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Saraswatibai and ors. Vs. Gulab Ajwani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 1392 of 1964 and 847 of 1965
Judge
Reported inAIR1967Bom312; (1966)68BOMLR368; ILR1966Bom981
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 24, 25 and 34; Displaced Persons (Claims) Act, 1959 - Sections 6(3); Displaced Persons (Claims) Supplementary Act, 1954 - Sections 5
AppellantSaraswatibai and ors.
RespondentGulab Ajwani and ors.
Appellant AdvocateN.H. Gursahani, ;S.H. Gursahani and ;S.P. Kanuga, Advs.
Respondent AdvocateG.N. Vaidya, Adv.
Excerpt:
.....the order of the subordinate officers;b) the case dealt with the two powers vested with the chief settlement commissioner - the two power included the delegated power under section 24 of the displaced persons (compensation and rehabilitation) act, 1954 and the power of reviewing his own order passed by mistake - it was ruled that order by the chief settlement commissioner cannot be held invalid on the ground that he was not conscious of his power under section 25 of the act, while modifying the order of compensation - - by as subsequent allotment, dated 12-1-1960, of land at nizamabad, this claim was satisfied. sub-section (2) apart from the general powers under sub section (1) gives him in particular the power to modify or revise the order for compensation or allotment or lease..........standard acres and 2-1/2 gunthas see exhibit d). the petitioners took a revisional petition to the chief settlement commissioner which was heard by the additional settlement commissioner with delegated powers of the chief settlement commissioner. the revisional authority rejected the revisional petition on february 29,1964 (see exhibit f). the petitioners seek to challenge this order.(4) the facts in special civil application no. 847 of 1965 are: the petitioner is a displaced person and applied making a claim to 22 acres and 35 gunthas of agricultural land at deh baberloi. by an order dated december 12, 1952 the claims officer accepted his claim and valued it at 14 standard acres and 11.115/128 annas. thereafter. the additional settlement commissioner by his order dated march 23, 1957 in.....
Judgment:

Patel, J.

(1) These petitions seek to challenge the orders of review made by the Additional Settlement Commissioner, and the Regional Settlement Commissioner.

(2) The facts in Special Civil Application No. 1392 of 1964 are: The petitioners are the heirs of one Hassomal alias Hassanand. Hassanand was and the petitioners are displaced persons. In accordance with the provisions of the Displaced Persons (Claims) Act, 1950, they made applications making claims in connection with their properties left in Pakistan, one being in respect of agricultural land. The Claims Officer, one G. L. Ajwani, rejected the claim ex parte on January 15, 1953. Hassomal applied to the Settlement Officer against the decision. The application was heard by the Additional Settlement Commissioner. He scrutinised the claim and accepted the same to the extent of 414 acres and 4 gunthas. Against this claim, they were allotted 291 standard acres and 2-1/2 units. By as subsequent allotment, dated 12-1-1960, of land at Nizamabad, this claim was satisfied. The heirs of Hassomal sold this land on January 14, 1960.

(3) Later on, the Additional Settlement Commissioner issued a notice to the petitioners to show cause why the verified claim respecting the land should not be set aside. The petitioners appeared and produced the papers in respect of their claim. On April 11, 1963, the Additional Settlement Commissioner, Mr. Wason, made an order reviewing the earlier verification dated March 18, 1955 by the Additional Settlement Commissioner, and rejected the claim of 291 standard acres and 2-1/2 gunthas see Exhibit D). The petitioners took a revisional petition to the Chief Settlement Commissioner which was heard by the Additional Settlement Commissioner with delegated powers of the Chief Settlement Commissioner. The revisional authority rejected the revisional petition on February 29,1964 (see Exhibit F). The petitioners seek to challenge this order.

(4) The facts in Special Civil Application No. 847 of 1965 are: The petitioner is a displaced person and applied making a claim to 22 acres and 35 gunthas of agricultural land at Deh Baberloi. By an order dated December 12, 1952 the Claims Officer accepted his claim and valued it at 14 standard acres and 11.115/128 annas. Thereafter. the Additional Settlement Commissioner by his order dated March 23, 1957 in suo motu revision, reduced his claim to 4 standard acres 3 annas, on the ground that the official record supported the petitioner's claim only to the extent of 6 acres and 20 gunthas. We understand from Mr. Gurusahani that, against this order, on April 26, 1957, the petitioner applied in revision to the Chief Settlement Commissioner. The copy of the order in revision will form part of the record and will be marked Exhibit H. The application was rejected by the Chief Settlement Commissioner on May 31, 1957, on the ground that the order of the Additional Settlement Commissioner. It appears that these orders were overlooked by the Regional Settlement Commissioner, and he issued a statement of account of August 28, 1959, by which it was conveyed to the petitioner that a particular amount was payable to him. It also appears that, from time to time, in response to the request of the petitioner, the amount available against the petitioner's claim was adjusted against the properties conveyed to him out of the compensation pool. Eventually, the notice, Exhibit E, was issued by the Regional Settlement Commissioner to the petitioner on March 23, 1965, by which he called upon the petitioner to show cause why he should not be required to make payment of the excess amount sanctioned on his claims. The notice purports to have been issued under S. 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. In response to this notice, the petitioner appeared before him, and after hearing him, the Regional Settlement Commissioner with delegated powers of the Chief Settlement Commissioner made the impugned order.

(5) Many of the contentions raised are common, and the matters may, therefore, be dealt with together. In the first petition the important question is whether the Additional Settlement Commissioner was justified in reviewing the verification of the petitioner's claim made by another Additional Settlement Commissioner. In the second, the questions are whether the Additional Settlement Commissioner could revise the verified claim and whether the Regional Settlement Commissioner was justified in reviewing the earlier decision of another Regional Settlement Commissioner, determining the amount of compensation.

(6) Firstly, Mr. Gurusahani contends that inasmuch as the verified claim ceased to be a verified claim merely, after the compensation was determined under Section 8 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it was not open to the Additional Settlement Commissioner to review the earlier order verifying the claim under the Displaced Persons (Claims) Act, 1950.

(7) The first Act in the series is the Displaced Persons (Claims) Act, 1950. By S. 2, 'Claim' has been defined t mean the assertion of a right to the ownership of, or to any interest in any immovable property etc. Section 4 vests power in the Central Government to appoint Chief Claims Commissioner, a Joint or Deputy Chief Claims Commissioner, Claims Commissioners and Claims Officers, Control and general superintendence of these officers is vested in the Chief Claims Commissioner. By Section 6, power is conferred on Claims Officers to decide cases transferred to them by the Central Government or by an officer duly empowered in that behalf by the Central Government. By Sub-section (2), the Claims Officer is required to hold a summary inquiry into the cases transferred to him and pass such orders as he thinks fit in relation to the verification of the claim and the valuation of such claim. The decision of the Claims Officer is declared to be final by Sub-section (3). The proviso to that sub-section, however, gives power of revision to the Chief Claims Commissioner. So far as this Act is concerned, no power of review is given to any officer, once he had made his order. This Act, expired by the end of 1953 and was replaced by an Ordinance and later by the Displaced Persons (Claims) Supplementary Act No. 12 of 1954. It made provision, amongst other things, for verifying claims which were still unverified and continuing the proceedings which were pending. Section 4 related to verification of claims and is almost in substance the same as S. 6 of the earlier Act. The change introduced by this Act is renaming of the officers as Settlement Commissioners of various designations according as their jurisdiction varied. The respective designations, however, appear to be similar to those of Claims Officers under the Act of 1950. By S. 5 special power of revision is given to the Chief Settlement Commissioner in respect of orders which were passed under the 1950 Act, and it could be exercised if an application were made to him by any person aggrieved by the decision of the Claims Officer or suo motu on his own motion subject to such rules as may be made under the Act. Section 9 provides a bar to the jurisdiction of Civil Courts. Under this Act also, no powers of review have been conferred on any of the authorities exercising their powers. Under this Act, once the order is made by an authority, it becomes final subject only to the revisional jurisdiction.

(8) Then came the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954 on 9th October 1954. As the title of the Act itself shows, it concerns with the payment of compensation and grant of property as rehabilitation. This Act, by S. 2(e), defines for the first time a verified claim as it had to do to mean a final order in respect of a registered claim passed under the Displaced Persons (Claims) Act of 1950, or the Displaced Persons (Claims) Supplementary Act of 1954, with certain exceptions. Section 7 provides for determination of the amount of compensation after the claim is verified, and Section 8 provides for the manner in which the determined compensation has to be paid. It is because of these two sections that in Khudabadi Bhaibund Co-operative Credit bank Ltd. v. N. S. Varma, : AIR1962Bom121 , and Ranjit Singh v. State of Punjab 66 PLR 631 it was held that once the compensation is determined the Government becomes liable to pay the same and, therefore, the right becomes property Chapter IV of this Act relates to appeals and revisions. Section 24(1) confers powers of revision on the Chief Settlement Commissioner in wide terms 'for the purpose of satisfying himself as to the legality and propriety of orders passed under this Act. Sub-section (2) apart from the general powers under Sub section (1) gives him in particular the power to modify or revise the order for compensation or allotment or lease made in favour of a displaced person, if he is satisfied that such order has been obtained by fraud, false representation or concealment of any material fact. It further provides that if a claimant has received compensation in excess of the amount which he determines to be payable to him, the same may be recovered on a certificate issued by him as if it were arrears of land revenue. Sub-section (3) requires him to give a reasonable opportunity of being heard to the party affected before making the order. Sub-section (4) provides for a revisional application to be made to the Central government by any person who is aggrieved by such order. Section 25 gives powers of review, but then this power is limited. Sub-section (1) enables a person aggrieved by an order made by the Settlement Officer under Section 5 from which no appeal is permitted under Section 22 of the Act, to apply for review of the order, and his decision on such application is declared to be final. By Sub-section (2), the Settlement Officer are given power to correct clerical or arithmetical mistakes and also to rectify errors arising from accidental slip or omission. It is clear that none of these three Acts gives any power to an officer to review his own order on any ground except on the limited ground mentioned in Section 25 of the last Act, and in respect of limited number of decisions and that too those rendered under this Act.

(9) Power of review is not inherent in any authority. Even so far as Civil Courts are concerned except such powers of review as are given to them under the Code of Civil Procedure and are inherent in the Court recognised by Section 151 of the Code, there are no powers of review. The reason is obvious. Once a tribunal decides a matter, it is functus officio and cannot modify the order on any ground whatever. The order can be altered or modified only by an appellate authority, if any, constituted under the statute creating the authority, A tribunal can, therefore, exercise the power of review only if- and to the extent to which - by the statute which creates it, power of review is conferred upon it. Having regard therefore, to the provisions of the three Acts, including the limited provisions of Section 25 of the last Act, we are bound to hold in Special Civil Application No. 1392 of 1964 that the Additional Settlement Commissioner had no power to review the earlier order made by the same authority in favour of the petitioners. The same view was taken in Gulab Singh Pardhan Singh v. Chief Settlement Commissioner Punjab. AIR 1964 P&H; 515, and we respectfully agree with the same.

(10) When faced with this difficulty, Mr. Vaidya contended that the order made on 11th April 1963 by the Additional Settlement Commissioner is a revisional order under Section 24 of the last Act and Section 5 of the Displaced Persons (Claims) Supplementary Act of 1954. He says that it is an error on the part of the said officer to call it a review. This contention now must be examined.

(11) The Chief Settlement Commissioner has been given wide powers under Section 24 to revise any order made under the Act. In particular, if the displaced person has obtained the order by misrepresentation, fraud etc., he is entitled to even redetermine the amount of compensation and call upon him to refund the excess. Under Section 34, he is entitled to delegate his powers of revision to a subordinate officer. It is said that, in pursuance of these powers the Chief Settlement Commissioner has delegated his powers to the Additional Settlement Commissioner.

(12) Section 34 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, is divided into three parts. Sub-section (2) of this section is as follows:-

'Subject to the provisions of this Act and of the rules and orders made thereunder. the Chief Settlement Commissioner may, by general or special order, delegate all or any of his powers under this Act to the Joint Chief Commissioner, the Deputy Chief Settlement Commissioner, a Settlement Commissioner, an Additional Settlement Commissioner or an Assistant Settlement Commissioner, subject to such conditions if any, as may be specified in the order.'

Under this sub-section the Chief Settlement Commissioner is no doubt entitled to delegate his powers to (1) the Joint Chief Settlement Commissioner (2) the Deputy Chief Settlement Commissioner, (3) a Settlement Commissioner, (4) an Additional Settlement Commissioner and (5) an Assistant Settlement Commissioner. We will assume that no conditions are attached by his order which delegates his powers to those officers to revise the orders made under the Act. Even so, the power of revision connotes the revision of orders made by a subordinate officer, and this is made clear by Section 24 which empowers the Chief Settlement Commissioner to revise the orders made by his subordinate officers; and when the Chief Settlement Commissioner delegates the powers of revision to any of his subordinate officers, it can only mean that they have got powers to revise such orders as are made by officers subordinate to them; it does not mean that, by reason of the delegated power of revision, they can review their own orders by calling their action revision. The opening words of the sub-section clearly indicate that the power of delegation is subject to the provisions of the Act, and if the Act itself gives only a limited power of review by Section 25, larger powers of review cannot be conferred by the Chief Settlement Commissioner by delegation of his powers of revision under Section 34. In our view, therefore, the Additional Settlement Commissioner, Mr. Wason, had no power to revise the order made on March 19, 1955 by the Additional Settlement Commissioner, Mr. Seth. As we hold that the order at Exhibit D dated April 11, 1963 is without jurisdiction, it is no necessary to consider the other arguments urged by Mr. Gurusahani against the same.

(13) In the second petition viz. Special Civil Application No. 847 of 1965. Mr. Gurusahani says that the notice dated March 24, 1965, at Exhibit F is invalid on the ground that there is no specific mention of the revised claim order passed of March 23, 1957, that the original claim Index Number is not mentioned in the order, that the authority which passed the order and the date of the order are not mentioned and that the notice is not signed by the person properly vested with the powers in that behalf.

(14) We cannot accept this contention. In the column 'Subject' both the Index Number of the claim and the C. A. F. Registration Number have been mentioned. The fact that the claims were revised was also known to the petitioner. These grounds, therefore, cannot be urged by him, unless he shows that he had suffered prejudice because of the non-mention of these facts. Also no particular form of notice has been prescribed and it must be construed reasonably and if it conveys to the person affected what he is called upon to meet, it cannot be held to be invalid. As to the last ground, it is obvious that the notice has been issued under the orders of the Regional Settlement Commissioner. There is nothing in the statute to show that such notice is required to be singed by him personally.

(15) It is then contended that the Regional Settlement Commissioner has no power to review his own order, fixing compensation Mr. Gurusahani also relies upon the judgment of this Court in Special Civil Appln. No. 584 of 1960 delivered on 29th September 1960 (Bom) (Tarkunde and Patwardhan, JJ.) as also upon the judgment of this Court in Special Civil Appln. No. 1883 of 1963 delivered on 23rd July 1964 (Bom) (Kotval and Palekar, JJ.).

(16) It is true that merely because the Regional Settlement Commissioner has been delegated powers of the Chief Settlement Commissioner, he is not entitled to review his own order under Section 24. But then the matter does not merely rest on Section 24 . Section 25 of the Act is divided into two parts and it confers a limited power of review on every authority acting under this Act. Sub-section (2) says:

'Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may, at any time, be corrected by such officer or authority or the successor-in-office of such officer or authority.'

The counter-affidavit by respondent No. 1 shows that the petitioner had filed two affidavits before the Regional Settlement Commissioner, dated January 20, 1959 and November 1, 1961 asking for adjustment of the compensation to him against the price of property purchased by him. He had affirmed that the amount of compensation was determined and the same was not reduced or affected by any subsequent order. The statement of account was sent to him after he filed his first affidavit, and from time to time adjustments were made against his purchases. This was done because the order of the Additional Settlement Commissioner at Exhibit C rejecting part of his claim was overlooked by the Regional Settlement Commissioner. It is of course not a clerical or arithmetical error; but it is an accidental slip or omission, but for which, the account would have been different. This being so, the Regional Settlement Commissioner could under Section 25 review the order and correct the mistake.

(17) Mr. Vaidya contended that the statement of account was furnished not by the Regional Settlement Commissioner but by the Assistant Settlement Officer. He tells us that Mr. A. N. Dutt who made the order was an Assistant Settlement Officer. If this is true the matter may fall within Section 24 of the Act. However, what is material is not the statement of account. The order determining the compensation seems presumably to have been made by the Regional Settlement Commissioner, and as to this there is no averment in the affidavit that the order was made by the Assistant Regional Settlement Officer.

(18) Mr. Gurusahani then contended that even though the order at Exhibit C is still operative, the Regional Settlement Officer before he can cancel part of his claim he must give findings in terms of Section 24 of the Act. He relies upon the two judgments of this Court in support of his contention. In Gianchand Rodaram v. H. K. Chaudhry Special Civil Appln. No. 584 of 1960 (Bom), the facts were that the claims was submitted by the petitioner only is respect of rural buildings, which was accepted. On June 14, 1954, the Additional Settlement Commissioner issued a notice to the petitioner to explain why his rural claim should not be rejected as he had been awarded agricultural land in respect of his agricultural claim. The petitioner sent his explanation before the due date by a registered letter, conveying his objection that he had no agricultural claim at all. In spite of this objection, the Additional Settlement Commissioner, on the ground of allotment of agricultural land, cancelled his claim for rural buildings. His appeal before the Chief Settlement Commissioner failed. In the meantime, the amount which was payable to him by reason of the first order was adjusted by the Settlement Commissioner against the price of purchase of immoveable property. On April 9, 1960, the Regional Settlement Commissioner issued the impugned order, authorising the Collector to recover an amount of Rs. 2,202 as arrears of land revenue. he order was sought to be justified on the ground that the Regional Settlement Commissioner was exercising powers vested in the Chief Settlement Commissioner under S. 24 by virtue of delegation to him of those powers under S. 34. It is pointed out in the judgment that the delegation of powers was very limits, it being 'for the recovery of the amount which was not payable to a displaced person or which was in excess of the amount payable to him as arrears of land revenue', and it is because of this that it was held by the learned Judges that, before the order for recovery could be made, the authority concerned ought to have given an opportunity to the petitioner to show cause why the order should not be made. Curiously enough, no attempt was made on behalf of the department to point out the provisions of Section 25(2) which probably might have justified the order of the Regional Settlement Commissioner, provided the earlier order was made under some mistake. In any event, the case is distinguishable, the order of revision being hopelessly bad. In the present case, the delegation of powers is in much wider terms. It is made by the notification dated 4th September 1964. Under this notification, all powers of the Chief Settlement Commissioner are delegated to the authorities mentioned therein, one of them being the Regional Settlement Commissioner at Bombay. No doubt, inasmuch as we have held that, even though powers of the Chief Settlement Commissioner have been delegated to him, he would not be entitled to review his own order, still, having regard to the provisions of S. 25 of the Act, he had the power to correct his earlier order - even on the assumption that it was made by the Regional Settlement Commissioner - and call upon the petitioner under the delegated powers under Section 24 to refund the amount. The decision in Special Civil Appln. No. 1883 of 1963 - Rajaram Anandram v. B. K. Mehta, Settlement Officer (Bom)- does not really touch the point. It was a matter of property by the Settlement Commissioner under Section 20 of the Act. An order for the recovery was sought to be made in terms of Section 20(3), and it was conceded on the part of the department that the order made was inherently bad, and consequently the question as to the powers either under Section 24 or under S. 25 was not even argued and considered.

(19) Mr. Gurusahani, however, has very strongly contended that the notice, Exhibit F, purports to have been given under Section 24, of the Act and the order is made under hat section and does not refer to Section 25 at all and, therefore, ought to be held invalid. Here, we have got a case where the Regional Settlement Commissioner possesses two powers- (1) the delegated power of the Chief Settlement Commissioner under Section 24 and (2) power or reviewing his own order passed under a mistake. He having both the powers, merely because when he exercised the power of review while modifying the order of compensation he was not conscious of his power of review under Section 25, it cannot be said that his order must be regarded as invalid. See Dr. Groenvelt v. Dr. Burwell, 1 Ld Rayam 454 Pitambar Vajirshet v. Dhondu ILR (1888) 12 Bom 486. Afzal Ullah v. State of Uttar Pradesh. : [1964]4SCR991 where it is held that wrong recital of the power does not render an act in valid.

(20) On merits the Regional Settlement Commissioner was justified in making the order for the recovery of the amount against the petitioner.

(21) In the result, in Special Civil Application No. 1392 of 1964, we make the rule absolute and set aside the order at Exhibit D dated April 11, 1963 made by Mr. Wason, Additional Settlement Commissioner, and also the consequential order made in revision by Mr. Gulab L. Ajwani, Additional Settlement Commissioner, on February 29, 1964. The petitioners will get their costs from the respondents.

(22) In Special Civil Application No. 847 of 1965, we discharge the rule with costs.

(23) Spl. Civil Application No. 1392 of 1964 Allowed;

(24) Spl Civil Application No. 847 of 1965, Dismissed.


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