Skip to content


Nihal Chand Vs. Government of India, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 532 of 1960
Judge
Reported inAIR1962P& H556
ActsConstitution of India - Article 226; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 4; Displaced Persons (Compensation and Rehabilitation) Rule, 1955 - Rule 19, 19-A and 19-B
AppellantNihal Chand
RespondentGovernment of India, New Delhi and ors.
Excerpt:
.....the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of..........referred to as the compensation act-and in this application he stated that he was the karta of the joint hindu family consisting of himself, his sons and his grandsons; and that the compensation should be assessed on the basis of rules 19, 19-a and 19-b of the displaced persons (compensation and rehabilitation) rules, 1955. his claim was negatived by the authorities under the compensation act on the ground that when he made his claim under the displaced persons (claims) act (no. 44 of 1950)-hereinafter referred to as the claims act-he had stated that he was the sole owner of the properties left in pakistan. in that application he never claims that those properties were joint hindu family properties.it is on the basis of this that the rehabilitation authorities refused to recognise the.....
Judgment:

D.K. Mahajan, J.

(1) This is a petition under Article 226 of the Constitution of India filed by Nihal Chand. This petition came up for hearing before Gosain, J,, in the first instance. In view of the importance of the question involved, the learned Judge directed that the matter be decided by a larger Bench and that is how the matter has been placed before us.

(2) Nihal Chand is a displaced person. He filed a claim in respect of properties left by him in Pakistan and the same were valued to the extent of Rs. 81,188/-. Thereafter he made an application for payment of the compensation under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act (No. 44 of 1954) hereinafter referred to as the Compensation Act-and in this application he stated that he was the karta of the joint Hindu family consisting of himself, his sons and his grandsons; and that the compensation should be assessed on the basis of Rules 19, 19-A and 19-B of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. His claim was negatived by the authorities under the Compensation Act on the ground that when he made his claim under the Displaced Persons (Claims) Act (No. 44 of 1950)-hereinafter referred to as the Claims Act-he had stated that he was the sole owner of the properties left in Pakistan. In that application he never claims that those properties were joint Hindu family properties.

It is on the basis of this that the Rehabilitation authorities refused to recognise the joint Hindu family of which he claimed to be the Karta as a unit for the purpose of compensation and merely treated Nihal Chand as individual owner and directed the compensation to be paid to him on that basis. This order was, on appeal, upheld by the Assistant Settlement Commissioner exercising the powers of the Chief Settlement Commissioner. It is against the order of the Chief Settlement Commissioner that the present petition is directed.

(3) The contention of the learned counsel for the petitioner is that the stage when a claim on the basis of joint Hindu family is to be made and adjudicated upon is when the claim to compensation is made under the Compensation Act and that under the Claims Act there was no question of the petitioner claiming the compensation on behalf of the joint Hindu family. The authorities under the Claims Act were only required to assess the value of the claim and not to determine whether the applicant was an owner or merely held interest in immovable property left in Pakistan, in lieu of which the claim was made. On the other hand, the learned counsel for the Department contends that in view of the clear statement of Nihal Chand when he made the claim under the Claims Act that he owned the properties absolutely, it is not open to him to shift his ground and claim compensation on the basis that the properties belonged to the joint Hindu family of which he was the karta.

(4) In order to consider the respective merits of these contentions, it will be necessary to briefly refer to the provisions of both the Claims Act and the Compensation Act for the purpose of coming to the conclusion as to at what stage the claim had to be made on the basis of the joint Hindu family status.

(5) So far as the Claims Act is concerned, it defines 'claim' as the assertion of a right to the ownership of, or to any interest in, any immovable property * * * * or such class of property * * *. This Act was enacted to provide, as its preamble will disclose, for the registration and verification of claims of displaced persons in respect of immovable property left in Pakistan. Section 5 provides for the registration of claims within such item and in such form as may be prescribed. Sub-section (2) of section 6 empowers the Claim Officer to hold a summary enquiry into the cases transferred to him, and, after taking such evidence and examining such documents, as may be necessary, and to pass such orders as he thinks fit in relation to the verification of the claim and the valuation of such claim. Section 16 provides for the power to make rules and under this section the Displaced Persons (Registration of Claims) Rules, 1950, were framed.

Under rules 2(c) 'form' means a form specified in Schedule, I, and 'schedule' means a schedule annexed to those rules. Rule 3 provides for the submission of a claim by a displaced person and requires that it shall be submitted in the appropriate form to the Registering Officer of the area where such displaced person ordinarily resides. In the schedule, there is the form prescribed for making claims under the Claims Act and clause (5) of that form is in these terms:--

'5. Nature and extent of applicant's interest in property.'

It is in pursuance of the entry against this clause as 'Wahid Malik', that it was sought to be urged before us that inasmuch as the applicant has stated in the form filed under the Claims Act that he was the sole owner of the property, therefore, he could not be given the benefit of Rules 19, 19-A and 19-B framed under the Compensation Act. It is argued that the claim, that the properties in fact are the joint Hindu family properties, has been made for the first time under the Compensation Act by the petitioner as the karta of the joint Hindu family, and therefore this claim cannot be enquired into. The declaration under the Claims Act must be taken to be final.

(6) How far this argument is correct will have to be seen from the combined reading of the two statutes. It may be mentioned that the object of the Claims Act was merely to register claims to property. Its scheme and purpose do not indicate that any enquiry was contemplated as to the status or the capacity of the person making the claim. All the had to be seem was whether the person making the claim owned the property or had some interest in it, and as to what was its value. It cannot be disputed that every member of a joint Hindu family is the owner of every bit of the joint family property. No member of the undivided Hindu joint family has a specific and distinct interest in that property. They are owners of each part of the property till there is partition. Therefore, the petitioner was not wrong in stating in the form that he owned the property as a Wahid Malik; that is, as an absolute owner. Moreover, at that time there was no requirement of the statute asking him to define his interest in the properties other than the interest that fell short of ownership. It is clear from the definition of 'claim' that assertion had to be of a right of the ownership of or to any interest in the property. 'Any interest in' is distinct from the right to ownership of that property. The petitioner was certainly the owner of the property and as such could get the claim registered. Merely because the petitioner was at the relevant time and even now is the Karta of the joint Hindu family, it cannot be said that he had merely an interest in the property. He is in every sense an owner of the property. The words 'any interest in' the property in the Claims Act, in my opinion, would embrace interests other than owner ship such as interest of a mortgagee or lessee, on some similar interest which falls short of the rights of full ownership of property.

(7) This brings me to the provisions of the Compensation Act. These provisions lead to the only inference, namely, that it was under this Act; that the nature of an owner's interest had to be ascertained. If the claim is found to be by a member of the joint Hindu family, he would be entitled to the benefit of Rules 19, 19-A and 19-B of the Rules under the Compensation Act. Section 2(e) defines 'verified claim' as meaning any claim registered under the Displaced Persons (Claims) Act, 1950, Section 4 requires all displaced persons having verified claims to make applications for the payment of compensation. The application, according to sub-section (2) has to be made in the prescribed form to the Settlement Officer having jurisdiction, within the prescribed period. Section 7(1) provides for the determination of the amount of compensation and is in these terms:--

'7. (1) On receipt of an application for payment of compensation together with the record of the case forwarded under section 5, the Settlement Commissioner shall make an enquiry in such manner as may be prescribed and having due regard to the prescribed scales of compensation, the nature of the verified claim and other circumstances of the case, shall ascertain the amount of compensation to which the applicant is entitled'.

It will be clear from this provision that the Settlement Commissioner is to make enquiry into the nature of the verified claim. It is here that for the first time it has to be ascertained whether the claim was made by a person as an individual or as a karta of the joint Hindu family or in any other capacity. Section 8(2) gives power to the Central Government to make rules and provides for, among other matters, the scales according to which the form and the manner in which compensation may be paid to different classes of displaced persons. Section 9 provides for payment of compensation in cases of disputes. This provision has to be read with Rule 83, which is in these terms:--

'83. All disputes between joint claimants or members of a joint Hindu family relating to the payment of any compensation under this Act shall be decided by the Regional Settlement Commissioner or the Settlement Officer, as the case may be, as provided in section 9 of the Act.'

Thus it will be clear that all disputes of joint claimants or members of a joint Hindu family have to be settled under section 9. If the claim made in the form under the Claims Act were the governing factor and final, then section 9 and Rule 83 of the Compensation Act would be meaningless, for if the authorities under the Compensation Act were to be governed by the entries in the form prescribed in Schedule I under the Claims Act, there would be no necessity for section 9 and Rule 83 of the Compensation Act, inasmuch as whatever is stated in the form referred to above would be final. Section 40(2) of the Compensation Act gives power to the Central Government to make rules under the Act. Sub-section (2)(c) provides for the scales according to which, the form and manner in which compensation may be paid to the displaced persons and sub-section (3) provides that all rules made under this section shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after they are made, and shall be subject to such modifications as Parliament may make during the said period of thirty days.

(8) Coming to the rules framed under the Compensation Act, it will be noticed that Rule 3 provides for an application for compensation to be made by a displaced person having a verified claim or, it he is dead, by his successor-in-interest. Rule 4 provides for the form of application for compensation and that form is specified in appendix I, and in the form clause (2) requires the applicant to state whether the applicant was a member of the joint Hindu family in Pakistan. If this form is compared with the form in which displaced persons were required to make claims under the Claims Act, it will be seen that there is no such requirement in that form. Clause (3) of the form takes the matter beyond controversy and is in these terms:--

'(3) Was this claim filed on behalf of the joint family as constituted in Pakistan? If not, state whether claim in respect of the joint properties has been separately filed, and state Index No. of such claim, state names and addresses of principal members of joint family.'

Rule 15 deals with the determination of net compensation payable to the applicant in respect of his verified claim. Under this rule, a summary has to be prepared in the form specified in appendix VII. In the form in appendix VII in the column, 'Assessed value of claims', applicant's share in joint family is to be specified. Rule 17 provides the manner of payment of compensation and also a different scale of payment so far as joint family is concerned. Rule 19 is a special provision for payment of compensation to joint families. I may mention at this state that this rule was substituted for the original rule by notification No. S. R. O. 1161 dated the 30th of April, 1956, in Gazette of India, Part II, section 3, No. 20 dated the 19th May, 1956. The original rule had an explanation to the following effect:--

'Explanation II.--For the purposes of this rule, in the case of every Hindu undivided family governed by the Mitakshara law a son shall be deemed to be entitled to claim partition of the coparcenary property against his father or grandfather, notwithstanding any custom to the contrary.'

and the explanation was deleted from the present rule which is in these terms:--

'19. (1) Where a claim relates to properties left by the members of an undivided Hindu family in west Pakistan (hereinafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this Rule.

(2) Where on the 26th of September, 1955, (hereinafter referred to as the relevant date) the joint family consisted of:--

(a) two or three members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share.

(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share.

(3) For the purpose of calculating the number of the members of a joint family under sub-rule (2), a person who on the relevant date:--

(a) was less than 18 year age,

(b) was a lineal descendent in the main line of another living member of joint Hindu family entitled to claim partition shall be excluded.

Provided that where a member of a joint family has died during the period commencing on the 14th August, 1957, and ending on the relevant data leaving behind on the relevant date all or any of the following heirs, namely:--

(a) a widow or widows;

(b) a son or sons (whatever the age of such son or sons) but no lineal ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family.

Explanation.--For the purposes of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th of August, 1947, and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after that date.

19-A--Notwithstanding anything contained in the foregoing rules the maximum limit of two lakhs of rupees specified in Appendix VIII, and the maximum limit of eight thousand rupees in respect of cash compensation specified in sub-rule (2) of Rule 17 shall apply in respect of each of the shares into which the claim has been divided in pursuance of rule 19.

19-B.--Compensation in the case of a joint family shall ordinarily be payable to the Karta of the family, but where the members of the joint family do not agree that the compensation payable to the family may be paid to the Karta of the family, such compensation shall be paid to each member of the family in accordance with his share specified in the assessment order, or where the share is not so specified, in accordance with such share as the Settlement Commissioner may, having regard to the principles of Hindu law, determine.'

The reason for the deletion of the explanation seems to be that the dead line to ascertain the joint Hindu family was fixed as the 26th of September, 1955. As would be clear from the above, Rule 19-B provides that the compensation would ordinarily be paid to the karta of the joint Hindu family. rule 85 gives the Settlement Commissioner power of a Civil Court in deciding any dispute under section 9 of the Compensation Act.

(9) Thus it will be seen from the combined reading of the provisions of both the Acts that for the first time the question on what basis the compensation is to be paid has been dealt with by the Compensation Act. At the time when the Claims Act was enforced, there was and could be no question of the claim being made on the basis other than the ownership or on the basis of an interest in property as distinct from ownership. In the case where a claim was made by owners, they were not required to specify their respective interests in that ownership. That requirement for the first time came about under the Compensation Act. Therefore, the argument that as the petitioner had stated that he was the sole owner of the properties under the Claims Act has no meaning or significance. It was at the time when the compensation was to be paid that the matter had to be settled as to the basis on which the claim was to be met and it is at this stage that it becomes germane to enquire whether the claim was being made on the basis of the joint Hindu family or on an individual basis.

That being so, we are clearly of the opinion that the authority under the Compensation Act was wrong in treating the application under the Claims Act as final. It was incumbent upon the authority to decide the application of the applicant under section 4 of the Compensation Act on the merits for it is in this application that the claim was made on the basis of the properties being joint Hindu family properties. Thus the authority concerned has to decide whether the petitioner formed a joint Hindu family with his sons and grandsons and whether the properties left in Pakistan were the joint Hindu family properties of this family. This has not been done in the case. We, accordingly, allow this petition and quash the order of the Chief Settlement Commissioner and remit the case to the Chief Settlement Commissioner with a direction that he should determine the matter on the merits after hearing the petitioner and in the light of the observations made above. There will be no order as to costs.

Mehar Singh, J.

(10) I agree.

(11) Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //