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PETITIONER: AMARSINGH

       Vs.

RESPONDENT: CUSTODIAN, EVACUEE PROPERTY, PUNJAB

DATE OF JUDGMENT: 29/03/1957

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER MENON, P. GOVINDA KAPUR, J.L.

CITATION:  1957 AIR  599            1957 SCR  801

ACT: Evacuee   property-Allotment-Displaced   land-holders-Quasi. permanent  allotment-Cancellation--Violation of  Fundamental Rights-Constitution of India, Arts.  19(1)(f), 31(1), 31(2)- Administration of Evacuee Property Act, 1950 (XXXI of 1950).

HEADNOTE: The  petitioners, who were displaced persons  from  Pakistan owning  land therein, were also co-sharers in a joint  khata owned by some evacuees in a suburban village in East Punjab. On  their  displacement  they were  in  the  first  instance temporarily  allotted  agricultural land  in  that  village. Subsequently, as a result of the readjustment of  allotments of  the  suburban land amongst the various  groups  who  had quasi-permanent allotments therein, which had to be  carried out  according  to  certain  rules  and  instructions,   the allotments  of the petitioners were cancelled.  The case  of the  petitioners  was that the allotment to them  was  on  a quasi.  permanent  basis  and  that,  therefore,  they   had acquired  certain  rights  in  the  land  which  constituted property,  and they contended that the order cancelling  the allotment  was in violation of their fundamental  rights  to property  under  Arts.   19(1)(f), 31(1) and  31(2)  of  the Constitution   of  India.   Though  the   petitioners   were allottees  of  agricultural land on the basis  of  a  quasi- permanent allotment it was admitted that they were not  able to  get  a sanad under the rules for  the  lands  originally allotted  to  them, when only they  could  obtain  permanent property  in  the  land.   It  was  not  disputed  that  the cancellation  of  the  allotment  was  under  the  purported exercise   of   powers   under   the   provisions   of   the Administration of Evacuee Property Act, 1950, and the  rules framed thereunder taken with some executive instructions. Held,  that the interest of a quasi-permanent allottee  does not  constitute  ’property’  within  the  meaning  of  Arts. 19(1)(f),  31(1) or 31(2) of the Constitution of India,  and accordingly  the orders cancelling the allotments could  not amount  to  violation  of  fundamental  rights  under  those Articles.

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The  basic  features of the interest  of  a  quasi-permanent allottee  are  that the ultimate ownership of  the  land  is still recognised to be that of the evacuee and the allotment itself   is  liable  to  resumption  or  cancellation   with reference to the exigencies of the administration of evacuee law.   The  interest  so recognised  is,  in  its  essential concept, provisional though with a view to stabilisation and ultimate  permanence.  An interest in land owned by  another in  such  a situation cannot be fitted into any  concept  of property in itself, 103 802 Julius v. Lord Bishop of Oxford, (1880) 5 A.C. 214,  distin- guished. Property in order that it may fall within the scope of  Art. 9(1)(f)  must  be  capable of being the  subject  matter  of "acquisition  and disposal".  But the interest of  a  quasi- permanent allottee arises by statutory grant to a person  of a specified class and is not capable of being acquired by an ordinary  citizen  in any of the normal modes.   Nor  is  it capable of being disposed of by the allottee himself by  way of  sale,  mortgage,  gift  or  will.   Consequently,   Art. 19(1)(f) cannot apply to the case. In  order  that Art. 31(1) may apply it is not  enough  that there  is deprivation, but such deprivation must be  without the  authority  of  law.  In the  present  case  the  quasi- permanent  allotments of the petitioners were  cancelled  in enforcement  of a right of resumption or cancellation  which is  an incident of such property, and hence the Article  has not been infringed. The interest of a quasi-permanent allottee cannot be brought within  the  scope of Art. 3i(2) as it stood  prior  to  the amendment.   The words "taking possession" or  "acquisition" there  are  inappropriate  in respect of  the  rights  which constitute quasi-permanent tenure. In  view  of the word "deemed" occurring in Art.  31(2A)  it appears likely that the amendment to Art. 31(2) was intended to be retrospective, but even then the amended Article taken with Art. 31(2A) is equally inapplicable as it  contemplates acquisition  or requisitioning (and taking possession) as  a result  of  transfer  of the ownership or of  the  right  to possession. Suraj  Parkash  Kapur  v. The State of  Punjab,  (1957)  LIX P.L.R.  103,  in so far as it purported to decide  that  the interest in the land allotted to a quasi-permanent  allottee constitutes  "property"  which attracts  the  protection  of fundamental rights under the Constitution, is disapproved. Though a quasi-permanant allotment does not carry with it  a fundamental  right to property under the  Constitution,  the rights of the allottee as recognised in the statutory  rules are  important  and  constitute the  essential  basis  of  a satisfactory  rehabilitation  and  settlement  of  displaced land-holders.   Until such time as the  land-holders  obtain sanads  to the lands, these rights are entitled  to  zealous protection  of  the  constituted  authorities  according  to administrative rules and instructions binding on them and of the  courts  by  appropriate  proceedings  where  there   is usurpation of jurisdiction or abuse of exercise of statutory powers.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 351 of 1954. Petition  under  Article  32 of  the  Constitution  for  the

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enforcement of fundamental rights. 803 N.   S.  Bindra, Udhai Bhan Choudhury and Gopal ,Singh,  for the petitioners. S. L. Pandhi and K. L. Mehta, for the Intervener. 1957.  March 29.  The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an application under Art. 32 of the Constitution by the petitioners, Amar Singh and four others, in   the  following  circumstances.   All  these  five   are displaced persons who owned land in the non-suburban village of Chak.  No. 159-RB, Tahsil Jaranwala, District Lyallpur in Pakistan.  They were also co-sharers in a joint khata  owned by some evacuees in village Sultanwind, a suburb of Amritsar in  East  Punjab.  On their displacement, they were  in  the first  instance  temporarily allotted agricultural  land  in Sultanwind.  Having regard to their original position in the village, they were. allotted in the year 1949 a, total  area of  38  standard acres and 13 units  of  agricultural  land. therein.   This  allotment  had to be  disturbed  under  the following circumstances.  The Director-General of Relief and Rehabilitation  (Additional Custodian) directed by an  order dated January 7, 1950, that out of the 1,263 standard  acres and  1 3/4 units of suburban land of Amritsar, 142  standard acres  and  5  units were to be  allotted  to  allottees  of Provincial  Gardens.   This  necessitated  readjustment   of allotments  of the suburban land of Sultanwind  amongst  the various  groups who had quasi-permanent  allotment  therein. As a result of this readjustment which had to be carried out according  to certain rules and instructions, the  allotment of  these  five  petitioners (as also of  some  others)  was proposed  for  cancellation  by  the  order  of  the  Deputy Custodian, Amritsar, dated July 31, 1951.  This proposal was approved  by the Custodian (Financial  Commissioner,  Relief and  Rehabilitation) on February 6, 1952, and the  allotment was  cancelled.  The proposal and the order of  cancellation are  said  to  have  been  passed  without  notice  to   the petitioners.    Being  aggrieved  thereby  they  moved   the Custodian-General  of Evacuee Property for revision  thereof under s. 27 of the Administration of Evacuee 804 Property  Act, 1950 (XXXI of 1950).  This was dealt with  by the  Deputy  Custodian-General who dismissed the same  by  a fairly elaborate order dated May 1, 1954, after hearing  the parties.  The petitioners have come up to this Court by this application under Art. 32 of the Constitution. The  case of the petitioners is that the allotment  to  them was on quasi-permanent basis and that, therefore, they  have acquired  certain  rights  in  the  lands  which  constitute ’property’.   They  urge  that the order  of  the  Custodian cancelling  the allotment and that of the Deputy  Custodian- General  affirming  the  same  are  in  violation  of  their fundamental  rights to property under Arts. 19 (1)  (f),  31 (1)  and  31  (2) of  the  Constitution.   They  accordingly contend that they are entitled to have these orders  quashed and  their rights to property declared and protected.   That the  petitioners are allottees of agricultural land  on  the basis  of  what  has come to  be  known  as  quasi-permanent allotment  is  not disputed.  It is also not  disputed  that cancellation  thereof  was under the purported  exercise  of powers  vested in the Custodian under certain provisions  of the  Administration of Evacuee Property Act, 1950  (XXXI  of 1950)  and  the  rules framed  thereunder  taken  with  some executive  instructions.  It may be mentioned that the  term "quasi-permanent  allotment" appears to be a term which  has come into vogue in later statutory rules and has at no  time

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been  specifically  defined,  though it appears  to  be  now fairly well-understood.  The two substantial questions  that arise,  therefore,  for consideration are  (1)  whether  the rights  of  a quasi-permanent allottee  constitute  property within  the meaning of the articles above referred  to,  and (2)   whether  the  orders  of  the  Custodian  and   Deputy Custodian-General  cancelling the quasi-permanent  allotment amount  to violation of fundamental rights  contemplated  by the  above articles.  Both these questions require a  review of  the Evacuee Property Law in so far as it relates to  the allotment of agricultural lands of the evacuees to displaced land-holders  and an appreciation of ’the background of  the circumstances that necessitated it. 805 The  Declaration of Independence and the partition of  India into Pakistan and India on August 15, 1947, was  accompanied by  mass migrations of Non-Muslims from West Punjab to  East Punjab  and  of Muslims from, East Punjab  to  West  Punjab. These  mass  migrations were on a stupendous  scale.   About five  million persons are said to have moved from each  side to  the other.  This was done in a state of panic  generated by  communal riots.  Migrants from West Punjab reached  East Punjab  almost  destitute.   This  unprecedented   situation brought  in  its train gigantic problems  of  administration relating  to rehabilitation resettlement of  these  persons. One  of  such problems was that  relating  to  agricultural, immovable proerty, left on either side by the migrants.  For purposes  of convenience persons who crossed over from  East Punjab  to  West  Punjab are referred  to  as  evacuees  and persons  who came over from West Punjab to East  Punjab  are referred  to as displaced -persons.  The  displaced  persons are  said  to have left in Pakistan lands of the  extent  of about 67 lakh acres.  The evacuees seem to have left in East Punjab  and  Pepsu,  lands of the extent of  about  47  lakh acres.   This  meant  a deficit of over 20  lakh  acres  for resettlement. It  would  appear  that in the  earlier  stages  there  were attempts  to settle the question by way of mutual  exchanges either  individually  or at the governmental  level  and  by means  of  inter-dominion  conferences  between  India   and Pakistan.   But  for  one reason or  other,  these  attempts appear to have failed.  The various steps and administrative measures   taken  to  settle,  the  displaced   agricultural population who came over from West Punjab, on the  hurriedly abandoned lands of the evacuees from East Punjab, are to  be found  described  in the Land Resettlement  Manual  by  Shri Tarlok  Singh  who was the Director-General  of  Relief  and Rehabilitation (hereinafter referred to as the  Resettlement Manual).  In Dunichand Hakim v. Deputy COMMISSIONER  (Deputy Custodian, Evacuee Property), Karnal (1), this book has been referred to by this Court as having the stamp of  authority. It can be usefully referred to not (1)  [1954] S.C.R. 578. 806 necessarily  as an authority for every statement of fact  or law  contained  therein  but as a guide  to  appreciate  the background  of the problems which the administration had  to face in that unprecedented situation, how the administration attempted  to  solve  the  same, what  were  the  rules  and practice  which  the administration  normally  followed  and considered  binding on itself, and what ideas  inspired  the course of legislation in this behalf.  It appears  therefrom that within about a month after the partition of India,  the Government  had  to  take an  emergency  decision  to  allot evacuee  lands to groups of displaced persons  on  temporary

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basis.   But  this was found not to  satisfy  the  displaced landholders.   There was’ insistent pressure from  them  for such  allotment as would enable them to settle on the  lands of  the  evacuees  on a permanent basis.  This  led  to  the abandonment  of the policy of temporary allotments  and  the introduction of a system of allotment which came to be known as quasi-permanent allotment.  This policy was announced  by the Government of East Punjab in its Press Communique  dated February 7, 1948, which is reproduced at pages 28 and 29  of the Resettlement Manual.  The following extract therefrom is instructive: " The East Punjab Government propose to replace the  present system  of  temporary allotments of evacuee lands by  a  new system of allotments which will take account of the holdings of  evacuees  in West Punjab.  The new allotments  will  not confer  rights of ownership or permanent occupancy, but  the possession  of  allottees  will be  maintained.   Claims  of allottees  will be dealt with in accordance  with  decisions reached  eventually  regarding  the  treatment  of   evacuee property. In the new scheme of allotments, land will be allotted  only to those who, in West Punjab, were owners, occupancy tenants under  the  Punjab  Tenancy  Act,  and  tenants  under   the Colonization  of Government Lands Act and to  certain  other classes of grantees and holders of land in West Punjab to be specified  by Government.  It is proposed to give  to  small holders allotments of equivalent areas, while in the case of larger holders there will be graded cuts.  The definition 807 of the " Small Holders " and the details of the graded  cuts will  be determined when detailed information regarding  the available  areas in East Punjab and the East Punjab  States, the  areas  held  by the population to be  settled  in  East Punjab  and  the  East Punjab  States,  and  other  relevant information becomes available. It  is intended to complete the new system of allotments  in East  Punjab and the East Punjab States, not later than  the 31st  May,  1948.   Government  are,  however,  anxious   to introduce  the  new scheme as early as may be  feasible  and steps to this end will be taken at once. Arrangements  for collecting complete information  regarding the land available for allotment in East Punjab and the East Punjab States and the land abandoned by individual  evacuees will be taken in hand without delay and it is hoped also  to make  arrangements  on a reciprocal basis to  secure  infor- mation from records of rights in West Punjab. To ensure accurate information an Ordinance will shortly  be promulgated  prescribing  punishment for  false  information regarding claims to land and action by way of forfeiture and otherwise   in   respect  of  allotments  taken   on   false information.  Claims to land will be invited on a form to be prescribed by Government. Until  the new system of allotments can be introduced,  the, present  system of allotments will continue  and  allotments made to the present holders will be maintained subject to  a complete  scrutiny of existing allotments,  cancellation  of unauthorised  and excessive allotments,  dispossession  from illicit  occupation  and such other adjustments  as  may  be necessary  including  adjustments in the unit  of  allotment decided upon by Government." To  facilitate  the  process  of  resettling  the  displaced persons  on  evacuated land on this new basis  of  allotment various  steps  became  necessary.   They  are  roughly  the following. 1.   Registration and verification of land claims.

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2.   Assessment and valuation of such claims, 808 3.   Classification of the villages and of lands of evacuees available for allotment. 4.   Allocation   of  the  claims  to  various  areas   with reference to such classification. 5.   Allotment of lands to individuals with reference to the valuation of their claims, guided by various considerations, priorities and preferences and so forth administratively determined. The  basic idea which inspired and regulated these  measures was that the displaced landholder is to be allotted (subject to  graded cuts) such lands out of the evacuee  agricultural land  which,  in  its extent,  quality  and  other  relevant features,  bear some reasonable relation and  correspondence to  the lands left by him in West Punjab.  All  these  steps involved very elaborate administrative measures as indicated above.   We  are  concerned in this  context  to  trace  the legislation  which brought about these steps and to  examine whether  and  to  what extent  such  legislation  recognised property  rights in the displaced land-holders.  But  before tracing  the  legislative measures which brought  about  the quasi-permanent  allotments  of evacuee lands in  favour  of displaced   land-holders  from  West  Punjab,  it  will   be convenient to have a brief survey of the present law in  its application  to administration of evacuee property  of*  all kinds in general with the history of such of the  provisions therein as are relevant for our purpose and then to consider the  relevant legislative measures taken  specifically  with reference to agricultural land. The earliest legislative measure in this behalf is the  East Punjab  Evacuees’  (Administration of  Property)  Ordinance, 1947, (E.P. Ordinance IV of 1947) dated September 14,  1947, which was a simple measure defining the terms I evacuee’,  I evacuee property’, and I Custodian of evacuee property’  and other terms, and authorising the appointment of a Custodian. It  gave the Custodian power to take possession  of  evacuee property  and to take all measures necessary  and  expedient for  preserving such property.  It vested in  him  extensive powers of management thereof.  This was an emergency measure which appears to have 809 been  meant to get possession of the properties as  a  care- taker.   This  was superseded and followed by  a  series  of legislative measures which underwent modifications from time to  time.   These  legislative measures were  in  the  first instance    Provincial,   viz.,   East   Punjab    Evacuees’ (Administration  of Property) Act, 1947 (E.P. XIV of  1947); East  Punjab Evacuees’ (Administration of Property)  (Second Amendment)  Ordinance,  1948 (E.P. Ordinance XVI  of  1948); East  Punjab  Evacuees’(Administration of  Property)  Second Amendment)  Act, 1948 (E.P. XLIX of 1948); and  East  Punjab Evacuee  Property  (Administration)  Ordinance,  1949  (E.P. Ordinance  IX  of  1949).  These  Provincial  measures  were repealed  and  superseded  by  Central  legislation,   viz., Administration   of   Evacuee   Property   Ordinance,   1949 (Ordinance  XXVII of 1949) amended by the Administration  of Evacuee  Property (Amendment) Ordinance, 1950 (Ordinance  IV of  1950).   These  were  repealed  and  superseded  by  the Administration of Evacuee Property Act, 1950 (XXXI of 1950). The main provisions of Central Act XXXI of 1950, which, with some  modifications,  is  at present in force,  may  now  be noticed  so far as they are relevant.  Under ss. 5 and 6  of the   Act   an  administrative   machinery   consisting   of Custodians,  Additional, Deputy and Assistant Custodians  of

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Evacuee  Property,  is set up for each State  by  the  State Government   thereof.    They   are   under   the    general superintendence and control of a Custodian-General appointed by  the  Central-Government  who has,  for  his  assistance, Deputy  and  Assistant  Custodian-Generals,  who  are   also appointed  by the Central Government.  The terms 1  evacuee’ and " evacuee property’ are defined in s. 2 (d) and (f)  and the Custodian is given power to determine and notify evacuee property  under  s.  7. All property  declared  as  ’evacuee property’  becomes vested in the Custodian under s.  8.  The Custodian has under s. 9 the power to take possession of all the  ’evacuee  property’  so  vested  in  him.   Section  10 enumerates the powers and 104 810 duties  of the Custodian generally and declares that he  may take  such measures as he considers necessary  or  expedient for the purposes of securing, administering, preserving  and managing any evacuee property and generally for the purposes of  enabling  him  satisfactorily to discharge  any  of  the duties imposed on him by or under the Act, and may, for  any such  purpose  as  afore said, do all  acts  and  incur  all expenses necessary or incidental thereto.  One of the duties laid  on the Custodian is the maintenance of accounts  under s.  15.   Section  15  (1) says  that  the  Custodian  shall maintain a separate account of the property of such evacuee, possession whereof has been taken by him, and shall cause to be  made therein entries of all receipts and expenditure  in respect  thereof.   Section 16 provides for  restoration  of property  to the evacuee on his application and enjoins  the Custodian to furnish the evacuee on demand with a  statement containing an abstract of the account of the income received and  expenditure incurred in respect of the  property.   The general  powers of management vested in the Custodian  under s. 10 enable him to grant leases and make allotments out  of evacuee  property in favour of displaced landholders.   This is  subject  to the power vested in him under s. 12  (1)  to vary  or  cancel leases or allotments of  evacuee  property. There  are  a  number of other  substantive  and  incidental provinsions  which  it is unnecessary to refer  to  for  the purposes of this petition.  Thus, the ’broad features of the administration  of evacuee property law, as  indicated  from the provisions above noticed, are the following : 1.   All evacuee property is vested in the Custodian. 2.   He   has  the  duty  of  managing  the   property   and maintaining  accounts  for  such management  and  has  large administrative powers. 3.   As  incidental to such management he can  grant  leases and make allotments. 4.   He  has  the  power  to  vary  or  cancel  leases   and allotments. 811 5.   The  evacuee can come forward and apply for  return  of the  evacuee  property  and such property is  liable  to  be restored to him. 6.   The  Custodian, presumably on such restoration, has  to furnish to the evacuee on demand, a statement containing  an abstract   of  the  account  of  the  income  received   and expenditure incurred in respect of the property. In  addition  to  large  administrative  functions  for  the purposes of the Act, the Custodian has also the function  of deciding various matters of a quasi-judicial nature, such as (1)  whether  a  person is an  evacuee  or  whether  certain property  is  evacuee property; (2) whether  a  transfer  of evacuee property is or is not to be confirmed; (3) whether a

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lease  or  an  allotment is or is not  to  be  cancelled  or varied;  and (4) whether property is to be restored  to  the d so forth.  The actions of the Custodian and  his subordinates in exercise of their administrative as well  as of’  quasi  judicial  functions are subject  to  appeal  and revision by the higher authorities under the Act as provided under  ss. 24 to 27.  Section 28 provides that  orders  made under  the  above sections shall be final and shall  not  be called  in  question in any original  suit,  application  or execution  proceeding.  Section 46 bars the jurisdiction  of the  civil or revenue courts in respect of any matter  which the  Custodian-General or the Custodian is empowered  by  or under the Act to determine. The  history  of some of the above statutory  provisions  as traceable from the corresponding provisions ,of the  earlier legislation  is significant.  The provision vesting  evacuee property  in  the Custodian was not enacted in  the  earlier East Punjab Ordinance IV of 1947.  But it was enacted by the next legislative measure, East Punjab Act XIV of 1947, which declared the vesting of evacuee property, and provided  that the  property  " shall continue to be so  vested  until  the Provincial Government by notification otherwise directs.   " This last clause was substituted in 1948 by an Amending Act, by  the  clause  "  until it is returned  to  the  owner  in accordance with the provisions of 812 section  12 This clause as to the duration of  such  vesting was  omitted  in  the  later  Central  legislation  and  was substituted  by the phrase " shall continue to so  vest.   " (See Central Ordinance XXVII of 1949 and Central Act XXXI of 1950).   The  earliest  provision  for  return  of   evacuee property  to the evacuee is in East Punjab Ordinance  IV  of 1947.   Section  12 thereof provided that the owner  of  any property in the possession or control of the Custodian shall be  entitled to restoration thereof upon application to  the Custodian  and on payment of excess, if any, of  expenditure over  receipts from the management of such property  by  the Custodian.  In East Punjab Act XIV of 1947 which  superseded this  Ordinance, this right -of restoration to  the  evacuee was  qualified  by virtue of s. 12 (1) thereof which  is  as follows:  On  being  satisfied  that evacuees have  returned  or  are returning to the Province, the Provincial Government may  by notification  in  the Official Gazette authorise  return  of their  immovable property to the owners in  accordance  with this section.  " Sub-section  (2) of s. 12 provided that any person  claiming to be entitled to any such property may apply in writing  to the Custodian who, after giving public notice and holding an enquiry,  will make a formal order declaring the  person  to whom  possession  of  the property  may  be  delivered.   In Central  Ordinance XXVII of 1949 and in Central Act XXXI  of 1950,  the  provision  for restoration of  property  to  the evacuee  in  s.  16 thereof is that the  Custodian  may,  on application  by the evacuee or his heir, restore to him  the property  subject  to such terms and conditions  as  he  may think  fit to impose provided that the applicant produces  a certificate  from the Central Government that  the  property may be so restored if he is otherwise entitled to it.   Thus it  will  be  seen  that  while  the  earliest  East  Punjab Ordinance of 1947 recognised almost an unrestricted right in the  evacuee  to  obtain restoration of  property  this  was changed  shortly thereafter by the East Punjab Act  of  1947 which  required that such return by the- Custodian can  only follow a

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813 notification  by the Provincial Government as to  its  being ’satisfied that evacuees have returned or are returning  and authorising  the  return  of  the  property.   The   Central legislation of 1949 and of 1950 however lessened the  rigour of  it by requiring only a preliminary certificate from  the Central Government by the individual applicant concerned.  Next, it may be noticed that neither East Punjab  Ordinance IV of 1947 nor East Punjab Act XIV of 1947 which replaced it refer  to or define either the word ,lease’ or  ’allotment’. These two words were for the first time defined only by  the amending  East Punjab Ordinance XVI of 1948 and it was  made clear therein that an allotment was different from a  lease. From  the historical background it would appear likely  that the  word allotment’ was used for the grant of  property  to displaced landholders while ’lease’ was intended to denote a temporary grant to other displaced persons.  But even so the temporary  character  of  the right’ involved  in  the  word ’allotment’ was specified by defining allotment’ as  meaning the  grant by the Custodian of a temporary right of use  and occupation of evacuee property to any person otherwise  than by way of lease.  This temporary character of the right  was reiterated  also in East Punjab Ordinance IX of 1949 and  in Central Ordinance XXVII of 1949.  It is only in Central  Act XXXI  of 1950 that by s. 2 (a) thereof the word  ’temporary’ in  the  definition of the word allotment’ was  dropped  and allotment’ is defined as meaning the grant by a person  duly authorised  of a right of use or occupation of an  immovable evacuee property to any other person but does not include  a grant  by way of a lease.  Thus the legislation of 1950  for the first time contemplated that allotment may be  otherwise than  temporary. -This Act as well as the  previous  Central ordinance  completely  omitted the definition  of  the  word ’lease’.  These changes were apparently necessitated by  the fact that, in between, Punjab Government notification  dated July  8,  1949, came into operation providing for  what  has become subsequently known as quasi-permanent allotment. 814 The  provisions  of that notification and the  legal  effect thereof will be noticed in due course.  We  may  next  trace the provisions  in  the  various  Acts relating  to the power of cancellation of allotments  in  so far as they appear from the body of the main Ordinances  and Acts themselves, leaving aside for the time being-the  rules framed thereunder.  If may be mentioned that in the rest  of the judgment in noticing the statutory provisions which deal with leases and allotments together, all reference to leases are  omitted for the sake of simplification.   The  earliest provision in this behalf is s. 9-A of East Punjab Act XIV of 1947 which was inserted into it by East Punjab Ordinance XVI of  1948  replaced by East Punjab Act XLIX  of  1948.   Sub- section (2) of a. 9-A provides that notwithstanding anything contained in any enactment for the time being in force, ’the Custodian may cancel any allotment or amend the terms of any agreement on which any evacuee property is held or  occupied by  any  person,  whether such agreement  was  entered  into before  or  after  the  coming into  force  of  East  Punjab Ordinance  XVI of 1948.  It is further provided  by  sub-ss. (3)  and  (4) thereof, that if a person is  in  unauthorised possession  of any evacuee property the Custodian may  treat such person either as a tenant or as a trespasser and that a person   treated  as  a  trespasser,  on   cancellation   of allotment,  shall,  on demand, surrender possession  to  the Custodian.  The subsequent East Punjab Ordinance IX of 1949, Central Ordinance XXVII of 1949 and Central Act XXXI of 1950

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contain  substantially  the  same  provisions  relating   to cancellation  of allotments.  It may be mentioned  that  all these  legislative measures had a section relating to  rule- making power right from the time. of East Punjab Act XIV  of 1947 and also a provision that the provisions of the Act and the rules made thereunder shall have effect  notwithstanding anything inconsistent therewith in any enactment other  than that  Act.  (See ss. 22 and 18-B of East Punjab Act  XIV  of 1947 and ss. 55, 56 and 4 of’ Central Act XXI of 1950).   By virtue of this 815 rule making power, the Provincial Government and the Central Government  made  rules  from time to time,  which  will  be noticed presently.  From the above history of alterations at short intervals In some  of the main relevant provisions, it is clear that  the legislation  was  being  adjusted from  time  to  time  with reference   to  the  exigencies  and  difficulties  of   the different  problems which had to be grappled with,  both  in the matter of internal administration as also on account  of inter-dominion  conferences between Pakistan and India.   It may be mentioned that during the two year period between the first  Provincial legislation in 1947 and the first  Central legislation in 1949 there were as many as six-inter dominion conferences,  i.e., in January 1948, April 1948, July  1948, December 1948, April 1949 and June 1949.  Stopping  here  it will be seen that the position,  in  its general  aspect, is that all evacuee property is  vested  in the  Custodian.  But the evacuee has not lost his  ownership in it.  The law recognised his ultimate ownership subject to certain  limitations. the evacuee may come back  and  obtain return of his property, as also an account of the management thereof, by the Custodian.  Such return which was originally contemplated   without  any  restriction,  is   subsequently dependent on ’a notification or a certificate of the Central Government.  Until such return the Custodian may manage  the property  by  granting  allotments in  favour  of  displaced persons.   The  nature  of an allotment is  clear  from  its definition  that  it  is  grant of  the  right  of  use  and occupation.  This in the first instance was contemplated  as being  only temporary.  By a later definition, it  was  made wider  so  as not to be restricted to a  temporary  use  and occupation.   But the allotment is clearly, subject  to  the power of cancellation thereof vested in the Custodian, which will entitle him to obtain its possession.  Such rules  were undergoing  alterations  from  time  to  time.   In  such  a situation it would prima facie be difficult to 816 recognise the allottee of any evacuee property, in so far as his  position  is  governed by the main  provisions  of  the Evacuee  Property  Administration Acts  (unaffected  by  any specific  rules  applicable  to  any  particular  class   of property  or  any specific arrangement or  contract),  as  a person  having some kind of property or having a  recognised interest therein which by itself constitutes ’property’.  It is  more  in the nature of a licence which is liable  to  be cancelled  by the grantor.  It may be mentioned  that  there appear  to  be  certain  rules  made  by  the  East   Punjab Government  dated August 6, 1948, under East Punjab Act  XIV of  1947  as  amended in 1948 relating  to  cancellation  of allotments.   But the text-of these rules was not  available to us.  However this may be, it is urged that certain  other legislative measures and statutory rules made in exercise of the statutory powers, have made a difference in the position arising  in  respect  of allotments  of  agricultural  lands

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granted  in favour of displaced persons  in East Punjab  who left  landed  property in West Punjab.   It  is,  therefore, necessary to review the same.  The  first  measure for the resettlement of  the  displaced land-holders  of West Punjab on evacuee lands was, the  East Punjab  Refugees  (Registration of Land  Claims)  Ordinance, 1948  (E.  P. Ordinance VII of 1948) which was  replaced  by East Punjab Refugees (Registration of Land Claims) Act, 1948 (E.   P.  XII  of 1948).  It is in pursuance  of  the  rules framed under this Act that what is known as the Parcha claim and the form therefor were standardised calling for accurate information  as  regards quite, a large  number  of  details which had to be taken into consideration in determining  the land  to be allotted to a displaced land-holder.   This  was followed  by  the  East  Punjab  Displaced  Persons   (.Land Resettlement) Ordinance, 1949 (E.  P. Ordinance XIV of 1949) which  was  replaced by the East  Punjab  Displaced  Persons (Land Resettlement) Act, 1949 (E.  P. XXXVI of 1949).   This Act  was  meant " to provide for the  allotment  of  evacuee lands,  in  East  Punjab."  The  right  of  an  allottee  to possession of the 817 land  allotted  subject  to payment of rent,  etc.,  to  the Custodian  or  his  right to a share in the  rent  from  the present holder thereof (that is, the cultivating  occupant), if  any,  and other incidents arising from  such  possession were  specified  in this Act.  In between  these  two  Acts, notification  No. 4892/s dated July 8, 1949, was  issued  by the  Punjab Government in exercise of the rule-making  power vested in it under cls. (f) and (ff) of sub-s. (2) of s.  22 of  East  Punjab Act XIV of 1947 as amended in  1948.   This notification  sets out the statement of conditions on  which the Custodian could grant allotments of land vested in  him. This notification is virtually the charter of the rights  of allottees.  It is the basis of what has come to be known  as the quasi-permanent allotment.  In the rules set out in this notification  a I displaced person’ is defined as I a  land- holder  in West Punjab etc.’ and it is specified that  "  an allotment shall be made in favour of a displaced person  and for  a  period  for which the land  remains  vested  in  the Custodian."  The word ’allottee’ is defined as  including  " heirs,  legal representatives and lessees of the  allottee." It  may  be  mentioned  in this  context  that  East  Punjab Displaced  Persons (Land Resettlement) Act, 1949,  mentioned above,  which  was  passed shortly after  these  rules  were notified  also  defines the word I allottee’ and  says  that allottee means " a displaced person to whom land is allotted by  the Custodian under the conditions published  with  East Punjab Government notification No. 4892/S dated July 8, 1949 and  includes  his  heirs, legal  representatives  and  sub- lessees."  Thus the definitions of the word I allottee ’  in the  rules of July 8, 1949 and under the Act passed  shortly thereafter recognise not only that an allotment is to be  in favour of a displaced land-holder for the period the land is vested  in the Custodian but that it enures for the  benefit of  his  heirs and legal  representatives.   Therefore,  the first  incident  of  allotment  implicit  in  this  is   the heritability of the rights of the allottee which  constitute quasi-permanent   allotment   under  the   above   mentioned notification  of  July 8, 1949.  Various  other  rights  are specified in 105 318 cls. 3, 4, 5, 7 and 8 of the said notification.  These  will be  summarised  later.   But it is to be  noticed  that  the

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allotment  itself  is subject to resumption  under  el.  (6) thereof.   Before  considering the nature  of  the  interest which  these various clauses of the notification  confer  on the quasi-permanent allottee, it is necessary to see how far this notification of July 8, 1949, is affected by subsequent legislation and the rules framed thereunder. Now  the  East Punjab Evacuee Property  Administration  Acts were  repealed  and replaced by Central Ordinance  XXVII  of 1949  and  Central  Act  XXXI of  1950.   Both  the  Central Ordinance  and Central Act had each a section, s. 53 and  s. 55  respectively,  under which the  Central  Government  may delegate its rule making power to the State Government.   In exercise of such delegated power the State Government issued a  notification No. 1554-Cust. dated February 6,  1950,  the relevant portion of which is as follows: "  The  Provincial  Government is  pleased  to  notify  that Statement   of  Conditions  issued  by  the  Custodian   and published under the notification No. 4891/S and 4892/S dated the 8th July, 1949, shall be deemed to be and shall continue to  remain  in  force  as rules  framed  by  the  Provincial Government  under  sub-section  (2) of  section  53  of  the Central  Ordinance No. XXVII of 1949 under  delegation  from the Central Government under Notification No.  3094-A/Cus/49 dated   2nd  December,  1949,  subject  to   the   following modifications and amendments: (i)The rules as stated in the Statement of Conditions  under notification  Nos.  4891/S and 4892/S dated  the  8th  July, 1949, shall be called the Administration of Evacuee Property (Rural) Rules, 1949. (ii)Definition.  (a)  The  word ’ACT’ defined  in  the  said Statement  of  Conditions shall mean the  Administration  of Evacuee  Property  Ordinance, 1949 (Ordinance No.  XXVII  of 1949).     ...................................................." The above rules of July 8, 1949, have, therefore,  continued to be operative as rules made under the 819 Central  Ordinance.  On the repeal of the Central  Ordinance by Central Act XXXI of 1950 and by virtue of s. 58  thereof, these rules continue to be in force as though they are rules made  under the Central Act of 1950.  Further,  the  Central Government  framed  rules on September  28,  1950,  entitled Administration  of Evacuee Property (Central)  Rules,  1950, which will be noticed presently.  Later, in exercise of  the delegated rule-making power vested in the Provincial Govern- ment  under s. 55 of the Central Act, the Punjab  Government framed rules dated August 29, 1951, entitled "  Instructions for review and revision of land allotment.  " These two sets of subsequent rules would affect the rules of July 8,  1949, to  the  extent that any of them are inconsistent  with  the earlier  rules.  A comparison of the subsequent  rules  with the  earlier  rules of July 8, 1949, shows  that  the  later rules  do  not concern any of the matters  provided  by  the earlier  rules of 1949 (and 1950) excepting as  regards  the provisions   relating  to  resumption-which   virtually   is cancellation-of  allotments.   Hence the rules  of  July  8, 1949, continue to be in force except to that extent, if any. The  portion  which  has undergone,  if  any,  variation  by subsequent rules may now be noticed. The provision for resumption in the rules published, by  the Punjab Government in its notification of July 8, 1949, is as follows: "   6.   The  Custodian,  or  as  the  case  may   be,   the Rehabilitation  Authority  shall  be  competent  to  resume, amend,  withdraw,  or  cancel the allotment on  any  of  the

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following grounds: (a)It  is  contrary  to  the  orders  of  the  East   Punjab Government,  or  the  instructions  of  the  Financial  Com- missioner,   Rehabilitation,  or  the   Custodian,   Evacuee Property, East Punjab ; (b)The allottee has infringed or appears to be, preparing to infringe any of the terms of allotment; (c)The  allotment  was  obtained  by  false  declaration  or insufficient  information or is contrary to the  purpose  of rehabilitating the displaced persons; 820 (d)  The  area allotted or occupied by the allottee is  more than he was authorised to take on allotment or occupy  under the instructions issued by the East Punjab Government or the Financial  Commissioner, Rehabilitation, or  the  Custodian, Evacuee Property, East Punjab; (e)  Where the claims of other parties with respect. to  the land  have been established or accepted by the Custodian  or the Rehabilitation Authority; (f)  When the allottee has been convicted of an offence under the Act; or (g)  If  the  allottee fails to take possession of  the  and within  the time as may be allowed by the Custodian  or  the Rehabilitation Authority, or after having taken  possession, fails to cultivate the land or a part hereof " The next set of rules are those made under Central Act  XXXI of 1950.  Rule 14 of Central Rules, 1950, is the following: " 14. (1) ......................................" (2)  In  case  of  an allotment  granted  by  the  Custodian himself,  the  Custodian may evict a person  on  any  ground justifying  eviction of a tenant under any law  -elating  to the  Control  of Rents for the time being in  force  in  the State  concerned, or for any violation of the conditions  of the allotment. (3)  The  Custodian  may evict a person who has  secured  an allotment by misrepresentation or 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 requirements. (4)  ..................................." It  will  be  seen  that the above  provisions  are  not  in themselves   powers  of  cancellation  or  modification   of allotment but are supplementary thereto authorising eviction of  an allottee under the circumstances  indicated  therein. The  next  set of rules in this connection are  rules  dated August  29,  1951,  enacted  by  the  Punjab  Government  in exercise of powers delegated to it by the Central Government under s. 55 (1) of Central Act 821 XXXI  of  1950.  In so far as these rules relate  to  allot- ments,  cls. (a) to (g) of r. (1) thereof are virtually  the same as those relating to resumption in the notification  of July  8, 1949.  The additions thereto in the 1951 rules  are the following: "  (1)  The  Custodian  shall  be  competent  to  cancel  or terminate  any allotment or vary the terms of any  allotment or  agreement  and  evict the allottee in  any  one  of  the following circumstances: (a) to (g) ....................................... (h) that it is necessary or expedient to cancel or vary  the terms of an allotment for the implementation of resettlement schemes and/or rules framed by the State Government; or  for such  distribution amongst displaced persons as  appears  to the Custodian to be equitable and proper; or (1)  that it is necessary or expedient to cancel or vary the terms  of an allotment for the preservation, or  the  proper

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administration, or the management of such property or in the interests of proper rehabilitation of displaced persons. (2)  Anything  done or any action taken in exercise  of  any power  conferred  by the previous rules shall be  deemed  to have  been done or taken under these rules, as if they  were in  force on the day on which such thing was done or  action was taken.  " A  close  scrutiny will show that as regards  resumption  or cancellation of (quasi-permanent) allotments made under  the notification  of July 8, 1949, the Central Rules of 1950  do not  make  any  alteration by r. 14 thereof  but  give  only supplementary  powers of eviction in certain  contingencies. The rules of August 29, 1951, made by the Punjab  Government under delegated authority will be found on comparison to  be substantially  the  same as those enumerated in cl.  (6)  of July  8, 1949, notification under the heading I  Resumption’ with the addition of cls. (h) and (i) and wit an  additional clause giving retrospective operation to the new rules. Rule  14 of the Central Rules, 1950, has  been  subsequently modified by notification No. S.R.O. 1722 dated 822 October 29, 1951, by adding sub-r. (6) which is as follows: Where  any State Government has, in exercise of  the  powers delegated  to  it, made any rules under clause (1)  of  sub- section (2) of section 56 of the Act which are  inconsistent with this rule, such rules shall prevail over this rule.  "  This obviously is intended to indicate that if there is any inconsistency  as regards the power of cancellation  between the  Central Rules and the later delegated State Rules,  the State  Rules  are to override the Central Rules.   Now,  all these  rules  relating to the power  of  cancellation  which derive  their authority from the rule making power given  by the  Provincial  and  Central Acts must,  according  to  the ordinary  rules of construction, be read so as to  harmonise with  the powers of cancellation under the Act  itself.   It follows  that  r. (6) relating to resumption  of  allotments under  the  notification of July 8, 1949, as  it  originally stood  until February 6, 1950, must be read with s.  9-A  of East Punjab Act XIV of 1947 as amended in 1948, in so far as it  relates to allotment.  Similarly Central Rules of  1950, and the delegated State Rules of 1950 and 1951 must be  read to  harmonise with s. 12 of Central Act XXXI of 1950, in  so far as they relate to allotments made under the notification of July 8, 1949.  Reading these powers of cancellation under the  Act and the Rules together, it will be found  that  the power of cancellation of such allotments is wide and  varied and  depends  to  a substantial extent  on  ad  ministrative orders and considerations.  Rule 14 of Central Rules,  1950, underwent  alterations  in July, 1952, and  February,  1953. These  are  subsequent to the date of  cancellation  of  the allotment in the present case and have no direct bearing  on the present case.  Pausing  here and summarising the position as  it  obtained till July 22, 1952 (when further-relevant rules were framed) as regards the rights under the (quasi permanent)  allotment scheme  introduced by notification of July 8, 1949,  may  be stated  thus. (References given as against each are  to  the relevant provisions of the notification of July 8, 1949). 823 1.  The allottee is entitled to right of use and  occupation of  the  property until such time as  the  property  remains vested in the Custodian. (Clause 3 (1).) 2.The  benefit  of such right will enure to  his  heirs  and successors. (Definition of ’allottee ’.) 3.His  enjoyment of the property is on the basis  of  paying

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land-revenue  thereupon  and  cesses  for  the  time  being. Additional rent may be fixed thereupon by the Custodian.  If and when he does so, the allottee is bound to pay the  same. (Clause 3 (3).) 4.   He  is entitled to quiet and undisturbed  enjoyment  of the property during that period. (Clause 8.)  5.  He  is entitled to make improvements on the  land  with the assent of the Custodian and is entitled to  compensation in  the manner provided in the Punjab Tenancy  Act.  (Clause 7.)  6. He is entitled to exchange the whole or any part of  the land  for  other  evacuee  land  with  the  consent  of  the Custodian. (Clause 5.) 7.  He  is  entitled  to lease the land  for  a  period  not exceeding   three  years  without  the  permission  of   the Custodian and for longer period with his consent.  But he is not  entitled to transfer his rights by way of  sale,  gift, will, mortgage or -other private contract. (Clause 4 (c).) 8.  His rights’ in the allotment are subject to  the  fairly extensive powers of cancellation under the Act and rules  as then   in   force  prior  to  July  22,  1952,   on   varied administrative  considerations  and  actions  such  as   the following (Clause 6 and subsequent rules of 1951.):- (a)That  the  allotment  is contrary to the  orders  of  the Punjab  Government  ’or the instructions  of  the  Financial Commissioner,   Relief   and  Rehabilitation,  or   of   the Custodian, Evacuee Property, Punjab; (b)That the claims of other parties with respect to the land have  been established or accepted by the Custodian  or  the Rehabilitation Authority; 824 (c)  That it is necessary or expedient to cancel or vary the terms of an allotment for the implementation of resettlement schemes and/or rules framed by ,the State Government; or for such  distribution amongst displaced persons as  appears  to the Custodian to be equitable and proper; (d)  That it is necessary or expedient to cancel or vary the terms  of an allotment for the preservation, or  the  proper administration, or the management of such property or in the interests of proper rehabilitation of displaced persons. It is noteworthy that the powers of cancellation include the liability of the allotment to be cancelled, if it is secured by  false declaration or insufficient information, and  also if  the  allottee is convicted under the provisions  of  the Evacuee  Property  Administration Acts. (Clause  6  (c)  and (f).). Taking  all the above incidents together as to the  position of a displaced land-holder to whom evacuee agricultural land has  been allotted Under the notification of July  8,  1949, there  can  be no doubt that he is in  a  definitely  better legal  position  than  the  allottee of  other  kinds  -  of property  under  Central Act XXXI of 1950  and  the  Central Rules of 1950, who, as already shown, is more or less in the position of a licensee. But even so, it is still far short of what can be considered as being in itself I property’ either in the widest sense or in  a  limited  sense.  It is very  strenuously  urged  that though this might appear to be so if one has regard only  to the  legislation and to the statutory rules up to  July  22, 1952,  the  position  of  such  an  allottee  emerges   more definitely  and clearly in the light of further  legislation and subsequently amended rules.  It is urged that this later legislation  was  in implementation of the,  original  Press Communique  dated February 7, 1948 which was  understood  to hold out the assurance of allotment its conferring permanent

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property.  On this contention the later legislation has also been brought to our notice.  In view of the insistence  with which this contention has been urged 825 and  the  importance  of the question, it  is  desirable  to notice  the same and to consider the effect thereof  without deciding  whether  the  later  legislation  and  the   Press Communique  are  relevant for the decision  of  the  matters involved in this case. The earliest change in the pre-existing situation, as  above noticed,  was brought about by two notifications, S.  R.  0. 1290  dated July 22, 1952, and S. R. 0. 351  dated  February 13,  1953, as a result of which sub-r. (6) of r. 14  of  the Central Rules of 1950 stood amended by the substitution of a new sub-rule which is as follows : "  (6) Notwithstanding anything contained in this rule,  the Custodian  of  Evacuee  Property in each of  the  States  of Punjab  and Patiala and East Punjab States Union  shall  not exercise  the  power of cancelling any  allotment  of  rural evacuee property on a quasi-permanent basis, or varying  the terms  of  any  such  allotment,  except  in  the  following circumstances: (i)where the allotment was made although the allottee  owned no agricultural land in Pakistan; (ii)where  the allottee has obtained land in excess  of  the area to which he was entitled under the scheme of  allotment of land prevailing at the time of allotment; (iii)where the allotment is to be cancelled or varied- (a)in accordance with an order made by a competentauthority under section 8 of the East Punjab Refugees (Registration of Land.  Claims) Act, 1948 ; (b)on  account  of  the failure of the  allottee  to  take possession  of  the  allotted evacuee  property  within  six months of the date of allotment; (c)in consequence of a voluntary surrender of the allotted evacuee  property,  or  a  voluntary  exchange  with   other available rural evacuee property, or a mutual exchange  with such  other available property; (d)  in accordance with any general or special order of  the Central Government; 106 826 Provided  that  where an allotment is  cancelled  or  varied under clause (ii), the allottee shall be entitled to  retain such  portion of the land to which of the would  ,have  been entitled  under the scheme of quasi-permanent  allotment  of land:   Provided further that nothing in this sub-rule shall apply to  any application for revision, made under section  26  or section  27 of the Act, within the prescribed time,  against an order passed by a lower authority on or before 22nd July, 1952."  This amendment has undoubtedly the effect of modifying  the power of resumption or cancellation vested in the  Custodian authorities  in  respect  of  quasi-permanent  allottees  by virtue  of the pre-existing rules and to confine such  power within narrow limits as specified therein.  But whether  the restrictions on this power of cancellation can be harmonised with  the power to vary or cancel allotments vested  in  the Custodian  under  s.  12 of Central Act XXXI of  1950  is  a matter  not  without some difficulty.  It may,  however,  be assumed that, if possible, the latest amendment of r. 14  of Central Rules, 1950, by the insertion of the amended  sub-r, (6)  therein  will  have to be  harmonised  with.  the  main section  by a process of construction so as not  to  nullify

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the beneficient provisions specifically enacted in mandatory lanuage.  It is noteworthy that the language of the new sub- r. (6) of r. 14 operates only as a restraint on the exercise of the power of cancellation vested in the Custodian and not as  a  negation of the power itself and it  may,  therefore, well  be that there is no inconsistency.  The choice of  the language  appears to be intentional.  On the other  hand  it may  be  noticed also in this context that there  have  been some  amendments in 1953, 1954 and 1956 of s. 16 of  Central Act XXXI of 1950 relating to return of the evacuee  property to  the  evacuee which continue to recognise  his  right  to return of the property and have made some alterations in the details   of-the   procedure   applicable   thereto.     The continuance  of  the  right of return  may  well  imply  the continued existence of the power to cancel the allotment. 827 The  next  important legislative measure  is  the  Displaced Persons (Compensation and Rehabilitation) Act, 1954 (XLIV of 1954).  By s. 12 of this Act it is provided as follows: "  If  the  Central  Government is of  opinion  that  it  is necessary  to  acquire  any evacuee property  for  a  public purpose,  being  a, purpose connected with  the  relief  and rehabilitation  of-displaced persons, including  payment  of compensation to such persons, the Central Government may  at any time acquire such evacuee property by publishing in  the Official  Gazette  a  notification to the  effect  that  the Central  Government  has  decided to  acquire  such  evacuee property in pursuance of this section. (2)On  the publication of a notification under  subsection (1),  the  right, title and interest of any evacuee  in  the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification  is so published, be extinguished and the evacuee property shall vest  absolutely  in the Central Government  free  from  all encumbrances.  (3)..................................................." It  may  be  noticed that by virtue  of  Central  Government notification No. S.R.O. 697 dated March 24,1955, under  sub- s. (1). of this section, all evacuee property allotted under the  Punjab Government notification dated July 8, 1949,  has been  acquired by the Central Government  excepting  certain specified  categories in respect of which  proceedings  were pending.  It does not appear that the propertie’s which  are the  subject  matter of the present  application  have  been acquired  under  this  notification,  probably  because  the dispute  about them is still pending.  Section 3 of the  Act provides as follows: " There shall be paid to an evacuee compensation in  respect of his property acquired under section 12 in accordance with such  principles and in. such manner as may be  agreed  upon between the Governments of India and Pakistan.  " Section  14 makes provision for constituting a  compensation pool  for  the  purpose  of  payment  of  compensation   and rehabilitation grants to displaced persons.  The 828 evacuee  property acquired under s. 12 forms part  of  this. compensation  pool.   Section 10 is important  and  provides inter  alia  that  where any  immovable  property  has  been allotted  to  a  displaced person  by  the  Custodian  under conditions  published by the notification of the  Government of  Punjab No. 4892-8 dated July 8, 1949, and such  property is  acquired under the provisions of the Act and forms  part of  the  compensation pool, the displaced person  shall,  so long   as  the  property  remains  vested  in  the   Central Government,  continue in Possession of such property on  the

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same  conditions on which he held the  property  immediately before the date of the acquisition.  It is further  provided that  the Central Government may for the purpose of  payment of compensation, transfer to him such property on such terms and  conditions as may be prescribed.  Section  40  provides for  the  rule-making  power.  Sub-section  1  (a)  thereof_ enables  the Central Government to make rules providing  for the  form and manner in which and the time within which,  an application for payment of compensation may be made and  the particulars which it should contain.  It may be noticed that "compensation  "  referred  to in s. 10, in  so  far  as  it relates  to  a  displaced person, obviously  refers  to  the compensation for loss of his property in Pakistan and is not the  recognition of a right to compensation for  deprivation of  his  interest,  if  any, in  the  allotted  property  by cancellation.    Rules  have  been  made  by   the   Central Government  called  the Displaced Persons  Compensation  and Rehabilitation Rules, 1955, published by notification  dated May  21,  1955.  Rules 71 and 73 relate to  verified  claims which do not seem to refer to agricultural lands.  "Verified claims"   relate   to  urban  immovable  property   as   the definition  there of in the Displaced Persons (Claims)  Act, 1950  (XLIV  of  1950) shows.  Rule 72  (1)  relates  to  an allottee  of agricultural land having no verified claim  and is  relevant.  Rule 72 (2) provides that if  the  Settlement Officer  is  satisfied that the allotment is  in  accordance with  the  quasi-permanent  scheme, he  may  pass  an  order transferring the land allotted to the allottee in 829 permanent  ownership as compensation and, shall also,  issue to  him a sanad in the form specified in the, Appendix  XVII or  XVIII, as the case may be, granting him such rights.   A scrutiny of the sanad which is, printed at page 70, Appendix VII,   of   the   Displaced,   Persons   Compensation    and Rehabilitation  Rules,  1955, issued by  the  Government  of India,  Ministry  of Rehabilitation, shows that it  is  only under this sanad that an allottee obtains permanent property in  the land., which originally belonged to the evacuee  and which  was allotted to him under the quasi-permanent  allot- ment scheme.  This sanad is the culmination of the hope& and expectations   of  allottees  held  out  under   the   Press Communique  dated :February 7, 1948, and confirms,  if  any, the view that until such stage has been reached the allottee has  no  such  interest in the evacuee lands  which  can  by itself  constitute  "property"  within the  meaning  of  the protected fundamental rights.  It is admitted by the learned counsel  for  the petitioners that the petitioners  in  this case have not yet been able to obtain any sanad under  these rules  for  the  lands  originally  allotted  to  them   and cancelled  by the impugned orders of the Custodian  and  the Deputy  Custodian-General.  He urges, however,  that  having regard  to the whole scheme and on the assumption  that  the orders of cancellation, which he challenges, are  erroneous, they  Would in the ordinary course have obtained  the  sanad for  the  lands and that the right to relief under  Art.  32 must  be determined on that footing.  Great; stress is  laid on  the  fact that under the scheme of Central Act  XLIV  of 1954,  even  if  evacuee property is acquired  under  s.  12 thereof,   the  quasi-permanent  allottee  is  entitled   to continue  in  possession of the property under s.10  on  the same  conditions as before so long as the  property  remains vested  in the Central Government.  Stress is also  laid  on the  fact that he can apply for transfer of the property  to himself under r. 72 (2) ’of the rules made under the Act  in payment  of  compensation  payable to him in  lieu.  of  his

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property left-. in-West Punjab and that such application for transfer’ is normally to be granted and a sanad issued 330 to him.  In this context, learned counsel for the petiioners relies   on  the  well-known  principle,  viz.,,   where   a discretionary  power is vested in a statutory authority,  to act  in  certain circumstances for the  benefit  of  certain person or class of persons (as in s. 10 of Central Act  XLIV of 1954 and r. 72 (2) of the rules thereunder) the  exercise of  such  power  in  favour of  such  a  person,  where  the requisite conditions exist, is obligatory and not  optional, as laid down in the case in Julius v. Lord Bishop of  Oxford (1).   This  principle, however, has no application  in  the present  case.   While  it  is true that  tinder  s.  10  an allottee under the quasi-permanent allotment scheme has  the benefit  of continuing in possession thereof and may  obtain transfer  on application, such benefits are subject  to  the powers exercisable under s. 19 of the same Act and r. 102 of the  rules  framed thereunder.  It may be  noticed  that  in respect  of  the evacuee property which  has  been  acquired under  s. 12 and which forms part of the  compensation  pool under s. 14, the Central Government may appoint under s.  16 of the Act, for the management thereof, Managing Officers or Managing  Corporations.   Section  19  of  the  Act  further provides as follows: "  19.  Powers to ’vary or cancel allotment of any  property acquired under this Act. (1).      Notwithstanding   anything   contained,   in   any contract  or any other law for the time being in  force  but subject  to any rules that may be, made under this Act,  the managing  officer  or managing corporation  may  cancel  any allotment  or amend the terms of any allotment  under  which any  evacuee  property acquired under this Act  is  held  or occupied  by  a person, whether such allotment  was  granted before or after the commencement of this Act.    ............... ......" Rule 102 of the rules framed under the Act is as follows "102.     cancellation   allotments   A   managing   officer managing corporation --may in respect -of (i)  (1880) 5 App.  Cas. 214. 831 the  property in the compensation pool entrusted to him  or, to  it,  cancel an allotment or vary the terms of  any  such allotment if the allottee------- (a)  has sublet or parted with the possession of. the  whole or  any  part of the property allotted to  him  without  the permission of a competent authority, or (b)  has used or is using such property for a purpose  other than  that  for  which it was allotted to  him  without  the permission of a competent authority, or (c)  has  committed  any  act which  is  destructive  of  or permanently injurious to the property, or (d)  for  any  other  sufficient reason to  be  recorded  in writing.  Provided  that  no action shall be taken  under  this  rule unless the allottee has been given a reasonable  opportunity of being,heard."  These  are in terms wide enough to include  quasi-permanent allotments.  This shows that notwithstand. ing the privilege of  the quasi-permanent allottee to continue  in  possession under  s. 10 and the scope he has for obtaining, a  transfer under  the  same  section and r. 72 (2) of  the  rules  made thereunder,  his allotment itself is liable to be  cancelled under  s.  19  and r. 102.  Hence he has no  such  right  to obtain  a transfer which can be given effect to  within  the

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principale  of  Bishop of Oxford’s case (1).  He  does  not, therefore,  appear to have an indefeasible right  to  obtain transfer of the very land of which he is the quasi-permanent allottee,  if such land is acquired under s. 12 of the  Act. Thus  the  position  of  quasi-permanent  allottee,  whether before  July  22,  1952, or after that  date,  is  that  his rights,  such as they are, either under the notification  of July  8, 1949, or under s. 10 of Central Act XLIV  of  1954, are  subject  to powers of cancellation exercisable  by  the appropriate  authorities., in accordance with  the  changing requirements   of  the  evacuasede  property  law  and   its administration.   Hence the quality of the interest  of  the displaced,allottee in (1) 3 App.  Cas. 214. 832 evacuee  agricultural  land allotted to him  appears  to  be substantially the same for the present purpose and the  real question is whether such interest constitutes  "  property " within  the  meaning of Arts. 19, 31 (1) and 31 (2)  of  the Constitution. The above detailed consideration of the various incidents of a quasi-permanent allotment show clearly that the sum  total thereof  does  not in any sense  constitute  even  qualified ownership of the land allotted.  At beat it is analogous  to what is called jus in re aliena according to the concept  of Roman  Law  and may be some kind of interest in  land.   The basic  features  of  that interest  are  that  the  ultimate ownership of the land is still recognised to be that of  the evacuee and the allotment itself is liable to resumption  or cancellation  with  reference  to  the  exigencies  of   the administration of evacuee law.  The interest so  recognised, is in its essential concept, provisional, though with a view to stabilisation. and ultimate permanence.  The  provisional characteristic  of this interest emerges from the fact  that there have had I to be a series of interDominion conferences to settle on governmental level the problems &rising out  of evacuee property in either country.  The, stabilisation  had to  await the results of such conferences.  Thus  both  with reference to the internal necessities of the  administrative problems  inherent in the process of settling the  displaced persons  on  the  evacuee lands with  reference  to  various considerations  and  policies and the  external  problem  of arriving  at  understandings between  the  two  governments, these  rights had to be so regulated from time to  time  and had  an  element  of unstability,  though  they  were  being progressively   invested   with   the   characteristics   of stability.   An interest in land owned by another in such  a situation  cannot be fitted into any, concept of  ’property’ in   itself.   The  concept  of  a  bundle  of   rights   in agricultural  land constituting by itself ’property’ is  the outcome of a stable and settled state of affairs relating to such bundle of ’rights.  Historical jurisprudence shows that even  the  concept of individual. property  in  agricultural land was the 833 outcome of stable and settled conditions Of Society.  It  is also  relevant  to  observe that  the  incidents  of  quasi- permanent  allotment are entirely statutory.  Subjection  to the  power  of  cancellation by the Custodian  in  whom  the property  is vested is one of such incidents and  determines the  quality  thereof.   Therefore, having  given  our  best consideration, we are unable to hold that the interest of  a quasi-permanent  allottee is ’ property’ within the  concept of that word so as to attract the protection of  fundamental rights. Property, to fall within the scope of Art. 19 (1) (f),  must

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be capable. of being the subject-matter of " acquisition and disposal  ".  The interest of  the  quasipermanent  allottee arises  by statutory grant to a specified class  of  persons and is not capable of acquisition by the ordinary citizen in any  of the normal modes’ Nor is it capable of  disposal  by the  allottee  himself in the normal modes by way  of  sale, mortgage,  gift  or will.  Neither is the  interest  of  the quasi-permanent  allottee such as can be brought within  the scope  of Art. 31 (2).  Article 31 (2) as recently  amended, taken   with  Art.  31  (2A)  contemplates  acquisition   or requisitioning  (and  taking  possessions  as  a  result  of transfer of the ownership or of the right to possession.  It is  true  that the recent amendment came into  operation  on April 27, 1955, and the impugned orders of the Custodian and Deputy Custodian-General are on February 6, 1952, and May 1, 1954.   But  in view of the word " deemed " in  the  amended Art.  31  (2A)  it appears likely  that  the  amendment  was intended to be retrospective.  Even assuming that it is  not so,  the words " taking possession " or " acquisition  "  in Art.  31  (2) prior to. the amendment are wholly  inapt  and inapplicable to the bundle of rights of the nature  detailed above  which   constitute quasi-permanent tenure and  it  is difficult  to  apply to it the protection under Art  31  (2) either  as  it  stood  before the  amendment  or  after  the amendment. Learned  counsel for the petitioners has urged that even  if Arts. 19 (1) (f) and 31 (2) are not applicable, the 107 334 petitioners  can invoke the protection of Art. 31 (1)  which says  that no person shall be deprived of his property  save by authority of law.  He relies on the judgment of one of us reported  in the State of West Bengal v. Subodh  Gopal  Bose (1), where it was stated as follows: "  The  word ’property’ as used in Article 31 (1)  may  have been  intended  to  be  understood  in  a  wider  sense  and deprivation  of  any  individual right out of  a  bundle  of rights constituting concrete property may be deprivation  of ’property’ which would require the authority of law." This is a view which was not shared by the other members  of the Court in that decision.  In any case it is clear that in order  that  Art. 31 (1) may apply, it is  not  enough  that there  is  ’deprivation’  but it must  also  be  deprivation without  the authority of law.  What has happened,  however, in this case is not deprivation of the property without  the authority  of  law even assuming that the bundle  of  rights constituting such an interest in land is I property’.  It is the  working out of the right of resumption or  cancellation which  was  one  of  the incidents  of  the  property.   The cancellation by the Custodian authorities was under the very law  which  created those rights.  Even if the  exercise  of that authority can be made out to be wrong, it is still  not open  to question having regard to ss. 28 and 46 of  Central Act  XX-XI  of  1950.  It is not an  illegal  usurpation  of jurisdiction   by  the  authorities  concerned  so   as   to constitute negation of the authority of law.  In the present case what has happened is that the quasi-permanent allotment of  the petitioners has been cancelled in order to work  out readjustments  consequent  upon  the  order  of  the  higher authority. Learned  counsel for the petitioners has  strenuously  urged that under the quasi-permanent allotment scheme the allottee is  entitled to a right to possession within the  limits  of the relevant notification and that such right to  possession is  itself ’property’.  That may be so in a sense.   But  it does not affect the

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(1)  [1954] S.C.R. 587,673. 835 question  whether  it  is  property so  as  to  attract  the protection of fundamental rights under the Constitution.  If the totality of, the bundle of rights of the quasi-permanent allottee  in  the evacuee land constituting an  interest  in such  land,  is  not  property  entitled  to  protection  of fundamental rights, mere possession of the land by virtue of such interest is not on any higher footing. Learned counsel has also drawn our attention to a number  of Acts and notifications of the Punjab Government to show that a quasi-permanent allottee has been treated as being in  the same  position  as  an  owner of  land  itself  for  various purposes.  Thus in r. 5 of the Land Revenue Rules under  the Punjab  Land Revenue Act, 1887 (Punjab Act XVII of 1887),  a quasi-permanent  allottee is classed with other land  owners as being eligible for appointment as zaildars.  Similarly by virtue  of  rules  framed under  the  East  Punjab  Holdings (Consolidation  and Prevention of Fragmentation)  Act,  1948 (East  Punjab Act L of 1948), a quasi-permanent allottee  is liable   to   pay  the  cost  of   consolidation   if   such consolidation comprises lands in his occupation.  These  and other  such  provisions,  however, have no  bearing  on  the question at issue before us. After the close of the arguments before us a recent decision of the Punjab High Court reported in Suraj Parkash Kapur  v. The State of Punjab(1) has been brought to our notice and we have  given  our careful consideration to  the  same.   That decision may be right on its merits, a matter about which we express  no  opinion.  But, with respect, we are  unable  to agree with the view expressed therein that a quasi-permanent allottee has such an interest in the land allotted to him as to constitute " property ", if it is meant to convey thereby that  it  is  property  which  attracts  the  protection  of fundamental rights under the Constitution. For  all  the above reasons we are unable to hold  that  any fundamental right of the petitioners has been (1)  (1957) LIX P.L.R. 103. 836 infringed This petition is accordingly dismissed but, in the circumstances, without costs.   In  holding that quasi-permanent allotment does not  carry with   it  a  fundamental  right  to  property   under   the Constitution  we  are  not  to be  supposed  as  denying  or weakening  the scope of the rights of the  allottee.   These rights  as recognised in the statutory rules  are  important and  constitute  the essential basis of  a  satisfactory  by rehabilitation  and  settlement of  displaced  land-holders. Until  such time as these land-holders obtain sanads to  the lands,  these rights are entitled to zealous  protection  of the  constituted  authorities  according  to  administrative rules and instructions binding on them, and of the courts by appropriate   proceedings  where  there  is  usurpation   of jurisdiction or abuse of exercise of statutory powers.                             Petition dismissed. 837