Brahm Vasudeva Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
[a] displaced persons (compensation and rehabilitation) act, 1954 - sections 16(2)(a), 19 - government of maharashtra notification dated 24th november, 1993 - assistant custodian of evacuee property - powers delegated to act as managing officer under the displaced persons (compensation and rehabilitation) act - competent to issue show cause notices for handing over possession of the evacuee property for breach of the term of allotment.;the two notifications dated 24th november, 1993 clearly establish the fact that the assistant custodian under the administration of evacuee property was delegated the powers to act as managing officer under section 16(2)(a) of the d. p. act.;by the said notification, the said authority was empowered to act as managing officer under section 19 of the displaced persons act and, therefore, the asstt. custodian had issued the show cause notice in accordance with the law.;[b] displaced persons (compensation and rehabilitation) act, 1954 - section 19 - administration of evacuee properties act, 1950 - notice to the displaced person - notice for handing over possession of evacuee property for breach of the term of allotment - allotment of premises to the company - resolution by company to transfer premises in the name of the managing director on its being defunct - acceptance of rent and issue of rent receipts in the personal name of the managing director - waiver of the term - notice not legal and proper - notice quashed and set aside.;the central government, enacted the two legislations to manage the property evacuated by the persons who migrated to pakistan and to compensate and rehabilitate the persons who migrated from pakistan to india as displaced persons. the whole object was to compensate and rehabilitate by all means the refugees who had come to this country. to accomplish the said object in the present case, the father of the petitioner shri h. d. vasudeva was allotted the premises under question. at that time, it appears that he claimed to be the managing director of his company which was functioning in pakistan and he came to india as refugee, leaving everything in that country. in the capacity of the managing director of the said company he appears to have applied for premises which was allotted to him. no doubt, the allotment letter dated 2nd march, 1950 was addressed to the managing director of his company, subsequently it appears that his company was wound up and closed in the year 1959. it appears that the board of directors of that company on 28th november, 1958 passed a resolution that it had no objection to the transfer of the premises from the name of the company to the personal name of shri h. d. vasudeva. thereafter, the said shri vasudeva was paying rent personally and the authority was issuing rent receipts in his personal name from 1959 onwards. it further appears that even the trust had transferred the rent receipts in the personal name of shri h. d. vasudeva. on 22nd june, 1981 the custodianhad also addressed aletter to shri h. d. vasudeva in his personal name and even thereafter, the said authority was accepting the rent from shri h. d. vasudeva and was issuing the rent receipts in his personal name. from 1981, atleast the authority was aware of the fact that the rent was being paid by shri vasudeva who did not describe himself as managing director and even the authority did not insist to issue rent receipt in the name of the managing director. the company had transferred the premises in the name of shri h. d. vasudeva on the same terms and conditions and, therefore, shri vasudeva was paying the rent in his personal name and the authorities were accepting the same from him and issuing the rent receipts in his personal name. it has, therefore, to be presumed that the fact that the premises was held by shri vasudeva as an allottee and was paying the rent from 1981 and, therefore, it must be presumed that the fact of transfer of the allotment in the name of shri h. d. vasudeva was deemed to have been accepted by the authorities. if that is so, the show cause notice issued by the assistant custodian was totally illegal as shri h. d. vasudeva stepped in the shoes of the company which had resolved to transfer the premises in the personal name of shri h. d. vasudeva. it would, therefore, be logical to conclude that the authorities had waived the term (c) in the letter of allotment and had accepted the transfer in the name of shri h. d. vasudeva. the issuance of show cause notice in the year 1997 is not legal and proper and, therefore, has to be quashed and set aside. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the petitioner had again placed on record his case as stated in the letter dated 23rd may, 1998. the appellate authority however, was not satisfied with the contentions of the petitioner and dismissed the said appeal, confirming the order passed by the lower authority. 2 to 4 has refuted the said challenge and has relied upon the two notifications issued by the deputy secretary to government of maharashtra on 24th november, 1993. these two notifications clearly establish the fact that the assistant custodian under the administration of evacuee property was delegated the powers to act as managing officer under section 16(2)(a) of the d.r.j. kochar, j.1. the petitioner claims to be a displaced person, who came to india along with his father late shri h.d. vasudeva as a refugee and was registered on 13th november, 1947 as a refugee with the ministry of relief and rehabilitation government of india. the petitioner is aggrieved by the order dated on 6th june, 1998 passed by the deputy custodian of evacuee property of mumbai in his appeal no. evp/appeal /no.1/98 filed against the order passed by the assistant custodian of evacuee property, mumbai on 16th march, 1998 holding that the petitioner was in an unauthorised and illegal possession of 2/3rd portion of the office premises and directing him to hand over the said office premises for the use as the office of the said authority, as it was facing problem for office premises. the main or the only ground on which both the authorities passed the impugned orders against the petitioner, was the alleged breach of terms of the conditions of the allotment of the accommodation, originally given to the father of the petitioner on 2nd march, 1950. the alleged breach of the condition was clause (c) which reads as 'you undertake not to sub-let the premises or assign right title or interest therein to any other person'. the said allotment letter was addressed to the managing director, national security assurances company ltd., and there were in all four terms mentioned in the said letter, including the term or the condition quoted hereinabove. according to the authorities, the allotment of the premised was made to managing director of the company and not to the late shri h.d. vasudeva, in his personal capacity. the authorities objected after about 40 years that the said transfer of the premises by the company in the name of shri h.d. vasudeva amounted to breach of the condition quoted hereinabove. it was the contention of the authorities that the premises were allotted to the company and not to shri h.d. vasudeva in his personal capacity. since the company had committed breach of the above condition, the authorities became entitled to resume the premises and cancel the allotment.2. to appreciate the contentions of both the sides, it would be necessary for us to peep in the history of the facts. as i have already stated that on 13th november, 1947, late h.d. vasudeva was registered as a refugee with the government of india. by his letter dated 18th january, 1950, on the letterhead of this company i.e., national security assurances company ltd. shri h.d. vasudeva requested the custodian of evacuee property for allotment of the suit premises. in the said letter late h.d. vasudeva had narrated as to how he was holding the position as the managing director of the said company in pakistan and how he came to india as refugee after partition and requested for allotment of office premises in bombay. in response to the said letter, the authorities promptly allotted a portion of the office premises i.e. suit premises in bombay on the conditions stipulated in the said letter. by a letter dated 11th april, 1950, sir currimbhoy ibrahim baronatcy trust 1913, requested the managing director to pay monthly rent for the said premises to the trust. in response thereto, the managing director agreed to pay the amount of rent. by a letter dated 9th september, 1959, in response to the request made by the company, the trust had transferred the premises in the personal name of shri h.d. vasudeva. it is on record that even the custodian of evacuee property had issued rent receipts in the name of shri h.d. vasudeva. by a letter dated 22nd june, 1981, the custodian addressed a letter to shri h.d. vasudeva directing him to pay rent upto the date to the said authority. accordingly it appears from the record that the said authority received the rent from shri h.d. vasudeva on and from 19th september, 1981. (shri joshi, the learned counsel for the petitioner has shown me all the old rent receipts in original which stand in the personal name of shri h.d. vasudeva).3. it appears that by a notice dated 8th august, 1991, the resident deputy collector, mumbai and deputy custodian of evacuee property (hereinafter referred to as the custodian) issued a notice to shri h.d. vasudeva that he should vacate the premises which were given to him on lease for 10 years and the lease had come to an end in 1970. thereafter, correspondence appeared to have been exchanged between the parties. meanwhile, it appears that shri h.d. vasudeva expired and his only son shri brahma vasudeva was representing him before the authorities. he denied the claim of the authorities that there was any breach of the term of allotment and pleaded that he himself was also refugee as he had come along with his father to india when he was 11 years old. he also claimed to be entitled to allotment of the said premises besides being the only legal heir of the late shri h.d. vasudeva.4. a show cause notice dated 29th september, 1997 was issued to the petitioner under section 19 of the displaced persons (c & r) act calling upon the petitioner to explain why no action should not be taken against him for the breach of the condition 'c' in the letter of allotment. the petitioner by his statement explained why no action should be taken against him. the authority did not accept the contentions of the petitioner and passed an order on 16th march, 1998 directing him to hand over the possession of 2/3rd portion of the office premises which was alleged to be unauthorisedly and illegally in his possession. the petitioner preferred an appeal on 13th april, 1998 before the appellate authority. the petitioner had again placed on record his case as stated in the letter dated 23rd may, 1998. the appellate authority however, was not satisfied with the contentions of the petitioner and dismissed the said appeal, confirming the order passed by the lower authority. that is how the petitioner is before this court.5. shri joshi the learned counsel for the petitioner at the outset has questioned the authority of the assistant custodian to issue show cause notice under section 19 of d.p. act. according to him, the said authority was not delegated with any powers to take such action under the act. under the said act, it was the managing officer or the corporations who were empowered to take such action. the assistant custodian was functioning under the administration of evacuee properties act, 1950. shri joshi, therefore, challenged the power and the authority of the assistant custodian to initiate the action and all subsequent decisions which stand vitiated. shri naik, the learned a.g.p. appearing for the respondent nos. 2 to 4 has refuted the said challenge and has relied upon the two notifications issued by the deputy secretary to government of maharashtra on 24th november, 1993. these two notifications clearly establish the fact that the assistant custodian under the administration of evacuee property was delegated the powers to act as managing officer under section 16(2)(a) of the d.p. act. i, therefore, do not find any substance in the challenge of shri joshi that the show cause notice issued by the assistant custodian was without any power vested in him. by the said notification, the said authority was empowered to act as managing officer under section 19 of the d.p. act and therefore, the assistant custodian had issued the show cause notice in accordance with the law.6. there is, however, lot of substance in the contention of shri joshi on the merits of the matter. the purpose and object of both the aforesaid enactments is to be borne in mind that the refugee coming from the pakistan were denuded of their properties there. such refugees were to be rehabilitated in this country in accordance with law. the central government, therefore, enacted the aforesaid two legislations to manage the property evacuated by the persons who migrated to pakistan and to compensate and rehabilitate the persons who migrated from pakistan to india as displaced persons. the whole object was to compensate and rehabilitate by all means the refugees who had come to this country. to accomplish the said object in the present case, the father of the petitioner shri h.d. vasudeva was allotted the premises under question. at that time, it appears that he claimed to be the managing director of his company which was functioning in pakistan and he came to india as refugee, leaving everything in that country. in the capacity of managing director of the said company he appears to have applied for premises which was allotted to him. no doubt, the allotment letter dated 2nd march, 1950 was addressed to the managing director of his company, subsequently it appears that his company was wound up and closed in the year 1959. it appears that the board of directors of that company on 28th november, 1958 passed a resolution that it had no objection to the transfer of the premises from the name of the company to the personal name of shri h.d. vasudeva. thereafter, the said shri vasudeva was paying rent personally and the authority was issuing rent receipts in his personal name from 1959 onwards. it further appears that even the trust had transferred the rent receipts in the personal name of shri h.d. vasudeva. on 22nd june, 1981 the custodian had also addressed a letter to shri h.d. vasudeva in his personal name and even thereafter, the said authority was accepting the rent from shri h.d. vasudeva and was issuing the rent receipts in his personal name. from 1981, atleast the authority was aware of the fact that the rent was being paid by shri vasudeva who did not describe himself as managing director and even the authority did not insist to issue rent receipt in the name of managing director. the company had traallotment the premises in the name of shri h.d. vasudeva on the same terms and conditions and, therefore, shri vasudeva was paying the rent in his personal name and the authorities were accepting the same from him and issuing the rent receipts in his personal name, it has, therefore, to be presumed that the fact that the premises was held by shri vasudeva as an allottee and was paying the rent from 1981 and, therefore, we must presume that the fact of transfer of the allotment in the name of shri h.d. vasudeva was deemed to have been accepted by the authorities. if that is so, the show cause notice issued by the assistant custodian was totally illegal as shri h.d. vasudeva stepped in the shoes of the company which had resolved to transfer the premises in the personal name of shri h.d. vasudeva. it would, therefore, be logical to conclude that the authorities had waived the term (c) in the letter of allotment and had accepted the transfer in the name of shri h.d. vasudeva. the issuance of show cause notice in the year 1997 is not legal and proper and therefore has to be quashed and set aside. both the authorities below have not considered the aforesaid crucial and have confirmed the show cause notice and issued directions to the petitioners to hand over the possession without proper application of mind.7. from the definition of the displaced persons given in the d.p. act, it would be clear that what was contemplated was rehabilitation of living persons and individuals who had lost their properties in pakistan and who came to this country as refugees. the father of the petitioner, though he had described himself as the managing director of his company in pakistan, was required to be rehabilitated and compensated personally or individually. he was, therefore, allotted the premises to set up his office to carry on the activities of his company which he had lost in pakistan. it is not that the company was being rehabilitated but it was shri h.d. vasudeva as person was to be rehabilitated, even as the managing director of the company. unless, the business activities of the refugees were helped to be started, it cannot be said that the cause of rehabilitation would be achieved, it was, therefore, required under the act that shri h.d. vasudeva was rehabilitated and compensated as a person and individual to restart his company and the business activities and to get himself rehabilitated. it cannot be said even if the company did not exist after 1959., the allotment stood cancelled. if that is so, the authorities ought to have taken immediate steps at that time only. there is another aspect in this matter. the definition of the displaced person includes the successor in interest. in the present case, it can be said that shri h.d. vasudeva was the successor in interest of the company which had allowed the premises to stand in his name. the purpose of the condition that the premises would not be sub-let or no third party interest would be created is that no third person should be inducted. in the present case, there is no third party that has come on the scene. it was shri h.d. vasudeva the managing director and it was h.d. vasudeva in person. there is no sub-letting or transfer of the property in that sense to the third party.8. the petitioner himself is a refugee being the son of late h.d. vasudeva. the petitioner himself was of 11 years old when he came along with his father as refugee. he is the successor in title and interest of justice to displace once again the petitioner whose father was rehabilitated under the aforesaid enactments.9. i, therefore, do not agree with the impugned orders passed by the authorities that there was a breach of the terms and conditions in the allotment letter. even assuming for a moment that there was breach of the condition even then the breach is deemed to have been waived on account of inaction on the part of the authorities from 1981 onward.10. both the impugned orders and the show cause notices are, therefore, quashed and set aside. the petition is allowed. rule is made absolute in terms of prayer clauses (a) and (b) with no orders as to costs.