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Union of India and ors. Vs. Jai Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 128D of 1966
Judge
Reported inILR1972Delhi363
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 27; Displaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 90(12)
AppellantUnion of India and ors.
RespondentJai Dayal and ors.
Advocates: D. Chaudhary,; D.D. Chawla and; R.K.Bhutani, Advs.
Cases ReferredShree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Gum v. The State of Andhm Pradesh and
Excerpt:
.....1955, rule 90(12).; an auction purchaser (respondent/plaintiff) in this case offered his verified claim and compensation payable to another person, who had associated himself with the auction purchaser, the regional settlement commissioner (appellant/defendant) filed to appropriate the amount so associated towards the sale price in violation of rule 90(12) of the displaced persons (compensation & rehabilitation) rules 1955. on a suit for title to the auctioned property being filed by the respondent the appellant contended that the jurisdiction of the civil courts was excluded by virtue of sections 27 & 36.; that since the appellant did not comply with statutory obligations of rule 90(12) of the displaced person (compensation & rehabilitation) rules 1955, the provisions of..........the part of the department concerned, the amount of compensation of the verified claim of the said shri ushnak rai including the said sum of rs. 1534-50 duly adjusted already as stated in para no. 2 above, which was duly confirmed by the department concerned on 1st november. 1956, when the plaintiff no. i and the said shri ushnak rai had both appeared in the department concerned on the said date as required by them. was intimated subsequently as per their letter dated 12-11-1956. to have been paid to the said shri ushnak rai in cash, although no such payment was at all due to him at that time. this payment has thereforee obviously been made to the said shri ushnak rai deliberately and maliciously in contravention of the provisions of law or rules on the subject, on which account the.....
Judgment:

Pritam Singh Safeer, J.

(1) This regular second appeal is by the defendants of the suit instituted by the respondents.

(2) The respondents came to court with the allegation that an auction had been held in respect of the house bearing Municipal No. 200, situated in village Dhakka. near Radio Colony in Delhi, The hammer knocked down at the highest bid in favor of the plaintiffs of the suit. They were to pay Rs. 3,075.00.

(3) According to the allegations in paragraph 2 of the plaint a sum of Rs. 307-50 was paid in cash at the spot and towards the remaining amount of Rs. 2767.50 a sum of Rs. 1,233.00 was adjusted out of the verified claim of Shri Jai Dayal. plaintiff No. 1. The balance amount of Rs. 1534-50 was to be realised out of the adjustment to be made out of a verified claim belonging to one Ushnak Rai who had been associated for the purpose. It was stated in paragraph 2 of the plaint that the requisite affidavit of Ushnak Rai was filed with the Regional Settlement Commissioner on the 1st of November, 1956. The plaintiffs pleaded that they were entitled to have the sale deed executed and registered in their favor which the defendants were not doing. In paragraph 4 the allegation was :-

'4.That apparently on some extraneous considerations and by culpable negligence and utter carelessness on the part of the Department concerned, the amount of compensation of the verified claim of the said Shri Ushnak Rai including the said sum of Rs. 1534-50 duly adjusted already as stated in para No. 2 above, which was duly confirmed by the Department concerned on 1st November. 1956, when the plaintiff No. I and the said Shri Ushnak Rai had both appeared in the Department concerned on the said date as required by them. was intimated subsequently as per their letter dated 12-11-1956. to have been paid to the said Shri Ushnak Rai in cash, although no such payment was at all due to him at that time. This payment has thereforee obviously been made to the said Shri Ushnak Rai deliberately and maliciously in contravention of the provisions of law or rules on the subject, on which account the plaintiffs are legally entitled to the relief claimed and have thereforee been compelled to file this suit against the defendant'

(4) As is clear, the plaintiffs, who are respondent's before me, came to court alleging :-

(I)That Rs. 1534-50 had already been adjusted out of Ushnak Rai's claim and the plaintiffs could not, thereforee, be called upon to pay the said amount before the execution and registration of the sale deed in their favor. (;;) That the affidavit of Ushnak Rai having been filed with the Regional Settlement Commissioner on 1st of November, 1956, the payment subsequently made to Ushnak Rai was deliberately and maliciously in contravention of the provisions of law or the rules pertaining to the adjustment of claims and that even in that situation the plaintiffs respondents were entitled to the relief claimed by them. .

(5) The plaintiff's in paragraph 12 ofthe plaint had prayed for a decree for a declaration to the effect that they were the owners of the property mentioned therein and that by way of consequential relief the defendants be ordered to duly execute the sale deed and get it registered in favor of the plaintiffs. Both the courts below came to a concurrent finding of fact that the amount in dispute in this litigation i.e. the sum of Rs. 1534-50 had been adjusted out of the claim of Ushnak Rai. who had associated himself for the purpose with the plaintiffs of the suit. It is true that reliance by the courts below on the entries contained in Exhibit Public Witness 3/1 was not accurate. The contents of the said document were found by me in such a condition that I directed that the copy of the document retained by the office be filled and in terms of a preceding order made in the course of the hearing of this appeal the defendants-appellants filed the same. Therein it is clearly mentioned that the amount of Rs. 1534-50 was still to be recovered. Even if the reliance placed by the courts below on the said document is substracted from the reasoning ofthe two judgments, the finding of fact still remains that the amount of Rs. 1534-50 for which Ushnak Rai had associated his claim had been adjusted out of his claim.

(6) The courts below relied on Exhibit P. I, which is a communication dated the 14th of December, 1960, addressed to one 'Shri Kishore',who had written to the Ministry of Rehabilitation, Government of India, on behalf of Jai Dayal, who is one of the respondents before me. The communication was signed by Shri S. W. Shiveshwarkar, Joint Secretary of the aforementioned Ministry. He stated in the communication :-

'SHRIJai Dayal furnished on 1st November, 1966, an affidavit of one Shri Ushnak Rai wherein he had agreed for the adjustment of the balance of the price of the property purchased by Shri Jai Dayal. Shri Ushnak Rai, who was paid his compensation in cash on 12th November, 1956, did not disclose the fact of his association with Shri Jai Dayal. It is now proposed to take action against him under section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and call upon him to show cause why the amount received by him in cash should not be recovered from him. The question of transfer of property and issue of a sale deed etc. to Shri Jai Dayal will be taken up in due course thereafter.'

(7) The court below was right in concluding that the defendants had made the adjustment for purposes of sale out of Shri Ushnak Rai's claim and having found that they had erroneously made the payment to Ushnak Rai of the amount which was never due to him, the defendants were to initiate proceedings against Ushnak Rai for the recovery of the amount so overpaid to him. It is significant that while the affidavit of Ushnak Rai had been filed on 1st of November. 1956, the communication, a major part whereof has been reproduced above, was sent by the Joint Secretary to the Ministry concerned on the 14th of December, 1960. Till that date the Department had adopted a clear course. According to the defendants. who represent the Department in this litigation and who are the appellants before me, the respondents were not at all liable any more and the amount erroneously paid out to Ushnak Rai was to be recovered from him. There is another significant aspect which cannot be kept out of view. Ushnak Rai's claim was a valuable property in itself. It is stated by D.W. 3. who appeared on behalf of the appellants at the trial, that the Department had on the 12th of November, 1956, paid Rs. 2106.00 to Ushnak Rai. Ushnak Rai had in terms of his affidavit dated the 1st of November, 1956, Exhibit Public Witness 4/1 agreed that the balance amount regarding the purchase of House No. 200, which is the property in suit may be recovered from the compensation due in respect of his claim. That was expressly stated in para 4 of his affidavit. Apart from the above, in paragraph 3 of their written statement the defendants clearly stated :-

'THEplaintiff No. 1 did not pay the full price of the property as the plaintiffs' associate Shri Ushnak Rai agreed that the balance amount of the sale price be recovered from his compensation to which the Defendant's Department agreed but later on it transpired that Shri Ushnak Rai had already recovered his compensation in full and had no more compensation.'

(8) A part of averment is to the effect that the Department had agreed to appropriate the balance amount towards sale price of the house out of the claim of Ushnak Rai. If they had so agreed then the affidavit having been filled on 1st of November, 1956, it is nowhere shown as to what further act the respondents or Ushnak Rai were to perform in order to enable the Department to make the appropriate deduction out of the claim of Ushnak Rai. All that the respendents or Ushnak Rai were to do they had done by the 1st of November, 1956. The ultimate assertion in the plea, reproduced above out of paragraph 3 of the written statement is admittedly incorrect. It was wrong for the appellants to have stated in the written statement that it had transpired that Ushnak Rai had already received the compensation in full before he agreed to become the associate. His affidavit had been filed on 1st of November. 1956. The testimony of D.W. 3 is to the effect that payment to Ushnak Rai was made only on the 12th of November. 1956. i.e. eleven days after he had filed the affidavit. As I have noticed earlier in Exhibit P.I. the Department even in December, 1960 clarified to the defendants through the Joint Secretary to their Ministry that nothing was due from the purchasers at the auction and that proceedings were going to be taken under section 24 of the Act as mentioned in Exhibit P. I, for recovery of the amount overpaid to Ushnak Rai. The courts below, thereforee, were right in concluding that the Department had made the requisite adjustment.

(9) The court of first appeal affirmed the decree made by the trial court on recording the concurrent finding of fact that the amount due had been adjusted out of Ushnak Rai's claim.

(10) Mr. Deepak Chaudhry, appearing for the appellants, raised two contentions. In the first instance he contended that no adjustment had in fact been made in respect of the claim of Ushnak Rai. His second contention was that the civil courts did not have any jurisdiction to entertain the suit out of which the appeal has arisen. Mr. Chaudhry in his address many times referred to the provisions of rule 90 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. The said rule was framed under Act 44 of 1954. The material part of rule 90 is in clause 12 :-

'(12)The balance of the purchase money may, subject to the other proyisions of these rules, adjusted against the compensation payable to the auction purchaser in respect of any verified claim held by him or against the compensation payable to any other person holding any such claim who is willing to associate himself with the auction purchaser. In any such case, the auction purchaser or such other person shall be required to make within seven days of the receipt of the intimation above the approval of the bid to the auction purchaser an application for the payment of compensation (unless such application has already been made in which case particulars of such application shall be supplied by the auction purchaser in the form specified in rule 4). In making any such adjustment, the net compensation payable to the auction purchaser shall be adjusted first against the balance of the purchase money before the compensation payable to any other person who has associated himself with the auction purchaser is so adjusted.

PROVIDED that the Settlement Commissioner or any officer appointed by him in this behalf may, for reasons to be recorded in writing extend, the aforesaid period of seven days by such further period not exceeding fifteen days as the Settlement Commissioner or such other officer may deem fit.

'PROVIDEDfurther that the period extended under the preceding proviso may further be extended (with in out any limit of time) by the Chief Settlement Commissioner.'

(11) It is clear that clause (12) provides an imperative procedure for the realisation of the balance of the purchase money. The ultimate part of the rule which may be reproduced, once again, is :-

'INmaking any such adjustment, the net compensation payable to the auction purchaser shall be adjusted first against the balance of the purchase money before the compensation payable to any other person who has associated himself with the auction purchaser is so adjusted.'

(12) The defendants were in the first instance to adjust the amount which may be available out of the compensation due to the auction purchaser out of his verified claim and they were then to adjust the balance out of the compensation payable to any other person who had associated himself with the auction purchaser. The rule made it obligatory for the defendants-appellants to adjust the balance amount recoverable towards the sale amount out of the compensation payable to Ushnak Rai who had associated himself with the auction purchasers. If the defendants did not do that, they did not comply with the demands of rule 90(12) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955.

(13) The Supreme Court in Dhulabhai v. State of Madhay Pradesh, : [1968]3SCR662 , after discussing the entire case law recorded seven conclusions governing the determination whether the civil court will have the jurisdiction to entertain a suit or not in the face of the provisions contained in any special statute. Mr. Deepak Chaudhary has placed reliance on the provisions of sections 27 and 36 of Act 44 of 1954 The Displaced Persons (Compensation and Rehabilitation Act, 1954) and has urged that the civil Courts did not have the jurisdiction to deal with the grievance raised by the plaintiffs respondents. Section 27 of the said Act deals with the finality of orders while section 36 deals with the bar of jurisdiction. Both the provisions are :-

'27.I-inality of orders-Save as otherwise expressly provided in this Act, every order made by any officer or authority Linder this Act, including a managing corporation, shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit. application or execution proceeding. '

36.Bar of jurisdiction-Save as otherwise expressly provided in this Act. no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.'

(14) The Supreme Court had an occasion in Shree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Gum v. The State of Andhm Pradesh and others, : [1970]2SCR714 to deal with a case where there was an obligation cast by a special statute which had not been complied with. The relevant observation is :-- 'The Special Officer had an obligation under section 2

OFthe Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act, such as, wet, dry and garden. This had to be ' determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant (Ex. B-24) which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, thereforee, be held to be based on no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under sec. 3(2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act, and, thereforee, outside the purview of sec. 3(2) of that Act. Section 3(1) would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The notification Ex. A-13 must, thereforee, be struck down as contrary to law and ultra-wires the Reduction of Rent Act.

(15) The Special Officer had in disregard of the statutory obligation made his determination on the basis of the report of the Special Assistant which in turn had taken into consideration only the entry in the settlement register. The court found that the recommendation of the Special Officer was not in conformity with the provisions of the Reduction of the Rent Act. The jurisdiction of the civil court in such a matter was upheld.

(16) In this case sub-rule (12) of rule 90 relied upon by Mr. Chaudhry itself discloses that after the filing of the affidavit by Ushnak Rai on the 1st of November, 1956, the defendants were under an obligation to make an adjustment out of his compensation towards the balance of the price due in respect of the property in suit. They did not comply with the statute. The provisions contained in sections 27 and 36 of Act 44 of 1954 cannot be held to be excluding the jurisdiction of the civil court. This disposes of both the contentions raised on behalf of the appellants. I am not persuaded to interfere with the findings of fact recorded by the court below. The appeal is dismissed but without costs

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