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R.N. Vasudeva Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 254D of 1966
Judge
Reported in12(1976)DLT109; ILR1976Delhi624; 1976RLR142
AppellantR.N. Vasudeva
RespondentUnion of India and anr.
Advocates: R.L. Tandon and; R.K. Mehra, Advs
Cases ReferredG.J. Fernadez v. State of Mysore
Excerpt:
(i) government servant--in occupation of government accommodation--allotment of government residence (general pool in delhi) amendment rules (1964), clause 4(b) of the revised s. r. 317-b-3--applicability of--petitioner living with his wife and children in a government residence, alleging to form an undivided hindu family with him as karta--whether entitled to retain government accommodation after constructing his house--petitioner's liability to pay standard rent under 45(b) or pooled standard rent under f. r. 45-a.; the petitioner who was a member of the indian administrative service built a house while living with his wife and children in a government residence. in his income-tax return he showed the house as belonging to an undivided hindu family, of which he was the karta and his..........children. the other is the reasonable meaning which would be in accordance with the object of the rule. the government servant can be expected to shift to his own only if it belongs to him. a house which belongs to him, his wife and minor children must be taken to belong to him and his family who live with him. but a house which belongs to him and others who are not living with him as one family unit cannot be considered to be his house. for, more than one family units would own it. the government servant cannot be expected to shift to such house unless it is capable of being divided and the portion falling to the government servant's share is fit for his independent residence. when literal construction leads to absurdity, the reasonable construction should be preferred.(6) this becomes.....
Judgment:

V.S. Deshpande, J.

(1) The petitioner who was a member of the Indian Administrative Service was occupying Government residence in 3, Purana Kila Road, New Delhi, at the material time. The payment of rent by him, inter alia, was governed by clause (4) (b) of the Allotment of Government Residences (General Pool in Delhi) Amendment Rules, 1964 which amended the parent rules of 1963 being Annexure P-1 to the writ petition. The relevant part of the rule is as follows : - 'S. R. 317-B-3. (4) Notwithstanding anything contained in sub-rule (2) or (3), Government accommodation may be allotted to any officer, or, if he is in occupation of such accommodation, it may be allowed to be retained by him, under the provisions of F. R. 45-A, in the event of his becoming the owner of a house either in his own name or in the name of any other person or of a member of his family becoming the owner of a house, in the following cases, namely- (b) where the house belongs to the officer, as a member of a Hindu Undivided family and the Director of Estates is satisfied that partition of the house by metes and bounds is not feasible to make it fit for an independent residence.'

(2) THE. petitioner constructed a house in defense Colony and in the income-tax return showed it as a house belonging to a Hindi Undivided family of which he was a Kartha and his wife and three minor children were the members. Knowing that he would not be entitled to occupy the Government residence after the construction of this house, he wrote to the Government on 14th August 1964 that the house constructed by him is the property of the Hindu Undivided family of which he was the Karta and he should be allowed to retain his official residence under the provisions of sub-rule (4) (b) reproduced above. By the letter of 5th September 1964, the Directorate of Estates requested him to furnish further particulars in view of his request regarding the retention of Government residence under subrule (4) (b) of the revised S.R. 317-B-3. In furnishing the particulars on 13th November 1964, the petitioner stated that the entire house constituted one unit and was not amenable to division into portions which could be inhabited by more than one family unit. He also stated that a single family was in occupation of the said house at the relevant time. He further stated that on a partition of the house the share allottable to him as his share would not be fit for an independent residence for himself. He filed a copy of the income-tax assessment order for the year 1963-64 in which the house was accepted by the IncomeTax Officer to be a property of the Hindu Undivided family on the statement made by the petitioner to that effect. The impugned letter of 14th October 1965 informed him that the petitioner's case has been considered carefully in the light of the provisions of the existing S.R. 317-B-3 and it was regretted that it was not covered by any of the recognised exemptions especially those given in clause (4) (b) and (c). It was decided, thereforee, that under the second proviso to clause (3) of S.R. 317-B-3, the petitioner had to pay with effect from 20th July 1964 standard rent under F.R. 45-B or pooled standard rent under F.R. 45-A whichever is higher. The present writ petition is filed for the quashing of this order.

(3) The writ petition was resisted by the Government denying that the house was the property of a Hindu Undivided family or that the question of its partition at all arose.

(4) While various grounds were stated in the writ petition in support of the petition, the learned counsel for the petitioner rightly concen- trated on the construction of the language of the relevant rule reproduced above which would govern the decision of this case. He made the following submissions as to the construction of the said rule:

(1)The rule had two parts, namely, (a) the house had to be the property of a Hindu undivided family; and (2)The Director of Estates had to be satisfied that partition of the house by metes and bounds was not feasible to make it fit for an independent residence. AFTERconsidering these main submissions of the counsel we shall refer to the subsidiary matters which were also referred to by him in the oral argument.

(5) We shall assume for the sake of argument that the house was the property of a Hindu Undivided family consisting of the petitioner, his wife and three minor children. This does not, however, mean that the first part of the rule in question was satisfied by the facts of this case. What is the meaning of the first part of the rule Two meanings are possible. One is the literal meaning This will apply it to any kind of Hindu undivided family including the Hindu undivided family consisting of the Government servant, his wife and minor children. The other is the reasonable meaning which would be in accordance with the object of the rule. The Government servant can be expected to shift to his own only if it belongs to him. A house which belongs to him, his wife and minor children must be taken to belong to him and his family who live with him. But a house which belongs to him and others who are not living with him as one family unit cannot be considered to be his house. For, more than one family units would own it. The Government servant cannot be expected to shift to such house unless it is capable of being divided and the portion falling to the Government servant's share is fit for his independent residence. When literal construction leads to absurdity, the reasonable construction should be preferred.

(6) This becomes clear when we consider the crucial question whether the second part of the rule was also satisfied. The material for the determination of the second question exists Oh this very recordin the letter of 13th November 1964 the petitioner himself says that the house was not amenable to division into portion which could be inhabited by more than one 'family unit'. He also emphasised that it was actually occupied by a single family. He then stated that if the said house were to be partitioned, the portion which would fall to the share of the petitioner as a single individual would not be fit for an independent residence of the petitioner as a single individual.

(7) The construction which the learned counsel puts on the second part of the rule is that the house should be capable of such partition by metes and bounds that the portion which would fall to the share of the individual petitioner should be fit for an independent residence for himself as an individual. The learned counsel could not deny that according to the petitioner's own admission the house is fit for the occupation of a single family unit. The question which we have to consider, thereforee, is whether the house which is fit for the occupation of the petitioner and his family is nevertheless not capable of being occupied by the petitioner as an independent residence because the house cannot be so partitioned and that the share falling to the petitioner would not by itself be fit for an independent residence of the petitioner himself apart from his wife and minor children.

(8) We are afraid the construction suggested above does not take Into account either the object of the rule or the reasonable meaning which flows out of it. The object of the rule is that a Government servant who has a house of his own which is fit for his residence should not be allowed to continue to occupy the Government residence. The exemption in clause (4) (b) was apparently needed because the house in question may not be the exclusive property of the Government servant concerned but might be the property of a Hindu Undivided family in which persons other than the single family unit of the petitioner may be entitled to live. This is why the second requirement of clause (4) (b) is that partition by metes and bounds should make the house fit for an independent residence. It could never be the object of the rule that a house belonging to a Hindu Undivided family should have to be partitioned into separate shares of the husband or his wife or his each minor children so that the husband can alone live in isolation from his wife and his minor children and he should have an independent residence for himself as an individual. In our view, the expression 'fit for an independent residence' refers to an independent residence of the petitioner in the same manner in which the petitioner is living in the Government residence. Can it be imagined that a Government residence would be allotted to a Government servant as an individual and the rule would contemplate that his wife . and minor children are not entitled to occupy it Since such a thing cannot be contemplated, the construction to be placed on the expression ' an independent residence' must mean the kind of independent residence which the Government servant has in the Government residence. For, the Government has to ensure that by shifting to his own house, the Government servant can live in the same way in which he was living in the Government residence. It could not be the intention of clause (4) (b) to apply different standards, namely, (1) for the occupation of a Government residence by a Government servant, and (2) for the occupation of his own residence by a Government sen ant. The petitioner having already admitted that his house was fit for occupation of a single family unit, on that admission we have to hold that it was fit for occupation as an .independent residence by the petitioner and his family. It is no body's case that either the occupation of the Government residence or the Government servant's own residence is to be considered as being fit for independent residence only of the Government servant as an individual. Such a construction would be contrary to established habits and ways of thinking and no reasonable person could have intended to give such a meaning to clause (4) (b) of the rule. We arc unable, thereforee, to agree with the construction suggested by the learned counsel. In our view, the meaning of the rule is that the house of the Government servant should be such as lo be fit for an independent residence. It is only if the house is inhabited by more than one family unit, then by partition the share falling to the Government servant concerned should be such as to be fit for independent residence of himself and his family.

(9) The learned counsel next contended that the instructions issued by the Government on 9th September 1964 required that the Government servant who is already in occupation of a Government residence should be served with a notice for vacating the accommodation within a reasonable period. If he failed to do so he should be charged rent under F.R. 45-B from the date of expiry of the notice served on him in this behalf. He contends that no such notice was served on the petitioner. In our view, the purpose of the notice is to make the petitioner aware of his liability to vacate the Government residence. As the petitioner was already aware of this liability he wrote the letter of 14th August 1964 requesting for an exemption from the said liability under clause (4) (b) of the relevant rule. The further correspondence between the petitioner and the Government fully clarify all the issues arising in the case. We are not persuaded, thereforee, to hold that the alleged non-issue of notice vitiated the demand of the Government for the rent under the rule. The question of notice did not arise because the petitioner himself moved the Government for getting the benefit of exemption by his letters of 14th August 1964 and 13th November 1964. Further, the rule under which the petitioner had to vacate the Government residence and to pay the standard rent is a statutory rule. while the memorandum dated 9th September 1964 was only an administrative instruction laying down the guidelines as to how the Government servants in occupation of Government residence having a house of their own should be dealt with. Any disobedience of such a guideline does not give a cause of action to the petitioner though it. may entail departmental action against the official concerend [G.J. Fernadez v. State of Mysore, : [1967]3SCR636 ] (1).

(10) Shri Tandon. then contended that the impugned order is not a speaking order. In our view, the said order has to be examined in. the context in which it was made. It does not stand by itself. On the other hand, the official reply coming after the correspondence between the petitioner and the Government resting with the petitioner's letter of 7th April 1965. It is, thereforee, a reply to all the letters which the petitioner had written to the Government in this respect. When the impugned letter says that after considering the petitioner's case very carefully in the light of the provisions of the existing S.R. 317-B-3, the Government regretted that it was not covered by any of the recognised exemptions especially those given in clause (4) (b) and (c), the reasons for the rejection of the petitioner's request by the Government became clear. The attention was focussed on clause (4) (b) and (c) because these were the provisions which became relevant in deciding the representation made by the petitioner. A mere reading of these provisions was sufficient to show that clause (4) (c) did, not apply at all and the learned counsel has not, thereforee, thought it fit to argue that it could have any application. The more obvious is the matter the less elaborate by the need for the reasons. The reading of clause ( 4) (b) also shows to the administrative officer taking a common sense view of the matter that the question of partitioning of the house of the petitioner did not arise at all because the house was not the property of a Hindu Undivided family in the sense in which this expression was used in the rule. We have already stated that the intention of clause (4) (b) was that the house should be fit for an independent residence of the Government servant and his family. This was the view which the Government took. in the written statement filed by the Government it was denied that the house was a Hindu Undivided family property in the sence that it needed to be partitioned so as to make the portion falling to the share of the petitioner into an independent residence fit for the petitioner. In our view, the administrative authorities are entitled to take a common sense view of the matter and the reasons given by them arc not to be scrutinised in a spirit of legalism which would distort the law and lead to injustice. No reasonable person on the fact? of the present case could have any doubt that the petitioner was not entitled to the exemption under clause (4) (b). The view taken by the Director of Estates can be judicially reviewed by us only if it is a view which no reasonable person could take. It is well settled that even if two interpretations of a rule are possible and the administrative authority has taken a view which is reasonable, then that order cannot be reviewed by the Court merely because it thinks the other view to he a better one. Further, it is the Director and not the Court which is required to be satisfied as to whether the portion allottable to the petitioner on partition can be fit for an independent residence. If the satisfaction of the Director is based on material then the sufficiency of the matterial cannot be gone into by the Court. In the present case there was material for the Director to take the view that the Hindu Undivided family contemplated by clause (4) (b) was not the one formed by the petitioner, his wife and minor children which constitute a single unit but a Hindu Undivided family which comprised within itself more than one family units. When literal interpretation of the rule would lead to absurdity and unworkability, a reasonable interpretation has to be placed on it with a view to make sense and carry out its object. This is what the Director has done.

(11) Lastly Shri Tandon contends that the higher rent should have been demanded from the petitioner from the date of the impugned order, namely, 14th October 1965. In our view, the liability to pay the higher rent arises under the statutory rule as soon as the Government servant constructs a house of his own or acquires a house of his own in respect of which an exemption under clause (4) (b) was not available. This being the statutory liability, it is not in any one's power to modify the said liability by holding that the liability should not arise until the representation of the petitioner is decided. The petitioner makes a representation at his own risk knowing that it may not succeed. Merely because the representation is made, the liability cannot be postponed.

(12) No other contention was urged.

(13) For the above reasons, the writ petition is dismissed. In the circumstances, there will be no order as to costs.


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