TUKARAM BALAJI KADAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal filed by the original accused against the order of conviction and sentence passed by the learned Additional Special Judge, Bombay, convicting the appellant of the offence under section 409, Indian Penal Code but sentencing him only to pay fine of Rs. 1500/- or in default to suffer R.I. for 4 months.

(2.) When the appeal reached hearing before me and when the prosecution case was stated by the learned Counsel for the appellant, I was prima faice of the view that a somewhat positive and refreshing approach was taken by the officers concerned who had conceived of this prosecution and after going through the judgment of the lower Court with the help of the learned Counsel for the defendant, I was further satisfied at least prima faice that there was a bold and refreshing approach to the question shown even by the learned Judge in dealing with a case which is almost archetypical of the social evils which threatens to be entrenched deeper and deeper into our mode of living and thinking. I expressed this mere prima facie view to the learned Counsel and he confidently started his argument with the assurance to this Court that he would dispel this Courts view after he had narrated all the relevant facts of the case and the position; of law that had a bearing on the same. In fact not only lengthy but even repeated arguments were advanced by the learned Counsel in this behalf and in order to enable him to present all the aspects of the question before this Court in defence of his client, extensive accommodation was given to him by adjourning the hearing of the appeal from time to time. Nothing that has been said or pointed by him, however, has had any effect other than the one of firmly confirming the earlier view occurring to this Court prima faice. As mentioned above, the question involves a widespread social evil. I will presently expound the nature of the said evil.

(3.) The facts which led to the prosecution are as follows :--- The appellant, who will be referred to hereafter as the "accused", had been serving as a Machine Mukadam in the Government Central Press, Bombay from the year 1969. The prosecution case is that as such he is a public servant Whether he is a public servant or not is a question not very much relevant in this appeal. Fact, however, remains that he was a government servant from the year 1969. As is well-known one of the perquisite of the Government service is that residential accommodation is being made available to some of the Government employees. However, getting such accommodation is almost akin to getting a windfall because the number of the needy Government employees vastly exceeds the number of residential units available with the Government for being made available for the residence of such employees. From the very nature of things, no particular evidence is necessary for stating, and no controversy on this point whatsoever was raised by the learned Counsel for the defence, that there is a long waiting list of the Government employees who are hankering after some kind of accommodation or the other which would give them some shelter in this metropolis groaning under the burden of its ever-expanding populace. Hundreds of them keep waiting for months and years together for their turn to arrive. After a period of nearly 6 years, the turn of the accused arrived. On 6th March, 1975, an order was passed by the Department of General Administration, Government of Maharashtra, ordering for him an allotment of a government block, namely Block No. IV in Building B-238 situate in the Government employees colony, Bandra (E), Bombay. The order itself states that these various apartments are being allotted to the various employees in the process of their distribution amongst the Class III employees of the Government. It is mentioned that if the allottee is not employed as a Class III employee of the Government of Maharashtra, the allotment was to be deemed as rescinded ipso facto. The order further mentions that the possession of the apartment had to be taken by the allottee within one week from the date of allotment. What is further important is that there is a specific warning contained in the order that if such possession was not taken by the allottee within one week from the date of the order for any reasons whatsoever, he will not be entitled to the allotment at any time. The significance of this stringent condition will be mentioned presently. It is further mentioned in the order that the allotted residential accommodation could be used by the Government employee only for his own residence and for the residence of the members of his family. What is meant by members of the family is also clarified, reference in that behalf is made to the B.C.S. Rule 9(18). It is further mentioned that if the employee is desirous of allowing any person other than such members of his family to stay in the premises with him and his family, a prior permission in writing in that behalf had to be taken by the allottee from the Government to allow such person to reside with him. No room is left for any doubt in the order that each of the conditions imposed in the said order upon the employee concerned is meant to be obeyed. There is nothing directory about it; everything is mandatory and for the very good reasons. I will mention those reasons while discussing the nature of the social evil.