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Raghumal Budhumal Vs. P.H. Jagtiani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1865 of 1963
Judge
Reported in(1965)67BOMLR470
ActsDisplaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rules 25 to 34 and 39; Constitution of India, Article 226
AppellantRaghumal Budhumal
RespondentP.H. Jagtiani and ors.
Appellant AdvocateB.J. Mulcandani and ;B.B. Ddhanvani, Advs.
Respondent AdvocateS.A. Desai and ;K.C. Mandvikar, Advs. for ;G.N. Vaidya and ;R.W. Adik, Advs.
Excerpt:
displaced persons (compensation and rehabilitation) rules, 1955. rule 39 - whether word 'may' in rule 39 mean 'shall'--claimant whether can claim open plot as matter of right.;under rule 39 of the displaced persons (compensation and rehabilitation) rules, 1955, there is no obligation to sell an open plot by public auction it is open to the appropriate authority to allot it if he so deems proper. but a claimant cannot claim as a matter of right that an open plot must be allotted to him. the authority has a discretion in the matter and he may pay compensation by the allotment of a government plot, but he is not bound to do so. - .....follows that the even though there is no specific rule providing for the allotment of government plot the rule contemplate the transfer or allotment of the government plot,. for otherwise it would not have been necessary to apply the provision of rr. 25 to 24 to the transfer to a government plot. we therefore accept mr. mulchandani argument that the word 'may' in r. 39 does not mean 'shall'. the position therefore is that there is no obligation to sell an open plot by public auction. this is not the only mode in which such property can be disposed of and it is open to the appropriate authority to dispose of it some other manner. he may allot it, if he so deems proper and if he decides to do so the provisions of rr. 25 to 34 will become applicable. but a claimant cannot claim as matter.....
Judgment:

Chainani, C.J.

(1) The facts in this application are briefly these: There was an open Government land in Ulhasanager Township. In 1949-50 portions of this land were given for temporary use to several displaced persons in odor to enable them to carry on business on 23-1-1950 the Administrator and Managing officer, Ulhasanager Township authorized the petitioner to use a plot of land for the construction of a temporary structure, subject to certain condition two of the which were that the grant was temporary and that the grantee was temperate strict was subject to a short removal notice was when required subject to a short removal notice when required by the Government at owners cost. The petitioner, therefore put up a structure on the plot which he was authorized to occupy. We are informed that the is using this structure for charcoal shop. In 1954-55 the area was demarcated into servile plots and the plots occupied by the petitioner now forms part of plot No. 266. After the plot were demarcated the plots including plot No. 266 have been reserved for residential purposes. According to the Regional settlement commissioners, these plots cold not be allotted to the person who were occupying them as they were neither evacuee property nor government built property. Under Rule 39 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, these plot were to be sold by public auction. In 1960 tenders were therefore invited as sale of plot No. 266. The petitioner than made an application that the plot should be allotted to him. On 24-9-1962 the Managing Officer informed the petitioner that his quest had been rejected. The petitioner appealed to the Regional settlement commissioner but his appeal was dismissed. He applied in revision to the chief settlement commissioners but his revision application was rejected. Thereafter the petitioner applied to the Government of India under S. 33 of the Displaced Persons (Compensation and Rehabilitation) Act, but his application was rejected. After respondents No.1 had rejected the petitioners application for allotment of the plot to him tenders were invited for the sale of this plot. The petitioner did not submit any tender. The highest tender submitted was that the respondents No.5 His tender was accepted of 15-12-1962 the deal of conveyance was issued on 20-12-1962. Thereafter the petitioner filed the present special civil Application under Article 226 of the constitution.

(2) Mr. Mulchandani the learned, Advocate of the petitioner has first contended that the authorities were wrong in rejecting the petitioners application, for the allotment of the plot to him Chapter v. Of the Displaced persons (Compensation and Rehabilitation) Rules provides for allotment of acquired evacuee properties, while Chapter VI Contains rules which provide for allotment of govt built properties. Rule 36 specifies the classes of Government built properties which may be allotted. The plot, which the petitioners is occupying is neither evanesce property nor is I Government built property. No other rule has been pointed out to us which provides for the payment compensation by the allotment of an open of plot belonging to government. Rule 39 state that a Government plot forming part of the compensation pool may sold by public auction. There has been some arguments before us as to whether the word 'may' in this rule means 'shall' Mr. Mulchandani has pointed out that the while the word 'may' has-been used in this rule and some rules such as Rules 25 and 42 the word 'shall' has been used in some other rules. For instance the relevant words in R. 41 (1) are 'shall be paid compensation by transfer'. In Rr. 22 and 36 the material words therefore been urged by him that whenever it was intended not give a discretion to the authority concerned, the word 'shall' has been used. Mr. Mulchandani has also referred to R. 43, which stated that the provisions of Rr. 25 to 34 shall apply to the transfer of any Government built property or Government plot under this chapter. Rule 25 to 34 lay down the mode in which the properties can be transferred. As these the also apply to transfer of Government of plot under Chapter VI, which contains R. 39, it necessarily follows that the even though there is no specific rule providing for the allotment of government plot the rule contemplate the transfer or allotment of the government plot,. For otherwise it would not have been necessary to apply the provision of Rr. 25 to 24 to the transfer to a Government plot. We therefore accept Mr. Mulchandani argument that the word 'may' in R. 39 does not mean 'shall'. The position therefore is that there is no obligation to sell an open plot by public auction. This is not the only mode in which such property can be disposed of and it is open to the appropriate authority to dispose of it some other manner. He may allot it, if he so deems proper and if he decides to do so the provisions of Rr. 25 to 34 will become applicable. But a claimant cannot claim as matter of right that an open plot must be allotted to him. The authority has a dissertation I the matter and by may pay compensation by the allotment of the Government plot, but his not bound to do so consequently we are unable to accept Mr. Mulchandani's contention that there was an obligation on the Regional settlement commissioner to allot to the petitioners the plot in his occupation.

(3) Mr. Mulchandani has further contended that the case sale of the plot of respondent No. 5 by inviting tenders was illegal as under R. 39 the plot could only be sold by the public auction. This point was not taken by the petitioner either in this appeal to respondents No. 2 or in his revision application to respondents No. 3. In the present application the petitioner has no doubt stated in paragraph 7 that the open plot could not be sold by tender. But this main challenged to the order has been on the ground that he was entitled to the allotment of the plot and that is has wrongly not been allotted to him. There is also no prayer in the application that the sale of the plot to respondents No. 5 should be set aside, because it was effected by inviting public tenders. We have therefore not allowed Mr. Mulchandani to take up this point for the first time before us.

(4) In the order dismissing by the Dy. Chief settlement commissioner in the order made by him rejecting the revision application filed by the petitioner. It has been urged by Mr. Mulchandani that as these if officers have taken an erroneous viewing regard to the construction of R. 39 as they have a discretion of to allot the plot to the petitioner., the matter should be remanded in order to enable the Regional settlement commissioner the appeal filed by the petitioner respondent No. 2 stated that under R. 39 the Government plots are not allocable and have to be sold by public auction. Similar view appears to have been taken to consider whether having regard all circumstances the plot should be allotted to the petition. We might have been inclined to the consider this request but for the fact which has been pointed out to us, for that after the plots were demarcated in 1954-55 they have been reserved for being used only for residential purposes. The petitioners is using the plot for running a charcoal shop. It does not therefore appeal likely that even if the matter is sent back the Regional settlement commissioner will be willing to allot the plot to the petitioner. For the same reason we do not consider it necessary to decide the outer point which has been urged on behalf of the petitioner that the central government was bound to hear the petitioners before declining to interfere in the matter.

(5) In the result therefore, the applications fails. Rule discharged. No order as to costs.

(6) Rule discharged.


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