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The Union of India and ors. Vs. AmIn Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 105 of 1979
Judge
Reported inAIR1982P& H419
ActsDisplaced Persons (Compensation and Rehabilitation) Act - Sections 14, 24, 33, 36 and 42; East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act - Sections 36
AppellantThe Union of India and ors.
RespondentAmIn Chand
Cases ReferredAct. In Chahat Khan v. State of Punjab
Excerpt:
.....the petitioners have failed to produce any account books in support of the claim. the authorised chief settlement commissioner allowed full claim on this account as well. ..the observations made by their lordships in the context of section 24 of the said act must apply mutatis mutandis to section 33 as well. i am, therefore, clearly of the view that neither the scheme of the act nor the scheme of the revisional provision supports the contention of the learned counsel for the petitioners that some time limit should be placed on the exercise of the revisional power conferred on the state government by s. state of punjab, 68 pun lr 239 :(air 1966 punj 111) (fb), it was held that in the context of section 36 of the east punjab holdings (consolidation and prevention of fragmentation) act,..........of the assistant settlement commissioner preferred an appeal which was decided by the authorised chief settlement commissioner vide order dated may 17, 1958. the authorised chief settlement commissioner remanded the case of a fresh decision. the assistant settlement commissioner again decided the case and vide order dated nov. 23, 1960, allowed rupees 9,905/12/- as cost of repairs and disallowed the remaining claim. the respondent again feeling dissatisfied with the order of the assistant settlement commissioner preferred an appeal which was decided by another authorised chief settlement commissioner vide order dated nov. 21, 1961. the authorised chief settlement commissioner accepted the appeal and allowed full claim of the respondent, that is, rs. 27,034/- /6 as cost of repairs and.....
Judgment:

J.M. Tandon, J.

1. H. Gulam Mohi-ud-Din was the owner of the site of the cinema house known as Railto Cinema, Amritsar. He leased it out to one Nanak Chand for a period of 15 years under the registered lease-deed dated Nov. 13, 1934. Nanak Chand transferred his leasehold rights to Messrs. Amin Chand Tara Chand respondent. H. Gulam Mohi-ud-Din constructed the cinema buildings over the site and accepted the respondent as a lessee under the terms and conditions contained in a subsequent lease-deed dt. May 7, 1936. On the migration of H. Gulam Mohi-ud-Din to Pakistan, the rights in the cinema vested in the Custodian as evacuee property. The respondent remained in occupation of the cinema premises till Dec. 31, 1957. According to the respondent, the cinema building suffered damage on account of floods during the lease period and it was subjected to extensive repairs at their cost under intimation to the Custodian authorities. In 1954, the respondent lodged a claim with the District Rent and Managing Officer, Amritsar, claiming Rs. 27,034/- /6 having been spent on the repairs of the cinema building from time to time after the partition of the country and a sum of Rs. 6,687/9/- as cost of replacement of old electric wiring etc. The claim of the respondent was looked into by the Assistant Settlement Commissioner, Jullundur, who, vide his order dated Sept 6, 1957, found that the respondent was entitled to the reimbursement of Rs. 7,481/- on account of repairs. The claim for reimbursement for replacement of old electric wiring etc. was rejected. The respondent feeling dissatisfied with the order of the Assistant Settlement Commissioner preferred an appeal which was decided by the Authorised Chief Settlement Commissioner vide order dated May 17, 1958. The Authorised Chief Settlement Commissioner remanded the case of a fresh decision. The Assistant Settlement Commissioner again decided the case and vide order dated Nov. 23, 1960, allowed Rupees 9,905/12/- as cost of repairs and disallowed the remaining claim. The respondent again feeling dissatisfied with the order of the Assistant Settlement Commissioner preferred an appeal which was decided by another Authorised Chief Settlement Commissioner vide order dated Nov. 21, 1961. The Authorised Chief Settlement Commissioner accepted the appeal and allowed full claim of the respondent, that is, Rs. 27,034/- /6 as cost of repairs and Rs. 6,687/9/- as cost of replacement of old electric wiring. The respondent was not made payment in terms of the order of the Authorised Chief Settlement Commissioner dated Nov. 21, 1961 in spite of repeated demands. The Joint Chief Settlement Commissioner with the delegated powers of Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, (hereinafter the Act) vide order dated July 10, 1967, set aside the order of the Authorised Chief Settlement Commissioner dated Nov. 21, 1961 after hearing the respondent and further remanded the case to the Authorised Chief Settlement Commissioner for a fresh decision. The operative part of the order of the Joint Chief Settlement Commissioner reads :--

'Before allowing the entire claim of the respondents, it was essential for the learned Authorised Chief, Settlement Commissioner to have dealt with each item which had been disallowed by the officers below and to pass orders in respects of it. To allow the claim of the respondents in entirety without reference to the terms of the lease which governed the rights of the parties was not in accordance with law and therefore, the impugned order cannot stand and is hereby set aside. The proceedings are remitted (to the Authorised Chief Settlement Commissioner) who will scrutinise each item and satisfy himself that the amount was such which was permissible under the terms of the lease. For this purpose due opportunity be afforded to the respondents to establish their contentions.'

2. The respondent assailed the order of the Joint Chief Settlement Commissioner dated July 10, 1967, in Civil Writ Petn, No. 2143 of 1967, which has been accepted vide order dated April 11, 1979. It is against this order that the present Letters Patent Appeal is directed.

3. Railto Cinema, Amritsar, was leased out to Messrs, Amin Chand Tara Chand vide lease-deed dated May 27, 1936. The respondent remained in occupation of the cinema till Dec. 31, 1957. The relevant terms of the lease-deed dated May 27, 1936, are as below :--

(1) Annual repairs and whitewashing were to be done by the landlord;

(2) The lessees were not entitled to remove the material or ask for any compensation for any improvements in the building or for any new construction within its surroundings made by them. On the contrary, the landlord was to become owner of the improvements without any compensation.

4. The respondent claimed Rs. 27,034/- /6 as expenses incurred on the repairs of the cinema building from time to time after partition of the country and Rs. 6,687/9/- as cost of replacement of old electric wiring etc. The Assistant Settlement Commissioner, vide order dated Sept. 6, 1957, found that the respondent was entitled to Rs. 7,481/- on account of repairs and the claim for reimbursement of the cost of replacement of old electric wiring etc., was rejected. In an appeal against the order of the Assistant Settlement Commissioner, the Authorised Chief Settlement Commissioner vide order dated May 17, 1958 remanded the case to the Assistant Settlement Commissioner for fresh decision regarding the claim of the respondent for reimbursement of the cost of repairs and replacement of old electric wiring etc. The Assistant Settlement Commissioner in his order dated Nov. 23, 1960, observed that the following points (relevant for the purpose of this appeal) arose for decision out of the remand order :--

(1) What are the items of work carried out by the respondent and for which items of work, is he entitled to reimbursement ?

(2) Has the respondent executed any replacement of the electric wiring and if so of what amount Is the respondent entitled to reimbursement from the Government for such replacement

5. The Assistant Settlement Commissioner discussed these two points in detail and held as under:--

Point No. 1.

'The petitioners (now respondents) have in all claimed Rs. 27,034/- /6 as cost of repairs alleged to have been carried out to the cinema building from time to time after the partition of the country. These repairs were verified on the spot by the Civil Engineers who estimated the actual expenditure at Rs. 21,356/-. As according to the terms of the lease, the landlord was responsible for annual repairs and whitewashing etc., only to the building, it was necessary to find out the amounts actually spent on these items. The District Rent and Managing Officer, Amritsar, reported that Rs. 7, 823/4/- were spent on annual repairs etc., and Rs. 15,532/12/- were spent on addition/improvements to the building. These repairs were subsequently verified at the spot by the Assistant Valuation Officer, Amritsar, who estimated the cost of repairs as Rs. 7,481/12/- and that of additions/improvements at Rs. 13,827/6/-...............

It is unfortunate that the petitioners did not produce their account-books alleging that they were burnt in a fire which broke out in the year 1950. The petitioners have been carrying out repairs to the premises of their own accord and without any permission or authority from the Department............

The petitioners were running the Theatre in a building which was constructed by the landlord for them. If the petitioners made any additions or alterations to suit their own requirements, the landlord cannot be held liable for their cost.........................

I have carefully gone through the objections put in by the petitioners and feel that they are also entitled to reimbursement of the amount of Rs. 957/8/- and Rs. 1,125/- (Total Rs. 2,082/8/-) which were spent on the repairs of pavements around the cinema hall which were necessitated on account of the damage caused by the incessant rains of 1950. The repairs would be covered by the term 'repairs-special/ordinary' and can by no stretch of imagination be termed as additions/alterations.

I, therefore, hold that the petitioners are entitled to the reimbursement of Rs. 7,823/4/- as recommended by the District Rent and Managing Officer, Amritsar, and Rupees 2,082/8/- sepnt on repairs on repairs on pavements around the cinema hail (Total Rs. 9,905/12/-). The rest of their claim is disallowed.

Point No. 2. The petitioners have claimed reimbursement of expenditure of Rs. 6,687/9/- alleged to have been incurred on old electric wiring etc. Shri Amin Chand stated that a part of electric wiring was replaced by the petitioners from time to time. He, however, failed to produce any voucher or accounts in support of the expenditure. According to the terms of the lease, the landlord had undertaken to supply wiring for the building of the cinema house only and the rest of the material was to be fitted by the petitioners at their own cost. In view of the clear stipulation in the lease-deed and the fact that the petitioners have failed to produce any account books in support of the claim. I hold that the petitioners did not execute any replacement of the electric wiring and they are not entitled to any reimbursement from the Government on this account.'

6. The respondent feeling dissatisfied with the order of the Assistant Settlement Commissioner dated Nov. 23, 1960, preferred an appeal which was accepted by another Authorised Chief Settlement Commissioner vide order dated Nov. 21, 1961. The Authorised Chief Settlement Commissioner had held:--

'The appellants (now respondent) claim in all Rs. 27,034/- /6 as cost of repairs alleged to have been carried out to the cinema from time to time after the partition of the country. The officer below has allowed Rs. 9,905/12/- and disallowed the rest on the ground that no formal sanction for the repairs had been obtained by the appellants from the department and further no vouchers and receipts were produced and further under the terms of lease-deed these repairs could not be carried out. The Authorised Deputy Custodian who was managing the property at that time vide his order dated April 26, 1954, observed as follows:--

'As regards major repairs, the lease deed is silent, but ordinarily it is the landlord who should keep his property in proper and usable conditions. It appears that major and abnormal repairs were necessitated on account of heavy floods and heavy rains and if the lessees spent some amount from their own pockets to restore the property to its original condition or to save it from further damage and deterioration, I think they are entitled both in law and equity to be compensated for the same.

This was an implied sanction........... The term of the lease-deed says that any addition or alteration if made by the tenant will become the property of the landlord without paying any compensation thereof. This means that the tenant could carry the repairs and these, if carried out would become the part and parcel of the property. The Department as such in equity is liable to pay for them. Moreover, these repairs were required to be done because some damages had been done due to floods.................. These items were duly verified by the Department through their Engineer and were found to be correct and as such the amount was to be reimbursed to the appellants and the Department took upon them to pay the amount....................................

There is thus nothing to disentitle the appellants from the amount spent by them on repairs. I, therefore, hold that they are entitled for the reimbursement of the amount.

As regards point No. 2, the appellants have not been allowed this amount as they were to carry out the electric wiring at their own cost. This is no ground for not allowing this amount. When it is admitted that they have replaced the electric wiring, the appellants are liable for reimbursement. I, therefore, hold that they should be refunded this amount also.'

According to the terms of the lease-deed the respondent was not entitled to be reimbursed to the expenditure incurred for making additions and improvements in the cinema building. The respondent was, however, entitled to the expenditure incurred for effecting special repairs. It had been found on verification by the District Rent and Managing Officer that Rs. 7,823/4/- had been spent on annual repairs etc. and Rupees 15,532/12/- were spent on addition/improvements to the cinema building. The Assistant Settlement Commissioner allowed Rupees 9,905/12/- to the respondent on account of expenses incurred on repairs. The Authorised Chief Settlement Commissioner in his order dated Nov. 21, 1961 did not record a finding that the total amount of Rs. 27,034/- /6 claimed by the respondent had been spent on repairs and that no part thereof had been spent for making additions and improvements to the cinema building. The Assistant Settlement Commissioner did not allow reimbursement of Rs. 6,687/9/- claimed to have been spent for replacement of old electric wiring by holding that no evidence had been adduced to support this claim. The Authorised Chief Settlement Commissioner allowed full claim on this account as well. It is under these circumstances that the Joint Chief Settlement Commissioner exercising the powers of the Central Government under Section 33 of the said Act passed the order dated July 10, 1967, the operative part of which has already been reproduced above.

7. The learned single Judge in the impugned order has held that the main ground for reversing the order of the Authorised Chief Settlement Commissioner dated Nov. 21, 1961, was that he should have dealt with each item which had been disallowed by the officers below and to pass orders in respect thereof. It is hardly a ground to invoke jurisdiction under Section 33 of the said Act. The order passed by the Joint Chief Settlement Commissioner in exercise of powers under Section 33 of the Act is arbitrary.

8. In view of the position explained above, it is difficult to agree with the finding of the learned single Judge that the order passed by the Joint Chief Settlement Commissioner is arbitrary. In fact, the order passed by the Authorised Chief Settlement Commissioner dated Nov. 21, 1961, suffers from such infirmity inasmuch as the total claim made by the respondent was allowed without recording a finding whether it had been incurred for effecting repairs or for making additions/alterations. It may be repeated that the expenses incurred by the respondent on making additions/improvements to the cinema building were not to be reimbursed. The omission on the part of the Authorised Chief Settlement Commissioner was thus highlighted and the case was remanded by the Joint Chief Settlement Commissioner for fresh decision.

9. The learned single Judge has held that the Joint Chief Settlement Commissioner did not record any reason for explaining the delay in taking action under Section 33 of the Act and to say that the Central Government was competent to exercise this power and to interfere with the erroneous order passed by the Authorised Chief Settlement Commissioner is hardly and explanation to be accepted. Section 33 of the Act reads :--

'33. Certain residuary powers of Central Government :-- The Central Government may at any time call for the record of any proceeding under this Act and may pass order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder.'

10. The significant words used in this section are 'at any time.' In Smt. Balwant Kaur v. Chief Settlement Commissioner (Lands), Punjab, 65 Pun LR 1141 : (AIR 1964 Punj 33) (FB) in which the interpretation of Section 24 of the Act was involved it was held (at p. 59 of AIR) :--

'S. 24 of the Act says that the Chief Settlement Commissioner may at any time call for record of any proceeding under this Act.................................... and may pass such order in relation thereto as he thinks fit.' What is the meaning of the words 'at any time' occurring in the section, that is to say, within what time limit can the Chief Settlement Commissioner exercise his revisional power either suo motu or on the application of an aggrieved party Rule 104 lays down that a petitioner for revision under the Act shall be presented within the same period as a memorandum of appeal and Rule 103 says that a memorandum of appeal shall be presented within 30 days of the date of the order appealed against. Thus it will be seen that an aggrieved party has to file a revision within 30 days and no period has been prescribed for a suo motu revision by the Chief Settlement Commissioner. Ordinarily, a petitioner will have to file his revision within 30 days unless of course there were special circumstances which prevented him from doing so. The invariable rule in such case is that the aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. Where there has been a great unexplained delay or latches in filing the revision, the Chief Settlement Commissioner will naturally refuse to interfere. It is difficult to lay down any hard and fast rule in this connection. It will depend on the facts of each particular case as to whether there are grounds for entertaining the revision after the period of limitation prescribed in the rules. However, the Chief Settlement Commissioner suo motu can interfere with the orders of his subordinates and no limitation is prescribed for that either in the rules or in the statute. But it is under-stood that the he would interfere within a reasonable time depending on the circumstances of each case. It is assumed that he should exercise his discretion in a reasonable manner and not arbitrarily. As I have already said, in this case also no hard and fast rule can be laid down...............'

The observations made by their Lordships in the context of Section 24 of the said Act must apply mutatis mutandis to Section 33 as well. No time limit is prescribed for initiating suo motu proceedings under S. 33 of the said Act.

11. In Purshotam Lal Dhawan v. Diwan Chaman Lal, AIR 1961 SC 1371, their Lordships examined the implications of the words 'at any time' in Section 27 of the Administration of Evacuee Property Act. This section reads :--

'27. Powers of Revision of Custodian-General,--(1) The Custodian General may, at any time, either on his own motion or on application made to him in this behalf call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as be thinks fit : Provided that the Custodian-General shall not pass an order under the sub-section prejudicial to any person without giving him a reasonable opportunity of being heard........................'

12. Their Lordships held that S. 27 of the Administration of Evacuee Property Act confers a plenary power of revision on the Custodian-General and it empowers him to exercise his revisional powers either suo motu or on application made in that behalf at any time. The phrase 'at any time' indicates that the power of the Custodian-General is uncontrolled by any time factor, but only by the scope of the Act within which he functions.

13. In Nar Singh Mansoor Singh v. State, AIR 1967 Punj 111 (FB), it was held that the words 'at any time' used in S. 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act render the power conferred on the State Government everlasting, interminable or indefinite in duration exercisable without any limitation in point of time. Their Lordships observed (at p. 115) :--

'It will thus appear that no limitation has been placed on the exercise of the power of revision. Whether that power has been conferred by a Statute which is not of a temporary duration or by a statute which is of a temporary duration, the power of revision can be exercised by the appropriate authority without limitation as to time. But it is axiomatic to say that the power cannot be exercised for an ulterior purpose or arbitrarily and if it is so exercised, the exercise of the same can be struck down by a Court in appropriate proceedings. I am, therefore, clearly of the view that neither the scheme of the Act nor the scheme of the revisional provision supports the contention of the learned counsel for the petitioners that some time limit should be placed on the exercise of the revisional power conferred on the State Government by S. 42 of the Act.'

It was held in Bhikan v. Punjab State, 65 Pun LR 368 : (AIR 1963 Punj 255) (FB) that the expression 'at any time' as used in Section 36 of the Act calls for some limitation in them in point of time. They do not mean that the Settlement Officer can revoke or vary the scheme even after the purpose of consolidating the holdings is finally accomplished under the Act. In Chahat Khan v. State of Punjab, 68 Pun LR 239 : (AIR 1966 Punj 111) (FB), it was held that in the context of Section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, the setting in which it appears in Chapter III of the Act, and having regard to the object and purpose of the statute and the consolidation of holdings, there is material which goes to show clearly the limitation placed on the expression 'at any time' in this section as being terminable with the coming to end on the jurisdiction of the Settlement Officer (Consolidation) in the estate. The consolidation of holdings comes to an end and completion by the coming into force of the scheme. That is the stage when both the Consolidation Officer and the Settlement Officer (Consolidation) cease to have jurisdiction in the estate, for by then, the purpose and object of the notification under S. 14 of the Act has served itself and reached the end.

14. It is obvious that the observations made in the context of Section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act in Bhikan's case (supra) and Chahat Khan's case (supra) cannot be aptly made applicable to the words 'at any time' used in Section 33 of the Act. The case under consideration is clearly covered by the ratio of Smt. Balwant Kaur's case (supra), Purshotam Lal Dhawan's case (supra) and Nar Singh Mansoor Singh's case (supra).

15. The order passed by the joint Chief Settlement Commissioner under Section 33 is just. The Authorised Chief Settlement Commissioner passed the order on Nov. 21, 1961, and the Joint Chief Settlement Commissioner exercising the power under S. 33 issued notice to the respondent on April 27, 1967. Keeping in view the circumstances of the case it is difficult to hold that the discretion exercised by the Joint Chief Settlement Commissioner in the order under S. 33 of the Act is arbitrary or is liable to be struck down on account of unreasonable delay. The impugned order of the learned single Judge, therefore, cannot be sustained.

16. In view of discussion above, the Letters Patent Appeal is accepted, the impugned order of the learned single of Judge is set aside and C. W. P. No. 2143 of 1967 is dismissed with no order as to costs.

S.S. Sandhawalia, C.J.

17. I agree.

18. Appeal allowed.


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