{"id":237138,"date":"1987-01-30T00:00:00","date_gmt":"1987-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-wing-commander-r-r-hingorani-on-30-january-1987"},"modified":"2017-10-12T19:19:55","modified_gmt":"2017-10-12T13:49:55","slug":"union-of-india-anr-vs-wing-commander-r-r-hingorani-on-30-january-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-wing-commander-r-r-hingorani-on-30-january-1987","title":{"rendered":"Union Of India & Anr vs Wing Commander R.R. Hingorani … on 30 January, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Anr vs Wing Commander R.R. Hingorani … on 30 January, 1987<\/div>\n
Equivalent citations: 1987 AIR 808, \t\t 1987 SCR (2)\t 94<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nUNION OF INDIA & ANR.\n\n\tVs.\n\nRESPONDENT:\nWING COMMANDER R.R. HINGORANI (RETD.)\n\nDATE OF JUDGMENT30\/01\/1987\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nNATRAJAN, S. (J)\n\nCITATION:\n 1987 AIR  808\t\t  1987 SCR  (2)\t 94\n 1987 SCC  (1) 551\t  JT 1987 (1)\t290\n 1987 SCALE  (1)203\n\n\nACT:\n    Government\tresidential accommodation--Retention  beyond\nthe  concessional  period  admissible  under  SR  3   17-B-H\n(2)--Liability\tto  pay market rent for the period  of\tsuch\nunauthorised occupation under SR 317-B-22 whether contingent\nupon the Directorate of Estates serving a notice pay  market\nrent for retention of such accommodation--Whether the amount\ndue (difference between Market rent minas concessional Rent)\nrecovered from the commuted pension was contrary to s. 11 of\nthe Pensions Act, 1871, by process of seizure and sequestra-\ntion--Whether  presumption of relaxation under SR 3  17-B-25\nbe drawn and resultant applicability of doctrine of  promis-\nsory  estoppel--Public Premises (Eviction   of\tunauthorised\noccupants)  Act,  1971,\t section  7(2), Supplementary  Rules\nSR 317-B-11(2)(22) and (25) and Pensions Act, 1871 section I\neffect of, Allotment of Government Residences (General\tPool\nin     Delhi)\t Rules,\t   1963--Principle     of     Unjust\nenrichment--Contract Act section 56 pointed out.\n\n\n\nHEADNOTE:\n    The respondent while he was posted as a Squadron  Leader\nat Delhi was on June 27, 1968 allotted by the Directorate of\nEstate\ta  residential fiat in the Curzon Road Hostel  on  a\nmonthly\t rent of Rs. 161, under sub-r.(1) of  SR  317-.B-11.\nAlthough he was transferred from Delhi to Chandigarh on June\n11, 1970, he did not give any intimation of his transfer  to\nthe Directorate of Estates and therefore the said  allotment\nstood automatically cancelled under sub-r. (2) thereof after\nthe  concessional period of two months from the date of\t his\ntransfer i.e. w.e.f. August 11, 1970. The respondent contin-\nued in unauthorised occupation of the said fiat for a period\nof  nearly  five  years and in the meanwhile  he  was  being\ncharged\t the  normal rent for that period. On  February\t 28,\n1975 the Estate Officer having come to know of the  transfer\nof  the respondent from Delhi, the Directorate\taddressed  a\nletter dated March 18, 1975 cancelling the allotment  w.e.f.\nAugust\t11, 1970. On the next day i.e. the 19th, the  Direc-\ntorate\tsent another letter asking the respondent to  vacate\nthe fiat, which he did on March 25, 1975. The Estate Officer\nraised a demand for recovery of Rs.38,811. 17 p. under SR  3\n17-B-22 and served the respondent with a notice under s.7(3)\nof the Public Premises (Eviction of Unauthorised  Occupants)\nAct, 1971. The\n95\nrespondent  disputed  his liability to pay damages  for\t the\nperiod of his unauthorised occupation. Thereupon, the Estate\nOfficer initiated proceedings under s.7 of the Act to recov-\ner  the amount of Rs.38,811. 17p. Subsequentiy, the  Central\nGovernment on a representation being made by the  respondent\nreduced\t the  amount  to  Rs.20,482.78p.  On   compassionate\ngrounds\t and deducted the same on October 30, 1976 from\t out\nof the commuted pension payable to him.\n    The\t respondent  filed a petition under Art.226  of\t the\nConstitution  before the High Court. The writ  petition\t was\nallowed by a learned Single Judge holding that although\t the\nallotment of the flat stood cancelled in terms of  sub-r.(3)\nof SR 317-B-11 w.e.f. August 11, 1970 i.e. after the conces-\nsional\tperiod of two months from the date of his  transfer,\nthe  government\t was estopped from claiming  the  amount  of\nRs.20,482.78p.\tas  damages equivalent to  the\tmarket\trent\nunder  SR  317-B-22 for the period from August 11,  1970  to\nMarch  25, 1975 on the ground that the government  not\tonly\nknowingly  allowed the respondent to continue in  occupation\ntill March 25, 1975 but also charged him the normal rent  of\nRs. 161 p.m. presumably under its power of relaxation  under\nSR  317-B-25.  Further, he held that the  government  having\nfailed\tto serve the respondent with a notice that he  would\nbe liable to pay market rent for the period of his  unautho-\nrised  occupation, the doctrine of promissory estoppel\tpre-\ncluded\tthe government from claiming damages  equivalent  to\nthe  market rent under SR 317-B-22 for the period  in  ques-\ntion. On appeal, a Division Bench upheld the decision of the\nlearned\t Single\t Judge mainly on the terms  of\tSR  317-B-23\nwhich conferred the power of relaxation on the government.\nHence the appeal by Special Leave.\nAllowing the appeal, in part, the Court,\n    HELD:  1.1 The Government could not unilaterally  deduct\nthe  amount  of\t Rs.20,482.78p. from  the  commuted  pension\npayable\t to the respondent, contrary to s.11 of the  Pension\nAct, 1871. [106B-C]\n    1.2\t According  to its plain terms, section\t 11  of\t the\nPensions  Act,\t1871  protects from  attachment\t seizure  or\nsequestration  pension\tor  money due or to  become  due  on\naccount\t of  any such pension. The words \"money\t due  or  to\nbecome\tdue on account of pension\" by necessary\t implication\nmean money that has not yet been paid on account of  pension\nor has not been received by the pensioner and therefore wide\nenough to include commuted pension. [103A-B]\n96\n    Union  of  India v. Jyoti Chit Fund &  Finance  &  Ors.,<\/a>\n[1976] 3 SCR 763, followed.\n    Crowe v. Price, [1889] 58 LJ QB 2 15; Municipal Council,\nSalem v.B. Gururaja Rao, ILR (1935) 58 Mad. 469; C.  Gopala-\nchariar v. Deep Chand Sowcar, AIR 1941 Mad. 207; and  Hasso-\nmal  Sangumal  v. Diaromal Laloomal, AIR 1942 Sind  19,\t re-\nferred to.\n    2.1 The construction placed by the High Court on the two\nprovisions  contained  in SR 317-B-22 and SR  3\t 17-B-25  is\napparently  erroneous.\tIt is plain upon the terms of  SR  3\n17-B-22\t that  the  liability to pay damages  equal  to\t the\nmarket\trent beyond the concessional period is\tan  absolute\nliability and not a contingent one. The Court was clearly in\nerror in subjecting the liability of a government officer to\npay market rent for period of unauthorised occupation to the\nfulfilment  of\tthe condition that the\tDirector  of  Estate\nshould\tserve  him with a notice that in the  event  of\t his\ncontinuing in unauthorised occupation he would be liable  to\npay market rent. [101A-C]\n    2.2\t Non-recovery  of  the rent at the  market  rent  as\npermissible under SR 317-B-22 due to inaction of the govern-\nment  and  allowing the allottee to continue  in  authorised\noccupation  for\t a period of nearly five years, as  in\tthis\ncase,  does not lead to the presumption that the  government\nhad  relaxed the condition in his favour under SR  317-B-25.\n[101D]\n    2.3\t For  a valid exercise of power of  relaxation,\t the\ncondition  pre-requisite  under\t SR 3 17-B-25  is  that\t the\ngovernment  may\t relax all or any of the provisions  of\t the\nRules  in  the case of an officer or residence or  class  of\nofficers or types of residences, for reasons to be  recorded\nin writing. There was no question of any presumption arising\nfor  the relaxation which had to be by a specific  order  by\nthe  government\t for  reasons to  be  recorded\tin  writing.\n[101D-E]\n    3.\tThere  was no question of  any\tpromissory  estoppel\noperating  against the government in a matter of this  kind.\nBefore\tan estoppel can arise, there must be first a  repre-\nsentation  of an existing fact distinct from a mere  promise\nmade  by  one party to the other; secondly  that  the  other\nparty  believing  it must have been induced to\tact  on\t the\nfaith of it; and thirdly, that he must have so acted to\t his\ndetriment.  In\tthis case, there was  no  representation  or\nconduct\t amounting  to\trepresentation on the  part  of\t the\ngovernment intended to induce the respondent to believe that\nhe  was permitted to occupy the fiat in question on  payment\nof normal rent or that he was induced to change his position\non the faith of it. [101E;102A-C]\n97\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4426  of
\n1986.\n<\/p>\n
    From  the  Judgment and Order dated 11.9.  1984  of\t the
\nDelhi High Court in L.P.A. No. 219 of 1981
\n    V.K. Kanth, G.D. Gupta and C.V. Subba Rao for the Appel-
\nlants.\n<\/p>\n
    Ram Panjwani, Vijay Panjwani and D.N. Goburdhan for\t the
\nRespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\n    SEN,  J. This appeal by special leave  directed  against
\nthe judgment and order of the Delhi High Court dated Septem-
\nber  11, 1985 raises a question of frequent occurrence.\t The
\nquestion  is  whether  where a\tGovernment  servant  retains
\naccommodation  allotted to him under SR 317-B-11 beyond\t the
\nconcessional  period  of two months permissible\t under\tsub-
\nr.(2)  thereof, the liability to pay damages  equivalent  to
\nthe market rent for the period of such unauthorised  occupa-
\ntion  under SR 3 17-B-22 is contingent upon the\t Directorate
\nof Estates serving a notice upon him that he would be liable
\nto  pay market rent for retention of such  accommodation  as
\nheld by the High Court.\n<\/p>\n
    Put very briefly, the essential facts are these. In\t the
\nyear  1968 the respondent who was then a Squadron Leader  in
\nthe  Indian Air Force on being posted at  the  Headquarters,
\nWestern Command, Palam, Cantonment, Delhi, applied on May 9,
\n1968  for  allotment  of accommodation in  the\tCurzon\tRoad
\nHostel, New Delhi. In the application for allotment he\tgave
\na  declaration that he had read the Allotment of  Government
\nResidences  (General  Pool  in Delhi) Rules,  1963  and\t the
\nallotment  made to him shall be subject to the\tsaid  Rules,
\nincluding  the amendments made thereto. The  Directorate  of
\nEstates\t by its order dated June 27, 1968 allotted Flat\t No.
\n806-B to the respondent in the Curzon Road Hostel on a\trent
\nof  Rs.\t 161 per month, exclusive of electricity  and  water
\ncharges. The respondent was transferred from Delhi to Chand-
\nigarh  on June 11, 1970 and therefore the allotment  of\t the
\nflat  to him stood automatically cancelled under  sub-r..(3)
\nof  SR 317-B-11 after the concessional period of two  months
\nfrom the date of his transfer i.e.w.e.f. August 11, 1970. He
\nhowever\t did not give any intimation of his transfer to\t the
\nDirectorate  of Estates with the result that he contined  in
\nunauthorised occupation of the said flat for a
\n98<\/span>
\nperiod of nearly five years and was being charged the normal
\nrent for that period. On February 28, 1975 the Estate  Offi-
\ncer having come to know about the transfer of the respondent
\nfrom  Delhi, the Directorate addressed a letter dated  March
\n18, 1975 cancelling the allotment w.e.f. August 11, 1970 and
\nintimating  that he was in unauthorised occupation  thereof.
\nOn the next day i.e. the 19th, the Directorate sent  another
\nletter\tasking the respondent to vacate the flat.  On  March
\n25,  1975  the respondent vacated the flat and\thanded\tover
\npossession of the same to the Directorate of Estates. But he
\naddressed  a letter of even date by which he repudiated\t his
\nliability to pay damages alleging that he was in  possession
\nof  the flat under a valid contract and that at no time\t was
\nhe  in unauthorised occupation, and further that under\tthat
\nthe said contract he was not liable to pay any damages.
\n    It\tappears that there was some  correspondence  between
\nthe parties but the respondent disputed his liability to pay
\ndamages\t for the period of his unauthorised  occupation.  In
\nconsequence  whereof,  proceedings  were  initiated  by\t the
\nEstate Officer under s.7 of the Public Premises (Eviction of
\nUnauthorised Occupants)’ Act, 1971 to recover Rs.38,811.17p.
\nas  damages. The Estate Officer duly served notices  on\t the
\nrespondent under s.7(3) of the Act from time to time and the
\nrespondent  appeared  in the proceedings and  contested\t the
\nclaim.\tApparently, the respondent in the meanwhile  made  a
\nrepresentation to the Central Government. On such  represen-
\ntation\tbeing made, the Government on compassionate  grounds
\nreduced\t the amount to Rs.20,482.78p. and deducted the\tsame
\non October 30, 1976 from out of the commuted pension payable
\nto  the\t respondent.  On November 25,  1976  the  respondent
\nappeared and protested against the recovery of the amount of
\nRs.20,482.78p.\tfrom  the commuted pension  payable  to\t him
\nwhich,\taccording to him, was contrary to s. 11 of the\tPen-
\nsions  Act, 1871, by process of seizure\t and  sequestration.
\nThe  respondent\t complained that despite  his  repeated\t re-
\nquests,\t he was not given opportunity of a hearing  and\t was
\ninformed  that the matter was being examined in\t depth,\t and
\nthat the whole procedure was arbitrary and capricious.
\n    The respondent filed a petition in the High Court  under
\nArt.  226 of the Constitution challenging the action of\t the
\nGovernment    in   making   a\tunilateral   deduction\t  of
\nRs.20,482.78p. towards recovery of damages from the commuted
\npension payable to him which, according to him, was contrary
\nto  s. 11 of the Pensions Act, 1871. The writ  petition\t was
\nallowed by a learned Single Judge by his judgment and  order
\ndated September 7, 1981 who held that although the allotment
\nof the
\n99<\/span>
\nfiat to the respondent stood cancelled in terms of sub-r.(3)
\nof SR 317-B-11 w.e.f. August 11, 1970 i.e. after the conces-
\nsional\tperiod of two months from the date of his  transfer,
\nthe  Government\t was estopped from claiming  the  amount  of
\nRs.20,482.78p.\tas  damages equivalent to  the\tmarket\trent
\nunder  SR 3 17-B-22 for the period from August 11,  1970  to
\nMarch  25, 1975. In coming to that conclusion,\tthe  learned
\nSingle\tJudge  held that the Government not  only  knowingly
\nallowed the respondent to continue in occupation till  March
\n25,  1975  and charged him the normal rent of  Rs.  161\t per
\nmonth  presumably  under its power of  relaxation  under  SR
\n317-B-25. Further, he held that the Government having failed
\nto  serve  the\trespondent with a notice that  he  would  be
\nliable\tto pay market rent for the period of  such  unautho-
\nrised  occupation, the doctrine of promissory estoppel\tpre-
\ncluded\tthe Government from claiming damages  equivalent  to
\nthe  market rent under SR 317-B-22 for the period  in  ques-
\ntion.  Aggrieved,  the appellant preferred an appeal  but  a
\nDivision  Bench\t by its judgment under appeal  affirmed\t the
\ndecision of the learned Single Judge. It based its  decision
\nmainly on the terms of SR 317-B-25 which confer the power of
\nrelaxation on the Government and held that since the Govern-
\nment  had not recovered the rent at the market rate as\tper-
\nmissible under SR 317-B-22 w.e.f. August 11, 1970 and having
\nknowingly allowed the respondent to retain the flat for\t the
\nperiod in question, it must be presumed that the  Government
\nhad  acted in exercise of its power of relaxation  under  SR
\n317-B-25.\n<\/p>\n
    In\tsupport\t of the appeal Shri  G.\t Ramaswamy,  learned
\nAdditional  Solicitor  General mainly advanced\ttwo  conten-
\ntions. First of these is that where a Government servant has
\nretained the government accommodation allotted to him  under
\nSR 317-B-11(1) beyond the concessional period of two  months
\nallowed\t under sub-r.(2) thereof, the liability to pay\tdam-
\nages equal to the market rent for the period of his unautho-
\nrised occupation is not a contingent liability. It is  urged
\nthat the High Court was in error in holding that the  appel-
\nlant  was  not entitled to deduct  Rs.20,482.78p.  from\t the
\ncommuted  pension payable to the respondent because  of\t the
\nfailure of the Directorate of Estates to serve the  respond-
\nent  with a notice after the allotment of the flat in  ques-
\ntion  stood automatically cancelled w.e.f. August 11,  1970.
\nSecondly,  he  submits that the construction placed  by\t the
\nHigh  Court  upon SR 317-B-22 was plainly erroneous.  It  is
\nsubmitted  that the High Court was wrong in  assuming  ‘that
\nthere  was some kind of estoppel operating against the\tGov-
\nernment\t and in proceeding upon the basis that\trecovery  of
\ndamages equivalent to the market rent for use and occupation
\nfor  the period of unauthorised occupation was\tpunitive  in
\nnature and
\n100<\/span>
\ntherefore the Court had power to grant relief against recov-
\nery  of damages at that rate. These contention must, in\t our
\nopinion, prevail.\n<\/p>\n
    It\twould  be convenient here to set  out  the  relevant
\nstatutory  provisions. Sub-s.(2) of s.7 of the Public  Prem-
\nises (Eviction of Unauthorised Occupants) Act, 1971  invests
\nthe Estate Officer with authority to direct the recovery  of
\ndamages from any person who is, or has at any time been,  in
\nunauthorised  occupation  of  any  public  premises,  having
\nregard to such principles of assessment of damages as may be
\nprescribed. R.8 of the Public Premises (Eviction of Unautho-
\nrised  Occupants) Rules, 1971 lays down the  principles\t for
\nassessment  of\tsuch  damages. Among  other  things,  r.8(c)
\nprovides  that in making assessment of damages for  unautho-
\nrised us,’ and occupation of any public premises, the Estate
\nOfficer\t shall take into consideration the rent\t that  would
\nhave been realised if the premises had been let on rent\t for
\nthe  period of unauthorised occupation to a private  person.
\nAllotment  of  residential premises owned by  Government  in
\nDelhi is regulated by the Allotment of Government Residences
\n(General  Pool\tin Delhi) Rules, 1963. Sub-r. (1)  of  SR  3
\n17-B-  11  provides  inter alia that an\t allotment  of\tsuch
\npremises  to  a Government officer shall continue  in  force
\nuntil  the  expiry of the  concessional\t period\t permissible
\nunder  sub-r.(2) thereof after the officer ceases to  be  on
\nduty in an eligible office in Delhi. Sub-r.(2) of SR  317-B-
\n11  provides  that a residence allotted to an  officer\tmay,
\nsubject to sub-r.(3), be retained on the happening of any of
\nthe events specified in Column 1 of the Table underneath for
\nthe period specified in the corresponding entry in Column  2
\nthereunder.  The  permissible period for retention  of\tsuch
\npremises in the event of transfer of the Government  officer
\nto  a  place outside Delhi is a period of two months.  SR  3
\n17-B-22 insofar as material provides as follows:\n<\/p>\n
\t      “Where, after an allotment has been  cancelled
\n\t      or is deemed to be cancelled under any  provi-
\n\t      sion  contained in these rules, the  residence
\n\t      remains  or has remained in occupation of\t the
\n\t      officer  to  whom it was allotted\t or  of\t any
\n\t      person  claiming\tthrough\t him,  such  officer
\n\t      shall  be\t liable to pay damages for  use\t and
\n\t      occupation of the residence, services,  furni-
\n\t      tures and garden charges, equal to the  market
\n\t      licence fee as may be determined by Government
\n\t      from time to time.”<\/p><\/blockquote>\n
    It\tis  difficult to sustain the judgment  of  the\tHigh
\nCourt  or the reasons therefore. The construction placed  by
\nthe High Court on the
\n101<\/span>
\ntwo  provisions contained in SR 317-B-22 and SR 317-B-25  is
\napparently  erroneous.\tIt is plain upon the terms of  SR  3
\n17-B-22\t that  the  liability to pay damages  equal  to\t the
\nmarket\trent beyond the concessional period is\tan  absolute
\nliability and not a contingent one. Both the learned  Single
\nJudge as well as the Division Bench were clearly in error in
\nsubjecting  the\t liability of a Government  officer  to\t pay
\nmarket rent for the period of unauthorised occupation to the
\nfulfilment  of\tthe condition that the Director\t of  Estates
\nshould\tserve  him with a notice that in the  event  of\t his
\ncontinuing in unauthorised occupation he would be liable  to
\npay market rent. They were also in error in proceeding\tupon
\nthe  wrongful assumption that since the Government  had\t not
\nrecovered  the rent at the market rate as permissible  under
\nSR 3 17-B22 and allowed the respondent to continue in  unau-
\nthorised  occupation for a period of nearly five  years,  it
\nmust be presumed that the Government had relaxed the  condi-
\ntion in favour of the respondent under SR 317-B-25. The view
\nexpressed by the High Court that there was a presumption  of
\nrelaxation of the condition for payment of market rent under
\nSR 3 17-B-22 due to inaction on the part of the\t Government,
\nis  not\t at all correct. For a valid exercise  of  power  of
\nrelaxation, the condition pre-requisite under SR 317-B-25 is
\nthat  the Government may relax all or any of the  provisions
\nof  the\t Rules in the case of any officer  or  residence  or
\nclass of officers or types of residences, for reasons to  be
\nrecorded  in writing. There was no question of any  presump-
\ntion arising for the relaxation which had to be by a specif-
\nic  order  by the Government for reasons to be\trecorded  in
\nwriting. Nor was there a question of any promisory  estoppel
\noperating against the Government in a matter of this kind.
\n    In the facts and circumstances of the present case,\t the
\nrespondent  had given a declaration in his  application\t for
\nallotment  that\t he  had read the  Allotment  of  Government
\nResidences (General Pool in Delhi) Rules, 1963 and that\t the
\nallotment made to him shall be subject to the said Rules  as
\namended\t from  time to time. According to  sub-r.(3)  of  SR
\n317-B-11  the allotment was to continue till the  expiry  of
\nthe concessional period of two months under sub-r.(2) there-
\nof after June 11, 1970, the date of transfer and  thereafter
\nit would be deemed to have been cancelled. It is not disput-
\ned that the respondent continued to remain in occupation  of
\nthe premises unauthorisedly from August 11, 1970 even  after
\nhis  transfer outside Delhi. He was not entitled  to  retain
\nany  accommodation either from the general pool or  the\t de-
\nfence pool once he was transferred to a place outside Delhi.
\nThe  respondent\t retained the flat in question\tat  his\t own
\nperil with full knowledge of the consequences. He was  bound
\nby the declaration to abide by the Allot-\n<\/p>\n
102<\/span><\/p>\n
ment Rules and was clearly liable under SR 3 17-B-22 to\t pay
\ndamages\t equal\tto  the market rent for the  period  of\t his
\nunauthorised occupation. Before an estoppel can arise, there
\nmust be first a representation of an existing fact  distinct
\nfrom a mere promise made by one party to the other; secondly
\nthat the other party believing it must have been induced  to
\nact  on the faith of it; and thirdly, that he must  have  so
\nacted to his detriment. In this case, there was no represen-
\ntation or conduct amounting to representation on the part of
\nthe Government intended to induce the respondent to  believe
\nthat  he  was permitted to occupy the flat  in\tquestion  on
\npayment of normal rent or that he was induced to change\t his
\nposition  on the faith of it. If there was any omission,  it
\nwas  on\t the part of the respondent in concealing  the\tfact
\nfrom the Director of Estates that he had been transferred to
\na place outside Delhi. There was clearly a duty on his\tpart
\nto disclose the fact to the authorities. There is nothing to
\nshow  that he was misled by the Government against  whom  he
\nclaims\tthe estoppel. It is somewhat strange that  the\tHigh
\nCourt  should have spelled out that the respondent  being  a
\nSquadron  Leader was an employee of the\t Central  Government
\nand  therefore\tthe Government of India to whom\t the  Curzon
\nRoad  Hostel belongs must have had knowledge of the fact  of
\nhis transfer. The entire judgment of the High Court proceeds
\nupon this wrongful assumption.\n<\/p>\n
    In the premises, it is difficult to sustain the judgment
\nof  the High Court and it has to be  reversed.\tNonetheless,
\nthe writ petition must still succeed for another reason.  It
\nis  somewhat strange that the High Court should have  failed
\nto  apply  its mind to the most crucial\t question  involved,
\nnamely, that the Government was not competent to recover the
\namount\tof  Rs.20.482.78p.  alleged to be  due\tand  payable
\ntowards\t damages on account of unauthorised use and  occupa-
\ntion  of the flat from the commuted pension payable  to\t the
\nrespondent  which was clearly against the terms of s. 11  of
\nthe Pensions Act, 1871 which reads as follows:\n<\/p>\n
\t      “Exemption  of  pension  from   attachment:-No
\n\t      pension granted or continued by Government  on
\n\t      political\t considerations,  or on\t account  of
\n\t      past  services or present infirmities or as  a
\n\t      compassionate  allowance, and no money due  or
\n\t      to  become due on account of any such  pension
\n\t      or  allowance,  shall be\tliable\tto  seizure,
\n\t      attachment or sequestration by process of\t any
\n\t      Court at the instance of a creditor, for,\t any
\n\t      demand against the pensioner, or in  satisfac-
\n\t      tion of a decree or order of any such Court.”\n<\/p><\/blockquote>\n
103<\/span><\/p>\n
According  to its plain terms, s. 11 protects  from  attach-
\nment,  seizure or sequestration pension or money due  or  to
\nbecome due on account of any such pension. The words  “money
\ndue  or\t to become due on account of pension”  by  necessary
\nimplication mean money that has not yet been paid on account
\nof  pension  or has not been received by the  pensioner\t and
\ntherefore  wide\t enough\t to include  commuted  pension.\t The
\ncontroversy  whether on commutation of pension the  commuted
\npension becomes a capital sum or still retains the character
\nof pension so long as it remains unpaid in the hands of\t the
\nGovernment,  is\t not a new one till it was  settled  by\t the
\njudgment of this Court in Union of India v. Jyoti Chit\tFund
\n&  Finance  & Ors.,<\/a> [1976] 3 SCR 763. We may  briefly  touch
\nupon  the earlier decisions on the question. In\t an  English
\ncase,  in  Crowe v. Price, [1889] 58 LJ QB 215 it  was\theld
\nthat money paid to a retired officer of His Majesty’s  force
\nfor  the  commutation  of his pension does  not\t retain\t its
\ncharacter as pension so as to prevent it from being taken in
\nexecution. On p.217 of the Report, Coleridge, CJ. said:\n<\/p>\n
\t      “It  is  clear to me  that  commutation  money
\n\t      stands  on an entirely different\tground\tfrom
\n\t      pension money, and that if an officer commuted
\n\t      his  pension for a capital sum paid down,\t the
\n\t      rules  which apply to pension money  and\tmake
\n\t      any  assignment  of it void, do not  apply  to
\n\t      this sum.”\n<\/p><\/blockquote>\n
Following  the\tdictum of Coleridge, CJ.,  Besley,  CJ.\t and
\nKing, J. in Municipal Council, Salem v. B. Gururaja Rao, ILR<\/a>
\n[1935] 58 Mad. 469 held that when pension or portion thereof
\nis  commuted, it ceases to be pension and becomes a  capital
\nsum.  The  question in that case was  whether  the  commuted
\nportion\t of the pension of a retired Subordinate  Judge\t was
\nincome for purposes of assessment of professional tax  under
\ns.354  of the Madras District Municipalities Act, 1920.\t The
\nlearned Judges held that where pension is commuted there  is
\nno  longer  any periodical payment; the\t pensioner  receives
\nonce  and for all a lump sum in lieu of the periodical\tpay-
\nments.\tThe pension is changed into something else  and\t be-
\ncomes  a  capital sum. On that view they held that  the\t sum
\nreceived  by  the retired Subordinate Judge in lieu  of\t the
\nportion\t of his pension when it was commuted was  no  longer
\npension\t and therefore not liable to pay a professional\t tax
\nunder s.354 of the Madras District Municipalities Act.\tThat
\nis  to\tsay, the commuted portion, of the  pension  was\t not
\nincome\tfor purposes of assessment of professional tax in  a
\nmunicipality.  The question arose in a different form in  C.
\nGopalachariar v. Deep Chand Sowcar, AIR<\/a> 1941 Mad. 207 and it
\nwas  whether  the commuted portion of the  pension  was\t not
\nattachable in
\n104<\/span>
\nexecution of a decree obtained by certain creditors in\tview
\nof s. 11 of the Pensions Act. Pandurang Row, J. interpreting
\ns.  11 of the Act was of the opinion that not only the\tpen-
\nsion but any portion of it which is commuted came within the
\nprovisions  of the section. He particularly referred to\t the
\nwords  “money  due or to become due on account\tof  pension”
\nappearing in s. 11 of the Act which, according to him, would
\nnecessarily include the commuted portion of the pension.  He
\nobserved that the phrase “on account of” is a phrase used in
\nordinary  parlance and is certainly not a term of art  which
\nhas  acquired a definite or precise meaning in law.  Accord-
\ningly to its ordinary connotation the phrase “on account of”
\nmeans “by reason of” and he therefore queried:\n<\/p>\n
\t      “Now can it be said that the commuted  portion
\n\t      of the pension is not money due on account  of
\n\t      the  pension?  Though  the  pension  has\tbeen
\n\t      commuted, still can it be said that money\t due
\n\t      by  reason of such commutation or\t because  of
\n\t      such commutation, is not money due on  account
\n\t      of pension?”\n<\/p><\/blockquote>\n
He referred to s. 10 of the Act which provides for the\tmode
\nof  commutation and is part of Chapter III which  is  headed
\n“Mode of Payment”, and observed:\n<\/p>\n
\t      “In other words, the commutation of pension is
\n\t      regarded\tas a mode of payment of pension.  If
\n\t      so, can it be reasonably urged that payment of
\n\t      the  commutation\tamount\tis  not\t payment  on
\n\t      account  of  the pension, though\tnot  of\t the
\n\t      pension  itself, because after commutation  it
\n\t      ceases to be pension? I see no good reason why
\n\t      it should be deemed to be otherwise. No  doubt
\n\t      money is due immediately under the commutation
\n\t      order, but the commutation order itself is  on
\n\t      account  of a pension which was commuted or  a
\n\t      portion of the pension which was commuted. The
\n\t      intention\t behind\t the provisions\t of  s.\t 11,
\n\t      Pensions\tAct, is applicable to ‘the  commuted
\n\t      portion  as well as to the uncommuted  portion
\n\t      of the pension and the language of s. 11\tdoes
\n\t      not appear to exclude from its protection\t the
\n\t      money  that is due under a  commutation  order
\n\t      commuting a part of the pension.”
\n    In Hassomal Sangumal v. Diaromal Laloomal, AIR 1942 Sind\n<\/p><\/blockquote>\n
19.  Davis,  CJ. speaking for a Division Bench\treferred  to
\nGopalachariar’s\t case and pointed out that it does  not\t lay
\ndown that once a
\n105<\/span>
\npension\t has  been commuted and the money paid over  to\t the
\npensioner,  the exemption from attachment  still  continues.
\nThe  learned  Chief Justice went on to say  that  the  words
\n“money due or to become due” used in s. 11 must by necessary
\nimplication mean the money that has not yet been paid to the
\npensioner.\n<\/p>\n
    In Jyoti Chit Fund’s case the Court repelled the conten-
\ntion  that since the civil servant had already retired,\t the
\nprovident fund amount, pension and other compulsory deposits
\nwhich were in the hands of the Government and payable to him
\nhad ceased to retain their character as such provident\tfund
\nor  pension  under ss.3 and 4 of the  Provident\t Funds\tAct,
\n1925. Krishna Iyer, J. speaking for himself and Chandrachud,
\nJ. observed:\n<\/p>\n
\t      “On first principles and on precedent, we\t are
\n\t      clear  in our minds that these sums,  if\tthey
\n\t      are  of the character set up by the  Union  of
\n\t      India,  are  beyond the reach of\tthe  court’s
\n\t      power  to attach. Section 2 (a) of the  Provi-
\n\t      dent  Funds  Act has also to be read  in\tthis
\n\t      connection  to remove possible doubts  because
\n\t      this definitional clause is of wide amplitude.
\n\t      Moreover, s.60(1), provides (g) and (k), leave
\n\t      no  doubt on the point  of  non-attachability.
\n\t      The  matter  is so plain\tthat  discussion  is
\n\t      uncalled for.\n<\/p><\/blockquote>\n
\t\t\tWe may state without fear of contra-
\n\t      diction that provident fund amounts,  pensions
\n\t      and  other compulsory deposits covered by\t the
\n\t      provisions  we have referred to, retain  their
\n\t      character\t until they reach the hands  of\t the
\n\t      employee.\t The  reality of the  protection  is
\n\t      reduced to illusory formality if we accept the
\n\t      interpretation sought.”<\/p><\/blockquote>\n
    The learned Additional Solicitor General has very fairly
\nbrought\t to  our notice Circular No.  F.7(28)E\t.V\/53  dated
\nAugust 25, 1985 issued by the Government of India,  Ministry
\nof Finance to the effect:\n<\/p>\n
\t      “When  a pensioner refuses to  pay  Government
\n\t      dues–The failure or refusal of a pensioner to
\n\t      pay  any\tamount\towed by\t him  to  Government
\n\t      cannot  be said to be ‘misconduct’ within\t the
\n\t      meaning of Article 351 of the C.S.R. (Rule  8,
\n\t      C.C.S.  (Pension) Rules, 1972).  The  Possible
\n\t      way  of recovering\/damanding  Government\tdues
\n\t      from  a retiring officer who refuses to  agree
\n\t      in writing, to such dues being recovered\tfrom
\n\t      his pension is either to delay the final sanc-\n<\/p><\/blockquote>\n
\t      106<\/span><\/p>\n
\t      tion  of his pension for some time which\twill
\n\t      have the desired effect for persuading him  to
\n\t      agree to recovery being made therefrom or take
\n\t      recourse to Court of law.”\n<\/p><\/blockquote>\n
It  bears out the construction that the words “money due  or
\nto  become due on account of pension” occurring in s. 11  of
\nthe Pensions Act, 1871 includes the commuted portion of\t the
\npension payable to an employee after his retirement. It must
\naccordingly be held that the Government had no authority  or
\npower  to unilaterally deduct the amount  of  Rs.20,482.78p.
\nfrom  the commuted pension payable to the  respondent,\tcon-
\ntrary to s. 11 of the Pensions Act, 1871.\n<\/p>\n
    For\t these\treasons, the appeal partly succeeds  and  is
\nallowed.  The judgment and order of the High Court  are\t set
\naside. We allow the writ petition filed by the respondent in
\nthe High Court and direct that a writ of mandamus be  issued
\nordaining  the\tCentral Government to refund the  amount  of
\nRs.20,482.78p.\tdeducted from the commuted pension  paid  to
\nthe respondent. The Government shall be at liberty to initi-
\nate  proceedings under s.7(2) read with s. 14 of the  Public
\nPremises (Eviction of Unauthorised Occupants) Act, 1971\t for
\nrecovery  of  Rs.20.482.78p. due on account of\tdamages\t for
\nunauthorised use and occupation of the fiat in question from
\nthe respondent as arrears of land revenue, or have  recourse
\nto its remedy by way of a suit for recovery of damages.
\n    Before  parting  with  the case, we wish to\t add  a\t few
\nwords.\tThe  Government should consider the  feasibility  of
\ndropping  the  proceedings for recovery of damages,  if\t the
\nrespondent  were to forego his claim for interest.  In\tthis
\ncase, the deduction of the amount of Rs.20,482.78p. from the
\ncommuted  pension payable to the respondent was made as\t far
\nback as October 30, 1976. Since then, 10 years have gone by.
\nEven if interest were to be calculated at 9% per annum,\t the
\ninterest alone would aggregate to more than Rs.18,000. Since
\nthe  Government had the benefit of the money for  all  these
\nyears,\tit may not be worthwhile in pursuing the matter\t any
\nfurther.\n<\/p>\n
There shall be no order as to costs.\n<\/p>\n
S.R.\t\t\t\t\t\t      Appeal\nallowed.\n107<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Anr vs Wing Commander R.R. Hingorani … on 30 January, 1987 Equivalent citations: 1987 AIR 808, 1987 SCR (2) 94 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: UNION OF INDIA & ANR. Vs. RESPONDENT: WING COMMANDER R.R. HINGORANI (RETD.) DATE OF JUDGMENT30\/01\/1987 BENCH: SEN, A.P. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-237138","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Anr vs Wing Commander R.R. Hingorani ... on 30 January, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-wing-commander-r-r-hingorani-on-30-january-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Anr vs Wing Commander R.R. 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