9911796707
TMI Blog1972 (10) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... to Pt. Dev Raj. Gurcharan Parshad went in appeal to the Chief Settlement Commissioner, which appeal was accepted without notice to Dev Raj, but this order was set aside on the matter being brought to the notice of the Chief Settlement Commissioner. The matter was ultimately dealt with by Shri Parshotam Sarup, Deputy Chief Settlement Commissioner and, treating the appeal as a revision suo motu, he set aside the order of the Managing Officer in favour of Gurcharan Parshad and remanded the case for fresh decision after determining the eligibility according to law, after due notice to the parties. This order is dated 23rd October, 1961. 4. No action was taken by the subordinate authorities in spite of this order, in spite of a number of applications sent by Pt. Dev Raj, till 24th May, 1966, when the Assistant Settlement Officer, Jullundur, passed the impugned order holding that since rule 30 of the Rules has been repealed on 3rd August, 1963, the property in question could not be transferred to any one of the occupants and directed the same to be put to auction. An appeal filed by Pt. Dev Raj to the Chief Settlement Commissioner and a revision under Section 33 of the Displaced Persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in Mela Ram's case (L. P.A 92 of 1963(Punj) was correct and directed themselves only to the question, whether the same rule would be applicable to the revisions or would be confined to appeals. 9. It was also urged that, in fact, in the Full Bench judgment observations were made that there was good deal to be said for the proposition that the modification of a rule would not have retrospective effect. 10. Be that as it may, we feel that this matter shall have to be decided authoritatively and we, consequently, refer the following question for decision by a Full Bench:-- "Will the rights of a claimant with a verified claim be governed by rule 30 of the Rules, as it existed on the date of his application for the transfer of the property in his occupation or by the position as it existed on the date of the decision by the authorities concerned?" ORDER OF FULL BENCH DATED 6-9-1971. P.C. Pandit, R.S. Narula and Gopal Singh, JJ. 11. The following question of law has been referred to us for decision by a Division Bench, consisting of Harbans Singh C.J. and Gurdev Singh J:-- "Will the rights of a claimant with a verified claim be governed by rule 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person whose gross compensation is the highest and other persons may be allotted such other acquired evacuee property which is allottable as may be available. Provided that in calculating the gross compensation, the compensation due for agricultural lands, shall not be taken into consideration. Explanation--The provisions of the rule shall also apply where some of the persons in occupation of any acquired evacuee property which is an allottable property hold verified claims and some do not hold such claims." 14. The question that has been referred to us relates to the effect of this abrogation on claims for transfer of acquired evacuee property pending before the Rehabilitation Authorities on that date. For proper appreciation of the matter in controversy it is here necessary to advert to the facts giving rise to this reference. 15. The appellant Dev Raj is a displaced person from West Pakistan. On migration to India he settled at Ludhiana and took up his residence with his brother Jagan Nath in his House No. B-IV-1095, Hazuri road, Ludhiana, to whom a portion of this evacuee property had been allotted by the Custodian, Evacuee Property. On the transfer of Jagan Nath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 1961, Shri Parshotam Sarup, Deputy Chief Settlement Commissioner in exercise of his revisional jurisdiction set aside the order dated 29th of January, 1960, by which the District Rent and Managing Officer had directed the transfer of the house in dispute in favour of Respondents 4 and 5 to the exclusion of the appellant Dev Raj. He remanded the case for fresh decision, directing that the eligibility of the contending parties be first determined. This order forms Annexure 'A' to the writ-petition out of which this reference has arisen. 18. Finding that no steps had been taken to implement this order, on 13th of February, 1962 the appellant Dev Raj moved the Chief Settlement Commissioner (Annexure 'B'). Subsequently, he made another application (Annexure 'C') on the 24th of January, 1963, and ultimately, approached the Settlement Officer, Jullundur, for transfer of the house by means of the application (copy Annexure 'D') dated 8th of April, 1963. A copy of the same was sent to the District Rent and Managing Officer. Unfortunately, for a long time no action was taken to implement the order of Shri Parshotam Lal dated 23rd of October, 1961, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the Letters Patent appeal came up before my Lord the Chief Justice and myself, reliance for upholding the view taken by the learned Single Judge was placed on the Bench decision of this Court in L. P. A. 92 of 1963, decided on 19-2-1964(Punj), wherein it had been held that the Rules, as they existed on the date of the decision and not on the date of the application, would apply to all pending proceedings under the Act. Subsequent to this decision a Full Bench of this Court in 69 Pun LR 1 = (AIR 1967 Punj 297)(FB), by majority (Mehar Singh C.J. And D.K. Mahajan J.), however, held that Rule 30 as amended on March 24, 1961 did not apply to Revisions pending on that date or filed thereafter under Sections 24 and 33 of the Act, implying thereby that the amended rule operated to affect the pending proceedings upto the stage of the appeal. On behalf of the appellant Dev Raj it was contended that the Full Bench decision had no bearing on the point as the learned Judges had proceeded on the assumption that the decision in Mela Ram's case, supra, was correct and had directed themselves solely to the question, whether the amended rule applied to the pending Revisions under S. 24 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and law promulgated for the purpose they were got verified. To compensate such claimants and to rehabilitate them, the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was enacted and it came into force on the 9th of October, 1954. Its preamble is in these words: "An Act to provide for the payment of compensation and rehabilitation grants to displaced persons and for matters connected therewith." 23. Section 3 of the Act sets up the machinery for carrying out its purpose and to enforce its provisions. Section 4 enjoins upon the Central Government to issue notifications in the official Gazette from time to time, but not later than the thirtieth day of June. 1955, requiring all displaced persons having a verified claim, to make applications for the payment of compensation. As before this Act came into force most of the available evacuee property had been leased out or allotted and occupied by displaced persons, provision is made in Section 5 for the determination of public dues recoverable from the applicant and they have to be adjusted in determining the amount of net compensation under Section 7 due to a displaced person. Section 8 prescribes the form a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pool and the manner of realisation of the sale proceeds or the adjustment of the value of the property transferred against the amount of compensation. 27. It was in exercise of this power under Section 40 that the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, were framed. On their promulgation by publication in the Government Gazette they came into force on the 21st of May, 1955. The Scheme of these Rules and some of the provisions made thereunder may now be noticed. 28. Chapter II of the Rules lays down the procedure for submission of compensation applications and determination of public dues. Under Rule 4, which occures in this chapter an application for compensation has to be made by a displaced person in the form specified in Appendix I and it has to be accompanied by the questionnaire in the form specified in Appendix II and an affidavit in the form specified in Appendix III, besides certified copy of the scheme, assessment order and some other documents. Chapter III lays down the procedure to be followed by the Settlement Commissioner on receipt of the duplicate copies of the applications for compensation. Chapter IV contains provisions for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property and allot to each such person a portion of the property so partitioned having regard to the amount of net compensation payable to him. 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 allottable 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 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." 33. This rule was amended more than once. By the amendment dated 24th of March 1961 the words "the highest were substituted for the words "nearest to the value of the property". 34. Subsequent to these amendments Rule 30 in its entirety was deleted by the Sixth Amendment of the Rules effected on 3rd of August, 1963, and it is because of this abrogation that the authorities concerned have refused to transfer the property to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion-and have therefore applied the term 'implied repeal' and the rules of construction applicable to repeals to such amendments." 36. By the Sixth Amendment of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, rules 30 and 31 have been omitted Rule 30, with which we are concerned in this case and which has been reproduced earlier, relates to the payment of compensation to a displaced person by allotment of acquired evacuee property which is in possession of more than one person. From the other provisions contained in this Sixth Amendment, it becomes apparent that the deletion of this rule became necessary because of the amendment of Rule 22, which lays down the various classes of acquired evacuee property that shall ordinarily be allotted. One of the categories of such property, clause (a), is "any residential property in the occupation of a displaced person, the value of which does not exceed fifteen thousand rupees". By the Sixth Amendment to this provision the following Explanation was added: "No property referred to in clause (a) or clause (b) shall be allottable, if it is in the occupation of two or more persons, whether any or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation had not been passed." 41. This is in consonance with the fundamental rule of interpretation that no statute shall be construed to have a retrospective effect unless such intention appears very clearly in the terms of the Act or arises by necessary and distinct implication. Thus, we have to look to the repealing Act or provisions to find out whether the rule that has been abrogated would continue to govern the pending proceedings. 42. It cannot be disputed that prior to the abrogation of Rule 30, the appellant, who is a displaced person holding a verified claim and was in possession of the house in dispute, was entitled to apply for its transfer to him and, if found eligible, the authorities could transfer the same to him. It is also true that if the law as it stands on the date of determination of his eligibility or adjudication of his claim to transfer is to be considered, then because of the amendment of Rule 22 and the abrogation of Rule 30, it was no longer open to him to claim the transfer of this house and thus his right to the transfer of property in satisfaction of his claim stand adversely affected. The appellant, however, applied for transfer of this proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued as prospective only. The retrospectivity of a procedural statute will not, however, affect substantive rights which have already vested in a citizen.................. "The same rule governs the applicability of an amending statute to a pending action. When an amending section avoids transactions, then it is necessary to have clear words in the statute if transactions entered into before the Act are to be affected." 46. At page 387 of Craies on Statute Law (Seventh Edition) it is stated: "A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty or attaches a new disability in respect to transactions or considerations already past. But a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. In Laurie v. Renad, (1892) 3 Ch. 402 Lindley L.J. said: It is a fundamental rule of English Law that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction. And the same rule i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make substantive provisions of law retrospective in operation, it generally makes its intention clear by express provisions in that behalf." 51. Recently in Income-tax Officer. Allepey v. I.M.C. Ponnoose, AIR 1970 SC 385, their Lordships of the Supreme Court dealing with this matter said: "It is open to a sovereign legislature to enact laws which have retrospective operation. The courts will not ascribe retrospectivity to new laws affecting rights unless by express words of necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve rights which have already vested in a citizen. 55. When an amending section avoids transaction, then it is necessary to have clear words in the statute if transactions entered into before the Act are to be affected. If there is an express provision making the amending provision retrospective, effect has to be given to it, but even in absence of any such a provision the amending statute can have retrospective effect, if its language is such as plainly to require such a construction. Even then a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. The indication to affect existing rights or remedies must be clear and it has to be gathered either from the subject-matter or from the working of a statute. For that purpose we have to look at the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the legislature contemplated. 56. The Sixth Amendment of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, effected in the year 1963, with which we are concerned in this case, admittedly does not contain any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this Court (Falshaw, C.J. and Mehar Singh, J.) in Harbans Lal v. Union of India Civil Writ 513-D of 1959, decided on 31-12-1963(Punj). That was also a case under rule 30, Harbans Lal had been unsuccessful upto the stage of Revision before the Chief Settlement Commissioner under Section 24 of the Act in obtaining property because his claim was inferior to that of his opponent under rule 30 as it then stood. He thereupon approached the Central Government under Section 33. During the pendency of those proceedings there was an amendment of rule 98(a) which placed the verified rehabilitation grant on the same footing as the verified claim for the purposes of rule 30. Because of this provision Harbans Lal, who was also entitled to a rehabilitation grant, claimed priority before the Deputy Secretary exercising the powers of the Government under Section 33. His plea was, however, rejected and the Bench ruled that the amended rule could not be given retrospective effect in the proceedings under Section 33 of the Act, which were in the nature of revisional powers intended to be used in much the same way as the revisional powers conferred on the Chief Settlement Commissioner under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in proceedings pending under that rule and upto the stage of appeal, as the question referred to the Full Bench in that case was confined only to the effect of an amendment on the proceedings pending under Sections 24 and 33 of the Act, and it was never called upon to consider, nor did it go into, the question whether the amendment of Rule 30 operated retrospectively so as to affect the claims under that rule which were yet awaiting adjudication before the original or appellate authority. It is emphasised that the effect of the amendment of Rule 30 on the claims pending before the original authorities and the appeals against orders passed under that provision did not arise in that case and both the order of reference and the decision of the Full Bench proceeded on the assumption that pending proceedings upto the stage of appeal were governed by the amended rule, which assumption, so the learned counsel urges, is not correct. 63. It is true that so far as the proceedings before the Rehabilitation Authorities upto the stage appeal are concerned the Full Bench has not ruled that the amended rule would not apply retrospectively and to that extent the decision in Mela Ram's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case retrospectivity is assumed from which it follows that the rule does not deal with vested rights as was strongly argued in Mela Ram's case, LPA 92 of 1963 D/- 19-2-1964(Punj). The question is: does the amended rule apply to proceedings pending under section 33?" 65. The question that has been referred to us is, however, of wider amplitude. We have to consider whether the amendment of rule 30 resulting in its abrogation can apply retrospectively to any pending proceedings at whatever stage it be before the Rehabilitation Authorities. This involves going into the decisions in both Mela Ram, LPA No. 92 of 1963 D/- 19-2-1964(Punj) and Chanan Dass's case, 69 Pun LR 1 = (AIR 1967 Punj 297(FB). As has been observed earlier, it is not correct to say that Mela Ram's case so far as it lays down that the amendment of the rule would apply retrospectively upto the stage of appeal before the Rehabilitation Authorities, has been approved by the Full Bench in Chanan Dass's case. The whole matter relating to the retrospective operation of the rule to the pending proceedings at whatever stage they may be is now before us. 66. In fact, the decisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Asa Nand v. The Central Govt. Of India (1963) 65 Pun LR 214. His Lordship preferred to follow the view taken by Shamsher Bahadur J in Sajjan Singh's case and held that the amended rule applied to the cases which were then pending not only before the appellate but before the revisional authorities as well, observing that no party to the dispute can be said to have acquired a vested right in the property when the matter is still pending before a revisional or an appellate authority. My attention has been invited to another decision of Pandit J. Reported as Lal Chand v. The Financial Commr. Punjab. Chandigarh. (1962) 64 Pun LR 581. In which dealing with the amendment of Section 19 of the Punjab Security of Land Tenures Act (10 of 1953) his Lordship held that the subsequent change in the law could not affect the rights of the respondent-allottee retrospectively. In this connection, he observed: "It is undisputed that when a law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statue shows a clear intention to vary such rights (59 P.L.R. 386 Full Bench). No such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1955 and held that the modification of the original rule could not affect the right of a person to have his claim ascertained in accordance with the Rules as they existed on the date of his application observing as follows: "The amended rules are not expressly made retrospective. It was so held by the High Court and the Chief Settlement Commissioner. It is a well recognised rule of construction that statutes should be interpreted if possible, so as to respect vested rights. While learned counsel for the appellant contends that as under the old rule as window who was a member of a joint Hindu family had a statutory right to claim compensation separately for her share and as the appellant had made a claim in that regard under the rule as it stood then the subsequent amendments could not be so construed as to have retrospective operation to deprive her of that right, learned counsel for the respondents argues that, as the amended rules are declamatory of the law, the Court should give retrospective operation to the new rules as a s to apply to pending proceedings." 72. Thereafter their Lordships summed up their conclusions in these words: "Chapter IV prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not expressly made retrospective. 2. Under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the Rules framed thereunder, a displaced persons has a vested right to have his claim ascertained and satisfied in the manner prescribed by the Rules and this is a substantive right. 3. The amendments to statutory rules, which are not expressly made retrospective, cannot be so constructed as to affect the right of a claimant who has exercised his right by filing an application under the Rules. 73a. Basing himself on these observations, the appellant's learned counsel argues that the decisions in Mela Ram's case L. P. A. 92 of 1963 and Chanan Dass's case 69 Pun LR 1 = (AIR 1967 Punj 297) FB which proceed on the premises that the Rules relating to the determination of compensation and its payment to a displaced person do not clothe the claimant with any right much less a vested right, are no longer good law. Rule 19, with which their Lordships of the Supreme Court were dealing in Sardarni Attar Kaur's case Civil Appeal 2145 of 1966 D/- 3-2-1967(SC)(Supra) bears the heading "Special provision for payment of the compensation to joint families&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essively or by necessary implication takes away his right or interferes with it his claim to compensation must be settled in accordance with the Rules existing on the date of his application. 74a. The learned Advocate-General has, however, urged that the amendment of Rules 30 or its abrogation in no way interferes with the appellant's right to have his compensation determined and satisfied as Rule 30 as it was originally enacted or stood before its abrogation, only related to the mode of satisfaction of the claim and not to the determination of the amount. It is vehemently argued that a displaced claimant has no vested right in the mode of payment of compensation or satisfaction of his claim and it is entirely in the discretion of the authorities to pay him the compensation due in any of the forms or manners specified in Section 8 and the Rules made under the Act. 75. Support for this contention is sought from the decision of the Letters Patent Bench in Meal Ram's case. L.P.A. 92 of 1963(Supra) where Dua J. Noticing the provisions of Section 8 of the Act, said: "This section does not seem to me, prima facie to create any vested right in a displaced person to insist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt need not hesitate to consider the consequences which will follow the adoption of a particular construction in determining the legislative intent. Consideration of public good and public justice may constitute sufficient reasons for upholding a retrospective operation of legislation even if it may have a tendency of impairing certain rights which may be capable of being treated or described as vested or substantive rights: this view, in my opinion, is not destructive of any known equitable doctrine or principle. It for carrying out the general pattern of the scheme of payment of compensation by transfer of acquired property from the compensation pool the rules governing the manner, terms and conditions of such transfer are changed as a result of administrative experience on the whole a retrospective operation of these rules controlling all incomplete transfers would seem to yield more just and equitable results that mere prospective operation. Of course such an operation may adversely affect a few individual cases but the legislative intention would appear to be more concerned with the overall effect of the working of this statutory provision." 76. As has been observed ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as the department had been giving retrospective effect to the amended rules and decision of this Court are also in favour of retrospective operation. 77. All these propositions were examined by the Full Bench in Chanan Dass's case. 69 Pun LR 1 = (Air 1967 Punj 297)(FB). The assumption made in the last proposition about the decision of the departmental authorities and this court was not found to be tenable Mehar Singh C.J. dealt with this matter in these words: "Fifthly, it has been said that the decisions of the department also point to the same way but such decision, after the amendment, if I understand this matter right are not helpful because the retrospective operation of a statutory provision or a rule is to be seen on the date on which the same is made and not by anything done subsequently with regard to its reading or interpretation by the department operations or applying such law. If this approach were correct, it would means that what was not in fact retrospective law, will have to be read to be retrospective because those whose duty it is to apply that law have applied it retrospectively. I do not consider that this is the correct approach to the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the amended rule to be retrospective up to the stage of appeal and the Division Bench in Harbans Lal's case (C.W. No. 513-D of 1959)(Punj) held it to be so retrospective: the only controversy now requiring solution is whether the retrospective operation extends to revision or only extends up to the stage of the appeal." 79. On careful consideration of the matter, we find ourselves in respectful agreement with the observations of the learned Chief Justice with regard to the decisions of the department. Even if the department had been applying the amended rule retrospectively, that could not furnish justification for holding it retrospective it, in fact, on construction of the amended rule in the light of the well recognised cannons of judicial interpretation we find that the rule is prospective and not intended to impair on interfere with vested rights. 80. Turning again to the majority opinion in Chanan Dass's case 69 Pun LR 1 = (AIR 1967 Punj 297)(FB), we find that the learned Chief Justice, dealing with the argument that since the amendment had been necessitated by administrative experience it should be held to operative retrospectively even upto the stage of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person whose net compensation was nearest to the value of the property. The rule specifically provided: "Such property shall be offered to the person whose compensation is nearest to the value of the property and other persons may be allotted such other acquired evacuee property which is allottable as may be available." 84. Much emphasis has been laid on the use of the word 'shall' and it is urged that it was obligatory upon the authorities to offer such property to the person whose net compensation was nearest to the value of the property and as such, it conferred a right on a such person to obtain the property in satisfaction of his claim for compensation subject to the value of the property and the amount of compensation to which he was found entitled. In an attempt to meet this argument, it has been urged by the learned counsel for the respondents that the use of the word 'shall' is not of much significance as in the context it has no more force than the word 'may' and even if a displaced person holding a verified claim is found to be eligible for allotment of property in his occupation, the Rehabilitation Authorities have the discretion to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to property and the property interest need be no more than the right to enforce a legal demand or exemption, if it is complete and unconditional and not a mere expectancy. As I view things, it appears to me that word 'vest' calls for construction with reference to the subject-matter or the context wherein it is found as in the case of any word or phrase looked at from this point of view. It is necessary to bear in mind that we are not concerned with any statute in which this word has been used but with the judicially recognised rule of statutory construction that every statue which impairs or takes away vested rights must be presumed to be intended not to operate retrospectively. This rule is accepted by our Courts on the ground that the law-maker in our democracy does not ordinarily intend what is unjust and therefore does not impair an existing valuable right or obligation except in matter of procedure, without manifesting a clear intention to that effect. The expression 'vested right' in this background seems to me to convey the same idea as 'substantive right." 86. Adverting to the scheme of the Act. Dua J. Emphasised that Section 8 gave option to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that it may have a tendency of impairing certain rights which may be capable of being treated or described as vested or substantive rights. 88. On giving our earnest consideration to the matter, notwithstanding the high esteem in which we holds his Lordship, we do not find it possible to subscribe tot he view propounded by Dua J. As recognised by his Lordship himself, the argument raised against the retrospective application of the amended rule even to the original proceedings under Rule 30 and appeal arising therefrom is plausible and the matter is not free from difficulty. This certainly reinforces the argument that there is nothing in the language of the amending rule which clearly and unmistakably indicates that the proceedings before the Rehabilitation Authorities at whatever stage they be are to be governed by the amended rule. In fact, as has been observed earlier, the Full Bench in Chanan Dass's case 69 Pun LR 1 = (AIR 1967 Punj 297)(FB) has ruled that at least so far as the revisional proceedings under Secs 24 and 33 of the Act are concerned the amended rule cannot retrospectively apply. 89. It here becomes necessary to ask: "Is there anything in the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, C.J have already been reproduced. It is abundantly clear from them that most of the factors on which Dua. J. had based his finding that the amended rule was intended to apply retrospectively to all the pending proceedings before the Rehabilitation Authorities were not accepted. It was found that the previous decisions of the Rehabilitation Authorities and this Court with regard to the retrospective operation of the Rules were not consistent or uniform and consequently, the rule of stare decisions could not apply that there is nothing to indicate that administrative experience called for retrospective operation of the amended provision: and that the purpose and scheme of the Act and the Rules framed thereunder "is not a circumstance which indicates in the least whether the amended Rule 30 is by necessary intendment or implication to be held to be operative so retrospectively as to affect applications under Sections 24 and 33 of the Act." 91. It can no doubt be presumed that there must have been adequate reasons for the present amendment resulting in abrogation of Rule 30, but that would not lead us to the conclusion that this amendment was intended to operate retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anners of such satisfaction and thus it cannot be considered to confer a right upon a displaced person to get the property transferred to him. If he has claimed it and satisfied all the requirements of that rule. In this view of the matter, the contention that the Rehabilitation Authorities have full discretion to transfer or not to transfer the acquired evacuee property to a displaced person, even though he his eligible for its transfer under the Rules, cannot be accepted. 94. Even apart from this we find that there is no such vast discretion vesting in the authorities. Section 8 of the Act, on which considerable reliance is placed in support of the argument that the manner of satisfaction of the claim is within the discretion of the authorities, if property read, itself goes to show that this discretion is not so vast and unlimited but is subject to other provisions of the Act and the Rules framed thereunder. This is quite apparent from Section 8 which runs as follows: "Form and manner of payment of compensation--(1) A displaced person shall be paid out of the compensation pool the amount of net compensation determined under sub-section (3) of Section 7 as being payable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the various matters which an application for payment of compensation should contain, one of them being: "The form in which the applicant desires to receive compensation". He has also to give the details of the property, if any allotted or leased to the applicant by the Central Government or a State Government or by the Custodian. This application for compensation has to be in the form prescribed in Appendix I to the Rules. In this application the applicant is required to furnish, inter alia, particulars of rehabilitation benefits received, which include the particulars of the property allotted to him. This application is to be accompanied, inter alia, by Questionnaire in Appendix II. In this the applicant is required to give particulars of the evacuee quarter, house or shop occupied by him. 96. Section 10 of the Act, which lays down special procedure for payment of compensation in certain cases, provides inter alia, that where any immovable property leased or allotted to a displaced person by the Custodian is acquired under the notification mentioned in that section the displaced person concerned shall, so long as the property remains vested in the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 100. Before parting I would like to make it clear than though by the same amendment (Sixth amendment of the year 1963) rule 22 has been amended, we have neither been called upon to express any opinion on the effect of this amendment, nor has this matter been argued before us. We have, accordingly, refrained from dealing with this matter. R.S. Narula, J. 101. The history of the case leading to this reference to the Full Bench has been detailed in the judgment of my Lord Gurdev Singh J. and need not be repeated. The relevant factual position which emerges from the said history is that the acquired evacuee property in question is in the occupation of more than one allottees, that out of the two contesting allottees, Dev Raj appellant is a displaced claimant, but Gurcharan Singh respondent No. 4 is a non-displaced person though his mother Lajwanti respondent No. 5 is a displaced claimant, that each of the two contesting parties had applied for transfer of the house in question long before the coming into force of the Displaced Persons (Compensation and Rehabilitation) Sixth Amendment Rules on August 10, 1963, that each of them had on one occasion or the other secured an order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ece of legislation or such an intention is manifest from the language of the law. In the present case it is unnecessary to travel into the question of necessary intendment as no power has been conferred by Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954(hereinafter called the Act)(under which the relevant rules have been made) to legislate retrospectively. No power is vested in Central Government to frame any rules under the Act, otherwise than in exercise of the powers vested in it by Section 40 of the Act. That Section does not vest the Central Government either expressly or by necessary implication with the power to give retrospective effect to any rules made thereunder. The rule-making authority, i.e., the Central Government being a mere delegate of the Parliament, which is the Sovereign Legislature, cannot, therefore, give retrospective effect to any rule made by it under Section 40 in view of the authoritative pronouncement of the Supreme Court in the Income-tax Officer, Alleppey v. M.C. Ponnoose (1969) 2 SCC 35 = (AIR 1970 SC 385), and in Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs etc. (1970) 2 SCR 830 = (AIR 1970 SC 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Courts of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, page 297 Sixth Edition). The learned Solicitor General has not been able to refer to anything in Section 40 from which power of the Central Government to make retrospective rules may be inferred. In the absence of any such power, the Central Government, in our view acted in excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The Explanation, in our opinion, could not operate retrospectively and would be effective for the future from the date it was added in February, 1960". 104. The argument about the Central Government having been clothed by sub-section (3) of Section 40 with the same powers as are enjoyed by a Sovereign Legislature wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied under rule 30, which right had accrued to him before the abrogation of Rule 30 has not been taken away by mere subsequent repeal of Rule 30. I would, accordingly hold that Rule 30 should notwithstanding its repeal be deemed to govern the disposal of the appellant's application for payment of compensation due against his verified claim on the basis of the principles contained in Section 6 of the Central General Clauses Act. The appellant would therefore, have been entitled to obtain orders for the transfer of the property in question in his favour on his satisfying all the conditions of Rule 30, viz:-- (i) that the property in question is an "allottable" property: (ii) that more than one person holding verified claims are in occupation thereof: and (iii) that an amount of gross compensation payable to the appellant is higher than the amount of compensation payable to any other claimant in occupation of any portion of the house. 106. If the appellant is not able to satisfy any of the three conditions precedent for invoking the benefits of R. 30, he cannot claim the transfer of the house in question in his favour. The Managing Officer has no jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
