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Banwari Lal Vs. Financial Commissioner (Taxation), Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 2871 of 1972
Judge
Reported inAIR1981P& H74
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 33; Indian Soldiers Litigation Act; Constitution of India - Article 226
AppellantBanwari Lal
RespondentFinancial Commissioner (Taxation), Punjab and ors.
Cases ReferredEardley Dudley Baxter v. T. L. Bhagtiani.
Excerpt:
.....the reauction. (7) where an order or notice sent by post is returned undelivered, or where the settlement officer or other authority is satisfied that there are reason to believe that the order or notice cannot be delivered in he ordinary course, the settlement officer or other authority may direct that the order or notice may be served either. this provision of substituted service by publication or by affixture of copy of the notice or by beat of drum is in addition thereto if the settlement officer or the authority concerned is satisfied that there are reasons to believe that the order or notice cannot be delivered in the ordinary course. in eardley dudley baster's case (air 1961 bom 69), (suprs) in para 15 thereof it has been observed that 'even assuming that rule 117 were to..........has been given. (7) where an order or notice sent by post is returned undelivered, or where the settlement officer or other authority is satisfied that there are reason to believe that the order or notice cannot be delivered in he ordinary course, the settlement officer or other authority may direct that the order or notice may be served either. :- (a) by publication in one issue of a newspaper having circulation in the area in which the person concerned is known to have last resided or to have carried on business; or (b)(i) by affixture of a copy of the same on conspicuous part of the property in relation to which the order or notice has been made or issued; and (ii) by beat of drum at some place on or adjacent to such property.' 4. according to the learned counsel, the provision.....
Judgment:
ORDER

1. This writ petition is directed against the order of the Financial Commissioner, Punjab, delegated with the powers of the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter called as the Act) dated March 14, 1972, filed as Annexure 'E' with the writ petition.

2. An urban agricultural plot No. 1008 near Masjid Bhura Khan in Jullundur was purchased by the petitioner in auction held in July 1961 for Rs. 1725/-. Since the petitioner had a verified claim against the compensation admissible to him, earnest money as such was not paid but he executed an indemnity bond in lieu thereof. Later on only a sum of Rs. 743.56/- had been adjusted against his verified claim and for recovery of the balance amount of Rs. 981.44/- a registered notice was issued to him by the Managing Officer on May 21, 1965. The said notice was, however, received back undelivered and it was reported thereon that the whereabouts of the petitioner were not known. The Managing Officer ultimately vide his order dated June 17, 1965, copy of which is Annexure 'B', cancelled the sale in favour of the petitioner and the property was again disposed of by auction on November, 8, 1966 and was purchased by Mehar Singh respondent No. 5. The said bid was confirmed in his favour and the sale certificate was issued on May 16, 1967. The petitioner feeling aggrieved by the action f the Settlement Authorities in disposing of the property which had already been purchased by him filed an appeal before the Authorised Settlement Commissioner which was rejected by the latter vide his order dated April 18, 1969, Annexure 'C' with the writ petition, on the ground that the property had gone out of the compensation pool. The revision petition filed by the petitioner against the said order of the Authorised Settlement Commissioner was rejected by the Chief Settlement Commissioner vide his order dated June 29, 1971(Annexure 'D') on the ground that the petitioner was unable to explain the delay caused by him in filing the appeal when the sale in his favour had been set aside by the Managing Officer on June 17, 1965. A further revision under Section 33 of the Act was filed before the Central Government which was dismissed by the impugned order, dated March 14, 1972, Annexure 'E'. This petition was dismissed on the grounds (1) that the provision of the Indian Soldiers Litigation Act had not been applied to the Tribunal functioning under the provisions of the Act, (ii) that the auction was held in July, 1961, and the petitioner was duty bound to make enquiries from the settlement authorities as to the balance amount payable by him, (iii) that the notice sent to him on the last known address was received back undelivered because he did not make adequate arrangement for the delivery of post to him before leaving for Poona and (iv) that the property had already been disposed of in auction and had been disposed of in auction and had been purchased by Mehar Singh Respondent No. 5. Under these circumstance the learned Financial Commissioner did not like to interfere in the matter after a lapse of four years or so after the reauction. Feeling aggrieved against this order the present writ petition has been filed by the petitioner.

3. Mr. H. S. Wasu, Learned counsel for the Petitioner contended that sub-Rule (13) of the Rule 90 of the Rules under the Act contemplates that if the Regional Settlement Commissioner on scrutiny of the compensation application of the auction-purchaser finds that a further sum is due to make up the purchase price, he shall send an intimation to that effect to the auction purchase calling upon him to deposit the balance in cash within fifteen days of the receipt of such intimation.He further referred to sub-rule (5) and (7) of Rule 117 which read as under:--

'(5) Where an order or notice has to be served on a person who has made an application for payment of compensation, it shall be despatched to him at the address supplied by him in the application for compensation unless an intimation of a change of address has been given.

(7) Where an order or notice sent by post is returned undelivered, or where the Settlement officer or other authority is satisfied that there are reason to believe that the order or notice cannot be delivered in he ordinary course, the Settlement Officer or other authority may direct that the order or notice may be served either. :-

(a) By publication in one issue of a newspaper having circulation in the area in which the person concerned is known to have last resided or to have carried on business; or

(b)(i) by affixture of a copy of the same on conspicuous part of the property in relation to which the order or notice has been made or issued; and

(ii) by beat of drum at some place on or adjacent to such property.'

4. According to the learned counsel, the provision of sub-Rule (7) have not been complied with and since it is mandatory its non-compliance will make the order of cancellation of the sale against the petitioner as non est and void ab initio. He further contended that in sub-rule (7) the word used is 'may' but in the context it means shall and thus the Settlement Officer was under legal obligation to comply with the same and the non-compliance of the same makes the whole proceedings illegal and the order a nullity. In support of this contention he referred to AIR 1977 SC 1494, (Chet Singh v. State of Punjab) 1965 Cur LJ 673(Punj), (Subedar Umrao Singh v. Chief Settlement Commr.) AIR 1958 Punj 63, (Parduman Singh, v. State of Punjab), and 1964 Cur LJ 128: (AIR 1964 Punj 249)(FB), (Deep Chand v. Addl. Director, Consolidation of Holdings.).

5. His next contention is that when there is no service on the petitioner as there is no service on the petitioner as required under the Rules, the question of limitation in filing the appeal does not arise and, therefore, his appeal could not be dismissed as time barred.

6. It was also contended that though the provision of Indian Soldiers, Litigation Act as such may not be applicable to the Tribunal but the principles do apply and therefore, the petitioner should have been given the benefit thereof.

7. On the other hand, Mr. J. N. Kaushal appearing on behalf of respondent No. 5 contended that the provision of sub-rule (7) are only directory and not mandatory. At the most the non-compliance of that provision may be said to be an irregularity, but under no circumstances it could be said that the order of cancellation was non est. In support of his contention, he referred to AIR 1961 Bom 69, Eardley Dudley Baxter v. T. L. Bhagtiani.

8. He further contended that his client who has purchased the property in public auction should not suffer for the lapse, if any, on the part of the rehabilitation authorities. Since the rights of the third person have intervened, this Court in the exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India should not interfere in the impugned order. The order could be non est only if it was passed in violation of the principles of natural justice. Since in the present case there is no such violation, the order passed cannot be treated as non est. In any case, he contended that the matter has been fully discussed by the Central Government under S. 33 of the Act and this Court should not interfere in that order in writ jurisdiction.

9. I have heard the learned counsel for the parties at a great lengt. The main question to be decided in this writ petition is whether the order of cancellation passed by the Managing Officer is non est as contended by the learned counsel for the petitioner. In other words, the petitioner can only succeed if the order of cancellation was non est or void ab initio having been passed in utter disregard of the statutory rules or against the principles of natural justice. I am of the considered view that the provision of sub-rule (7) of Rule 117 are directory in nature and are not mandatory the non-compliance of which will make the order non est. Sub-rule (1) of Rule 117 provides that every order of notice made or issued under the Act or the rules shall be served by registered post acknowledgment due. Admittedly, this was complied with. Notice was sent to the petitioner for the deposit of the balance amount on the address supplied by him in the application for compensation. It is the case of the petitioner that any intimation of a change of address was given by him to the authorities concerned. On that notice, it was reported that the whereabouts of the petitioner were not known. Under these circumstance the compliance of sub-rule (7) of Rule 117, if made, would not have made any difference. If would have been a mere formality. Moreover, this is a provision which authorises the Settlement Officer to serve the person concerned in the manner other than by registered post acknowledgement due as contemplated under sub-rule (1) of Rule 117 which is a mandatory one. This provision of substituted service by publication or by affixture of copy of the notice or by beat of drum is in addition thereto if the Settlement Officer or the authority concerned is satisfied that there are reasons to believe that the order or notice cannot be delivered in the ordinary course. It does not mean that the notice must be served in this manner. In Eardley Dudley Baster's case (AIR 1961 Bom 69), (suprs) in para 15 thereof it has been observed that 'even assuming that Rule 117 were to apply, the rule is clearly of a directory or procedural nature. It is no doubt true that this rule does contain mandatory language, for it provides that every order or notice made or issued under the Act or these rules shall be served by registered post acknowledgement due and further more that 'ordinarily a notice of at least fifteen days shall be given'. But merely because a provisions of law or rule contains mandatory language, it does not necessarily mean that such a rule or condition therein contained becomes a condition precedent to the acquisition of jurisdiction in taking action.'

10. In my case, it is sub-rule (1) of Rule 117 which can be said to be mandatory whereas sub-rule (7) is merely directory which is said to have not been complied with. Since it is so held then the non-compliance of subrule (7) is a mere irregularity and the order of cancellation (Annexure 'B') could not be said to be non est.

11. Apart from that, after the property was re-auctioned, and respondent No. 5 had purchased it in public auction, his rights cannot be interfered with unless it could held that he was a party to his irregularity, if any, on the part of the rehabilitation authorities. In the absence of any such allegation and the property having gone out of the compensation pool after the sale in favour of Mehar Singh respondent, this Court would not interfere in the matter in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

12. For the reasons recorded above, this petition fails and is dismissed with costs.

13. Petition dismissed.


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