Shri Mohan Lal Seth and Others vs The Chief Settlement Commissioner, New Delhi, and Others

Dua, J.—This is a Letters Patent Appeal under Clause 10 of the Letters Patent and is directed against the judgment of learned Single Judge of this Court disallowing the appellants'' petition under Article 226 of the Constitution.

The appellants approached this Court under Article 226 of the Constitution claiming to be displaced persons from Lahore (now in West Pakistan) who migrated to India in August, 1947, as a result of the unfortunate partition of the country. They owned and possessed a plot of land measuring 7 marlas and 207 sq. ft. situated at Lahore. On 2nd November, 1951, Shri Raj Lal, Claims Officer, allowed the appellants'' claim to the extent of Rs. 29,096/- in respect of the said plot. The claimants'' title was held proved on the basis of jamabandi and sajra akas produced before the Claims Officer. Later, while processing the separate compensation applications of the claimants, the Regional Settlement Commissioner, Jullundur, found that Smt. Kahan Devi, the mother of the petitioners-appellants, had been included as a claimant in another claim with respect to another property by Shri Kanshi Ram Kochhar, Claims Officer. Smt. Kahan Devi''s name was excluded by Shri Raj Lal, Claims Officer, in his order dated 2nd November, 1951. The Regional Settlement Commissioner decided to refer the matter to the Additional Settlement Commissioner for the inclusion of the mother''s name in the claim with respect to the plot in question as well. It is averred in the writ petition that this reference was unnecessary and uncalled for as the claim before Shri Raj Lal related to the property exclusively owned by the three brothers only, whereas the claim dealt with by Shri Kanshi Ram Kochhar related to the property in which the appellants'' mother had an equal share with them. Emphasis in the application is laid on the fact that Smt. Kahan Devi did not put forth any claim with respect to the plot in question. The Additional Settlement Commissioner, according to the writ petition, agreed with the suggestion of Shri Kanshi Ram Kochhar, Claims Officer, varied the order of Shri Raj Lal dated 2nd November, 1951 and included the name of Smt. Kahan Devi as well, as a claimant in the plot in question. This order is dated 11th September, 1957 and is the subject matter of challenge, in these proceedings.

The grounds on which this order, is attacked are that separate notices were not issued to all the petitioners but instead only one notice addressed to all of them jointly was sent to them at their village address which was redirected by the Sub-Postmaster concerned to Shri Girdhari Lal Seth only (petitioner No. 2. in the writ application) at Hoshiarpur. This notice was received by Shri Girdhari Lal on 1st August, 1957 at about 3 p.m. and according to this notice he was required to appear before the Additional Settlement Commissioner at Jullundur at 10 A.M. that very day, namely, 1st August, 1957. Obviously, petitioner No. 2 could not reach Jullundur in time to appear in the office of the Additional Settlement Commissioner on 1st August 1957. He, therefore, went to Jullundur the following day, but was informed that the Additional Settlement Commissioner had left the town on the preceding day. On the basis of these averments it has been pleaded that there was no proper, legal and sufficient notice of hearing before the Additional Settlement Commissioner. Petitioner No. 2, however, by way of abundant precaution also wrote to the Additional Settlement Commissioner giving him full information of the relevant facts requesting him to give to the petitioners necessary opportunity of hearing. No reply was, however, received from the office concerned. On 13th December 1957, the petitioner came to know on making enquiries from the office of the Regional Settlement Commissioner, Jullundur, that the Additional Settlement Commissioner had on 11th September, 1957 varied the order of Shri Raj Lal, Claims Officer, dated 2nd November 1951, and included the name of Smt. Kahan Devi in the list of claimants relating to the plot in question.

In the written statement filed on behalf of the Chief Settlement Commissioner and the Additional Settlement Commissioner, New Delhi, it has been averred that the plot in question was inherited by the petitioners along with their mother, Smt. Kahan Devi, from their father and that it would, therefore, belong to them jointly along with their mother because they all constituted a joint Hindu family. It has further been alleged in the written statement, that in respect of two properties situated at Lahore, one of them being a residential house and the other a vacant plot, Shri Mohan Lal Seth for self and on behalf of his two brothers filed claims and during the course of verification in respect of the house, petitioner No. 1 admitted that his mother, who was alive, had one-fourth share in the said property. The claim in respect of the house, therefore, was verified in favour of the three petitioners along with their mother, Smt. Kahan Devi, in equal shares by Shri Kanshi Ram Kochhar, Claims Officer, on 18th October, 1951. At the time of the verification of the claim in respect of the plot, however, petitioner No. 1 (Shri Mohan Lal Seth) stated that he was joint with his brothers Girdhari Lal and Vishwa Nath and was the karia of the family. He did not disclose that his. mother was also alive with the result that the Claims Officer verified the claim in favour of the three brothers only. The production of the relevant jamabandi has been admitted in the return but it has been averred that the joint Hindu family could not consist of four members in the case of house property and of only three male coparceners in respect of the plot in question. Reference by the Regional Settlement Commissioner to the Chief Settlement Commissioner for suo motu revision 1 of the case has been admitted and has been described to be perfectly lawful. Omission on the part of Smt. Kahan Devi to make a claim has been stated to be inconsequential because she did not figure as a claimant in either of the two claims. The order of Shri Raj Lal, Claims Officer, has been described to be based on incomplete facts as it was not disclosed that Smt. Kahan Devi was also alive. In so far as the question of notice is concerned, the plea taken in the return is that the Additional Settlement Commissioner issued notice to the petitioners on 13th July, 1957, at the address mentioned in the summary schedule of the claims requiring them to appear before him at Jullundur on 1st August, 1957 in connection with the suo motu revision of the order passed by Shri Raj Lal, Claims Officer. The notice was sent to the address contained in the summary schedule of the claims because no change of address had been intimated to the department. It has been admitted that the notice was served only on Shri Girdhari Lal on 1st August, 1957. Since none of the petitioners appeared before the Additional Settlement Commissioner on 1st August, 1957, he kept the case pending to enable the petitioners to appear on any subsequent date, but no one having appeared nor any application explaining their difficulties in failing to attend the office on 1st August, 1957 having been received the Additional Settlement Commissioner finalized the case on the assumption that the petitioners were not interested in contesting the notice. The final order was passed on 11th September, 1957, one month and 10 days after the service of notice on Shri Girdhari Lal, petitioner No. 2. Necessity of serving separate notice on all the petitioners individually has been pleaded to be unnecessary. The assertion made in the writ petition that the notice was received by Shri Girdhari Lal at 3 p. m. has not been admitted in the return for want of knowledge. The assertion that a letter was sent by petitioner No. 2 to the Additional Settlement Commissioner has been denied on the ground that no such letter is forthcoming on the record. Necessity of communicating the order dated 11th September, 1957 to the petitioners has also been denied in the written statement. It is, however, averred that the Regional Settlement Commissioner was duly informed of the decision of the revising authority and the former in turn gave the requisite information to the petitioners.

When the matter came up for hearing before a learned Single Judge of this Court, on behalf of the appellants-petitioners the order was assailed on the ground that it had been passed to their prejudice without giving them a reasonable opportunity of being heard. The learned Single Judge did not agree with this contention, for he, considered that no other notice after the 1st of August, 1957, was necessary to be given to the petitioners-appellants. According to him, if the petitioners had approached the Additional Settlement Commissioner in his office, then they would have learnt that the matter had not been decided on 1st August, 1957 with the result that they could place their point of view before the officer concerned. The learned Single Judge, however, also went into the merits and expressed the view that both the claims having been made by Shri Mohan Lal Seth (petitioner-appellant No. 1) as the karta of the joint Hindu family in respect of both the claims the joint Hindu family should consist of four persons and not three. The assertion on behalf of the petitioners that the plot in question did not belong to all the four persons and that it only belong to the three brothers did not find favour with the learned Single Judge. As a result the writ petition was dismissed.

On Letters Patent Appeal, Shri D. D. Khanna has submitted that the order of the learned Additional Settlement Commissioner is tainted with a serious legal infirmity inasmuch as it was passed to the appellants prejudice without affording them, a reasonable opportune of being heard. Reasonable opportunity of being heard, according to the appellants, is not only an essential element of the rule of natural justice but in the instant case it has been expressly incorporated in section 24(3) of the Displaced Persons (Compensation and Rehabilitation) Act. The contention appears to me have substance as I will presently show.

Section 24 of the Act confers power of revision on the Chief Settlement Commissioner and sub-section (3) expressly provides that no order which prejudicially affects any person shall be passed under this section "without giving him a reasonable opportunity of being heard." Now the requirement of a reasonable opportunity of being heard has been the subject matter of judicial pronouncement by High authority in more cases than one and it is hardly necessary to examine or refer to them specifically. This requirement as is well understood by now, has two elements. The first is that an opportunity must be given and the second that this opportunity must be reasonable; both these matters are justifiable and it is for the Court to determine both whether an opportunity has in fact been given as well as whether that opportunity was reasonable. It may also be observed here that there is no invariable standard of "reasonableness" except that the Court''s conscience has to be satisfied that the person against whom the prejudicial order is proposed to be made has a fair chance of convincing the authority that the grounds on which the proposed order is sought to be made either do not exist or do not justify the proposed order. This would inevitably depend on the facts and circumstances of each case.

In the case in hand it is common ground that notice had been issued to Girdhari Lal Seth petitioner-appellant No. 2 for 1st August, 1957 and was received by him on the date of hearing only. According to the appellants'' averment in the writ petition this notice was delivered to Girdhari Lal at about 3 p. m. though this averment is not admitted by the department for want of knowledge. It is, however, quite clear and is not denied that Girdhari Lal was expected to appear before the Additional Settlement Commissioner at Jullundur on the same day. The notice was, as is obvious from the record, served on Girdhari Lal at Hoshiarpur.

Now u/s 40 of the Displaced Persons (C & R) Act the Central Government is empowered to make rules for carrying out the purposes of the Act and these rules are, according to sub-section (3) of section 40, required to be laid before both houses of Parliament for not less than thirty days so as to enable the Parliament to make therein whatever modification it may choose to make. Rule 104 prescribes procedure for revisions and sub-rule (2) lays down that for the purpose of giving any person a reasonable opportunity of being heard u/s 24(3) a notice shall be issued, to him in the form specified in Appendix XXVII. The specified form contemplates intimation to the person concerned of the place and date when the matter relating to the proposed revision is to be taken up so that he may arrange to be present in person or through an agent (not being a legal practitioner) authorized in writing. Rule 105 makes applicable to the revisions the procedure laid down in Order XLI of the CPC so far as applicable. This is of course subject to the express provision to the contrary in the Act or the rules. Turning to order XLI of the Code rule 14 of this order provides for the service of notice on the respondent in the manner provided for the service on a defendant of a summons to appear and answer. This takes us to the provisions of Order 5 of the Code, rule 6 of which expressly requires sufficient time to be allowed to the party to enable him to appear and answer on the date fixed. Order 9 rule 6 of the Code lays down inter alia that if on the date of hearing it is not proved that the summons had been duly served then the Court should direct a second second summons to be issued and served on the defendant. Not only this Clause (c) of sub-rule (1) also provides for a contingency when it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons. In such a contingency, the hearing has to be postponed to a future day to be fixed by the Court with notice of such date to the defendant.

The statutory provisions just discussed which embody the rule of natural justice that as far as possible no proceeding in a Court of law should be conducted to the detriment of a person in his absence, have been made applicable to the revisions under the Displaced Persons (C&R) Act. The rules referred to above are obviously "designed to facilitate justice and further its ends " and are "not a thing designed to trip people up" as was aptly put by Bose J. when speaking for the Court in Sagram Singh v. Election Tribunal A. I. R. 1965 S. C. 425 at p. 428.

In the light of what has just been stated when on 1st August 1957 the postal acknowledgment receipt had not been received it was obvious that due service had not been proved to have been effected.

At this stage it is necessary also to advert to rule 117. According to this rule notices under the Act or the Rules must be served by registered post acknowledgment due; and ordinarily a notice of at least fifteen days has to be given. Sub-rules (3) and (4) contain deeming provisions or presumptions according to which service of a notice properly addressed and dispatched by registered post is to be deemed to have been effected on the date 6n which it would ordinarily have been delivered through registered post, unless the contrary is proved. The presumption raised by sub-rule (4) is thus expressly made rebut table. Now, whether or not on 1st August, 1957 the Additional Settlement Commissioner could have justifiably raised the presumption that service of the notice had been effected on the date on which it would ordinarily have been delivered, there was clearly no occasion for such a presumption on 11th September, 1957, for, the postal acknowledgment receipt had by then come back and it clearly disclosed service of notice on the addressee only on 1st August, 1957-the date fixed for the hearing at Jullundur. Manifestly fifteen days'' notice had not been given as prescribed and the contrary within sub-rule (4) was also clearly proved from the postal receipt itself. It is noteworthy that on 1st August, 1957 the case was not adjourned to any specific date and no intimation of any kind was sent to the appellants. On 11th September, 1957 when the Additional Settlement Commissioner decided to dispose of the case ex parte as he was apparently fully aware of the date of service of the notice because he had the postal acknowledgment receipt before him. Had he cared properly to apply his mind to the facts and circumstances of the case and to keep in view the principle of law applicable, I have little doubt that he would not have proceeded to pass the final order ex parte as he actually did, for, it was by no means possible to hold that the appellants had had a reasonable opportunity of being heard as provided by section 24 and the statutory rules. On proved facts the petitioners appellants had clearly not had fifteen days'' notice and further there was no occasion for raising any presumption under rule 117. The notice in question, on the facts of which the Additional Settlement Commissioner must have been aware on 11th September, 1957, must be held to be inadequate-if not futile. The impugned ex parte order dated 11th September, 1957 would in the circumstances appear to me to be violative of the elementary rule of natural justice as also in clear breach of the statutory provisions. It can scarcely be denied with any show of reason that it has prejudiced the appellants materially and has occasioned failure of justice, for, a decision has been given against them without affording them a reasonable opportunity of establishing their case.

The learned Single Judge, as noticed earlier, thought that since Girdhari Lal had received the notice on 1st August 1957 and, the final decision not having been given till 11th September 1957, had Girdhari approached the office of the Additional Settlement Commissioner, he would have learnt that the matter was still pending and had not been finally disposed of, and in that event he could have placed his point of view before the officer concerned. I find it a little difficult to agree with this view, and I speak with respect. This view seems to me to ignore, or, at least, it does not appear to take due or sufficient notice of the statutory provisions mentioned above, which recognise and embody the fundamental doctrine of reasonable opportunity of hearing which doctrine constitutes an important limb of the rule of natural justice, which occupies an honoured place in our system of jurisprudence. On 1st August 1957 the officer neither disposed of the case nor did he adjourn the hearing to any future date. According to the appellants, Girdhari Lal did go to Jullundur on the following day but found that the Additional Settlement Commissioner had left that station the day previous. That the Officer had so left Jullundur is not denied. The head office of the Additional Settlement Commissioner is apparently in New Delhi. I am leaving out of consideration the assertion made by the appellant that he had also dispatched a letter to the office of the Settlement Commissioner, New Delhi, stating all the facts without receiving any reply to it, because the respondent has denied the receipt of any such letter. On 11th September, 1957 the Additional Settlement Commissioner was indisputably and without doubt aware of the correct position that service had only been effected on Girdhari Lal at Hoshiarpur on 1st August, 1957 for the hearing fixed on that very day at Jullundur. In this background and in the light of the legal position just discussed I have no option but to hold that the appellants were not afforded a reasonable opportunity of being heard within section 24(3) and the rules framed u/s 40. And then the view on which service of notice on 1st August, 1957-the date of hearing-is claimed to be adequate, would also uphold service even after that date. As at present advised I am unable to persuade myself to sustain the view which yields such a result. Indeed the learned Advocate General appearing for the respondent has very fairly and frankly refrained from justifying the ex parte order passed by the Additional Settlement Commissioner.

The only ground on which Shri Sikri attempted to persuade us to refuse to issue the writ claimed is that on the merits the appellants have no case. He, however, again conceded that if the appellants formed a joint Hindu family then they must, be held to have been prejudiced by the impugned ex parte order. The counsel tried to seek support from rule 21 for the contention that by including the appellants'' mother''s share in their claim, the appellants have not been prejudiced in any mariner in so far as their total claim is concerned. This position has been stoutly controverted by Shri Khanna though he has also very fairly conceded that if only the appellants'' mother had been granted a share out of their claim they would not have made any grievance of it. He has, however, asserted that the effect of the impugned order is that the appellants'' total claim (including the share allotted to their mother) has been reduced by the impugned order.

In my opinion, it is not for this Court in the present proceedings to go into and finally determine the merits of this controversy and indeed I think this Court should only quash the impugned order of the Additional Settlement Commissioner dated 11th September, 1957, leaving it to the department concerned, if it so chooses, to decide the matter after complying with the rule relating to notice in the light of the observations made above. The petitioners appellants were not given a reasonable opportunity of being heard as provided by law and were thus deprived of the opportunity of placing their point of view and supporting the same according to law. To determine the controversy on the merits on the existing state of the record on the writ side or even to express any considered opinion on it is, therefore, in my opinion, wholly improper and indeed in that event this Court''s order would seem to suffer from the same vice with which the order of the Additional Settlement Commissioner dated 11th September, 1957 is tainted. The question is not one of abstract law but is a mixed question of fact and law.

For the foregoing reasons I allow this appeal and setting aside the order of the learned Single Judge grant the writ petition and quash the order of the Additional Settlement Commissioner dated 11th September, 1957. It would undoubtedly be open to the department to take whatever steps it likes in accordance with law and in the light of the observations made above. The parties in the circumstances are left to bear their own costs in this Court.

Falshaw, C. J.

I agree.