VINOD KRISHNA KAUL, INDIAN POLICE SERVICE (RETIRED) v.

UNION OF INDIA AND ORS.

NOVEMBER 23, 1995

[J.S. VERMA AND K. VENKATASWAMI, JJ.]

Allotment of Government Residence (General Pool) (New Delhi) Rules, 1963 (As amended on 1.1.1976) : Clauses (3) and (4).

C Government Employee-Allotment of Government quarter-Employee also owning his house-Amended Rule requiring that officer owning house shall surrender Govemment accommodation-Employee letting out his own house long before amendment of Rules-As a result neither he had possession of his own house nor had right to its immediate possession-In the circumstances non vacation of govemment accommodation-Levy of excess D licence fee fo!'-Held not justified.

Maxim 'lex non cogit ad impossibilia'-Applicability of

The appellant, a retired IPS Officer was alloted a Government quarter while in service. With effect from 1.1.1976 Amendments were introduced to the allotment of Government Residence (General Pool), New Delhi Rules, 1963. Clause 3 of the Amended Rule required that a government servant owning a house himself or in the name of any other 'members of his family' shall surrender the government residence in his occupation.

Clause ( 4) empowered the competent authority to levy damages equivalent to the market licence fee in case of contravention of clause (3). The appellant alongwith his brother became a joint owner of a house at Delhi on 1.4.1974. However, long before the rules were amended i.e. on 1.1.1976, the appellant let out his house for three years under section 21 of the Delhi Rent Control Act, 1958 after getting orders from the Additional Rent Controller. The result was that though he owned a house yet he had neither the occupation of the house nor had immediate right to possession. However, the respondents took note of the fact that the appellant owns a house / at Delhi and consequently called upon him to vacate the government residence. The respondents rejected the stand taken by the appellimt that he was unable to surrender the Government accommodation as he was only H a joint owner of the house which was rented out long ago and levied excess 602

V.K. KAUL v. U.0.1 . 603 • licence fee of Rs. 8696.10 at market rates for government residence for the A period from January 1976 to May 1977. The validity of the amended rules as well as the levy of excess licence fee was upheld by the Central Administrative Tribunal. Against the decision of the Tribunal an appeal was preferred before this Court.

Allowing the appeal, this Court

HELD : 1. The levy and collection of 'excess licence fee' at the market rates amounting to Rs. 8696.10 is not sustainable and the appellant is entitled to get refund of the same. [606-D]

2. Clause (3) of the Allotment of Government Residence (General Pool) (New Delhi) Rules, 1963 can apply only to a Government servant who not only owns the house but also has possession or right to immediate possession of that house to enable him to shift from Government residence

to that house. The rule cannot apply to a Government Officer who merely owns a house but does not have its possession or the right to its immediate D possession because of its occupation by another person under a legal right which the Government servant as an owner cannot override.

[605-G-H; 606-A]

3. The legal maxim 'lex non cogil ad impossibilia' has to be borne in mind, i.e. the law does not compel a person to do the impossible. In this case long before the amendment was introduced on 1.1.1976, the appellant let out his house for a limited period of three years from 1.4.1974. Thus on 1.1.1976 he was not in a position to move to his own house. That means he could not surrender government house and move to his house. Therefore, the provisions in clauses (3) and (4) could not be applied to him.

Consequently recovery of the higher rent/damages from the appellant in accordance with clauses (3) and (4) was not justified. [606-B-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10500 of 1995.

From the Judgment and Order dated 2.3.94/16.3.94 of the Central Administrative Tribunal, New Delhi in T.A. No. 1 of 1993.

In-person for •he Appellant.

A.K. Sharma and Ms. Sushma Suri for the Respondents.

SUPREME COURTREPORTS [1995] SUPP. 5 S.C.R .

• A The Judgment of the Court was delivered by

K. VENKATASWAMI, J. The appellant is aggrieved by the levy and collection of Rs. 8696.10 towards 'excess licence fee' at market rates for government residence for the period January 1976 to May, 1977 by deducting from the pay bill of the appellant. The appellant is now a retired IPS Officer. While he was in service, he was given Government residence as per Government rules. By notification dated l.l.i976 issued by the Ministry of Works and Housing New Delhi, certain amendments were introduced to the Allotment of Government Residence (General Pool), New Delhi Rules, 1963 (hereinafter referred to as the 'Rules. Clauses 3 and 4 are C relevant which read as follows :

"(3) If on the 1st day of January , 1976, an Officer in occupation of Government residence owns a house or any other member of his family owns a house, he shall surrender the Government residence in his occupation.

(4) Where an officer to whom sub rule (3) is applicable does not surrender the Government residence as required under that subrule, he shall be liable to pay damages for use and occupation of the residence, services, furniture and garden charges, equal to the market licence fee as may be determined by Government from time to time."

It is common ground that the appellant alongwith his brother became • a joint owner of a house at Delhi onl.4.1974. However, this newly constructed house of the appellant and his brother was let out to Dr. S.C. Basu, F and his wife Dr. (Mrs.) Ira Basu from 1.4.1974 under section 21 of the Delhi Rent Act, 1958 for three years after getting the orders of the Additional Rent Controller, Delhi on a monthly rent of Rs., 2,000 to be shared equally between the two owners. The respondents taking note of the fact that the appellant owns a house at Delhi called upon him to vacate the Government residence as per Clause (3) of the Rules mentioned above.

G The appellant repeatedly pointed out his inability to surrender the Government accommodation as he is only a joint owner and that house also was rented out long ago. But that was not accepted by the respondents and consequently the appellant was asked to pay damages for use and occupation as per clause (4) of the Rules. That is how the amount in dispute was H deducted from the salary of the appellant for the period mentioned above.

V.K KAUL v. U.0.1. [K. VENKATASWAMI, J.] 605

Aggrieved by the deductions, initially the appellant moved this Court A by filing a writ petition under Article 32 of the Constitution challenging the validity of the amendments introduced by Notification dated 1.1.1976.

Subsequently, he withdrew that writ petition with liberty to file similar writ petition in the Delhi High Court. He thereafter moved the Delhi High Court challenging the amendment issued in the Notification dated 1.1.1976 B and the same was later on transferred to the Central Administrative Tribunal, New Delhi, which by the impugned order upheld the validity of the amendment and declined to interfere with the impugned collection towards damages for use and occupation for the said period. Hence this appeal by way of special leave.

From the paper book, we find that except for 2 paragraphs out of 29 pages, the Tribunal has dealt with the contentions raised by the appellant regarding the constitutional validity of the amendment introduced in the Rules on 1.1.1976 in rest of the paragraphs. In this process, both the

Tribunal as well as the appellant missed the main point.

We have noticed above that long before the amendment was introduced on 1.1.1976, the appellant alongwith his brother had sought and got the permission from the Additional Rent Controller, Delhi to let out the house for a limited period of 3 years from 1.4.1974. The order also shows that on the expiry of three years if the tenants did not vacate the premises, E the landlords can file application for eviction within 6 months of the expiry of three years' period. This order of the Rent Controller is placed at page 72 of the paper book.

From the above material, it will be clear that on 1.1.1976, the appel- F lant was not in a position to move to his own house even assuming that he had sufficient accommodation and he can move as a joint owner into that house. That means he could not surrender government house and move to his house. Clause (3) of the Rules requires a Government servant owning a house himself or in the name of any other 'members of his family' as defined in the Rules to surrender the Government residence in his occupa- G tion on coming into force of that rule on 1.1.1976. Obviously, the rule can apply only to a Government servant who not only owns the house but also has possessim. or right to immediate possession of that house to enable him to shift from Government residence to that house. The rule cannot apply to a Government Officer who merely owns a house but does not have H

SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A its possession or the right to its immediate possession because of its occupation by another person under a legal right which the Government servant as an owner cannot override. Clause (3) was, therefore, not intended to apply to a Government servant who neither had the occupation of a house owned by him nor the right to its immediate possession. The

legal maxim 'lex non cogit ad impossibilia' has to be borne in mind, i.e. the law does not compel a person to do the impossible. In the present case, in view of the subsisting lease in favour of the tenant, the commencement of the lease being prior to 1.1.1976 and the entire period in question being covered by the period of that lease, the provisions in clauses (3) and ( 4) could not be applied to the appellant, even if the he is assumed to be the owner of the house for this purpose. Recovery of the higher rent/damages from the appellant in accordance with clauses (3) and ( 4), as aforesaid, is therefore, not justified.

In the circumstances, we hold that the levy and collection of 'excess licence fee' at the market rates amounting to Rs. 8696.10 is not sustainable D and the appellant is entitled to get refund of the same. In the result, the appeal is allowed with costs.

T.N.A.

Appeal allowed.