Maksood vs The Commissioner/Secretary, ...
2010 Latest Caselaw 3987 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI
R-1

          W.P.(C) 3632/2002 & CM No. 6256/2002 (for stay)

 MAKSOOD                                         ..... Petitioner
                        Through Mr. V.B. Andley, Senior Advocate
                        with Mr. Rajender Mathur and Ms. Priyanka
                        Sharma, Advocates.

                  versus

THE COMMISSIONER/SECRETARY, LAND & BUILDING
DEPARTMNET & ORS                      ..... Respondents
              Through Mr. Suneet Nagpal, Advocate for
              LRs‟ of R-5.

          CORAM: JUSTICE S. MURALIDHAR

          1.Whether reporters of the local news papers
             be allowed to see the judgment?              No
          2.To be referred to the Reporter or not ?       Yes
          3. Whether the judgment should be reported in the
          Digest?                                         Yes
                                       ORDER

30.08.2010

1. The challenge in this petition is to the impugned order dated

6th March 2002 passed by the Commissioner/Secretary, Land &

Building Department, Government of National Capital Territory

of Delhi („GNCTD‟) allowing a revision petition being case

No.2/US-33/89/L&B filed by the predecessor-in-interest of

Respondent No.6, Shri Ali Hassan, under Section 33 of

Displaced Persons (Compensation & Rehabilitation) Act

(„DPCR Act‟). The said petition was directed against an order

dated 23rd March 1987 passed by the Authorized Chief

Settlement Commissioner in case no. 36-R/Authorised

GSC/Delhi/85 (MKK).

2. The Petitioner herein filed the above petition before the

Authorized Chief Settlement Commissioner stating that her

husband late Shri Mohd. Mahmud resident of XI 1930 (New)

corresponding XI/2568 (old), Kucha Chellan, Gali Rajan, Darya

Ganj, New Delhi (hereinafter „the property in question‟) had

during his lifetime being bonafide pursuing the case for transfer

of the property in question in his favour in accordance with the

provisions of the DPCR Act and the instructions issued from

time to time thereunder.

3. The Petitioner‟s late husband filed an application on 15th

March 1966 seeking the said relief. This was followed by

further reminders on 5th April 1966 and 19th April 1966. After

his death in August 1966 the Petitioner filed another application

on 27th December 1966 seeking transfer of the property in

question in her name. Apart from pointing out that it was

situated in a predominantly Muslim area, the Petitioner relied on

instruction dated 17th December 1966 issued by the Office of the

Chief Settlement Commissioner regarding disposal of properties

in predominantly Muslim areas in Delhi.

4. The Petitioner states that she kept pursuing her case for

transfer of the property in question in her name and sent

representations to the Regional as well as the Chief Settlement

Commissioner on 10th June, 4th February, 10th March, 5th April

and 10th June, 1967 but without any success. In the meanwhile,

she was paying rent to the authorities for the property in

question from time to time. A demand was also raised as late as

1st December 1975 for payment of rent. The Petitioner stated

that an inspection of the evacuee property record („EPR‟) and

the acquired property record (APR) revealed that a sale of the

property in question was made to one Sh. Mehmood Ali which

was subsequently cancelled. A communication dated 13th

September 1985 was received by her from the Managing

Officer, in reply to her representation dated 14th June 1985,

stating that her request for transfer of the property in question in

her name could not be acceded to as the property in question had

already been transferred to Shri Ali Hassan S/o Shri Noor

Hassan, the predecessor-in-interest of Respondent No. 6.

According to this communication, the transfer had taken place in

favour of Respondent No. 6 on 17th July 1967 and the sale

certificate was issued on 28th July 1967.

5. On receipt of the above communication, the Petitioner filed

the above revision petition before the Chief Settlement

Commissioner seeking the relief of setting aside the sale of the

property in question in favour of Shri Ali Hassan. The specific

contention was that the sale could not have taken place behind

the back of the Petitioner when her numerous representations

requesting for transfer of the property in her favour were still

pending with the Respondents. It was pointed out that there was

no provisional possession of a symbolic nature given to Shri Ali

Hassan pursuant to the alleged sale. On the other hand, the

Petitioner continued in possession and was paying rent for the

property in question. She specifically contended that the sale in

favour of Shri Ali Hassan was vitiated by "fraud mis-

representation and connivance" and "attracted the jurisdiction of

this Court to invoke the provisions of Section 24 of the DPCR

Act."

6. It was further contended by the Petitioner that the alleged

sale had taken place much after the instructions dated 17th

December 1966 and was in violation of those instructions which

had the statutory force of law. It was further submitted that the

absence of the records of the sale lent credence to the suspicion

that Shri Ali Hassan had procured the transfer of the property in

question in his favour through misrepresentation and fraud. The

Petitioner asserted that she had a statutory right of transfer of the

property in question strictly in terms of the provisions of DPCR

and the Rules framed thereunder.

7. The Settlement Commissioner, who was delegated the

powers of the Chief Settlement Commissioner, passed an order

on 22nd March 1997. Agreeing with the submissions of the

Petitioner, inter alia, after considering the statements of Shri Ali

Hassan (the predecessor in interest of Respondent No.6 herein)

and Shri Ismail Khan (the predecessor in interest of Respondent

No.5 herein), the Settlement Commissioner came to the

following conclusions:

(i) A sale had been taken place in favour of Shri Ali Hassan.

However, the matter did not end there.

(ii) By the time the sale certificate was issued in favour of Shri

Ali Hassan the instructions dated 17th December 1966 had come

into force and governed the disposal of the properties in a

predominately Muslim area.

(iii) The case of the Petitioner ought to have been processed in

terms of the aforementioned instructions particularly when the

property in question was situated in a predominately Muslim

area. The Department had clearly committed an error in

finalizing the sale of the property in favour of Shri Ali Hassan

by not taking a judicial cognizance of the instructions including

the one issued on 17th December 1966.

(iv) There was sufficient documentation to show that the

Petitioner had been making representations for transfer of the

property in her favour and also to show that she had been paying

rents of a portion of the property till 1970, i.e., much after the

date of issuance of the sale certificate in favour of Shri Ali

Hassan.

(v) There was no limitation provided for proceedings under

Section 24 of the DPCR Act.

8. Consequently the Settlement Commissioner set aside the sale

of the property in question in favour of Shri Ali Hassan.

9. Aggrieved by the above decision, Shri Ali Hassan filed a

revision petition before the Commissioner/Secretary under

Section 33 of the DPCR in which the impugned order was

passed. Reversing the decision of the Settlement Commissioner,

by the impugned order dated 6th March 2002 the Commissioner

and Secretary held that the instructions dated 17th December

1966 were within the scope of Section 20(1) of the DPCR Act.

It was further held that the said instructions pertained to

"remaining undisposed of properties," and in view of the fact

that property in question had been put to auction on 7 th April

1966, it no longer formed part of the „compensation pool‟. In

other words, the moment a property was put to auction, the

jurisdiction of the Managing Officer ceased. Consequently, it

was concluded that the departmental instruction dated 17th

December 1966 did not apply to the sale in question. Reliance

was placed by the Settlement Commissioner on the decision of

the Punjab and Haryana High Court in Lila Krishan v. Union of

India Vol. LXXII (1970) PLR page 719 and of this Court in

Mohd. Yusuf v. Union of India Vol. LXXII (1970) PLR page

240.

10. This Court heard the submissions of Mr. V.B.Andley,

learned Senior counsel appearing for the Petitioner and Mr.

Suneet Nagpal, learned counsel appearing for LRs of

Respondent No.5 who has supported the case of the Petitioner.

None appeared on behalf of the Respondent Nos. 1 to 4 and

Respondent No.6.

11. It was submitted by Mr. Andley that a fundamental error

was committed by the Commissioner in overlooking the fact

that the departmental instruction dated 17th December 1966 had

the force of law and was relatable to Section 20(1) (a) read with

Section 20(1) (e) of the DPCR Act.

12. Secondly, he pointed out that the reliance placed in the

impugned order upon the decisions in Lila Krishan and Mohd.

Yusuf cases was misplaced as both these cases were

distinguishable on facts. Unlike the case of Mohd. Yusuf there

was no parting with the possession of the property in question in

favour of Shri Ali Hassan. In fact, in the instant case the

Petitioner continued to remain in possession of the property in

question. He pointed out that the actual sale of the property

would be the determining factor for the applicability of the

departmental instruction dated 17th December 1966. He placed

reliance on the judgment of the Supreme Court in Laxmi

Narayan Guin v. Niranjan Modak AIR 1985 SCC Cal. 322 to

urge that a change in the law which took place during the

pendency of appeal had to govern the rights of the parties and

could not be ignored.

13. The above submissions have been considered. The relevant

statutory provisions may be noticed first. Section 20 (1) of the

DPCR Act read as under:

"(1) Subject to any rules that may be made under this Act, the managing officer or managing corporation may transfer any property out of the compensation pool--

(a) by sale of such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise;

(b) by lease of any such property to a displaced person or an association of displaced persons, whether incorporated or not, or to any other person;

(c) by allotment of any such property to a displaced person or an association of displaced persons whether incorporated or not, or to any other person, on such valuation as the Settlement Commissioner may determine;

(d) in the case of a share of an evacuee in a company, by transfer of such share to a displaced person1[or any association of displaced persons, whether incorporated or not, or to any other person] notwithstanding anything to the contrary contained in the Indian Companies Act, 1913 (VII of 1913) or in the memorandum or articles of association of such company;

(e) in such other manner as may be prescribed."

14. The instructions dated 17th December 1966 issued by the

Chief Settlement Commissioner were in the nature of

prescribing the norms under which properties in predominantly

Muslim areas were to be disposed of. They were supplementary

to the statutory provisions. In the absence of any specific rules

prescribed for that purpose, the instructions dated 17th December

1966 had the force of law.

15. The said instructions dated 17th December 1966 read as

under:

"No. 37(11) Comp & Prop/66 Government of India Ministry of Labour, Employment & Rehabilitation (Department of Rehabilitation) Office of the Chief Settlement Commissioner

Jaisalmer House, New Delhi Dated the 17 December, 1966

Subject :- Disposal of properties in the predominantly Muslim area of Delhi.

Sir,

I am directed to say that the question of disposal of acquired evacuee properties in the predominantly Muslim areas of Delhi has been examined and it has been decided that the remaining undisposed of properties situated in the predominantly Muslim areas of Delhi be sold by negotiation at the market price to the sitting Muslim occupants irrespective of their value. It has further been decided that where a property is in occupation of an individual occupant, the price may be recovered in cash, alongwith upto date arrears of rent in two equal half yearly installments. In cases where a property is in occupation of more than one person, it has been decided that the same should be sold jointly to the occupants, if any one of the occupants of the property desanct (sic „decent‟) wish to purchase the property, it has been decided that the same may be transferred jointly to the remaining occupants. In case the occupants do not wish to purchase the property the same may be offered to the nominee of the Jamiat-Ulmai-Hind. In the case of sale of property jointly to the occupants, the price may be recovered in cash within one month of the date of offer alongwith up-to-date arrears of rent. It is requested that action in regard to all undisposed of properties in the predominantly Muslim arrears (sic „area‟) of Delhi may pleased to completed by 31.12.66 and a compliance report sent to this office by 5.1.67.

Yours faithfully,

-sd-

Assistant Settlement Officer, for Chief Settlement Commissioner"

16. The above instructions were reiterated with some

modifications by the Chief Settlement Commissioner by a

further communication dated 4/5th October 1967.

17. The instruction dated 17th December 1966 required that

undisposed of properties in predominantly Muslim areas of

Delhi should be first sold by negotiation at the market price "to

the sitting Muslim occupants." This step therefore had to

necessarily be followed before resorting to the method of sale of

such property to a displaced person by public auction or

otherwise.

18.This Court is unable to concur with the view expressed by

the Commissioner that the Department‟s instruction dated 17 th

December 1966 either did not have the force of law or could not

override the provisions of law. The correct way of

understanding the instructions dated 17th December 1966 is that

they were supplemental to the statutory provisions and had the

force of law. If the method of disposal of the property as

suggested by the instructions dated 17th December 1966 did not

work out for any reason, it would be open to the Department to

resort to the sale of the property by public auction.

19. In the present case, the departmental instructions dated 17 th

December 1966 were admittedly followed. Despite the

numerous representations made by the Petitioner seeking

transfer of the properties in her favour, those representations

were ignored. In terms of the departmental instructions dated

17th December 1966, then the Department would have had to

negotiate the market price at which the Petitioner was prepared

to purchase the property in question. That stage, however, was

never reached.

20. The next question to be considered is interpretation that

ought to be placed on the instructions dated 17 th December

1966. It has been held in the impugned order that since the said

instructions only pertained to "remaining undisposed of

properties" and since the property in question was put to auction

on 7th April 1966, it was no longer in the "compensation pool."

Consequently, it was held that the said instruction dated 17 th

December 1966 did not apply to the property in question.

21. In the considered view of this Court, the above conclusion

is erroneous. The observation of the learned Single Judge of the

Punjab & Haryana High Court in Lila Krishan v. Union of

India that the moment a property is put to auction it goes out of

the compensation pool, had to be understood in the context of

the facts of the said case. There a sale certificate had been issued

by the time the case of the claimant was considered. It was in

the said context that it was observed that : "The property ceases

to be evacuee property and goes out of the compensation pool

when it is sold and the title is conferred on the purchaser by

the issue of a sale certificate." The above statement of the law

is unambiguous and has been overlooked by the Settlement

Commissioner in the instant case.

22. Likewise, the judgment of the learned Single Judge of this

Court in Mohd Yusuf was in the context of the property having

been purchased by Respondent No. 2 in that case. There the

purchasers had been put in provisional possession. In the

present case, the sale certificate in favour of the predecessor-in-

interest of Respondent No. 6 was issued on 28th July 1967, long

after the instructions dated 17th December 1966. Secondly, the

auction purchaser was never put in possession of the property in

question. Consequently, the conclusion arrived at by the

Commissioner in the impugned order that the instruction dated

17th December 1966 did not apply to the property in question, is

unsustainable in law.

23. For the aforementioned reasons, this Court sets aside the

order dated 6th March 2002 passed by the Commissioner and

restores the order dated 27th March 1987 of the Settlement

Commissioner.

24. The writ petition is accordingly allowed with no orders as to

costs.

S.MURALIDHAR, J AUGUST 30, 2010 ak