Eviction of
Unauthorised Occupants) Act, 1974 passed order of eviction
against the appellant. The order of eviction was confirmed by G
the District Judge in appeal. Aggrieved, the appellant filed writ
petition before the High Court which was allowed. The
respondent-Corporation preferred Writ Appeal which was
allowed by the impugned order and the appellant was directed

                                1                                   H
    2        SUPREME COURT REPORTS                [2013] 17 S.C.R.


A   to vacate the government quarter within a stipulated time.
          Challenging the said order, the appellant came up before
    this Court by way of special leave. This Court dismissed the
    appeal and directed the competent officer of the Corporation
    to at once evict the appellant from the quarter. Pursuantto the
B   said order, this Court, taking note of the factthat 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 thatthe 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
C   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
0   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.
         In order to eliminate the problem and frame workable
    guidelines in addition to the existing statutory provisions, this
E   Court appointed amicus curiae to assistthe Court. Theamicus
    curiae submitted report and suggested guidelines to be issued
    by this Court in regard to unauthorized occupation of
    government houses.
         Disposing of the matter, the Supreme Court
F      HELD: 1.1. The occupation of 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 who are in need and
G on the other is unable to effectively deal with the persons who
  continue to occupy unauthorisedly beyond the period
  prescribed. [Para 1] [6-D-E]
       1.2. Despite the Public Premises (Eviction of Unauthorised
    Occupants) Act, 1971, it is seen that it has not been effective
H
    S.D. SANDI v. DIVISIONAL TRAFFIC OFFICER,                       3
                       KSRTC
enough in dealing with the eviction inasmuch as the competent            A
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                B
affluentthat 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. [Para 2] [6-F-H]                                                   c
     Shiv Sagar Tiwari vs. Union of India and others (1997) 1 SCC
444: 1996 (10) Suppl. SCR 925- referred to.
     2.1. ltis 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           D
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. The Department also highlighted that for               E
allotment to Members of Parliament, it is the "House of
Committee" which controls such allotment and no further
guidelines are required for the same. It was also pointed out
that for the persons from special categories, viz.,journalists,
eminent artists, freedom fighters, social workers etc., guidelines       F
framed by this Court earlier, govern the issue and no further
direction is required. [Paras 16, 17, 18] [19-B-D]
     2.2. As per the details furnished by amicus curiae and
comments made by Union oflndia as well as some of the States
and the Union Territories, itcannotbesaidthatatpresentthere              G
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
                                                                         H
        ',I




    4             SUPREME COURT REPORTS              [2013] 17 S.C.R.


A   procedure as provided in the Act, continue to stay in the
    governmentaccommodation by paying paltry amount either by
    way of rent or penalty. In these circumstances, in addition to
    the statutory provisions, there is need to frame guidelines for
    the benefit of both Union of India/States and Union Territories
B   for better utilization of their premises. Suggestions accordingly
    given to precisely address the grievances of the Centre and
    the State governments in regard to the unauthorized occupants.
    [Paras 27 and 28] [20-H; 21-A-D]
         2.3. It is unfortunate that the employees, officers,
    representatives of people and other high dignitaries continue
C   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
D   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.
E   No law or directions can entirely control this act of disobedience
    but forthe self realization among the unauthorized occupants.
    [Para 29] [23-E-G]
                               Case Law Reference :
              1996 (10) Suppl. SCR 925 referred to       Para 7
F        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4064 of
    2004.
        From the Judgment and Order dated 25.03.2004 of the High
    Court of Karnataka at Bangalore in Writ Appeal No. 324/
    2002[S-KSRTC].
G          A. Mariarputham, AG, P. P. Malhotra, ASG, Ranjit Kumar(AC),
    T. S. Doabia, Dr. Manish Singhvi, Manjit Singh, AAG, AnjaniAiyyagari,
    (AC), Naveen R. Nath,S.W.A. Qadri, SushmaSuri,S. S. Rawat,Zaid
    Ali, Indira Sawhney, Gourav Sharma, Sunita Sharma, Rekha Pandey,
    B. V. Balaram Das, Vikas Bansal, D.S. Mahra, Riku Sarrna, Navnit
H
    SD. BANDI v. DIVISIONAL TRAFFIC OFFICER,
                                                                  5
                      KSRTC

Kumar, Corporate Law Group, Gopal Singh, Manish Kumar, Raja             A
Chatterjee, Abhijit Sengupta, Faisal M., A. Subhashini, Aruna Mathur,
Yusuf Khan, Movita, Arputham, Aruna & Co., Enatoli Serna, Amit
Kumar Singh, Irs had Ahmad, Atul Jha, Sandeep Jha, Dharmendra
Kumar Sinha, Ranjan Mukherjee, S. C. Ghosh, S. Bhowmick, V. G.
Pragasam, Praburamasubramaniam, S. J. Aristotle, Sunil Fernandes,
Vernika Tomar, Ashla Sharma, Shashank Lal, Raghav Chadha,               B
Khwairakpam Nob in Singh, Sa pan Biswajit Meitoi, Vivekta Singh,
Tarjit Singh, Kamal Mohan Gupta, Anil Grover, Noopur Singhal, S. K.
Kapoor, Gopal Singh, Ritu Raj Biswas, B. Balaji, R. Rakesh Sharma,
B. P. Singh Dhakray, Shakti Singh Dhakray, D.B. Vohra, Asha G.
Nair, Mukesh Verma, Yash Pal Dhingra, Hemantika Wahi, Nandini           c
Gupta, D. Mahesh Babu, Mayur R. Shah, Savita Devi, Amit K. Nair,
Suchitra H., M. Balasudodu, B. S. Banthia, Pragyan P. Sharma,
Rupesh Gupta, Mandakini Sharma, Gautam Dhamija, Surendra Kr.
Maurya, P. V. Yogeswaran, Bijan Ghosh, Rituraj Choudhary, Mayur
Chaturvedi, Liz Mathew, Sana Hashmi, Manoj Saxena, Shwetank
Sailakwal, Ramkrishna, Vipin Kumar Jain, AbhayKumar, U. P. Singh,       D
V. Mohana, Suraj Singh, Pradeep Misra, Dr. Krishan Singh Chauhan,
Ajit Kumar Ekka, Kartar Singh, Ranjan Dwivedi, B. B. Singh, Atishi
Dipankar, G. N. Reddy, Abha R. Sharma, K. R. Sasiprabhu, Ravindra
Kumar, Ashok K. Srivastava, Aruneshwar Gupta, Arun K. Sinha,
JatinderKumar Bhatia, Anil K. Jha, Ashok Mathur, Anis Ahmed Khan,       E
Ajit Pudussery, Bharat Sangal, Harinder Mohan Singh, K. K. Mohan,
Kamini Jaiswal, Lily Isabel Thomas, Lakshmi Raman Singh, M. K.
Garg, M. P. Jha, M. C. Dhingra, Manoj Swarup &Co., Naresh K.
Sharma, P. N. Gupta, P. D. Sharma, Pramod Dayal, Praveen Jain,
P. Narasimhan, R. D. Upadhyay, Sushil Kumar Jain, ShakeelAhmed,
Salish Vig, Shailendra Swarup, Shrish Kumar Misra, Tara Chandra         F
Sharma, T. V. Ratnam, Ugra Shankar Prasad, Respondent-In-
Person, Dr. S. K. Verma, Rachna Gupta, R. Ayyam Perumal, Shakil
Ahmed Syed, Sandhya Goswami, V. K. Verma, D. Bharathi Reddy,
Krishnanand Pandeya, Jana Kalyan Das, K. L. Janjani, Ajay K.
Agrawal, Shiv Sagar Tiwari, Radha Shyam Jena, Rakesh                    G
Uttamchandra Upadhyay, Ghanshyam Joshi, Pradeep Kumar Bakshi,
Anil Shrivastav, Sanjay R. Hegde, Pavan Kumar, Kumud Lata Das,
VishwajitSingh, Shail KumarDwivedi, ShankarDivate,Ambhoj Kumar
Sinha, Niranjana Singh, V. K. Monga, Ajit Kumar Pande, Kamakshi S.
Mehlwal, Sujata Kurdukar, Naresh Kumar, V. N. Raghupathy, Sanjay
Jain, Ramesh Chandra Pandey, L. C. Goyal, Jagjit Singh Chhabra,         H
    6          SUPREME COURT REPORTS                    [2013] 17 S.C.R.


A   Dr. Kailash Chand, Dr. Sushil Balwada, Rajesh Srivastava, Anitha
    Shenoy, RameshwarPrasad Goyal, Rajesh Aggarwal, C. D. Singh,
    Ajay Sharma, T. Mahipal, Sumita Hazarika, Aniruddha P. Mayee,
    Sharmila Upadhyay, Kuldip Singh, Alok Kumar, Vikas Mihta, Prakash
    Kumar Singh, Amit Pawan, Anil Katiyar, Abhishek Chaudhary, Ap &
    J Chambers, P. K. Jain, P. P. Singh, E. C. Vidya Sagar, Aribam
B   GuneshwarSharma, T. V. Ratnam, Kishan Datta, A. N. Bardiyar, M.
    Qamaruddin, Pankaj Kumar Verma, Raj Vardhan, Dalveer Singh
    Yadav, Om Prakash Tripathi, Shree Parkash Vashney, Shiv Shankar
    Tripathi, J.P. Verma, Usha Singh, NirmalShrivastava, DavjeetSingh,
    Kiran Singh, Sushi! Kumar Bajpai, Shamsher Bahadur Singh, Shahid
c   Hussain, Jawahar LalVishkarma, S. P. Shukla, Hari Govind Swaroop
    Mishra, Direndra Kumar Agarwal, Veera Srivastava-Respondent-in-
    Person, P. V. Yogeshwaran for the appearing parties.
          The Judgment of the Court was delivered by
          P. SATHASIVAM, J. 1. The instant case relates to the occupation
D   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
E   in not being able to accommodate those persons who are in need
    and on the other is unable to effectively deal with the persons who
    continue to occupyunauthorisedly beyond the period prescribed.
        2. Despiie the Public Premises (Eviction of Unauthorised
  Occupants) Act, 1971 (in short 'the Act'), it is seen that it has not been
F 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
G 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.
H
    S.D. SANDI v. DIVISIONAL TRAFFIC OFFICER,                            7
             KSRTC [P. SATHASIVAM, J.]
       3. Before proceeding further, it is useful to find out the             A
-circumstances and basis on which the matter was agitated.
       One Shri S. D. Sandi filed the present appeal against the order
 dated 25.03.2004 passed by the High Court of Kamataka at Bangalore
 in W.A. No. 324 of 2002 whereby the Division Bench ofthe High Court
 while disposing ofthe appeal filed by the respondents herein granted         B
 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 (forshort"the Corporation"), Mysore
 Division at Mysore. By order dated 31.05.1992, he was transferred to
 the Man galore Division and for joining the place of duty, he was relieved
 from the duty of Mysore Division on 12.06.1997. Challenging the              c
 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               D
 an orderof eviction againstthe appellant in KPP No.3of1998. Against
 the said order, the appellant preferred an appeal before the 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        E
 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 of2002 againstthe order dated 10.12.2001 in W.P. No.          F
  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 byway of special leave.
      4. By order dated 13.07.2004, after hearing all the parties, this       G
 Court dismissed the appeal and directed the competent 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           H
    8         SUPREME COURT REPORTS                    [2013] 17 S.C.R.


A for years together to thedetriment 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
B 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,
c 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. AnjaniAiyyagari, learned
0
  counsel as amicus curiae to assist the Court.
         7. Mr. Ranjit Kumar, learned amicus curiae, after h.ighlighting
  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,
E 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,
F 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.
         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
G 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:-
H        "ll(a) Menace of unauthorized occupation is required to be dealt
   S.D. SANDI v. DIVISIONAL TRAFFIC OFFICER,                          9
            KSRTC [P. SATHASIVAM, J.]

    with firmly and the charging of penal rent/market rent is not a        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,   B
            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)                        C
             ..... 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 towithdrawfrom
             such property or its possession or use, when called           D
             upon to do so by that another person by notice in writing,
             duly served upon him, by the date specified inthe notice,
             is said to commit "criminal tresspass". (Uttar Pradesh)
    Thus, in these two States, the Governments are in a position to
    file criminal proceedings forthe offence of criminal trespass in       E
    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 wou Id
                                                                           F
like to make amendments on similar lines vide Orders dated
24.07.2007and19.09.2007, The response of the various States was
as under:-
      (a)    Union of India said 'No'
      (b)    The Government of Bihar said 'No'
                                                                           G
      (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.
                                                                           H
    10          SUPREME COURT REPORTS                  [2013) 17 S.C.R.


A         (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
B                amendment.
          (h)    The State of Uttarakhand said that the proposal is sent
                 for amendment.
          (i)    The State of Nag aland said that it will take steps for the
                 amendment.
c         0)     The State of Sikkim said 'No'
          (k)    The State of Mizoram said that it will bring about the
                 amendment ifthe Supreme Court directs.
          (I)    The State of Manipur said that it had amended and sent
                 it to the Union of India for approval.
D
          (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.
E        (I II) Though the Act provides under Section 11 foroffences and
         penalty for unlawful occupation ar:id makes the offence
         cognizable under Section 11A, it has been found as a matter of
         practice thatthe Estate Officers do not ordinarily take any action
         under the said Section because of the proviso to Section 11 (1)
         which reads as under:-
F
                 "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
G                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
H                occupant continues to unlawfully occupy the ,government
S.D. BANDI v. DIVISIONAL TRAFFIC OFFICER,                       11
         KSRTC [P. SATHASIVAM, J.]
       accommodation without fear of any prosecution.                 A
 fl/   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         B
       are provisions under the Public Demand Recovery Act
       and Revenue Recovery Act which can be applied forthe
       recovery of the arrears as arrears of land revenue,
       because ifthelotality of the government houses in all the
       States of India are taken into account .. the amount due
       works out to several crores.                                   c
 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 permi;;sible period and guidelines have also
       been framed forthat purpose. However, these rules and          D
       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 ChapterVlll Division 26
       made under Fundamental Rule 45 provide for rules for           E
       allotment of residences vide SR 311 to 316. Similarly,
        under Chapter 268, the Allotment of Government
        Residences (General Pool in Delhi) Rules, 1963 are
       provided in SR 317.
       What is of significance is that while providing these rules,
       the government while allowing persons to continue to           F
       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 cannottake any penal       G
       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
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    12        SUPREME COURT REPORTS                      [2013] 17 S.C.R.


A                 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:-
8         (i) Atthe 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
C   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.
          (iii) The proviso to Section 11 (1) of the Act should be declared
    ultra vi res as it is in conflict with the main provisions of providing for
    offences and penalty for the unauthorized occupation of government
0
    h(Juses.
         (iv) Any person who is in service and continues to unauthorisedly
    occupy the government accommodation beyond the period of
    retention sl1ould be suspended immediately, pending disciplinary
    action as per the undertaking given at the time of taking the
E   Governmentquarter.
          (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
F   forthe breach of the privileges which a Member/Minister enjoys and
    the appropriate Committee should recommend the same to the
    Speaker/Chairman fortaking deterrent action.
       (vi) In view of paucity of Government accommodation, all the
  allotments to persons belonging to categories other than the three
G 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
H
    S.D. SANDI v. DIVISIONAL TRAFFIC OFFICER,                        13
             KSRTC [P SATHASIVAM, J.]
should be removed and no more memorials should be allowed in               A
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       s
of unauthorized occupants from public premises. Section 2(e) ofthe
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         c
     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;                              D
     (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        E
     which is a subsidiary (within the meaning of that Act) ofthe 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             F
     without authority for such occupation, and includes the
     continuance in occupation by any person of the public premises
     afterthe authority (whether byway 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."        G
     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
ofrent or damages in respect of public premises. Section 9 speaks
about appeal against the order of the Estate Officer. In terms of          H
    14          SUPREME COURT REPORTS                   [2013] 17 S.C.R.


A   Section 10, the order passed by the Appellate Authority shall be final
    and shall not be called in question in any original suit, applicatiori or
    execution proceedings whereas Section 11 speaks about offences
    and penalty.
         13. Apart from the above provisions of the Act. for the benefit of
B   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
c        residences, of such buildings owned or leased by it, or such
         portions thereof, as the Central Government may make available
         forthe 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
D        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
E                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
F                construction; or when this is not known;
          (b)    the present value of the residence, including the value o·f
                 the site."
         "F.R. 45-B. I. This rule applies to Govern'ment servants other
         than those to whom Rule45-Aapplies or than those occupying
G        residence belonging to the Indian Railway or rented atthe cost
         of railway revenues.
         II. For the purpose of sub-clause(b) Clause Ill, the capital cost
         of a residence owned by Government shall not include the cost
         or value of such special services and installations (including
H
    SD. BANDI v. DIVISIONAL TRAFFIC OFFICER,                           15
                 KSRTC [P SATHASIVAM, J]
     furniture, tennis courts and sanitary, water supply or electric         A
     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        B
     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           c
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.             D
Though the said order was confined to the National CapitalTerrifory
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
                                                                             E
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. atthe national             F
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, · G
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
                                                                         ,H
    16       SUPREME COURT REPORTS                     [2013] 17 S.C.R.


A Urban Development. Since the department concerned has expressed
  its views about suggestions put forward by learned amicus, we intend
  to incorporate the same which are as under:-
         "1. It is submitted thatthe allotment of government house to the
         employees/officers of the three wings of the government, the
B        Legislature, the Executive and the Judiciary is made 1,1nderthe
         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
c        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
D
         allottee sometimes retains the house for a few days beyond the
         permissible retention period for which damages rate is charged
         vis-a-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
E        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.
F        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
         oflicence fee and damages. The withheld amount of gratuity is
         released by the employeronlyafterthe retired employee obtains
G        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 notturn 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.
H
S.D. BANDI v. DIVISIONAL TRAFFIC OFFICER,                        17
         KSRTC [P. SATHASIVAM, J.]
  3. It is submitted that Section 11 (1) of the Act deals with three   A
  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
                                                                       B
  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     C
  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    D
  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 underSR-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           E
  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        F
 is charged vis-a-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 fordisciplinaryaction including    G
 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
 the Act. Moreover, suspension is resorted to under certain specific
 circumstances as a matter of administrative action under CCS
 (CCA) Rules.                                                          H
    18        SUPREME COURT REPORTS                     [2013] 17 S.C.R.

A         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
B         allotted as per their entitlement by the House Committee
          concerned. The allotment to Members of Parliament is made by
           ttie·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
c         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.
D         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 SagarTiwari vs. Union of India.
E         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
F        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 SagarTiwari          .(
         IJs. Union of India. The lease agreement has been executed
         between the Government of India and the respective Trusts etc.
G        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 2000 put
         complete ban on the conversion of Government bungalows into
         memorials of the departed leaders. As such, the suggestion
H        given by the amicus curiae tias already been taken care of. The
    S.D. BAND! v. DIVISIONAL TRAFFIC OFFICER.                        19
             KSRTC [P. SATHASIVAM, J.]
      present guidelines provide for allotment of accommodation to          A
      non-Government organizations which are working for national
      interestorfor 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           B
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             C
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, social
workers etc., guidelines framed by this Court earlier, govern the           D
issue and no further direction is required.
      19. On behalf of the State of Sikkim, the Principal Resident
Coqimissionerhas 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           E
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 faras
the employees of the State Government, executive and judiciary are          F
concerned, there is no objection in taking an undertaking as suggested
by this Court. However,11ccording 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                G
separate rules called Madhya P.radesh Government Quarters
Allotment Rules, 2000 which provides effective mechanism for
eviction of unauthorized persons and recovery of rent, if any.
       21. On behalf ofthe State of Andhra Pradesh, Principal Secretary
to Government, General Administration (Accomm.) Department has              H
    20        SUPREME COURT REPORTS                    [2013] 17 S.C.R.


A 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
s comply with further/additional directions being issued by this Court.
        23. Union Territory of Puducherrythrough 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
C and instructions of the Government of India are being followed in the
  Union Territory of Puducherry.
          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
D   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
E   propositions made by learned amicus curiae.                                •
          26. On behalfofthe 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.
F   According to him, in respect of arrears of rent a~d 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 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
G   authority for such occupation, he shall be punishable with imprisonment
    fora term which may extend to 1 yearorfine which may extend to Rs.
    1,000/-orwith 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.
H         27. As per the details furnished by learned amicus curiae and
    S.D. BAND! v. DIVISIONAL TRAFFIC OFFICER,                           21
             KSRTC [P SATHASIVAM, J.]
various comments made by Union of India as well as some of the                 A
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         B
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   c
premises.
     28. The following suggestions would precisely address the
grievances of the Centre and the State governments in regard to the
unauthorized occupants:
Suggestions:                                                                   D
       (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.
                                                                               E
       (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.
                                                                               F
       (iii)   The principles of natural justice have to be followed while
               serving the notice.
       (iv)    After following the procedure as mentioned in SR 317-
               B-11 (2) and 317-8-22proviso1and2, within ?working
               days, send a show cause notice to the person concerned
               in view of the advance intimation sent three months             G
               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.
                                                                               H
    22           SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A        (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 Actthen, in the first
                  instance, an extension of not more than 30 days should
B                 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
c               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 •
D                 and thereafter, reasonable force as per Section 5(2) of
                  theAct maybe 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.
E        (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.
F
         (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
G              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 of30days in order to eliminate
               unnecessary delay in disposal of such cases.
H
   S.D. BAND\ v. DIVISIONAL TRAFFIC OFFICER,                          23
            KSRTC [P SATHASIVAM, J]
       (xvii) The liberty of the appellate officer to condone the delay      A
                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              B
                Parliament, the matter of unauthorized retention should
                be intimaled 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                C
                appropriate action/eviction within a time bound period.
       (xix) Judges of ariy forum shall vacate the official residence
                within a period of one month from the date of
                 superannuation/retirement. However, after recording
                sufficientreason(s), thetime maybe extended by another       D
                 one month.
       (xx) Henceforth, no memorials should be allowed in future in
                 any Government houses earmarked for residential
                 accommodation.
      29. It is unfortunatethatthe employees, officers, representatives      E
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           F
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 this act     G
of disobedience buffor 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.
Bibhuti Bhushan Bose                                  Matter Disposed of.