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1966 DIGILAW 86 (DEL)

RAM LABHAYA v. UNION OF INDIA

1966-08-18

S.K.KAPUR

body1966
S B. Cpoor and H. R. Khanna, JJ. ( 1 ) THISLETTERS Patent Appeal is directed against the judgment of learned Single Jude dated the 6th of March 1964 whereby he dismissed the appellant s writ petition (Civil Writ No. 503-D of 1958) which was under article 226 of the Constitution of India. ( 2 ) THE facts relevant to the decision of the Letters Patent Appeal are not in dispute. The appellant as well as Ram Lal (respodent No. 5)- who is the only contesting respondent to this appeal as well as to the writ petition (hereinafter to be refrred is as the respondent) were allottees of house No. XII/2151 in Subzimandi, Delhi. This house was allotable property and was valued at Rs. 5,963. 00 by the Rehabilitation Department. The dispute beetween the parties relates to the question as to which of them is eligible for the transfer of this property under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act (Act 44 of 1954) (hereinafter to be REFERRED TO as the Act) and the rules thereunder, and the authorities have come to varying decisions from time to time. The question has to be determined with reference to rule 30 of the Rules made under the Act and this rule originally provided that "if more persons then one holding verified claims are in occupation of any acquired evacuee property, which is an allotable property, the property shall be offered to the person whose net compensation is nearest to the value of the property and other persons may be alloted such other acquired evacuee property which is allotable as may be avaiable. the petitioner as well to as the respondent held verified claims, the compensation payable to the former being Rs 1. 770. 00 and to the latter Rs. 1,380. 00. It may be mentioned here that the petitioner s wife also had a verified claim and compensation payable to her amounted to Rs. 1,032. 00. When the rival claims were adjudicated upon by the Managing Officer appointed under the Act, he found that arrears of rent of the property outstanding against the petitioner came to Rs. 554. 69 Naye Paise, while there were no such arrears outstanding against the respondent. 1,032. 00. When the rival claims were adjudicated upon by the Managing Officer appointed under the Act, he found that arrears of rent of the property outstanding against the petitioner came to Rs. 554. 69 Naye Paise, while there were no such arrears outstanding against the respondent. The Managing Officer deducted the amount of arrears from the amount of compensation to which the petitioner was entitled and then held that the net compensation due to the respondent was nearer to the reserve price of the property. Therefore, by his order dated the 12th of February 1958 (copy annexure e to the writ petition), he declared that the respondent was eligible for purchasing. the property. Subsequent to the date. of this order, an amendment of rule 30 came into force with effect from the 20th of February, 1958, according to which the eligility of the rival claimants was to be determined with reference not to the net compensation but to the gross compensation. The applicant s appeal against the Managing Officer s order was heard by the Additional Settlement Commissioner who, by his order dated the 15th of April, 1958 (copy annexure d to the writ petition held that the aforesaid amendment was not meant to have retrospective effect and could, therefore, not help the appellant. A further point was urged before the Additional Settlement Commsssioner, viz. , the question of assmilating the petitioner s wife s compensation to determine his eligibility, but the Additional Settlement Commisioner was not prepared to consider this point as it had been not raised by the appellant before the Managing Officer. The Additional Settlement Commissioner, therefore, dissmissed the appeal. ( 3 ) THE appellant then went up, by way of revision to the Chief Settlement Commissioner. In the Grounds of Revision, a copy of which has been filed by the appellant, both points were taken, viz. , first, that the amendment of rule 30 should be given retrospective effect and secondly that compensation due to the appellant s wife should have been clubbed together with a view to adjudicating the question of eligibility under rule 30. In the Grounds of Revision, a copy of which has been filed by the appellant, both points were taken, viz. , first, that the amendment of rule 30 should be given retrospective effect and secondly that compensation due to the appellant s wife should have been clubbed together with a view to adjudicating the question of eligibility under rule 30. The Deputy Chief Settlement Commissioner in his order dated the 11th of Augnst 1958 (copy annexure b to the writ petition) found the second point in favour of the appellant and, quashing the orders of the Additional Settlement Commissioner and the Managing Officer, he declared the appellant to be the person eligible for the transfer of the property. ( 4 ) THE matter did not end there and it appears that the respondent challenged the order of the Deputy Chief Settlement Commissioner under section 33 of the Act, and the Central Government in Exercise of its powers under the Act held, vide its order passed in December, 1958 (copy annexure c to the writ petition), that since the net cempensation payable to the respondent was nearer to the value of the property, he was entitled to its transfer. The order of the Deputy Chief Settlement Commissioner in favour of the appellant was thus set aside, and he then came to this court by way of a writ petition. ( 5 ) VARIOUS points were taken before, the learned single Judge, the first was that the Managing Officer had DO jurisdiction to determine and deduct the public dues from the claim of the appellant while determining the question of eligibility underrule 30. The second point was that the verified claim of the appellant s wife should have been clubbed together with his claim, and the last point was that the amendment to rule 30, whereby the word gross was substituted for the word net , should be given retrospective operation. All these points were found by the learned Single Judge against the appellant. ( 6 ) MR. All these points were found by the learned Single Judge against the appellant. ( 6 ) MR. A. N. Aurora, learned counsel for the appellant, has argued before us the third point only, and he has brought to our notice that in Mela Ram v. The Government of India, Ministry of Rehabilitation, and others (Letters Patent Appeal 92 of 1963), decided on 19th of February, 1964, a Bench of this court has held that rule 30 of the Rules is retrospective in its operation not only upto the stage of appeal under the Act but also to the stages of revision before the Chief Settlement Commissioner and the petition to the Central Government under section 33 of the Act. In coming to this conclusion, Dua, J. , who spoke for the learned Judge? constituting the Bench, considered the provisions of the Act as well as the Rules made thereunder and also reviewed the various judgments of this court on the subject including the judgment of Shamsher Bahadur, J. , in Dr. KhushiRam v. The Union of India which the learned single Judge followed in the writ petition giving rise to this appeal. ( 7 ) MR. Bishamber Dayal, learned counsel for the respondent, contended that the judgment of the Letters Patent Bench in Mela Ram s case was not correct and required reconsideration. He maintained that. as held by the Supreme Court in State of U. P. v. Babu Ram the rules must be constructed exactly as if they were in the Act. and this is of course an undisputed proposition of law. He further asserted that statute, which affects substantive rights, is not retrospective in its operation unless the Legislature states clearly or by distinct implication that the statute will be retrospective so as to affect vested rights (vide Messrs Gordhan Dass Baldev Dass v. The Governor-General in Council and Mahadeolal v. Administrator General of West Bengal . He then contended that by the order of the Managing Officer in his favour, the respondent had acquired a substantive, if not a vested, right to the transfer to him of the house in question. However, as the judgment of the Letters Patent Bench in Mela Ram s case- would show, all these considerations were present in the mind of the learned Judges but were repelled. Mr. Bishamber Dayal has been unable to persuade us that, that judgment requires recousideration. However, as the judgment of the Letters Patent Bench in Mela Ram s case- would show, all these considerations were present in the mind of the learned Judges but were repelled. Mr. Bishamber Dayal has been unable to persuade us that, that judgment requires recousideration. ( 8 ) THIS should really conclude the matter but some other points were also taken up by learned counsel for the respodent. In the first piace, it was argued that in the Letters Patent appeal before the Bench the orders of the Central Government were not disturbed, but this was only because the Central Government had given retrospective operation to the amendment in rule 30 and it was futile to argue that if the Central Government chooses in a certain case not to give retrospective effect to the amendment in that rule, its order would not be liable to be quashed by this court. Then it was pointed out on the authority of Syed Yakoob v. Radhakris anan that a writ of certiorari under article 226 of the Constitution of India can only be issued where an inferior court or tribunal acts without jurisdiction or in excess of it or its order amounts to failure to exercise jurisdiction, and so far as the impugned order of the Central Government is concerned, it was maintained that there is no error of law on the fact of the record. This argument has again no substance because the sole basis, on which the impugned order proceeds, is that: the Respondent 1s entitled to the transfer of the property in question as the net compensation payable to him is nearer to the value of the Property That, in view of the admitted facts,is an error of law patent on the face of the record. It was then contended that this particular point, viz. whether elgibility was to be determined with reference to gross compensation or net compensation ,was not raised by the appellant before the authorities under the Act. This argument is not correct because this particular question was considered in the order of the Additional Settlement Commissioner dated the 15th of April, 1958 and was also raised in the grounds of Revision before the Deputy Chief Settlement Commissioner, though he chose to decide the revision petition on another point. Lastly, it was pointed out by Mr. This argument is not correct because this particular question was considered in the order of the Additional Settlement Commissioner dated the 15th of April, 1958 and was also raised in the grounds of Revision before the Deputy Chief Settlement Commissioner, though he chose to decide the revision petition on another point. Lastly, it was pointed out by Mr. Bishamber Dayal that rule 30 and 31 of the Rules have been aborgated with effect from the 3rd of August 1963. This, however, was long after the making of the impugned orders, any alteration in the rules during the pendency of the writ petition would not affect the rights of the parties. The same was the view of the Letters patent Bench in Letters Patent Appeal No. 92 of 1963. There is, therefore, no force in the various points raised by learned counsel for the respondent. ( 9 ) IN the result, following the decision of the Letters Patent Bench in Mela Ram s case , we allow this appeal, setting aside the order of the learned single Judge and also quashing the impugned order of the Central Government under section 33 of the Act, with the result that the order of the Deputy Chief Settlement Commissioner declaring the appellant to be the person eligible for the transfer of the property is restored and the Writ Petition is allowed with the direction that the property in dispute be transfered to the appellant in accordance with the order of the Deputy Chief Settlement Commissioner, dated the 11th of August, 1958. The appellant will have his costs in the appeal as well as before the learned Single Judge. Counsel s fee Rs. 100. 00.