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Harisingh Anand Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 307 of 1971, against judgment of Rajinder Sachar, J. reported in AIR 1972,
Judge
Reported inAIR1972Delhi216; 8(1972)DLT368
ActsDisplaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 30
AppellantHarisingh Anand
RespondentUnion of India and ors.
Appellant Advocate H.R. Dhawan and; C.B. Thanai, Advs
Respondent Advocate Madan Bhatia, Adv. and ; R.L. Tandon, amices Curiae
Cases ReferredWashdev Singh Biji v. Union of India
Excerpt:
.....with explanationn i is that if a property is in the occupation of two persons, one of whom holds a verified claim and the other has no such claim and the property can suitably partitioned, the settlement commissioner shall portion the property and transfer to each such person the portion in his occupation.; (ii) displaced persons (compensation and rehabilitation) rules (1955) - rule 30 proviso--words 'having regard to the amount of net/gross compensation payable to him'--meaning of (words and phrases).; where it was contended that the words 'having regard to the amount of net/gross compensation payable to him' occurring in proviso to rule 30 mean that even if the property can be suitably partitioned it can only be allotted to those persons whose net/gross compensation is nearest to the..........of a property which is in sole occupation of a displaced person but who does not hold a verified claim. rule 31 contemplates cases where acquired evacuee property is an allottable property in occupation of more than one person, none of whom holds a verified claim. rule 30 read without the explanationn would only cover the cases of persons who hold verified claims because the main part of the rule provides that the property shall be offered to the person whose net compensation is nearest to the value of the property. the proviso to rule 30 however makes an exception and provides that where such a property can suitably be partitioned the settlement commissioner shall partition the property and allot to each such person a portion of the property so partitioned having regard to the amount.....
Judgment:

Hardaya Hardy, C.J.

1. This appeal under Clause 10 of the Letters Patent arises out of a Judgment delivered by a learned Single Judge of this Court in Civil Writ No. 149-D of 1963, whereby the petition filed by the appellant who was petitioner in that case, was dismissed.

2. The question arising for determination in this appeal relates to Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 which will hereafter be called the Rules.

3. The contention urged by the appellant is that the rule has not been correctly interpreted by the learned Single Judge and that on a true construction of Rule 30 the appellant alone is entitled to the transfer of the entire property.

4. The facts lie in a small compass. Quarter No. 6/82 in Rajinder Nagar is a Government built property which was occupied by the appellant and respondent No. 5 Mohar Singh. It was transferred to respondent No. 5 and its cost was adjusted against a claim payable to Shri Gulab Singh father of respondent No.5. This order was set aside by the Deputy Chief Settlement Commissioner who remanded the case with a direction that further inquiry relating to the divisibility of the property may be made in the presence of both the parties.

5. By his order D/- 18.3.1960 the Managing Officer held that the transfer of portions in occupation of each allottee, i.e. the appellant and respondent No. 5 should be allowed. The appellant and respondent No. 5 appealed against that order but it was upheld by the Assistant Settlement Commissioner. Against that decision the appellant and respondent No.5 filed revision Petitions which were rejected by Shri C.P. Sapra exercising the powers of Chief Settlement Commissioner. He held that similar quarters in Rajinder Nagar having been declared divisible by the Ministry, the principle of divisibility also applied to the quarter in question.

6. As a result, a portion of the quarter measuring 34.1 square yards was transferred to the appellant on 1.6.1962 while the other portion measuring 51.8 square yards was transferred to respondent No. 5. The appellant's appeal and revision were dismissed and so was his application under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which will hereafter be referred to as the Act.

7. It is in these circumstances that the appellant filed a petition under Article 226 of the Constituting in which he raised several contentions, his principal contention being based on the meaning of Rule 30 of the Rules. The said petition having been dismissed, the appellant filed an appeal which was eventually referred to a Full Bench and is now before us.

8. Before we deal with this rule, it may be mentioned that Respondent No. 5 did not have a verified claim while the appellant had such a claim. The father of respondent No. 5 did have a verified claim but he was living at Ambala and was not in occupation of the quarter in question. The claim was verified in the name of the father of respondent No. 5 who was alive at all material times. In other words, respondent No.5 did not have a verified claim in his own name nor was he entitled to the benefit of that claim.

9. Rule 30 as it stood at the material time read as follows :-

'If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allottable property, the property shall be offered to the person whose net compensation is nearest to the value of the property and the other persons may be allotted such other acquired evacuee property which is allottable as may be available: Provided that where any such property can suitably be partitioned, the Settlement Commissioner shall partition the property and allot to each such person a portion of the property so partitioned having regard to the amount of net compensation payable to him. 'Explanation I. The provisions of the rule shall also apply where some of the person in occupation of any acquired evacuee property which is an allottable property hold verified claims and some do not hold such claims.'

Explanationn Ii (not material for the purpose of this case).

The meaning given to the said rule by the learned Single Judge is that whereas Rule 25 provides for the transfer of a property in the sole occupation of a person to whom compensation is to be paid. Rule 26 provides for the allotment of a property which is in sole occupation of a displaced person but who does not hold a verified claim. Rule 31 contemplates cases where acquired evacuee property is an allottable property in occupation of more than one person, none of whom holds a verified claim. Rule 30 read without the Explanationn would only cover the cases of persons who hold verified claims because the main part of the rule provides that the property shall be offered to the person whose net compensation is nearest to the value of the property. The proviso to Rule 30 however makes an exception and provides that where such a property can suitably be partitioned the Settlement Commissioner shall partition the property and allot to each such person a portion of the property so partitioned having regard to the amount of net compensation payable to him. The Explanationn I, however, makes the applicability of this rule even in a case where the property is in occupation of a person holding verified claim and another who does not hold such claim.

10. According to the learned Single Judge, without Explanationn I, Rule 30 only purports to give a right of claiming allotment of the portion of the property to the person who holds a verified claim. But if by the addition of Explanationn I to the Rule, it is still held to be applicable only to persons holding verified claims the whole purpose of adding Explanationn I will be defeated and the whole thing will be an exercise in futility.

11. Learned Single Judge further held that the whole purpose of adding Explanationn I to Rule 30 was to make it clear that it case an allottable property can be suitably partitioned the same shall be partitioned and allotment made to each such person even where a person in occupation of it holds a verified claim and another does not hold a verified claim.

12. The contention urged on behalf of the appellant is that this view of Rule 30 is not correct. The question is not rest integra but it has not arisen in the from in which it has arisen in the present case. The first case to which our attention was invited by Shri R.L. Tandon is a decision of Grover J. (as his Lordship then was) in Diwan Chand L. Thakur Dass v. Union of India . Discussing the scheme of Rule 30 his Lordship observed that where there are two competing displaced persons occupying a portion of the property which is equal in area, then the property has to be transferred to that person who has been in occupation of such portion for a longer period. Comparing the language used in served that the scheme of both these rules seems to be that the property should be transfer to one person even if there are more occupants than one except in those cases where the property can be suitably petitioned and the portions so partitioned pants under Rule 30.

13. In 1961 a Division Bench of the Punjab High Court in Ranjit Singh v. Union of India, 1962-64 Pun Lr 44 had to deal with Rule 30. Although the case decided by Grover, J. was not mentioned in the judgment of Falshaw, J. who spoke for the Bench, the learned Judgment observed

'I cannot see any objection in a case where there are three occupants of portions of a property which can only be conveniently sub-divided into two portions why the claims of two occupants cannot be met'.

It is implicit in the observations that the dictum of Grover, J. Did not find favor with the Bench.

14. In the same year Shamsher Bahadur J. had to deal with Rule 30 and Explanationn I in Dr. Khushi Ram v. Union of India. 1962-64 Pun Lr 755. The learned Judge held that Rule 30 deals only with those cases where there is plurality of verified claimants and Explanationn I will be attracted only where some of the persons in occupation of a property do not hold verified claims. Explanationn I cannot apply to a case where there is only one verified claimant. That was about the time when Rule 30 was amended, and the word 'gross' was substituted for the word 'net' and it was said that the amendment could not be given retrospective operation.

15. This case was considered by a Division Bench of that Court in Kewal Krishan v. Govt. of India . The same argument about the plural having been used in the Explanationn and the inapplicability of the rule in the case of a contest between a single claimant and a single non-claimant which had found favor with Shamsher Bahadur, J. in Dr. Khushi Ram's case, (1962) 64 Punj Lr 755 was presented before the Division Bench. Falshaw, C. J. With whom Harbans Singh, J. Concurred, observed that he did not consider that this view was correct. Kewal Krishnan's case did not deal with a divisible property nor did the question of the right of a non-claimant to allotment of a portion of divisible property arise in that case.

16. In Amar Singh Girdhari Lal v. Union of India, Shamsher Bahadur, J. referred to a decision of a Division Bench in 1962-64 Pun Lr 44 and observed that as the property was found to be divisible into two portions the claims of at least two out of three allottees could be met but when the learned Judge turned his attention to another decision of the Division Bench in Kewal Krishan's case, he said that contest between the claimant and non-claimant when they are both in occupation would be determined by the question of divisibility and divisibility alone. He drew strength for his argument by quoting from the judgment of the Division Bench in Kewal Krishan's case to the effect that

'it is not correct to say that Rule 30 of Displaced Persons (Compensation and Rehabilitation) Rules, does not apply where there is a contest between a single claimant and a single non-claimant. But the rule does not govern a case where the contests is between a claimant and a non-claimant.'

17. The next case which has a bearing on the question is again a Bench decision of the Punjab High Court in Atma Singh v. Chief Settlement Commr., 2nd (1963) 2 Punj 685 AIR 1964 Punj 87 Capoor, J. sitting with Prem Chand Pandit, J. while giving a meaning to Explanationn I to Rule 30, observed:-

'No doubt the Explanationn speaks of 'persons' in occupation who hold 'verified claim,' but according to Section 13 of the General Clauses Act, 1897 (Act No.10 of 1897), words in the singular shall include the plural, and vice versa and I can see no real difficulty in reading this Explanationn as also applying the provisions of the rule to a case in which only one person out of those in occupation of the property holds a verified claim, while the other occupant or occupants do not hold a verified claim. Even in such a case the occupant, who has a verified claim and is entitled to compensation, will have a better claim to the transfer of the property as against other occupant or occupants whose compensation is nil on account of not having a verified claim. The argument put forward by Mr. Keer would in fact mean that the rules do not make any provision at all for the payment of compensation by means of transfer of the property in a case in which there are two occupants in it, one of whom holds a verified claim and the other does not hold such a claim. It is not easy to conceived that such a lacuna would be left in the rules.'

In 1965 a case cam up before Falshaw, C.J. and Mehar Singh J. involving a similar question. This was the case of Maya Devi v. Inder Sain, (L.P.A.No.10-D of 1962 (Punj)). The learned Judge held that where a displaced person had exhausted his compensation claim by adjustment towards one property he became a non-claimant in regard to other property claimed by him under Rule 30 on the basis of his exhausted verified claim. In such a case Rule 30 did not apply. Referring to the decision of Kewal Krishan's case, it was said that that was a case in which Mela Ram's verified compensation claim had not been totally exhausted although Falshaw, C.J. did observe that Mela Ram had filed an affidavit to the effect that he was a non-claimant because his net compensation at that time was nil. But in Maya Devi's case, L.P.A. No.10-D of 1962 which was decided on 10-2-1965 Falshaw C.J. did not adhere to that view because if the matter had to be decided on the basis of gross compensation, Mela Ram was obviously a claimant and that is how the Deputy Secretary had looked at the matter when he had death with the case. There was thus a conflict between Maya Devi's case and Kewal Krishan's case because in the order of reference made on April 7, 1966, Falshaw C.J. pointed out that there was a review application in Kewal Krishan's case in which it was pointed out that the successful claimant had amounts still standing to his credit, however small. That review application was rejected on the ground that that was immaterial as the Bench had held that a person whose compensation had been exhausted was still a holder of verified claim.

18. This conflict thereforee came up before a Full Bench of that Court in Tirath Singh v. Union of India, . Mehar Singh C.J. who wrote the judgment of the court observed that if a person had exhausted his verified claim by the payment of compensation in one form or another, it could not be held that he still continued to hold what had in fact been fully satisfied. A person can only hold something substantially which has meaning and pursuant to which he can urge his rights, but where a verified claim has been satisfied the person who holds the verified claim, cannot put forth that claim and ask for conferment of any rights on him pursuant to such a satisfied claim. He thereforee said that in his option Maya Devi's case, L.P.A.No.10-D of 1962, D/-10-2-1965 (Punj) was correctly decided.

19. The plain meaning of Rule 30 read with Explanationn I thereforee is that if a property is in the occupation of two persons, one of whom holds a verified claim and the other has no such claim and the property can be suitably partitioned, the Settlement Commissioner shall partition the property and transfer to each such person the portion in his occupation. A reference to various rules in Chapter V (where Rule 30 is to be found) will show that though the person holding a verified claim is normally preferred at the time of allotment of the allottable property, the interest of persons who do not hold a verified claim but who are also displaced persons has also been kept in view. Rule 25 provides for the transfer of a property in the sole occupation of a person to whom compensation is to be paid while Rule 26 provides for the allotment of property which is in sole occupation of a displaced person but who does not hold a verified claim. Rule 31 contemplates cases where acquired evacuee property which is an allottable property is in occupation of more than one person, non of whom holds a verified claim, Rule 30 on the other hand read without Explanationn, would only cover the cases of persons who hold verified claims because the purview of Rule 30 provides that the property shall be offered to the person whose net-gross compensation is nearest to the value of the property. Proviso to Rule 30 however makes an exception and provides that where such property can suitably be partitioned, the Settlement Commissioner shall partition the property and allot to each such person a portion of the property so partitioned having regard to the amount of net/gross compensation payable to him. Explanationn I however extends the applicability of this rule to a case where property is in occupation of a person holding a verified claim and some others who do not hold any such claims.

20. Learned Single Judge thereforee appears to us be right when he observed:

'It seems clear to me that the whole purpose of adding Explanationn I to Rule 30 was to make it clear that in case an allottable property can be suitably partitioned the same shall be partitioned and allotment made to each such person even where a person in occupation of it holds a verified claim and another does not hold a verified claim.'

21. Counsel for the appellant, however, submitted that non-claimants have no right under Rule 30 and he laid stress on the words 'having regard to the amount of net/gross compensation payable to him' contained in the last line of the proviso to the rule. What the counsel canvassed was that the words mean that even if the property can be suitably partitioned it can only be allotted to those persons whose net/gross compensation is nearest to the value of the property meaning thereby that as there is no net/gross compensation payable to a non-claimant no portion of the property will be allotted to him because of these words.

22. In this connection, counsel relied upon a decision of the Judicial Committee of the Privy council in Ryots of Garbandho v. Zamindar of Parlakimedi, 70 Ind. App 129 at p.168 = AIR 1948 Pc 164. Their Lordships of the Privy Council while dealing with the meaning of the expression said.

'The view taken by the majority of the Collective Board of Revenue in making the order dated October 19, 1936, which is now complained of, is that the requirement to 'having regard to' the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration.'

These words in our opinion only mean that when the property can be suitably partitioned the portion of the property so partitioned will be allotted to a person having regard to the amount of net/gross compensation payable to him, that is to say, that at the time of allotting respective portions, the authorities will have regard to the amount of net/gross compensation payable to an applicant. But it does not mean that if the portion is occupied by a non-claimant he is not entitled to any allotment even if the property can be suitably partitioned. In the Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd., : AIR1963SC1128 their Lordships of the Supreme Court were considering this very expression in the light of the decision of the Privy Council and said:

'We do not thereforee think that that expression contemplates that a consumer of electricity can raise a dispute as against the Board on the footing that the Board did not pay the regard to the nature and geographical position of the supply and the purposes for which it was required.'

While allotting a partible property to a person having a verified claim the authorities do have to pay due regard to the compensation payable to that person. But that would not take away from the force of Explanationn I which expressly states that the provisions of the Rule shall also apply where some of the occupants hold verified claims and others do not hold such claim. The proviso and the rule regarding net/gross compensation have reference only in the context when the property is in the occupation of displaced persons having verified claims. The scope of Explanationn I however is to extend the rule to a case where the property is in occupation of a person who holds a verified claim and another who does not hold any such claim. The proviso and the Explanationn thereforee operate in different fields.

23. Counsel for the appellant next drew out attention to another decision of Shamsher Bahadur J. in Gurbux Singh v. Union of India, 1965-67 Pun Lr 215 and submitted that under Rule 25 the authorities are under a statutory duty to transfer the property to a verified claimant but it lies within their discretion to do so in favor of a person who is not holding a verified claim under Rule 26. He also stated that under Rule 30 the words used are 'the property shall be offered to the person.' The same words have also been used in Rule 41 which deals with Government built property in the occupation of a displaced person having a verified claim. But in Rule 42 which deals with Government residential property in occupation of a non-claimant the word used is 'may'. He thereforee invited our attention to a decision of I.D.Dua C.J.(as his Lordship then was) in Washdev Singh Biji v. Union of India, : AIR1970Delhi85 where the distinction between the use of the words 'shall' and 'may' in Rules 41 and 42 has been drawn.

24. Learned counsel also drew our attention to the preamble of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and submitted that the main object of the Act is to provide for payment of compensation to displaced persons and since Government built property is a part of the compensation pool the primary object of the statute and the rule is to give compensation to displaced persons with verified claims.

25. We do not think the counsel is right in his submission. The object of the statute is not merely to provide for payment of compensation but also for payment of rehabilitation grants to displaced persons and for matters connected therewith. Same is the object of the compensation pool. It is provided by Rule 43 that the provisions of Rule 25 to Rule 34 shall so far as may be, apply to transfer of any Government built property and Rule 42 is in pari materia with Rule 26. It is true that in the case of allottable properties under Rules 22 and 26 such properties are ordinarily to be allotted to displaced persons and are not to be sold. But it does not follow that displaced persons with verified claims are to be given preference and displaced persons with no claims are to be through out in all such cases.

26. The only advantage that persons with verified claims get is that the compensation for their claims is adjusted against the value of the property transferred to them. In the case of non-claimants, the value of paid for in cash or by Installments. There is no further distinction between the two cases. The emphasis, it seems to us, is on the initial allotment. Once the occupation of non-claimant is regularised, the subsequent transfer does not take a different course.

27. The result is that the appeal fails and is dismissed with costs.

28. An oral application for leave to appeal to the Supreme Court has been made by the counsel for the appellant. We do not see there is any ground for granting leave in this case. The application is dismissed.

29. Appeal and application dismissed.


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