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Rajasthan High Court · body

2007 DIGILAW 2065 (RAJ)

Ram Singh v. District Rehabilitation Officer

2007-10-25

BHANWAROO KHAN, RAJESH BALIA

body2007
JUDGMENT 1. - Heard learned counsel for the parties. 2. The issue raised in this appeal is simple but has a chequered history. It relates to the settlement of claim raised by one Baktawar Singh a displaced person, who has abandoned his land in Pakistan and has migrated to India during the disturbances immediately proceeding the independence. Said Baktawar Singh S/o Shri Madhav Singh was allotted 36 bighas 8 biswas of land vide Sanad 1188 dated 3.2.1959. As a result of the allotment of this land in Rajasthan, the earlier allotment made against the same claim in District Firojpur of Punjab was cancelled. Baktawar Singh's another claim No. 831 was rejected under the Displaced Persons Compensation and Rehabilitation Act, 1954. 3. Said Baktawar Singh holding the land under Sanad 1188 died in 1971. 4. On receiving the information about the rejection of claim No. 831, the District Rehabilitation Officer raised a demand by charging the amount for allotment of land on penal rate with interest thereon. After death of Baktawar Singh, the land in question was mutated in the name of petitioner-appellant Kartar Singh S/o Baktawar Singh. The respondent No. 4, Kartaro Bai whose legal representatives are respondents No. 4/1 to 4/5 claiming herself to be daughter of Baktawar Singh wanted the land to be mutated in her name. That claim of Kartaro Bai was rejected by the District Settlement Rehabilitation Officer on 31.5.1984. 5. The appeal against that order was allowed by the State Settlement Commissioner and matter was remanded back to the District Settlement/Rehabilitation Officer, on which remand, Kartaro 13ai and Kartar Singh were declared two heirs of Baktawar Singh by order dated 13.1.1987 and directed to issue fresh Sanad in the name of both the persons and recovery of amount of demand. 6. Against the order dated 13.1.1987, the appeal was preferred before the Additional District Collector, Sri Ganganagar by Kartar Singh which was rejected. Against the order of Additional Collector, a petition was filed before the District Collector-cum-State Settlement Commissioner, Sri Ganganagar, who set aside the order of District Settlement Officer as well as the Addl. Collector. 6. Against the order dated 13.1.1987, the appeal was preferred before the Additional District Collector, Sri Ganganagar by Kartar Singh which was rejected. Against the order of Additional Collector, a petition was filed before the District Collector-cum-State Settlement Commissioner, Sri Ganganagar, who set aside the order of District Settlement Officer as well as the Addl. Collector. This led to filing of revision petition before the Divisional Commissioner, Jaipur, who vide his order dated 21.9.1990 allowed the revision filed by Smt. Kartaro Bai and remitted the matter back to the Divisional Commissioner, who found that about the right to succession by Kartaro Bai, the dispute is pending between the parties. 'Though about half share of Kartar Singh, there is no dispute. He further found that the claimant Kartaro Bai is to prove that she is the daughter of Baktawar Singh. With these findings, he directed the District Rehabilitation Officer to hold a detail enquiry and decide the issue. He further directed that if even after enquiry, lie is unable to decide the issue, he may direct the concerned party to seek a declaration from the competent civil Court and produce its order to support her claim. With these observations, he further directed to appoint Receiver for half share claimed by Kartaro Bai and lie appointed the 'Tehsildar, Sri Ganganagar as Receiver of the moiety claimed by Kartaro Bai and to manage it.'This order was passed on 21.9.1990. 7. This order was made subject matter of writ petition No. 4552/1990 by the legal heirs of Kartar Singh, who are the present appellants. 8. The said writ. petition came to be decided on 10.9.1997. The Court found that the only grievance which has been raised by the learned counsel for the petitioner is regarding the appointment of Receiver. The property was claimed to be in possession of the petitioner as stay was granted by this Court on 23.10.1990. With these observations, the Court directed that without adjudicating it is observed that status quo as on today shall be maintained for a period of 4 months. The District Rehabilitation Officer, was to decide the matter in accordance with the directions given by the Divisional Commissioner within the period of 3 months from the date of submission of the copy of the judgment. 9. 'Thereafter by order Annex. The District Rehabilitation Officer, was to decide the matter in accordance with the directions given by the Divisional Commissioner within the period of 3 months from the date of submission of the copy of the judgment. 9. 'Thereafter by order Annex. 8 dated 7.5.2007, the Settlement Officer informed the Collector, Sri Ganaganagar and the Tehsildar that since the Act of 1951 has been repealed the Settlement Officer-cum-Sub-Divisional Magistrate is not deciding any pending matters under the aforesaid Act as the same have lapsed. 10. This led to filing of the present petition out of which this appeal has arisen. 11. The learned Single Judge has dismissed the writ petition that Kartaro Rai is the essential party and she has not been impleaded as party, therefore, the petition is dismissed. In appeal, Kartaro Bai's legal representatives have been mule parties. 12. So far defect of making parties is concerned, we are of the opinion that before dismissing the petition on that ground an opportunity ought to have been given to the petitioner to implead the necessary party. 13. So far as the question of lapsing of proceedings on repeal of the Displaced Persons Compensation and Rehabilitation Act, 1954 is concerned, it carte for consideration before a Division Bench of this Court to which one of us was a Member in D.B. Civil Special Appeal No. 840/2006 which has been decided on 12.9.2006. 14. The said writ petition was filed by one Ladu Ram and others challenging the order of Addl. District Collector-cum-Authorized Settlement Commissioner, Sri Ganganagar dated 29.12.2005 and the order of the District Collector-cum-Additional Chief Settlement Commissioner dated 9.1.2006 passed in revision holding that the pending proceedings cannot be continued in view of the fact that Act of 1954 had been repealed and there is no saving clause hence they lapsed automatically. The learned Single Judge had allowed the writ petition by holding that in view of Section 6 of General Clauses Act, the proceedings which are pending under the Act of 1954 at the time of its repeal cannot be deemed to have lapsed. In appeal against the said judgment, it was contended that in the absence of saving clause the pending proceedings do not survive relying on the Supreme Court decision in Kolhapur Canesugar Works Ltd, & Anr. v. Union of India & Ors., AIR 2000 SC 811 . 15. In appeal against the said judgment, it was contended that in the absence of saving clause the pending proceedings do not survive relying on the Supreme Court decision in Kolhapur Canesugar Works Ltd, & Anr. v. Union of India & Ors., AIR 2000 SC 811 . 15. Rejecting the aforesaid contention, the Court said that the decision in Koihapur Cenesugar Works makes out a clear distinction between repeal of a Central enactment and regulation as defined under Sections 3(19) and 3(50) of General Clauses Act on the one side and repeal of a Rule as defined under Section 3(51) of the General Clauses Act. 16. It has been stated that since the provisions of Section 6 has been made applicable only to an Act and regulation as defined in the Act and not to the rule framed under Central enactment which is not enacted as regulation as defines under Section 3(50) the repeal or omission of a Rule, as distinct from the Act and Regulations by amendment does not invite application of Section 6 of the General Clauses Act. 17. The Court concluded thus:- "Thus giving out specific meaning to the expression "Regulation" which has been included in term enactment Section 6 does not take within its compass any Rule framed under enactment. This position has been made more than clear while enacting sub-section 51 of Section 3 which defined the "Rule" to mean a Rule made in exercise of a power conferred by an enactment and includes a Regulation made as a Rule under any enactment." 18. 'Thus, Section 6 clearly applies in the case of repeal of an Act and in absence of anything contrary the pending proceedings do not lapse automatically but had to be continued. 19. In view thereof, vide communication Annex. 8 the submission of report to the High Court about the non-continuance of the proceedings due to repeal of the Act cannot be sustained and the concerned authority is directed to continue with the compliance of the directions of this Court contained in order dated 10.9.1997 passed in S.B. Civil Writ Petition No. 4542/1990 within a period of 4 months now from the date of receipt of the copy of this order either from the Court or on being produced by any of the parties before it. Moreover, the receiver shall continue to maintain the property until the decision of the matter pending before the Settlement Officer-cum-SDM, Sri Ganganagar. 20. Before parting with the case, we may observe that if any other matters are pending which have not been proceeded after repeal of the Act of 1954 though the same were pending at the time of repeal, shall be proceeded with and decided as early as possible. It is also made clear that auction made by the Receiver for the current year 2007-08 shall not be undone as a result of this order and if the pending matter is not decided until the expiry of period, the same shall be auctioned in accordance with law. 21. The appeal is accordingly allowed. Consequently the writ petition is allowed. The impugned communication Annex. 8 to the writ petition is quashed with direction to comply with the direction of this Court contained in order dated 10.9.1997 passed in S.B. Writ Petition No. 4542/1990 as aforesaid. 22. No costs.Appeal allowed. *******