Delhi High Court
Ambika Soni vs Union Of India & Ors on 30 July, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th July, 2015
+ W.P.(C) No.5913/2015
AMBIKA SONI ..... Petitioner
Through: Mr. KTS Tulsi, Sr. Adv. with Mr.
Gaurave Bhargava & Mr. Kuber
Bodd, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.
Jasmeet Singh, CGSC, Mr. Akash
Nagar, Mr. Shreshth Jain, Ms. Kritika
Mehra & Ms. Aastha Jain, Advs. for
UOI.
Mr. J.P. Sengh, Sr. Adv. with Ms.
Zubeda Begum, Ms. Sana Ansari &
Ms. Vanessa Singh, Advs. for R-
4/Rajya Sabha Secretariat.
Mr. Rajiv K. Garg and Mr. Ashish
Garg, Advs.
AND
+ W.P.(C) No.5918/2015
KUMARI SELJA ..... Petitioner
Through: Mr. KTS Tulsi, Sr. Adv. with Mr.
Gaurave Bhargava & Mr. Kuber
Bodd, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.
Jasmeet Singh, CGSC, Mr. Akash
Nagar, Mr. Shreshth Jain, Ms. Kritika
Mehra & Ms. Aastha Jain, Advs. for
W.P.(C) Nos.5913/15 & 5918/2015 Page 1 of 26
UOI.
Mr. J.P. Sengh, Sr. Adv. with Ms.
Zubeda Begum, Ms. Sana Ansari &
Ms. Vanessa Singh, Advs. for R-
4/Rajya Sabha Secretariat.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petitioners belong to the Indian National Congress Party (INC)
and are former Union Cabinet Ministers and now are Members of Rajya
Sabha. They have filed the petitions impugning notices, both dated 5th May,
2015, of the Directorate of Estate (DoE), Ministry of Urban Development
(MUD), Government of India, cancelling the allotment of Type-VIII,
Bungalow No.22, Akbar Road, New Delhi and Bungalow No.7, Moti Lal
Nehru Marg, New Delhi in their respective names and allotting Type-VII,
Bungalow No.84, Lodhi Estate, New Delhi and Bungalow No.AB-14,
Mathura Road, New Delhi to the petitioners respectively.
2. Vide order dated 5th June, 2015 of the Vacation Judge, notice of both
the petitions was issued and in the interregnum operation of the impugned
notices dated 5th May, 2015 stayed.
3. Counter affidavits have been filed by the respondents No.1 to 3 i.e.
Union of India, DoE, Estate Officer as well as by respondent No.4 Rajya
W.P.(C) Nos.5913/15 & 5918/2015 Page 2 of 26
Sabha Secretariat (RSS) and rejoinders to the counter affidavit of
respondents No.1 to 3 has been filed.
4. The senior counsel for the petitioners, learned ASG for the
respondents No.1 to 3 and the senior counsel for the respondent No.4 RSS
were heard on 2nd July, 2015 and judgment reserved.
5. The senior counsel for the petitioners argued with respect to W.P.(C)
No.5918/2015 stating that the position in the other writ petition is identical /
similar. It was argued, i) that the petitioner therein was elected to the Rajya
Sabha from Haryana in January-February, 2014; ii) that consequent to
approval of the competent authority, the DoE under the MUD vide letter
dated 10th March, 2014 placed General Pool Bungalow No.7, Moti Lal
Nehru Marg, New Delhi in the Rajya Sabha Pool on revert-back basis, for
specific allotment to the petitioner in her capacity as a Member of Rajya
Sabha as regular accommodation; iii) that on 11th April, 2014, the RSS
allotted the said bungalow to the petitioner in her capacity as a Member of
Rajya Sabha, till her retirement or her ceasing to be a Member of the House;
iv) that on 26th May, 2014, upon composition of the 16th Lok Sabha, a new
Union Council of Ministers was sworn in; v) that though the term of the
W.P.(C) Nos.5913/15 & 5918/2015 Page 3 of 26
petitioner in the Rajya Sabha is till 2020 but the DoE had vide impugned
notice dated 5th May, 2015 unilaterally cancelled the allotment of the said
Type-VIII bungalow, without notice to the petitioner, and allotted Type-VII
bungalow to the petitioner.
6. The senior counsel for the petitioners contended:
(a) that the purpose of constituting a Rajya Sabha Pool of
Accommodation separately from the General Pool is frustrated
if the DoE under the MUD without permission of the House
Committee of the Rajya Sabha which alone can cancel the
allotment of a house made from Rajya Sabha Pool of
Accommodation, is permitted to cancel the allotment; that the
intent of creating a different pool of accommodation for
Legislature was to protect it from the Executive;
(b) that once a General Pool house has been vested in the Rajya
Sabha Pool of Accommodation, the DoE under the MUD
cannot cancel the allotment thereof made by the RSS; that a
minister cannot act qua a pool house belonging to the
W.P.(C) Nos.5913/15 & 5918/2015 Page 4 of 26
Legislature without the consent of the House Committee
dealing with that pool;
(c) photocopy of Chapter XVII-C titled House Committee, of
―Rules of Procedure and Conduct of Business in the Council of
States‖ was handed over to show that there has to be a House
Committee of 10 members nominated by the Chairman with the
function inter alia of dealing with all matters relating to
residential accommodation of the Members and it was
contended that the cancellation of a house allotted to a member
of the Rajya Sabha by virtue of such membership can only be
with the consent of the said House Committee and which House
Committee had not even been approached;
(d) that allotment of a house is a perquisite of a Rajya Sabha
Member;
(e) that the DoE has thus committed a breach of privilege of the
Rajya Sabha and in which respect representation has already
been made and the Chairman of the House Committee had also
written to the MUD in this regard; that even otherwise the DoE
W.P.(C) Nos.5913/15 & 5918/2015 Page 5 of 26
had not given any notice to the Rajya Sabha Housing
Committee of revoking the earlier vesting of the house in the
Rajya Sabha Pool of Accommodation;
(f) that such actions of the DoE under the MUD now under the
control of the Bharatiya Janta Party (BJP) is with an intent to
prevent the petitioners from performing their duties and
functions as members of the Opposition Party;
(g) that this is also evident from the petitioners, being member of
the political party in opposition, being targeted, victimized and
discriminated against; that there were several other persons
including Ex-Members of the Rajya Sabha wrongfully retaining
accommodation but no action had been taken against them and
the respondents No.1 to 3 cannot be permitted to follow a
policy of pick and choose;
(h) reliance in this regard was placed on S.D. Bandi Vs. Divisional
Traffic Officer, KSRTC (2013) 12 SCC 631 and it was
contended that an objective criteria has to be followed and the
W.P.(C) Nos.5913/15 & 5918/2015 Page 6 of 26
petitioners cannot be picked up for action merely because they
belong to the political party in opposition;
(i) that as per the terms and conditions of allotment of the said
house to the petitioner, the allotment could be cancelled either
upon the petitioners ceasing to be Members of the House or
committing any breach of any of the terms of allotment;
(j) that it was not the allegation of the respondents No.1 to 3 that
the petitioner had committed any breach;
(k) reliance was placed on Mrs. Asha Sharma Vs. Chandigarh
Administration (2011) 10 SCC 86 to contend that there could
be no arbitrariness in State action;
(l) that the Parliament will not be able to function if the Executive
is allowed to ride roughshod;
(m) that if the said state of affairs is allowed to continue, the same
will sound the death knell for democracy in the country;
7. It was enquired from the senior counsel for the petitioners, how the
performance of the petitioners as a Member of the Rajya Sabha or as a
W.P.(C) Nos.5913/15 & 5918/2015 Page 7 of 26
member of political party in opposition was dependent on whether a
Type-VIII or a Type-VII house is allotted to them. It was further enquired,
whether the belief and faith of the petitioners in the ideology of the political
party to which they belong or their sense of duty as Members of the Rajya
Sabha was so weak, to be effected by the fact whether they are allotted a
house or not or whether they are allotted a Type-VIII house or a Type-VII
house. It was further put to the senior counsel for the petitioners whether the
duties and obligations of the petitioners as Members of the Rajya Sabha and
as representative of the people of the State which had elected them, were
dependent upon whether they are given a bigger house or a smaller house.
8. The senior counsel for the petitioners of course could not answer in
the affirmative.
9. It was then enquired, as to how could it be said that the taking away of
a Type-VIII house and instead thereof giving of Type-VII house to the
petitioners could be said to be sounding a death knell for democracy and
whether these petitions, concerned merely with allotment of one or the other
type of house, called for a political twist and colour being given to the
matter.
W.P.(C) Nos.5913/15 & 5918/2015 Page 8 of 26
10. The senior counsel for the petitioners however contended that the
matter requires such arguments.
11. The right in law of the petitioners, to retain the Type-VIII houses was
then enquired.
12. Attention was invited by the senior counsel for petitioners to the letter
dated 10th March, 2014 of the DoE, to the RSS, conveying the approval of
the competent authority for the placement of General Pool Bungalow No. 7,
Moti Lal Nehru Marg, New Delhi at the disposal of the Rajya Sabha Pool on
revert-back basis for specific allotment to the petitioner as member of Rajya
Sabha and further stipulating that on vacation of the bungalow by the
petitioner, the bungalow shall revert-back to the General Pool and the RSS
shall not allot it to any other person. Attention was also invited to the letter
dated 11th April, 2014 of the RSS allotting the said accommodation to the
petitioner as regular accommodation and with the stipulation that the
petitioner could retain it for a maximum period of one month after
retirement, resignation, removal or otherwise on ceasing to a Member of
Parliament. On the basis thereof it was contended that the DoE having
vested it in the Rajya Sabha Pool for allotment to the petitioner and to be
W.P.(C) Nos.5913/15 & 5918/2015 Page 9 of 26
reverted back only on the petitioner ceasing to be a Member of the Rajya
Sabha and the RSS having allotted the said house to the petitioner with the
condition that she could not retain it after one month of ceasing to be a
Member of Parliament, the house could not be taken away before that.
13. It was however enquired from the senior counsel whether not the right
of the RSS as well as of the petitioner was at best as of a licensee and
whether not such licence was revocable at any time and the remedy for
wrongful revocation could at best be damages, as provided in Section 64 of
the Indian Easements Act, 1882.
14. Arguments again of the action being political and anti-democratic
were raised. Reliance was also placed on para 7 of Smt. Ganeshi Bai Vs.
Union of India 2005 (83) DRJ 1 where a Single Judge of this Court
observed that while there may be urgency in ejecting persons from public
premises but this urgency could not ride roughshod over the basic
requirements of social dealings which required giving of an opportunity; it
was argued that no opportunity had been given to the petitioner and
straightaway cancellation order had been issued. Reliance was also placed
on para 24 of State of Punjab Vs. V.K. Khanna (2001) 2 SCC 330 on the
W.P.(C) Nos.5913/15 & 5918/2015 Page 10 of 26
dereliction of duty by a government servant. Reference was made to para 9
of Wing Cdr. (Dr.) Sushil Kumar Vs. Union of India
MANU/DE/9804/2006 on the aspect of mala fides in the jurisprudence of
power. Though in the compilation handed over, copies of Harbanslal
Sahnia Vs. Indian Oil Corporation Ltd. (2003) 2 SCC 107 and S. Rajdev
Singh Vs. Union of India ILR (1990) 2 DEL 220 are also contained but no
reference was made thereto.
15. The senior counsel for the petitioners also invited attention to
Annexure-P9 to the petition being Clause 4.18 of Handbook for Members of
Rajya Sabha which entitles the Members of Rajya Sabha to apply for regular
residential accommodation from Rajya Sabha Pool and which applications
are to be put up before the Chairman of the House Committee which will
allot accommodation subject to availability, keeping in view the guidelines
as under:
Category of M.P. Entitlement of
Bungalows / Flats
―1. (i) Former Union Cabinet Minister and Type VIII
Former Speaker of Lok Sabha / Former
Governor of a State / Former Chief Minister
of a State.
W.P.(C) Nos.5913/15 & 5918/2015 Page 11 of 26
2. (i) Former Union Cabinet Minister / Former Type VII
Governor of State / Former Chief Minister of
State / Former Speaker of Lok Sabha
(ii) Members who have completed - three
full* terms in the Lok Sabha / Rajya Sabha.
3. (i) Former Ministers of State in the - Type VI Union
Cabinet bungalows /
MS flats / twin flats.
(ii) Former Deputy Chairman, Rajya Sabha /
Former Deputy Speaker, Lok Sabha.
(iii) Former Cabinet Ministers / Speakers in
States
(iv) Members who have completed one full*
term in Lok Sabha / Rajya Sabha.
(v) Nominated Members.
(vi) Floor leaders of national parties in Rajya
Sabha recognized by the Election
Commission.
4. First term Members of Parliament. Type V single flats /
bungalows.
* One full term in Lok Sabha means the period from the date of constitution of
Lok Sabha to the date of its dissolution. However, one full term in Rajya Sabha
means 6 years.‖
16. It was contended by the senior counsel for the petitioners that each of
the petitioners is a former Union Cabinet Minister besides now being a
W.P.(C) Nos.5913/15 & 5918/2015 Page 12 of 26
Member of the Rajya Sabha and is thus entitled to Type-VIII and not Type-
VII accommodation under the aforesaid guidelines.
17. Finding some ambiguity in Categories Nos.1 and 2 of the aforesaid
guidelines, it was enquired from the senior counsel whether the petitioner
would fall under Category 1 or Category 2.
18. The senior counsel for the petitioners of course denied that there was
any ambiguity and reiterated that the petitioners are entitled to Type-VIII
accommodation.
19. On enquiry, it was informed that the respondent No.4 RSS in its
counter affidavit has supported the petitioner. In this view, the senior
counsel for the respondent No.4 RSS was heard before hearing the
respondents No.1 to 3 who are opposing the petition.
20. The senior counsel for the respondent No.4 RSS on enquiry informed
that there are no rules or documents creating the Rajya Sabha Pool of
Accommodation. On enquiry, whether any proceedings had been taken on
the breach of privilege notice given by the petitioners, it was informed that
the said notices were under consideration. It was further enquired whether
W.P.(C) Nos.5913/15 & 5918/2015 Page 13 of 26
the Rajya Sabha Pool had surrendered any other accommodation to the
General Pool against vesting of the subject houses. The answer was in the
negative.
21. The stand of the respondent No.4 RSS as to the entitlement of type of
accommodation to which the petitioners are entitled to, Type-VIII or Type-
VII, was enquired. The senior counsel for the respondent No.4 RSS on
instructions stated that eligibility of both the petitioners is of Type-VII
accommodation. To avoid any ambiguity, the statement to this effect was
recorded in the order dated 2nd July, 2015 supra while reserving the
judgment in the matters.
22. Once according to the respondent No.4 RSS itself, from which the
petitioners claim allotment, the petitioners are not entitled to the Type-VIII
accommodation which they occupy and their entitlement was / is to the
Type-VII accommodation which has now been offered to them, it was
enquired from the senior counsel for the petitioners what remained in the
challenge.
W.P.(C) Nos.5913/15 & 5918/2015 Page 14 of 26
23. The senior counsel for the petitioners of course contended that the
stand of the RSS was incorrect and in any case, the petitioners having been
allotted the accommodation, the same cannot be taken away from them.
24. It was further enquired whether not the House Committee which had
allotted the accommodation to the petitioners was bound by the guidelines
aforesaid and not competent to allot accommodation beyond entitlement.
25. The senior counsel for the petitioners responded that the powers of the
House Committee remained untrammeled by the guidelines and the House
Committee could allot accommodation beyond entitlement also.
26. It was put to the senior counsel for the petitioners whether not it was
improper on the part of the petitioners as Members of the Legislature and
law makers to contend contrary to the law / rules which are of their own
making and whether not the petitioners, by refusing to abide by such rules,
are sending a wrong signal to the citizens of the country, instead of being
role models to the citizenry.
W.P.(C) Nos.5913/15 & 5918/2015 Page 15 of 26
27. However, the petitioners were not persuaded and insisted on retaining
the Type-VIII accommodation, without being able to establish any right
thereto.
28. Before the learned ASG commenced his arguments, finding that the
allotment of the aforesaid Type-VIII houses to the petitioners was on 5th
March, 2014 and 11th April, 2014, just prior to the General Elections, 2014
to the Lok Sabha held from 7th April, 2014 to 12th May, 2014, it was
enquired from him whether in the counter affidavits filed, plea of mala fides
in the matter of allotment of houses beyond entitlement of the petitioners,
just before the change of power was on the anvil, had been taken.
29. Learned ASG replied in the negative and on further query whether the
same was out of the feeling of brotherhood amongst the political parties,
chose not to reply.
30. Learned ASG at the outset contended that allotment of Type-VIII
houses to the petitioners, even as per the guidelines for allotment of houses
published by Rajya Sabha and relying whereon the petitions have been filed,
was wrong / incorrect. It was contended that only those Members of the
Rajya Sabha are entitled to a Type-VIII house who in the past have been a
W.P.(C) Nos.5913/15 & 5918/2015 Page 16 of 26
Union Cabinet Minister as well as either Speaker of the Lok Sabha or
Governor of a State or Chief Minister of a State. On enquiry as to how a
person could simultaneously be a Union Cabinet Minister and also a Speaker
of Lok Sabha or a Governor of a State or a Chief Minister of a State, it was
stated that they could have been so at different times. It was explained that
Members of Parliament who in the past have occupied such dual offices only
are entitled to the Type-VIII houses and Members of the Rajya Sabha who in
the past have either been a former Union Cabinet Minister or a Governor of
a State or a Chief Minister of a State or a Speaker of the Lok Sabha i.e. have
in the past occupied only one of such offices, are entitled to Type-VII house.
31. It was further contended that the argument of the petitioners, of no
opportunity of hearing having been given, is also misconceived inasmuch as
after the notices dated 5th May, 2015 proceedings under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 (PP Act) were undertaken
against each of the petitioners and which they contested and in which orders
of eviction had been passed. It was further argued that the writ petitions
were not maintainable for this reason also and the remedy if any was to
appeal to the District Judge under Section 9 of the PP Act and which remedy
the petitioners had not availed. It was further contended that the DoE
W.P.(C) Nos.5913/15 & 5918/2015 Page 17 of 26
remains the licensor and entitled to cancel allotments beyond the entitlement
of the petitioners and this right of the DoE remains unaffected by placement
of accommodation in Rajya Sabha Pool of Accommodation. It is also stated
that though presently there is no Type-VII accommodation available in
Rajya Sabha Pool but the petitioners are not being left homeless and have
been offered Type-VII accommodation from General Pool.
32. It was immediately enquired from the senior counsel for the
petitioners, why he in his opening arguments did not inform of the
proceedings under the PP Act and in the face thereof how could the
argument of no opportunity having been given be taken.
33. The only reply was that the same has been pleaded in the petition
(though not argued) and that even before the notice dated 5 th May, 2015, an
opportunity of hearing has to be given.
34. Attention of the senior counsel for the petitioner in this regard was
drawn to the judgment of Division Bench of this Court in Maruti Suzuki
India Ltd. Vs. India Tourism Development Corporation Ltd.
MANU/DE/1034/2013 (SLP(C) No.27110/2013 preferred whereagainst was
dismissed on 13th September, 2013) where, approving an earlier judgment of
W.P.(C) Nos.5913/15 & 5918/2015 Page 18 of 26
this Court in Safari Airways Vs. The Estate Officer AIR 1983 Delhi 347 it
was held that a noticee has a right to contest the opinion formed by the
Estate Officer of the noticee being in unauthorized occupation, during the
course of hearing before the Estate Officer and that a noticee is not entitled
to approach the High Court under Article 226 to quash the notice at the very
threshold. It was further held that a notice serves no other purpose than to
set the machinery of law into motion and has no serious consequences
because a noticee is heard before an order of eviction is passed. It was held
that the opinion, that the noticee is in unauthorized occupation, cannot be
challenged but has to be contested in inquiry before Estate Officer.
35. The aforesaid dicta, in my opinion, applies squarely to the contention
of the senior counsel for the petitioners. The question of giving an
opportunity of hearing before cancellation of accommodation does not arise,
when an opportunity to contest the cancellation is available before the Estate
Officer. There cannot be two rounds of hearing--one as to the validity of
the notice of cancellation, which is akin to a notice under Section 4 of the PP
Act and thereafter during the proceedings under the PP Act. If it were to be
held that an opportunity of hearing has to be given before cancelling the
allotment also, then no person who may be in wrongful occupation of public
W.P.(C) Nos.5913/15 & 5918/2015 Page 19 of 26
premises would be ejected therefrom for a long time, as grant of hearing at
that stage would have its corollary of challenge to the outcome of the
hearing.
36. Though the respondent No.4 RSS under whom the petitioners claim
has also agreed that the petitioners are not entitled to the accommodation
which is in their possession and that the same is beyond their entitlement and
though the senior counsel for the petitioners also being unable to justify the
entitlement thereto, fell back on the argument of the allotment, even if
beyond entitlement, having once being made being not liable to be taken
back but I still feel it my duty to return a finding on that aspect. The
contention of the petitioners that they are entitled to Type-VIII
accommodation under Clause 4.18 supra of the Handbook for Members of
Rajya Sabha, is misconceived. As per the guidelines under the aforesaid
Clause, only ―Former Union Cabinet Minister and Former Speaker of Lok
Sabha / Former Governor of a State / Former Chief Minister of a State‖ are
entitled to a Type-VIII accommodation. Though the petitioners claim to be
Former Union Cabinet Ministers but they were admittedly at no time
occupying the office, either of a Speaker of Lok Sabha or of a Governor of a
State or of Chief Minister of a State. The learned ASG is right in contending
W.P.(C) Nos.5913/15 & 5918/2015 Page 20 of 26
that entitlement to Type-VIII accommodation is only of such a Member of
Rajya Sabha who in the past has been, not only a Union Cabinet Minister but
also either a Speaker of the Lok Sabha or a Governor of a State or a Former
Chief Minister of a State. A Member of Rajya Sabha who in the past has
held the position only as a Union Cabinet Minister, is entitled to Type-VII
accommodation only. The argument of the senior counsel for the petitioners
does not take into account the word ―and‖ between the words ―Former
Union Cabinet Minister‖ and the words ―Former Speaker of Lok Sabha /
Former Governor of a State / Former Chief Minister of a State‖ in the
category of Members of Parliament who are entitled to Type-VIII
accommodation. Also, if it were to be held that a Member of Rajya Sabha
who has been a Former Union Cabinet Minister is entitled to Type-VIII
accommodation then it would also introduce an ambiguity, inasmuch as the
words ―Former Union Cabinet Minister‖ occur in the category of Members
of Parliament, who are entitled to Type-VIII as well as in the category of
Members of Parliament who are entitled to Type-VII accommodation and
there is no guideline as to which Former Union Cabinet Minister is entitled
to Type-VIII and which to Type-VII accommodation.
W.P.(C) Nos.5913/15 & 5918/2015 Page 21 of 26
37. That brings me to the argument, of the DoE having once placed a
General Pool Accommodation in the Rajya Sabha Pool of Accommodation,
being not entitled to take back the accommodation before the period for
which it was so transferred to the Rajya Sabha Pool of Accommodation and
being not entitled to cancel the allotment made by the respondent No.4 RSS.
As informed by the senior counsel for the respondent No.4 RSS, there are no
rules or documents creating Rajya Sabha Pool of Accommodation. The
senior counsel for the petitioners also was unable to show that the
accommodation in the Rajya Sabha Pool of Accommodation was
administered any differently than from the accommodation in the General
Pool of Accommodation. In this view of the matter, merely because of the
DoE having placed the subject houses in the Rajya Sabha Pool of
Accommodation for onward allotment by the respondent No.4 RSS, cannot
be said to be taking away the rights of the DoE, which is otherwise vested
with the administration of Government Houses of taking requisite action
with respect to the said two houses.
38. The petitioners have also not been able to disclose any rights higher
than that of, as licensee, in the said accommodation. The DoE, as licensor of
the accommodation thus remained fully entitled to terminate the said license.
W.P.(C) Nos.5913/15 & 5918/2015 Page 22 of 26
A Division Bench of this Court in M/s. Gesture Hotels & Food Pvt. Ltd. Vs.
New Delhi Municipal Council AIR 2014 Del 143, on an interpretation of
Section 64 of the Easements Act has held that the remedy against revocation,
even if wrongful, of a license is at best for damages and a licensee, after
termination of the license, can neither retain accommodation nor seek to be
put back into possession thereof.
39. I may however hurry to add that in the present case, I am unable to
find the action of the DoE to be wrongful. It has, as aforesaid, stood
established that the petitioners in their capacity, as Former Union Ministers
and now Members of Rajya Sabha, are entitled to a Type-VII
accommodation and not to Type-VIII accommodation. Notwithstanding the
same, the petitioners, just when the General Elections, 2014 to the Lok
Sabha were being held, got allotted to themselves accommodations which
were beyond their entitlement. Though in the absence of any plea by the
respondents of mala fides in the said allotment, no finding in that regard is to
be returned but the petitioners having themselves given political overtones to
the matter, I am constrained to observe that the allotment of prime houses at
that stage, when the possibility of the Political Party of which the petitioners
are members ceasing to be the Ruling Party, was on the anvil, is highly
W.P.(C) Nos.5913/15 & 5918/2015 Page 23 of 26
suspect. Even if the rule / principle, of the Government not taking any major
decisions after the elections have been announced, were to be not applicable,
in the spirit thereof, rights in houses ought not to have been created in favour
of the petitioners at that stage. Even if the petitioners felt that they were
entitled to the said houses, they should have waited for the new Government
to come in power to stake their claim. The inference is that the petitioners,
knowing that in the event of their Political Party not coming in power, they
would not be able to stake their claim to the said houses, chose to get the
houses wrongfully allotted to themselves from the DoE which according to
the petitioners themselves being under the control of MUD, acts at the
behest of the MUD. The petitioners, in my view, for this reason alone, are
not entitled to invoke the discretionary jurisdiction of this Court under
Article 226 of the Constitution of India.
40. I am also sad to note that the petitioners, merely for the sake of
retaining a house to which they are not entitled, have attempted to give
political overtones to the matter and have insisted on the said argument.
41. With respect to the other contentions of the petitioners, in my view, no
action of the Government which has its foundation in law, can be said to be
W.P.(C) Nos.5913/15 & 5918/2015 Page 24 of 26
vindictive. Even though the petitioners have made only vague allegations
and have failed to give particulars of any other person in unauthorized
occupation against whom no action has been taken but I may add that it has
been repeatedly held that Article 14 of the Constitution does not permit
negative equality. The Supreme Court in S.D. Bandi supra has observed
that the allotment of Government Accommodation is a privilege given inter
alia to the Members of Parliament and the matter of unauthorized retention
should be intimated to the Speaker / Chairman of the House and action
should be intimated by the House Committee for the breach of the privileges
which a Member enjoys and the appropriate Committee should recommend
to the Speaker / Chairman for taking appropriate action within a time bound
period. The Supreme Court in the said judgment also reminded the
Representatives of People who unauthorizedly continue to occupy
residential accommodation, that their overstaying in the premises directly
infringes the right of another.
42. I am also sad to notice the contention of the petitioners, of being not
bound by Clause 4.18 supra of the Handbook for Members of Rajya Sabha,
on which they themselves placed reliance. Citizens choose a Member of
Parliament to represent themselves in the making of laws and for keeping a
W.P.(C) Nos.5913/15 & 5918/2015 Page 25 of 26
watch over the governmental affairs and for ensuring that the Government is
run in accordance with the laws, rules and procedures framed. It does not
behove such Representatives of People to say that though the others are
bound by the laws, rules and regulations framed by them but they
themselves are not. No power of the House Committee of the Rajya Sabha
to, in the matter of allotment of houses, act otherwise than in accordance
with the guidelines, has been shown. The Supreme Court in P.V. Narsimha
Rao Vs. State (1998) 4 SCC 626 noticed that the form of oath or affirmation
which is required to be made by a Member of Parliament also binds the
member to bear true faith and allegiance to the Constitution of India as by
law established. The petitioners, are reminded of the same and ought not to
assert claims beyond their entitlement under the Rules.
43. Thus, looked at from whatever angle, there is no merit in the petitions,
which are dismissed. The petitioners are also burdened with costs of
Rs.25,000/- each payable to the DoE within three months of today.
RAJIV SAHAI ENDLAW, J.
JULY 30, 2015 ‗gsr/bs' W.P.(C) Nos.5913/15 & 5918/2015 Page 26 of 26