Bhim Sen vs Kusum Prasad And Ors.
1991 Latest Caselaw 271 Del

JUDGMENT

S.B. Wad, J.

(1) This petition under. Article 227 of the Constitution has been filed against three orders passed by the Director, exercising the powers of the Central Government, dated 6.6.75, 10.6.75 and 12.6.75. These orders were passed by the Director exercising the powers of revision under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act 1954. The immediate dispute leading to the said revision was the execution of the lease deed of Shop No. 16, Nizammuddin West, New Delhi, in favor of Pappu Lal and Krishan Lal, sons of Late Lila Ram, on 31.10.1970.

(2) Petitioner Bhim Sen and one Dayal Singh had represented to the Managing Officer that their names be included in the lease deed Along with Pappu Lal and Krishan Lal, as having contributed money for the purchase of the allotment rights under the Displaced Persons (Compensation Rehabilitation) Act, 1954.

(3) One Shri Lila Krishan Chawla, claiming to be the attorney of Dayal Singh had informed the Managing Officer that the name of Dayal Singh cannot be entered in the lease deed as Dayal Singh had given irrevocable power of attorney to him viz. Lila Krishan Chawla, relinquishing his rights in his favor. His application was rejected by the Managing Officer by his letter dated 19.10.70. Lila Krishan Chawla filed an appeal against the said letter. Thereafter the entire question of the allotment was remanded for reconsideration vide orders dated 9.12.70 and 22.4.72 by the Managing Officer and the authorised Chief Settlement Commissioner respectively.

(4) The said remand orders were challenged by Pappu Lal and Krishan Lal in the revision petition before the Director. Through order dated 6.6.75 the Director ordered that the proceedings against Bhim Sen and Lila Krishan Chawla be held ex-parte because of their absence for non-pursuance. The Director had issued notices of the hearing of the revision petition to Shri Bhim Sen and Dyal Singh through their Advocate, Mr. P.N. Talwar. Neither of them were present bu tMr.Talwar appeared. He stated before the Director that the parties had withdrawn the brief from him and prayed for issuing notices to the parties. The Director found from the record that the Vakalatnama of Mr. P.N. Talwar, Advocate, was still on the record and there was no letter on the file showing that the Vakalatnama bad been withdrawn. On 10.6.75 the Director proceeded to decide the matter on merits.

(5) On merits the Director found that Dayal Singh, who had allegedly contributed the major share in the payment for allotment, had consented in writing on 28.11.62 that the lease deed should be made in favor of Pappu Lal and Krishan Lal and that he had no interest in the shop. In view of the consent letter dated 28.11.62 by Dayal Singh the Director found that the remand orders passed by the Managing Officer and the authorised Chief Settlement Commissioner were unwarranted and incorrect. The Director also held that Lila Krishan Chawla who claimed to be the attorney of Dayal Singh had no locus standi since Dayal Singh's letter dated 28.11.62 was not withdrawn by him and the lease deed was already executed on 31.10.70. By order dated 12.6.75 the Director dismissed the application filed by Dayal Singh and Bhim Sen for setting aside the ex-parte order dated 6.6.75. At the time of hearing Dayal Singh was not present nor had he filed any affidavit supporting the application for setting aside the ex-parte order. Bhim Sen stated in his application and affidavit that Mr. P.N. Talwar, Advocate, was authorised only to act in the Court of Shri Ajwani and he himself could not attend the hearing as he was suffering from kidney trouble. The Director found that Bhim Sen had not produced any medical certificate in support of his submission that he was suffering from kidney trouble. As regards the Vakalatnama of Shri P.N. Talwar, Advocate, the Director found that the Vakalatnama mentioned all Courts, including High Courts, where the Advocate could appear under the authority of Bhim Sen. On these facts the application for setting aside the ex-parte , was dismissed by the Director on 12.6.75.

(6) The first submission of the Counsel for the petitioner is that the power under Section 33 of the Act is to be exercised by the Central Government and could not be delegated to the Director working in the Rehabilitation Department. There is no merit in the submission. The power in the Central Government under Section 33 of the Act is described as a residuary power of the Central Government, the exercise of which depends upon the circumstances of each case, where in the opinion of the Central Government interference is called for. This power is akin to the normal revisional power since the Central Government can call the record also. Power under Section 33 is held to be neither an appellate power nor a revisional power, but something unique to meet the cases of unusual hardship to the refugees who had come from Pakistan in 1947. It has, therefore, been held in several decisions that it is not necessary that the parties should be given an oral hearing before the order is passed or it was necessary to pass an regular speaking order. Of course with the modern development of the principles of natural justice these old decisions might have lost some relevance. But still the unique nature of this power cannot be explained away. It has been held by this Court in that the decision of the Central Government under this Section is an institutional decision, as distinct from the personal decision. Any authorised officer may deal with the business in question on behalf of the Central Government. Section 34 of the Act confers express power on the Central Government to delegate any of its powers to the subordinate officers. This will certainly cover the power of the Central Government under Section 33 of the Act.

(7) The next submission of the counsel for the petitioner is that the rules under the Act do not permit an Advocate to appear in the proceedings under the Act and, therefore, Shri P.N. Talwar, Advocate, could not have appeared in contravention of law and, particularly, when his authority was withdrawn. This was not the argument raised before the Director on behalf of the petitioners. It is clearly an afterthought. What was stated before the Director Was that the power of attorney was given for appeal only in one Court and not before the authority exercising powers under Section 33 of the Act. This was, on facts, found to be wrong by the Director because the power of attorney stated all Courts, including the High Court. Since the powers of various authorities under the Act are akin to quasi-judicial powers the authorities have been invariably permitting the appearance of lawyers in the cases before them. Having used the indulgence of engaging the lawyer .before the subordinate authorities the petitioner cannot now turn around and say that the rules do not permit appearance of a lawyer. This submission is also rejected.

(8) On reading the order of the Director, ordering ex-parte hearing and also the order rejecting the application for setting aside the ex-parte order, I am satisfied that the Director had followed the reasonable and correct approach and the findings cannot be faulted on any ground.

(9) The counsel for the respondents has, however, pointed out that the present petition is barred by the principles of res-judicata because a similar writ petition filed by Shri Lila Krishan Chawla, alleged attorney of Dayal Singh (CM(M)No.1l7/76)hadtobe withdrawn before the Court of Justice Tps Chawla on 1.2.1977. The Court had seen through the game of Lila Krishan Chawla filing the petition and not Dayal Singh, who had earlier given up his claim in the shop in question. Justice Chawla had directed Lila Krishan Chawla to keep Mr. Dayal Singh present in the Court as Lila Krishan Chawla was claiming to be the attorney of Dayal Singh. Lila Krishan Chawla failed to produce Dayal Singh in Court and on 1.2.1977 the said petition was withdrawn in order to avoid the dismissal at the hand af the Court. The submission of the counsel for the respondents is that the present petitioner himself was claiming the right through Dayal Singh and Dayal Singh having not preferred any petition and the petition filed by Lila Krishan Chawla being dismissed as withdrawn, the present petition was not maintainable. There is good deal of substance in this submission. It may be noticed that Dayal Singh was not present even for setting aside the ex-parte order. The ex-parte order had, therefore, become final against Dayal Singh. Moreover, Dayal Singh had given up his claim as early as in 1962. The Director had held that Lila Krishan Chawla had no lacus standi and the said order had become final by the withdrawn of CM(M). 117/76 in this Court Bhim Sen had no separate claim except the one under Dayal Singh by way of purchase of his rights. As a matter of fact, throughout the litigation at various stages before the authorities under the Act separate claim of Bhim Sen was never recognised.

(10) On merits also the order passed by the Director on 12.6,75 cannot be assailed as it is a correct order. As a matter of fact the impugned order has done full justice to the claims of Pappu Lal and Krishan Lal. The original allotment of Shop No. 16, Nizammuddin West, New Deihi, was made in the name of Lila Ram after he migrated to India in 1947 on the partition of the country. Pappu Lal and Krishan Lal are his two sons. Lila Ram had a brother by the name of Kanwar Bhan, father of Bhim Sen, the present petitioner. Kanwar Bhan was allotted Shed No. 9, Azad Market, Delhi 110006. Kanwar Bhan sold the said shed. In 1956 Lila Ram the original allotted of the shop in dispute died. Thereafter, Kanwar Bhan, through various tricks and false defenses filed the proceedings before the Rehabilitation authorities and tried to grab the Shop. His first attempt was to show that the Shop was allotted to the joint family, consisting of Lila Ram and Kanwar Bhan. Pappu Lal and Krishan were minors at the time of the death of their father Lila Ram. After failing to get the allotment in the joint name, Kanwar Bhan got himself appointed as the guardian of Pappu Lal and Krishan Lal and took the physical possession of the shop and started running the shop. On behalf of the two minors Kanwar Bhan purchased compensation claims from one Dayal Singh and Parmanand to make up for the price payable for the said shop. The authorities under the Act later on found that Kanwar Bhan's interest was conflicting with the interest of the minors and, therefore, he could not act as a guardian. Thereafter the District Court appointed the mother of the minors as the guardian. After Kanwar Bhan was removed from guardianship, fresh proceedings were started before the Rehabilitation Authorities to see that lease deed of the shop was not made in favor of Pappu Lal and Krishan Lal but in the name of Bhim Sen and Dayal Singh. Simultaneously, another proceedings was started by Lila Krishan Chawla claiming to be the power of attorney holder of Dayal Singh. Lila Krishan Chawla is the husband of the sister of Kanwar Bhan's wife. They failed to get a favorable order from the Rehabilitation Authorities and on 31.10.1970 tOe lease deed of the shop was made in favor of Pappu Lal and Krishan Lal. As the proceedings were still being fought before the Rehabilitation authorities by Bhim Sen, Dayal Singh and his attorney, Pappu Lal and Krishan Lal, with their mother filed a civil suit in 1975 for possession of shop and rendition of accounts against Bhim Sen. The said suit is pending awaiting the decision in the present petition.

(11) From the narration of these facts, it is clear that a systematic effort was made by Kanwar Bhan and then by his son Bhim Sen to deprive the minor sons of Lila Ram of the shop in dispute by total abuse of the process of law. The minors and the mother were dragged before the various authorities for over 25 years for depriving them of their rightful claim and to incur additional expenditure of prosecuting the proceedings. The impugned orders have done substantial justice in the matter and I do not find any reason why the said orders should be interfered with.

(12) The petition is dismissed with costs. Respondents 3, 4 & 5 are entitled to special costs of Rs. 5,000.00 from the petitioner for .causing undue harrassment and hardship to them. Respondents counsel shall be entitled to counsel fee of Rs. l,500.00.