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Dharam Chand Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1061 of 1965
Judge
Reported inAIR1972P& H291
ActsDisplaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rules 90 and 92; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 33; Constitution of India - Articles 226 and 227
AppellantDharam Chand
RespondentThe Union of India and ors.
Cases ReferredHazara Singh v. Union of India
Excerpt:
.....will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the petition has been contested by the rehabilitation authorities as well as by prem chand respondent no. union of india, 1962-64 pun lr 44 as well as in a subsequent judgment of tek chand, j......possibly be held to be a substantial construction for purposes of entitling a person to have the plot transferred to him at its reserved price under instructions of the kind referred to by the state. even if, therefore, the instructions were enforceable at law, the petitioner could not succeed.5. the only other submission made by mr. jain is that the orders of the central government are liable to be set aside as the petitioner's application under section 33 of the act was dismissed on a new ground without affording the petitioner any opportunity of hearing. i am unable to accept even this argument. the joint secretary to the central government held that the petitioner could not claim the transfer of the plot as of right particularly when the same had been auctioned. this was no new.....
Judgment:
ORDER

1. The acquired evacuee plot in dispute was put to public auction by the Rehabilitation Authorities on April 17, 1964 and purchased by respondent No. 5 who gave the highest bid of Rupees 1,250/- for the same. One day before the auction Dharam Chand petitioner paid a sum of Rs.46/- to the Rehabilitation Authorities on account of compensation for use and occupation of the said plot for the period commencing from December 15, 1947, and ending on March 31, 1963 at the rate of 0.25 P. per month. The petitioner, who claims to be a dhobi, and therefore, to be a member of a backward class as notified by a Punjab State Government on July 11, 1958 (Annexure 'A'), preferred an appeal against the auction of the plot and claimed that he was entitled to the transfer of the plot to himself at its reserved price as he had put up some construction on it before January 1, 1963 and that he had also paid rent for use and occupation of the same up to that date, and even for a few months thereafter. The Appellate Authority by its order dated July 16, 1964 remanded the case to the Tahsildar (Sales) for fresh inquiry and report regarding the construction alleged to have been made on the plot by the petitioner. The Tahsildar (Sales) inspected the plot on October 5, 1964, and reported that the construction on the plot was of a temporary nature comprised of a 'chhappar' standing on wooden stays. It was further noted by the Tahsildar that the petitioner had provided a door to that 'chhappar' only recently. The petitioner's appeal was thereafter heard by the Assistant Settlement Commissioner in exercise of the powers of Settlement Commissioner delegated to him. The Appellate Authority, however, dismissed the appeal by its order dated November 18, 1964 (Annexure 'D'), on the ground that the construction raised by the petitioner (which according to the auction-purchaser, who appeared before the Appellate Authority, had been raised one day before the auction overnight) did not entitle the petitioner to the transfer of the plot at its reserved price. Shri J. M. Tandon, the Chief Settlement Commissioner, Punjab, by his order, dated January 20, 1965 (Annexure 'E') dismissed the petition filed by the petitioner before him for revision of the order of the Appellate Authority. He held that the acquired evacuee plot having been put to auction under Rule 90 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter called the 1955 Rules), the sale could not be set aside merely to facilitate the petitioner to purchase the plot at its reserved price except under Rule 92 of the 1955 Rules on the finding of any material irregularity or fraud in the conduct of the sale. The learned Chief Settlement Commissioner also took notice of the fact that even otherwise the Assistant Settlement Commissioner (the Appellate Authority) had held that the petitioner had no case for the purchase of the plot at its reserved price.

2. The petitioner then went up to the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954) (hereinafter referred to as the Act). A copy of that petition is Annexure 'F' to the writ petition. Without calling the petitioner and without hearing him, the Joint Secretary to the Government of India rejected the said petition by his order, dated March 11, 1965 (Annexure 'G') on the ground that the petitioner could not claim the transfer of the plot in question as of right, particularly when the same had been auctioned. It was in the above mentioned circumstances that the present petition was filed under Articles 226 and 227 of the Constitution for quashing the above mentioned orders of the Rehabilitation Authorities, and for directing those authorities to transfer the plot in question to the petitioner at its reserved price.

3. By its order, dated April 26, 1965 the Motion Bench stayed the dispossession of the petitioner during the pendency of the writ petition. The petition has been contested by the Rehabilitation Authorities as well as by Prem Chand respondent No. 5, the auction-purchaser of the plot. In the return filed on behalf of respondents 1 to 4, it has been stated that according to the record received from the Regional Settlement Commissioner, Jullundur, the plot had been shown to be in the occupation of one Shiv Charan Dyal son of Gudar Mal, Goldsmith. It has also been reiterated that the petitioner had not raised any substantial construction on the plot, and that the construction raised by him was of a temporary nature comprised of a chhappar standing on wooden stays. It has been emphasized that since the petitioner had no legal right to the transfer of the plot at its reserved price, the plot had been rightly disposed of by public auction. It has been denied that any instructions had been issued under R. 87 of the 1955 Rules by the Chief Settlement Commissioner which might entitled the petitioner to purchase the plot at its reserved price. It has been mentioned that it was in pursuance of the executive instructions that the State Rehabilitation Department had sold some urban evacuee plots to their occupants at the reserved price on which the latter had raised substantial construction before January 1, 1963. It has also been stated that since no case for setting aside the sale had been made out under Rule 92 of the 1955 Rules, the Chief Settlement Commissioner was not bound to set aside the sale. Prem Chand respondent No. 5 has even denied the factum of the petitioner being a dhobi or a member of a notified backward class. The rest of the averments in his written statement are on the same lines as in the return of the Rehabilitation Authorities.

4. Mr. Naresh Chander Jain, the learned counsel for the petitioner has contended that the petitioner's claim for the transfer of the plot to him at its reserved price as a member of the backward class has not been adjudicated at all at any state inasmuch as no finding has been recorded about the petitioner being or not being a member of the backward class. He has also contended that a new defence has now been made out about there having been no such instructions which could entitle the petitioner to the transfer of the plot to him at its reserved price though the said ground did not form the basis of any of the impugned orders. I am unable to find any force in either of these two contentions. The petitioner himself has not been able to point out any law under which he can claim the plot in question at its reserved price. The stand of the official respondents is that there were executive instructions under which plots in possession of the members of backward classes could be the transferred to them at their reserved price if such persons could prove that they had put up any substantial construction on their respective plots before January 1, 1963. Executive instructions cannot ordinarily be enforced in a writ petition. It has been held by a Division Bench of this Court (Dulat and Harbans Singh, JJ.) in Gulab Singh v. Chief Settlement Commr. Punjab, Jullundur, 1964-66 Pun LR 953=(AIR 1964 Punj 515) that the departmental instructions have no force of law. I need not dilate any further on this point for the simple reason that the petitioner not having referred to or even relied upon any specific executive instructions those pleaded by the Rehabilitation Authorities did not entitle the petitioner to the transfer of the plot to him on the findings of fact recorded by the authorities. It was not necessary to go into other questions when it was found that the petitioner had not put up any substantial construction on the plot at any time. I am myself inclined to hold that a mere thatched roof supported by wooden stays cannot possibly be held to be a substantial construction for purposes of entitling a person to have the plot transferred to him at its reserved price under instructions of the kind referred to by the State. Even if, therefore, the instructions were enforceable at law, the petitioner could not succeed.

5. The only other submission made by Mr. Jain is that the orders of the Central Government are liable to be set aside as the petitioner's application under Section 33 of the Act was dismissed on a new ground without affording the petitioner any opportunity of hearing. I am unable to accept even this argument. The Joint Secretary to the Central Government held that the petitioner could not claim the transfer of the plot as of right particularly when the same had been auctioned. This was no new ground but merely taking notice of the factual situation as it existed at the relevant time. It is not disputed that the powers of the Central Government under Section 33 of the Act are plenary and the Government is not bound to interfere in every case. It was not necessary for the competent authority under Section 33 of the Act to give a hearing to the petitioner before dismissing his petition. This has already been authoritatively settled by a Division Bench of this Court in Ranjit Singh v. Union of India, 1962-64 Pun LR 44 as well as in a subsequent judgment of Tek Chand, J. in Hazara Singh v. Union of India, 1969-71 Pun LR (SN) 5. Though various other points have been mentioned in the writ petition none of those has been pressed at the hearing of the petition.

6. No other ground having been argued before me, the writ petition fails and is accordingly dismissed though without any order as to costs.

7. Writ petition dismissed.


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