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PETITIONER: CHIEF SETTLEMENT COMMISSIONER, REHABILITATIONDEPARTMENT, PUN

       Vs.

RESPONDENT: OM PARKASH & ORS,  ETC.

DATE OF JUDGMENT: 05/04/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C.

CITATION:  1969 AIR   33            1968 SCR  (3) 655  CITATOR INFO :  R          1975 SC1856  (7)  RF         1976 SC1207  (352,464)

ACT: The  East Punjab Evacuees (Administration of Property)  Act, 1947-Definition  of  ’displaced  person’  in  para  2(e)  of Notification  issued under Rules made pursuant to  s.  22(2) (f) and (ff); The East Punjab Refugees (Registration of Land Claims)  Act 12 of 1948, s. 2(d)-Definition  of  ’refugees’; Person  with property in Pakistan coming to India  prior  to partition-Dying in June 1947-Shown as owner of properties in revenue  records  received  from  West  Punjab-If  displaced person-Whether  allotment of land in India must be  made  in his name or in the name of his heirs.

HEADNOTE: N  owned agricultural lands in Bahawalpur State now  forming part  of Pakistan and also owned some property in Punjab  in India.   He died in June 1947 while on a visit to  India  in the  normal course of business, leaving behind  three  sons, the  respondents in the appeal.  On the partition of  India, the  land  in Pakistan originally owned by N and  after  his death by his sons, had to be abandoned.  After migrating  to India,  the  three  respondents  filed  separate  claims  as displaced  persons  and  were allotted an area  of  land  in Punjab.   Thereafter  a  complaint  was  filed  before   the Managing Officer that these respondents had received  double allotments.  The Managing Officer, held this allegation  was not  substantiated  but  came  to  the  conclusion  that  N, although  he had died before the partition, must be  treated as  a displaced land-holder for the purpose of allotment  of land  as his name continued to be shown in the Jamabandi  as the owner of the abandoned land in Pakistan.  In consequence of this finding a large portion of the land allotted to  the three respondents was cancelled by an order of the  Managing Officer  dated  September  18, 1961.  Appeals  made  by  the respondents to the Assistant Settlement Commissioner as well as   revision   petitions  before   the   Chief   Settlement Commissioner  Punjab,  were dismissed.   In  dismissing  the revision petitions, the Chief Settlement Commissioner relied on  para. 17 of "Tarlok Singh’s Land  Resettlement  Manual"- 1952  edition-Page  180, to the effect that  "Even  where  a

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displaced  land-holder in whose name the land stands in  the records received from West Punjab has died, the allotment is made in the name of the deceased".  He therefore upheld  the view 4 at the land could only be allotted in the name of  N. The  respondents  then  filed a writ  petition  against  the orders  of  the  Chief  Settlement  Commissioner  which  was allowed. On appeal to this Court, HELD:Dismissing the appeal, The  definition of a "displaced person" in para 2(e) of  the Notification  of  July 8, 1949, issued by the  Custodian  in accordance  with  provisions  of the  East  Punjab  Evacuees (Administration  of Property) Act 1947, and the  Rules  made thereunder,  or of a "Refugee" in Section 2(d) of  the  East Punjab Refugees (Registration of Land Claims) Act 12 of 656 1948,  show  that these expressions have been  used  in  the relevant  enactments  with  reference to a  person  who  has migrated  to  India as a result of disturbances or  fear  of disturbances or the partition of the country.  Therefore  if a  person had died before the disturbances took place or  he had never migrated to India as a result of the  disturbances and he died before such migration, he could not come  within the meaning of the expression "displaced person" or the word "refugee"  under the relevant statutory enactments.  N  died in June, 1947, long before the partition of -the country and he  did not abandon or was not made to abandon his  land  in Bahawalpur on account of the civil disturbances or the  fear of  such disturbances or the partition of the country.  [660 A-D] There  was  no force in the contention that  even  though  N never  became  a  refugee or a  displaced  land-holder,  the allotment had to be made in his name because he was shown in the  revenue records received from West Punjab as the  owner of  the land and there had been no mutation of the names  of the respondents in the revenue records.  The rule in para 17 of  "Tarlok Singh’s Manual" consistently with the  statutory enactments,  would  be applicable only to such  persons  who were  land-holders ’it the time of their becoming  displaced persons or refugees and who died afterwards before allotment could  be  made  in their favour.  It does not  apply  to  a person  like  N who was not a displaced land-holder  at  the time of his death. [661 D-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 937 of 1965. Appeal from the judgment and order dated September 13.  1963 of  the Punjab High Court in Civil Writ No. 841 of 1962  and Civil Appeal No. 938 of 1965. Appeal from the order dated September 13, 1963 of the Punjab High  Court in Civil Writ No. 526 of 1963 and  Civil  Appeal No. 1195 of 1967. Appeal  from  the order dated August 6, 1964 of  the  Punjab High Court in Letters Patent Appeal No. 136 of 1964. D.   R.  Prem,  R.  N. Sachthey and S.  P.  Nayar,  for  the appellants (in C.A. No. 937 of 1965). R.   N.  Sachthey, and S. P. Nayar, for the  appellants  (in C.A. s Nos. 938 of 1965 and 1195 of 1967). S.   V.  Gupte,  Bhawani Lal and B. P. Jha,  for  respondent Nos.  1 to 3 (in C.A. No. 937 of 1965). R.   V.  Pillai,  for  the respondent (in C.A.  No.  938  of 1965). H.   L. Mittal and Naunit Lal, for the respondents (in C.A.

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No. 1195 of 1967). 657 Civil Appeal No. 937 of 1965 The Judgment of the Court was delivered by Ramaswami,  J.-This appeal is brought, by certificate,  from the  judgment of the Punjab High Court dated  September  13, 1963 in Civil Writ No. 841 of 1962. Nanak Chand owned agricultural lands in Bahawalpur  Statenow forming part of West Pakistan.  He also owned some  property at  Kot  Kapura,  Tehsil  Faridkot,  District  Bhatinda  now located  in  India.   Nanak Chand had in  normal  course  of business  come  to  Bhatinda where he  died  in  June,  1947 leaving  behind three sons, Om Parkash, Sat Narain  and  Ram Parshotam  who  are the respondents in this  appeal.   As  a result  of the partition of India the land originally  owned by  Nanak  Chand  and  after  his.  death  by  his  sons  in Bahawalpur  State had to be abandoned.  After the  partition of  India the three respondents migrated to India and  filed separate   claims  in  accordance  with  law  and   obtained allotment  of certain area in village Kot  Kapura,  district Bhatinda in lieu of the land abandoned by them in  Pakistan. The Revenue Authorities allotted an area measuring 206.8 1/2 standard  acres  in village Kot Kapura,  District  Bhatinda. After the allotment was made one Rur Singh filed a complaint before  the  Managing  Officer that  these  respondents  had received  double  allotments in villager  Kot  Kapura.   The complaint was examined by Shri Shankar Das Katyal,  Managing Officer who held that Shri Rur Singh failed to  substantiate the  allegation  of  double  allotment.   But  the  Managing Officer came to the conclusion that Nanak Chand although  he had  died long before the partition of the country  must  be treated  as  a  displaced land-holder  for  the  purpose  of allotment  of  land.   The reason given was  that  his  name continued  to be shown in the Jamabandi as the owner of  the abandoned land in Pakistan.  In consequence of this  finding a  large  portion  of  the  land  allotted  to,  the   three respondents  was  cancelled by the Managing Officer  by  his order dated September 18, 1961.  The three respondents  pre- ferred   an   appeal   before   the   Assistant   Settlement Commissioner  and  a  revision  petition  before  the  Chief Settlement  Commissioner  Punjab  but  the  appeal  and  the revision  petition  were both dismissed. In  dismissing  the revision petition the Chief Settlement Commissioner  relied, upon  paragraph  17  of  Tarlok  Singh’s  Land  Resettlement Manual,  1952 Edition, page 180 which was to  the  following effect :               "Even  where a displaced land holder in  whose               name  the land stands in the records  received               from  West Punjab has died, the  allotment  is               made in the name of the deceased.  In the fard               taqsim,  ’therefore, the entry will be in  the               name of the deceased land holder.   Possession               is  ordinarily  given to the heirs  but  there               must be regular               658               mutation  proceedings  before  the  entry   in               column  3  of the fard taqsim is-  altered  in               favour of the heirs."  It was held by the Chief Settlement Commissioner that  this paragraph  related to all persons who continued to be  shown as  owners in the revenue records irrespective of  the  fact whether  they had died before or after migration.  In  other words, the Chief Settlement Commissioner took the view  that the  land could only be allotted in the name of Nanak  Chand even  assuming that he had died in June, 1947.  Against  the

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order  of the Chief Settlement Commissioner the  respondents filed  a Writ Petition (Civil Writ No. 841 of  1961)  before the Punjab High Court.  The Writ Petition was allowed by the High  Court  by its order dated September 13, 1963  and  the orders  of the Chief Settlement Commissioner ,dated June  8, 1962,   of  the  Assistant  Settlement  Commissioner   dated December  26,  1961  and  of  the  Managing  Officer   dated September  18, 1961 were all quashed by the grant of a  writ in the nature of certiorari. It  is necessary at this stage to set out the provisions  of the  relevant  statutes.  Section 2(b) of  the  East  Punjab Evacuees’  (Administration  of  Property)  Act,  1947  (East Punjab Act No. XIV of 1947) defines an "evacuee" as  meaning "a  person  ordinarily  resident in or  owning  property  or carrying on business within the territories comprised in the Province   of   East  Punjab,  who  on  account   of   civil disturbances,  or  the  fear of such  disturbances,  or  the partition of the country : (i) leaves or has since the first day  of  March 1947, left the said territories for  a  place -outside   India,  or  (ii)  cannot  personally  occupy   or supervise hi,; property or business." Section 4 of that  Act provided  that  "All evacuee property  situated  within  the Province  shall  vest in the Custodian for the  purposes  of this  Act  and  shall continue to be  so  vested  until  the Provincial Government by notification otherwise directs." In pursuance  of the powers conferred-by the rules made by  the State Government under cls. (f) and (ff) of S. 22(2) of  the East  Punjab  Evacuees, (Administration  of  Property)  Act, 1947, the Custodian issued a notification no. 4892/S on July 8, 1949 regarding the conditions on which he was prepared to grant -allotment of land vested in him under the  provisions of  the  said Act to displaced persons.  Para 2(e)  of  this notification states               "  "Displaced person" means a land  holder  in               the territories now comprised in the  province               of   West  Punjab  or  a  person  of   Punjabi               extraction who holds land in the Provinces  of               North-Western   Frontier  Province,  Sind   or               Baluchistan  or any State adjacent to  any  of               the  aforesaid Provinces and acceding  to  the               Dominion  of Pakistan, and who has  since  the               1st  day  of March , 1947, abandoned  or  been               made to abandon his land in the               659               said   territories   on   account   of   civil               disturbances,    or   the   fear    of    such               disturbances,   or   the  partition   of   the               country." Section  2(d) of the East Punjab Refugees  (Registration  of Land,  Claims) Act. 1948 (East Punjab Act No. XII  of  1948) states               "2.  Interpretation.-In this Act unless  there               is  anything  repugnant  in  the  subject   or               context,-               (d)   ’refugee’  means  a  landholder  in  the               territories  now comprised in the Province  of               West Punjab, or who or whose ancestor migrated               as  a colonist from the Punjab since  1901  to               the Provinces of North-West Frontier Province,               Sind  or Baluchistan or to any State  adjacent               to any of the aforesaid Provinces and acceding               to the Dominion of Pakistan, and who has since               the 1 st day of March, 1947, abandoned or been               made   to  abandon  his  land  in   the               said   territories   on   account   of   civil

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             disturbances,    or   the   fear    of    such               disturbances,   or   the  partition   of   the               country;" Section  2(c)  defines a "landholder" to mean "an  owner  of land.  or  a tenant having a right of  occupancy  under  the Punjab  Tenancy  Act,  1887 (XVI of 1887)  or  a  tenant  as defined in section 3 of the Colonization of Government Lands Act,  1912 (Punjab Act V of 1912) and such other  holder  or grantee  of  land  as may be  specified  by  the  Provincial Government;".   Section  2(c) of the East  Punjab  Displaced Persons  (Land Resettlement) Act,1949 (East Punjab  Act  No. XXXVI of 1949) defines a "displaced person" as follows :               "  ’displaced person’ means a  land-holder  in               the territories now comprised in the  Province               of   West  Punjab  or  a  person  of   Punjabi               extraction who holds land in the Provinces  of               North-West   Frontier   Province,   Sind    or               Baluchistan  or any State adjacent to  any  of               the  aforesaid Provinces and acceding  to  the               Dominion  of Pakistan, and who has  since  the               1st day of March 1947, abandoned or been  made               to abandon his land in the said territories on               account of civil disturbances, or the fear  of               such  disturbances,  or the partition  of  the               country".               Section 2(b) of this Act defines an "allottee"               as follows               "  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  the               8th July, 1949, and includes his heirs,. legal               representatives and sub-lessees". 660 The main question to be considered in this appeal is whether Nanak  Chand was a ’displaced person’ as defined in  para  2 (e)  of the notification dated July 8, 1949 ,or a  "refugee" as defined under S. 2(d) of Act No. XII of 1948 and  whether he was entitled for allotment of land.  It is manifest  that the expression "displaced person" or the word "refugee"  has been  used  in the relevant enactments with reference  to  a person who has migrated to India as a result of disturbances or  fear  of disturbances or the partition of  the  country. Therefore if a person had died before the disturbances  took place  or he had never migrated to India as a result of  the disturbances and he died before such migration, he could not come  within  the  meaning  of  the  expression  -"displaced person"  or the word "refugee" under the relevant  statutory enactments.   It is manifest in the present case that  Nanak Chand  died in June, 1947 long before the partition  of  the country  and he did not abandon or was not made  to  abandon his land in Bahawalpur on account of the civil  disturbances or  the  fear of such disturbances or the partition  of  the country. It  was, however, contended by Mr. D. R. Prem on  behalf  of the  appellants that even though Nanak Chand never became  a refugee or a displaced land-holder, the allotment had to  be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in  the revenue  records.  Reference was made in this connection  to paragraph  17  of Tarlok Singh’s  Land  Resettlement  Manual which has already been quoted. It was contended by Mr.  Prem that  the  instructions contained in  this  paragraph  would apply even though Nanak Chand had never become a refugee  or

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a displaced land-holder and the allotment has to be made  in his  name by the revenue authorities because his name  still stands in the revenue records received from West Punjab., We are  unable to accept this argument as correct.  It  is  not disputed  that paragraph 17 of Tarlok Singh’s Manual has  no statutory  authority  but it merely  embodies  executive  or administrative instructions for general guidance.  If  there is  a  conflict  between the provisions  contained  in  this paragraph  and the statutory enactments already referred  to it  is  manifest  that the statutory  provisions  must  take precedence and must prevail over the directions contained in para 17 of Tarlok Singh’s Manual. In this context it is essential to emphasise that under  our constitutional  system  the  authority to make  the  law  is vested  in  the Parliament and the  State  Legislatures  and other  law making bodies and whatever legislative power  the executive administration possesses must be derived  directly from the delegation of the legislature and exercised validly only  within the limits prescribed.  The notion of  inherent or   autonomous   law-making   power   in   the    executive administration is a notion that must be emphatically reject-  661 ed.  As observed by Jackson, J. in a recent  American  case- Youngstown  Sheet  &  Tube Co. v.  Sawyer(1)-"With  all  its defects  delays  and inconveniences men have  discovered  no technique  for long preserving free government  except  that the Executive be under the law, and that the law be made  by parliamentary deliberations." In our constitutional  system, the  central and most characteristic feature is the  concept of the rule of law which means, in the present context,  the authority  of  the  law courts to  test  all  administrative action  by the standard of legality.  The administrative  or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate  action in  the competent court.  The rule of law rejects  the  con- ception of the Dual State (2 ) in which governmental  action is placed in a privileged position of immunity from  control by   law.    Such  a  notion  is  foreign   to   our   basic constitutional concept. In our opinion, however, it is possible to give a restricted interpretation  to paragraph 17 of Tarlok Singh’s Manual  so as  to  make  it consistent with  the  requirements  of  the statutory  enactments.  The intention of para 17 is that  it is  applicable only to such persons who are land-holders  at the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in  their favour.   In  other  words,  the  paragraph  applies  to   a displaced  land-holder  who  dies  after  having  become   a "displaced  person"  within  the  meaning  of  the  relevant statutory enactments referred to above.  The paragraph  does not  apply  to a case of, a person who was not  a  displaced land-holder  at the time of his death.  In the present  case it  is  admitted that Nanak Chand never became  a  displaced land-holder.  On the other hand, Nanak Chand died before  he became  a  displaced land-holder and therefore  para  17  of Tarlok Singh’s Manual has no application to the facts of the present case. For these reasons we hold that this appeal has no merit  and it must be dismissed with costs. Civil Appeals Nos. 938 of 1965 & 1195 of 1967 The question arising in these two appeals is identical  with the  question of law in Civil Appeal No. 937 of  1965.   For the reasons given in that judgment we hold that the decision of the High Court challenged in these appeals is correct and these appeals must be dismissed with costs.

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R.K.P.S.                       Appeals dismissed. (1)  343 U. S. 579, 655. (2)  This  term  is derived from Fraenkel,  The  Dual  State (1941). 662