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Shammomal Khajoomal Vs. G.D. Kshetarpal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 539 of 1965
Judge
Reported in(1969)71BOMLR673
AppellantShammomal Khajoomal
RespondentG.D. Kshetarpal
Excerpt:
.....65--whether agricultural land to be considered in determining amount of compensation-agricultural-land-claim how to be, satisfied.;under section 7 of the displaced persons (compensation and rehabilitation) act, 1954, read with the rules made under the act, the deduction of public dues whatever be their nature must be made out of the compensation in respect of the verified claim determined by the regional settlement commissioner as per rule 18 of the rules i.e. out of the assessed value of all claims in respect of all kinds of properties in a rural area other than agricultural land. so far as agricultural-land-claim is concerned it should be satisfied by allotment of agricultural land only except in cases where the applicant himself chooses not to accept land but is satisfied by..........had to be deducted out of the compensation for total of these two claims and not out of the land claim. this being the position, so far as the land claim of the petitioner is concerned, it has to be satisfied by allotment of equivalent land to be determined in accordance with the rules. the deduction, therefore, of the sum of es, 21,969 as part value of the property out of the land claim and allotment of only standard 28 acres, 15 gunthas was unjustified. inasmuch as adjustments have not been made in accordance with the rules as stated above, the adjustment order must be set aside. though the order for allotment of land measuring standard 28 acres, 15 gunthas is maintained, in view of our directions in respect of the first contention of the petitioner and in view of what we have.....
Judgment:

Patel J.

1. This petition arises out of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the Act of 1954). The petitioner is a displaced person from West Pakistan. The petitioner abandoned his properties in West Pakistan which consisted of (1) agricultural lands in rural area, (2) buildings etc. in rural area and (3) property in urban area. Under the Displaced Persons Claims Act, 1950, the petitioner made claims in respect of these three kinds of properties which he had abandoned in West Pakistan. These applications were heard and the claims were verified by the proper authorities. In respect, of rural properties other than agricultural lands, the claims were numbered as S/KR-5/56, S/KR-15/327/D and S/KB-1/72D and the verified claims respectively were Rs. 21,997-8-0, Rs. 6,200 and Rs. 2,036 total being Rs. 30,233-8-0. In respect of agricultural lands his claim bore the number S/KR-8/72D and the verified claim was 219.10 standard acres which was revised to 222 standard acres. In respect of urban property his claim was No. S/KR-1/72D (ii) and the verified claim was Rs. 3,500. It is accepted that in respect of the agricultural lands where the verified claim was 222 standard acres the petitioner would be entitled to the allotment of 83 acres, 6i gunthas.

2. Later, the Act of 1954 came to be passed. Under this Act, the claimants were required to make applications for payment of compensation 'to them. Accordingly, the petitioner made an application under Section 4 of the said Act for payment of compensation due to him. It also appears that later on a house bearing No. DBZ-S-180 at Gandhidham, Kandla, was allotted to the petitioner by an order dated March 22, 1955. The said house was valued at Rs. 10,800, Later on, the petitioner purchased a house at an auction of evacuee property bearing No. 19/4 at Bhoraji on July 16, 1956, for a sum of Rs. 19,500-0-0. Under Section 5 of the said Act the Settlement Officer has to determine, after making an inquiry according to the prescribed rules, the amount of public dues recoverable from the petitioner and thereafter under Section 7 thereof determine the amount of compensation payable to the petitioner. The petitioner alleges that while deciding these points, no notice was issued to him. However, by a communication exh. B, dated March 1, 1956, the petitioner was informed that a sum of Rs. 10,800, the price of the first house, and a sum of Rs. 11,169, part payment in respect of the second house, were adjusted against his claim for agricultural lands and he was allotted the balance of 28 acres, 15 gunthas of lands.

3. The lands allotted to the petitioner are survey Nos. 996/1, 996/3, 251, 1250/1, 1250/2, 1250/3 and 1275/3 measuring in all 39 acres, 14 gunthas equivalent to standard 28 acres, 15 gunthas. After making allotment, possession of these lands was not handed over to the. petitioner inspite of repeated re-quests. The petitioner, therefore, filed an application being Special Civil Application Stamp No. 3024 of 1963. in this Court. But, as the petitioner was informed that respondent No. 3 was prepared to hand over possession of the said lands, he withdrew the petition on April 15, 1963. Even thereafter the petitioner waited for nearly two years and when possession was not handed over he eventually filed the present petition for appropriate reliefs.

4. In this petition he contends that the respondents were bound to hand over physical possession of the properties allotted to him and that they have failed to do so. lie, therefore, prays that the respondents should be ordered to hand over physical possession of the property and if some of the survey numbers cannot be so handed over to him they should be directed to pay compensation in respect of those lands as provided by the rules. His second contention is that the proceedings for determination of compensation and the manner of its adjustment were taken without notice to the petitioner and contrary to the provisions of the rules. He says that according to the rules, public dues are first to be adjusted against the compensation amount payable to the petitioner which would mean compensation determined in respect of the urban claim and the rural claim in respect of properties other than agricultural lands. He says that the respondents are not entitled to adjust the public dues against the claim in respect of agricultural lands at all. In so far as this adjustment is made it is contrary to the rules and the same should be struck down and also that the amount recovered from him as the balance of the price of the two house properties should be ordered to be paid back to him.

5. So far as the first contention is concerned, it is admitted by respondents that on allotment the respondents are bound to hand over possession of the lands allotted to the petitioner. It is now, however, found after a period of almost four years, by the respondents that survey No. 1275/3 was not available for allotment as it was not at all an evacuee property. This is shown by esh. C dated December 8, 1960. This order was passed apparently without intimation to the petitioner and the intimation came to be sent to Mm on March 27, 1963, almost three years later to the effect that arrangements were being made to refund him the amount of value charged in respect of the area so deleted. Even so nothing was done (vide C 2). It is also now discovered that survey No. 1250/2 cannot be given to the petitioner and it is alleged that reference it survey No. 1250/2 is a mistake for survey No. 1260/2. It appears that the petitioner had in his applications dated March 10, 1969 and March 25, 1969, requested for allotment of any other land out of survey numbers mentioned by him. The respondents have now expressed a desire that they would immediately consider these applications. 'We, therefore, direct the respondents to decide the question of allotment of land equal to the area of survey Nos. 1275/3 and 1250/2 of which possession cannot be given to the petitioner, within six weeks from today if acceptable to the petitioner. This order is being made in the presence of the Assistant Settlement Commissioner and we hope that no excuse will be put forward for not carrying out this order. If for any reason no land can be allotted to the petitioner in respect of this part of his contention, the department agrees to pay him cash equivalent in accordance with the rules. The department has also expressed a desire to hand over possession of the lands which have not been handed over in the possession of the petitioner. 'We direct that possession shall be delivered to the petitioner on or before May 1, 1969.

6. As we have stated, the second contention is that adjustments in respect of the prices of properties purchased by him were made without reference to the petitioner and are contrary to the rules. The relevant provisions with which we are concerned are the provisions of the Act of 1954. Section 4 refers to the form of application for compensation to be made by a displaced person having a verified claim for payment of compensation. It also provides the form and the content of the application. Section 5 requires the Settlement Officer on receipt of an application under Section 4 to determine the amount of public dues payable by the applicant after making an inquiry in the prescribed manner and forward the application as well as the record of the case to the Settlement Commissioner. The relevant Rules prescribing the mode of inquiry for determining public dues are Rules 7 and 8. These Rules indicate that the inquiry is almost a judicial inquiry for it requires that a notice must be given to the applicant before determining the question in cases where the particulars regarding the public dues payable by him and stated by him in his application appear to be incorrect. Before making any order in such cases the applicant is required to be heard. So far as this part of the inquiry is concerned, it is accepted that the two amounts due from the petitioner to the Government for the purchase of two house properties are rightly determined. Though, therefore, no notice might have been issued, to the extent of determination of public dues from the applicant no objection can be taken to it.

7. Section 7 of the Act of 1954 relates to determination of the amount of compensation and Section 8 thereof relates to the form and manner of payment of compensation. They provide as follows:

7. (3) On receipt of an application for payment of compensation together with the record of the case forwarded under Section 5, the Settlement Commissioner shall make an inquiry in such manner as may be prescribed and having due regard to the prescribed scales of compensation, the nature of the verified claim and other circumstances of the case, shall ascertain the amount of compensation to which the applicant is entitled.

(2) On ascertaining the amount of compensation to which an applicant is entitled under Sub-section (1), the Settlement Commissioner shall deduct therefrom the following dues recoverable from the applicant, in the order of priority mentioned below-

(a) the amount, if any, of the public dues recoverable from the applicant under Section 5;

(b) and (c) ...

(3) After deducting the dues referred to in Sub-section (2) the Settlement Commissioner shall make an order determining the net amount of compensation, if any, payable to the applicant.

(4) The amount, if any, deducted under Sub-section (2) shall be paid to the person entitled to it.

8. (1) A displaced person shall be paid out of the compensation pool the amount of net compensation determined under Sub-section (3) of Section 7 as being payable to him, and subject to any rules that may be made under this Act, the Settlement Commissioner or any other officer or authority authorised by the Chief Settlement Commissioner in this behalf may make such payment in any one of the following forms or partly in one and partly in any other form, namely:

(a) in cash;

(b) in Government bonds;

(c) by sale to the displaced person of any property from the compensation pool and setting off the purchase money against the compensation payable to him;

(d) by any other mode of transfer to the displaced person of any property from the compensation pool and setting off the valuation of the property against the compensation payable to him;

(e) by transfer of shares or debentures in any company or corporation;

(f) in such other form as may be prescribed.

(2) For the purpose of payment of compensation under this Act, the Central Government may, by rules, provide for all or any of the following matters, namely:-

(a) the classes of displaced persons to whom compensation may be paid;

(b) the scales according to which, the form and manner in which, and the instalments by which compensation may be paid to different classes of displaced persons;

(c) the valuation of all property, shares and debentures to be transferred to displaced persons;

(d) any other matter which is to be, or may be, prescribed.

Rule 15 relates to determination of net compensation and Rule 16 provides that compensation shall be payable in accordance with the scale specified in Appendices VIII or IX as the case may be. Rules 18, 4'9, 56, 57 and 65 of the Rules are particularly relevant for the present discussion and they are as follows:

8. For the purpose of determining the compensation payable to an applicant, the Regional Settlement Commissioner shall, except as otherwise provided in these rules, add up the assessed value of all claims of the applicant in respect of all kinds of properties, other than agricultural 'and, situated in a rural area, left by him in West Pakistan and the compensation shall be assessed on the total value of all such claims.

49. Except as otherwise provided in this Chapter, a displaced person having a verified claim in respect of agricultural land shall, as far as possible, be paid compensation by allotment of agricultural land. Provided that where any such person wishes to have his claim satisfied against property other than agricultural land, he may purchase such property by bidding for it at an open auction or by tendering for it and in such a case the purchase price of the property shall be adjusted against the compensation due on this verified claim for agricultural land which shall be converted into cash at the rates specified in Rule 56.

Rule 56 relates to conversion of standard acres into cash, Rule 57 relates to allotment of houses in addition to agricultural land and it reads as follows:

A displaced person having a verified claim in respect of agricultural land who has settled in a rural area and to whom agricultural land has been allotted, may be allotted a house in addition to such land in accordance with the following scale-

(1) Claimants allotted land upto ten standard acres...Grade (H),

(2) Claimants allotted land exceeding ten standard areas but not exceeding fifty standard acres....Grade(G).

Provided that if such person holds a verified claim in respect of any rural building and that claim has been satisfied wholly or partially before the allotment of such land, the provisions of Rule 65 shall not be applicable in his case but he shall not be entitled to the allotment of a house or a site and building grant in lieu thereof.

Rule 65 reads thus:

(1) Any person to whom more that four acres of agricultural land have been allotted shall not be entitled to receive compensation separately in respect of his verified claim for any rural building the assessed value of which is less than Rs. 20,000/-.

(2) Any person to whom four acres or less of agricultural land have been allotted, shall not be entitled to receive compensation separately in respect of his verified claim for any rural building the assessed value of which is less than Rs. 10,000/-.

8. On behalf of the respondents, the adjustment is sought to be justified on the basis of Rule 65 referred to above. It is contended that in respect of rural buildings under Rule 65 since the petitioner was allotted more than four aeries of land he would not be entitled to any compensation.

9. Section 7 of the Act, as it reads, requires that the public dues and the other dues recoverable from an applicant must first be deducted out of the compensation determined in accordance with the rules framed by the Government. The Rules particularly Rule 18 requires that in determining the amount of compensation agricultural land is not to be considered. This is for obvious reasons. The intention seems to be to provide for agricultural community with the means of their livelihood on settling in this country and that is why provision is made by Rule 49, that, so far as agricultural-]and-claim is concerned, it should be satisfied by allotment of agricultural land only except in cases where the applicant himself chooses not to accept land but be satisfied by allotment of different property as against that claim. It is admitted that there is nothing on record to show that the applicant had expressed a desire that the claim in respect of agricultural land should be adjusted against any other property. The case, therefore, ought to be dealt with under Section 7 of the Act read with Rule 18 of the Rules. Section 7 requires compensation to be determined in accordance with the rules prescribed. The Rules referred to above prescribe that compensation in respect of all claims is to be separately determined from claims in respect of agricultural land in rural areas. These two read together leave, therefore, no doubt that the deduction of public dues whatever be their nature must be made out of the compensation in respect of the verified claim determined by the officer as per Rule 18. As we have seen, the verified claim in respect of the properties other than agricultural lands came to Rs. 30,233-50 and that in respect of urban property to Rs. 3,500. According to Section 7 of the Act and Rules 38 and 15 of the Rules, the claim in respect of the two houses purchased by the applicant had to be deducted out of the compensation for total of these two claims and not out of the land claim. This being the position, so far as the land claim of the petitioner is concerned, it has to be satisfied by allotment of equivalent land to be determined in accordance with the Rules. The deduction, therefore, of the sum of Es, 21,969 as part value of the property out of the land claim and allotment of only standard 28 acres, 15 gunthas was unjustified. Inasmuch as adjustments have not been made in accordance with the Rules as stated above, the adjustment order must be set aside. Though the order for allotment of land measuring standard 28 acres, 15 gunthas is maintained, in view of our directions in respect of the first contention of the petitioner and in view of what we have said, if the compensation payable to the petitioner in respect of his rural claim and the urban claim except land claim is not sufficient to discharge his liability in respect of the two houses, then such amount may be deducted out of his land claim in accordance with the Rules. If any amount has been paid by the petitioner towards the purchase price of the two house properties, the same shall be taken into account in making the adjustment.

10. We direct the respondents to determine the question of net compensation payable to the petitioner and its adjustment against the public, dues and the allotment of additional land against his agricultural claim as per the observations above within six weeks from today. The petitioner will get the professional cost of Us. 300 from the respondents.


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