judgement:
Criminal Appeal No. 208 of 1978.
From the Judgment and Order dated 23.12.
1977 of the Punjab and Haryana High Court in Criminal Appeal No. 259 of 1974 M.R. Sharma, C.M. Sharma and H.K. Puri for the Appellant.
117 Harbans Lal, I.S. Goel and C.V. Subba Rao for the Respond ent.
The Judgment of the Court was delivered by OZA, J.
This appeal has been filed by the appellant after the grant of special leave by this Court against his conviction under Sec.
5(2) of the Prevention of Corruption Act and sentence to rigorous imprisonment for 2 years and fine of Rs. 150 and also under Sec.
161 of the Indian Penal Code and rigorous imprisonment for one year and a fine of Rs. 100 awarded by Special Judge, Ambala and maintained by the High Court of Punjab & Haryana by its judgment dated 23.12.
According to the prosecution Shri M.G. Devasahayam P.W.4 Sub Divisional Officer , Jagadhri had sent a complaint against the appellant to the Station House Officer, Jagadhri on 7.6.1972 on the basis of which the first information report was recorded at Police Station about 4 P.M. on 7.6.1972.
The Sub Divisional Officer has received an appli cation from one Gian Singh complainant about the conduct of the appellant.
It was alleged by Gian Singh P.W.2 in the complaint that the appellant who was a Patwari of Bambhol Circle, had been demanding money for supply of copies from the revenue record and Gian Singh needed those copies in connection with the execution of a sale deed.
Gian Singh was to purchase land form Brij Bhushan who was to act as an Attorney for his mother.
It was alleged that for this Rs.200 were settled out of which Rs.50 were paid and Rs. 150 were to be paid on the date of the sale deed.
The copies of the documents required were obtained after Rs.50 were paid.
The sale deed was to be executed on 7.6.72 and therefore on this date (Gian Singh and Brij Bhushan approached the Sub Divi sional Officer with an application making these allegations against the appellant.
The Sub Divisional Officer attempted to contact the Deputy Superintendent of Police and the Sub Inspector of Police incharge of the Police Station con cerned, but when none of them were available he himself decided to lay a trap.
It is alleged that Gian Singh P.W.2, Brij Bhushan P.W.3, Raj Kumar and Mangal Singh P.W. 1 had gone to the house of the Sub Divisional Officer at 2.40 P.M. on 7.6.1972.
Gian Singh narrated the whole story and stated that he had promised to pay he appellant Rs. 150 on the date on which the sale deed was to be executed.
Rs. 150 were produced by Gian Singh which included a 100 rupee note and 5 notes of Rs. 10 each.
Their number were noted and the Sub Divisional Officer initialled the currency notes and were given to Gian Singh and a trap was laid.
Brij Bhushan was asked to act as a witness.
Gian Singh 118 and Brij Bhushan therefore reached the canteen near the Tehsil.
The Sub Divisional Officer, Raj Kumar and Mungal Singh went to Tensil premises in a Jeep and waited near the tea stall for a signal.
On receiving the signal they reached there and on personal search currency notes of Rs. 150 were recovered from the person of the appellant.
On these facts the appellant was prosecuted and was convicted and sentenced as mentioned above.
The facts are not disputed.
The money has been recovered from the possession of the appellant and it is also not disputed that he received this money from Gian Singh.
Even before the High Court these facts were not disputed.
The plea taken by the appellant was that the Govt.
wanted to collect money from the land holders for small savings schemes and the Patwaris were instructed to collect this amount.
Appellant also examined some defence to indi cate that such circulars were issued to the Patwaris and they were collecting the amounts to be deposited in the small savings schemes and on this basis they received appre ciation and those who could not collect sufficient amount to meet the target also received remarks.
It was contended before the High Court and also before this Court that this amount the appellant had received as a deposit for the small savings scheme and which was ultimately recovered by the Sub Divisional Officer.
It was also contended that in fact the copies of the revenue record which were needed by Gian Singh had already been supplied to him and in fact the sale deed was registered on 7th June before this trap and there fore it was alleged that Rs. 150 were paid as alleged by appellant and it was on this basis contended that the expla nation given by the appellant that he had received the money to be deposited under the small savings scheme appear to be reasonable.
It is significant that when the Sub Divisional Officer on getting the signal reached the canteen alongwith the witnesses and conducted the search it was not the stand of the appellant that he had received the money for small scale deposits as it is apparent that if the money was received for that purpose, as soon as the Sub Divisional Officer reached the canteen with the witnesses and wanted to search the appellant, appellant would have immediately came out with this explanation.
Learned counsel for the appellant frankly conceded that this was not the case of the appellant that he came out with this explanation on the spot at that time.
This is not his case even in the statement recorded at the trial nor such a suggestion was put to anyone of the prosecution witnesses in the course of cross examination.
In view of this it could not be disputed that this explanation has been given as an after thought and this itself goes to show that this explanation is just as an imagination.
119 There appears to be some controversy about the fact as to whether the Patwaris were directed to collect funds for small savings schemes and in this respect the learned Trial Court also examined the Tehsildar as a Court witness and after considering all the evidence disregarded the explana tion given by the appellant in respect of the money (Rs. 150) recovered from his person.
The learned Trial Court after considering the defence evidence and the evidence of the Tehsildar did not accept the defence version and convicted the appellant.
The Trial Court also considered the evidence of P.W .5
Jeet Ram who was the keeper of the tea stall who was examined by the prosecution but he turned 'hostile ' and supported the de fence version.
Learned counsel for the appellant went through the evidence in detail and attempted to contend that as the copies of the documents had already been received there was no occasion for Gian Singh to pay Rs.150.
According to the prosecution the bargain was settled for Rs.200.
Rs.50 were paid in advance and therefore copies were given but the appellant was to receive the balance of Rs. 150 for which Gian Singh had promised to pay it on the date of the regis tration and accordingly on the date of registration it was fixed up that the appellant will be available at the tea stall near the Tehsil where this amount will be paid and it was because of this that Gian Singh appreached the Sub Divisional Officer with the complaint.
In fact where the receipt of the amount and its recovery is not disputed it is not necessary for us to go through the evidence and examine it afresh, although learned counsel went through the evi dence in detail.
The only question is as to whether the Courts below were fight in rejecting the explanation of the appellant for receipt of Rs. 150.
The explanation given by the appellant which was seriously pressed by the learned counsel for the appellant was that he had received this amount to be deposited in the small savings scheme on behalf of Gian Singh but it is significant that neither he had made any note of this fact nor given any receipt to Gain Singh.
Apart from it it is significant that the Sub Divisional Officer who was a revenue officer and the appellant being a Patwari was his subordinate.
The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount to be deposited in the small savings scheme.
It is impossible to believe that if the appellant had received this amount for being deposited in the small savings scheme he would have not opened his mouth and permitted the search and recovery of this amount from his pocket to be done by the Sub Divisional Officer and allowed the matter to be 120 handed over to the Police and still would not have come out to say what he chose to say at the trial.
This conduct of the appellant in not coming out with this explanation in stantaneously goes a long way to make this explanation just an after thought specially when Sub Divisional Officer con ducted the search and recovered this amount from his person.
In this view of the matter therefore in our opinion both the Courts below were fight in discarding this explanation of the appellant.
We therefore see no substance in this conten tion advanced on behalf of the appellant.
Learned counsel ultimately contended that this appellant a Patwari who had faced the trial and pendency of this appeal for about 14 years will now have to go to jail for serving out a part of this sentence which remained to be served.
It is no doubt true that having been convicted for these offences the appellant is bound to lose his service.
It was also stated that he had served out some sentence of the imprisonment also.
The incident is of 1972 and we are now in 1987.
In view of these circumstances in our opinion the sentence of the imprisonment already undergone and sentence of find imposed by Hon 'ble the Trial Court will meet the ends of justice.
Consequently appeal is partly allowed.
The conviction of the appellant under Sec.5(2) of the Prevention of Corruption Act and Sec.
161 of the Indian Penal Code is maintained.
However his sentence as regards sentence of imprisonment is reduced to the sentence already undergone but the sentence of fine is maintained.
He is on bail.
His bail bond shall be cancelled if he had not paid the amount of fine he shall do so within one month from today.
A.P.J. Appeal al lowed.

summary/full:
The appellant, who was a Patwari, had been demanding money for supply of copies from the revenue record to the complainant who needed them in connection with the execution of a sale deed.
The bargain was settled for Rs.200.
Rs.50 were paid in advance and therefore copies were given, but the appellant was to receive the balance of Rs. 150 for which the complainant had promised to pay it on the date of registration and accordingly on the date of registration it was fixed up that the appellant will be available at the tea stall near the Tehsil where this amount will be paid.
The complainant brought the conduct of the appellant to the notice of the Sub Divisional Officer who sent a complaint to the Police Station, on the basis of which first information report was lodged.
As the concerned Police Officers were not available, the Sub Divisional Officer himself laid a trap.
The complainant handed over the currency notes initialled by the Sub Divi sional Officer to the appellant.
On receiving a signal, the Sub Divisional Officer and the witnesses reached there and on personal search currency notes of Rs. 150 were recovered from the person of the appellant.
The appellant was prosecuted and convicted under s.5(2) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for two years and fine of Rs. 150 and also under section 161 of the Indian Penal Code to rigorous imprisonment for one year and a fine of Rs. 100.
The plea of the appellant that the Government wanted to collect money from the land holders for small savings scheme and the Patwaris were instructed to collect this amount was rejected by the Special Judge.
116 The appeal of the appellant was dismissed by the High Court.
In further appeal to this Court, on behalf of the appel lant it was contended that the copies of the revenue record which were needed by the complainant had already been sup plied to him and the sale deed was registered before the trap and that the appellant had received the money for depositing the same under the small savings scheme on behalf of the complainant.
Partly allowing the appeal, HELD: 1.
The conviction of the appellant under s.5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code is maintained.
However, his sentence as regards sentence of imprisonment is reduced to the sentence already undergone but the sentence of fine is maintained, [120D E] 2.
The explanation given by the appellant was that he had received the amount to be deposited in the small savings scheme on behalf of the complainant.
He had neither made any note of this fact nor given any receipt to the complainant.
The Sub Divisional Officer was a Revenue Officer and the appellant being a Patwari was his subordinate.
The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount for depositing it under the small savings scheme.
The conduct of the appellant in not coming out with this expla nation instantaneously goes a long way to make his explana tion just an after thought specially when Sub Divisional Officer conducted the search and recovered the amount from his person.
The Courts below were right in discarding this explanation of the appellant.
[119G H;120A B] 3.
Where the receipt of the amount and Rs recovery is not disputed it is not necessary for this Court to go through the evidence and examine it afresh.
[119E]


judgement:
Civil Appeal No. 123(N) of 1973.
From the Judgment and Order dated 26.
1972 of the Andhra Pradesh High Court in Writ Appeal No. 444 of 1968.
B. Parthasarthy and G .N.
Rao for the Appellant.
B. Kanta Rao for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
Is the Municipal Corporation of Hyderabad prohibited from levying Municipal taxes from persons induct ed by it in the property of its own ownership under the hire purchase agreement? The validity of levy of Municipal taxes by the Municipal Corporation of Hyderabad from allottees to whom the Municipal Corporation had allotted buildings con structed under "Low Income Housing Scheme" launched by it was questioned by the allottees.
The learned Single Judge upheld the validity but the Division Bench in.
appeal, Under Clause 15 of the Letters Patent.
took a contrary view.
The Municipal Corporation has preferred the present appeal, Appeal by Special Leave and has contended that the learned Single Judge was right in upholding the levy and the Divi sion Bench was wrong in holding it invalid.
The facts giving rise to the writ petition instituted by the 72 allottees to whom the houses were allotted need to be stated briefly: The Hyderabad Municipal Corporation started a scheme called Low Income Housing Scheme in 1957.
In pursuance of that scheme, the Corpo ration constructed several houses in various parts of the Hyderabad City including the locality of Malakpet.
After the houses at Malakpet were completed, applications were invited from persons belonging to 110 that group for the purpose of allotting these houses.
The writ petitioners applied and the Corporation allotted the houses to them.
They are occupying the houses since 1959.
The writ petitioners executed agreements in favour of the Corporation.
According to the terms of the agreement, the allottees were put in posses sion of the houses allotted to them.
The allottees were to pay 20% of the sale price as the first instalment and they were required to pay the balance in monthly instalments.
The agreement specifically provides that the houses would remain, till the payment of the last instalment and execution of a conveyance in favour of the writ petitioners, as the property of the Corporation.
The allottee has been strictly prohibited from selling or mort gaging or otherwise disposing of the house or even to sublet or part with possession of the same.
Even after the writ petitioners become owners of the houses, they are precluded from selling the same within five years of such date.
The agreement further provides that all municipal taxes and water taxes and electrici ty charges would be borne by the allottees.
The writ petitioners were served with a demand notice on 31 12 1964 asking them to pay house taxes from 1 4 1961 onwards.
The demand no tice, which the writ petitioners received on 16 4 1965, required the writ petitioners to file objections, if any before 15 days of the receipt of the notice.
The writ petitioners accordingly filed their objections on 29 4 1965.
The principal contention of the peti tioners was that the houses are not liable to be taxed as they vest in the Municipal Corpo ration, and as the writ petitioners are not the owners of the houses, Negativing this contention, the Municipal Corporation served a notice dated 19 6 1966 demanding from the petitioners taxes for the period commencing from 1st April, 1961 to 31st March, 1965.
It is this demand notice which has given rise to the writ petition, giving rise to the present appeal.
The challenge to the levy of taxes is built on the argument that inasmuch the houses under the hire purchase agreement have not yet vested unto the allottees, the property vests unto the Municipal Corporation and under the circumstances Section 202(1) of the Hyderabad Municipal Corporation Act (Act) prohibits the levy of the general tax in respect of these houses.
111 In order to deal with the plea of the allottees which was negatived by the learned Single Judge but sustained by the learned Judges of the Division Bench, the relevant provisions of the Act require to be noticed.
They are: Sections 197(1)(i), 199(1), 202(1) and 204( 1) ' It is no doubt true that until all the instalments under the hire purchase agreement were paid, the allottees would not become the owners of the houses for the title would vest unto them only upon the payment of all the instalments as per the stipulation contained in the agreement.
At the relevant point of time the instalments had not yet been fully paid.
The title in regard to the houses therefore continued to vest unto the Municipal Corporation at the relevant time.
The question then is whether Section 202(1)(c) makes it unlawful to levy general tax from the allottees of these buildings.
The scheme underlying the aforesaid packet of provisions embodied in the Act deserves to be analysed in this context.
Section 197(1)(i) casts a legal obligation on the Municipal Corporation to levy taxes on lands and buildings.
Section 199(1) makes it obligatory subject to the exceptions, limitations 1.
"Section 197(1)(i): For the purposes of this Act, the Corporation shall impose the following taxes namely: (a) taxes on lands and buildings; X X X X" "199(1): The following taxes shall subject to exceptions, limitations and conditions herein provided be levied on buildings and lands in the City and shall hereinafter be referred to as property taxes, namely: (a) a general tax; (b) a water tax; (c) a drainage tax; (d) a lighting tax; (e) a conservancy tax;" "202(1): The general tax shall be levied in respect of all buildings and lands in the city except; (a) buildings and lands solely used for purposes connected with the disposal of the dead; (b) buildings and lands or portions thereof solely occupied and used for public worship or for a charitable or educa tional purpose; (c) buildings and lands vesting in the corporation; (d) buildings and lands vesting in the Central Government or state Government used solely for public purposes and not used or intended to be used for purposes of profit in re spect of which the said tax, if levied, would under the provisions hereinafter contained be primarily leviable from the Central Government or State Government as the case may be." "204(1): Property taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed if such occupier holds the said premises imme diately from the Government or from the Corporation." 112 and conditions embodied in the relevant provisions, to levy a general tax, water tax, drainage tax, lighting tax and conservancy tax on the buildings and lands in the City of Hyderabad.
Whilst the legislature makes it obligatory on the Corporation to levy the aforesaid taxes, in so far as gener al tax is concerned an exception is carved out under Section 202(1) and the Municipal Corporation is relieved from the obligation of imposing taxes in respect of buildings which are specified in clauses (a) to (d).
Evidently the exception is made on policy and principle.
Not arbitrarily.
Essential ly the properties which are used for public purposes or for purposes of the community are exempted.
For instance by clause (a) buildings and lands which are used for purposes connected with the disposal of the dead are exempted inas much as the entire community is interested in such a user.
The same principle is discernible in regard to clause (b) which provides for exemption in regard to lands or buildings solely occupied for public worship or for charitable or educational purpose.
The same philosophy is discernible in the exemption accorded under clause (d) to properties be longing to Central or State Government which are used solely for a public purpose.
Be it realized that clause (d) makes it abundantly clear that the exemption will not be extended to properties belonging to the Central Government and State Government if the same are used for purposes of profit and not for a public purpose.
The user for the purposes of the community is the rationale of the thread of principle which runs through all these three clauses (viz. clauses (a), (b) and (d) for granting exemption.
So far as clause (c) which has given rise to the present controversy is concerned, a different principle is at the bottom: different but no less rational.
The philosophy underlying the exemption is rooted in pragmatism.
In so far as buildings and lands which are the properties of the Corporation and are used for its own purposes, it would be an exercise in futility to collect taxes from itself in order to augment its own resources.
Surely the resources would not stand augmented when the Municipal Corporation collects the taxes from itself.
How would one benefit by taking money from one pocket and put ting it in another pocket of oneself? By transfering from one drawer of one 's own cash box into another drawer of the same cash box? The whole purpose of levying tax is to aug ment its resources and not merely to engage in an exercise in accountancy, by crediting in one account and debiting in another, which does not result in its resources being aug mented in reality.
In fact a sizable staff would have to be employed for making the valuation of the properties, for making assessment of the properties, and for making credit and debit entries in the relevant accounts.
That is the obvious reason why buildings and lands which vest in the Corporation and which are in its own use and 113 occupation are sought to be exempted from the levy.
Of course clause (c) which provides for exemptions in respect of "buildings and lands vesting in the Corporation" is not very happily or perfectly worded.
Had it been drafted with the care and precision to be expected from a perfect drafts man (who exists only in theory and not in practice), there would have been no scope for the controversy.
But then if the entire scheme is viewed in a common sense manner, so that the scheme makes sense, the matter cannot present any serious problem.
Section 204(1) which is a part of the packet of sections relating to this subjectmatter clinches the issue in favour of the Municipal Corporation of Hydera bad, the appellant herein.
It in terms provides that proper ty taxes shall be leviable primarily from the actual occupi er of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from the Government or from the Corporation.
If the property taxes were not to be levied in respect of the property belonging to the Corporation which is used and occupied by allottees or other occupiers there would be no point or purpose in making the provision in the aforesaid manner.
The provision in terms applies to a situation where the build ings or the premises are in actual occupation of a person or body other than the Municipal Corporation itself.
1n such an event the property taxes would be leviable primarily from the said occupier as if the said occupier holds the property from the Corporation itself.
This leaves no room for doubt that the Corporation is entitled to impose taxes on the buildings which may be owned by itself but which may be in occupation of others.
Otherwise, the provision contained in Section 204(1) would be rendered aimless and otiose.
Surely the legislature was enacting a purposeful provision and not a purposeless provision without aim or object.
For the aforesaid reasons we are of the opinion that the learned Single Judge was right in taking the view that the buildings and lands vesting unto the Corporation not only in title but also in possession (as polarized from those vest ing in title only but not in possession) were exempted from the obligation imposed by the legislature to levy the property taxes.
Buildings and lands which were merely owned by the Corporation but were in actual possession or under the actual use and occupation of some one else, that is to say persons or bodies other than the Corporation itself are not exempted.
In order to attract Section 202(1)(c) a property must satisfy a dual test.
The property must not only be owned by the Corporation, it must also be in the occupation of the Corporation itself.
It is in this sense that the word 'vesting ' has been used.
And the proposition that the expression 'vest ' is capable of being used in this sense, depending on the context in which it is emp 114 loyed, is supported by the observations made by this Court in Fruit & Vegetable Merchants Union vs Delhi Improvement Trust, A.I.R. 1954 S.C.p. 344.
It has been observed therein that the word vest: "is a word of variable import and a property must vest in title or may vest in possession or it may vest in a limited sense, as indicated in the context . . " Reliance has been placed in this context on a passage from Richardson vs Robertson, [1862] 6 L.T.p. 75 wherein it is stressed that the 'vesting ' often means 'vesting ' in posses sion.
The scheme of the relevant sections has to be read and construed in a meaningful, purposeful and rational manner.
The expression 'vest ' employed in Section 202(1)(c), under the circumstances must of necessity be construed as vesting both in title as well as in possession.
Be it realized that there can be no principle in exempting the tenants inducted by the Municipal Corporation in its property from payment of taxes if the terms of the lease so provide.
Just as the tenants who occupy the properties belonging to private citizens have to pay property taxes if the terms of the agreement so provide, the tenants inducted by the Municipal Corporation in buildings owned by itself have to pay the property taxes if the agreement so provides.
There can be no rational basis for exempting the tenants or persons inducted by the Municipal Corporation in its own buildings from payment of such taxes.
The concerned provision therefore cannot be read in the manner suggested by the respondents.
The learned Single Judge was perfectly justified in negativ ing their contentions and in dismissing their writ petition.
The learned Judges of the Division Bench were in error in reversing the learned Single Judge.
We, therefore, allow this appeal, set aside the order passed by the Division Bench, and restore the order passed by the learned Single Judge dismissing the writ petition.
There will be no order as to costs.
M.L.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant Municipal Corporation of Hyderabad con structed houses under "Low Income Housing Scheme" and allot ted them to the respondents on hire purchase.
The agreements executed by the respondents in favour of the appellant provided (1) that the houses would remain, till the payment of the last instalment and execution of a conveyance in favour of the respondents, as the property of the Corpora tion; and (ii) that all Municipal taxes, water taxes and electricity charges would be borne by the allottees.
The appellant served demand notices on the respondents to pay house tax in respect of their houses.
By that time, the instalments had not been fully paid.
The respondents challenged 'the levy of tax on the ground that s.202(1) of the Hyderabad Municipal Corporation Act prohibits the levy of general tax in respect of the aforesaid houses, since they had not yet vested unto the allottees under the hire purchase agreement.
A Single Judge negatived the plea of the respondents allottees and upheld the validity of tax but the Division Bench in a Letters Patent Appeal took a contrary view.
Hence this appeal by special leave.
Allowing the appeal, HELD: (1) In order to attract s.202(1)(c) of the Hydera bad Municipal Corporation Act, a property must satisfy a dual test.
The property must not only owned by the Corpora tion, it must also be in the occupation of the Corporation itself.
It is in this sense that the word 'vesting ' has been used.
The expression 'vest ' employed in s.202(1)(c) under the circumstances must of necessity be construed as vesting both in title as well as in possession.
[113G H] Fruit & Vegetable Merchants Union vs Delhi Improvement Trust, 108 A.I.R. 1954 S.C.p. 344 and Richardson vs Robertson, [1862] 6 L.T.p. 75, relied upon.
(2) The scheme underlying sections 197, 199, 200 and 204 of the Act has to be read and construed in a meaningful, pur poseful and rational manner.
Section 197(1)(i) casts a legal obligation on the Municipal Corporation to levy taxes on lands and buildings.
Section 199(1) makes it obligatory subject to the exceptions, limitations and conditions to levy a general tax, water tax, drainage tax, lighting tax/conservancy tax on the buildings and lands in the City of Hyderabad.
Whilst the legislature makes it obligatory on the Corporation to levy the aforesaid taxes, in so far as general tax is concerned an exception is carved out under s.202(1) and the Municipal Corporation is relieved from the obligation of imposing taxes in respect of buildings which are specified in clauses(a) to (d).
The exception is made on policy and principle.
Not arbitrarily.
Essentially the properties which are used for public purposes or for pur poses of the community are exempted.
Clause(d) makes it abundantly clear that the exemption will not be extended to properties belonging to the Central Government and State Government if the same are used for purposes of profit and not a public purpose.
The user for the purposes of the community is the rationale of the thread of principle which runs through all these three clauses viz. clauses (a), (b) and (d) for granting exemption.
So far as clause(c), which has given rise to the present controversy is concerned, a different principle is at the bottom, different but no less rational.
The philosophy underlying the exemption is rooted in pragmatism.
In so far as buildings and lands which are the properties of the Corporation and are used for its own purposes it would be an exercise in futility to collect taxes from itself in order to augment its own resources.
Surely the resources would not stand augmented when the Municipal Corporation collects the taxes from itself.
[111D; 112A F] 3.
Section 204(1) which is a part of the packet of sections relating to this subject matter clinches the issue in favour of the Municipal Corporation of Hyderabad.
It, in terms, provides that property taxes shall be leviable pri marily from the actual occupier of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from the Government or from the Corpo ration.
If the property taxes were not to be levied in respect of the property belonging to the Corporation which is used and occupied by allottees or other occupiers, there would be no point or purpose in making the provision in the aforesaid manner.
The provision in terms applies to a situa tion where the buildings or the premises are in actual occupation of 109 a person or body other than the Municipal Corporation it self.
In such an event, the property taxes would be leviable primarily from the said occupier as if the said occupier holds the property from the Corporation itself.
This leaves no room for doubt that the Corporation is entitled to impose taxes on the buildings which may be owned by itself but which may be in occupation of others.
Otherwise, the provi sion contained in section 204(1) would be rendered aimless and otiose.
[113B F]


judgement:
tion (Original) No. 567 of 1986.
(Under Article 32 of the Constitution of India).
Dr. Raxna Swamy and P.H. Parekh for the Petitioner.
B. Datta, Additional Solicitor General, V.J. Rao, Y.P. Rao, Ms. K. Kumaramanglam and Ms. section Relhan for the Respond ents.
The facts: The petitioner is one Hem Lall Bhandari residing in Bombay, practising 'law ' there.
The first re spondent is the State of Sikkim through its Home Secretary, the second respondent, the Delhi Administration, Police Department and the third respondent, the Union of India through the Home Secretary.
The petitioner states that he had a humble beginning and that he by dint of hard labour qualified himself in law and secured significant success academically.
It is alleged that the Chief Minister of Sikkim wanted him to join politics and that he incurred the wrath of the Chief Minister because of his disinclination to accept this suggestion and that the order of detention was passed against him consequently.
On 29.9.1986, at 10.15 P.M. three officers of the Sikkim Police Service accompanied by two officers of the Bombay Police went to the residence of the petitioner and took him to the office of the C.I.D., Bombay where he was served with a copy of the detention order.
He was detained in the police lock up at the C.I.D. office and his request to contact a lawyer was not granted.
He was kept in custody till 5.30 P.M. on 30 9 1986.
At 6 P.M. on that day, he was permitted to go to his office to collect some papers.
There he con tacted Shri T.R. Andhyarugina, Senior Counsel and informed him that he was being 81 taken to the Bombay Airport to be flown by flight IC 183, to Delhi.
The Senior Counsel requested the police officers to permit him to approach the Bombay High Court before taking the petitioner to Delhi.
This request was not granted.
However, he filed a habeas corpus petition for the release of the petitioner in the Bombay High Court on the same day and P.B. Sawant, J. stayed the order of detention as per the following order; at 7.30 P.M. "There are no grounds of detention furnished, nor any documents, along with the order.
The grounds for detention have to be served along with the order.
The order is prima facie illegal.
It is, therefore, stayed till further orders from this Court.
" This order could not be served on the detaining officer as the Plane carrying the petitioner took off to Delhi at 8.30 P.M.
Meanwhile at 11.30 P.M.
Shri Andhyarujina tele phonically informed a Delhi Advocate, Dr. Mrs. Swamy, of the order passed by the Bombay High Court.
On receipt of this information, she informed the officer on duty at the Air port, of the order of Bombay High Court.
Nothing happened.
Therefore, a petition was filed before this Court on 1st October, 1986 at 2.30 P.M. on which this Court passed an order directing that the petitioner be detained in Delhi and should not be removed from Delhi by the respondents and further that he should be produced before the Chief Metro politan Magistrate who might release him on bail if he thought it fit.
On 2 10 1986, the petitioner was brought before the Chief Metropolitan Magistrate who after hearing the parties granted bail to the petitioner.
The petitioner was released the same evening at 4.30 P.M. on furnishing a bond of a sum of Rs. 10,000 with a surety in the like sum.
The petitioner returned to Bombay the next day, The address of the petitioner is well known to the respondents.
No serious attempt was made by them between 2 10 1986, and 14 10 1986 to serve the petitioner with the grounds of detention.
On 6th October, 1986, the petitioner attended the Bombay High Court in connection with the writ petition filed there and has been regularly attending his office and carrying on his professional duties both in the office and in the High Court.
On 14 10 1986, the petitioner was served with the impugned order of detention, the grounds of detention and the supporting documents.
The case put forward by the petitioner 's counsel is that the delay caused in serving the grounds of detention, from 2 10 1986 to 14 10 1986, clearly violates Section 8(1) of the Act 82 and on that ground the order of detention has to be quashed.
To meet the case of the petitioner that the grounds of detention were served on him only 15 days after the order of detention a Counter Affidavit is filed, sworn to by the Home Secretary, Government of Sikkim.
We extract below the rele vant portion of the Counter Affidavit. "On 2 10 1986, the petitioner was produced in the Court of the Chief Metropolitan Magis trate.
The petitioner was released on bail in pursuance of the order of this Hon 'ble Court.
On 3 10 1986, the grounds of deten tion alongwith the materials were handed over to Shri K.P. Subba, for service on the peti tioner.
Shri K.P. Subba, having learnt from Mrs. Swami, who was his surety, that the petitioner left for Bombay on the same day.
On 4 10 1986, the Police Officers could not contact the petitioner in his address.
He waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court.
He returned to New Delhi on 6 10 1986.
The writ petition No. 1015 of 1986 was heard by Hon 'ble Mr. Justice Sawant and Justice Kolse Patil and by order dated 14 10 1986 discharged the rule.
The grounds of detention could not be served within the period of 5 days or 10 days as per section 8 of the Act, because the petitioner was released on bail, by the Chief Metropolitan Magistrate on 2 10 1986 and the petitioner avoided the police officer.
The petitioner received the grounds alongwith the material on 14 10 1986 at Bombay as per the orders of the High Court.
Shri K.P. Subba, the Police Officer waited till 6th October, 1986 at Bombay and having found that he was not able to contact the petitioner returned to Gangtok.
Thus the grounds could not be served on the petitioner within the stipulated period as the petitioner was not under detention from 2nd October, 86 onwards.
Had the petitioner been in detention it would have been possible for me to get the grounds served on the petitioner on 3rd Octo ber, 1986 itself.
I respectfully submit that it is the petitioner who rendered every effort on my part to serve the grounds futile 83 taking advantage of the various orders of the High Court of Bombay and this Hon 'ble Court.
I did not know that the Writ Petition filed by the petitioner was posted in the Bombay High Court on 6th October, 1986.
No notice was served on me or on the State Government about the posting of the writ petition in the Bombay High Court on 6th October, 1986.
The only communication received was that the said case was posted on 14th October, 1986.
Our Advocate General appeared on the day in the High Court of Bombay.
I respectfully submit that the petitioner cannot be allowed to contend that the provisions of Section 8 of the Act were violated by me in view of the fact that the petitioner was not in detention and was en larged on bail by the Chief Metropolitan Magistrate, New Delhi under the orders of this Court.
Therefore, I respectfully submit that there is no violation on my part of the provi sions of Section 8 of the Act.
" The petitioner has made various allegations of malafides against the Chief Minister of Sikkim.
These allegations are not supported by any acceptable evidence.
Therefore, we do not propose to consider them.
Much was made of the fact that the Chief Minister has not filed a Counter Affidavit himself denying the allegations.
According to us it is not necessary since the allegations are wide in nature and are bereft of details.
We do not think it necessary in all cases to call upon persons placed in high positions to controvert allega tions made against them by filing affidavits unless the allegations are specific, pointed and necessary to be con troverted.
We, therefore, propose to confine ourselves purely to the question whether there has been a violation of the mandatory provisions contained in Section 8 of the Act.
or not.
The order of the Home Secretary directing the petition er 's detention under Section 3 of the Act was made on 25 9 1986 and grounds of detention were prepared on the same date.
The petitioner was served with the detention order on '29 9 1986 at 10.15 P.M.
He was taken to the Bombay Police lock up that day.
On 30 9 1986 at 6 P.M. he was taken to his office in Bombay.
On the same day, the Bombay High Court passed an order at 7.30 P.M. staying the detention order.
The Plane carrying the petitioner leaves Bombay for Delhi on the same day at 8.30 P.M.
The detaining officers were in formed of the order of the Bombay High Court on 1 10 1986 at 5 P.M.
On the same day at 3.30 P.M. the Supreme Court di rects that the petitioner shall not be taken out of Delhi.
On 2 10 1986, the Chief Metropolitan 84 Magistrate directs the petitioner 's release on bail.
On 14 10 1986, the petitioner is served with grounds of detention.
These facts are not disputed.
Let us see how the concerned officer explains the delay caused in servings the grounds of detention on the petition er.
But before doing so we will read Section 8(1) of the Act.
"8(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and fOr reasons to be recorded in writing, not later than fifteen days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government." A bare reading of the Section shows that it is obligato ry on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made, promptly.
This has to be done as soon as possible and ordi narily not later than 5 days.
The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances.
The grounds of detention, under exceptional circumstances, can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he was to record reasons why the grounds of detention could not be communicated within 5 days.
It is clear in this case that the grounds of detention were communicated to the petitioner long after 10 days.
There is no record evidencing any reason for this long delay.
We have therefore to examine the reasons why the grounds of detention were given only on 14 10 1986.
It is stated in the Counter Affidavit sworn to by the Home Secretary that the grounds of detention were handed over to Shri K.P. Subba for service on the petitioner on 3 10 1986.
This K.P. Subba has not chosen to file an affidavit in this case to inform this Court as to what really happened with the grounds of detention given to him for service on the petitioner.
It is stated in the Counter Affidavit that Shri Subba learnt from the petitioner 's Advocate, Mrs. Swamy, that the petitioner had left for Bombay.
The Counter Affidavit continues to say that on 4 10 1986, the 'police officers ' could not contact the petitioner in his home address.
It is not 85 evident from this statement as to which officer tried to contact the petitioner in his home address on 4 10 1986.
It is further stated that he waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court.
The Counter Affidavit is not sufficiently communica tive as to who this police officer was.
The Counsel for the petitioner tried to impress upon us the fact that this statement cannot be true because 5 10 1986 happens to be a Sunday and that no police officer would try to contact an Advocate in Court on Sunday.
This police officer is said to have returned to New Delhi on 6 10 1986.
The Counter Affida vit is eloquently silent about what happened after 6 10 1986.
The Counter Affidavit thereafter discloses the fact that Shri K.P. Subba, the police officer, waited till 6th October, 1986 in Bombay and returned to Gangtok since he was not able to contact the petitioner.
The complaint of the officer is that the petitioner made it impossible for him to serve the grounds of detention.
Every attempt on the part of the officer to serve the petitioner with grounds of deten tion were rendered futile by taking advantage of the orders of the High Court and the Supreme Court.
It is further stated in the Counter Affidavit that the grounds of deten tion could not be served since the petitioner was released on bail and was not under detention from 2nd October, 1986 onwards.
We have considered the averments in the Counter Affida vit carefully.
We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of Section 8 in this case.
It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers.
In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law.
Expeditious action is insisted upon as a safeguard against the manipulation.
In this case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 6 10 1986.
This inaction after 6 10 1986 till 14 10 1986, by itself is sufficient for us to hold that Section 8(1) has been violated by the officer concerned and on that ground alone the order of detention has to be quashed.
An attempt was made by the counsel for the respondents to contend that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the Section relaxed since the detenu had been released on 2 10 1986, and hence 86 not in detention.
This according to us is a specious plea which cannot stand legal scrutiny.
If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the ground of detention indefinitely, whenever a detenu secures from a Court of law either bail or parole.
To accept this contention would be to destroy the effect of the mandate of the Section.
As indicated earlier, the mandate enacted in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention.
The Section has to be interpreted literally.
No relaxation is permissible.
If the original time of 5 days has to be extended, such extension must 'be supported by an order recording reasons.
If reasons are not so corded the order of detention will automatically fail.
Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny.
If the reasons are unsatisfactory, Courts would still quash the order of detention.
On a consideration of the materials placed before us we hold that the order of detention is bad and we quash the same.
Since the petitioner is not in detention there is no need to pass any order to direct his release.
A.P.J. Petition allowed.

summary/full:
The Order of detention of the petitioner under s.3 of the was made on 25.9.
1986 and the grounds of detention were prepared on the same date.
The petitioner was detained and served with the detention order on 29.9.1986 at 10.15 P.M.
In a habeas corpus petition filed on behalf of the petitioner on 30.9.
1986 the High Court passed an order at 7.30 P.M. staying the detention order.
However, the stay order could not be served on the detaining officer as the plane carrying the petitioner left Bombay for Delhi at 8.30 P.M.
The detaining officers were informed of the order of the High Court on 1. 10.1986 at 5 P.M.
On the same day a petition was filed in this Court and at 3.30 P.M. this Court passed an order directing that the petitioner shall not be taken out of Delhi.
On 2.10.
1986 the petition er was released on bail by the Chief Metropolitan Magis trate, Delhi.
On 14.10.
1986 the petitioner was served with grounds of detention.
On behalf of the petitioner it was contended that the delay caused in serving the grounds of detention from 2.10. 196 to 14.10.
1986 clearly violates the mandatory require ments, contained in s.8(1) of the Act and, therefore, the order of detention was liable to be quashed.
On behalf of the respondents it was contended: (1) that the petitioner made all efforts of the police officer to serve the grounds of detention futile by taking advantage of the orders of the High Court and this Court, and (2) that the delay in communicating the grounds of detention caused in this case should be condoned and rigour of the section relaxed since the detenu had been released on 2.10.1986, and hence not in detention.
Allowing the petition, 78 79 HELD: (1) Section 8(1) of the Act shows that it is obligatory on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made.
This has to be done as soon as possible and ordinarily not later than 5 days.
The limitation of 5 days can be exceeded in exceptional circumstances.
The grounds of deten tion under exceptional circumstances can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days.
(2) The mandate enacted in the section is a safety valve for a citizen who is robbed of his liberty from manipulating the grounds of detention.
The section has to be interpreted literally.
No relaxation is permissible.
If the original time of 5 days is to be extended, such extension must be supported by an order recording reasons.
If reasons are not so recorded the order of detention will automatically fail.
Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny.
If the reasons are unsatisfactory, Courts will still quash the order of detention.
(3) In the instant case, the grounds of detention were communicated to the petitioner long after 10 days.
There is to record evidencing any reason for this long delay.
The contention that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the section relaxed since the detenu had been released on 2.10.
1986, and hence not in detention, is a specious plea which cannot stand legal scrutiny.
If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely, whenever a detenu secures from a Court of law either ball or parole.
To accept this contention would be to destroy the effect of the mandate of the section.
(4) In the case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 6.10. 1986.
This inaction after 6.10.1986 till 14.10.
1986, by itself is sufficient to hold that s.8(1) has been violat ed by the officer concerned.
The order of detention is bad and, therefore, quashed.
(5) It is not necessary in all cases to call upon per sons placed in high positions to controvert allegations made against them by filing 80 affidavits unless the allegations are specific, pointed and necessary to be controverted.


judgement:
ivil 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 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 section 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 article 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 section 11 of the .
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 section 11 of the 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, section 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 vs Jyoti Chit Fund & Finance & Ors.
, ; We may briefly touch upon the earlier decisions on the question.
In an English case, in Crowe vs Price, 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 vs B. Gururaja Rao, ILR 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 vs 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 section 11 of the .
Pandurang Row, J. interpreting section 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 section 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 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, , is applicable to 'the commuted portion as well as to the uncommuted portion of the pension and the language of section 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 vs 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 section 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 .
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 section 11 of the 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 section 11 of the .
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 section 14 of the 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.

summary/full:
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 .
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 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 vs Jyoti Chit Fund & Finance & Ors., ; , followed.
Crowe vs Price, 15; Municipal Council, Salem vs
B. Gururaja Rao, ILR ; C. Gopala chariar vs Deep Chand Sowcar, AIR 1941 Mad.
207; and Hasso mal Sangumal vs 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