HANSARIA - (1.) THE Judgment of the court was delivered by .-
(2.) THE administrative law has of late seen vast increase in discretionary powers. But then, the discretion conferred has to be exercised to advance the purpose to subserve which the power exists. Even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. This proposition was rejected emphatically by the House of Lords in the a landmark decision of Pad field. This apart, as pointed out in United States v. Wunderlich: "Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some ... official, some bureaucrat.... 447 Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions." These high principles of administrative law have been placed at the forefront because, as would appear from what is being stated later, in the present case there was gross misuse of discretionary power relating to allotment of accommodation to government employees. As against the discretionary quota of 10.00 per cent, it shot up to 70.00 per cent; and on top of that 8768 houses were allotted by Stating that the same was being done on "Special Compassionate Ground". This naturally led to uproar and serious objection from those who were denied accommodation as per rules. After the present petition was entertained and the court went into the matter in depth, it was found that what had taken place was a scam, and a big scam at that. In the present case, we do not propose to say anything regarding the allegation that the allotments were made for extraneous consideration, as investigation relating to that is under progress. What we propose to examine rather is how best we can take care of illegality which has resented following out-of-turn allotments a galore. May we also observe that life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in urban areas is ordinarily at places away from one's own home and hearth, shelter would be necessary -be it a house or even a pavement. This court has dealt with cases of pavement-dwellers. The locus classicus in Olga Tellis and the latest rendering is in Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan. In the case at hand, we are, however, not concerned with those who per force occupy pavements near the places of their work. The primary subject-matter of the present petition is providing of residential accommodation in quarters built by the government for its employees highly or lowly paid. There are rules as to who would be entitled to which type of residence, which have been classified as Types I to IV, V(A), V(B), VI(A), VI(B), VII(A), VII(B) and VIII. The basis of entitlement is monthly emoluments of the employees. These are to be found in the Fundamental Rules (FR) which have been framed under the proviso to Article 309 of the Constitution; and Supplementary Rules (SR) made as permitted by FR 45. Having felt that the operation of these Rules may cause undue hardship, FR 5-A was inserted with effect from 6/2/1971 stating that where any Ministry or Department of government is of opinion that the operation of any of these rules may cause undue hardship to any person, that Ministry or Department, as the case may be, may by order, for reasons to be recorded in writing, relax the requirement of that rule to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner. The proviso to the Rule states that no such order shall be made except with the concurrence of the Ministry of Finance. Being concerned with the allotment of government quarters situate in Delhi, it may be pointed 448 out that the same is further subject to Allotment of government Premises (General Pool in Delhi) Rules, 1963 which had come into force on 15-5- 1963.
(3.) 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 persons. As per the figures given in "DELHI at a Glance: 1996, the number of central government employees in 1994-95 was around 2,15,000. As against this, the number of government quarters in DELHI is about 65,000. The paucity of government accommodation is thus apparent and speaks for itself when it is noted that the waiting period for Types 111 and IV quarters by July 1996 (when the position was said to have eased) was about 20 and 15 years respectively. This is not all. If one were to take a private accommodation on rent, as an employee would be compelled to do if government accommodation would not become available, the rent to be paid in a city like DELHI would eat away a large chunk of the carry-home pay. This explains the mad rush to get a government quarter allotted anyhow, by hook or by crook. The persons empowered and authorised to make allotments, being aware of the pressing need tend to misuse their powers. When the misuse is within tolerable limits, no uproar is heard, no media publication is seen. But when the magnitude of misuse assumes a menacing proportion, outburst of various types becomes noticeable and then a scam surfaces. The writ petition represents the scenario of what has come to be 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 the Indian Express of 5/9/1994 under the caption "Chirag Tale Andhera" (Darkness under the lamp). That news was about a son dying as his father was forced to vacate a government quarter. According to the petitioner, the news item made it crystal clear that toutism was prevalent in the Ministry of Urban Development, because of which money was said to prevail over the cause of needy employees. In the petition Shri Tiwari mentioned about various other anomalies relating to sub-letting and favouritism. He prayed that the respondents be directed not to allot quarters of Types V to VIII to anyone during the pendency of the petition and to order investigation about the corruption in allotment.;