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PETITIONER: DUNICHAND HAKIM AND OTHERS

       Vs.

RESPONDENT: DEPUTY  COMMISSIONER  (DEPUTY  CUSTODIAN  EVACUEE  PROPERTY)

DATE OF JUDGMENT: 18/12/1953

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN BOSE, VIVIAN JAGANNADHADAS, B.

CITATION:  1954 AIR  150            1954 SCR  578  CITATOR INFO :  E          1957 SC 599  (4)

ACT:  Administration  of Evacuee.Property Act (Act XXXI of  1905),  ss.  2, 12,  56(2)-Evacuee  property-Allotment--Cancellation  of-Jurisdiction    of    Deputy    Cutstodian-Notice     for  cancellation.,  whether essential-orders of cancellation  of  allotment-Validity of.

HEADNOTE: Held,  that  the Deputy Custodian of  Evacuee  Property  has jurisdiction to cancel the allotment of land both under  the East Punjab Evacuees’ (Administration of Property) Act,  XIV of  1947  as  well as under the  Administration  of  Evacuee Property (Act XXXI of - 1950), ss. 2(a) 12(1) and 56(2), the latter Act replacing the former Act. That no notice was provided for cancellation of an allotment under the rules framed under section 56. That  the  petitioners-allottees in the  present  case  were given  notice and had full opportunity to put forward  their case before their allotments were cancelled.

JUDGMENT: ORIGINAL  JURISDICTION:  PETITION  NO.  324  of  1953  under article 32 of the Constitution. N.   S. Bindra, (Gurucharan Singh Bakshi, with him) for  the petitioners. Porus A. Mehta for respondent No. 1. Amar Nath Arora for respondents Nos. 2 to 14. 1953.  December 18.  The Judgment of the Court was delivered by GHULAM  HASAN  J.--This  petition by  twenty  persons  under article 32 of the Constitution prays for the issue of a writ of certiorari, mandamus and prohibition 579 or other suitable order or directions, quashing the  -orders dated the 1st July, 1952, and the 14th October, 1953, passed

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by   the  Deputy  Commissioner  (Deputy  Custodian   Evacuee Property)  Karnal, in the State of East Punjab,  hereinafter referred to as the first respondent, whereby the petitioners are alleged to have been deprived of their fundamental right of  property  and  are unable to hold the  same  within  the meaning of article 19 (1) (f) of the Constitution. The  petitioners  are displaced persons  from  Pakistan  who migrated  to India after the partition of 1947.  They  owned certain  agricultural  land  in  Tehsil  Chunian,   District Lahore, which, according to them, was mostly canal irrigated land  of  the first grade, yielding on an average 16  to  20 maunds  of wheat per acre.  It-appears that  upon  partition the  East Punjab Government was confronted with the  serious problem  of settling agricultural lands abandoned by  Muslim evacuees  from the areas, now called East Punjab and  Pepsu. Accordingly  they  decided on the 15th September,  1947,  to allot  evacuee lands for the current Kharif and the Rabi  of 1947-48.   This decision was obviously taken with a view  to prevent  famine and fall in agricultural production  in  the area,  as  also  to  provide means  of  livelihood  for  the agricultural  refugees.   In pursuance of  this  policy  the petitioners  were  settled  on  land  in  village   Dhakala- admittedly a first grade village,-Tehsil Thanesar,  District Karnal,  in  the State of East Punjab.   Their  claims  were verified under the provisions of the.  East Punjab  Refugees (Registration  of  Land Claims) Act XII of 1948,  They  were allotted  specific  areas  of land under  the  statement  of conditions, contained in Notifications Nos.489 1/S and  4892 IS,  dated the 8th July, 1949, on quasi-permanent  basis  in lieu  of the lands left by them in  Pakistan.   Subsequently the petitioner’s lands left in Pakistan are alleged to  have been down-graded with the result that the lands allotted  to them  were  re-allotted on the 25th April,  1951,  to  Ishar Singh  and  others who appear as respondents to  oppose  the present petition.  In July, 1951, the petitioners moved  the East  Punjab  High  Court  under  article  226  for  a  writ restraining their 76 eviction  from  the  lands  but as  no  allotment  had  been cancelled by that time they withdrew the petition some  time in 1952.  The original allotment was, however, cancelled  on the 1st July, 1952.  This order was challenged by a revision under  section 27 of the Administration of Evacuee  Property Act,  1950.   The  Deputy Custodian  General  dismissed  the revision  petition on the 2nd December, 1953,  holding  that the order of the Deputy Custodian was not illegal or without jurisdiction on the ground that no notice of cancellation of allotment  had been issued to them.  It was observed in  the course  of  the judgment that the petitioners  had  conceded before  the Assistant Custodian on the 9th May,  1952,  that the  lands abandoned by them in Pakistan were  second  grade lands  but  had claimed that they should,  nevertheless,  be allotted first grade lands. The order of the 1st July, 1952, is the first order which is challenged  before  us  as being  without  jurisdiction  and infringing the fundamental right of the petitioners. It  is  alleged  in the petition  that  notwithstanding  the cancellation  of the allotment, the petitioners remained  in actual cultivating possession of the lands allotted to  them but an order was passed by -the first respondent on the 14th October, 1953, which is to the following effect :- "  Government have decided that in the case of  persons  who were  able to secure possession of part of land,  the  order should  be deemed to have been implemented.  In the case  of M/s  Ishar  Singh.  Rakha Singh and others  of  the  village

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Dhokala’  they  were in possession of the part of  the  land before  the  6th May, 1953.  As such they  should  be  given possession  of the remaining area by ousting Duni Chand  and others  being  II  and  III  grade  allottees,  but  wrongly allotted land in 1st grade village." The aforesaid order is said to have been passed without  the authority  of  law and deprives the.  petitioners  of  their right to bold the property allotted to them, 581 Before  dealing with the validity of the impugned orders  it will  be  necessary to refer to a compilation known  as  the Land  Resettlement  Manual for displaced persons  in  Punjab and,  Pepsu  upon  which great reliance was  placed  by  Mr. Bindra  on  behalf of the petitioners in the course  of  his arguments.   This  book was prepared by  Mr.  Tirlok  Singh, I.C.S.,   who   was   Director   General   of   Relief   and Rehabilitation  in  East  Punjab  and  contains  the  policy decisions  of that Government arrived at in respect  of  the settlement  of land upon the refugees soon after  partition. It  appears  from  this book that  originally  there  was  a temporary  settlement  but shortly afterwards  an  elaborate organization  was  set up to make allotment of  lands  on  a quasi-permanent  basis.  The displaced persons put in  their claims in regard to the agricultural land they had abandoned in  West  Punjab  and they were verified with  the  help  of Revenue  records which were exchanged with the  West  Punjab Government.  The book has evidently the stamp of  authority, as  the  foreword is written by Mr. P.  N.  Thapar,  I.C.S., Financial    Commissioner,   Department   of   Relief    and Rehabilitation,  and  Secretary to  the  Punjab  Government, Relief and Rehabilitation Department.  The Manual shows that in the end. of 1947, the displaced persons had been allotted lands on a temporary basis but there was an insistent demand for  settlement on permanent basis.  In a communique of  the 7th February, 1948, a new system of quasipermanent allotment was  devised,  the  object underlying  being  to  allow  the displaced  persons  to  remain  in  quiet  and   undisturbed enjoyment  of the lands allotted to them.  They were not  to get proprietary rights or rights of permanent occupation and the very fact that the settlement was quasi-permanent  shows that  it was, not intended to be irrevocable., Paragraph  19 of  the  Manualsays:  "Until  issues  relating  to   evacuee property are resolved between India and Pakistan,  ownership in each country of property abandoned by evacuees  continues to  rest with them.  This led to the use of  the  expression quasi     permanent  as  the  keyword  for  the  scheme   of resettlement  introduced  in  East Punjab  and  Pepsu."  The various Evacuee Property Ordinances 582 passed by the Central or the State Governments from time  to time  which were eventually replaced by the Central Act  No. XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until such time as  a final decision was reached by the Government of  India as to its ultimate destination.  Paragraph 21 of the  Manual contains  the  statement  of  conditions  which  Mr.  Bindra characterised  as  the charter of the  petitioners’  rights. This paragraph says that the rights of persons to whom  land is  given in the scheme of quasi-permanent resettlement  are defined  in  East Punjab in two  statements  of  conditions, dated   the  8th  July,  1949,  issued  with   Notifications Nos.4891/Sand4892/S.  This statement is to be found at  page 193  of the Manual.  Paragraph 3 of the statement says  that the  allotment shall be in favour of displaced  persons  and

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for  a  period  for which the land remained  vested  in  the Custodian subject to the provisions of the Act.  Paragraph 8 says:  "The  allottee paying the rent  hereby  reserved  and observing  and performing the several covenants,  conditions and stipulations herein on his part contained, shall  peace- fully hold and enjoy the allotted land during the said  term without   any   interruption  by  the   Custodian   or   the Rehabilitation Authority." It is contended by Mr. Bindra  on the  strength of these provisions that so long as  the  land remains  vested in the Custodian, the petitioners cannot  be deprived of these lands which have been granted to them on a quasi-permanent  basis and that the allotment could  not  be cancelled without notice to the petitioners. We now proceed to dispose of this contention.  It is  agreed that the Act in force at the time of the allot. ment was the East Punjab Evacuees’ (Administration of Property) Act,  XIV of  1947.   It  defines  "allotment" as  the  grant  by  the Custodian or a Rehabilitation Authority or any other  person duly  authorised  by  the Custodian in  this  behalf,  of  a temporary right of use and occupation of evacuee property to any  person  otherwise  than by way  of  lease.   Section  9 confers powers upon the Custodian in regard to management 583 of property and section 9 (A), sub-section (2), empowers the Custodian to cancel any allotment or terminate or amend  the conditions  of any lease.  Section 22, subsection  (2)  (ff) confers  upon  the Provincial Government the power  to  make rules providing for the circumstances under which leases and allotment may be terminated or the terms thereof be  varied. This Act was in due course replaced by the Central Act  XXXI of 1950 (The Administration of Evacuee Property Act,  1950). The definition of allotment in this Act is substantially the same [section 2 (a) ]. Section 12 (1) and section 56 (2) (h) are  in  substance  the counterpart of  section  9  (A)  and section  22 (ff) of the East Punjab Act of 1947.   That  the Deputy   Custodian  had  the  jurisdiction  to  cancel   the allotment both under the State and the Central Acts referred to above cannot be seriously contested.  It was in pursuance of the powers conferred by the rules made by the  Provincial Government that the Custodian issued the notification of 8th July,  1949.  Rule 14 (2) which is one of the  rules  framed under  section 56, specifies the circumstances  under  which leases and allotments can be cancelled or varied.   Sub-rule (3) says that the Custodian may evict a person who has cured an  allotment by misrepresentation or by fraud or if  he  is found to be in possession of more than one evacuee  property or in occupation of accommodation in excess of his  require- ments.   Sub-rule (4) requires the Custodian before  passing any,  order of cancellation or variation of the terms  of  a lease,  to  serve  the person or persons  concerned  with  a notice  to show cause against the order proposed to be  made and  to afford him a reasonable opportunity of being  heard. No notice is provided for cancellation of an allotment under the  rules.   The  obvious answer  to  this  differentiation appears to be that a lease is granted for a definite  period and  it is only fair to give the lessee a notice before  his lease  is  terminated before the expiry  of  the  stipulated period,  whereas  the  allottee of  land  under  the  quasi- permanent settlement stands on a different footing.  Be that as  it  may,  the question seems to  be  academical  in  the present case, as the petitioners were given full opportunity to, 584 put forward their case before the allotment was cancelled.  The  order of the Deputy Custodian General, dated  the  2nd

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December, 1953, rejecting the petitioners’ revision supports this.  That order shows that the Assistant Custodian  issued a notice to the petitioners to show cause why the  allotment of  first  grade  land, while they  were  all  second  grade claimants,   should  not  be  cancelled.   The   petitioners appeared before him on the 9th May, 1952.  Their ’statements were  recorded and they admitted that their land was  second grade,  whereupon the Assistant Custodian made a  report  to the-Deputy  Custodian  recommending that  the  allotment  be cancelled.   The Deputy Custodian acting upon  this,  report cancelled the petitioners’ allotment in village, Dhakala, on the 1st July, 1952.  This point was raised before the Deputy Custodian  General also but he held that section 12  of  the Central.   Act did not require notice of cancellation to  be issued  to  the  petitioners and in any case  the  order  in question  was  not without jurisdiction, as there  had  been substantial  compliance with the provisions of rule 14.   It was  contended, however, that the order of cancellation  was made  by the Deputy Custodian and that order was bad  as  he did  not give the petitioners any notice before passing  the order.   The  Assistant Custodian who was acting  under  the orders  of  the  Deputy Custodian  had  already  heard’  the petitioners and recorded their statements, and there was  no point in hearing the petitioners again when they had already been heard.  The Deputy Custodian has filed an affidavit  to the  effect  that a notice was given to the  petitioners  to explain  on  the 9th May,’ 1952, as to why  their  allotment should not be cancelled, that they appeared on the 9th  May, 1952,  that  their statements were recorded and  that  their allotments were cancelled on the 1st July, 1952. We hold, therefore, that there is no merit in the contention that   the  order  of  the  Deputy  Custodian  was   without jurisdiction  as  it  was  passed  in  the  absence  of  the petitioners and without hearing them.  Even if the order  of cancellation was passed during’ the 585 operation of a stay order, the order of cancellation  cannot be challenged on that ground. The next contention urged is that the order of  cancellation is  opposed to the order of the Ministry of  Rehabilitation, dated  the  14th  May, 1953, whereby  the  authorities  were prohibited  from  cancelling  allotments if  the  orders  in respect  of them had not been implemented by the 22nd  July, 1952.. We think this contention is also devoid of merit.  It appears  that the question of amendment of sub-rule  (6)  of rule   14   of  the  Central  Rules  was  the   subject   of correspondence  between the Central Government and the  East Punjab  Government.  Reference is made in the letter of  the 14th  May,  1953, to a notification issued  by  the  Central Government on the 22nd July, 1952, according to which orders cancelling allotments passed after a specified date were  to be  implemented  only  if they fall under  the  category  of undeserved and excessive allotments.  It is stated that  the object of this notification was to stablize  quasi-permanent allotments,   but  upon  a  representation  by   the   State Government  the provision restricting the implementation  of orders  passed before the a specified date was  relaxed  and the  State  Government was given powers to  implement  their orders by the 22nd July, 1952.  The Central Government after further consideration decided that all orders passed  before the 22nd July, 1952, but not implemented until the 6th  May, 1953,  shall  be kept it abeyance except  in  the  following cases:- (a)  Undeserved allotment, (b)  Excessive allotment,

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(c)........................... It  was  further decided that no other  order  hereafter  be implemented - until a decision to the contrary is issued  by the Central Government.  The letter added that the  Ministry of  Law  was  being  consulted with a  view  to  making  the necessary  amendments in the rules.  In pursuance  of  this, decision  the East Punjab Government issued instructions  to the Deputy Commissioners.  There was some dispute about  the meaning of the wor "implementation" but before A further 586 reference  was  made to the Central Government,  the  Punjab Government  decided that among allottees of land the  status quo should be maintained and that if as a result of an order of  cancellation  passed  before the 22nd  July,  1952,  the possession of an allottee had not been given over by the 6th May, to the new allottee, it shall remain with the  original allottee.  This correspondence merely shows that the Central Government  enunciated  a certain policy on the  subject  of amending sub-rule (6) of rule 14, pending the advice of -the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.   It is  clear,  therefore, that the Central  Government  .merely issued  interim  instructions pending the amendment  of  the rule  but  no  rule  was framed  to  give  effect  to  those instructions  which  in  consequence  did  not  acquire  any statutory force.  Mere stay of implementation of the  orders contained  in the statement of policy did not wipe  out  the effect  of  the cancellation.  Sub-rule (6) to rule  14  was subsequently added but not as it was intended to be with the result  that  the old orders of cancellation stood  such  as orders based on grounds other than underserved or  excessive allotments.   Once the order of cancellation was  passed  by the  Deputy Custodian, the petitioners lost their  right  to possession and even if the letter of the 14th May, 1953,  is treated  as  a  direction by the  Central  Government  under section 54, it cannot have the effect of restoring what  had been lost. We hold, therefore, that the petitioners have not made out a case  for breach of any fundamental right.  Both the  orders passed  by respondent No. I are perfectly valid  and  within jurisdiction.   We  accordingly’ dismiss the  petition  with costs to the first respondent.                     Petition dismissed. Agent for the petitioners: Harbans Singh. Agent for respondent No. 1: G. H. Rajadhyaksha. Agent for respondents Nos. 2 to 14; R. K, Kuba,      587