PETITIONER:
UNION OF INDIA & ANR.
Vs.
RESPONDENT:
WING COMMANDER R.R. HINGORANI (RETD.)
DATE OF JUDGMENT30/01/1987
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
NATRAJAN, S. (J)
CITATION:
1987 AIR 808 1987 SCR (2) 94
1987 SCC (1) 551 JT 1987 (1) 290
1987 SCALE (1)203
ACT:
Government residential accommodation--Retention beyond
the concessional period admissible under SR 3 17-B-H
(2)--Liability to pay market rent for the period of such
unauthorised occupation under SR 317-B-22 whether contingent
upon the Directorate of Estates serving a notice pay market
rent for retention of such accommodation--Whether the amount
due (difference between Market rent minas concessional Rent)
recovered from the commuted pension was contrary to s. 11 of
the Pensions Act, 1871, by process of seizure and sequestra-
tion--Whether presumption of relaxation under SR 3 17-B-25
be drawn and resultant applicability of doctrine of promis-
sory estoppel--Public Premises (Eviction of unauthorised
occupants) Act, 1971, section 7(2), Supplementary Rules
SR 317-B-11(2)(22) and (25) and Pensions Act, 1871 section I
effect of, Allotment of Government Residences (General Pool
in Delhi) Rules, 1963--Principle of Unjust
enrichment--Contract Act section 56 pointed out.
HEADNOTE:
The respondent while he was posted as a Squadron Leader
at Delhi was on June 27, 1968 allotted by the Directorate of
Estate a residential fiat in the Curzon Road Hostel on a
monthly rent of Rs. 161, under sub-r.(1) of SR 317-.B-11.
Although he was transferred from Delhi to Chandigarh on June
11, 1970, he did not give any intimation of his transfer to
the Directorate of Estates and therefore the said allotment
stood automatically cancelled under sub-r. (2) thereof after
the concessional period of two months from the date of his
transfer i.e. w.e.f. August 11, 1970. The respondent contin-
ued in unauthorised occupation of the said fiat for a period
of nearly five years and in the meanwhile he was being
charged the normal rent for that period. On February 28,
1975 the Estate Officer having come to know of the transfer
of the respondent from Delhi, the Directorate addressed a
letter dated March 18, 1975 cancelling the allotment w.e.f.
August 11, 1970. On the next day i.e. the 19th, the Direc-
torate sent another letter asking the respondent to vacate
the fiat, which he did on March 25, 1975. The Estate Officer
raised a demand for recovery of Rs.38,811. 17 p. under SR 3
17-B-22 and served the respondent with a notice under s.7(3)
of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971. The
95
respondent disputed his liability to pay damages for the
period of his unauthorised occupation. Thereupon, the Estate
Officer initiated proceedings under s.7 of the Act to recov-
er the amount of Rs.38,811. 17p. Subsequentiy, the Central
Government on a representation being made by the respondent
reduced the amount to Rs.20,482.78p. On compassionate
grounds and deducted the same on October 30, 1976 from out
of the commuted pension payable to him.
The respondent filed a petition under Art.226 of the
Constitution before the High Court. The writ petition was
allowed by a learned Single Judge holding that although the
allotment of the flat stood cancelled in terms of sub-r.(3)
of SR 317-B-11 w.e.f. August 11, 1970 i.e. after the conces-
sional period of two months from the date of his transfer,
the government was estopped from claiming the amount of
Rs.20,482.78p. as damages equivalent to the market rent
under SR 317-B-22 for the period from August 11, 1970 to
March 25, 1975 on the ground that the government not only
knowingly allowed the respondent to continue in occupation
till March 25, 1975 but also charged him the normal rent of
Rs. 161 p.m. presumably under its power of relaxation under
SR 317-B-25. Further, he held that the government having
failed to serve the respondent with a notice that he would
be liable to pay market rent for the period of his unautho-
rised occupation, the doctrine of promissory estoppel pre-
cluded the government from claiming damages equivalent to
the market rent under SR 317-B-22 for the period in ques-
tion. On appeal, a Division Bench upheld the decision of the
learned Single Judge mainly on the terms of SR 317-B-23
which conferred the power of relaxation on the government.
Hence the appeal by Special Leave.
Allowing the appeal, in part, the Court,
HELD: 1.1 The Government could not unilaterally deduct
the amount of Rs.20,482.78p. from the commuted pension
payable to the respondent, contrary to s.11 of the Pension
Act, 1871. [106B-C]
1.2 According to its plain terms, section 11 of the
Pensions Act, 1871 protects from attachment seizure or
sequestration pension or money due or to become due on
account of any such pension. The words "money due or to
become due on account of pension" by necessary implication
mean money that has not yet been paid on account of pension
or has not been received by the pensioner and therefore wide
enough to include commuted pension. [103A-B]
96
Union of India v. Jyoti Chit Fund & Finance & Ors.,
[1976] 3 SCR 763, followed.
Crowe v. Price, [1889] 58 LJ QB 2 15; Municipal Council,
Salem v.B. Gururaja Rao, ILR (1935) 58 Mad. 469; C. Gopala-
chariar v. Deep Chand Sowcar, AIR 1941 Mad. 207; and Hasso-
mal Sangumal v. Diaromal Laloomal, AIR 1942 Sind 19, re-
ferred to.
2.1 The construction placed by the High Court on the two
provisions contained in SR 317-B-22 and SR 3 17-B-25 is
apparently erroneous. It is plain upon the terms of SR 3
17-B-22 that the liability to pay damages equal to the
market rent beyond the concessional period is an absolute
liability and not a contingent one. The Court was clearly in
error in subjecting the liability of a government officer to
pay market rent for period of unauthorised occupation to the
fulfilment of the condition that the Director of Estate
should serve him with a notice that in the event of his
continuing in unauthorised occupation he would be liable to
pay market rent. [101A-C]
2.2 Non-recovery of the rent at the market rent as
permissible under SR 317-B-22 due to inaction of the govern-
ment and allowing the allottee to continue in authorised
occupation for a period of nearly five years, as in this
case, does not lead to the presumption that the government
had relaxed the condition in his favour under SR 317-B-25.
[101D]
2.3 For a valid exercise of power of relaxation, the
condition pre-requisite under SR 3 17-B-25 is that the
government may relax all or any of the provisions of the
Rules in the case of an officer or residence or class of
officers or types of residences, for reasons to be recorded
in writing. There was no question of any presumption arising
for the relaxation which had to be by a specific order by
the government for reasons to be recorded in writing.
[101D-E]
3. There was no question of any promissory estoppel
operating against the government in a matter of this kind.
Before an estoppel can arise, there must be first a repre-
sentation of an existing fact distinct from a mere promise
made by one party to the other; secondly that the other
party believing it must have been induced to act on the
faith of it; and thirdly, that he must have so acted to his
detriment. In this case, there was no representation or
conduct amounting to representation on the part of the
government intended to induce the respondent to believe that
he was permitted to occupy the fiat in question on payment
of normal rent or that he was induced to change his position
on the faith of it. [101E;102A-C]
97
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4426 of
1986.
From the Judgment and Order dated 11.9. 1984 of the
Delhi High Court in L.P.A. No. 219 of 1981
V.K. Kanth, G.D. Gupta and C.V. Subba Rao for the Appel-
lants.
Ram Panjwani, Vijay Panjwani and D.N. Goburdhan for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave directed against
the judgment and order of the Delhi High Court dated Septem-
ber 11, 1985 raises a question of frequent occurrence. The
question is whether where a Government servant retains
accommodation allotted to him under SR 317-B-11 beyond the
concessional period of two months permissible under sub-
r.(2) thereof, the liability to pay damages equivalent to
the market rent for the period of such unauthorised occupa-
tion under SR 3 17-B-22 is contingent upon the Directorate
of Estates serving a notice upon him that he would be liable
to pay market rent for retention of such accommodation as
held by the High Court.
Put very briefly, the essential facts are these. In the
year 1968 the respondent who was then a Squadron Leader in
the Indian Air Force on being posted at the Headquarters,
Western Command, Palam, Cantonment, Delhi, applied on May 9,
1968 for allotment of accommodation in the Curzon Road
Hostel, New Delhi. In the application for allotment he gave
a declaration that he had read the Allotment of Government
Residences (General Pool in Delhi) Rules, 1963 and the
allotment made to him shall be subject to the said Rules,
including the amendments made thereto. The Directorate of
Estates by its order dated June 27, 1968 allotted Flat No.
806-B to the respondent in the Curzon Road Hostel on a rent
of Rs. 161 per month, exclusive of electricity and water
charges. The respondent was transferred from Delhi to Chand-
igarh on June 11, 1970 and therefore the allotment of the
flat to him stood automatically cancelled under sub-r..(3)
of SR 317-B-11 after the concessional period of two months
from the date of his transfer i.e.w.e.f. August 11, 1970. He
however did not give any intimation of his transfer to the
Directorate of Estates with the result that he contined in
unauthorised occupation of the said flat for a
98
period of nearly five years and was being charged the normal
rent for that period. On February 28, 1975 the Estate Offi-
cer having come to know about the transfer of the respondent
from Delhi, the Directorate addressed a letter dated March
18, 1975 cancelling the allotment w.e.f. August 11, 1970 and
intimating that he was in unauthorised occupation thereof.
On the next day i.e. the 19th, the Directorate sent another
letter asking the respondent to vacate the flat. On March
25, 1975 the respondent vacated the flat and handed over
possession of the same to the Directorate of Estates. But he
addressed a letter of even date by which he repudiated his
liability to pay damages alleging that he was in possession
of the flat under a valid contract and that at no time was
he in unauthorised occupation, and further that under that
the said contract he was not liable to pay any damages.
It appears that there was some correspondence between
the parties but the respondent disputed his liability to pay
damages for the period of his unauthorised occupation. In
consequence whereof, proceedings were initiated by the
Estate Officer under s.7 of the Public Premises (Eviction of
Unauthorised Occupants)’ Act, 1971 to recover Rs.38,811.17p.
as damages. The Estate Officer duly served notices on the
respondent under s.7(3) of the Act from time to time and the
respondent appeared in the proceedings and contested the
claim. Apparently, the respondent in the meanwhile made a
representation to the Central Government. On such represen-
tation being made, the Government on compassionate grounds
reduced the amount to Rs.20,482.78p. and deducted the same
on October 30, 1976 from out of the commuted pension payable
to the respondent. On November 25, 1976 the respondent
appeared and protested against the recovery of the amount of
Rs.20,482.78p. from the commuted pension payable to him
which, according to him, was contrary to s. 11 of the Pen-
sions Act, 1871, by process of seizure and sequestration.
The respondent complained that despite his repeated re-
quests, he was not given opportunity of a hearing and was
informed that the matter was being examined in depth, and
that the whole procedure was arbitrary and capricious.
The respondent filed a petition in the High Court under
Art. 226 of the Constitution challenging the action of the
Government in making a unilateral deduction of
Rs.20,482.78p. towards recovery of damages from the commuted
pension payable to him which, according to him, was contrary
to s. 11 of the Pensions Act, 1871. The writ petition was
allowed by a learned Single Judge by his judgment and order
dated September 7, 1981 who held that although the allotment
of the
99
fiat to the respondent stood cancelled in terms of sub-r.(3)
of SR 317-B-11 w.e.f. August 11, 1970 i.e. after the conces-
sional period of two months from the date of his transfer,
the Government was estopped from claiming the amount of
Rs.20,482.78p. as damages equivalent to the market rent
under SR 3 17-B-22 for the period from August 11, 1970 to
March 25, 1975. In coming to that conclusion, the learned
Single Judge held that the Government not only knowingly
allowed the respondent to continue in occupation till March
25, 1975 and charged him the normal rent of Rs. 161 per
month presumably under its power of relaxation under SR
317-B-25. Further, he held that the Government having failed
to serve the respondent with a notice that he would be
liable to pay market rent for the period of such unautho-
rised occupation, the doctrine of promissory estoppel pre-
cluded the Government from claiming damages equivalent to
the market rent under SR 317-B-22 for the period in ques-
tion. Aggrieved, the appellant preferred an appeal but a
Division Bench by its judgment under appeal affirmed the
decision of the learned Single Judge. It based its decision
mainly on the terms of SR 317-B-25 which confer the power of
relaxation on the Government and held that since the Govern-
ment had not recovered the rent at the market rate as per-
missible under SR 317-B-22 w.e.f. August 11, 1970 and having
knowingly allowed the respondent to retain the flat for the
period in question, it must be presumed that the Government
had acted in exercise of its power of relaxation under SR
317-B-25.
In support of the appeal Shri G. Ramaswamy, learned
Additional Solicitor General mainly advanced two conten-
tions. First of these is that where a Government servant has
retained the government accommodation allotted to him under
SR 317-B-11(1) beyond the concessional period of two months
allowed under sub-r.(2) thereof, the liability to pay dam-
ages equal to the market rent for the period of his unautho-
rised occupation is not a contingent liability. It is urged
that the High Court was in error in holding that the appel-
lant was not entitled to deduct Rs.20,482.78p. from the
commuted pension payable to the respondent because of the
failure of the Directorate of Estates to serve the respond-
ent with a notice after the allotment of the flat in ques-
tion stood automatically cancelled w.e.f. August 11, 1970.
Secondly, he submits that the construction placed by the
High Court upon SR 317-B-22 was plainly erroneous. It is
submitted that the High Court was wrong in assuming ‘that
there was some kind of estoppel operating against the Gov-
ernment and in proceeding upon the basis that recovery of
damages equivalent to the market rent for use and occupation
for the period of unauthorised occupation was punitive in
nature and
100
therefore the Court had power to grant relief against recov-
ery of damages at that rate. These contention must, in our
opinion, prevail.
It would be convenient here to set out the relevant
statutory provisions. Sub-s.(2) of s.7 of the Public Prem-
ises (Eviction of Unauthorised Occupants) Act, 1971 invests
the Estate Officer with authority to direct the recovery of
damages from any person who is, or has at any time been, in
unauthorised occupation of any public premises, having
regard to such principles of assessment of damages as may be
prescribed. R.8 of the Public Premises (Eviction of Unautho-
rised Occupants) Rules, 1971 lays down the principles for
assessment of such damages. Among other things, r.8(c)
provides that in making assessment of damages for unautho-
rised us,’ and occupation of any public premises, the Estate
Officer shall take into consideration the rent that would
have been realised if the premises had been let on rent for
the period of unauthorised occupation to a private person.
Allotment of residential premises owned by Government in
Delhi is regulated by the Allotment of Government Residences
(General Pool in Delhi) Rules, 1963. Sub-r. (1) of SR 3
17-B- 11 provides inter alia that an allotment of such
premises to a Government officer shall continue in force
until the expiry of the concessional period permissible
under sub-r.(2) thereof after the officer ceases to be on
duty in an eligible office in Delhi. Sub-r.(2) of SR 317-B-
11 provides that a residence allotted to an officer may,
subject to sub-r.(3), be retained on the happening of any of
the events specified in Column 1 of the Table underneath for
the period specified in the corresponding entry in Column 2
thereunder. The permissible period for retention of such
premises in the event of transfer of the Government officer
to a place outside Delhi is a period of two months. SR 3
17-B-22 insofar as material provides as follows:
“Where, after an allotment has been cancelled
or is deemed to be cancelled under any provi-
sion contained in these rules, the residence
remains or has remained in occupation of the
officer to whom it was allotted or of any
person claiming through him, such officer
shall be liable to pay damages for use and
occupation of the residence, services, furni-
tures and garden charges, equal to the market
licence fee as may be determined by Government
from time to time.”
It is difficult to sustain the judgment of the High
Court or the reasons therefore. The construction placed by
the High Court on the
101
two provisions contained in SR 317-B-22 and SR 317-B-25 is
apparently erroneous. It is plain upon the terms of SR 3
17-B-22 that the liability to pay damages equal to the
market rent beyond the concessional period is an absolute
liability and not a contingent one. Both the learned Single
Judge as well as the Division Bench were clearly in error in
subjecting the liability of a Government officer to pay
market rent for the period of unauthorised occupation to the
fulfilment of the condition that the Director of Estates
should serve him with a notice that in the event of his
continuing in unauthorised occupation he would be liable to
pay market rent. They were also in error in proceeding upon
the wrongful assumption that since the Government had not
recovered the rent at the market rate as permissible under
SR 3 17-B22 and allowed the respondent to continue in unau-
thorised occupation for a period of nearly five years, it
must be presumed that the Government had relaxed the condi-
tion in favour of the respondent under SR 317-B-25. The view
expressed by the High Court that there was a presumption of
relaxation of the condition for payment of market rent under
SR 3 17-B-22 due to inaction on the part of the Government,
is not at all correct. For a valid exercise of power of
relaxation, the condition pre-requisite under SR 317-B-25 is
that the Government may relax all or any of the provisions
of the Rules in the case of any officer or residence or
class of officers or types of residences, for reasons to be
recorded in writing. There was no question of any presump-
tion arising for the relaxation which had to be by a specif-
ic order by the Government for reasons to be recorded in
writing. Nor was there a question of any promisory estoppel
operating against the Government in a matter of this kind.
In the facts and circumstances of the present case, the
respondent had given a declaration in his application for
allotment that he had read the Allotment of Government
Residences (General Pool in Delhi) Rules, 1963 and that the
allotment made to him shall be subject to the said Rules as
amended from time to time. According to sub-r.(3) of SR
317-B-11 the allotment was to continue till the expiry of
the concessional period of two months under sub-r.(2) there-
of after June 11, 1970, the date of transfer and thereafter
it would be deemed to have been cancelled. It is not disput-
ed that the respondent continued to remain in occupation of
the premises unauthorisedly from August 11, 1970 even after
his transfer outside Delhi. He was not entitled to retain
any accommodation either from the general pool or the de-
fence pool once he was transferred to a place outside Delhi.
The respondent retained the flat in question at his own
peril with full knowledge of the consequences. He was bound
by the declaration to abide by the Allot-
102
ment Rules and was clearly liable under SR 3 17-B-22 to pay
damages equal to the market rent for the period of his
unauthorised occupation. Before an estoppel can arise, there
must be first a representation of an existing fact distinct
from a mere promise made by one party to the other; secondly
that the other party believing it must have been induced to
act on the faith of it; and thirdly, that he must have so
acted to his detriment. In this case, there was no represen-
tation or conduct amounting to representation on the part of
the Government intended to induce the respondent to believe
that he was permitted to occupy the flat in question on
payment of normal rent or that he was induced to change his
position on the faith of it. If there was any omission, it
was on the part of the respondent in concealing the fact
from the Director of Estates that he had been transferred to
a place outside Delhi. There was clearly a duty on his part
to disclose the fact to the authorities. There is nothing to
show that he was misled by the Government against whom he
claims the estoppel. It is somewhat strange that the High
Court should have spelled out that the respondent being a
Squadron Leader was an employee of the Central Government
and therefore the Government of India to whom the Curzon
Road Hostel belongs must have had knowledge of the fact of
his transfer. The entire judgment of the High Court proceeds
upon this wrongful assumption.
In the premises, it is difficult to sustain the judgment
of the High Court and it has to be reversed. Nonetheless,
the writ petition must still succeed for another reason. It
is somewhat strange that the High Court should have failed
to apply its mind to the most crucial question involved,
namely, that the Government was not competent to recover the
amount of Rs.20.482.78p. alleged to be due and payable
towards damages on account of unauthorised use and occupa-
tion of the flat from the commuted pension payable to the
respondent which was clearly against the terms of s. 11 of
the Pensions Act, 1871 which reads as follows:
“Exemption of pension from attachment:-No
pension granted or continued by Government on
political considerations, or on account of
past services or present infirmities or as a
compassionate allowance, and no money due or
to become due on account of any such pension
or allowance, shall be liable to seizure,
attachment or sequestration by process of any
Court at the instance of a creditor, for, any
demand against the pensioner, or in satisfac-
tion of a decree or order of any such Court.”
103
According to its plain terms, s. 11 protects from attach-
ment, seizure or sequestration pension or money due or to
become due on account of any such pension. The words “money
due or to become due on account of pension” by necessary
implication mean money that has not yet been paid on account
of pension or has not been received by the pensioner and
therefore wide enough to include commuted pension. The
controversy whether on commutation of pension the commuted
pension becomes a capital sum or still retains the character
of pension so long as it remains unpaid in the hands of the
Government, is not a new one till it was settled by the
judgment of this Court in Union of India v. Jyoti Chit Fund
& Finance & Ors., [1976] 3 SCR 763. We may briefly touch
upon the earlier decisions on the question. In an English
case, in Crowe v. Price, [1889] 58 LJ QB 215 it was held
that money paid to a retired officer of His Majesty’s force
for the commutation of his pension does not retain its
character as pension so as to prevent it from being taken in
execution. On p.217 of the Report, Coleridge, CJ. said:
“It is clear to me that commutation money
stands on an entirely different ground from
pension money, and that if an officer commuted
his pension for a capital sum paid down, the
rules which apply to pension money and make
any assignment of it void, do not apply to
this sum.”
Following the dictum of Coleridge, CJ., Besley, CJ. and
King, J. in Municipal Council, Salem v. B. Gururaja Rao, ILR
[1935] 58 Mad. 469 held that when pension or portion thereof
is commuted, it ceases to be pension and becomes a capital
sum. The question in that case was whether the commuted
portion of the pension of a retired Subordinate Judge was
income for purposes of assessment of professional tax under
s.354 of the Madras District Municipalities Act, 1920. The
learned Judges held that where pension is commuted there is
no longer any periodical payment; the pensioner receives
once and for all a lump sum in lieu of the periodical pay-
ments. The pension is changed into something else and be-
comes a capital sum. On that view they held that the sum
received by the retired Subordinate Judge in lieu of the
portion of his pension when it was commuted was no longer
pension and therefore not liable to pay a professional tax
under s.354 of the Madras District Municipalities Act. That
is to say, the commuted portion, of the pension was not
income for purposes of assessment of professional tax in a
municipality. The question arose in a different form in C.
Gopalachariar v. Deep Chand Sowcar, AIR 1941 Mad. 207 and it
was whether the commuted portion of the pension was not
attachable in
104
execution of a decree obtained by certain creditors in view
of s. 11 of the Pensions Act. Pandurang Row, J. interpreting
s. 11 of the Act was of the opinion that not only the pen-
sion but any portion of it which is commuted came within the
provisions of the section. He particularly referred to the
words “money due or to become due on account of pension”
appearing in s. 11 of the Act which, according to him, would
necessarily include the commuted portion of the pension. He
observed that the phrase “on account of” is a phrase used in
ordinary parlance and is certainly not a term of art which
has acquired a definite or precise meaning in law. Accord-
ingly to its ordinary connotation the phrase “on account of”
means “by reason of” and he therefore queried:
“Now can it be said that the commuted portion
of the pension is not money due on account of
the pension? Though the pension has been
commuted, still can it be said that money due
by reason of such commutation or because of
such commutation, is not money due on account
of pension?”
He referred to s. 10 of the Act which provides for the mode
of commutation and is part of Chapter III which is headed
“Mode of Payment”, and observed:
“In other words, the commutation of pension is
regarded as a mode of payment of pension. If
so, can it be reasonably urged that payment of
the commutation amount is not payment on
account of the pension, though not of the
pension itself, because after commutation it
ceases to be pension? I see no good reason why
it should be deemed to be otherwise. No doubt
money is due immediately under the commutation
order, but the commutation order itself is on
account of a pension which was commuted or a
portion of the pension which was commuted. The
intention behind the provisions of s. 11,
Pensions Act, is applicable to ‘the commuted
portion as well as to the uncommuted portion
of the pension and the language of s. 11 does
not appear to exclude from its protection the
money that is due under a commutation order
commuting a part of the pension.”
In Hassomal Sangumal v. Diaromal Laloomal, AIR 1942 Sind
19. Davis, CJ. speaking for a Division Bench referred to
Gopalachariar’s case and pointed out that it does not lay
down that once a
105
pension has been commuted and the money paid over to the
pensioner, the exemption from attachment still continues.
The learned Chief Justice went on to say that the words
“money due or to become due” used in s. 11 must by necessary
implication mean the money that has not yet been paid to the
pensioner.
In Jyoti Chit Fund’s case the Court repelled the conten-
tion that since the civil servant had already retired, the
provident fund amount, pension and other compulsory deposits
which were in the hands of the Government and payable to him
had ceased to retain their character as such provident fund
or pension under ss.3 and 4 of the Provident Funds Act,
1925. Krishna Iyer, J. speaking for himself and Chandrachud,
J. observed:
“On first principles and on precedent, we are
clear in our minds that these sums, if they
are of the character set up by the Union of
India, are beyond the reach of the court’s
power to attach. Section 2 (a) of the Provi-
dent Funds Act has also to be read in this
connection to remove possible doubts because
this definitional clause is of wide amplitude.
Moreover, s.60(1), provides (g) and (k), leave
no doubt on the point of non-attachability.
The matter is so plain that discussion is
uncalled for.
We may state without fear of contra-
diction that provident fund amounts, pensions
and other compulsory deposits covered by the
provisions we have referred to, retain their
character until they reach the hands of the
employee. The reality of the protection is
reduced to illusory formality if we accept the
interpretation sought.”
The learned Additional Solicitor General has very fairly
brought to our notice Circular No. F.7(28)E .V/53 dated
August 25, 1985 issued by the Government of India, Ministry
of Finance to the effect:
“When a pensioner refuses to pay Government
dues–The failure or refusal of a pensioner to
pay any amount owed by him to Government
cannot be said to be ‘misconduct’ within the
meaning of Article 351 of the C.S.R. (Rule 8,
C.C.S. (Pension) Rules, 1972). The Possible
way of recovering/damanding Government dues
from a retiring officer who refuses to agree
in writing, to such dues being recovered from
his pension is either to delay the final sanc-
106
tion of his pension for some time which will
have the desired effect for persuading him to
agree to recovery being made therefrom or take
recourse to Court of law.”
It bears out the construction that the words “money due or
to become due on account of pension” occurring in s. 11 of
the Pensions Act, 1871 includes the commuted portion of the
pension payable to an employee after his retirement. It must
accordingly be held that the Government had no authority or
power to unilaterally deduct the amount of Rs.20,482.78p.
from the commuted pension payable to the respondent, con-
trary to s. 11 of the Pensions Act, 1871.
For these reasons, the appeal partly succeeds and is
allowed. The judgment and order of the High Court are set
aside. We allow the writ petition filed by the respondent in
the High Court and direct that a writ of mandamus be issued
ordaining the Central Government to refund the amount of
Rs.20,482.78p. deducted from the commuted pension paid to
the respondent. The Government shall be at liberty to initi-
ate proceedings under s.7(2) read with s. 14 of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 for
recovery of Rs.20.482.78p. due on account of damages for
unauthorised use and occupation of the fiat in question from
the respondent as arrears of land revenue, or have recourse
to its remedy by way of a suit for recovery of damages.
Before parting with the case, we wish to add a few
words. The Government should consider the feasibility of
dropping the proceedings for recovery of damages, if the
respondent were to forego his claim for interest. In this
case, the deduction of the amount of Rs.20,482.78p. from the
commuted pension payable to the respondent was made as far
back as October 30, 1976. Since then, 10 years have gone by.
Even if interest were to be calculated at 9% per annum, the
interest alone would aggregate to more than Rs.18,000. Since
the Government had the benefit of the money for all these
years, it may not be worthwhile in pursuing the matter any
further.
There shall be no order as to costs.
S.R. Appeal
allowed.
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