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1996 DIGILAW 53 (CAL)

Assistant Custodian of Enemy Property for India v. Ujjal Kumar Singh

1996-02-09

Samir Mookherjee, VISHESHWAR NATH KHARE

body1996
JUDGMENT S. K. Mookherjee, J.: This is an appeal, at the instance of the Union of India and its officers, viz., the Assistant Custodian of Enemy Property for India & Others and it is directed against the order of a learned Single Judge, dated 30th April, 1993, disposing of the writ petition, inter alia, with a direction that the writ petitioners, who are respondents here, be paid a sum of Rs. 54,22,220 within 8 weeks from the date of the communication of the said order. 2. It is, at this juncture, necessary to note that, in terms of a Scheme framed by the Government of India, the private respondents, who had properties in East Pakistan were permitted to get 25% of the value of the properties left and the valuation for the purpose had been made by a Recommendatory Panel (hereinafter referred to as the 'First Panel') and on the basis of the report of the said First Panel the private respondents appeared to have become entitled to the sum as directed to be paid by the learned Judge but the Government of India did not accept the recommendation of the First Panel; instead, it appointed another panel (hereinafter referred to as the 'Second Penal') to revalue and reassess the properties left by the writ petitioners in East Pakistan. On the basis of the report of the Second Panel the entitlement, @ 25%, went down to a sum of Rs. 77,000 and odd and payments were directed to be made on that basis upon acceptance of the said report by the Government of India of the Second Panel. It is, at that stage, that the writ application had been taken out by the private respondents/writ petitioners, challenging the action of the Government of India in proposing to pay a largely reduced amount where on, the order noted above was passed by the learned Single Judge. 3. The learned Single Judge in passing the said order appears to have been convinced by absence of any finding about the incorrectness of the recommendation of the First Panel and also the absence of any objection to the said Panel. The present appeal, as stated above is directed against the said order of the learned Single Judge. 4. We have heard the learned Counsel for the appellants before us as also on behalf of the writ petitioners, at length. The present appeal, as stated above is directed against the said order of the learned Single Judge. 4. We have heard the learned Counsel for the appellants before us as also on behalf of the writ petitioners, at length. From the submissions, which have been made by them, it appears to us that we were invited to adjudicate certain contentions, which can be stated as follows, and while so stating we also express the reasons for our conclusion on such contentions; 5. In the first place, a point was raised that the Government had no authority to call for a revised or fresh recommendation from another panel. With regard to the same, the fact that the Government has the authority to finally accept the recommendation of the panel and sanction payment of the amount on the basis of such recommendation has not been controverted. It is also undisputed that there is no specific bar on exercise nor absence of authority for the Government to direct fresh evaluation if the circumstances so required. In such admitted state of affairs, we are of the view that the action of the Government in calling for a second recommendation cannot be said to be illegal or void. When the Government has an authority to affix its final approval or acceptance to the amount recommended by a panel, it can be presumed to be vested with all incidental and ancillary powers, which are needed to be exercised for enabling it to grant a proper acceptance or approval. Though we should not; however, be understood to have accepted that the second recommendation was, in effect, a review, yet assuming, for the sake of argument, that it was so, it is well settled by judicial decisions that in such a situation an administrative power of review remains available to the Government, either expressly or impliedly, in contra-distinction to lack of such judicial power of review except when granted by a specific provision or when such power is inherent in a Court of records. For authorities references may be made to the cases of State of U.P. and Ors. vs. Maharaja Dharmander Prasad Singh and Ors. reported in 1989(II) SC cases 505 and R.R. Verma and Ors. vs. Union of India and Ors., reported in 1980 (III) SCC 402 . For authorities references may be made to the cases of State of U.P. and Ors. vs. Maharaja Dharmander Prasad Singh and Ors. reported in 1989(II) SC cases 505 and R.R. Verma and Ors. vs. Union of India and Ors., reported in 1980 (III) SCC 402 . To hold a view to the contrary, would be to impose a compulsion on the Government to affix mechanically a seal of approval to whatever recommendation is made by a panel. 6. The second contention is that there are certain errors apparent on the face of the second recommendation as it failed to consider the documents relating to urban lands owned by the writ petitioners though such documents were filed. On a reading of the recommendation itself, we are satisfied that for reasons which appeared to be convincing to the panel, it did not feel inclined to accept such documents relating to the urban lands belonging to the petitioners to be unimpeachable and sitting in the writ jurisdiction, we do not propose to interfere with such factual opinions of the panel. 7. As an off shoot to the above submission, it was further contended that even according to the proviso to s. 20 of the East Bengal State Acquisition and Tenancy Act, 1950, the writ petitioners were entitled to hold more than 100 standard bighas, taking into consideration the total number of members of their families, at the relevant point of time. This contention, however, appears to have some substance so far as the writ petitioners are concerned inasmuch as in the recommendation itself the panel took note of existence of 13 units constituting the Mitakshara family but concluded that the maximum limit under the statute was 100 standard bighas. This to us is clearly an erroneous conclusion and cannot be sustained in view of the clear language of proviso to s. 20 of the Act. It is pertinent in this connection to note that the writ petitioners' claim of separation through partition in 1954 cannot have much relevance as the vesting in terms of the law prevalent in East Bengal, at that point of time, must have taken place prior to 1954. It is also not relevant, even if in terms of Indian Law, the petitioners were entitled to larger areas of lands in India. 8. It is also not relevant, even if in terms of Indian Law, the petitioners were entitled to larger areas of lands in India. 8. The learned Trial Judge, while passing the order impugned in the appeal, failed to give effect to the aforesaid legal principles and, accordingly, the decision under appeal deserves to be set aside. We, therefore, allow the appeal, set aside the impugned decision and dispose of the writ by directing the respondents to remand the matter either to an existing panel or freshly constituted panel for reconsideration, on merit and according to law, writ-petitioners' entitlement to the number of bighas in terms of s. 20 as referred to above and for recommendation of the amount of compensation the petitioners would become entitled to, commensurate with the area to be so found by the panel. Since there has been a long delay we would direct the respondents, the governmental authorities, to expedite the process of recommendation so that the same may preferably be completed within a period of three months from the date of communication of this order by production, before the appropriate authority, of a certified copy of this order. In the facts of the case each party is directed to bear his own cost. 9. The appeal is disposed of accordingly. 10. There will be no order as to costs. 11. Let a xerox certified copy of this judgment and order be given to the parties applying on urgent basis within 7 days from the date of the deposit of the requisites in terms of the Rules of this Court, counter-signed by the Assistant Registrar of this Court. Visheshwar Nath Khare, J.: I agree. Appeal allowed with necessary directions.