Bhopinder Singh vs The Union of India (UOI) and Others

M.H. Beg, C.J.—This Letters Patent Appeal, as it is termed here, is directed against a judgment and order of H.R. Khanna, J., (as he then was) sitting on the Himachal Bench of the Delhi High Court by which the Appellants'' petition under articles 226 and 227 of the Constitution was dismissed. The Appellants'' father (since deceased) had applied for quashing an order passed by a Joint Secretary to the Government of India, exercising the powers of the Central Government, u/s 33 of the Displaced Persons (Compensation and Rehabilitation) Act (hereinafter referred to as the Act). The Joint Secretary had allowed a revision application of the Respondent Uttam Singh and set aside an order of the Deputy Settlement Commissioner dated 7th May, 1964 (Annexure D) by which the property claimed by the Petitioner was ordered to be auctioned due to the abrogation, on 3-8-1963, of Rules 30 and 31 of the Displaced Persons (Compensation and Rehabilitation) Rules. The Settlement Commissioner had revised an order of the Settlement Officer dated 4-2-1964 by which objections of Gurdit Singh (father of the Appellants) to a decision evidenced by a letter of 29-11-1963 (Annexure B) sent by a subordinate officer had been dismissed. This letter called upon Uttam Singh to deposit the balance of the price of a property, shown to have been already "transferred" to him, and informed Gurdit Singh that he could take back the sum he had deposited. The dispute between Uttam Singh, Respondent, and Gurdit Singh, the father of the Appellants, who had filed the writ petition, arose in circumstances detailed below.

Different parts of a property numbered 88 in Old Butcher-khana, Simla, valued at Rs. 3,250/- were occupied by Uttam Singh, and Gurdit Singh, and one Karam Chand. Uttam Singh, Respondent, had a certified claim as a displaced person to compensation in respect of some property left by him in Pakistan. Gurdit Singh was also a displaced person, but he had no such certified claim. We are not concerned with Karam Chand, who was not contesting the claim of either side. Uttam Singh had also purchased some properly in Ghas Mandi, Patiala, for Rs. 2,825/- at an open auction sale held by the Settlement Department on October 10, 1957, and had deposited 10 per cent of the price. He had then applied for the adjustment of his claim for compensation towards the price of the property purchased in Patiala. The Settlement authorities, however, instead of adjusting the claim towards the property purchased by Uttam Singh in Patiala, had adjusted the compensation due to him towards arrears of rent and the value of the property in Simla which is now in dispute. It appears from the judgment of the Joint Secretary that Gurdit Singh as well as Respondent Uttam Singh had deposited Rs. 650/- on 31st of January, 1961, as initial deposit towards the purchase of the property in dispute as both claimed to be entitled to get this property from the compensation pool. The question of their rights had to be decided in accordance with Rules 30 and 31 of the Displaced Persons (G&R) Act and Rules, 1955, mentioned above.

On 25th February, 1901, Uttam Singh had deposited (he price of the properly purchased by him in Patiala at the auction sale mentioned above. As the price of the property purchased in Patiala had been paid up completely by Uttam Singh, without utilising his claim for compensation, the Settlement authorities adjusted the claim of Uttam Singh in the manner mentioned above and actually passed an order on 10th of March, 1961, showing that they had accepted this claim of Uttam Singh for compensation as part of the price towards the property in Simla. Evidently, Uttam Singh was quite satisfied with this position and did not object to it. This had been treated by the Settlement Officer as complete transaction with Uttam Singh which deprived Gurdit Singh of any further claim to the property. Hence, in the communication sent to Uttam Singh (Annexure B), it was requested that he should deposit whatever was still left, after an adjustment of his claim, by 10th of December, 1963, or to attend office for execution of an agreement for the balance of the amount, failing which the property was to be otherwise disposed of. A copy of this communication, dated 29-11-1963, was sent to Gurdit Singh who was also informed that, as the property had been "transferred" to Uttam Singh "claimant", it could not be transferred to Gurdit Singh as he was a "non-claiment" and that he could take back the amount deposited by him. Gurdit Singh''s objection to the acceptance of Uttam Singh''s claim and return of Gurdit Singh''s deposit was rejected by the Settlement Officers as mentioned above.

The Dy. Chief Settlement Commissioner had, however, accepted the revision application of Gurdit Singh on the ground that, before any right to the property had vested in Uttam Singh, Rules 30 and 31 of the Displaced Persons (C&R) Act and Rules, 1955 had been abrogated on 3rd August, 1963, so that Uttam Singh did not acquire any vested right in property. The property had been ordered by the Settlement Commissioner to be put up for auction. With this order, Gurdit Singh was quite satisfied as he expected to bid and buy it at the auction. But, when Uttam Singh went up in revision to the Central Government, it had been held that he had actually acquired a right to the property before the repeal of the two rules. This view had been affirmed by H.R. Khanna, J., in the judgment under appeal before us.

At this stage, Rule 30 may be set out. It is in the following terms:

Payment of compensation where an acquired evacuee property which is an allotable property, is in occupation of more than one person.--If more person than one holding verified claims are in occupation of any acquired property which is an allotable property, the property shall be offered to the person whose gross compensation is the highest and other persons may be allotted such other acquired evacuee property which is allotable as may be available:

Provided that in calculating the gross compensation, the compensation due for agricultural lands, shall not be taken into consideration.

Explanation I.--The provisions of the rule shall also apply where some of the persons in occupation of any acquired evacuee property which is an allotable property hold verified claims and some do not hold such claims.

Explanation II.--If any acquired evacuee property has been allotted to a member of a family as defined in Sub-rule (3) of Rule 7 who does not hold any verified claim and if another member of the family holding a verified claim is in occupation of such property, the compensation payable to such other member of the family may be adjusted against the value of the property.

Explanation I has to be read in the light of the rule of construction, in Section 13(2) General Clauses Act, that the plural includes the singular.

It is evident, from a perusal of the rule set out above, that a person who is a verified claimant has a right to be offered property a part of which is occupied by him. The Settlement authorities had a mandatory duty to make an offer of it to him. So long as this rule existed, this right could not be denied to a person who was a verified claimant.

On the other hand, Gurdit Singh could only claim, if at all, under Rule 31, which could enable him to acquire the property provided the authorities chose to transfer it to him. Even this rule could not help Gurdit Singh as it could only apply where there is no "verified claimant". The rule made it clear that so long as there is a "verified claimant", the application or claim of any other displaced person, who is not a "verified claimant", could not be even considered. It is because of this distinction that Uttam Singh had been described by the Settlement authorities as a "claimant", by which they meant a "verified claimant" to the property as "compensation", and Gurdit Singh as "non-claimant" because he could put forward no claim to any property as compensation. The relevant part of the Rule 31 laid down:

Transfer of acquired evacuee property in occupation of displaced persons none of whom holds a verified claim.---(1) Where an acquired evacuee property which is an allotable property is in occupation of more than one displaced person none of whom holds a verified claim, the property may be transferred to the displaced person who occupies the largest portion of the property or where two or more such displaced persons occupy a portion of the property which is equal in area the property may be transferred to the displaced person who has been in occupation of such portion for a longer period.

It has been vehemently contended before us that H.R. Khanna, J., erred in upholding the judgment of the Joint Secretary where the view was taken that Uttam Singh, Respondent, had acquired a vested right in the property. We, however, think that even if Uttam Singh could be held not to have acquired the title to the property in dispute, as its transferee, it was enough if Uttam Singh had, before the repeal of Rules 30 and 31, obtained a right to be offered the property in question and had taken advantage of this right. It is evident from a perusal of Rule 30 that he had such a right inasmuch as the Settlement authorities were obliged to make the first offer to him in satisfaction of his claim. If such a right was taken away subsequently, we think it is enough that the claim had been made or deemed to have been made by Uttam Singh before the rule was abrogated. It is immaterial that dispute about such a claim was pending adjudication when the rule was abrogated.

It is clear to us from the findings recorded by the Joint Secretary that Uttam Singh''s claim had been made before Rule 30 was repealed and that it was recognised as a right to obtain a transfer by an order dated 10th March, 1961. Indeed, the right acquired by Uttam Singh was described as that of a transferee of the property. Even if the property had not been transferred to him before Rule 30 was abrogated, Uttam Singh had certainly acquired the right to obtain the transfer. Such a right to obtain a transfer could also be described as a vested right. The question whether a right is a vested right or not must be kept distinct from the question whether title to any property has passed to a person who has such a right. The Settlement Commissioner had confused the two. The Joint Secretary, without noticing the distinction, had reached a correct conclusion.

Section 6(c) of the General Clauses Act, on which H.R. Khanna, J., relied, makes the position quite clear. It reads:

Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--(a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty or forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

It is clear from Section 6(c) that no "right, privilege or obligation", acquired under a statutory provision or rule which is repealed, will be affected by the repeal. As we have already held, the right of Uttam Singh under Rule 30 was certainly a right to obtain property in lieu of his claim. It was a right acquired. It could also be described as a right which had "accrued" in his favour. If the right to acquire the property had accrued in his favour, the decision given by the Joint Secretary and affirmed by H.R. Khanna, J., that it was a vested right, was unassailable.

The learned Judge had relied cm a decision of the Supreme Court in Sardarni Attar Kaur v. Chief Commissioner, New Delhi, in Civil Appeal No. 2145 of 1966, a copy of which was placed before us also. In that case, the right to claim compensation was, as the learned single Judge had pointed out, treated as vested right. Learned Counsel for the Respondent has also brought to our notice T.S. Baliah Vs. T.S. Rengachari, where even a right to prosecute was held to be a right preserved by Section 6(e) of the General Clauses Act. Similarly, we think that a right acquired to obtain property in lieu of a verified claim for compensation, was a vested right which was not affected by the pendency of any proceedings questioning it. The right had to be enforced if it existed at the time when the claim was made. The findings of fact given by the Settlement authorities indicate that the claim of Uttam Singh had certainly been put forward and even accepted before 3rd August, 1963, when Rule 30 was repealed.

Learned Counsel for the Appellants has relied on Bishan Paul Vs. Mothu Ram, , where it was held, in a case-governed by Rules 90 and 92 of the Displaced Persons (C&R) Rules, 1955, if that title to property sold at an auction by a Settlement Officer passes, on general principles, on the date of the confirmation of the sale and was not held in abeyance till the issue of the certificate. This was a case in which the question of passing of title was involved. We have already held that, irrespective of the question of passing of title, the Respondent Uttam Singh had obtained an enforceable right to get property in lieu of his claim for compensation. There is no question of any auction sale before us as was involved in Bishan Pal''s ease (supra). However, we may add that, even if confirmation of the transaction with Uttam Singh was to be considered as the date on which the title passed on to him, that date, according to the findings by the Joint Secretary and the learned single Judge, was 10th of March, 1961. It was probably for this reason that the right to Uttam Singh was described as a vested right in property which was held to have passed to Uttam Singh.

Learned Counsel for the Appellant also relied on T.C. Chitakaria v. Union of India (1968 4 D.L.T. 284), which merely followed Bishan Pal''s case (supra) and related to passing of title on an auction sale. As already indicated by us, cases dealing with the passing of title on an auction are not really applicable to the case before us.

A reference was also made to Chanan Das v. Union of India (Full Bench) (1967 69 P.L.R. 1) where it was held that powers of the appellate or revisional authorities could be exercised so as to apply the amended procedure provided by either Rule 30 or 31 of the Rules set out above. We are not concerned here with mere procedure for enforcing a right but with the disappearance of the very right to obtain property in lieu of a certified claim for compensation. We have no doubt that, in such a case, the right acquired remained unaffected by the abrogation of Rule 30 during the pendency of proceedings for the enforcement of that right.

Our attention was drawn to Faquir Singh v. Union of India (1966, CLJ. 194) where a learned Judge of the Punjab High Court held, when considering the applicability of Rules 22 and 30 to questions pending in appeal and revision, that the rights of the parties are in a fluid state whenever an appeal or revision is filed by an aggrieved party, and that the case is to be decided in accordance with law as it prevails on the date of decision of an appeal or revision as the case may be. The learned Judge went on to hold that it made no difference whether the rule was amended or abrogated. With due respect, we are unable to agree with this view if it amounts to a decision that even a vested right can be ignored or taken away by an amendment which is not specifically retrospective. We, however, think that this was not what was meant to be laid down in this case because the observations relied upon were made in the course of applying the Full Bench decision of the Punjab High Court in Chanan Dass''s case (supra), where a different question was involved. The observation, that the abrogation of the rule itself would not make any difference, seems to have been made on the assumption that the whole rule was merely procedural and did not involve conferment of any right to acquire property. In other words, the aspect of the question which is before us was not before the Court in that case.

In Mela Ram v. The Government of India (1963) 3 CLJ 254, a learned Judge of the Punjab High Court held that an amendment in Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, so as to alter the order of preference of claims to acquire a property by allotment, could be given effect to even if the amendment took place during the pendency of proceedings under appeal or revision because the claimant''s rights were still in a fluid state and he could acquire no vested right before a deed of conveyance was drawn up in his favour. Here, the applicability of Section 6(c) of the General Clauses Act was neither raised nor considered. With due respect, we are unable to accept the view adopted here.

The question was also raised, in the form of a preliminary objection on behalf of the Respondent, whether the Appellant had any locus standi to file a writ petition as an aggrieved person. No authority was cited on behalf of the Respondent, but a case cited on behalf of the Appellants, Amar Singh v. Union of India (1967) 69 P.L.R. D. 132, shows that it has been held that a displaced person had no vested right given by Rule 30 to him. Here, a Division Bench of the Delhi High Court was considering the rights of a displaced person who had no verified claim. The High Court had held that the abrogation of Rule 31 took away the discretion of the authorities to allot the property to the displaced person so that only a procedural matter was affected.

We have also reached the conclusion that the mere fact that Gurdit Singh had made a deposit which he had been called upon to make did not confer a legal right upon him to get the property because the Settlement Officer could still refuse to sell the property to him. The refusal had come after weighing such legal or equitable claim as he may have possessed against the better claim of Uttam Singh which excluded even a consideration of Gurdit Singh''s claim. We, however, reached this conclusion after going into the facts and the law applicable. Gurdit Singh, had been called upon to make a deposit on the assumption that he had a claim to be considered as he was also a displaced person in possession of a part of the property involved. He had been allowed to put in a contest before the Settlement authorities. It is, therefore, not necessary for us to go so far as to hold that he had no locus standi whatsoever as an aggrieved person to file a writ petition. Such a preliminary objection should prevail only when a Petitioner has clearly no right even to obtain a decision. A right to obtain an adjudication on such claim as a person thinks he has must be distinguished from the weakness of his claim discovered after going into its merits. On the facts of this case, we think that Gurdit Singh and his heirs had sufficient grounds to figure as aggrieved persons or had a locus standi to obtain an adjudication, but nothing beyond that.

There was also some argument before us on the question whether there could be said to be any error apparent on the face of the record. It is not necessary for us to consider what constitutes an error apparent on the face of the record as we have, after considering the merits of the respective claims, found that the decision given by the Joint Secretary, affirmed by the learned single Judge, was quite correct.

We, therefore, dismiss this appeal with costs.