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Moti Ram Mehra and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 395-D of 1958
Judge
Reported inAIR1965P& H318
ActsCode of Criminal Procedure (CrPC) , 1908 - Sections 435; Displaced Persons (Compensation & Rehabilitation) Act, 1954 - Sections 24, 24(1) and 24(2)
AppellantMoti Ram Mehra and ors.
RespondentUnion of India and ors.
Excerpt:
.....in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal 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. - it is stated on behalf of the respondents that there was no separation amongst the petitioners and they together were allotted one separate share and enjoyed it jointly. (3) at this stage i would like to point out that the affidavit on behalf of the respondents has not been properly verified. kapur's contention is accepted, a good part of section 24 will be reduced to silence in violation of a known rule of interpretation of statutes that..........took it up and the matter will be decided by the competent authority exercising the powers of the chief settlement commissioner, after hearing the petitioners; and (e) the chief settlement commissioner or his delegated are competent to hear an decide the matter. (3) at this stage i would like to point out that the affidavit on behalf of the respondents has not been properly verified. the verification must state the particular paragraphs which are true to the deponent's knowledge and those which are true to his information. nothing much, however, turns on the verification in the present case since the only disputed point is regarding the constructions of s. 24 of the said act. the matter came up for hearing before shamsher bahadur j., on may 7 1964 and though the point regarding denial.....
Judgment:
ORDER

(1) By this writ petition the petitioners have challenged the legality of the order dated July 1957, calling upon the petitioners to refund Rs. 570 each on the ground that an overpayment of compensation had been made to them.

(2) Petitioners are three brothers, who claim that they along with their fourth brother owned some property in Lahore. In the year 1938 a suit for partition of their property was filed and a final decree for partition was passed by the Commercial Sub-Judge Lahore on November 14, 1941. It is alleged in the petition that the parties thereafter dealt with their properties separately. This allegations has been denied in the affidavit filed on behalf on the respondents. It is stated on behalf of the respondents that there was no separation amongst the petitioners and they together were allotted one separate share and enjoyed it jointly. By order dated 26-2-1951 the Claims Officer Simla verified the claim which had been filed by Motiram Mehra claiming Rs. 42,500 on account of 1/4th share belonging to him and his two brothers. The claim was verified at Rs. 32,500 and later increased by the Claims Commissioner Delhi to Rs. 3,700. It is further alleged in the petition that on 16/19-6-1953 the petitioner, Motiram filed an application for compensation under the Displaced Persons (compensation & Rehabilitation) Act (No. 44 of 1954) and among other things it was stated in column 3 that the claims was being made on behalf of self and two brothers.

The office of respondent No. 3 considered the compensation application of the petitioner and the then Settlement Officer wrote a note suggesting that the partition between the brothers he accepted. To the same effect was the note of the Assistant Settlement Commissioner dated 13-12-1954. The then Regional Settlement Commissioner agreed with the above two notes by his order, dated December 20, 1954. After finalisation by the Accounts Branch the Regional Settlement Commissioner, on December 31 pensation of Rs. 2,470 each. Petitioner No. 1 received were directed to file separate applications which they did and on 30-3-1955, both of them were paid compensation on the same scale as petitioner No. 1. The petitioners were paid final compensation of Rs. 1,504 each on 23-4-1957. Thereafter the petitioners were informed that they had Been overpaid and by letter, dated July 1957 respondent No. 3 called upon the petitioners to refund Rs. 570 each.

The petitioners raised objection to the authority of respondent No. 3 to review the order and claim refund. By letter, dated 17th August 1956, the Assistant Settlement Commissioner called upon the petitioners to produce documentary evidence support to the disruption of the joint Hindu family. In response to the said notice affidavit of Sita Ram Mehra dated September 11,1957 was filed. On December 27, 1957, the Regional Settlement Commissioner directed the petitioners to deposit Rs. 579 each and threatened coercive process for recovery thereof in case of default. The defence of the respondents as set out in the reply affidavit is that--

(a) The properties with respect to which the claim was filed were ancestral. Neither were any separate claims filed not was the verification of the claims done separately;

(b) The conduct of the petitioners in filing joint claims proves the joint states of three brothers as one joint Hindu family;

(c) Moti Ram petitioner filed compensation application under I (MA) priority category under which category only such of the claimants could file compensation application who or a member of whose family was in respect of the maintenance allowance;

(d) The respondents are prepared to ignore the order dated 11th December 1957 by Shri M. L. Puri Settlement Commissioner and undertake to proceed with the case from the stage at which the Settlement Commissioner took it up and the matter will be decided by the competent authority exercising the powers of the Chief Settlement Commissioner, after hearing the petitioners; and

(e) The Chief Settlement Commissioner or his delegated are competent to hear an decide the matter.

(3) At this stage I would like to point out that the affidavit on behalf of the respondents has not been properly verified. The verification must state the particular paragraphs which are true to the deponent's knowledge and those which are true to his information. Nothing much, however, turns on the verification in the present case since the only disputed point is regarding the constructions of S. 24 of the said Act. The matter came up for hearing before Shamsher Bahadur J., on May 7 1964 and though the point regarding denial of opportunity of be heard was conceded by the respondents Mr. D. K. Kapur the learned counsel for the petitioners anted to argue that the Settlement the authorities had no jurisdiction to all to deal with the matter, The case, was therefore, adjourned to enable the respondent to file further affidavit dealing with the other mates raised in the petition. That is how the matter came up before me for disposal.

(4)Mr. Kapur, appearing for the petitioners raised the following contentions:--

(a) The petitioners have been denied the opportunity of being heard:

(b) The Chief Settlement Commissioner cannot take action under S. 24(1) as he is competent to consider only the legality or propriety of an order passed by the various authorities mentioned therein. He is not according to Mr. Kapur competent to examine correctness of order:

(c) The expression 'without prejudice to the generality of the foregoing power under sub-sect (1)' means nothing more than that power conferred by sub-sect(1) of S. 24 are not affected by sub-s. (2) of S. 24, but S. 24(2) being a special provision reduced compensation can be ordered only when it has been obtained by means of fraud false representation or concealment of any material fact;

(d) No power can be exercised under S. 24(1) unless one takes cognizance under that provision; and

(e) The amount can be recovered as arrears of land revenue only if the order is passed under Section 24(2).

(5) MR. Parkash Narain the learned counsel for the respondents, does not dispute that proper opportunity and submits that the competent authority exercising the power of the Chief Settlement Commissioner will decide the mater afresh after hearing the petitioners. That leaves the questions whether such competent authority has jurisdiction to revise the amount of compensation and in what circumstances is the amount recoverable as arrears of land revenue. Mr. Kapur submits that the Legislature could not have intended to create two parallel authorities for canceling any allotment or amending the terms of any lease. Mr. Kapur refers in this connection to S. 19 and Rule 102 and submits that power to cancel a lease or allotment is given to managing officer or managing corporation under S. 19 and there is not reason why the same power should have been given to the Chief Settlement Commissioner under Section 24.

Intention of the Legislature is common, but slippery phrase, which popularly understood, may signify anything from intention expressed in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of law, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication. If Mr. Kapur's contention is accepted, a good part of section 24 will be reduced to silence in violation of a known rule of interpretation of statutes that such a sense is to be made upon the whole of the statute, as that no clause, sentence or word shall prove superfluous, void or even insignificant, if by another construction they may all be made useful and pertinent. Section 19 gives a general power to the managing officer or managing corporation to cancel any allotment or terminate any lease. It necessarily follows that cancellation or termination can be ordered even for the reasons and on the grounds set out in section 24(2) of the said Act.

The irresistible conclusion would, therefore, be that section 24 confers a general supervisory power to a superior authority to revise any order passed by an inferior authority mentioned therein. Sub-section (2) of section 24 confers powers on the Chief Settlement Commissioner to cancel any lease or allotment or to direct that no compensation or reduced compensation shall be paid if there has been fraud, false representation or concealment of a material fact. This power is without prejudice to the generality of the power conferred under sub-s. (1). The wide powers of superintendence can in no way be affected or prejudiced by section 24(2). My conclusion therefore, is that notwithstanding the provisions of sub-section (2) of section 24, the Chief Settlement Commissioner has the power to call for the record of any proceedings under the Act in which a Settlement Officer, an Assistant Settlement Officer has passed an order for the purpose of satisfying himself as to the legality and propriety of such order.

(6) I am also not impressed with the arguments of the learned counsel that the Chief Settlement Commissioner cannot examine the question of overpayment since his jurisdiction is limited to examining the legality or propriety of the order of a subordinate authority. Mr. Kapur draws my attention to section 435 Criminal Procedure Code and submits that whereas under section 435 jurisdiction has been conferred on the High Court Sessions Judge or District Magistrate to examine the correctness legality or propriety the legislature has made a conscious departure in section 24 and has not authorised the Chief Settlement Commissioner to examine the 'correctness' of the orders passed by the subordinate authorities. I am of the opinion that there is no force in the contention of Mr. Kapur. The power to examine the legality means the power to test whether the order is in accordance with law. The section also confers powers to examine the propriety has the jurisdiction to consider whether the order is correct in law or on facts. The omission to use the word 'correctness' does not in my view narrow down the scope of the section or the ambit of the power. I may in this connection point out that in sub-section (1) of terms 'correctness legality or propriety' are used while in sub-section (2) thereof the terms used are 'illegal or improper', The legislature could not in the context of this section have intended that sub-section (2) thereof was confined to a more limited sphere than sub-section (1). This shows that in substances correctness is computed of legality and propriety. I effect that which is legal and proper is correct.

(7) I am also not impressed by the argument of Mr. Kapur that the compensation can be reduced only when there is fraud false representation or concealment of material fact. Sub-section (2) is without prejudice to the generality of powers under sub-section (1). Sub-section (2), therefore does not affect or prejudice the power to examine the legality or propriety of any order passed by the authorities mentioned in sub-section (1). If, therefore, an order awarding compensation in snot legal or proper the under section 24(1) resulting in reduced compensation or no compensation being paid. What then is the purpose of enacting sub-section (2) of section 24 In my opinion it may have been intended to serve divers purposed (a) in case of fraud, false representation or no concealment of material fact, the Chief Settlement Commissioner may in disregard of what the claimant may be entitled to under the Act, order that he shall not be paid any compensation or shall be paid a reduced compensation or that his lease or allotment shall be cancelled, and (b) the Chief Settlement Commissioner may besides revising the order under sub-section (1), pass a final order himself after going through the entire material on the record, directing that either no compensation or reduced compensation be paid or allotment or lease by cancelled.

This conclusion finds support from the fact that the powers under sub-section (2) of section 24 and exercisable 'notwithstanding anything contained in this Act' which means that nothing in the Act is an impediment to the exercise of power invested under sub-section (2) of section 24. In view, however, of any conclusion on (a), the meaning and scope of section 24(1) and (b) that section 24(2) does not fetter the powers under sub-section (1) where under the errors including errors, arising by reason of fraud false representation or concealment of material fact, can be rectified it is not necessary to finally decide, in this case, whether in case fraud, false representation or concealment of material fact the Chief Settlement Commissioner may disregard the amount to which a claimant may be entitled and direct that no compensation or reduced compensation be paid to him.

(8) Mr. Parkash Narain submits that the materials on the record shows that the petitioners were wrongly treated as co-owners and paid compensation as such a consequently the Competent Authority could under section 24 correct the mistake. It is not necessary for me to go into the question of the nature of the illegality or the impropriety for that is a matter falling within the sphere of the jurisdiction of the Competent Authority under section 24. It is premature to decide the question as to which amount can be recovered as arrears of land revenue. This question may arise only after the matter has been disposed of by the Competent Authority under section 24. In view that I have taken of section 24, it is not necessary to go into any other question raised by Mr. kapur.

(9) Since no proper opportunity of being heard has been given to the petitioners the writ petition must be allowed and the order of respondent No. 3 for recovery of Rs. 570 from each of the petition quashed. It will, however, be open to the Competent Authority to take such fresh proceedings as may be available under the law. The petition is, therefore, allowed with costs.

(10) Petition allowed.


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