Dina Nath vs Union of India and Others

Grover, J.—This is a petition under Article 226 of the Constitution. It is stated in the petition that the petitioner is proprietor of firm Messrs Dina Nath Om Parkash. In the heading of the petition, however, Dina Nath has described himself as proprietor of Milap General Stores. It is stated that the petitioner was allotted shop No. W.C. 225 in Ranak Bazar, Jullundur, and respondent No. 3 had been allotted shop No. W.C. 224 as also house No. W.B. 278. There was yet a third occupant of the name of Gopal Singh in the Chobara which existed on the first floor of these shops. When the matter went before the Assistant Settlement Commissioner on 6th February 1959 the position taken up by all the co-allottees was that the shop was indivisible. In view of that he ordered that it should be transferred to Harbans Lal respondent No. 3 as against the other co-allottees. Dina Nath appealed to Shri H.C. Matta, Assistant Settlement Commissioner exercising the powers of Settlement Commissioner. The order of that officer is a short one but it is stated therein as follows:-

The District Kent and Managing Officer has reported that Shri Dina Nath is neither a regular allottee of the property nor in occupation of shop No. W.C. 225 and that the shop in question was originally allotted to Shri Om Parkash but is actually in possession of Shri Lachhman Dass and that the issue of subletting is separately dealt with by him.

It is also stated in the order that so far as divisibility of property was concerned it was admitted by the parties that shops on the ground-floor were in possession of Dina Nath and Harbans Lal while the Chobara which covered both the shops was in possession of Gopal Singh. According to the Assistant Settlement Commissioner, the property was apparently indivisible. The appeal was consequently rejected. On 23rd July 1959 the Settlement Commissioner, who exercised the powers of the Chief Settlement Commissioner, recorded a short order rejecting the revision of the petitioner in limine saying that he found no reason to disagree with the concurrent findings of the Courts below that the property in question was not divisible and had been properly transferred to respondent Harbans Lal. The petitioner filed an application for review on which a more detailed order was recorded by the Settlement Commissioner on 23rd February 1960. The case as put before him was that the property in question could be properly divided into separate portions. It is mentioned in the order that according to the plan (Exhibit A. 1) there are two shops on the ground floor in the occupation of the petitioner and Harbans Lal respondent and there is a Chobara covering both the shops which is in occupation of Gopal Singh. Thus there were three different allottees of the Chobara, and the shops but the division of the property under the instructions embodied in letter dated 9th March 1959 had to be either vertical or horizontal. In the circumstances it was held that the property in dispute had been rightly found to be indivisible. The petitioner moved the Central Government u/s 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, but he was informed by means of a letter dated 12th September 1960 that his application had been rejected. The petitioner then waited for nearly six months to file the present petition in this Court.

The learned counsel for the petitioner has not rightly pressed the point that the petitioner was not heard before his application u/s 33 of the aforesaid Act was rejected by the Government because this matter has now been finally settled by a judgment of a Division Bench of this Court in Ranjit Singh v. Union of India (1962) 64 P.L.R. 44. The sole point that has been agitated before me on behalf of the petitioner is that the property was clearly divisible into three portions and that Mr. T.C. Gupta; who had decided the matter finally in exercise of his powers as Chief; Settlement Commissioner, had in other similar cases taken a different view and had held that the property would be regarded to be divisible if it is of the same type as is to be found in the present case. According to the learned counsel for the petitioner, there are no Common amenities which are being enjoyed between the two shops and they are quite independent in their access and approach and there was no difficulty in dividing the whole property into three portions, namely, the Chobara and one shop each. My attention has been invited to an un-reported decision of Gosain J. in Beli Ram Malholra v. Union of India (Civil Writ No. 277-D of 1959) decided on 27th September 1961. There the Rehabilitation authorities had decided that the property was not divisible in view of the instructions that the property should be capable of either horizontal or verticle division in order to become divisible within the meaning of the proviso to rule 30 of the Rules framed under the Act. It was found that the Deputy Secretary, who exercised the powers of the Central Government, had not applied his own mind to the facts of that case and had just acted on the instructions. The learned Judge was of the view that the Deputy Secretary should have considered whether the property in question could be divided into separate portions and the writ was accordingly allowed. The mere fact that Mr. T.C. Gupta, who exercised the powers of the Chief Settlement Commissioner, had given some inconsistent decisions would not be sufficient to justify interference under Article 226. What has to be seen is whether on the facts of this case the petitioner ought to be granted some relief. It may be mentioned that the judgment of Gosain J. is to a certain extent m favour of the petitioner but there are several other hurdles in his way. The first difficulty is that the petitioner has been guilty of laches and delay of a nature which would justify this Court declining to exercise its extraordinary powers under Article 226 in his favour. As has been stated before, the petition was filed after a lapse of a period of about six months from the date of the last order dismissing the application of the petitioner u/s 33 of the Displaced Persons (Compensation & Rehabilitation) Act, which was made in September 1960. A Division Bench of this Court in Messrs. Sikri Brothers v. The State of Punjab (1957) 59 P.L.R. 259 laid down that a petition of this nature must be brought without unreasonable delay and a Court exercising its equitable jurisdiction is extremely reluctant to examine the grievances of a person who has not shown reasonable diligence in the assertion of his claim or who has slept upon his rights for an unreasonable period of time or who has failed to show an excuse for his laches in asserting the said rights. Some satisfactory explanation ought to be given by such a petitioner if he fails to assert his claim at an early date. The delay of six months in the present case has not been explained at all and I do consider that the petitioner has been guilty of undue laches.

The next objection that has been raised by Mr. Sarin on behalf of respondent No. 3 is that according to the order of Mr. H.C. Matta, Assistant Settlement Commissioner, the petitioner was not even a regular allottee of the property nor was he in occupation of the shop which was originally allotted to Om Parkash. Now, Mr. Matta had made a mention in his order of some report made by the District Rent and Managing Officer but gave no final decision on it. In the written statement filed by respondent No. 3, a number of facts are stated for the purpose of showing that the petitioner was never a valid allottee of shop No. W.C. 225. When facts were disputed the petitioner ought to have put in some copy of an order showing that the shop in question had been allotted to him. Such a copy was not filed before but a certified copy of a letter from the office of the District Kent and Managing Officer to the petitioner has been produced before me in which it is stated-

You are hereby informed that Messrs. Dina Nath Om Parkash are authorised allottees of the shop cited in the subject vide allotment order No. 14551 dated 3rd July 1953.

Mr. Sarin says that this letter is of 16th May 1960 which is a date subsequent to the date when Mr. T.C. Gupta passed his order in February 1960. As it is a certified copy from the office of the District Rent and Managing Officer I do not think that the petition can be thrown out on this ground alone.

The next objection raised by Mr. Sarin appears to have a good deal of force. By means of a notification dated 26th December 1980 the proviso appearing in rule 30 of the Rules has been omitted. It has however, been provided that the amendment shall not affect any proceedings for partitioning of property pending on 31st December 1960. According to Mr. Sarin, the proceedings in the present case concluded long before 31st December 1960. It cannot, therefore, be said that any proceedings for partitioning of the property in question were pending on that date, with the result that if any order is made now by the Rehabilitation authorities for partitioning the property it will be clearly without jurisdiction as the proviso has been omitted and the partition could be ordered only under the proviso. Mr. P.C. Jain, the learned counsel for the petitioner, submits that if the impugned orders are quashed, then what has to be seen is the situation which prevailed on the date when those orders were made. At that time the proviso was a part of the rules. I do not consider that this will save the present case from the effect of the amendment. Even if I quash those orders, all that I can do is to direct the Rehabilitation authorities to reconsider and re-decide the matter as I am not competent to hold whether the property is divisible or not. Those Authorities cannot now take any proceeding under the proviso which stands deleted. It is well settled that this Court will not grant writs which may be futile. I, therefore, dismiss this petition for this reason as also on the ground of laches. In the circumstances I make no orders as to costs.