Calcutta High Court (Appellete Side)
Shri Kamal Krishna Roy & Ors vs Union Of India & Ors on 8 May, 2009
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.23212(W) of 2006
Shri Kamal Krishna Roy & Ors.
versus
Union of India & Ors.
For Petitioner : Mr. Milan Bhattacharya.
For Respondents : Mr. Aniruddha Mahanta,
Mr. Ajoy Kumar Shaw.
Judgment On : 08-05-2009.
This writ application is filed by the writ petitioners for quashing and setting aside the order of the respondent no.2, namely, custodian of enemy property for India, passed under his memo no. CEP/Cal/NC-1123/Law Cell/1985 dated September 13, 2006 as also for a direction upon the respondent authority to act on the basis of the valuation and verification made by the Learned verifying panel member No.VIII.
Brief history of this case is narrated below:-
After the cessation of the war between India and Pakistan, a treaty was signed in between the aforesaid two countries at Taskhent. It was known as "Taskhent Agreement" dated January 10, 1966. Under the above treaty, a proposal was mooted in order to save the properties of the citizens of the aforesaid countries who had been displaced as the victims of that war.
At that time, it was felt that there was a possibility of settlement between the nations to protect the properties of those displaced persons in the near future. The Government of India at that stage took a policy decision on the basis of the resolution dated March 15, 1971 published in the official gazette of India dated April 10, 1971 that an ad-hoc interim relief in the form of ex gratia grants from the consolidated fund of India @ 25% of the value of verified claims, restricted to a maximum of Rs.25/- lakh in each case, might be made to all Indian National and Indian Companies against a bond to be executed by the recipient. It was followed by a notice to claimants dated May 7, 1971 issued by the respondent no.2 to the effect that claimants in India who had already registered their claims with the respondent no.2 should submit particulars of their claims to undersigned on or before July 15, 1971 in standard form (S) for notifying claims annexed to the above notice. The last date for registering the claims was extended from time to time and the last of such extension was granted up to July 31, 1977 by a notice dated June 16, 1997 issued by the respondent no.2.
According to the petitioners, pursuant to the notice dated May 7, 1971 of the respondent no.2, the petitioners registered the claims of 12 co-sharers in standard form in respect of their properties lying and situated in Pakistan.
According to the petitioners, they had to register a modified claim on July 9, 1979 in respect of their above claim and it was registered as NC-1123 of 1977.
A proceeding was initiated for valuation of compensation referring the matter to the learned verifying panel member -IV for verification.
Subsequently, the case was transferred to the learned verifying panel member-VIII for verification. The learned verifying panel member-VIII settled the total claim of the writ petitioners at Rs.8, 01, 327/-
Thereafter, by an order dated June 15, 1991 the respondent authority referred the claim of the petitioners to the learned verifying panel member-V for de novo verification on the basis of observations that (i) the concerned files did not contain the plain paper application form, (ii) the claim had been filed by the petitioner No.1A for self and others in November, 1997, (iii) the value of the claim was initially Rs.18,86,822/- only, (iv) the claim was revised subsequently to Rs.86,41,535 only and (v) there was no proper examination noting of the learned verifying panel member-VIII for his recommendation of payment of Rs.2,00,331/- to the petitioners as ex gratia.
On receipt of the verification report from the learned verifying panel member-V, the respondent no.2 assessed the total verified amount at Rs.3501/- by passing an order dated August 30, 1991 and offered the proportionate shares of ex gratia @ 25% amounting to Rs.145/- to the petitioner no.1A, Rs.145 to one Monoranjan Roy and Rs.291/-each to Sudhangsu Kumar Roy and Haridas Roy respectively.
The petitioners filed an application under article 226 of the constitution of India bearing No.C.O 13159(W) of 1992 (in re. Sri Kamal Krishna Roy & Ors. Vs. Union of India) challenging the aforesaid order dated August 30, 1991. The above writ application was disposed of on April 25, 2006 with the following orders:-
"For these reasons I dispose of the writ petition by the following order. Keeping in mind that the petitioners submitted their claims as back as November 23rd, 1977 the custodian of enemy property shall take immediate steps for ensuring that the claims in question are reverified by panel-nine who is functioning at the present moment. If for any reason that panel is not in a position to function then the custodian of enemy property shall take necessary steps for appointing the appropriate panel for reverifiction of the claims. The reverification process shall be carried out involving the petitioners at every stage. The panel that will reverify the claims shall specifically consider the facts and circumstances under which panel-eight had settled the claims at more than rupees eight lakh. If that amount is not payable, then the panel who will reverify the claims now shall give detailed reasons. The amount or amounts payable against the claims shall be settled, and if it is found that the petitioners are entitled to get any amount or amounts, then all the respondents, including the custodian of enemy property and the pay and accounts officer concerned, shall take steps for making the payment. All the exercises to be carried out in terms of this order, including the payment shall be completed by the respondents within three months from date of receipt of a copy of this order by them.
There shall be no order for costs in the proceedings.
Copy of this order duly countersigned by the AR(C) or ACO shall be supplied to advocates for the parties, on usual undertakings.
Urgent certified Xerox copy of this order shall be supplied to the parties, if applied for.
(Jayanta Kumar Biswas, J.)"
In compliance with the above order, the matter was referred to the learned verifying panel member No.IX. After giving an opportunity of hearing to the petitioner no.1A on July 14, 2006 and July 25, 2006, the learned verifying panel member-IX submitted his report to the respondent no.2. By a communication issued under Memo No. CEP/CAL/NC-11323/Law Cell dated September 25, 2006 the respondent no.3 sent the order of the respondent no.2 passed under memo dated September 13, 2006 to the petitioners. By virtue of the above order the respondent no.2 made the final assessment of Rs.875/- being 25% of the total verified amount of Rs.3501/- payable to the petitioner no.1A for self and C.A. and others as also forwarded the specimen copy of bills and bonds in respect of four claimants namely, Shri Haridas Roy, Shri Monoranjan Roy, Sudhangsu Kumar Roy and K. K. Roy for self and C.A. for seven co-sharers to the petitioner no.1A, with a direction to return the same after doing needful at his end, to the officer of the respondent no.2 immediately for release of payment. The subject matter of challenge in this writ application is the aforesaid order.
It is submitted on behalf of the petitioners that the reverification of claim of the petitioners was not carried out in accordance with the directions dated April 25, 2006 given in the writ application bearing C.O. No.13159(W) of 1992. According to the petitioners, the learned verifying panel member-IX travelled beyond the scope of above directions to uphold the assessment of ex gratia amount of the learned verifying panel member-V. According to the petitioners, a specific direction was given in the above writ application to re-verify the claims considering the facts and circumstances under which panel member-VIII had settled the claims at more than Rs.8 lakh. The learned verifying panel member- IX re-verified the total claim of the petitioners de novo and refused to accept the certified copies of different documents without following the law. No reason was assigned for decreasing the assessment of ex gratia amount as assessed by the learned verifying panel member-VIII. According to the petitioners, the documents having evidential value under Section 90 of the Evidence Act., 1936, were not accepted by the learned verifying panel member IX without varying those documents in accordance with norms prescribed in Section 35 of the Evidence Act. As a result, according to the petitioners, the impugned order is not valid in the eye of law due non-application of mind.
Relying upon the decisions of Roshan Lal Khandelwal Vs. Dr. Jagdish Chand & Ors., reported in AIR 2008(NOC) 2043 (ALL) and M. Chandraiah & Anr. Vs. C. Narayana & Anr., reported in AIR 2008(NOC) 2044 (A.P.), it is submitted on behalf of the petitioners that the genuineness of the certified copies produced before the learned verifying panel member IX were not disputed. So the question of proving the same by calling the person who issued it for examining him as witness did not arise. Relying upon an unreported decision of the High Court of Karnataka and Banglore dated December 5, 1990 passed in the matter of M/s Property & Finance Private Limited & Another Vs. Union of India (W. P. No.7717 of 1987) it is submitted on behalf of the petitioners that assessment of ex gratia grant on the basis of the value shown in the balance sheet was impermissible and the same should be based only on the market value. Relying upon the decisions of Indian Charge Chrome Ltd. & Anr., Vs. Union of India & Ors., reported in (2003) 2 SCC 533, State Bank of India & Ors., Vs. State Bank of India Canteen Employees' Union & Ors., reported in (1998) 5 SCC 74 and K. Vinod Kumar Vs. S. Palanisamy & Ors., reported in (2003) 10 SCC 681, it is submitted on behalf of the petitioners that elaborate reasons on findings were required to be assigned in an administrative order to prove bona fide in such administrative decision and in the absence of the reasons an administrative order was liable to be set aside on the ground of arbitrariness. Relying upon the decision of Secretary, ONGC Ltd., & Anr., Vs. V. U. Warrier, reported in (2005) 5 SCC 245 and State of Maharashtra & ors., Vs. Raghunath Gajanan Waingankar, reported in (2004) 6 SCC 584, it is submitted that the writ court being a court of equity, laying down of necessary principles or guidelines or directions for the purpose of reconsidering the claim of the petitioner is permissible in course of judicial review.
On the other hand, it is submitted on behalf of the respondents that in view of the resolution dated March 15, 1971 the ex gratia grants were to be paid from the consolidated fund of India @ 25% of total value of the verified claims which was restricted to a maximum of Rs. 25 lakh. Therefore, in the event of occurrence of any mistake in calculating the ex gratia grants the burden of loss had to be borne by the Government of India at the cost of spending the money from the consolidated fund of India. The Government of Pakistan would not pay any amount in that event. Drawing the attention of this court towards the relevant contents of D.O. no.2/3/84- EI & EP dated 14/20 March, 1984 issued by the Ministry of Commerce, Government of India (at page 59 of the affidavit-in-opposition) it is submitted that the claims under reference must be based on the original documents and that wherever there would be any doubt about the genuineness of documents, the benefit of doubt should go to the Government rather than to the person claiming the amount. Therefore, in the instant case the respondent no.2 had to take into consideration the report of the panel verifying member IX and no assessment was done on any doubtful document. Drawing the attention of this court towards the initial claim of the petitioners dated November 23, 1977, it was submitted that the initial claim was of Rs.18,86,822/-. But the same was enhanced to Rs. 86,41,535/-. While considering the materials on record the respondent authority found that the claim no. NC/1123 was linked up with a separate claim of separate set of persons bearing claim no.NC/51357. As a result, learned verifying member-V was directed to re-verify the claim of the petitioners. With regard to the legality and propriety of the impugned order dated September 13, 2006, it is submitted on behalf of the respondents that the respondent no.2 accepted the report of the learned verifying panel member IX which was backed by reasons. According to the respondents, after considering each and every material, the learned verifying panel member IX arrived at his conclusion with regard to the assessment of ex gratia grants to the petitioners. The respondent no.2 accepted that report. Therefore, the legality and propriety of that order cannot be challenged on the ground of arbitrariness or non-application of mind. It is also submitted on behalf of the respondents that the claimants of claims no. NC/51357 were required to take care of their own claim separately. Even then the refund claim of the petitioners bearing no. NC/11123, in which the above claim was also incorporated, was considered by the respondent authorities, while reverifing the claim of the petitioners in compliance with the order dated September 13, 2006 passed in W.P. no.13159(W) 1992. It is further submitted on behalf of the respondents that the claim of granting ex gratia of the petitioners was considered by the respondent authority as a policy decision of the State. In doing so reasonable opportunity was given to the representative of the petitioners and reasons were assigned for assessment of such ex gratia payment. The respondent no.2 followed above policy decision of the State. Therefore, there was no illegality in the decision making process of the respondent authorities. As such the impugned order dated September 13, 2006 passed by the respondent no.2 cannot be set aside in course of judicial review sitting in writ jurisdiction.
Relying upon the decision of The Assistant Custodian of Enemy Property for India & Ors. Vs. DR. Ujjal Kumar Singh & Ors., reported in 1996(1) CHN 312, it is submitted on behalf of the respondents that there was no specific bar nor absence of authority for the Government to direct fresh evaluation. Reliance is placed on the decision of Thansingh Vs. Supdt. of Taxes, Dhubri & ors., reported in 1964 SC 1419, Joint Registrar of Co-operative Societies, Madras & Ors. Vs. P. S. Rajagopal Naidu, reported in AIR 1970 SC 992 and Government of AP Vs. Md. Nasrullah Khan, reported in (2006) 2 SCC 373 to submit that a court sitting it writ jurisdiction neither can reappreciate the evidences nor can decide an issue involving disputed question of facts. Further reliance is placed on the decision of Jai Singh Vs. Union of India & ors., reported in 1997 SC 898, in support of the above submissions. Reliance is placed upon the decisions of Govt. of A. P. Vs. Karri China Venkata Reddy, reported in AIR 1994 SC 591, R. L. Sharma Vs. Managing Committee, Dr. Hari Ram(Co-edn.) H.S. School, reported in AIR 1993 SC 2155, U.P. Financial Corporation Vs. M/s. Gem Cap(India) Pvt. Ltd., reported in 1993 SC 1435, Kilasho Devi Burman Vs. Comissioner of Income Tax. W. B. Calcutta, reported in (1996) 7 SCC 613 and Swapan Kumar Pal Vs. Achintya Kumr Nayak & Ors., reported in (2008) 1 SCC 379, to submit on behalf of the respondents that judicial review is limited to the question of legal arrears. Investigation cannot be conducted to ascertain the genuineness of any document. The respondents also placed reliance upon an unreported decision dated September 11, 2002 of this court in the matter of Shri Prabhat Kumar Ghatak Vs. Union of India & Ors., (W.P. No.1550 of 2002) in support of his above submissions. Relying upon the decision of Union of India Vs. Hindustan Development Corpn. & Ors., reported in AIR 1994 SC 988 it is submitted on behalf of the respondents that a legitimate expectation is to be confined mostly to the right of a fair hearing before a decision which results in negating a promise or withdrawing an undertaking is taken and the above doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallised right as such is involved.
I have heard the learned counsels appearing for the respective parties at length and have considered the facts and circumstances of the case. It is an admitted fact that the respondent no.2, while referring the claim of the petitioners to the learned verifying panel member-V by an order dated June 15, 1991 for de novo verification, gave following reasons in support of the above decision:-
(i) the concerned files did not contain the plain paper application;
(ii) the claim had been filed by the petitioner no.1A for self and others in November, 1997;
(iii) the value of the claim was initially Rs.18,86,822/- only;
(iv) the claim was revised subsequently to Rs.86,41,535 only;
(v) there was no proper examination noting of the learned verifying panel member-VIII for his recommendation of payment of Rs.2,00,331/- to the petitioners as ex gratia.
I do not find any impropriety in the decision making process of the respondent no.2 in passing the above order dated June 15, 1991. I find substance in the submissions made on behalf of the respondents in this regard that on the basis of the resolution dated March 15, 1971, the ex gratia grants were to be paid out of the consolidated fund of India. Therefore, in the event of occurrence of any mistake in calculating the ex gratia grants, the burden of financial loss had to be born by the Government of India meaning thereby the loss of public fund.
With regard to the assessment of ex gratia grant by the learned verifying panel member-V, it is an admitted position that the same was the subject matter of scrutiny in writ application bearing no.13159(W) of 1992 (in re: Sri Kamal Krishna Roy & Ors Vs. Union of India & Ors.). Admittedly, the above writ application was disposed of on April 25, 2006 without entering into the merits of the reverification of claim of the petitioners. By the aforesaid order the court directed to carry out reverification process involving the petitioners at every stage. The court further directed the Learned verifying panel member-IX to consider specially the facts and circumstances under which learned verifying panel member had settled the claims at more than rupees eight lakh and if that amount was not payable, the panel who would verify the claims should detailed reason.
On a close examination of the decision making process of the report of the learned verifying member-IX, I find that opportunity of hearing was given to the petitioner no.1A, the documents produced by the petitioners were considered in details, reasons were assigned for non-acceptance of any document, observations were given with regard to the document-wise report dated September 21, 1987 of the learned verifying panel member-VIII. Therefore, in my view, there is hardly any scope for this court to interfere with the above report in course of judicial review on the basis of the settled principles of law as decided in the matter of style (Dress land) Vs. Union Territory, Chandigarh, reported in (1999)7 SCC 89 and the relevant portions of the above decision are quoted below:
"11. Even the administrative orders and not (sic only) quasi-judicial are required to be made in a manner in consonance with the rules of natural justice, when they affect the rights of the citizens to the property or the attributes of the property. While exercising the powers of judicial review the court can look into the reasons given by the Government in support of its action but cannot substitute its own reasons. The Court can strike down an executive order, if it finds the reasons assigned were irrelevant and extraneous. The courts are more concerned with the decision-making process than the decision itself."
I do not agree with the submissions made on behalf of the petitioners that the learned deifying panel member-IX travelled beyond the scope of the directions made in the order dated April 25, 2006 passed in C.O. No.13159(W) of 1992. As discussed hereinabove, the re-verification of the claim of the petitioners was done by the learned verifying panel member-IX in terms of the above directions.
I further find that the learned verifying panel member-IX expressed doubt about genuineness of some of certified copies of the documents which had been produced before him by the petitioners. Therefore, the evidential value of those documents could not be accepted without removing the doubts from the mind of an expert, namely the learned verifying panel member-IX. A court sitting in writ jurisdiction should be slow to interfere with the opinion of expressed by experts. In this regard the relevant portions of the decision of University of Mysore Vs. C. D. Govinda Rao, reported in AIR 1965 SC 491 are quoted below:
"13. before we part with these appeals, however, reference must be made to two other matters. In dealing with the case presented before it by the respondent, the high Court has criticised the report made by the Board and has observed that the circumstances disclosed by the report made it difficult for the High Court to treat the recommendations made by the expert with the respect that they generally deserve. We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are nominations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No.2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified."
(Emphasis supplied) It is further necessary to point out here that in terms of D.O. No.2/3/84-EI & EP dated March 14/20, 1984 issued by the Ministry of Commerce, Government of India (at page 59 of the affidavit-in-opposition), the claims for ex gratia grant must be based on the original documents and whenever there would be any doubt about the genuineness of documents, the benefit of doubt should go to the Government.
The decisions of Roshan Lal Khandelwal(supra) and/or M. Chandraiah(supra) were related to the admissibility of certified copies of records in evidence. Genuineness of those documents were not disputed. But in the instant case the learned verifying Panel member expressed his doubt about the genuineness of some documents which had been produced before him. So, the above decisions have no manner of application in this case. In the matter of M/s. Property & Finance Private Ltd.(supra), the mode of valuation of the property was considered with reference to the fact that Palace Hotel at Karachi had been converted into inter-continental Hotel by the Government of Pakistan and was situated near the Governor's residence at Karachi and the cost of the land on which the hotel stood had appreciated enormously. In absence of identical facts and circumstances in the instant case, the above decision cannot help the petitioners in any way with regard to the principles of law as settled in the matters of Indian Charge Chrome Ltd. (supra), State Bank of India(supra) and K. Vinod Kumar(supra), I find that those decisions cannot help the petitioners because it has already been held hereinabove that the impugned order is based on well founded reasons. The decisions of Secretary, ONGC Ltd.(supra) and State of Maharashtra(supra) have no manner of application in the instant case because this court is not inclined to interfere with impugned order after upholding the decision making process of the same.
In view of the above, the writ application fails.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J. )