Ashish Ramchandra Aswani vs Mohamed Aslam & 3 Others
2017 Latest Caselaw 6369 Bom

                                               1               WP2456.99.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO. 2456 OF 1999

            Dayaram Bhuromal Aswani
            (since deceased thr. L.Rs)
            Ashish Ramchandra Aswani,
            aged about 9 years, Occ. Student,
            R/o. Sindhusagar Society, Plot No.3,
            Clock Town, Nagpur      ......                                 PETITIONER

                                ...VERSUS...

 1]         Mohamed Aslam,
            Deputy Secretary and also Chief
            Settlement Commissioner, Ministry
            of Home Affairs, Rehabilitation Division,
            Jaisalmer House, Mansing Road,
            New Delhi

 2]         Union of India, through the Secretary,
            Ministry of Home Affairs, Rehabilitation Division,
            Jaisalmer House, Mansing Road,
            New Delhi

 3]         Settlement Commissioner for 
            Compensation Pool Properties Cum
            Custodian of Evacue Properties,
            3rd Floor, Konkan Bhavan, New Bombay.

 4]      The State of Maharashtra, through the
         Secretary, Rehabilitation, Revenue and 
         Forest Department, Mantralaya,
         Mumbai                             ............                       RESPONDENTS
 -------------------------------------------------------------------------------------------
 Ms. Komal Mundle, counsel for petitioner
 None for Respondents.
 -------------------------------------------------------------------------------------------
                           CORAM: R. K. DESHPANDE, AND
                                        MANISH PITALE, JJ.
                                          th
                           DATE    : 18    AUGUST 2017



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 JUDGMENT (Per Pitale, J.)

1] This writ petition was filed by the predecessor of

the present petitioner claiming that the predecessor i.e.

Dayaram Aswani and his two brothers - Hiranand and

Gellmal migrated to India from West Pakisthan as a result of

partition of the country in the year 1947. It is claimed that

there were certain lands belonging to the family, which were

abandoned as a result of partition and migration and that,

therefore, the family had a claim under the Claims Act, 1950

and also the claim under [The] Displaced Persons

(Compensation and Rehabilitation) Act, 1954 and Rules

framed therein. The petitioner further relies upon an order

dated 16.04.1991 passed by the Assistant Settlement Officer

under the provisions of the aforesaid Act, holding that the

brother Gellumal was entitled to 1/3rd share of the

compensation pool. It is further stated that by an order dated

30.12.1986 passed by the Settlement Commissioner, it was

held that the other brother Hiranand was entitled to the

benefit of Rule 19(2)(a), which provides that the members of

the family would be granted compensation in equal shares.

The predecessor of the petitioner i.e. Dayaram relied upon

3 WP2456.99.odt

the will dated 30.01.1959 executed by his brother Hiranand

whereby the share of agricultural lands to which Hiranand

was entitled were bequeathed to the said Dayaram. The said

will was probated by an order dated 05.11.1993 passed in

Probate Application No. 20 of 1993, which is also placed on

record with this writ petition.

2] The said Dayaram, on the basis of the order

dated 30.12.1986 passed in favour of Hiranand, as also the

order dated 05.11.1993 granting probate of the will dated

30.01.1959, approached the respondents for grant of share

of 1/3rd to which the said Hiranand was entitled under the

provisions of the said Act and the Rules. Such application

was made by Dayaram on 25.05.1995 and reminders were

sent to respondent No.1. Despite the claim made by

Dayaram and the reminders submitted before the

respondent No.1, there was no order passed on the claim

made by Dayaram. In this writ petition, the said Dayaram,

predecessor of the present petitioner, has prayed for

direction to the respondents to grant appropriate benefit

under Rules 19(2)(a) of the aforesaid Act.

                                                         4                  WP2456.99.odt

           3]              On   14.07.2017,     this   Court   had   passed   the

           following order.

"It is surprising that till this date the Union of India has not filed any return in the matter. Shri Aurangabadkar, the learned A.S.G.I. seeks two weeks time in this matter for filing return and argument. He submits that he is not having any papers and he will have to collect it and file the return.

1] Though the matter is of year 1999, we grant four weeks time by way of last chance to the respondents. If no return is filed or affidavit is filed in respect of this petition, the Court shall not accept any reply or return filed subsequent to the said date.

2] Put up this matter after four weeks."

4] Despite the fact that four weeks time was

granted as a last chance to the respondents to file return on

affidavit in this writ petition, there is no such return filed and

none has appeared for the respondents.

5] In these circumstances, we deem it fit to direct

the respondent Nos. 1 to 3 to consider the claim of the

petitioner in the light of the documents referred to above and

to pass appropriate order within a period of three months

from the date of receipt of the copy of this order. All

questions are left open and the writ petition is disposed of in

above terms.

                                JUDGE                                       JUDGE
 Rvjalit