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Partap Singh Bhatia Vs. Kartar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 110 of 1969
Judge
Reported inAIR1976Delhi202
ActsCivil Procidure Code, 1908 - Sections 100; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 24(1), 24(2), 24(4) and 25
AppellantPartap Singh Bhatia
RespondentKartar Singh and ors.
Appellant Advocate G.S. Vohra, Adv
Respondent Advocate Raj Kishan and ; Vijay Kishan, Advs.
Cases ReferredPunjab v. Jafran Begum
Excerpt:
.....and dismissed cross objection and modified decree of court - second appeal under section 100 - chief settlement commissioner had full jurisdiction to cancel lease or allotment on being satisfied with regard to statutes - lower appellate court found documents fabricated - order of chief settlement commissioner ordering transfer of property to respondent comes into operation and rest with controversy between parties - had order of chief settlement commissioner not been passed different considerations would have arisen - no legality attached to jurisdiction to pass impugned order - appeal dismissed. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother...........property in dispute may be transferred to the appellant. eventually, on 21st february, 1957, the chief settlement commissioner (by ex. pw-10/5) accepted the recommendation of the additional regional settlement commissioner and relied upon the alleged compromise between the appellant and the respondent (ex. pw-6/1 and ex, pw6/12). the property was consequently agreed to be transferred to the appellant and on 4th june, 1957 an agreement was entered into between the appellant and the rehabilitation authorities. this resulted in issuance of a notice of allotment to the respondent who maintains that till then he knew nothing about the proposed transfer of the property in dispute to the appellant. faced with this situation, the respondent on 7th september, 1957 applied to the chief.....
Judgment:

1. This second appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff and is directed against the judgment and decree of the lower appellate court dated 8th January, 1969, by which the court has allowed the appeal and dismissed the cross-objections and modifying the decree of the court of first instance dated 30th July, 1966, finally dismissed the suit of the plaintiff.

2. The dispute between the parties relates to allotment of property bearing No. XVI/5404, Arya Samaj Road, New Delhi, the ground floor of which was originally in possession of the defendant respondent while the first floor was in possession of the plaintiff appellant. The respondent's father owned another property adjoining the one in dispute in which the appellant's father was a tenant. The appellant has alleged that on or about 22nd January, 1957, an arrangement had been arrived at between the appellant and the respondent to the effect that the property in dispute be allotted to the appellant and the respondent had taken some consideration for the same, The occasion for the arrangement was that the value of the property in dispute was about Rs. 9,381 and the verified claim held by the respondent was higher than the claim held by the appellant and so under statutory rules framed under the Displaced Persons (Compensation and Rehabilitation) Act, the respondent had a preferential right to obtain conveyance of the property which was evacuee property. On 5th October, 1956 the Additional Regional Settlement Commissioner made a recommendation that the property in dispute may be transferred to the appellant. Eventually, on 21st February, 1957, the Chief Settlement Commissioner (by Ex. PW-10/5) accepted the recommendation of the Additional Regional Settlement Commissioner and relied upon the alleged compromise between the appellant and the respondent (Ex. PW-6/1 and Ex, PW6/12). The property was consequently agreed to be transferred to the appellant and on 4th June, 1957 an agreement was entered into between the appellant and the Rehabilitation Authorities. This resulted in issuance of a notice of allotment to the respondent who maintains that till then he knew nothing about the proposed transfer of the property in dispute to the appellant. Faced with this situation, the respondent on 7th September, 1957 applied to the Chief Settlement Commissioner (vide Ex. PW-10/12) to recall his previous order. Notice of the application was issued to the appellant and eventually after hearing the parties the Chief Settlement Commissioner by order dated 2nd January, 1958 (Ex. PW-10/16) recalled his previous order and cancelled the allotment of the property in dispute to the appellant and ordered its transfer to the respondent. He, however, imposed a condition that his order was subject to the determination by a civil court with regard to genuineness of the documents of compromise relied upon by the appellant. A revision against the said order preferred by the appellant before the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 failed and was dismissed by order dated 25th March. 1958. Under the circumstances, the appellant instituted the suit giving rise to this appeal on 3rd April, 1958. In the plaint, the appellant before me recited the material facts mentioned above and relied documents of compromise (Ex. PW- 6/1 and Ex. PW-6/12) and claimed relief consequent upon the said declaration. He also claimed that the order of the Chief Settlement Commissioner recalling his previous order was void and without jurisdiction and so was the order of the Central Government refusing to interfere. The public authorities did not contest the suit and the main contest was led on behalf of the respondent before me.

3. At this stage, it may be mentioned that there was one other person by name Kartar Singh, who was in occupation of part of the property in dispute. He was son of Jeevan Singh and is alleged to have surrendered his portion to the appellant. I am mentioning this fact to avoid his confusion with the respondent whose name is also Kartar Singh, but whose father's name is Sher Singh. Kartar Singh also Jeevan Singh is not at all material for the purposes of the present appeal and no reference would be made to him in this judgment.

4. On the pleadings of the parties, the following issues were framed.

'l. Whether the jurisdiction of the civil court is barred as alleged in the two written statements?

2. Whether the suit is properly valued for purposes of court-fee and jurisdiction?

3. Whether the suit is maintainable in its present form, i.e. for declaration alone?

4. Whether the order dated 2-1-1958 passed by the Chief Settlement Commissioner, New Delhi is null and void, illegal and without jurisdiction as alleged? Opp

5. Whether the order of the Central Government under Section 33 of the Act No. 44 of 1954 dated 24-3-1958 , 25-3-1958 is illegal, void and ineffective?

6. Whether defendant No. 3 entered into an agreement for consideration with the plaintiff through documents dated 22-1-1957 and 23-1-1957 thereby relinquishing his rights in the suit property as alleged?

7. Whether a valid notice under Section 80, C.P.C. was duly served upon defendants Nos. 1 and 2?

8. Relief.'

5. The court of first instance answered issues 1, 2, 3 and 7 in favor of the plaintiff and they were not challenged before the appellate court. The court, however answered issue No. 6 in favor of the plaintiff and held the documents in dispute to be proved and decreed the suit on the basis of the genuineness of the said documents. The issues with regard to the illegality of the orders of the Chief Settlement Commissioner and the Central Government covered by issues 4 and 5 were negatived. The suit was, accordingly decreed. Feeling aggrieved, both the parties moved the lower appellate court; the respondent before me against the decree and the appellant filed cross objections to obtain relief on the second ground as well. The lower appellate court after considering the entire material on record of the case came to the conclusion that both the disputed documents (Exs. PW-6/1 and PW-6/12) were fabricated and had not been executed by the respondent and so they could not be declared to be genuine documents, and no relief could be granted to the plaintiff on the basis of the aforesaid documents in terms of the order of the Chief Settlement Commissioner. The lower appellate court, while reversing the finding on issue No. 6 affirmed the finding of the court of first instance on issue No. 4 and repelled the contention of the appellant that the order of the Chief Settlement Commissioner was null and void. As a result, the appeal was allowed and the cross-objections were dismissed and the suit of the plaintiff was finally dismissed with costs throughout.

6. Feeling aggrieved, the appellant has filed this second appeal and Mr. G. S. Vohra, Senior Advocate, has appeared to support it. Very rightly and fairly, Mr. Vohra has not challenged the findings of fact recorded by the lower appellate court to the effect that the documents in dispute (Exs. PW-6/1 and PW-6/12) are not genuine and were never executed by the respondent. Even otherwise, I do not find any legal infirmity in the reasoning or conclusion of the lower appellate court in deciding issue No. 6 and its finding has to be affirmed.

7. Mr. Vohra has confined his attack to the jurisdiction of the Chief Settlement Commissioner to pass the impugned order against the appellant, The previous order of allotment of the property (Ex. PW-10/5) dated 22nd February 1957 had indeed been passed by the Chief Settlement Commissioner on the recommendation of the Additional Regional Settlement Commissioner (Ex. PW-10/4). The same was, however, based on the genuineness of the documents conveying the consent of the respondent. It is a matter of surprise that the Rehabilitation Authorities at that stage did not take the trouble to summon the respondent and record his statement or otherwise satisfy themselves with regard to the correctness of the allegations of the appellant that the respondent had entered into a compromise with him agreeing to the transfer of the property in dispute to the appellant while relinquishing his own preferential right in the same. Be that as it may, the authorities had then proceeded on the assumption that the said documents were genuine. The respondent herein moved an application (Ex. PW-10/12) before the Chief Settlement Commissioner and requested him to recall the previous order on the ground, inter alia, that the documents were fabricated and the basis of the order had fallen to the ground and under the rules the respondent before me was entitled to the allotment. This application succeeded before the Chief Settlement Commissioner, in passing the impugned order, the Chief Settlement Commissioner purported to exercise powers under Section 24 of the Act. It reads as follows:-

'24. Power of revision of the Chief Settlement Commissioner:- (1). The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a managing officer or a managing corporation 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 he thinks fit.

(2) Without prejudice to the generality of the foregoing power under sub-section (1) if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, cancelling the lease or allotment granted to him; and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue.

(3) No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard.

(4) Any person aggrieved by any order made under sub-section (2) may, within thirty days of the date of the order, make an application for the revision of the order in such form and manner as may be prescribed to the Central Government and the Central Government may pass such order thereon as it thinks fit.'

A perusal of the aforesaid provision shows that sub-section (1) deals with the power of revision that the Chief Settlement Commissioner may exercise in respect of any matter which has been decided by his subordinate officers. This is a supervisory power of revision. Sub-section (2), however, lays down that without prejudice to the generality of sub-section (1) the Chief Settlement Commissioner can pass specified orders subject to the conditions mentioned therein, for instance, upon obtaining an order by fraud or false representation or concealment of any material fact. Sub-section (2) deals with only three matters, namely, compensation, lease and allotment, and the Chief Settlement Commissioner is authorised to order non-payment or reduction of compensation or recovery of the excess compensation and to cancel the lease or allotment. This does not appear to be a general power or revision or review, as is ordinarily understood, but it is a specific power conferred upon the Chief Settlement Commissioner by the legislature to be exercised for specified purposes on specified grounds. The exercise of this power may involve recall of any previous order or action of the Chief Settlement Commissioner himself or any authority subordinate to him, but this power has to be exercised only on the grounds and for the purposes specified in the statute. There is nothing in this provision to restrict its exercise to the cases where the original order has been passed by a subordinate authority and not by the Chief Settlement Commissioner himself. To correct the errors of subordinate authorities, sub-section (1), which is of wider import, would sufficiently cover the grounds and in that case sub-section (2) would be redundant. But, in my opinion, the two sub-sections deal with different situations. Sub-section (1) deals with the legality or propriety of orders of subordinate officers to be corrected by the Chief Settlement Commissioner in exercise of supervisory power of revision. Sub-section (2) deals with the situation where a person has, by means of fraud, false representation or concealment of material facts, obtained compensation or lease or allotment. In such cases, the correctional power has been vested in the highest officer in the heirarchy, No act of fraud or false representation or concealment of material facts will sustain an order in favor of the party, who is guilty of it and a power to correct it must be inherent in every judicial or quasi judicial authority and such a power is conferred to advance interests of justice. In the Provision under consideration, the power has been specifically conferred on the Chief Settlement Commissioner and it can be exercised by him in respect of all orders including the orders passed by him or orders of subordinate authorities, which, had been approved by him and no illegality attaches to exercise of this specific power even if it involves recall, revision or review of the Previous order of the Chief Settlement Commissioner.

8. To support his contention Mr. Vohra has referred to sub-section (4) and Section 25 of the Act. Sub-section (4) Provides that any person aggrieved by any order made under sub-section (2) may within thirty days of the date of the order, make an application for the revision of the order to the Central Government and the Central Government may pass such order thereon as it thinks fit. This provision does not lend any support to the submission of Mr. Vohra Orders passed under sub-section (1) are not made subject to revision by sub-section (4) but the orders Passed under sub section (2) have specifically been made subject to revision under sub-section (4) to the Central Government. This would also show that the order under sub-section (2) must be passed by the Chief Settlement Commissioner and not by any subordinate officers in respect of which the power of appeal or revision would ordinarily lie with the Chief Settlement Commissioner. A reference may also be made to Section 33 of the Act, where the Central Government retains the residuary powers of revision. This would apply to all cases, but sub-section (4) of Section 24 only applies to those orders, which are passed by the Chief Settlement Commissioner under Section 24(2).

9. Mr. Vohra has next referred to Section 25 of the Act. This Provides that any person aggrieved by an order of the Settlement Officer under Section 5 from which no appeal is allowed under Section 22, may make an application to the Settlement Officer for review of his order and the decision of the Settlement Officer on such application shall, subject to the provisions of Section 24 and Section 33, be final. Sub-section (2) of Section 25 makes a provision for correction of clerical or arithmetical mistakes in any order Passed by an officer or authority under this Act or errors arising thereto from any accidental slip or omission. Mr. Vohra contends that the power of review is not inherent in any authority and must be expressly conferred by the statute and Section 25 confers such a Power circumscribed by the conditions mentioned in the provision consequently, no power of review can be read in exercise of powers under sub-section (2) of Section 24 of the Act.

10. The argument is without any force. Section 25 deals with -the power of review by the Settlement Officer, who is a Subordinate Officer and this is subject to revision under Section 24 by the Chief Settlement Commissioner as well as under Section 33 by the Central Government. The object of the Legislature is that in minor matters the Settlement Officer may, in those cases where no appeal is provided, review subject to the revision of the higher authorities. So far as the Chief Settlement Commissioner is concerned, the powers are conferred by Chapter Iv of the Act. Sections 22 and 23 of the Act make provision for appeals to the Chief Settlement Commissioner in the circumstances mentioned in the statute. Section 24 provides for revision of the orders Passed by the subordinate authorities. It would be inconceivable to think that the Settlement Commissioner should have a power to review, but the Chief Settlement Commissioner should not have the Power to recall his order while the same had been obtained by fraud etc. The Legislature in its wisdom, and if I can say with respect, very properly conferred upon the Chief Settlement Commissioner a Power to cancel the lease or allotment and Pass other appropriate order referred to in sub-section (2) where they had been obtained on the grounds mentioned in the statute, on which such an order could legally be not sustained. This power is an express power conferred upon the Chief Settlement Commissioner and it applies to orders Passed by him as well. It is common knowledge that in a large number of cases where the subordinate authorities act, they obtain the approval of the Chief Settlement Commissioner also on the file concerned and if the Chief Settlement Commissioner did not have the power to cancel the lease or allotment great injustice would be perpetuated. I. thereforee. hold that the Chief Settlement Commissioner had full jurisdiction to cancel the lease or allotment if he was satisfied with regard to the existence of the grounds mentioned in the statute and also hold that the order of the Chief Settlement Commissioner was legal and within his jurisdiction.

11. Mr. Vohra has next taken me through the order and submitted that the Chief Settlement Commissioner had himself believed in the genuineness of one of the documents, viz. Ex. P. W. 6/1, but he had entertained doubts with regard to the correctness of Ex. P. W. 6/12. This is certainly a matter of surprise to me that the Chief Settlement Commissioner instead of finally deciding the matter himself which he was competent to do should direct the parties to move the Civil Court to determine the genuineness of the said documents. The suit to challenge the findings or order of these authorities would be barred by Section 27 of the Act. The ratio of the Supreme Court where it construed Section 46 of the Administration of Evacuee Property Act would equally well apply. See Ram Gopal Reddy v. Additional Custodian Evacuee Property, Hyderabad, : [1966]3SCR214 and Custodian, Evacuee Property, Punjab v. Jafran Begum, : [1967]3SCR736 . However, no objection whatsoever has been taken to the jurisdiction of the Civil Court to try the suit and both the parties have proceeded on the assumption that the Court has jurisdiction to try and they were acting in pursuance of the order of the Chief Settlement Commissioner in trying to establish their respective contentions in respect of the documents in dispute. By the impugned order, the Chief Settlement Commissioner allowed the parties to agitate their claim in respect of both the documents and had directed the allotment of the property in accordance with the decision of the Civil Court. Now the lower appellate Court hag found both the documents to be fabricated and as such the order of the Chief Settlement Commissioner ordering transfer of the proper1y to the respondent thereforee, comes into operation with its full vigour and it is hoped it will rest the controversy between the parties. Had the order of the Chief Settlement Commissioner not been passed under the Act then different considerations would have arisen. But, I have found that he had jurisdiction to pass the impugned order and no legality is attached to the same. As a result, the contention of the learned counsel falls.

12. Consequently, the appeal is dismissed and the decree of the lower appellate Court is affirmed. The appellant will pay costs of this appeal.

13. Appeal dismissed.


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