Delhi High Court
Fatima Sultana (Since Deceased ... vs Mohd. Usman Since Deceased ... on 8 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.159/2009
% 8th August, 2016
FATIMA SULTANA (SINCE DECEASED THROUGH HER LEGAL HEIR
..... Appellant
Through: Mr. S.K.Bhaduri, Ms. Kirti Parmar and
Mr. Prem Prakash, Advocates.
versus
MOHD. USMAN SINCE DECEASED THROUGH HIS LEGAL HEIRS
..... Respondents
Through: Mr. Puneet Bhatnagar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal is filed under Section 100 of the Code
of Civil Procedure, 1908 (CPC) by the plaintiff in the suit. Reference to the
plaintiff will include reference to the legal heirs of the plaintiff Fatima Sultana
who has expired and is now represented by the appellant who is her legal heir.
Fatima Sultana filed the subject suit seeking recovery of possession and mesne
profits with respect to the property bearing no. 740 Kabadi Bazar, Jama Masjid,
Delhi (situated on a plot of land admeasuring approximately 83 sq. yds) from
the defendant Mohd. Usman, who has also expired pendente lite and is now
represented by his legal heirs being the respondents herein.
RSA No. 159/2009 Page 1 of 30
2. The case of the plaintiff was that she had purchased the suit
property from the Union of India, Ministry of Rehabilitation for a sum of
Rs.9873/- vide a registered Sale Deed/Conveyance Deed dated 31.12.1963,
Ex.PW5/1. It was claimed by the plaintiff that the defendant was in
unauthorized occupation of the suit property, and therefore, suit for possession
be decreed against the defendant and defendant be directed to pay mense profits.
3. The case of the defendant in the trial court was that he was a tenant
in the suit property under the Ministry of Rehabilitation paying a monthly rent
of Rs.8.50. Ownership of the plaintiff of the suit property is also denied and it
was claimed that the plaintiff has got the suit property sold in her favour by
using political pressure and the sale in plaintiff‟s favour was violative of the
provisions of the Displaced Persons (Compensation and Rehabilitation) Act,
1954 (hereinafter referred to as „the DPCR Act‟) and Rules framed thereunder.
4. Trial court, after pleadings were completed, framed the following
issues:-
"1. Whether the plaintiff is owner of the premises in dispute? OPP
2. Whether the defendant is in unauthorised possession of the suit
premises? O.P.P.
3. Whether the defendant is a tenant of the suit premises at a monthly
rent of Rs.8.50/- O.P.D.
4. Whether the plaintiff is entitled to recover any damage or
compensation on account of wrongful use and occupation from the
defendant and if so at what rate and for what period? O.P.P.
5. Whether the sale of the property in favour of the plaintiff is void &
illegal as pleaded? O.P.D.
RSA No. 159/2009 Page 2 of 30
6. Whether the pleas covered by issue no.5 can be taken in this case?
O.P.D.
7. Relief."
5. Trial Court vide its Judgment dated 23.2.1972 decided issue nos. 2
and 3 in favour of the plaintiff and held that the defendant never became a
tenant of the suit property under the Ministry of Rehabilitation and that
defendant therefore is in unauthorized possession of the suit property and hence
liable to surrender the possession to the plaintiff. Issue nos. 1 and 5 were
decided in favour of the plaintiff and against the defendant whereby it was held
that Fatima Sultana had become owner of the suit property on account of the
Sale Deed/Conveyance Deed dated 31.12.1963 issued in her favour by the
Ministry of Rehabilitation. The various provisions of the DPCR Act were
referred to by the trial court, alongwith the relevant rules under the said Act, to
hold that there was a valid sale deed/conveyance deed in favour of the plaintiff
and it was not correct as argued by the defendant that the property which
formed part of compensation pool was not validly/legally sold to the plaintiff
Fatima Sultana.
6. The First Appellate Court has, by its impugned Judgment dated
13.8.2009 set aside the judgment of the trial court and held that the rent receipts
Ex.DW6/1 and Ex.DW6/2 stand proved by the defendant, and which are
executed by the Ministry of Rehabilitation, thus showing that the tenancy was
created of the suit property in favour of the defendant. The first appellate court
RSA No. 159/2009 Page 3 of 30
also has held that the provisions of the DPCR Act show that there is no valid
transfer of title by the Ministry of Rehabilitation in favour of the plaintiff in
terms of the Sale Deed/Conveyance Deed dated 31.12.1963 and various reasons
were given by the first appellate court including of that the property under the
DPCR Act could only be sold by auction or tender and not by private sale, and
thus sale to plaintiff Fatima Sultana was illegal as it was not by public auction
or by tender and that there was no proper order passed by the competent
authority under the DPCR Act for the sale to be effected in favour of the
plaintiff Fatima Sultana. The first appellate court has declared as void the Sale
Deed/Conveyance Deed executed in favour of the plaintiff Fatima Sultana dated
31.12.1963.
7. This appeal was admitted for hearing by an Order of a learned
Single Judge of this Court dated 23.3.2015 framing the following substantial
question of law:-
"Whether the impugned judgment and decree passed by the first
appellate court suffers from any perversity in the light of the evidence
adduced before it."
8. Before the appeal was admitted, a detailed Order was passed in this
RSA on 23.1.2014 calling for the file of the Ministry of Rehabilitation, and
which was essential to decide two aspects. Firstly, as to whether at all the rent
receipts Ex.DW6/1 and Ex.DW6/2 issued in favour of the defendant by the
Ministry of Rehabilitation have any correlation with the official record of the
RSA No. 159/2009 Page 4 of 30
Ministry of Rehabilitation thereby showing that the defendant was a tenant in
the suit premises, with the second aspect to be determined from the official site
as to whether the defendant Mohd. Usman was the son of Mohd. Ismail and
which Mohd. Usman s/o Mohd. Ismail was the original rightful occupant of the
suit property or was it that the defendant Mohd. Usman is son of Mohd. Sadiq
and not son of Mohd. Ismail, and therefore, he was not the original occupant of
the suit property, and would only have rights if the present defendant Mohd.
Usman son of Mohd. Sadiq proved that the tenancy was created in his favour by
the Ministry of Rehabilitation. This Order dated 23.1.2014 reads as under:-
"1. One of the issues which would arise in the present case would be as to
whether the original defendant had been let out the suit property in his name
prior to executing of the conveyance deed in favour of the appellant/plaintiff.
Counsel for the respondents (legal heirs of the original defendant) argues that
the competent authority can under Section 20(b) of the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 grant a lease and it is not
necessary that property in compensation pool should only be given with
respect to compensation which is awarded for evacuee properties left in
Pakistan. Reliance is further placed upon Section 19 of the Act to buttress the
argument.
2. Counsel for the appellants on the other hand argues that no tenancy
was created in favour of the original defendant, and that the defendant was
only a trespasser because he is taking advantage of his name being identical
with the present Mohd. Usman, the occupier, who was actually the son of
Mohd. Ismail whereas the defendant Mohd. Usman was the son of Mohd.
Saddique. It is also argued on behalf of the appellants that there is nothing on
record of the trial Court that even assuming there is no confusion of identity
yet the lease was validly created in favour of the original defendant.
3. In my opinion, in the present case, there is ambiguity in the trial court
record in view of insufficient evidence as regards the identity of the alleged
original occupier/tenant Mohd. Usman, as also regards the fact that whether at
all Mohd. Usman son of Mohd. Ismail or even Mohd. Sadique ever became a
tenant of the Department of Rehabilitation. On the one hand two rent receipts
have been proved by the defendant, which are of course disputed by the
plaintiff, really creation of tenancy is a considered and deliberate act of a
landlord which is the Department of Rehabilitation in this case. There is no
record of creation of the tenancy in favour of Mohd. Usman whether as the son
RSA No. 159/2009 Page 5 of 30
of Mohd. Ismail or the son of Mohd. Sadique, except the above stated rent
receipts.
4. There is also an issue as to whether defendant had claimed tenancy in
his favour but that right was declined under Section 33 of the Act and which is
shown by the statement of DW8.
5. I may hasten to observe that aforesaid observations made by me are
only prima facie in nature with respect to the merits of the case, and only made
for the purpose of passing of the present order which I am passing exercising
my powers under Order 41 Rule 27 CPC read with Section 165 of the
Evidence Act, 1872, by which a Court is always empowered at any stage to
ensure that such evidence comes on record for clearing ambiguity, bringing
about necessary clarity and to ensure that justice is done.
6. In my opinion therefore it is necessary that complete original file of
the suit property bearing No.740 (Old No.436), Kabari Bazaar, Jama Masjid,
Delhi which is lying in the Rehabilitation Department of the Ministry of Urban
Affairs be summoned before this Court, and which file can clear various
aspects which have to be determined in this appeal including the aspects which
have been noted in the present order.
7. Accordingly, let the Department of Rehabilitation through its
authorized official produce the file of the suit property in this Court on the next
date of hearing. A copy of this order be given dasti to the counsel for both the
parties so that this order can be served upon the concerned department of the
Ministry of Rehabilitation or the relevant department including officer of the
Regional Settlement Commissioner, Delhi so that the concerned official brings
the file of the suit property on the next date of hearing.
8. List on 20th March, 2014.
9. Interim order to continue till further orders unless varied by the
Court."
9. Two issues are therefore required to be determined by this Court
alongwith its sub-issues. The first issue is as to whether the defendant was a
tenant in the suit property with the tenancy being created in his favour by the
Ministry of Rehabilitation. The second issue is as to whether the Sale
Deed/Conveyance Deed dated 31.12.1963 executed by the Ministry of
Rehabilitation in favour of the plaintiff Fatima Sultana is a valid document or
has been rightly declared by the first appellate court to be a void document.
RSA No. 159/2009 Page 6 of 30
10. The fact that the rent receipts Ex.DW6/1 and DW6/2 have been
issued by the Ministry of Rehabilitation is an aspect which in my opinion
cannot be disputed on behalf of the appellant. These documents are very much
the documents which are shown as being issued by the Ministry of
Rehabilitation, being printed by the Ministry of Rehabilitation and also bearing
the stamp of the Ministry of Rehabilitation. In fact the rent Receipt, Ex.DW6/1
dated 22.2.1961 refers to an earlier Receipt dated 21.12.1960 issued in favour of
the defendant by the Ministry of Rehabilitation bearing no. 321823. What has
to be decided is that whether issuing of such rent receipts is conclusive with
respect to creation of tenancy of the suit premises by the Ministry of
Rehabilitation in favour of the defendant.
11. In order to decide this aspect the first document which would be
relevant would be the Notings dated 12.8.1959 and 19.8.1959 alongwith the
Statement of the defendant dated 12.8.1959. These notings and the statement of
the defendant are part of the file produced by the Ministry of Rehabilitation
pursuant to the Order of this Court dated 23.1.2014. These official notings are
taken as a relevant document for the purpose of disposal of this second appeal
inasmuch the Order dated 23.1.2014 was passed under Order XLI Rule 27 CPC
read with Section 165 of the Indian Evidence Act, 1872. These Notings dated
12.8.1959 and 19.8.1959 read as under:-
"Government of India
Ministry of Rehabilitation
RSA No. 159/2009 Page 7 of 30
Office of the Regional Settlement Commissioner
(Management Wingh)
Dated .........
Rent/I Fee at the rate of Rs.3/- per hundred sq. ft. be assessed.
Rent/I Fee therefore comes to Rs.8/8/- P.M.
I, therefore suggest that he may be charged at Rs.8/8/- P.M. as 1/Fee and
be treated as an unauthorised occupant.
Mukesh Chandra
F.I.
12/8/59
AC(E) II may kindly see. Action at „A‟ may please be approved and
damages may be recovered.
I have prepared the challan charging Mohd. Usman at Rs.8/8/- PM from
1/59 to 3/59.
Mukesh Chandra
F.I
19/8/59
Statement of Shri. Mohd. Usman S/o Mohd. Sadiq, resident of House
No.XI/2523 New Kucha Baqa Wallah Ghas Ki Mandi Delhi, aged 32
years.
I occupied the damaged property bearing No.IX/740 new approximately
Jan 1959. I have not paid rent to any body. I am prepared to pay its rent to
custodian. Prior to my occupation no body was in occupation.
R.O. &A.C. Mukesh Chandra
Sd/- (Urdu) F.I.
12/8/59 12/8/59
While checking of status of property No. IX/436 Old IX/739-40 new, it
came to light that portion bearing No.IX/740 new which was lying
collapsed has been taken possession of by one Mohd. Usman S/o Mohd.
Sadiq. I recorded his statement which appears above and also made enquiry
which revealed that he took possession in the month of Jan 1959.
The space within is as under:
12‟ x 20‟
8 x 18 384 sq. ft. " (emphasis is mine)
12. A reading of the Notings and the Statement of the defendant dated
12.8.1959 and 19.8.1959 does show that the defendant was found in possession
of the suit premises in August, 1959 and he was assessed for payment of the
license fee at eight rupees and eight annas i.e Rs.8.50 per month i.e payment of
RSA No. 159/2009 Page 8 of 30
Rs.8 and 8 annas (Rs.8.50) is not as rent. As per these aforesaid notings and
taken alongwith the rent receipts, on behalf of the defendant it is argued that the
same is conclusive of existence of tenancy in the suit property of the defendant.
Is it so? In my opinion not. The reasons are given hereinafter.
13. A reference is firstly required to be made to the provisions of
Section 19(4) of the DPCR Act and this Section 19 in its entirety reads as
under:-
19. Power to vary or cancel leases or allotment of any property acquired
under this Act--(1) Notwithstanding anything contained in any contract or
any other law for the time being in force but subject to any rules that may be
made under this Act, the managing officer or managing corporation may
cancel any allotment or terminate any lease or amend the terms of any lease or
allotment under which any evacuee property acquired under this Act is held or
occupied by a person, whether such allotment or lease was granted before or
after the commencement of this Act.
(2) Where any person--
(a) has ceased to be entitled to the possession of any evacuee property by
reason of any action taken under sub- section (1), or
(b) is otherwise in unauthorized possession of any evacuee property or
any other immovable property forming part of the compensation pool; he shall,
after he has been given a reasonable opportunity of showing cause against his
eviction from such property, surrender possession of the property on demand
being made in this behalf by the managing officer or managing corporation or
by any other person duly authorized by such officer or corporation.
(3) If any person fails to surrender possession of any property on demand
made under sub- section (2), the managing officer or managing corporation
may, notwithstanding anything to the contrary contained in any other law for
the time being in force, eject such person and take possession of such property
and may, for such purpose, use or cause to be used such force as may be
necessary.
(4) Where a managing officer or a managing corporation is satisfied that
any person, whether by way of allotment or lease, is, or has at any time been,
in possession of any evacuee property acquired under this Act to which he was
not entitled, or which was in excess of that to which he was entitled, under the
law under which such allotment or lease was made or granted, then, without
prejudice to any other action which may be taken against that person, the
RSA No. 159/2009 Page 9 of 30
managing officer or the managing corporation may, having regard to such
principles of assessment of rent as may be specified in this behalf by the
Central Government, by order, assess the rent payable in respect of such
property and that person shall be liable to pay the rent so assessed for the
period for which the property remains or has remained in his possession:
Provided that no such order shall be made without giving to the person
concerned a reasonable opportunity of being heard.
(5) Where any person is, or has at any time been, in unauthorised
possession of any evacuee property acquired under this Act themanaging
officer or the managing corporation may, having regard to such principles of
assessment of damages as may be specified in this behalf by the Central
Government, assess the damages on account of the use and occupation of such
property and may, by order, require that person to pay the damages within such
time and in such instalments as may be specified in the order:
Provided that no such order shall be made without giving to the person
concerned a reasonable opportunity of being heard." (underlining added)
14(i) Sub-Section 4 of this Section 19 of the DPCR Act is very
important and it shows that even if a person is an unauthorized occupant, the
Ministry of Rehabilitation, acting under the DPCR Act, is entitled to assess and
require payment of rent by the unauthorized occupant. On account of the
language of Section 19(4) of the DPCR Act once rent can be assessed and
directed to be paid by a person who is not entitled to a property but is still found
to be in possession, then merely because rent is charged from such a person
would not mean that such a person would become a tenant in the property
because the expression rent is used in Section 19(4) only to determine charges
for use and occupation called as rent. This reasoning and conclusion of mine is
buttressed by reference to the documents being the file Notings dated 12.8.1959
and 19.8.1959 and which clearly show that defendant was an unauthorized
occupant and license fee and not rent was to be charged from him.
RSA No. 159/2009 Page 10 of 30
(ii) This aspect is also established beyond doubt from documents
relied upon, filed and proved by the defendant himself in the trial court being
the documents Ex.DW8/1 to Ex.DW8/3 and which are the office notings in the
file of the Ministry of Rehabilitation. These notings were proved and exhibited
before the trial court and the same read as under:-
"True copy of noting on C.S.C‟s office file No.43(12)/Comp & Prop/62.
.....
Property No.IX/740 (New) about which Shri Sikander Bakht has written to
Honourable Minister is an acquired evacuee property and is in possession of
one Shri Mohd Usman. The access to this property is through property
No.IX/739 (New) which was purchased by Shrimati Fatima Suleman (it should
have been Sultana) in auction held under the orders of the Competent Officer.
The sale deed was issued to her on 9.12.60 with the clear stipulation that the
occupant of H.No. IX/740 (New) will have the right to access through
H.No.IX/739. The latter property was put to auction on 19.10.1963 when it
fetched the highest bid of Rs.6000/- against the reserve price of Rs.9827/- (it
should have been Rs.9873/-). The bid was rejected as it was below the reserve
price. The property will be included in the next sale programme which will
commence after 9th January, 1964.
2. Shrimati Fatima Sultan approached us for transfer of property No.740
to her on the ground that it was not an independent property and was situated
inside property No. 739 already purchased by her. She also contended that the
property was situated in a predominantly Muslim area and that it should be
transferred to her according to the policy of the Government. The matter was
enquired into and it was found that the property was not situated in a
predominantly Muslim area and therefore, the question of its transfer to her did
not arise. The property cannot be transferred to her by negotiated sale as she is
not in possession of it.
3. The occupant, Shri Mohd Usman s/o Mohd. Sadiq, has also requested
for regularisation of his occupation and transfer of the property to him on the
ground that he is a member of the Backward class and is the sole occupant of
the property. He also contended that the property was situated in a
predominantly Muslim area. This property was originally occupied by Mohd
Usman s/o Mohd. Ismail who left the property in January, 1959 and thereafter
the property came to be occupied by Shri Mohd Usman son of Mohd Sadiq.
He is an unauthorised occupant and has not paid any rent to the
Department. In the circumstances, the property cannot be transferred to him
and the petition made by him u/s 33 of the Displaced Persons (C & R) Act,
1954 which is at page 27-28/C is, therefore, liable to be rejected.
4. The request of Smt. Fatima Sultan for transfer of property to her was
examined by OSD (J), Shri Tara Chand Aggarwal, in his note dated 5.8.63 at
page 20/ante when he observed that the only point in favour of transfer of
property to her by negotiation was that there is right of passage over her house
to the property in dispute and he accordingly suggested that the property might
be transferred to her at the reserve price of Rs.9873. Shri Sikandar Bakhi was
requested to intimate whether she was prepared to pruchase the property at the
above price and since there was no response either from Shri Sikandar Bakhal
or Smt. Fatima Sultan, H.M.desired that the property should be put to sale. In
this connection please see H.M.‟s minutes dated 17.8.63 at page 21/ante.
5. The reserve price of the property is Rs.9,873/-. It fetched the highest
bid of Rs.6,000/- in auction held on 19.9.63. The bid was, however, not
accepted. The property is still available for transfer to Smt. Fatima Sultan if
she is prepared to pay the reserve price of Rs.9873/-. If approved, we may
again extend the offer to her.
Sd/Gobind Ram
23.11.63
ASC (P)
Dy. C.S.C.(P)
Sd/-H.R.Nair 26.11.63.
P.S. TO H.M spoke to me about this a few days ago. He may see. We
may send a written offer to the lady and if she does not reply within 7 days, the
property will again be put to auction. From what I can see, however, she is not
willing to pay the reserve price.
Sd/N.P.Dube 27.11.63
Shri Sikandar Bakhat told me that Smt. Fatima Sultana is prepared to pay
Rs.9873 for the property. The money will be deposited within two days.
Sd/- V.K.Harurey
19.12.63.
CSC
Sd/N.P.Dube
19.12.63
ASC(P)/RSC/Shri Vohra
MO to see for compliance. He should keep on his file relevant copy
of noting. Thereafter this file is to be returned.
Sd. O.N.Vohra 20.12.63
True Copy Sd. Bishan Lal M.O.27.12.63." (emphasis is mine)
(iii) The aforesaid documents Ex.DW8/1 to Ex.DW8/3 show that no
doubt possession of the suit property was of the defendant and that the original
rightful occupant of the property was one Mohd. Usman son of Mohd. Ismail
and not the defendant Mohd. Usman son of Mohd. Sadiq. The defendant is
specifically referred to in the document Ex.DW8/1 as an unauthorized occupant.
15. Therefore, mere fact that the defendant has in his favour receipts
Ex.DW6/1 and Ex.DW6/2, when the same are read with the provisions of
Section 19(4) of the DPCR Act and documents being the file Notings dated
12.8.1959 and 19.8.1959 and also the documents Ex.DW8/1 to Ex.DW8/3, it
becomes clear that there is no creation of tenancy in favour of the defendant of
the suit property but the rent receipts are merely charges collected for use and
occupation by an unauthorized occupant being the defendant Mohd. Usman son
of Mohd. Sadiq.
16. There is another reason for this Court to reach this conclusion
because there is a stamp existing on the receipt Ex.DW6/1 that collection by the
Ministry of Rehabilitation of rent as per the rent receipts will not amount to
giving any status to the person from whom the rent is collected. This stamp
exists because of the language of Section 19(4) of the DPCR Act which states
that mere receiving of rent will not confer a status or any right, title or interest
to an occupant of an evacuee property. Section 19(4) of the DPCR Act
specifically uses the expression „without prejudice‟ and this expression is found
in the receipt Ex.DW6/1, and this aspect has been correctly noticed and so
observed by the trial court in its judgment for holding that rent receipts
Ex.DW6/1 and Ex.DW6/2 being without prejudice will not create any tenancy
right in favour of the defendant in the suit property. Also, merely because in the
rent receipt Ex.DW6/1, there is shown existence of another rent Receipt dated
21.12.1960 numbered 321823 will not mean creation of tenancy because the
said rent Receipt dated 21.12.1960 will obviously be a same type of document
as Ex.DW6/1 and will be governed by similar observations already made in this
para on account of the provision of Section 19(4) of the DPCR Act read with
the notings of the Ministry of Rehabilitation dated 12.8.1959 and 19.8.1959 and
the statement of defendant of the same date with the related documents being
exhibited as Ex.DW8/1 to Ex.DW8/3.
17. In my opinion if there was a specific creation of tenancy rights in
favour of the defendant, and which tenancy is different than the subject matter
of Section 19(4) of the DPCR Act, then the file of the Ministry of Rehabilitation
which has been produced pursuant of the Order dated 23.1.2014 would have
shown as to creation of a tenancy in favour of the defendant but on the contrary
the Notings dated 12.8.1959 and 19.8.1959 and documents Ex.DW8/1 to
Ex.DW8/3 clearly show the defendant to be an unauthorized occupant and not a
tenant of the Ministry of Rehabilitation. Creation of tenancy is differentiated
from taking charges called as "rent", and which "rent" is only an assessment
charge paid under Section 19(4) of the DPCR Act for unauthorized occupation
of a property of the Ministry of Rehabilitation. The Ministry of Rehabilitation is
entitled to assess and require such payment as per Section 19(4) of the DPCR
Act.
18. In view of the aforesaid discussion this Court is in no manner of
doubt that never was any tenancy created of the suit property in favour of the
defendant by the Ministry of Rehabilitation finally because the „rent‟ receipts
relied upon by the defendant are those issued after and pursuant to the Notings
and Order dated 12.8.1959 and 19.8.1959 which determine the status of
defendant as an unauthorized occupant from whom the license fee is to be
charged, secondly the "rent" talked of in the receipts are only charges for use
and occupation from an unauthorized occupant as per the language of Section
19(4) of the DPCR Act and finally the use of expression „without prejudice‟ in
„rent‟ receipt that no status of tenant is conferred. While on this aspect I would
like to incidentally refer to the aspect that the plaintiff/appellant is already the
owner of the property no.739, Kabadi Bazar, Jama Masjid, Delhi, and through
which property there is entrance to the suit property bearing no. 740. Also
when the suit property bearing no. 740 was put to auction it was put so on the
condition that owner of property no. 739 will provide access to the owner of
property no. 740 and thus the property no. 740 was treated as a property
independent of property no. 739.
19. The second issue which is required to be addressed is as to whether
the Sale Deed/Conveyance Deed in favour of the plaintiff dated 31.12.1963
Ex.PW5/1 is a void document as held by the first appellate court. For this
purpose, in addition to reference to the already above mentioned documents
Ex.DW8/1 to Ex.DW8/3, reference is also required to be made to various
provisions of the DPCR Act as to under which authority a sale deed is executed,
if it is executed then when does it have finality and whether the civil court at all
can go into the finality of transfer of title by the Ministry of Rehabilitation to an
allottee/person by execution of conveyance deed/sale deed in favour of such a
person/allottee. I may note that „allottee‟ means an allottee under the sale deed
i.e a purchaser under the sale deed.
20. The following provisions of Sections 3, 12, 13, 14, 16, 17, 20, 22,
23, 24, 27, 33, 34 and 36 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 and Rules framed under that Act are relevant:-
3. Appointment of Chief Settlement Commissioner, etc.--(1) The
Central Government may, by notification in the Official Gazette, appoint a
Chief Settlement Commissioner, a Joint Chief Settlement Commissioner, 1 and
as many Deputy Chief Settlement Commissioners, Settlement
Commissioners], Additional Settlement Commissioners, Assistant Settlement
Commissioners, Settlement Officers, Assistant Settlement Officers and
managing officers as may be necessary for the purpose of performing the
functions assigned to them by or under this Act and may, by general or special
order, provide for the distribution or allocation of work to be performed by
them under this Act.
(2) Subject to the provisions of this Act, the Joint Chief Settlement
Commissioner, 2 all Deputy Chief Settlement Commissioners, Settlement
Commissioners], Additional Settlement Commissioners, Settlement Officers
and managing officers shall perform the functions assigned to them by or
under this Act under the general superintendence and control of the Chief
Settlement Commissioner.
xxxxx
xxxxx
12. Power to acquire evacuee property for rehabilitation of displaced
persons--(1) If the Central Government is of opinion that it is necessary to
acquire any evacuee property for a public purpose, being purpose connected
with the relief and rehabilitation of displaced persons, including payment of
compensation to such persons, the Central Government may at any time
acquire such evacuee property by publishing in the Official Gazette a
notification to the effect that the Central Government has decided to acquire
such evacuee property in pursuance of this section.
(2) On the publication of a notification under sub- section (1), the right,
title and interest of any evacuee in the evacuee property specified in the
notification shall, on and from the beginning of the date on which the
notification is so published, be extinguished and the evacuee property shall
vest absolutely in the Central Government free from all encumbrances.
(3) It shall be lawful for the Central Government, if it so considers
necessary, to issue from time to time the notification referred to in sub- section
(1) in respect of--
(a) all evacuee property generally; or
(b) any class of evacuee property; or
(c) all evacuee property situated in a specified area; or
(d) any particular evacuee property.
(4) All evacuee property acquired under this section shall form part of the
compensation pool.
13. Compensation for evacuee property acquired under this Act--There
shall be paid to an evacuee compensation in respect of his property acquired
under section 12 in accordance with such principles and in such manner as
may be agreed upon between the Governments of India and Pakistan.
14. Compensation pool-- (1) For the purpose of payment of
compensation and rehabilitation grants to displaced persons, there shall be
constituted a compensation pool which shall consist of--
(a) all evacuee property acquired under section 12, including the sale proceeds
of any such property and all profits and income accruing from such property;
(b) such cash balances lying with the Custodian as may, by order of the Central
Government, be transferred to the compensation pool;
(c) such contributions, in any form whatsoever, as may be made to the
compensation pool by the Central Government or any State Government;
(d) such other assets as may be prescribed.
(2) The compensation pool shall vest in the Central Government free
from all encumbrances and shall be utilised in accordance with the provisions
of this Act and the rules made thereunder.
xxxxx
16. Management of compensation pool--(1) The Central Government
may take such measures as it considers necessary or expedient for the custody,
management and disposal of the compensation pool in order that it may be
effectively utilised in accordance with the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing
power, the Central Government may, for the purposes referred to in sub-
section (1), by notification in the Official Gazette,--
(a) appoint such officers as it may deem fit (hereinafter referred to as
managing officers); or
(b) constitute such authority or corporation, as it may deem fit (hereinafter
referred to as managing corporation).
(3) Every managing corporation shall be constituted under such name and
shall consist of such number of persons as may be specified in the notification,
and every such corporation shall be a body corporate having perpetual
succession and a common seal and shall by the said name sue and be sued;
Provided that one-third of the members of every managing corporation shall be
non- officials.
17. Functions and duties of managing officers and managing
corporations--(1) All managing officers or managing corporations shall
perform such functions as may be assigned to them by or under this Act under
the general superintendence and control of the Chief Settlement
Commissioner.
(2) Subject to the provisions of this Act and the rules made thereunder, a
managing officer or managing corporation may take such measures as he or it
considers necessary or expedient for the purpose of securing, administering,
preserving, managing or disposing of any property in the compensation pool
entrusted to him or it and generally for the purpose of satisfactorily
discharging any of the duties imposed on him or it by or under this Act and
may, for any such purpose as aforesaid, do all acts and incur all expenses
necessary or incidental thereto.
(3) Any amount due to the Custodian in respect of any evacuee property
acquired under this Act for any period prior to the date of the acquisition shall
vest in, and be payable to, the Central Government and shall be recoverable by
the managing officer or managing corporation from the person liable to pay the
same.
xxxxx
xxxxx
20. Power to transfer property out of the compensation pool--
(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 person 1 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 (7 of 1913 .) or in the
memorandum or articles of association of such company;
(e) in such other manner as may be prescribed.
(1A) For the purpose of transferring any property out of the compensation
pool under sub- section (1), it shall be lawful for the managing officer or the
managing corporation to transfer the same to a displaced person jointly with
any other person or an association of displaced persons or otherwise.
(2) Every managing officer or managing corporation selling any
immovable property by public auction under sub- section (1) shall be deemed
to be a Revenue Officer within the meaning of sub- section (4) of section 89 of
the Indian Registration Act, 1908 (16 of 1908 ).
(3) Where the ownership of any property has passed to the buyer before
the payment of the whole of the purchase money, the amount of the purchase
money or any part thereof remaining unpaid and any interest on such amount
or part shall, notwithstanding anything to the contrary contained in any other
law, be a first charge upon the property in the hands of the buyer or any
transferee from such buyer and may, on a certificate issued by the Chief
Settlement Commissioner, be recovered in the same manner as an arrear of
land revenue.
xxxxx
22. Appeals to the Settlement Commissioner--(1) Subject to the
provisions of sub- section (2), any person aggrieved by an order of the
Settlement Officer or a managing officer under this Act may, within thirty days
from the date of the order, prefer an appeal to the Settlement Commissioner in
such form and manner as may be prescribed:
Provided that the Settlement Commissioner may entertain the appeal after the
expiry of the said period of thirty days, if he is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time.
(2) No appeal shall lie from an order of the Settlement Officer under
section 5 if the difference between the amount of public dues as determined by
the Settlement Officer and that as admitted by the applicant is less than one
thousand rupees or such other amount not exceeding one thousand rupees as
may be specified by the Central Government in this behalf, by notification in
the Official Gazette.
(3) The Settlement Commissioner may, after hearing the appeal, confirm, vary
or reverse the order appealed from and pass such order in relation thereto as he
deems fit.
23. Appeals to the Chief Settlement Commissioner--(1) Subject to the
provisions of sub- section (2), any person aggrieved by an order of the
Settlement Commissioner or the Additional Settlement Commissioner or an
Assistant Settlement Commissioner or a managing corporation under this Act
may, within thirty days from the date of the order, prefer an appeal to the Chief
Settlement Commissioner in such form and manner as may be prescribed:
Provided that the Chief Settlement Commissioner may entertain the appeal
after the expiry of the said period of thirty days, if he is satisfied that the
appellant was prevented by sufficient cause from filing the appeal in time.
(2) No appeal shall lie from any order passed in appeal under section 22.
(3) The Chief Settlement Commissioner may, after hearing the appeal,
confirm, vary or reverse the order appealed from and pass such order in
relation thereto as he deems fit.
24. Power of revision of the Chief Settlement Commissioner--(1) The
Chief Settlement Commissioner may at any time call for the record of any
proceeding under this Act in which a Settlement Officer, an Assistant
Settlement Officer an Assistant Settlement Commissioner, a managing officer
or a managing corporation has passed an order for the purpose of satisfying
himself as to the legality or propriety of any such order and may pass such
order in relation thereto as he thinks fit.
(2) Without prejudice to the generality of the foregoing power under sub-
section (1), if the Chief Settlement Commissioner is satisfied that any order for
payment of compensation to a displaced person or any lease or allotment
granted to such a person has been obtained by him by means of fraud, false
representation or concealment of any material fact, then notwithstanding
anything contained in this Act, the Chief Settlement Commissioner may pass
an order directing that no compensation shall be paid to such a person or
reducing the amount of compensation to be paid to him, or as the case may be,
cancelling the lease or allotment granted to him; and if it is found that a
displaced person has been paid compensation which is not payable to him, or
which is in excess of the amount payable to him, such amount or excess, as the
case may be, may, on a certificate issued by the Chief Settlement
Commissioner, be recovered in the same manner as an arrear of land revenue.
(3) No order which prejudicially affects any person shall be passed under
this section without giving him a reasonable opportunity of being heard.
(4) Any person aggrieved by any order made under sub- section (2), may,
within thirty days of the date of the order, make an application for the revision
of the order in such form and manner as may be prescribed to the Central
Government and the Central Government may pass such order thereon as it
thinks fit.
xxxxx
xxxxx
27. Finality of orders--Save as otherwise expressly provided in this Act,
every order made by any officer or authority under this Act, including a
managing corporation, shall be final and shall not be called in question in any
Court by way of an appeal or revision or in any original suit, application or
execution proceeding.
xxxxx
xxxxx
33. Certain residuary powers of Central Government--The Central
Government may at any time call for the record of any proceeding under this
Act and may pass such order in relation thereto as in its opinion the
circumstances of the case require and as is not inconsistent with any of the
provisions contained in this Act or the rules made thereunder.
34. Delegation of powers--(1) The Central Government may, by
notification in the Official Gazette, direct that any power exercisable by it
under this Act shall, in such circumstances and under such conditions, if any,
as may be specified in the direction, be exercisable also by such officer or
authority subordinate to the Central Government or by the State Government
or by such officer or authority subordinate to the State Government as may be
specified in the notification.
(2) Subject to the provisions of this Act and the rules and orders made
thereunder, the Chief Settlement Commissioner may, by general or special
order, delegate all or any of his powers under this Act to the Joint Chief
Settlement Commissioner, 1 a Deputy Chief Settlement Commissioner], a
Settlement Commissioner, an Additional Settlement Commissioner or an
Assistant Settlement Commissioner, subject to such conditions, if any, as may
be specified in the order.
(3) Subject to the provisions of this Act and of the rules and orders made
thereunder, a Settlement Commissioner may, by general or special order,
delegate all or any of his powers under this Act to an Additional Settlement
Commissioner, an Assistant Settlement Commissioner, a Settlement Officer or
an Assistant Settlement Officer, subject to such conditions, if any, as may be
specified in the order.
xxxxx
36. Bar of jurisdiction--Save as otherwise expressly provided in this
Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding
in respect of any matter which the Central Government or any officer or
authority appointed under this Act is empowered by or under this Act to
determine, and no injunction shall be granted by any Court or other authority
in respect of any action taken or to be taken in pursuance of any power
conferred by or under this Act." (emphasis is mine)
21. Section talks of various officers appointed under the DPCR Act
and who work under the control and supervision of the Chief Settlement
Commissioner. Sections 12 to 14 of the DPCR Act show as to how an evacuee
property vests with the Government of India, and which property thereafter
forms part of the compensation pool. Section 16 deals with measures to be taken
by the Central Government for management and disposal of the properties
forming part of the compensation pool including by appointing Managing
Officers or vesting the compensation pool properties with a Managing
Corporation. Section 17 clarifies that a Managing Officer or a Managing
Corporation appointed as per Section 16 will work under the general
superintendence and control of the Chief Settlement Commissioner. At this
stage, it may be noted that the provision of Section 17 of Managing Officers and
Managing Corporation working under the control and supervision of Chief
Settlement Commissioner is a similar provision to Section 3 and more
particularly its sub-Section 2 thereof that the Settlement Commissioner is all in
all and he has complete authority to discharge all the functions or do every duty
under the DPCR Act including of general superintendence and control. On
account of huge quantity of work, in addition to the Settlement Commissioner,
therefore various other officers are appointed and who work under the
Settlement Commissioner and to which other officers various duties are
delegated as per Section 34 of the DPCR Act. Section 19 is not discussed here
as it has already been elaborated by me at the time of referring to the first issue.
Section 20 sub-Section (i) (a) is relevant because it provides that the property
forming part of compensation pool being the subject matter of control and
supervision by the Managing Officer or Managing Corporation, including the
Settlement Commissioner as per Section 17, is sold by public auction or
otherwise. Thus Ministry of Rehabilitation can sell the property forming part of
compensation pool by a public auction or otherwise ie not only through public
auction. The question is, what is the meaning of the word "or otherwise".
22. Learned counsel for the respondents has placed reliance upon
Rules 87 to 91 framed under the DPCR Act to argue that „otherwise‟ can only
mean by public auction or tender and that there cannot be sale by private
negotiations of a property forming part of compensation pool. In order to
appreciate the arguments urged on behalf of the respondents, I would only refer
to Rule 87 inasmuch as the other Rules 88 to 91 provide for procedure and
which type of persons are eligible to offer for purchase or the procedure for the
public auction or tender. This Rule 87 reads as under:-
"87. Mode of sale of property-- Any property forming part of the
compensation pool may be sold by public auction or by inviting tenders or in
such other manner as the Chief Settlement Commissioner may, by general or
special order direct." (underlining added)
23 In my opinion the endeavour of the respondents/defendant to
confine the entitlement of the Chief Settlement Commissioner and officers
acting under him as per Sections 3, 17, 20 and 34 of the DPCR Act by arguing
that a property in the compensation pool cannot be sold by private negotiations,
is a wholly misplaced endeavour. If I accept the same, the same will amount to
ignoring not only the expression "or otherwise" which is a very wide
expression, but also the clear language of Rule 87 which provides for sale by
public auction or by tender or any other manner as directed by the Chief
Settlement Commissioner or by special or general order. Putting it in another
words, independent of sale of a property in compensation pool by public auction
or tender, a property can be sold by private negotiations in terms of a special or
general order of a Chief Settlement Commissioner. It is therefore not
permissible for the respondents/defendant to argue that the suit property which
has been sold by the private negotiations to the plaintiff is not a valid mode of
transfer of title in the suit property to the plaintiff Fatima Sultana.
24. There is another reason why the argument urged on behalf of the
respondents/defendant that the suit property is not validly transferred to plaintiff
has to be rejected because I fail to understand as to what is the locus standi of
the respondents/defendant to question the transfer of the title of the suit property
by the Ministry of Rehabilitation to Fatima Sultana and that too which is done
by a duly registered conveyance deed. If the government who is the owner of
the property in the compensation pool, and ownership of government cannot be
challenged in view of the provisions vesting under Section 12 of the DPCR Act,
then surely without any doubt the defendant has no right to question the
execution of the registered conveyance deed by the Ministry of Rehabilitation in
favour of the plaintiff Fatima Sultana, once the Ministry of Rehabilitation in no
manner at any point of time has ever questioned the transfer of title by it to the
plaintiff Fatima Sultana.
25(i) The issue can also be looked into in one another way that every
person has a right to question a document by filing a suit seeking its
cancellation under Section 31 of the Specific Relief Act, 1963. Admittedly, the
defendant never filed a suit seeking cancellation of the registered Sale
Deed/Conveyance Deed dated 31.12.1963 executed in favour of the plaintiff
Fatima Sultana, and on a mere defence raised in the written statement also
called as a counter claim, no decree could have been passed by the first
appellate court for cancellation of a sale deed/conveyance deed in favour of the
plaintiff Fatima Sultana. This is more so especially because there is no dispute
that no court fee was ever paid on the counter claim and the defence in the
written statement is not framed/pleaded in the nature of counter claim of a suit
valuing such counter claim specifically for cancellation of the sale deed in
favour of Fatima Sultana by the Ministry of Rehabilitation. Also, no such
counter claim could have been filed by the defendant and adjudicated by the
court without making the Ministry of Rehabilitation as a party to the suit.
(ii) I reject the argument urged on behalf of the respondents/defendant
that it is enough that by a defence in the written statement a registered sale deed
executed by the Ministry of Rehabilitation in favour of the plaintiff can be
sought to be got declared as null and void more so when the Ministry of
Rehabilitation who transferred the property to the plaintiff never has questioned
the Conveyance Deed dated 31.12.1963 and that the Ministry of Rehabilitation
is not a party to the present suit.
26(i) There is yet another way in which the issue can be looked at and
which is because of the provisions of Sections 27 and 34 of the DPCR Act.
Section 27 provides that an order made by an officer or authority acting under
the DPCR Act is final and will not be called in question in any court by filing
either of an appeal or revision or by filing of an original suit or application or
execution proceedings. We have seen the documents Ex.DW8/1 to Ex.DW8/3
and these documents make it clear that a specific order is passed by the
Settlement Commissioner not only rejecting the claim of the defendant to the
tenancy of the suit premises but more importantly allowing transfer of title of
the suit property to the plaintiff Fatima Sultana noting that Fatima Sultana is
prepared to pay Rs.9,873/- for the property. The last noting Ex.DW8/3 of the
Settlement Commissioner who is the final authority under the DPCR Act talks
of "MO to see for compliance" i.e giving finality to the transfer of title in favour
of Fatima Sultana who had bid for the suit property in the auction but the
auction could not succeed on account of the reserve price not being bid by
Fatima Sultana. Merits of the decision of the competent authority to transfer
title in favour of Fatima Sultana taken in the year 1963 cannot be undone by
simply filing the written statement containing these averments in December,
1966, and which in any case cannot be done in a civil suit as per Section 27 of
the DPCR Act. The only way in which such a decision Ex.DW8/1 to
Ex.DW8/3 could have been challenged was by filing of a writ petition as filing
of a suit is barred by way of Section 27 of the DPCR Act. I may note that
defendant‟s claim is that he was never informed of the decision comprised in
Ex.DW8/1 to Ex.DW8/3 but once during the pendency of the suit admittedly the
decision of the Settlement Commissioner to sell the property to the plaintiff
Fatima Sultana by private negotiations came to light, defendant had to challenge
such a decision, but from the year 1966 till today in the year 2016 i.e now for
about 50 years no writ petition has been filed by the defendant to question the
order of the Settlement Commissioner comprised in the documents Ex.DW8/1
to Ex.DW8/3.
(ii) Whatever doubt remains is removed by Section 36 of the DPCR
Act which provides that a civil court will not have any jurisdiction to entertain a
suit or proceedings in respect of any matter which the central government or any
officer or authority under the DPCR Act is entitled to determine, and once that
is so, the decisions contained in Ex.DW8/1 to Ex.DW8/3 become final because
at no point of time the defendant has challenged this decision to sell the suit
property to plaintiff Fatima Sultana by filing of a writ petition in this Court.
27(i) I may at this stage note and dispose of an argument urged on behalf
of the respondents/defendant by referring to his Letter dated 6.1.1962,
Ex.DW6/3. Though I have really failed to understand what could be an
argument at all of the defendant on the basis of this letter but since an argument
has been addressed on the basis of this letter, let me deal with the same. This
Letter dated 6.1.1962 addressed by the defendant to the Managing Officer under
the DPCR Act reads as under:-
"Before the Managing Officer, Ward No.IX, Delhi.
-------
Subject: Transfer or Property No.IX/436 old/740 new, Near Jama Masjid,
Delhi.
.....
Sir,
The above property is situate in the predominant Muslim locality of
Jama Masjid, Delhi and is in lawful occupation or the petitioner as a tenant or
the Department.
2. That the property was put to auction twice, but both times it was
reported as a case of no bid.
3. That the petitioner besides a being a Muslim occupant of the property,
is also member of the Backward Classes being a Saqqa by caste.
Moreover the property having got demolished and having been reconstructed
by the petitioner at his own cost, the petitioner is entitled to the transfer of the
property by allotment at its reserve price, for the all three reasons stated below
(i) The property is situate in the predominent Muslim locality of Delhi
and the petitioner is its lawful Muslim occupant.
(ii) The petitioner is a member or the Backward Classes.
(iii) The superstructure of a major part of the property belongs to the
petitioner.
It is therefore prayed that the property is question may be ordered to
be transferred to the petitioner at its reserve price and the petitioner may be
issued a challan for the deposit of 1/5th cost of the property in cash, the balance
to be paid by him by instructions, or by association of the claims of others in
accordance with the Rules. The petitioner has already submitted a number of
application to this effort. It is requested that the matter may kindly be decided
at an early date."
(ii) On a query being put by the Court to the counsel for the
respondents/defendant as to why this Letter dated 6.1.1962 is being referred, the
counsel for the respondents/defendant argued that this letter showed the
occupation of the defendant Mohd. Usman of the suit property with the fact that
he was always ready to purchase the suit property. Let us take it so that by this
letter defendant Mohd. Usman showed his willingness to purchase the property
and was shown in the occupation of the suit property, but then so what. Merely
wanting to purchase is different from becoming an owner inasmuch as the suit
property in fact has been sold and transferred by the Ministry of Rehabilitation
to the plaintiff Fatima Sultana vide Ex.PW5/1 dated 31.12.1963 and also that
occupation of the defendant once is found as an illegal occupation the same will
hence not confer any entitlement to remain in possession once the
plaintiff/owner seeks possession of the suit property by means of the present
suit. This argument urged on behalf of the respondents/defendant is also of no
effect and hence rejected.
28. In view of the above discussion, the substantial question of law is
answered in favour of the appellant/plaintiff holding that the courts below have
committed a gross illegality and gross perversity in holding that defendant was a
tenant in spite of the provision of Section 19(4) of the DPCR Act providing
otherwise and which has been reproduced and discussed above. Also, the
defendant is nobody to question transfer of title by the Ministry of
Rehabilitation in favour of the plaintiff Fatima Sultana and more so not before
the civil court in this suit in view of the provisions of Sections 27 and 36 of the
DPCR Act.
29. No other issue or aspect has been urged on behalf of the parties
before this Court, except the aspects which have been discussed above.
30. I may note that this suit is pending since the year 1966 having been
filed on 22.8.1966. Today, we are 50 years down the line and appellant is
deprived of his entitlement to possession of the suit property. No doubt,
litigation takes time in this country but in such litigation it is also necessary that
when the same comes to an end, the successful party must be compensated. It is
required to be noted that mesne profits only at the rate of Rs.75/100/- per month
have been awarded by the trial court. It is therefore necessary that
appellant/plaintiff be compensated by means of sufficient costs. While allowing
the present appeal therefore I order that respondents will pay costs of Rs.2 lacs
to the appellant as costs of the present litigation in this second appeal. Costs be
paid within six weeks from today.
31. Accordingly, this second appeal is allowed by restoring the
Judgment of the Trial Court dated 23.2.1972 and reversing the Judgment of the
First Appellate Court dated 13.8.2009.
AUGUST 08, 2016 VALMIKI J. MEHTA, J
godara/ib/Ne
