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Meherabanoo GulamhussaIn Vadivala Vs. the Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 923 of 1973
Judge
Reported inAIR1980Guj35; (1979)2GLR84
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 21(1), 21(2) and 21(3)
AppellantMeherabanoo GulamhussaIn Vadivala
RespondentThe Union of India
Appellant Advocate A.H. Mehta, Adv.
Respondent Advocate K.J. Vaidya, Asstt. Govt. Pleader
Cases ReferredPraydat Kumar Bose v. Chief Justice of Calcutta High Court
Excerpt:
.....jurisdiction - recovery proceedings are in respect of sum payable to government in respect of evacuee property - after property became evacuee property plaintiff had no right to keep possession and to recover and retain income from property - such sum payable to government or to custodian - recovery proceedings for such sum comes within scope of section 21 (1) - appeal dismissed. - - 1 225. as clearly observed in this decision -by sub-sections (2) and (3) of the amended section 48, a machinery has been provided for deciding any question that arises as to whether a sum is payable to the custodian within the meaning of sub-see. - it is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a..........and decree dated 13th october. 1972.2. after 25th april, 1962, the suit property considered as an evacuee property by virtue of its having been already declared as an evacuee property under the 1950 act, was acquired under the provisions of chap. 3 of the 1954 act so as to form part of the compensation pool for rehabilitation of persons displaced from pakistan and accordingly the suit property came to be managed by a managing officer appointed under the 1954 act. it was the cage of the plaintiff that on 8th may, 1963, the managing officer issued a notice to pay the aforesaid amount of rs. 42,530.69 paise. the plaintiff served a statutory notice on 28th june 1963 upon the regional settlement commissioner. bombay functioning under the 1954 act, the manager and collector. ahmedabad and the.....
Judgment:

M.K. Shah, J.

1. This is an appeal by the original plaintiff whose suit against the Union of India for a declaration that the order dated 18th April 1966 for recovery of an amount of Rs. 29,926.14 paise passed by the Regional Settlement Commissioner in proceedings under Section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 ('1954 Act') was illegal ultra vires and without jurisdiction and for a perpetual injunction restraining the defendant from recovering the same as arrears of land revenue, was dismissed by the learned Judge, City Civil Court, (6th Court), Ahmedabad by his judgment and decree dated 13th October. 1972.

2. After 25th April, 1962, the suit property considered as an evacuee property by virtue of its having been already declared as an evacuee property under the 1950 Act, was acquired under the provisions of Chap. 3 of the 1954 Act so as to form part of the compensation pool for rehabilitation of persons displaced from Pakistan and accordingly the suit property came to be managed by a Managing Officer appointed under the 1954 Act. It was the cage of the plaintiff that on 8th May, 1963, the Managing Officer issued a notice to pay the aforesaid amount of Rs. 42,530.69 paise. The plaintiff served a statutory notice on 28th June 1963 upon the Regional Settlement Commissioner. Bombay functioning under the 1954 Act, the Manager and Collector. Ahmedabad and the Deputy Custodian General of Evacuee Property, Ahmedabad contending that the abovementioned officer was not entitled to recover the said amount for want of Jurisdiction, as also on the ground of limitation. The Regional Settlement Commissioner by his order dated 23rd September, 1963 held that the said recovery was not barred under Section 48 (amended) of the 1950 Act and the plaintiff was, therefore, required to submit accounts of the rental income till 17th July 1953. The plaintiff accordingly submitted accounts before the Deputy Custodian.

3. Thereafter, the Assistant Custodian and Managing Officer, Bombay wrote a letter dated 23rd December, 1963 requiring the plaintiff to attend hearing in respect of the above accounts. It appears, the plaintiff objected on the ground that as the suit property was acquired under 17 the 1954 Act by the Central Government, the Deputy Custodian had no jurisdiction in the matter and the matter was there after referred to the Regional Settlement Commissioner at the instance of the plaintiff under Section 21(2) of the 1954 Act for inquiry. The plaintiff appeared before the Regional Settlement Commissioner along with his advocate and the order dated 23rd September 1963 was passed remanding his case to the Managing Officer for taking accounts of the expenses claimed by the plaintiff for the management of the suit property. The plaintiff thereafter filed his statement of accounts before the Managing Officer and after a lot of delay, the matter was ultimately fixed before the Regional Settlement Commissioner on 9th March, 1966 and the impugned order dated 18th April, 1966 was then passed by the Regional Settlement Commissioner giving credit to the Plaintiff for expenses to the extent of Rs. 15,604.55 paise and deducting the same from the amount as originally claimed. viz. Rs. 42,530-69 paise, the plaintiff was ordered to pay the balance of Rupees 26,926.14 paise. A demand notice was also ordered to be issued by the Regional Settlement Commissioner upon the plaintiff with a further order that the amount should be recovered from the plaintiff as arrears of land revenue if he committed default.

4. It was in this background that the plaintiff filed civil suit No. 2246 of 1968 in the City Civil Court. Ahmedabad from, which the present appeal arises, challenging the legality and validity of the impugned order dated 18th April, 1966 passed by the Regional Settlement Commissioner at Bombay under the provisions of Section 21 of the 1954 Act. The order was challenged on various grounds set out in pares 6 to 16 of the plaint by the plaintiff and alternatively the plaintiff pleaded that even if he was liable to pay, the amount would be Rs. 9231-55 paise and not Rs. 26,926.14 paise as demanded in the impugned notice. The plaintiff served a notice under Section 80 Civil P. C. before Ming the suit.

5. The suit was contested, inter alia, on the ground that the civil court had no Jurisdiction to try the suit in view of the provisions of sub-section (2) of Section 27 and Sect4on 36 of the 1954 Act which was a complete Code in itself dealing with special rights and liabilities between the parties and also providing for specific remedies to adjudicate the same. The defendant also supported the impugned order on merits and contended that the same was passed after giving proper hearing to the plaintiff through his advocate. Five issues were framed by the court. No oral evidence was led by any of the parties and the court, after considering the documentary evidence on record and hearing the learned Advocate for the parties, decided issue No. 1 against the plaintiff holding that the court had no jurisdiction to try the suit by virtue of Sections 27, 36 and Section 21(2) of the 1954 Act. Other issues were not decided by the court on the ground that they did not survive on the decision on issue No. 1 and the plaintiff's suit was, therefore, dismissed with costs. Hence this appeal by the original plaintiffs.

6. It may be noted at this stage that Section 27 of the 1954 Act clothes every order passed by any officer or authority under the Act with finality prohibiting its being called in question in any court. Section 36 bars jurisdiction of civil courts to entertain any suit or proceeding in respect of any matters which the Central Government or any officer or authority appointed under the Act is empowered by or under the Act to determine and it debars the granting of an injunction 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 the Act.

7. Mr. A. H. Mehta, the learned Advocate appearing for the appellant-plaintiff has, first of all, contended that in the instant case, the Regional Settlement Commissioner was not competent to make inquiry into and decide the question with regard to the liability in respect of a sum payable by the plaintiff which had become time barred and therefore, the provisions contained in sub-section (3) of Section 21 which are prospective and not retrospective will not be applicable to such time barred debt. While developing this submission, Mr. Mehta started by saying that the liability, accrues , from month to month and that, therefore, the demand from 14th August, 1947 to July 17, 1953 for which the amount is claimed, every month's amount would become time barred on expiration of three years. Alternatively, taking the whole period for which the amount is claimed and sought to be recovered viz. the period from 14th August, 1947 to 17th July, 1953 when the property vested in the Custodian and when possession was taken over, it would be time barred on and from 17th July 1956. The Regional Settlement Commissioner, therefore, had no jurisdiction. The Managing Officer appointed under the 1954,Act had, therefore, no jurisdiction to issue notice of demand on 8th May 1963 demanding Rs. 42,530.69 paise. In any case, on 23rd September 1963, the Regional Settlement Commissioner had no Jurisdiction to pass such an order or making such demand for claiming the amount after giving credit for expenses.

8. On the second limb of his argument, Mr. Mehta submits that when the amendments in the 1950 and the'1954 Act were brought into effect on 22nd October, 1956 by Act 91 of 1956 and Act 86 of 1956, respectively, as per amended Section 48(1) of the 1950 Act and See. 21 (1) of the 1954 Act, the suit amount had already become time barred and, therefore, Section 48(3) of the 1950 Act and subsection (3) of Section 21 of the 1954 Act cannot have an effect of reviving such debt which had already become time barred, because these sections are prospective in their operation and not retrospective. Mr. Mehta relied on Bansidhar Lal v. Assistant Custodian, Evacuee Property Sasaram. AIR 1960 Pat 306. While considering the effect of amendment of Section 48 by Act 91 of 1956, the Patna High Court observed as follows:-

'It is clear, therefore, that on the date the amending Act came into force the right of the certificate authorities to proceed against the petitioner for recovery of the arrears of rent beyond three years of the date of the requisition was barred. In other words, the petitioner had acquired a vested right on the date of the coming into force of the Amending Act to treat the claim against him by the custodian as already barred'.

9. In order to appreciate the rival contentions, it would be desirable at this stage to set out the contents of Section 21 of the 1954 Act. They read thus --

'21. Recovery of certain sums as 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 not been recovered under Section 48 of the Administration of Evacuee Property Act, 1950 (31 of 1950), and any sum payable to 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 Custodian within the meaning of subsection (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 t he 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 anneal or revision under this Act, -be final and shall not 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'.

The contents of Section 48 of the 1950 Act are almost in identical terms and so need not be set out.

10. Mr. Mehta also relied on Custodian General of Evacuee Property, New Delhi v. Jewan Lal Verma, AIR 1961 Punj 565. On going through this judgment, we find that instead of supporting Mr. Mehta, it goes against him. The Patna case of Bansidhar Lal (supra) has been dissented from and in clear terms. it is observed as follows:-

'It was submitted that sub-section (3), which saved limitation applied only to those cases in which the amount became recoverable after the amending Act was passed. A careful reading of the section, however, makes it quite clear that what the section is dealing with is the amounts found due irrespective of when the liability was incurred.

As long as a sum is found due to the Custodian the Custodian can take action for its recovery even though the claim may be barred by time under ordinary law. This conclusion is inevitable from the wording of the section. The section speaks of sums payable to Government and sub-section (3) says that a sum is to be deemed to be payable despite the fact that its recovery is barred by limitation. Therefore, it is clear that this section was intended to cover those dues which had become barred before the Act came into force'.

11. In support of the view canvassed by the respondent that sub-section (3) of Section 48 is retrospective and not prospective, Mr. K. J. Vaidya, the learned Assistant Government Pleader heavily relies on & later decision of the Punjab High Court in Amar Nath v. Deputy Custodian/ Punjab, AIR 1963 Pun.1 225. As clearly observed in this decision --

'By sub-sections (2) and (3) of the amended Section 48, a machinery has been provided for deciding any question that arises as to whether a sum is payable to the Custodian within the meaning of sub-see. (1) of Section 48 or not and a deeming provision has been introduced to the effect that even time barred sums would become payable within the meaning of that sub-section the entire purpose of amending this section is to get over the difficulties created by the judicial decisions in respect of the old section, the result of which was that the Custodian could not realise such sums as were due to Muslim evacuees but which had become barred by time the intention of the legislature to left in no doubt that -whenever the question of the recovery of a, time barred debt is raised, it will be the Custodian who will decide it after making a proper enquiry and giving a hearing to the parties concerned. Once he determines that such a sum is payable to the Custodian within the meaning of sub-section (1) of Section 48, then that can be realised as an arrear of land revenue'.

12. In view of the legislative history and on going through the contents of the three sub-sections of Section 48 of the 1950 Act and Section 21 of the 1954 Act, there is no doubt in our mind that subsection (3) was specifically inserted to get over the difficulties which the Government had to face with regard to debts which were becoming time barred. It was specifically to tide over such difficulties that sub-section (3) was inserted. The intention of the legislature is, therefore, clear in enacting sub-section (3) that is to make the provisions thereof operative retrospectively and not prospectively. With respect to the learned Judges who decided the Patna case (AIR 1960 Pat 306) (supra), we fully, agree with the views expressed by the Punjab High Court in the two decisions cited above. Sub-section (3) therefore arms the respondent with an answer to the plea of limitation and the scheme of Section 48 of the 1950 Act and Section 21 of the 1954 Act makes it clear that all questions with regard to such recovery are to be decided by the competent authority under the Act.

13. If we place the interpretation on the contents of sub-section (3) as canvassed by Mr. Mehta, the same would have an effect of striking at the very intent and purpose of the amendment by which the said sub-section was brought on the statute book. The distinct purpose for which the said amendment was effected was to meet with the situation created by the judicial pronouncement arising out of pleadings of persons accountable for the realisation in connection with the evacuee property, taking shelter under the umbrella of non-recoverability of the debts on the ground that they had become time barred at the relevant time.

Without going into the larger question as to whether the provisions contained in sub-section (3) are of a procedural nature and therefore retrospective, the controversy can be resolved by virtue of the view which we have taken as aforesaid to the effect that by looking to the nature and content of the provisions contained in that sub-section, the legislative history behind it, the Intent and purpose for enacting the said sub-section by an amendment, in our opinion, there is no doubt that the legislature intended the provisions to be retrospective though they are not expressly so made.

14. There is, therefore. no substance In Mr. Mehta's submission that the Regional Settlement Commissioner is not competent to inquire into and decide the question with regard to a debt which appears to be time barred. In view of our decision with regards to the point raised by Mr. Mehta, it is not necessary to go into the question raised by Mr. Vaidya that sub-section (3) being a provision dealing with procedural law, it should be held to be retrospective and not prospective.

15. Mr. Mehra also drew our attention to Memon Abdul Karim Haji Tayab v. Deputy Custodian General, New Delhi, AIR 1964 SC 1256. Here also, the question with regard to the interpretation as to whether sub-sect ion (3) of Section 48 is prospective or retrospective, was raised before the Supreme Court, but the Supreme Court, on its decision on other points, did not allow the question as to the effect of sub-section (3) of Section 48 to be raised for the first time before the Supreme Court and the question was, therefore, left open by the Supreme Court. This decision, therefore, does not help Mr. Mehta in advancing the point which he canvasses viz. sub-section (3) is prospective and that the Custodian is not competent to inquire into the debt which is time barred.

16. Mr. Mehta then urged that, in the instant case, the proceedings are vitiated because under Section 21(2) of the 1954 Act, the Regional Settlement Commissioner is the only authority which can determine the questions involved in the inquiry and he cannot delegate his powers to the Deputy Custodian of Evacuee Property or to any other officer as was done in the present case. Mr. Mehta relied on documents produced at Exs. 31 and 33 to 39 in this connection. On scrutiny of these documents, we find that they are mostly communications or notices issued, either by the Deputy Custodian or Assistant Custodian upon the Plaintiff informing him about various date of hearing fixed in the recovery proceedings. To illustrate, Ex 31, though it is signed by the Deputy Custodian of Evacuee Property, in terms, shows that the plaintiff is requested to appear with all the evidence he wants to produce in support of his say before the Regional Settlement Commissioner, Bombay on the date fixed for hearing viz. 23rd August 1963. One of the documents shows -that the Regional Settlement Commissioner has delegated his functions of deriding the questions which arise in the inquiry under Section 21(2) to any other officer or authority. As a matter of fact, the learned Advocate for the plaintiff did appear before the Regional Settlement Commissioner and. he was heard in respect of the amount due to the Custodian department. Further time was granted to the plaintiff to produce vouchers in support of the deductions which he claimed and, thereafter, on the resumed date of hearing that is on 21st March, 1966, the Impugned order was passed, when neither the Plaintiff nor his advocate was present or was any adjournment sought. The Impugned order Ex. 57 does show that it is the Regional Settlement Commissioner who has applied his mind to the facts of the case. He has also considered the Plaintiff's case with regard to deductions and as a matter of fact, he has allowed deductions to the extent of Rs. 15,000/- and odd, and then fixed the final amount payable by the plaintiff to the department.

17. Again, in such matters, if any peripheral inquiry or any fact finding work is done by other officers, that would not vitiate the proceedings. We are fortified in the view that we take by a decision of the Supreme Court in the case of Praydat Kumar Bose v. Chief Justice of Calcutta High Court, AIR 1956 SC 285. As observed by the Supreme Court in this decision:-

'It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power. A functionary who has to decide an administrative matter, such as the dismissal of a m ember of the staff, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party has a fair opportunity to correct or contradict any relevant and prejudicial material'.

In the instant case, full opportunity was given to the plaintiff to present his case and he was heard and thereafter the final Order was passed by the Regional Settlement Commissioner. There is, therefore, no substance in this point urged by Mr. Mehta.

18. Mr. Mehta then submitted that in the instant case, the plaintiff was not an evacuee but he was a 'third party' and, the Regional Settlement Commissioner has, therefore, no authority to proceed against a third party. Liability, if any, of a third party can be enforced by means of a suit and not by having resort to the machinery provided under the 1954 Act. The inquiry relates to money claim which is not an evacuee property and which has to be recovered from a third party who Is not an evacuee and the Regional Settlement Commissioner, in the submission of Mr. Mehta, would have no jurisdiction- to recover the amount from the plaintiff who Is not an evacuee.

19. Now, this is not an inquiry with regard to evacuee property, as such, but as provided by Section 21(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 not been recovered under See. 48 of the Administration of Evacuee Property Act,. 1950 (31 of 1950), and any sum payable to the compensation pool, may be recovered in the same manner as an arrear of land revenue. The section, therefore, authorised the authority concerned to recover a sum payable in respect of an evacuee property which sum may be due in any of the contingencies set out in the section, the list thereof to cover liabilities of a non-evacuee is wide enough as is indicated by the words ' otherwise howsoever'. Again such a sum becomes payable to the Government not necessarily by the evacuee himself, but by any person who intermeddles with the evacuee property and who is, therefore bound to account for his management during the period he was in possession thereof from the date the property was effectively declared as evacuee property till the date possession was taken over by the Custodian department and therefore, sub-section (2) provides for an inquiry for considering the question that arises namely whether the sum is payable within the meaning of sub-section (1) in respect of any property referred to therein. Such question has to be referred to the Settlement Commissioner who, after making such inquiry as he may deem fit and giving to the person by whom the amount is payable, an opportunity of hearing, decide the question. The question of third party, therefore, does not arise here. The relevant question is whether the plaintiff is the person by whom the sum is alleged to be pay able. If so, an opportunity has to be given to him of being heard and then the Settlement Commissioner has to decide the question, which has been done in this case. What is relevant and material under sub-sections (1) and (2) is the sum or the amount of money payable to Government in respect of any evacuee property, irrespective of the person liable for such payment. It does not refer to the amount being payable necessarily by an evacuee himself. This contention of Mr. Mehta also is devoid of any substance and does not carry his case any further. It has to be borne in mind in this connection that recovery proceedings are in respect of a sum which has become payable to the Government in respect of the evacuee property because, after the property became evacuee property, the plaintiff had no right to keep possession and to recover and retain the income from the property. Such a sum becomes payable to the Government or to the Custodian. The recovery proceedings for such a sum would therefore clearly come within the scope of sub-section (1) of Section 21 and as a question touching recovery of such sum arises, the same has to be referred to the Settlement Commissioner as provided in sub-section (2) of Section 21. This last contention, therefore, of Mr. Mehta also fails.

20. Appeal dismissed.


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