Skip to content


Mohinder Singh S. Shmsher Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 195-D of 1957
Judge
Reported inAIR1958P& H212
ActsConstitution of India - Article 226; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 29, 29(2), 40, 40(1) and 40(2); Displaced Persons (Compensation and Rehabilitation) (Amendment) Rules, 1955 - Rules 102
AppellantMohinder Singh S. Shmsher Singh
RespondentUnion of India (Uoi) and ors.
Appellant Advocate D.R. Thadani, Adv.
Respondent Advocate Mastan Chand, Adv.
DispositionPetition dismissed
Cases ReferredAtul Krushna Roy v. Raukishore Mohanty
Excerpt:
.....to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ..........singh, which he has again set up in the present petition, was that he was using the whole of the plot of land occupied by him for various businesses including an automobile workshop and a factory for manufacturing tools. it was however found partly on the basis of a report of mr. r.n. malhotra, authorised deputy custodian, who had visited the spot on 7-2-57, and partly on the basis of a surprise visit by the managing officer himself on the 16th of april 1957, that the greater portion of the plot was lying vacant and that only on one end of the plot near the rohtak road was there a coal stall. the plot, which was proposed to be left with him measuring 173 sq. yds. was held to be quite sufficient for his needs and the surrender of the remaining plot measuring 488 sq. yds. was again.....
Judgment:
ORDER

D. Falshaw, J.

1. This is a Writ Petition by Mohinder Singh, under Article 226 of the Constitution challenging certain proceedings under the Displaced Persons (Compensation and Rehabilitation) Act 1954, culminating in an order of Mr. Sarup Singh, Managing Officer dated 17-4-1957.

2. The petitioner is a displaced person who in October, 1947, entered into occupation of a part of land described as No. XVI/62/31, Rohtak Road, Karol Bagh, New Delhi-5. In August, 1949, half of this plot which was evacuee property was taken over from him by the Custodian but his occupation of the remaining half measuring 661 Sq. Yds, was confirmed on 3-9-1949, the rent being fixed at Rs. 16/2/- per mensem.

3. It seems that early in 1954 the Custodian's Department began proceedings against the petitioner for the cancellation of his allotment, but these efforts had not been successful up to the time when, on 11-6-1955, a Notification was issued under Section 12 of Act No. 44 of 1954, vesting all evacuee property in the State of Delhi in the Central Government. Thereafter the proceedings were again started against the petitioner who was served with a notice dated 28-10-1955, under Section 19 of the Act of 1954, read with Rule 102 of the Rules framed thereunder.

In this notice Mohinder Singh was called upon to show cause why his allotment should not be cancelled to the extent of the portion marked A. B. C. D. in the enclosed plan on the ground that it was to he allotted to an eye hospital and that it Was surplus to Mohinder Singh's legitimate requirements. Apparently some defect was found in this notice and a fresh notice dated 6-11-1955 was then served on him which is practically in the same terms.

4. Mohinder Singh appeared before the Managing Officer who issued the notice on the 23rd of November, and on that date, without affording him any opportunity to produce evidence, an order was passed for his surrender of the portion A. B. C. D. measuring 488 Sq. Yds.

5. Against this order Mohinder Singh filed a Civil Writ No. 214-D/55, which was heard on 11-2-57, by Bishan Narain J., who set aside the order of the Managing Officer and directed that Mohinder Singh should be allowed an opportunity to prove his case. The order now challenged was passed on 17-4-1957, after some evidence had been led.

6. It seems from this order that the case of Mohinder Singh, which he has again set up in the present petition, was that he was using the whole of the plot of land occupied by him for various businesses including an Automobile Workshop and a factory for manufacturing tools. It was however found partly on the basis of a report of Mr. R.N. Malhotra, Authorised Deputy Custodian, who had visited the spot on 7-2-57, and partly on the basis of a surprise visit by the Managing Officer himself on the 16th of April 1957, that the greater portion of the plot was lying vacant and that only on one end of the plot near the Rohtak Road was there a coal stall. The plot, which was proposed to be left with him measuring 173 Sq. Yds. was held to be quite sufficient for his needs and the surrender of the remaining plot measuring 488 Sq. Yds. was again ordered.

7. The petitioner's case as set out in the petition is that in fact the Ministry of Rehabilitation, which was also made a respondent, was trying to secure the plot along with some other adjoining land for one Dr. Mathra Dass, and it was alleged that the actions of the Ministry and the department have throughout been mala fide. It is difficult to see how allegations of this kind can be adequately investigated in a petition under Article 236 of the Constitution, it certainly appears true from the various documents which have been referred to, and also the terms of the show cause notice finally issued to the petitioner, that it is proposed to give the portion of the Part occupied by the petitioner which has been taken over from him and a similar portion of an adjoining plot to Dr. Mathra Dass for the purpose of setting up an eye hospital, and even if this eye hospital is not to be a charitable institution, as apparently was at first suggested, but is to be a hospital run by Dr. Mathra Dass as a business concern I still cannot see how any question of mala fides enters into the matter, since in my opinion the resumption of part of the petitioner's land for this purpose was a legitimate object of the Ministry and the Department concerned, and I see nothing wrong in taking a portion of the plot allotted to the petitioner away from him for this purpose as long as this action was otherwise legal.

8. On this point it must be stated at once that the finding of fact that the petitioner was not using the portion of the Plot which has been taken away from him and that the portion which has been left with him is sufficient for carrying on the business which he was carrying on in 1957; viz. the running of a fuel stall, cannot possibly be challenged or investigated in a petition of this kind. The only question which arises is therefore, whether the Rules have been complied with. The Department has to rely on Rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules of 1955 framed under Section 40 of the Act. The Rules in question relates to cancellation of allotments and leases and reads :

'A managing officer or a managing corporation may in respect of the property in the compensation pool entrusted to him or to it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be :

(a) has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or

(b) has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or

(c) has committed any act which is destructive of or permanently injurious to the property, or

(d) for any other sufficient reason to be recorded in writing : provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard.'

The case of the Department is that the cancellation of a portion of the petitioner's allotment on the ground that he was not using it and did not require it is covered by Clause (d).

9. On behalf of the petitioner It was contended that in the first place the rule itself was ultra vires because the cancellation or variation of allotments and leases was not specifically mentioned in Section 40 of the Act, in which a list of subjects is given, and in the second place that the reason given by the Department cannot be said to fall under Clause (d) under which the reason must be ejusdem generis with the reasons given in Clauses (a), (b) and (c).

It is certainly correct that cancellation of leases or allotments is not included in items (a) to (o) in Sub-section (2) of Section 40, but Sub-section (1) states that 'the Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act' and Sub-section (2) is headed, as usual with the words 'In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :' and obviously the provisions contained in the sub-section do not restrict the rules to be framed on the subjects enumerated below.

10. In my opinion there is also no force in the argument that the reason invoked under Clause (d) of Rule 102 must necessarily be ejusdem generis as reasons embodied in Clauses (a), (b) and (c). This matter has been considered by Bishan Narain J. in Mehar Chand v. Punjab State, Civil Writ No. 348 of 1953 (Punj) (A), in connection with Section 40(4)(c) of the Evacuee Property Act of 1950, and he took the view that 'it is not possible to apply the rule of ejusdem generis in construing the words 'for any other reason' in Clause (c) of Section 40(4) and the reasons need not be analogous with those in Clauses (a) and (b).' Panigrahi C. J. in Atul Krushna Roy v. Raukishore Mohanty, (S) AIR 1956 Orissa 77 (B) has said :

'The doctrine of ejusdem generis should be restricted only to cases where the generic words follow specific words in the very same clause or sentence. But where the object of the Legislature had been clearly expressed and the intention is to extend the scope of the general words a wider meaning should be given to the succeeding words.'

I agree with these views and am of the opinion that the reason for cancellation of partial allotment under Rule 102 (d) need not be analogous la the reasons contained in Clauses (a) (b) and (c) and it is sufficient if the reason given is otherwise adequate. In the present case the finding is that the petitioner was not usingmost of the land & he has still been left with a portion near the main road, and this in my opinion is an adequate reason for cancelling his allotment in respect of the land surplus to his' requirements.

11. The only other question for consideration is whether the petitioner is entitled to the protection afforded by Section 29 of the Act. There does not appear to he any dispute that the land taken away from the plaintiff along with some other adjoining land is intended to be given to Dr. Mathra Dass under the provisions of the Act, Section 29 is headed, 'Special protection from ejectment to certain classes of persons'' and reads :

'(a) Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under Sub-section (2) which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may nave in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property Immediately before the transfer :

Provided that notwithstanding anything contained in any such terms and conditions, no such persons shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the following grounds, namely :

(a) that he has neither paid nor tendered the whole amount of arrears of rent due after the date of the transfer within one month of the date on which a notice of demand has been served on him by the transferee in the manner provided in Section 106 of the Transfer of Property Act, 1882 (IV of 1882);

(b) that he has, without obtaining the consent of the transferee in writing :

(i) sublet or otherwise parted with the possession of the whole or any part of the property, or

(ii) used the property for a purpose other than the purpose for which he was using it immediately before the transfer;

(c) that he has committed any Act, which is destructive of, or permanently injurious to, the property.

(2) The Central Government may from time to time by notification in the official Gazette, specify the class of persons to whom, and the class of immovable property in the compensation pool, other than agricultural land, in respect of Which, the provisions of this section shall apply and in issuing any such notification the Central Government shall have regard to the following matters, that is to say, :

(a) the length of the period for which any such persons may have been in lawful possession of the property, (b) the difficulty of obtaining alternative accommodation;

(c) the availability of any other suitable residential accommodation for the use of the transferee; and (d) such other matters as may be prescribed.'

Under this Section a Notification has been published dated the 27th of September 1955 which reads as follows:

' In exercise of the powers conferred by Subjection (2) of section 29 of the Displaced Persons (Compensation and Rehabilitation Act, 1954 (44 of 1954), the Central Government hereby directs that the provisions of the said section shall apply--

(a) to the class of persons specified in Schedule I other than those who have obtained by fraud or misrepresentation multiple allotments or who, in the case of residential premises already own a residential property of their own;

(b) in respect of the class of properties described in Schedule II.

Schedule I.

1. Every person, against whom no arrears of rent in respect of the property in his lawful possession are outstanding at the date of the transfer of the property.

2. Every person, against whom any arrears Of rent in respect of the Property, in his lawful possession are outstanding at the date of the transfer of the property, but who had paid up such arrears within sixty days of such date.

3. Every displaced person having a verified claim against whom any arrears of rent in respect of the property in his lawful possession are outstanding at the date of the transfer of the property, but such arrears of rent do not exceed the amount of compensation payable to him.

4. Every displaced person having a verified claim against whom arrears of rent in respect of the property in his lawful possession exceeding the amount of compensation payable to him are outstanding at the date of the transfer of the Property, but who after adjustment of the compensation against such arrears pays up the balance of the arrears within sixty days of the date of such adjustment.

Schedule II.

Residential premises, shops and Industrial premises.

12. It is thus contended on behalf of the petitioner that since there is no allegation that he is owing any arrears of rent and the land was used by him either for industrial premises or for a shop, even if he is only maintaining a coal stall he cannot be ejected for at least two years.

13. Although this point has not been specifically raised in the petition it would seem that the petitioner would be entitled to remain in occupation for two years if the property had actually been transferred to Dr. Mathra Dass under the provisions of the Act before the order was passed against the petitioner, it does not however appear that this stage has yet been reached.

What in fact appears to have happened is thatthe grant of this land to Dr. Mathra Dass hasalready been decided upon but the Ministry andthe Department of Regional Settlement Commissioner have decided to take away the portion ofthe land which was surplus to the petitioner'srequirements as a preliminary step before making the transfer in favour of Dr. Mathra Dass,and therefore the provisions of Section 29 andthe Notification are not applicable, and could onlyhave become applicable if the transfer had beencompleted in favour of Dr. Mathra Dass beforea portion of petitioners allotment had been cancelled. Obviously the petitioner could take advantage of section 29 and the Notification on theground that it was merely intended to transferthe land taken away from him to Dr. Mathra Dassunder the provisions of the Act. I thus see noreason to interfere and dismiss the Writ Petitionbut leave the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //