Skip to content


Habib-ul-rehman Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 122D of 1960
Judge
Reported inILR1969Delhi1006
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 21
AppellantHabib-ul-rehman
RespondentThe Union of India and ors.
Advocates: H.L. Anand,; J.S. Arora and; O.P. Malhotra, Advs
Excerpt:
.....or to the custodian within the meaning of sub-section (1), the question should be referred to the chief settlement commissioner who, after making such inquiry as he may deem fit and giving notice to the person by whom the sum is alleged to be payable an opportunity of hearing, should decide the question.; that the words 'any sum due under this act' in sub-section (2) of section 30 mean a sum found or determined to be due, under the provisions of the act. in other words, before the chief settlement commissioner takes action under section 30(2), the liability of the person concerned and the quantum of the liability must have been determined, by some authority under the act. it is only then that a sum can be said to be due from the person under the act within the meaning of sub-section (2)..........writ of certiorari quashing a show cause notice (annexure-b) dated december 8, 1959, issued by the chief settlement commissioner, new delhi, an order (annexure- e), dated february 19, 1960, passed by the chief settlement commissioner, new delhi, and an order (annexure-g), dated march 14, 1960, passed by the deputy secretary to the government of india, ministry of rehabilitation, new delhi, (2) for a direction that the petitioner be set at liberty, and (3) for a direction or order prohibiting the respondents from recovering certain alleged arrears of rent from the petitioner. respondent no. 1 in the writ petition is the union of india, through the secretary, ministry of rehabilitation. respondent no. 2 is the chief settlement commissioner, new delhi. respondent no. 3 is the.....
Judgment:

Tatachari, J.

(1) This writ petition was filed by Habib-ul-Rehman praying (1) for the issuance of a writ of certiorari quashing a show cause notice (Annexure-B) dated December 8, 1959, issued by the Chief Settlement Commissioner, New Delhi, an order (Annexure- E), dated February 19, 1960, passed by the Chief Settlement Commissioner, New Delhi, and an order (Annexure-G), dated March 14, 1960, passed by the Deputy Secretary to the Government of India, Ministry of Rehabilitation, New Delhi, (2) for a direction that the petitioner be set at liberty, and (3) for a direction or order prohibiting the respondents from recovering certain alleged arrears of rent from the petitioner. Respondent No. 1 in the writ petition is the Union of India, through the Secretary, Ministry of Rehabilitation. Respondent No. 2 is the Chief Settlement Commissioner, New Delhi. Respondent No. 3 is the Superintendent, District Jail, Tihar, New Delhi. Respondent No. 4 is Shri Ram Prashad, Assistant Collector (Special) First Grade, Delhi.

(2) The facts which led to the filing of the writ petition were as follows: one Mohd. Ashfaq was originally the owner of a property called 'Shalamar Garden' situated in village Hyderpur, within the Union Territory of Delhi. Mohd. Ashfaq died on March 19, 1955. According to the petitioner, Mohd. Ashfaq, during his life time, appointed the petitioner as his attorney for the purpose of the administration of his property, and the petitioner has been administering the property of Mohd. Ashfaq as such attorney. This is, however, denied by the respondents. After the death of Mohd. Ashfaq, the Evacuee Property Administration issued notices under section 7 of the Administration of Evacuee Property Act, No. xxxi of 1950, to the heirs of the deceased Mohd. Ashfaq, requiring them to show cause why the property of Mohd. Ashfaq should nto be declared as evacuee property. Copies of the notices have nto been filed in this writ petition. Shri H. L. Anand, the learned clinse for the petitioner, stated that the Evacuee Property Administration issued the said notices on the assumption that Mohd. Ashfaq had migrated to Pakistan before his death. The aforesaid heirs of Mohd. Ashfaq challenged the legality of the notices on various grounds by filling Writ Petitions Nos. 686-D and 687-D of 1958 on July 10, 1958, before the Circuit Bench of the High Court of Punjab at Delhi. The said writ petitions were dismissed on September 25, 1958. The heirs of Mohd. Ashfaq then filed petitions, S.C.A. Nos. 1487-D and 1488-D of 1958 on November 4, 1958, for leave to appeal to the Supreme Court against the orders dated September 25, 1958. The said applications were dismissed on November 11, 1959.

(3) In the meantime, the Assistant Custodian (Judicial) passed an ex-parte order on November 24, 1958, declaring the aforesaid Shalamar Garden as an evacuee property under section 7 of the Act No. xxxi of 1950. It is stated in the present writ petition that the said order was passed without giving an opportunity to the heirs of Mohd. Ashfaq. Aggrieved by the said ex-parte order, Mst. Laik-ul-Nisa and other heirs of Mohd. Ashfaq filed an appeal against the said ex-parte order before the Custodian-General of Evacuee Property. The Deputy Custodian- General of India admitted the said appeal and granted an interim order (Annexure-A) on January 12, 1960, staying the proceedings for recovery of arrears from the said heirs.

(4) However, by a notification, dated July 14, 1959, the Central Government purported to have acquired the property in dispute under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954. On December 8, 1959, the Chief Settlement Commissioner, New Delhi, issued a notice (Annexure-B) to the petitioner requiring the latter to appear before him on December 23, 1959, and to show cause why an order under sub-section 2 of section 30 of the said Act 44 of 1954 may nto be passed against the petitioner. It was stated in the said notice that the garden known as 'Shalamar' comprising F. No. 244, measuring 260 Bighas and situated in village Hyderpur, Delhi, remained in the unauthorised possession of the petitioner from April 2, 1955 to December 23, 1958, that a sum of Rs. 52,500.00 was to be recovered from the petitioner herein in respect of the said garden as arrears of land revenue under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954, and that inspire of several notices served upon the petitioner by the Assistant Custodian, Delhi, and after the acquisition of the property under the Act No. 44 of 1954, by the concerned Managing Officer, the petitioner failed to pay up the said amount of Rs. 52,500.00 outstanding against him. On December 23, 1959, the petitioner submitted a reply (Annexure-C) to the said notice stating that he was nto in unauthorised possession of the property in question, that the property belonged to Mst. Laik-ul-Nisa and twelve other heirs of Mohd. Ashfaq who died on March 19, 1959 as non-evacuee, that the Assistant Custodian (Judicial) had passed an ex-parte order declaring the property as evacuee and the said heirs had filed an appeal before the Custodian-General, that the Deputy Custodian-General had granted an interim order of stay of the sale of the property and recovery of arrears pending the decision of the appeal, and that the said interim order was conveyed to all the authorities concerned for compliance, that under section 12 of Act No. 44 of 1954 read with Rules 93(i) and (vi) of the Rules framed there under, the property could nto be acquired by the Central Government, as there were proceedings pending before the Custodian-General and the property came within the exception mentioned in the said provision, that no notice demanding the alleged arrears was ever given or served on the petitioner, that the demand of Rs. 52,500.00 from the petitioner was illegal, void and un-enforceable, that resort to section 30(2) without determining the liability of the petitioner or the extent of the liability, and without giving the petitioner an opportunity of being heard was unjust, and that the proceedings under section 30(2) of the Act No. 44 of 1954 may be dropped. Again, on January 30, 1960, the petitioner filed a supplemental reply (Annexure-D) in which he raised an additional plea that the alleged acquisition by the Central Government by notification, dated July 14, 1959, was null, void and ineffective because the proceedings viz.. the applications for leave to appeal to the Supreme Court, were pending on that date before the Circuit Bench of the Punjab High Court at Delhi, and the property came within the exception provided in Rules 93(i)(a) and (vi) of the Displaced Persons (Compensation and Rehabilitation) Rules. 1955.

(5) On February 19, 1960, the Chief Settlement Commissioner passed an order (Annexure-E) slating that on a consideration of the objections filed by the petitioner and after hearing the petitioner and his counsel, he was of the opinion that the petitioner has been refusing and neglecting to pay the amount due from him under the Displaced Persons (Compensation and Rehabilitation) Act in respect of the amount illegally recovered by him of the garden known as Shalamar alias Motewala of village Hyderpur comprising field No. 242 etc. measuring 216 Bighas, which was owned by one Mohd. Ashfaq, evacuee, prior to its being vested in the Custodian as evacuee property', and that in exercise of his powers under sub-section (2) of section 30 of the Act No. 44 of 1954, he directed that the provisions of sub-section (1) of section 30 shall nto apply to the petitioner, and the petitioner shall cease to be entitled to the exemption conferred by that sub-section.

(6) Against that order, the petitioner filed a revision petition (Annexture-F) on March 1, 1960, under section 33 of the Act No. 44 of 1954 before the secretary, Ministry of Rehabilitation, Government of India, New Delhi. In that revision petition, the petitioner specifically challenged the competence of the Chief Settlement Commissioner to deal with the property in question as an acquired property or to claim the amount in dispute from the petitioner, particularly without the liability of the petitioner and the quantum of the liability having been legally determined after giving an opportunity to the petitioner regarding the same. Along with the said petition, the petitioner also filed an application for stay of the operation of the impugned order of the Chief Settlement Commissioner. According to the petitioner on March 11, 1960, an order of stay was passed by the concerned Ministry directing that the proceedings of recovery of the alleged dues from the petitioner be stayed till the appeal filed by the heirs of Mohd. Ashfaq which was then pending before the Custodian- General was decided. The petitioner also stated in his writ petition that on March Ii, 1960, after the said stay order was communicated to the subordinate authorities, he was arrested and sent to Jail by an order of Shri Ram Prashad, Assistant Collector (Special) 1st Grade, Gokhale Market, Delhi, purporting to act in exercise of the powers conferred by section 21 read with section 30(2) of the Act No. 44 of 1954 on the ground that the petitioner had failed to satisfy the demand made on him by the Rehabilitation authorities in respect of the alleged collections by him. on March 14, 1960, the aforesaid revision petition was dismissed by the Deputy Secretary to the Government of India, Ministry of Rehabilitation, New Delhi (vide Annexure-C). It was stated in that order that the Deputy Custodian-General had on the same day i.e., March 1, 1960, rejected the appeal filed before him by the owners (heirs) of Mohd. Ashfaq, and the Deputy Secretary observed that there was, thereforee, no ground left for continuing the stay order and the same may be vacated. As regards the merits of the contentions in the revision petition, the Deputy Secretary merely stated in the said order that Chief Settlement Commissioner had examined the whole case in great detail, and it was evident from its perusal that the petitioner was deliberately withholding the payment and demands payable by him to the Custodian, and that in the circumstances, the order passed by the Chief Settlement Commissioner on February 19, 1960, was quite justified. The Deputy Secretary, however, added that if the petitioner gives an undertaking to the Deputy Custodian of Evacuee Property (Rural) that he would pay the entire amount within a period of three months and furnishes reliable surety for half of the amount and a personal bond for the remaining half, the order pertaining to his arrest may be withdrawn, but, if he fails to give the undertaking and a surety, the orders already passed by the Chief Settlement Commissioner may be implemented.

(7) Thereupon, the petitioner filed the present writ petition on March 19, 1960, praying that the show cause notice (Annexure-B), the order dated February 19, 1960 (Annexure-E), and the order dated March 14, 1960, (Annexure-G) may be quashed, and for a direction that he be set at liberty.

(8) Shri H. L. Anand, the learned counsel for the petitioner, initially formulated the following points as arising for determination in this writ petition :-

(1)Whether Section 30(2) in ultra virus as being vocative of Article 14 of the Constitution of India;

(2)Whether having regard to the pendency of the proceedings in the High Court, viz., the applications for leave to appeal to the Supreme Court, the Central Government had any power to acquire the property in dispute under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954, in view of Rule 93 of the Displaced Persons (Compensation and Rehabililitation) Rules, 1955;

(3)Whether Section 21 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954, is ultra-vires; and

(4)Whether it is open to the authorities under the aforesaid Act No. 44 of 1954 to take any proceedings against the petitioner directly under Section 30(2) of the said Act without determining (i) the petitioner's liability, and (ii) the quantum of the liability.

Shri Anand, however, stated that he does nto urge the points Nos. 1 to 3, but that he would urge the point No. 4 only.

(9) For a proper appreciation of the argument of Shri Anand regarding point No. 4 set out above, it is necessary to refer to Section 21 and 30 of the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954. The said Sections run as under:-

'21.Recovery of certain sums us arrears of land revenue :-(1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied, lease or other document or otherwise howsoever, for any period prior to the date of acquisition of such property under this Act, which has nto been recovered under section 48 of the Administration of Evacuee Property Act, 1950, (31 of 1950), and any sum payable to the Government in respect of any property in the compensation pool, may be recovered in the same manner as an arrear of land revenue.

(2)If any question arises whether a sum is payable to the Government or to the Custodian within the meaning of sub-section (1) in respect of any property referred to therein, it shall be referred to the Settlement Commissioner within whose jurisdiction the property is situated, and the Settlement Commissioner shall after making such inquiry as he may deem fit and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Settlement Commissioner shall, subject to any appeal or revision under this Act, be final, and shall nto be called in question by any court or other authority.

(3)For the purpose of this Section, a sum shall be deemed to be payable to the Custodian, notwithstanding that its recovery is barred by the Indian Limitation Act, 1908 (9 of 1908), or any other law for the time being in force, relating to limitation of actions.

30.Exemption from arrest:-(1) No person shall be liable to arrest or imprisonment in pursuance of any process issued for the recovery of any sum due under this Act which is recoverable as an arrear of land revenue. (2) Notwithstanding anything contained in subsection (1) if the Chief Settlement Commissioner is of opinion that a person is refusing, or neglecting, or has refused or neglected, to pay any sum due under this Act, he may, after giving such person an opportunity of being heard, by order in writing staling the grounds thereforee, direct that the provision of sub-section (1) shall nto apply to him, and thereupon such person shall cease to be entitled to the exemption conferred by that sub-section.

SECTION 21(1) empowers the recovery of any sum payable to the Government or to the Custodian in respect of any evacuee property for any period prior to the date of acquisition of such property under the Act No. 44 of 1954, and which has nto been recovered under Section 48 of the Administration of Evacuee Property Act, 31 of 1950, in the same manner as an arrear of land revenue. Section 21(1) provides that if any question arises as to whether the sum is payable to the Government or to the Custodian within the meaning of sub-section (1), the question should be referred to the Chief Settlement Commissioner who, after making such inquiry as he may deem fit and giving notice to the person by whom the sum is alleged to be payable an opportunity of hearing, should decide the question. Section 30 originally consisted only of the present sub-section (1) thereof. In 1959, by Act No. 21 of 1959, the section was re-numbered as sub-section (1) and the present sub-section (2) was added. Subsection (1) prohibits the arrest or imprisonment of a defaulter in pursuance of any process issued under Section 21 for the recovery of the sum due from him. Sub-section (2) provides, however, that if the Chief Settlement Commissioner is of opinion that a person is refusing or neglecting or has refused or neglected to pay any sum under the Act, he may, after giving such person an opportunity of being heard, by order in writing stating the grounds thereforee, direct that the provision of sub-section (1) shall nto apply to him, and thereupon such person ceases to be entitled to the exemption conferred by sub-section (1). It is clear from the words 'any sum due under this Act' in sub-section (2) mean a sum found or determined to be due under the provisions of the Act. In other words, before the Chief Settlement Commissioner takes action under Section 30(2), the liability of the person concerned and the quantum of the liability must have been determined, by some Authority under the Act.

It is only then that a sum can be said to be due from the person under the Act within the meaning of sub-section (2) of Section 30. The said determination may be in the course of the inquiry contemplated under sub-section (2) of Section 21 or any other provision in the Act.

(10) The scheme in Section 21 and 30 seems to be as follows : Any sum alleged to be payable to the Government or to the Custodian in respect of any evacuee property may be recovered in the same manner as an arrear of land revenue by virtue of the provision under sub-section (1) of Section 21. If any question arises whether the said sum is payable to the Government or to the Custodian, the Settlement Commissioner should decide the said question after making such inquiry as he may deem fit and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, as provided in sub-section (2) of Section 21. After the Chief Settlement Commissioner decides, that a sum is payable to the Government or to the Custodian it becomes liable to be recovered as an arrear of land revenue. The manner of recovery of a sum as an arrear of land revenue includes, intei'-lilia, the arrest or imprisonment of the person liable to pay the sum. But, sub-section (1) of Section 30 prohibits the arrest or imprisonment of a person found liable to pay the sum in pursuance of any process issued for the recovery of the sum under Section 21. Sub-section (2) of Section 30, however, empowers the Chief Settlement Commissioner to direct that the provision in sub-section (1) shall nto apply to the person if he is of opinion that the said person is refusing or neglecting or has refused or neglected to pay the sum. The said direction has to be given only after giving the person alleged to be liable to pay the sum an opportunity of being heard, and has also to be by an order in writing stating the grounds thereforee. Sub-section (2) of Section 30 refers firstly to a refusal or neglect to pay 'any sum due under the Act', and then provides that the Chief Settlement Commissioner may, after giving the person who refuses or neglects to pay the sum an opportunity of being heard, by an order in writing stating the grounds thereforee, direct that the provision in subsection (1) shall nto be applicable to him. The language of the sub-section (2) shows that it assumes that the liability to pay the sum and the quantum of the liability (i.e., the sum) had already been determined and fixed and that the Chief Settlement Commissioner has only to consider under the sub-section the question as to whether the exemption from arrest and imprisonment contained in sub-section (1) may be directed to be inapplicable to the person in question and the opportunity to be heard given to that person is limited to the said question as to why the exemption may nto be directed to be inapplicable to him. Thus, there has to be a determination of the liability of the person concerned and the quantum of the liability before the Settlement Commissioner takes action under Section 30(2) and calls upon the said person to show cause why the direction contemplated by Section 30(2) should nto be made.

(11) In the present case, there was no inquiry such as incontemplated by sub-section(2) of Section 21 or any other provision in the Act, so far as the petitioner was concerned. At no stage was there any determination of his liability and the quantum of his liability after giving him an opportunity to be heard. The Chief Settlement Commissioner issued the notice (Annexure 'B') merely staling that a sum of Rs. 52,500.00 was to be recovered from the petitioner in respect of Shalamar Garden as arrears of land revenue, under Section 21. The petitioner specifically objected in his objections (Annexure 'C') that the resort to Section 30(2) without determining the liability of the petitioner or the extent of the liability, and without giving the petitioner an opportunity of being heard, was unjust. Yet, the Chief Settlement Commissioner, without addressing himself to the said objection and considering the same, passed an order (Annexure 'E') on February 19, 1960, stating merely that on a consideration of the objections filed by the petitioner and after hearing the petitioner and his counsel he was of the opinion that the petitioner has been refusing and neglecting to pay the amount due from him, and directing in exercise of his powers under Section 30(2) that the provisions of sub-section (1) of Section 30 shall nto apply to the petitioner. It has to be noted that the Chief Settlement Commissioner did nto consider the objection of the petitioner that his liability and the quantum of the liability were nto determined at all. The petitioner took the objection again in the revision petition filed by him. But, the said objection was nto considered at all by the Deputy Secretary to the Government of India, Ministry of Rehabilitation, New Delhi, in his order (Annexure 'G'), in which he stated merely that the Chief Settlement Commissioner had examined the whole case in great detail and it was evident from its perusal that the petitioner was deliberately with-holding the payment of the amount payable by him to the Custodian, and that in the circumstances, the order passed by the Chief Settlement Commissioner on February 19, 1960 was quite justified, and dismissed the revision petition. Thus, the Chief Settlement Commissioner as well as the Deputy Secretary overlooked the fact that the liability of the petitioner and the quantum of his liability were nto determined at any stage after giving him an opportunity to make his representation regarding the same. As pointed out earlier, the said determination of the liability of the petitioner and the quantum of his liability has to precede the notice issued by the Settlement Commissioner under Section 30(2) calling upon the petitioner to show cause as to why the exemption under Section 30(1) should nto be directed to be inapplicable to him. The inquiry under Section 30(2) is concerned only with the question as to why the exemption under Section 30(1) should nto be directed to be inapplicable, ft is nto concerned with the determination of the liability of the petitioner or the quantum of his liability, and the said determination should precede the inquiry under Section 30(2). There was no such determination in the case of the petitioner. It follows that the resort to action under section 30(2) against the petitioner was in violation of the provisions of the Act as well as the principles of natural Justice. The notice dated December 8. 1959 (Annexure-B), the order dated February 19, 1960 (Annexure-E), and the order dated March 14, 1960 (Annexure-G) are all, thereforee, liable to be quashed.

(12) For the foregoing reasons, I allow the writ petition and quash the notice dated December 8, 1959 (Annexure-B), the order dated February 19, 1960 (Annexure-E) and the order dated March 14, 1960 (Annexure-G). I also direct the respondents to release the petitioner. In the circumstances, I make no order as to costs.


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