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Lajya Ram Kapur Vs. Union of India (Uoi) Through Secy. Ministry of Rehabilitation, Govt. of India, New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 4 of 1963
Judge
Reported inAIR1963P& H405
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 - Order 41, Rule 33; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 27 and 36; East Punjab Displaced Persons (Land Resettlement) Act, 1949 - Sections 9
AppellantLajya Ram Kapur
RespondentUnion of India (Uoi) Through Secy. Ministry of Rehabilitation, Govt. of India, New Delhi and anr.
Appellant Advocate R.S. Narula,; T.S. Munjral and; F.C. Mittal, Advs.
Respondent Advocate D.S. Nehra, Adv.
DispositionAppeal allowed
Cases ReferredSecretary of State v. Mask and Co.
Excerpt:
.....227 of the constitution. - , air 1940 pc 105 may well be reproduced :the exclusion of the jurisdiction of the civil courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. the contents of the various affidavits put in this court after the appeal had been filed leave an unsavoury impression in my mind that the policy decision which the counsel for the state professed to accept is not being implemented and there might well be left a reasonable apprehension in the mind of the plaintiff that when so definite and clear-cut a decision 13 sought to be frustrated for one reason or another, he is not unjustified in making an inference of mala fides. 15. i would, therefore, hold that the decision of the court below in denying to..........the officers of the government of india. ......and shri b. s. grewal, i. c. s., secretary, to the punjab government, rehabilitation department, in connection with the sale of surplus rural evacuee properties to the punjab government in a 'package deal' and that the case of shri lajya ram kapur, plaintiff, was discussed at that meeting. in paragraph 3 of this affidavit, it is stated that 'in accordance with the said decision, the central government admitted that the land in possession of shri laijya kant kapur was a part of the package deal and its disposal was to be made by the punjab government'.in paragraph 4, it is mentioned that this decision 'supersedes all the previous decisions taken by the government of india in the case of shri lajya ram kapur, the petitioner'.lastly, the.....
Judgment:

Shamsher Bahadur, J.

1. This appeal arises out of the order of the Subordinate Judge, Karnal returning the plaint of the plaintiff-appellant for presentation to the competent authority, it having been found that the civil Court Has no jurisdiction to try the suit.

2. The plaintiff Lajya Ram Kapur brought this suit on 19th of December, 1951, for the issue of a mandatory injunction to the Union of India and the Punjab State, respondents 1 and 2, respectively, directing them to sell the land measuring 3751 bighas and 7 biswas in village Sithana of Tensfi Panipat in accordance with the policy decision embodied in a memorandum issued by the Department of Rehabilitation of the Punjab State on 10th of March, 1951.

3. The facts on which there is no serious dispute are that the plaintiff came to acquire lease-hold rights in the land which originally belonged to Muslim evacuees. This land was, in the first instance, leased to the predecessors-in-interest of the plaintiff for a period of 15 years in November, 1946. This lease would have normally expired under the 'deeming' clause embodied in Section 9 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949, on 25th of July, 1949, whereby all leases made by an evacuee in favour of a person other than an evacuee were to terminate on 25th of July, 1949. An exception was, now-ever, made in this section that a lease could have been exempted from the operation of the section by an order of the Custodian. It is not disputed that the plaintiff obtained an order of the Custodian on 25th of March, 1953, and thereby the lease was to expire with the Kharif harvest of 1961, as originally stipulated.

4. The request of the plaintiff that he may be allowed to purchase this land was turned down by the second respondent on 20th of February, 1961. Subsequently there was a change in policy and it was laid down in the circular letter of 10th of March, 1961, addressed to all the Deputy commissioners in the Punjab issued by the Department of Rehabilitation that those persons who had acquired lease hold rights from the Muslim owners before the partition and had been allowed to continue their leases under Section 9 of the East Punjab Displaced Persons (Land Resettlement) Act, were to be allowed facilities to purchase evacuee lands in their possession. It was decided as stated in this letter that in order to avoid any hardship to such lessees, such lands may be sold to them provided they are in continuous possession of the land from Rabi, 1947, onwards' on certain specified conditions. In the amended plaint which was filed on 11th of April, 1962, it was averred that the rejection on 20th February, 1961 by the second respondent of the plaintiff's request to purchase the land in his possession ran counter to the policy and was in fact induced by mala fide motives without even giving him an opportunity of hearing. It was specifically pleaded that the order of rejection was not passed under any of the provisions of the Displaced persons (Compensation and Rehabilitation) Act, 1954. As the second respondent was not minded to implement its own policy decision, the plaintiff felt obliged to bring the present suit, no other remedy being available to him and the civil Court alone having the competent jurisdiction to grant the relief asked for.

5. In the written statement of the Punjab State filedby the Chief Settlement Commissioner, it was admitted thatthe plaintiff had been in possession as a lessee but onlyfrom 22nd of June, 1951. The rejection of the plaintiffsrequest was justified, the lease being only for 15 years uptoKharif, 1961. It was denied that the impugned order was inany way in contravention of the circular letter of 10th orMarch, 1961. The allegations of mala fides were simply Iraversed and it was asserted that the order of 20th of February,1961, was passed after a consideration of the documentsWhich were annexed to the plaintiffs petition of 3rd orAugust, 1960. The second respondent further pleaded thatthe civil Court had no jurisdiction to entertain the suit underSection 36 of the Displaced Persons (Compensation andRehabilitation) Act.

6. On the pleadings, the following preliminary issue was framed by the learned trial Judge:--

'Whether the civil Court has jurisdiction to try this suit?'

While the respondents led no evidence, five documents (Exhibits P-1 to P-5) were produced on behalf of the plaintiff. Being of the view that Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act bar the jurisdiction of the Court the plaint has been returned to the plaintiff for presentation to the competent authority. Aggrieved by the order, the plaintiff has coma in appeal to this Court.

7. After the appeal had been admitted by a Bench of this Court, numerous applications have been filed by the parties. According to the plaintiff his right of possession which had been preserved by the interim orders passed by this Court had been disturbed while allegations have been made on behalf of the second-respondent that the plaintiff had been making attempts to acquire land which had passed from his possession. It is not necessary to refer to these proceedings except to some statements made on behalf of the second respondent as they have an important bearing on the question of jurisdiction.

Reference may be made, in the first instance, to an affidavit tiled by Shri Manohar Lal Chopra, Camp Assistant of the Rehabilitation Department, Chandigarh, on 1st of March, 1963. It is mentioned in this affidavit that on 8th of January, 1963, a meeting was held at New Delhi between the officers of the Government of India. ......and Shri B. S. Grewal, I. C. S., Secretary, to the Punjab Government, Rehabilitation Department, in connection with the sale of surplus rural evacuee properties to the Punjab Government in a 'Package Deal' and that the case of shri Lajya Ram Kapur, plaintiff, was discussed at that meeting. In paragraph 3 of this affidavit, it is stated that

'in accordance with the said decision, the Central Government admitted that the land in possession of Shri Laijya Kant Kapur was a part of the Package Deal and its disposal was to be made by the Punjab Government'.

In paragraph 4, it is mentioned that this decision

'supersedes all the previous decisions taken by the Government of India in the case of Shri Lajya Ram Kapur, the petitioner'.

Lastly, the property in suit is stated to be 'transferred in the name of the Punjab Government' who is to decide about the question of its disposal. In an annexure filed with this affidavit, the following decision reached by the Secretaries of the Government of India and Punjab Government in the meeting of 8th of January, 1963 is reproduced :

'Shri Lajya Ram Kapurs case was also discussed aS this case was not finalized before 1-4-1961, the land will come under the package deal. It was, however, suggested to Shri Grewal that as Shri Kapur has been in possession of these lands for a long time and has spent a lot of money on its improvement, he may, if possible, be permitted to retain as much land as is permissible under the Punjab Security of Land Tenures Act.'

8. That the property in dispute had been purchased by the Punjab Government from the Government of India is also admitted in paragraph 2 of the application made on behalf of the Punjab Government on 19th of March, 1963, in R. A. No. 15 of 1963.

9. I mention these matters to show that the central Government has no connection at all with the land which is the subject-matter of dispute and it has been conceded that the rights have been taken over by the second-respondent. There can be no manner of doubt that in deciding an appeal circumstances as they exist at the time of its disposal have to be taken into account. Reference may be made to a decision of the Federal Court in Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 F. C. 5, in which chief Justice Gwyer cited with approval the following passage of Chief Justice in Patterson v. State of Alabama, (1934) 294 US 600, at p. 607 :

'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.'

this principle was affirmed by their Lordships of the supreme Court in Surinder Kumar v. Gian Chand, (S) AIR 1957 SC 875, in which Mr. Justice Kapur, speaking for the Court, quoted with approval the authority of the Federal Court.

10. I now proceed to consider the statutory provisions which in the opinion of the Court below excluded the jurisdiction of the civil Court. Sections 27 and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, are to this effect;

'27. Save as otherwise provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and snail not he called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding.

36. Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction to entertain any sun or proceeding in respect of any matter which the central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted, by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.'

11. So far as the provisions of Section 27 are concerned, finality attaches only to an order which, is passed by an officer or authority under this Act. The rejection of the plaintiff's request to acquire the property in dispute by purchase has not been passed by any officer or authority under the provisions of the Displaced persons (Compensation and Rehabilitation) Act. In fact what is sought to be enforced in this suit is a policy decision contained in the circular letter of 10th of March, 1961. I express no opinion whether the decision could be enforced by way of suit but that is a matter to be gone into By the appropriate Court. Besides, the liability of the state Government to abide by the decision has never been defined. Indeed, Mr. Nehra went so far to say that it is the pendency of this appeal and the intransigence of the plaintiff himself which is preventing the State Government from enforcing the policy decision, Be that as it may, the bar of Section 27 cannot be pressed into service to oust the jurisdiction of the civil Court.

12. Equally futile, in my opinion, is the argument with regard to Section 36. It cannot be disputed that the civil Court is precluded from entertaining only such matters in which 'The Central Government or any officer or authority appointed under this Act' is empowered under the Act to determine. Much has been said about the property in dispute forming part of the compensation pool as defended Section 14 of the Act and such properly vesting only in the Central Government. The property in suit may at one time have vested in the compensation pool but the statements to which I have adverted make it clear that it now vests in the State Government by what has been caned a 'package deal'. In one statement it is even mentioned that the properties, including the land in dispute, have been purchased by the State Government. When the property has ceased to form part of the compensation pool of the Central Government, it passes my comprehension now the jurisdiction of the civil Court can be ousted under Section 36 of the Act

13. Even assuming for the sake of argument that the Central Government is still the administering authority in respect of the property in suit, it has not been shown that the impugned order has been passed in respect of a matter 'which has to be determined by any authority under this Act.' In this connection I may refer to a decision of a Division Bench of this Court consisting of the Chief Justice and Graver J. in Balwant Singh v. union of India, R. F. A. No. 65-D of 1958, D/- 19-3-1962 (Punj). In this case the plaint of Balwant Singh who filed a suit for specific performance against the Union of India was returned on the ground that the civil Court had no jurisdiction. The dispute related to a plot which the plaintiff claimed to have purchased in an auction held under the orders of the Managing Officer, appointed under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, by way of specific performance and the union of India was sought to be restrained from confirming the sale in favour of another person to whom it was subsequently sold. It was held by the Court that the real question whether the plaintiff has right to enforce a contract by means of an order for specific performance was not a matter which the Managing Officer was competent to decide under the provisions of the Act, even assuming that the land formed part of the compensation pool, and consequently the jurisdiction of the civil Court remained unimpaired.

On a parity of reasoning it has been urged, and in my opinion rightly, that the redress by way of injunction cannot be granted by any officer under the Act and for this reason alone the civil Court and it alone has jurisdiction to try the suit. The principle as stated by their Lordships of the Privy Council in Secretary of State v. Mask and Co., AIR 1940 PC 105 may well be reproduced :

'The exclusion of the jurisdiction of the Civil courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the Statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

14. It would be apposite in this connection to make mention of Clauses (iii), (iv) and (v) in paragraph 11 of the amended plaint in which assertions of mala fide and denial of opportunity have been expressly made. If indeed there has been a departure from the principles of natural justice or the concerned authority is shown to have acted mala fide, the jurisdiction of the civil Courts irrespective of other conditions will at once be attracted.

Apart from a bare denial of these assertions in the written statement, there is nothing on record which might point to the conclusion that the plaintiff was in 'act afforded an opportunity of hearing before his application for the purchase of land was rejected. The contents of the various affidavits put in this Court after the appeal had been filed leave an unsavoury impression in my mind that the policy decision which the counsel for the State professed to accept is not being implemented and there might well be left a reasonable apprehension in the mind of the plaintiff that when so definite and clear-cut a decision 13 sought to be frustrated for one reason or another, he is not unjustified in making an inference of mala fides.

The position taken up in the affidavits filed on behalf of the State is that the plaintiff would be transferee of land which does not exceed the ceiling at the appropriate price and the objective of the plaintiff in bringing the suit is no 'different. Despite the seemingly identical objectives of the parties concerned there can be no denying that there is some element of irritation which has been Introduced In the conflict which makes it difficult to avoid the conclusion that the apprehension of the plaintiff with regard to the mala fide intentions of the authorities concerned Is not unjustified.

15. I would, therefore, hold that the decision of the Court below in denying to itself the jurisdiction to hear the suit is clearly erroneous. I would accordingly allow this appeal and direct the trial Judge to proceed with the suit In accordance with law. The costs of this appeal will abide the event. The parties have been directed to appear before the trial Court on 1-5-1963.


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