TMI Blog1987 (1) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 968 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 ₹ 161/- per month, exclusive of electricity and water charges. The respondent was transferred from Delhi to Chandigarh 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 continued in unauthorised occupation of the said flat for a period of nearly five years and was being charged the normal rent for that period. On February 28, 1975 the Estate Officer having come to know about the transfer of the respondent from Delhi, the Directorate add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed by a learned single Judge by his judgment and order dated September 7,1981 who held that although the allotment of the flat 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 concessional period of two months from the date of his transfer, the Government was estopped from claiming the amount of ₹ 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. 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 ₹ 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 unauthorised occupation, the doctrine of promissory estoppel precluded the Government from claiming damages equivalent to the market rent under SR 317-B-22 for the period in question. Aggrieved, the appellant preferred an appeal but a Division Bench by its j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1971 lays down the principles for assessment of such damages. Among other things, Rule 8(c) provides that in making assessment of damages for unauthorised use 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 317-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 Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recorded in writing. Nor was there a question of any promissory estoppel operating against the Government in a matter of this kind. 8. 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) thereof after June 11,1970, the date of transfer and thereafter it would be deemed to have been cancelled. It is not disputed 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 defence 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 Allotment Rules and was clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration by process of any Court at the instance of a creditor, for, any demand against the pensioner, or in satisfaction of a decree or order of any such Court. According to its plain terms, Section 11 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. 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 (1976)IILLJ69SC . We may briefly though upon the earlier decisions on the question. In an English case, in Crowe v. Price (1889) 58 LJ OB 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 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 Section 11, Pensions Act, is applicable to the commuted portion as well as to the uncommuted portion of the pension and the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Pension) Rules, 1972). The possible way of recovering/demanding 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 sanction 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 Section 11 of the Pensions Act, 1871 include 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 ₹ 20,482.78p. from the commuted pension payable to the respondent, contrary to Section 11 of the Pensions Act, 1871. 13. 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 ₹ 20,482.78p. deducted from the commuted pensi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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