Judgment

SEN, JJ.

( 1 ) THIS appeal by special leave directed against the judgment and order of the Delhi High Court dated 11/09/1985 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 occupation under SR 317-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.

( 2 ) 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 Headquaqers, Western Command, Palam, Cantonment, Delhi, applied on 9/05/1968 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 27/06/1968 allotted Flat No. 806-B to the respondent in the Curzon Road Hostel on a rent of Rs. 161. 00 per month, exclusive of electricity and water charges. The respondent was transferred from Delhi to Chandigarh on 11/06/1970 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. 11/08/1970. 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 28/02/1975 the Estate Officer having come to know about the transfer of the respondent from Delhi, the Directorate addressed a letter dated 18/03/1975 cancelling the allotment w. e. f. 11/08/1970 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 25/03/1975 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 the said contract he was not liable to pay any damages.

( 3 ) 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 thereof, proceedings were initiated by the Estate Officer under S. 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to recover Rs. 38,811. 17p. as damages. The Estate Officer duly served notices on the respondent under S. 7 (3) of the Act from time to time and the respondent appeared in the proceedings and contested the claim. Apparently, the respondent in the meanwhile made a representation to the Central Government. On such representation being made, the Government on compassionate grounds reduced the amount to Rs. 20,482. 78p. and deducted the same on 30/10/1976 from out of the commuted pension payable to the respondent. On 25/11/1976 the respondent appeared and protested against the recovery of the amount of Rs. 20,482. 78p. from the commuted pension payable to him which, according to him, was contrary to S. 11 of the Pensions Act, 1871, by process of seizure and sequestration. The respondent complaints that despite his repeated requests, he was not given opportunity of a hearing and was informed that the matter was