Suresh Chotrani vs The State Of Madhya Pradesh
2023 Latest Caselaw 206 MP

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 IN THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                     BEFORE
               HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                              ON THE 4th OF JANUARY, 2023
                            WRIT PETITION NO.8291 / 2014

BETWEEN:-

1.          SURESH CHOTRANI S/O SHRI N.D.
            CHOTRANI, AGED ABOUT 45 YEARS,
            R/O 4-A, IDGAHA HILLS, LAXMI
            COMPOUND, BHOPAL (M.P.)

2.          NARESH CHOTRANI S/O SHRI N.D.
            CHOTRANI, AGED ABOUT 38 YEARS,
            R/O 4-A, IDGAHA HILLS, LAXMI
            COMPOUND, BHOPAL (M.P.)

                                                                                           .....PETITIONERS

(BY SHRI SANJAY AGRAWAL, SENIOR ADVOCATE WITH SHRI
SARANSH KULSHRESTHA, ADVOCATE)

AND
1.          STATE OF MADHYA PRADESH,
            THROUGH      ITS      PRINCIPAL
            SECRETARY,   DEPARTMENT      OF
            REHABILITATION, 74-D, GROUND
            FLOOR, MANTRALAYA, VALLABH
            BHAWAN, BHOPAL (M.P.)
2.          COLLECTOR BHOPAL (M.P.)

                                                                                         .....RESPONDENTS

(BY SHRI L.A.S. BAGHEL - DEPUTY GOVERNMENT ADVOCATE)

..............................................................................................................................

Reserved on: 07.11.2022
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Pronounced on: 04.01.2023
      This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:


                           ORDER

A bare look makes it apparent that this petition is of the year 2014, which involves pure question of law. In the event, when the respondents failed to grab umpteen opportunities for filing a reply to the petition, the learned Senior Counsel for the petitioners vehemently submitted that the matter can be heard even without reply of the State.

2. Of a note, vide order dated 12.06.2014, this Court while issuing notice to the respondents by registered mode, had also granted interim relief. Since then, till date no reply has been filed. Astoundingly, on 19.09.2022 although the Government Advocate appeared for the State and sought time to file reply but as per the file available with the Government Advocate appearing for the respondents/State, even though the-then Government Advocate communicated the authorities that the Court had made last indulgence granting time to file reply, no reply could be filed though the matter was directed to be listed in the week commencing 07.11.2022. Seemingly, the respondents-authorities are reluctant to file reply, therefore, on the face of fact that the matter is languishing since long, it is heard finally.

3. This petition is filed under Article 226 of the Constitution of India questioning the legality, validity and propriety

of order dated 10.09.2013 (Annexure-P/8) whereby the respondents proceeded ex parte and cancelled the allotment i.e. Annexure-P/1 made in favour of one Kanhaiyalal S/o Mangalram Bhatia vide order No.F 22-37/87/28 Bhopal dated 28.12.2005, area measuring 7240 sq.ft., City Survey No.9403 situated in Itwara, Bhopal. The only reason assigned in the impugned order is that the Act which is known as Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short - 'Act, 1954') has been repealed by the Government and, therefore, any allotment made subsequent thereto is illegal and as such, cancelled.

4. The foremost ground of questioning the validity of the impugned order is that any allotment made under the provisions of a particular Act which was subsequently repealed, cannot be cancelled without giving any opportunity of hearing and consequently in view of the law laid down by the Supreme Court and subsequently followed by the High Court that if under the provisions of a particular Act any application is pending for claiming any grant and the said Act was later-on repealed by the State Government, such application had to be considered in view of the provisions of the said Act under which it had been filed.

5. A succinct adumbration of the facts is required to be mentioned for resolving the controversy involved in the case, which are as under:-

(5.1) The Union Parliament had enacted the Act, 1954 to provide payment of compensation and rehabilitation grant to displaced persons and for the matters connected therewith.

(5.2) One Shri Kanhaiyalal Bhatia migrated from Karachi (West Pakistan) to India after partition in the year 1947. Thereafter, treating him to be a displaced person, he was allotted Club Index No. BH/SUA/E/B/99 Land/EP-23. Since Shri Kanhaiyalal Bhatia had left about 97 acres of land in Pakistan, therefore, the Central Government treating him to be a displaced person as defined in Section 2(b) of the Act, 1954 had allotted houses to him in Mangalwara, Jehangirabad in Bhopal and also at Sehore.

(5.3) Since Shri Bhatia could not be placed in possession of the houses as the same were illegally occupied by other persons, therefore, he has been continuously making representations one after another to the respondents for delivery of possession after getting allotted houses vacated from the persons illegally occupying. However, despite making several attempts the houses could not be got vacated and therefore, the respondents on the request made by Shri Bhatia for alternative house in Bhopal i.e. known as 'Nani Ki Haweli' situated at Itwara, Bhopal which is a custodian property under the provisions of Administration of Evacuee Property Act, 1950, passed an order dated 28.12.2005 allotting 'Nani Ki Haweli', area measuring 7240 sq.ft., City Survey No.9403 situated in Itawara, Bhopal in favour of Shri Kanhaiyalal Bhatia (Annexure-P/1).

(5.4) In pursuance to the said allotment, a deed of conveyance was executed on 10.02.2006 (Annexure- P/2) in favour of Shri Kanhaiyalal Bhatia and he was placed in possession of the said property on 06.06.2006, which is clear from Annexure-P/3. (5.5) In his lifetime, Shri Bhatia executed a power of attorney dated 13.04.2007 in favour of Shri Susheel Kumar authorizing him to deal with the property and power has also been given for transfer/sale of the same.

(5.6) Thereafter, the present petitioners purchased the said property by a registered sale-deed dated 30.03.2008 for a total sale consideration of Rs.15 lacs. The sale- deed i.e. Annexure-P/5 is also made part of the petition.

(5.7) Shri Kanhaiyalal Bhatia died on 17.08.2008 and his death certificate is available on record as Annexure- P/6. The petitioners have also annexed a document with the petition i.e. Annexure-P/7, a paper cutting of newspaper in which 'Nani Ki Haweli' is shown to have been recorded as Evacuee property and to be in possession of the State Government. This news was published on 24.05.2014 and after going through the same the petitioners got surprised and then visited the office of Collector Bhopal to inquire about the information as to how this property is shown in possession of the State Government whereas they

were in possession of the same and then only they came to know about the order passed on 10.09.2013 (Annexure-P/8) cancelling the allotment made in favour of Shri Kanhaiyalal Bhatia and hence, this petition filed challenging the said order of respondents.

6. Shri Sanjay Agrawal, learned senior counsel appearing for the petitioners submitted that the Act, 1954 was repealed by the Act known as Displaced Persons Claims of Other Laws Repeal Act, 2005 (for brevity the 'Repeal Act, 2005') which was made effective from 05.09.2005. He accentuated that under the said Act, several Acts have been repealed including the Act, 1954. Shri Agrawal further submitted that the allotment had been made in favour of Shri Kanhaiyalal Bhatia in the year 1981 as is clear from Annexure- P/1 but the houses allotted were in possession of some other persons, therefore, the vacant possession of the same could not be handed over to Shri Bhatia and those houses were substituted by another house i.e. 'Nani Ki Haweli'. Although, that is subsequent to repeal of the Act, 1954 but that cannot be considered to be allotment after repeal of the Act, 1954. He submitted that the Supreme Court in a case reported in (2014) SCC OnLine SC 1776 = (2020) 11 SCC 679 (Union of India vs. International Sindhi Panchayat and others), has held that if any application for grant is made under a specific provision of the Act and that Act later-on stands repealed, the pending application under that Act shall be decided in view of the provisions of the Act under which it was made and as such, he submitted that the order of allotment already

made in favour of Shri Kanhaiyalal Bhatia and otherwise his application was very much prior to the enforcement of the Repeal Act, 2005. As such, the allotment made under the provisions of the Act, 1954 cannot be cancelled assigning a simple reason that the Act under which allotment was made has been repealed later-on.

7. Giving another dent to the impugned order, Shri Agrawal submitted that it suffers from violation of principle of natural justice inasmuch as the order itself bespeaks that a notice was issued to Kanhaiyalal Bhatia and got served upon him on 07.08.2013, however, this fact is beyond the realm of possibility because Kanhaiyalal Bhatia had already expired on 17.08.2008 and service of the notice upon Shri Bhatia after his death is apparently a bitter pill to swallow. Shri Agrawal propounded that as the property had already been sold to the petitioners and occupied by them only and, therefore, notice must have been served upon them and opportunity of hearing was to be provided to the petitioners before cancellation of allotment. In fact, no notice was ever issued or served and no proceeding initiated before cancellation of allotment and therefore, the action taken by the authorities is in violation of principle of natural justice and thus illegal. Shri Agrawal, Senior Advocate further submitted that in identical circumstance, this Court in W.P.No.7728/2012 (Smt. Vani Bhai Sobhani since dead through Smt Asha Hironi and Others v. State of M.P. and Others) had decided the writ petition by order dated 11.12.2017 thereby set aside the order of cancellation of allotment and that order was not further assailed by the State Government by filing writ appeal and as such the order of writ Court has attained finality.

He further submitted that the order of Writ Court was based upon the judgment of the Supreme Court rendered in re International Sindhi Panchayat (supra). He accentuated that once the State has bowed-down to the view of Writ Court, as did not assail it further in higher forum, the instant petition deserves to be allowed pursuant to the law laid down by the High Court in Smt. Vani Bhai Sobhani (supra).

8. In contrast, Shri Baghel, learned Deputy Government Advocate appearing for the respondents-State opposed the submissions made on behalf of the petitioners and eloquently explained that after a four weeks time was granted by this Court on 19.09.2022 to file reply and fixing a date of hearing as 07.11.2022, it was duly communicated to the concerning department /respondents by the office of Advocate General, despite that, nobody came-forward and thus reply could not be filed. Nevertheless, he submitted that the impugned order is justified for the reason that the allotment was made in favour of Kanhaiyalal Bhatia only after the Act, 1954 stood repealed. As such, nothing illegal was done by the respondents saying that after the Act stood repealed, no allotment could have been made as was done in 2005 whereas allotment was made on 10.02.2006. Shri Baghel submitted that the reason assigned in the impugned order for cancellation of allotment made in favour of the petitioner is justified and therefore no interference is warranted in the impugned order. Focusing on the impugned order, he pointed-out that a notice was issued to Kanhaiyalal Bhatia containing date of appearance before the authority on 02.08.2013, but nobody appeared before the Principal

Secretary on the given date and as such the impugned order has been passed. He submitted that in the fact-situation, the impugned order does not deserve to be annulled only on the count of violation of principle of natural justice.

9. I have given anxious consideration to the submissions made on behalf of the rival parties and meticulously perused the documents available on record.

10. Indubitably, an application for allotment of land was made by Kanhaiyalal Bhatia during the period when Act, 1954 was in force. Albeit, pursuant to the allotment, Kanhaiyalal Bhatia could not be put in possession over the land as the allotted land was illegitimately occupied by some other persons and pursuant to recurring requests, on 28.12.2005 allotment (Annexure-P/1) of different land viz. "Nani Ki Haweli" area measuring 7240 square feet was made in favour of Kanhaiyalal Bhatia. It is quite evident therefrom that the earlier allotted land was replaced by the land of "Nani Ki Haweli". The record also bespeaks that said land was sold by Kanhaiyalal Bhatia to the petitioners, who in turn became the owners of the land. It is also noticed that the Act, 1954 stood repealed in the year 2005 by introducing the Repeal Act, 2005, which came into force w.e.f. 05.09.2005. Lo & behold, the respondents in the year 2013 cancelled the allotment made in favour of Kanhaiyalal Bhatia vide impugned order dated 10.09.2013. Record also contains a death certificate of Kanhaiyalal Bhatia as Annexure-P/6 showing he breathed his last on 17.08.2008. Although a notice for initiating cancellation proceeding of allotment was said to be issued on 02.08.2013 asking

Kanhaiyalal Bhatia to appear before the Principal Secretary, Revenue & Rehabilitation on 13.08.2013 and as nobody appeared, impugned order has been passed ex parte. Much to the surprise, when Kanhaiyalal Bhatia had already heavenly abode much prior to issuance of notice, then it was incumbent upon the authorities to first discern about the actual ownership of the land and then essentially could have issued a notice to the person occupying the said land, but nothing, to stand upon the test of time, was done and unceremoniously, more precisely, the allotment order made in favour of Kanhaiyalal Bhatia was cancelled casually. Indeed, the petitioners being the owner of the land were neither summoned nor heard before passing ex parte impugned order, whereas, the property in question had already been sold by Kanhaiyalal Bhatia in his life time to the petitioners vide registered sale-deed dated 30.03.2008 (Annexure-P/5). In the given situation, although the factum of execution of sale-deed by power of attorney holder namely Shri Susheel Kumar, in whose favour Kanhaiyalal Bhatia had executed an authority letter - will not make any difference. Obviously, the aforesaid facts indicate that the actual owner of the property on the date of passing the impugned order, was not given any opportunity of hearing, which brings the impugned order within the ambit of violation of principle of natural justice. Indispensably, while admitting the petition on 12.06.2014, status quo regarding possession of the land was maintained, which enabled the petitioners to remain in throughout possession of the property hitherto.

11. At this juncture, it is indispensable to appreciate the

legal position already set at rest. The Supreme Court in re International Sindhi Panchayat (supra) dealing with the akin situation, has laid down that in view of Section 6 of General Clauses Act, since the application of allotment was made during the period when Act, 1954 was in vogue, therefore, application ought to have been considered under the said Act, though same stood repealed later-on, that would not affect the allotment if any made on the said pending application. It becomes crystal clear from the view of the Supreme Court that pending application under the provision of any specific Act, would not become redundant only because that Act stood repealed afterwards.

12. Bolstered with the abovesaid view of the Supreme Court, this Court remained unwavering in re Smt. Vani Bhai Sobhani (supra), under the indifferent fact-situation, wherein the respondent-authority had cancelled the order passed on 08.09.2006 allotting the land in favour of Vani Bhai Sobhani, who was migrated from Lahore (Pakistan) and was considered to be a displaced person and deliverance of allotted land could not be effectuated and then alternative land was delivered vide letter dated 08.09.2006 and that allotment was brought to an end taking shelter of the Repeal Act, 2005 by passing the order dated 08.11.2011, in that petition, this Court set aside the order of cancellation of allotment.

13. Of a closing note, juxtaposing the facts and circumstances of the case of Smt. Vani Bhai Sobhani (supra) with that of the case at hand, I find an indistinguishable similarity and furthermore since the order passed in that writ petition was never

put to test before the superior Court and thus attained finality, therefore, there appears no reason for this Court to deviate from the view already put to rest. At the same time, the lethargy and unwillingness of the respondents to file reply in spite of sufficient opportunity, can also not be brushed aside.

14. In view of the above discourse, I find the impugned order dated 10.09.2013 (Annexure-P/8) as illegal and therefore cannot be allowed to stand. Accordingly, it is hereby set aside.

15. Ex consequentia, the writ petition is allowed.

No order as to costs.

(SANJAY DWIVEDI) JUDGE Sudesh

SUDESH KUMAR SHUKLA 2023.01.05 17:25:27 +05'30'