PETITIONER:
DUNICHAND HAKIM AND OTHERS
Vs.
RESPONDENT:
DEPUTY COMMISSIONER (DEPUTY CUSTODIAN EVACUEE PROPERTY)
DATE OF JUDGMENT:
18/12/1953
BENCH:
HASAN, GHULAM
BENCH:
HASAN, GHULAM
SASTRI, M. PATANJALI (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
JAGANNADHADAS, B.
CITATION:
1954 AIR 150 1954 SCR 578
CITATOR INFO :
E 1957 SC 599 (4)
ACT:
Administration of Evacuee.Property Act (Act XXXI of 1905),
ss. 2, 12, 56(2)-Evacuee property-Allotment–Cancellation
of-Jurisdiction of Deputy Cutstodian-Notice for
cancellation., whether essential-orders of cancellation of
allotment-Validity of.
HEADNOTE:
Held, that the Deputy Custodian of Evacuee Property has
jurisdiction to cancel the allotment of land both under the
East Punjab Evacuees’ (Administration of Property) Act, XIV
of 1947 as well as under the Administration of Evacuee
Property (Act XXXI of – 1950), ss. 2(a) 12(1) and 56(2), the
latter Act replacing the former Act.
That no notice was provided for cancellation of an allotment
under the rules framed under section 56.
That the petitioners-allottees in the present case were
given notice and had full opportunity to put forward their
case before their allotments were cancelled.
JUDGMENT:
ORIGINAL JURISDICTION: PETITION NO. 324 of 1953 under
article 32 of the Constitution.
N. S. Bindra, (Gurucharan Singh Bakshi, with him) for the
petitioners.
Porus A. Mehta for respondent No. 1.
Amar Nath Arora for respondents Nos. 2 to 14.
1953. December 18. The Judgment of the Court was delivered
by
GHULAM HASAN J.–This petition by twenty persons under
article 32 of the Constitution prays for the issue of a writ
of certiorari, mandamus and prohibition
579
or other suitable order or directions, quashing the -orders
dated the 1st July, 1952, and the 14th October, 1953, passed
by the Deputy Commissioner (Deputy Custodian Evacuee
Property) Karnal, in the State of East Punjab, hereinafter
referred to as the first respondent, whereby the petitioners
are alleged to have been deprived of their fundamental right
of property and are unable to hold the same within the
meaning of article 19 (1) (f) of the Constitution.
The petitioners are displaced persons from Pakistan who
migrated to India after the partition of 1947. They owned
certain agricultural land in Tehsil Chunian, District
Lahore, which, according to them, was mostly canal irrigated
land of the first grade, yielding on an average 16 to 20
maunds of wheat per acre. It-appears that upon partition
the East Punjab Government was confronted with the serious
problem of settling agricultural lands abandoned by Muslim
evacuees from the areas, now called East Punjab and Pepsu.
Accordingly they decided on the 15th September, 1947, to
allot evacuee lands for the current Kharif and the Rabi of
1947-48. This decision was obviously taken with a view to
prevent famine and fall in agricultural production in the
area, as also to provide means of livelihood for the
agricultural refugees. In pursuance of this policy the
petitioners were settled on land in village Dhakala-
admittedly a first grade village,-Tehsil Thanesar, District
Karnal, in the State of East Punjab. Their claims were
verified under the provisions of the. East Punjab Refugees
(Registration of Land Claims) Act XII of 1948, They were
allotted specific areas of land under the statement of
conditions, contained in Notifications Nos.489 1/S and 4892
IS, dated the 8th July, 1949, on quasi-permanent basis in
lieu of the lands left by them in Pakistan. Subsequently
the petitioner’s lands left in Pakistan are alleged to have
been down-graded with the result that the lands allotted to
them were re-allotted on the 25th April, 1951, to Ishar
Singh and others who appear as respondents to oppose the
present petition. In July, 1951, the petitioners moved the
East Punjab High Court under article 226 for a writ
restraining their
76
eviction from the lands but as no allotment had been
cancelled by that time they withdrew the petition some time
in 1952. The original allotment was, however, cancelled on
the 1st July, 1952. This order was challenged by a revision
under section 27 of the Administration of Evacuee Property
Act, 1950. The Deputy Custodian General dismissed the
revision petition on the 2nd December, 1953, holding that
the order of the Deputy Custodian was not illegal or without
jurisdiction on the ground that no notice of cancellation of
allotment had been issued to them. It was observed in the
course of the judgment that the petitioners had conceded
before the Assistant Custodian on the 9th May, 1952, that
the lands abandoned by them in Pakistan were second grade
lands but had claimed that they should, nevertheless, be
allotted first grade lands.
The order of the 1st July, 1952, is the first order which is
challenged before us as being without jurisdiction and
infringing the fundamental right of the petitioners.
It is alleged in the petition that notwithstanding the
cancellation of the allotment, the petitioners remained in
actual cultivating possession of the lands allotted to them
but an order was passed by -the first respondent on the 14th
October, 1953, which is to the following effect :-
“ Government have decided that in the case of persons who
were able to secure possession of part of land, the order
should be deemed to have been implemented. In the case of
M/s Ishar Singh. Rakha Singh and others of the village
Dhokala’ they were in possession of the part of the land
before the 6th May, 1953. As such they should be given
possession of the remaining area by ousting Duni Chand and
others being II and III grade allottees, but wrongly
allotted land in 1st grade village.”
The aforesaid order is said to have been passed without the
authority of law and deprives the. petitioners of their
right to bold the property allotted to them,
581
Before dealing with the validity of the impugned orders it
will be necessary to refer to a compilation known as the
Land Resettlement Manual for displaced persons in Punjab
and, Pepsu upon which great reliance was placed by Mr.
Bindra on behalf of the petitioners in the course of his
arguments. This book was prepared by Mr. Tirlok Singh,
I.C.S., who was Director General of Relief and
Rehabilitation in East Punjab and contains the policy
decisions of that Government arrived at in respect of the
settlement of land upon the refugees soon after partition.
It appears from this book that originally there was a
temporary settlement but shortly afterwards an elaborate
organization was set up to make allotment of lands on a
quasi-permanent basis. The displaced persons put in their
claims in regard to the agricultural land they had abandoned
in West Punjab and they were verified with the help of
Revenue records which were exchanged with the West Punjab
Government. The book has evidently the stamp of authority,
as the foreword is written by Mr. P. N. Thapar, I.C.S.,
Financial Commissioner, Department of Relief and
Rehabilitation, and Secretary to the Punjab Government,
Relief and Rehabilitation Department. The Manual shows that
in the end. of 1947, the displaced persons had been allotted
lands on a temporary basis but there was an insistent demand
for settlement on permanent basis. In a communique of the
7th February, 1948, a new system of quasipermanent allotment
was devised, the object underlying being to allow the
displaced persons to remain in quiet and undisturbed
enjoyment of the lands allotted to them. They were not to
get proprietary rights or rights of permanent occupation and
the very fact that the settlement was quasi-permanent shows
that it was, not intended to be irrevocable., Paragraph 19
of the Manualsays: “Until issues relating to evacuee
property are resolved between India and Pakistan, ownership
in each country of property abandoned by evacuees continues
to rest with them. This led to the use of the expression
quasi permanent as the keyword for the scheme of
resettlement introduced in East Punjab and Pepsu.” The
various Evacuee Property Ordinances
582
passed by the Central or the State Governments from time to
time which were eventually replaced by the Central Act No.
XXXI of 1950, further confirm that the policy underlying the
legislation was to provide for the administration of evacuee
property for the time being and to manage it until such time
as a final decision was reached by the Government of India
as to its ultimate destination. Paragraph 21 of the Manual
contains the statement of conditions which Mr. Bindra
characterised as the charter of the petitioners’ rights.
This paragraph says that the rights of persons to whom land
is given in the scheme of quasi-permanent resettlement are
defined in East Punjab in two statements of conditions,
dated the 8th July, 1949, issued with Notifications
Nos.4891/Sand4892/S. This statement is to be found at page
193 of the Manual. Paragraph 3 of the statement says that
the allotment shall be in favour of displaced persons and
for a period for which the land remained vested in the
Custodian subject to the provisions of the Act. Paragraph 8
says: “The allottee paying the rent hereby reserved and
observing and performing the several covenants, conditions
and stipulations herein on his part contained, shall peace-
fully hold and enjoy the allotted land during the said term
without any interruption by the Custodian or the
Rehabilitation Authority.” It is contended by Mr. Bindra on
the strength of these provisions that so long as the land
remains vested in the Custodian, the petitioners cannot be
deprived of these lands which have been granted to them on a
quasi-permanent basis and that the allotment could not be
cancelled without notice to the petitioners.
We now proceed to dispose of this contention. It is agreed
that the Act in force at the time of the allot. ment was the
East Punjab Evacuees’ (Administration of Property) Act, XIV
of 1947. It defines “allotment” as the grant by the
Custodian or a Rehabilitation Authority or any other person
duly authorised by the Custodian in this behalf, of a
temporary right of use and occupation of evacuee property to
any person otherwise than by way of lease. Section 9
confers powers upon the Custodian in regard to management
583
of property and section 9 (A), sub-section (2), empowers the
Custodian to cancel any allotment or terminate or amend the
conditions of any lease. Section 22, subsection (2) (ff)
confers upon the Provincial Government the power to make
rules providing for the circumstances under which leases and
allotment may be terminated or the terms thereof be varied.
This Act was in due course replaced by the Central Act XXXI
of 1950 (The Administration of Evacuee Property Act, 1950).
The definition of allotment in this Act is substantially the
same [section 2 (a) ]. Section 12 (1) and section 56 (2) (h)
are in substance the counterpart of section 9 (A) and
section 22 (ff) of the East Punjab Act of 1947. That the
Deputy Custodian had the jurisdiction to cancel the
allotment both under the State and the Central Acts referred
to above cannot be seriously contested. It was in pursuance
of the powers conferred by the rules made by the Provincial
Government that the Custodian issued the notification of 8th
July, 1949. Rule 14 (2) which is one of the rules framed
under section 56, specifies the circumstances under which
leases and allotments can be cancelled or varied. Sub-rule
(3) says that the Custodian may evict a person who has cured
an allotment by misrepresentation or by fraud or if he is
found to be in possession of more than one evacuee property
or in occupation of accommodation in excess of his require-
ments. Sub-rule (4) requires the Custodian before passing
any, order of cancellation or variation of the terms of a
lease, to serve the person or persons concerned with a
notice to show cause against the order proposed to be made
and to afford him a reasonable opportunity of being heard.
No notice is provided for cancellation of an allotment under
the rules. The obvious answer to this differentiation
appears to be that a lease is granted for a definite period
and it is only fair to give the lessee a notice before his
lease is terminated before the expiry of the stipulated
period, whereas the allottee of land under the quasi-
permanent settlement stands on a different footing. Be that
as it may, the question seems to be academical in the
present case, as the petitioners were given full opportunity
to,
584
put forward their case before the allotment was cancelled.
The order of the Deputy Custodian General, dated the 2nd
December, 1953, rejecting the petitioners’ revision supports
this. That order shows that the Assistant Custodian issued
a notice to the petitioners to show cause why the allotment
of first grade land, while they were all second grade
claimants, should not be cancelled. The petitioners
appeared before him on the 9th May, 1952. Their ‘statements
were recorded and they admitted that their land was second
grade, whereupon the Assistant Custodian made a report to
the-Deputy Custodian recommending that the allotment be
cancelled. The Deputy Custodian acting upon this, report
cancelled the petitioners’ allotment in village, Dhakala, on
the 1st July, 1952. This point was raised before the Deputy
Custodian General also but he held that section 12 of the
Central. Act did not require notice of cancellation to be
issued to the petitioners and in any case the order in
question was not without jurisdiction, as there had been
substantial compliance with the provisions of rule 14. It
was contended, however, that the order of cancellation was
made by the Deputy Custodian and that order was bad as he
did not give the petitioners any notice before passing the
order. The Assistant Custodian who was acting under the
orders of the Deputy Custodian had already heard’ the
petitioners and recorded their statements, and there was no
point in hearing the petitioners again when they had already
been heard. The Deputy Custodian has filed an affidavit to
the effect that a notice was given to the petitioners to
explain on the 9th May,’ 1952, as to why their allotment
should not be cancelled, that they appeared on the 9th May,
1952, that their statements were recorded and that their
allotments were cancelled on the 1st July, 1952.
We hold, therefore, that there is no merit in the contention
that the order of the Deputy Custodian was without
jurisdiction as it was passed in the absence of the
petitioners and without hearing them. Even if the order of
cancellation was passed during’ the
585
operation of a stay order, the order of cancellation cannot
be challenged on that ground.
The next contention urged is that the order of cancellation
is opposed to the order of the Ministry of Rehabilitation,
dated the 14th May, 1953, whereby the authorities were
prohibited from cancelling allotments if the orders in
respect of them had not been implemented by the 22nd July,
1952.. We think this contention is also devoid of merit. It
appears that the question of amendment of sub-rule (6) of
rule 14 of the Central Rules was the subject of
correspondence between the Central Government and the East
Punjab Government. Reference is made in the letter of the
14th May, 1953, to a notification issued by the Central
Government on the 22nd July, 1952, according to which orders
cancelling allotments passed after a specified date were to
be implemented only if they fall under the category of
undeserved and excessive allotments. It is stated that the
object of this notification was to stablize quasi-permanent
allotments, but upon a representation by the State
Government the provision restricting the implementation of
orders passed before the a specified date was relaxed and
the State Government was given powers to implement their
orders by the 22nd July, 1952. The Central Government after
further consideration decided that all orders passed before
the 22nd July, 1952, but not implemented until the 6th May,
1953, shall be kept it abeyance except in the following
cases:-
(a) Undeserved allotment,
(b) Excessive allotment,
(c)………………………
It was further decided that no other order hereafter be
implemented – until a decision to the contrary is issued by
the Central Government. The letter added that the Ministry
of Law was being consulted with a view to making the
necessary amendments in the rules. In pursuance of this,
decision the East Punjab Government issued instructions to
the Deputy Commissioners. There was some dispute about the
meaning of the wor “implementation” but before A further
586
reference was made to the Central Government, the Punjab
Government decided that among allottees of land the status
quo should be maintained and that if as a result of an order
of cancellation passed before the 22nd July, 1952, the
possession of an allottee had not been given over by the 6th
May, to the new allottee, it shall remain with the original
allottee. This correspondence merely shows that the Central
Government enunciated a certain policy on the subject of
amending sub-rule (6) of rule 14, pending the advice of -the
Law Ministry, but apparently the policy was not given effect
to and no rule was framed in pursuance of the decision. It
is clear, therefore, that the Central Government .merely
issued interim instructions pending the amendment of the
rule but no rule was framed to give effect to those
instructions which in consequence did not acquire any
statutory force. Mere stay of implementation of the orders
contained in the statement of policy did not wipe out the
effect of the cancellation. Sub-rule (6) to rule 14 was
subsequently added but not as it was intended to be with the
result that the old orders of cancellation stood such as
orders based on grounds other than underserved or excessive
allotments. Once the order of cancellation was passed by
the Deputy Custodian, the petitioners lost their right to
possession and even if the letter of the 14th May, 1953, is
treated as a direction by the Central Government under
section 54, it cannot have the effect of restoring what had
been lost.
We hold, therefore, that the petitioners have not made out a
case for breach of any fundamental right. Both the orders
passed by respondent No. I are perfectly valid and within
jurisdiction. We accordingly’ dismiss the petition with
costs to the first respondent.
Petition dismissed.
Agent for the petitioners: Harbans Singh.
Agent for respondent No. 1: G. H. Rajadhyaksha.
Agent for respondents Nos. 2 to 14; R. K, Kuba,
587