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Karadia Jetha Kana, Etc. Vs. Managing Officer-cum-collector and Settlement Commissioner-cum-collector, Junagadh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal Nos. 160 and 247 of 1977
Judge
Reported inAIR1981Guj27; (1981)0GLR239
ActsConstitution of India - Articles 226 and 227; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 24; Administration of Evacuee Property Act, 1950 - Sections 7
AppellantKaradia Jetha Kana, Etc.
RespondentManaging Officer-cum-collector and Settlement Commissioner-cum-collector, Junagadh and ors.
Appellant Advocate T.D. Vyas, Adv.
Respondent Advocate P.V. Hathi, Adv.
Excerpt:
- - therefore, the petitioners filed these two writ petitions challenging the orders made by the chief settlement commissioner as well as the orders of allotment made by the collector. hathi is not well founded. failure to raise a contention in judicial or quasi-judicial proceedings decided by a subordinate court, or subordinate forum may militate against the petitioners when they challenge that order in a writ petition particularly under art. before such a declaration could be made, all interested parties have necessarily to, be heard under section 7. therefore, section 7 of the administration of evacuee property act, 1950, clearly disclosed a scheme that the declaration should be made after hearing all the interested parties and that that declaration would be the evidence of the..........by her in pakistan. revision applications against these allotment orders were filed before the chief settlement commissioner under section 24 of the displaced persons (compensation and rehabilitation) act, 1954. both of them were rejected. therefore, the petitioners filed these two writ petitions challenging the orders made by the chief settlement commissioner as well as the orders of allotment made by the collector. the principal contention which was raised on behalf of the petitioners in the two petitions was that the lands in question belonged to them and that, therefore, they could not have been declared as evacuee properties. the learned single judge who heard the petitions rejected the contentions raised on behalf of the petitioners and dismissed both the petitions. 2. those.....
Judgment:

S.H. Sheth, J.

1. These two Letters Patent Appeals are directed against the common order recorded by Mr. Justice J. B. Mehta in Special Civil Application No. 952 of 1974 and Special Civil Application No. 1060 of 1974. The material facts in Letters Patent Appeal No. 160 of 1977 are as follows.

Survey Nos. 226 and 121/3 of village Lathodara in- Mangrol Taluka of Junagadh District were received by the original petitioner from Aba Jusab and Osman Suleman in exchange of his lands. The deed of exchange was executed on 27th December, 1950. It was registered. Aba Jusab and Osman Suleman migrated to Pakistan. Therefore, a declaration that the lands in question were evacuee properties was made. It appears that nothing happened thereafter. In January 1971, Mamlatdar of Mangrol deputed an officer to take possession of the lands in question because after holding an enquiry, the Collector had allotted the lands in question to one Tikabai Motumal who migrated from Pakistan to India and who had made a claim for compensation in respect of the properties which were left by her in Pakistan. Revision applications against these allotment orders were filed before the Chief Settlement Commissioner under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Both of them were rejected. Therefore, the petitioners filed these two writ petitions challenging the orders made by the Chief Settlement Commissioner as well as the orders of allotment made by the Collector. The principal contention which was raised on behalf of the petitioners in the two petitions was that the lands in question belonged to them and that, therefore, they could not have been declared as evacuee properties. The learned single Judge who heard the petitions rejected the contentions raised on behalf of the petitioners and dismissed both the petitions.

2. Those orders are challenged by the original petitioners in these appeals under clause 15 of the Letters Patent.

3. The first contention which Mr. Hathi has raised relates to the maintainability of these appeals. According to him, the orders made by the Chief Settlement Commissioner were quasi judicial orders and that therefore, the writ petitions which were filed by the petitioners were in the nature of revisional applications under Art. 227 of the Constitution. According to him, therefore, what the learned single Judge had done was to exercise revisional jurisdiction in respect of the subject matter in controversy. Therefore, under clause 15 of the Letters Patent, no appeal could lie against the order of the learned single Judge because clause 15 of the Letters Patent excepts appeals against orders made in exercise of revisional jurisdiction. The contention raised by Mr. Hathi is not well founded.

4. A quasi judicial order results from the decision of lis between two parties given by a disinterested third party. In the instant case, there was no lis between the two parties which a third disinterested party had decided. On 16th December 1971, Settlement Commissioner-cum-Collector, Junagadh, made an administrative order in respect of the lands in question under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. In pursuance thereof, an allotment order was made on 20th Dec., 1971 by Managing Officer-cum Mamlatdar, Evacuee Properties, Junagadh. Settlement Commissioner-cum-Collector and Managing Officer-cum-Mamlatdar were the persons who made the orders. Those orders were challenged before a higher administrative authority, viz. Chief Settlement Commissioner. It is difficult to say under these circumstances that the Chief Settlement Commissioner was exercising the quasi judicial function of deciding lis between the two parties because there was no in the instant case. The Collector and the Mamlatdar had made administrative orders in the matter of evacuee properties and they were called in question before the Chief Settlement Commissioner who was the administrative head of the Collector and the Mamlatdar. Therefore, though the Chief Settlement Commissioner decided the revision applications, he did so in his administrative capacity as the head of the Collector and Mamlatdar in matters relating to evacuee property. It was, therefore, an administrative order which he made. It was not a quasi-judicial order.

5. Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, under which revision applications were filed provides that the Chief Settlement Commissioner may, at any time, call for the record of any proceeding under the Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a 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. Indeed, sub-section (3)of Section 24 provides: 'No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard.' Sub-section (4) provides for a remedy against the order read by the Chief Settlement Commissioner if it has been made under sub-section (2) of See. 24. It is difficult under the aforesaid circumstances to hold that the Chief settlement Commissioner made a quasi-judicial order in a lis between two persons while acting as the disinterested third party. In fact, in the instant case, there were no two parties at all. Therefore, there was no lis. Therefore, within the meaning of clause 15 of the Letters Patent, we are unable to hold that the Chief Settlement Commissioner exercised revisional jurisdiction of a quasi judicial character. In that view of the matter the writ petitions which the petitioners filed were original petitions under Article 226 of the Constitution. Not only the petitioners invoked Art 226 but the writ petitions justifiably were governed by Art. 226 of the Constitution. Since they were original proceedings decided by the learned single Judge, an appeal against his orders is competent under clause 15 of the Letters Patent. The first objection which has been raised by Mr. Hathi, therefore, fails and is rejected.

Paras 6-10 [ xx xx xx xx xx xx xx]

11. There is one more aspect which is required to be dealt with. Before we do so, we propose to refer to the findings recorded by the learned single Judge. In regard to the contention raised by Mr. Vyas with reference to the non-service of notice under Section 7 of the Administration of Evacuee Property Act, 1950, the learned single Judge has held that that contention cannot be allowed to be raised because it was not raised before the Chief Settlement Commissioner. We are unable to uphold that finding recorded by the learned single Judge because the present proceedings are original proceedings, properly so called, instituted under Art. 226 of the Constitution. Therefore, whether a particular contention was raised before the administrative authorities below or not is not very material. Failure to raise a contention in judicial or quasi-judicial proceedings decided by a subordinate Court, or subordinate forum may militate against the petitioners when they challenge that order in a writ petition particularly under Art. 227. That situation does not necessarily obtain in the present petition. Therefore, we are unable to uphold the view expressed by the learned single Judge in that behalf.

12. It was next observed that a property which belonged to a person who migrated to Pakistan automatically vested in the Custodian and that, therefore, strictly speaking, a declaration under Section 7 was not necessary. We are unable to agree with that view of the learned single Judge. Whether a property had automatically vested or not can be evidenced only by a declaration. In absence of any declaration, it is difficult for a Court of law to come to the conclusion that it had vested in the Custodian of Evacuee Property. Before such a declaration could be made, all interested parties have necessarily to, be heard under Section 7. Therefore, Section 7 of the Administration of Evacuee Property Act, 1950, clearly disclosed a scheme that the declaration should be made after hearing all the interested parties and that that declaration would be the evidence of the property having been declared to be an evacuee property and having vested in the Custodian of Evacuee Property. The concept of automatic vesting without a declaration under Section 7 cannot be stretched with great respect to the learned single judge, to the extent that irrespective of whether all interested parties were heard or not, the vesting was so automatic that it could not be called in question by a person who was after self affected by it even though he was Steven no opportunity of being heard. To take any such view is to bid farewell to the Rule of law.

13. So far as Section 7A of the Administration of Evacuee Property Act, 1950, is concerned, it does not come into play in the instant case.

14. So far as the learned Judge's view that the aforesaid declaration of 1954 could affect the registered transactions of exchange effected in 1954 is concerned, all that we can save is that they would be affected if the petitioners were heard or were given a reasonable opportunity of being heard as required by Section 7 of the Administration of Evacuee Property Act, 1950. If they were not heard, they could not be affected. It is the cardinal principle of rule of law that no decision adversely affecting a party can be rendered unless he has been heard in support of his case. (xx xx xx).

15. Appeals allowed.


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