PETITIONER:
SADHU SINGH (DECEASED) & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT02/09/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
PATHAK, R.S.
SEN, A.P. (J)
CITATION:
1979 AIR 1609 1979 SCR (3)1279
ACT:
Displaced Persons (Compensation and Rehabilitation Act
1954-S. 19-Land allotted to displaced person-Allotment
cancelled without complying with provisions of the Act-
Validity of.
HEADNOTE:
The respondent, who was a displaced person from West
Pakistan, was allotted certain land in India and was given
its possession. At the time of consolidation of holdings in
1960 the Consolidation Officer included a part of this land
comprising 13-odd acres in the area of the Custodian. The
respondent's representations protesting against the action
of the Consolidation Officer having failed at the different
levels, the respondent moved the High Court under Art. 226
of the Constitution. The High Court set aside the impugned
orders of the Consolidation Officer on the ground that they
were wholly without jurisdiction and that the concerned
officer was not authorised to allot to the appellant the
land which was already comprised in a subsisting valid
allotment made to the respondent.
On the question whether the land in dispute which had
already stood allotted in favour of the respondent could be
allotted in favour of others without notice to the
respondent and without affording an opportunity of being
heard.
^
HELD: The respondent had succeeded in establishing that
permanent proprietary allotment of the land in dispute was
validly made in his favour. Therefore the respondent had
enforceable right in respect of the land and it could not be
allotted in favour of others. [1292F-G]
Although in certain contingencies it would be open to
the Managing Officer or the Managing Corporation to cancel
the allotment under s. 19 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 read with Rule
102 of the Displaced Persons (Compensation and
Rehabilitation) Rules 1955, it can not be done unless the
allottee is given a reasonable opportunity of being heard.
[1293F]
In the instant case no action for cancellation of
allotment was taken under the provisions of the Act and the
Rules. The action of the Naib Tehsildar-cum-Managing Officer
in allotting to the appellant the land which had already
stood in the name of the respondent without complying with
the relevant provisions of the Act was in flagrant violation
of the provisions of the law. Therefore, the impugned orders
were manifestly illegal, arbitrary and unjust and could not
be sustained. [1293H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2419 of
1968.
From the Judgment and Order dated 25-9-67 of the Punjab
and Haryana High Court in Civil Writ No. 1630/62.
1280
S. K. Mehta, P. N. Puri, K. R. Nagaraja and G. Lal for
the Appellants.
K. L. Narula, District Attorney, Haryana, R. B. Datar
and Girish Chandra for Respondent No.1.
E. C. Agarwala for Respondent No. 14
(Rest of the Respondents Ex-parte)
The Judgment of the Court was delivered by
JASWANT SINGH, J.-The litigation culminating in the
present appeal (by certificate under Article 133(1)(b) of
the Constitution) which is directed against the judgment and
order dated September 25, 1967, of the Punjab and Haryana
High Court in C.W.N. 1630 of 1962 setting aside the
allotment dated May 23, 1960 made by Naib Tehsildar-cum-
Managing Officer, Fatehabad, District Hissar in favour of
Madan Mohan and others, and orders dated April 18, 1962 and
July 21, 1962 of the Assistant Settlement Commissioner and
Chief Settlement Commissioner respectively on the finding
that “no part of the holding which formed part of the land
allotted to respondent No. 14, Mehta Lal Chand, (hereinafter
referred to as ‘the respondent’) could, during the
subsistence of such allotment and without its cancellation,
be allotted to any one else” has had a very chequered career
extending over well nigh two decades. It appears that the
respondent who is a displaced person from Pakistan was found
entitled to an allotment of 113 standard acres and 3 units
of land in lieu of 120 acres of land held by him as owner in
Bhawalpur (Pakistan). Against the aforesaid entitlement, the
respondent was allotted 90 standard acres and 6 units of
evacuee land between 1953 and 1958 in different villages of
Tehsil Fatehabad, District Hissar including two areas
measuring (1) 13 standard acres and 3 1/2 units and (2) 13
standard acres and 13 1/2 units in village Bahmniwala
allotment of which was made on March 1, 1957 and October 10,
1958 respectively. Pursuant to the above allotment of 13
standard acres and 3 1/2 units made in his favour in village
Bahmniwala vide Sanad dated March 6, 1957 (Annexure ‘C’ to
the writ petition), the respondent was given possession of
the plots of land comprised in khasra Nos. 1411 min, 1412
min, 1472 min, 1241 min, 1242, 1243, 1244, 1245, 1246, 1247,
1621, 1622 to 1635 (14 khasras), 1642, 1644, 1645 on June
17, 1957. The respondent continued to remain in possession
of the aforesaid plots of land till Rabi 1960 when
consolidation of holdings were undertaken in village
Bahmniwala. Without caring to look into the revenue record,
the Consolidation Officer instead of showing the aforesaid
allotted area in Bahmniwala in the name
1281
of the respondent included the same in the kurrah (area) of
the Custodian. On coming to know about this irregularity,
the respondent filed objections before the Consolidation
Officer and requested him to rectify the mistake. The
Consolidation Officer by his order dated March 23, 1960
consigned the objection petition of the respondent to the
record room observing that in the absence of the relevant
record which, as per the report of the Wasal Baqi Nawis is
has been despatched to Jullundur for checking purposes, the
factum of allotment cannot be verified and as it is
necessary to take proceedings under section 21(2) of the
Consolidation of Holdings Act in village Bahmniwala in this
very month, the record cannot be awaied any further. The
Consolidation Officer further observed that since it
appeared from a perusal of the copy of the Sanad (allotment)
that the entire kurrah consisted of almost evacuee land
bearing khasra numbers mentioned in the Sanad of allotment,
the respondent could, on the receipt of the record, get the
area at the place where, according to him, the evacuee land
mentioned by him in his application was situate. By his
order dated May 23, 1960, the Naib Tehsildar-cum-Managing
Officer, Fatehabad, however, made the following allotments
out of an area of 58 standard acres and 7 units situate in
Bahmniwala which included the khasra numbers already
allotted to the respondent but which according to the Fard
Fazla (statement of surplus area) prepared by the concerned
Patwari appeared to be available for allotment:-
In favour of Bagga Singh, S/o Pokhar Singh: 5 1/2 units
” ” ” Inder Singh, S/o Mit Singh : 7 Standard
acres 1
1/2unit
” ” ” M. dan Mohan Singh, S/o Puran Singh,
” ” ” Odin Singh and Harduman Singh, 20 Standerd
acres 2
units
Sons of Madan Mohan Singh,
Predecessor-in-interest of
the appellants
Aggrieved by this order of the Naib-Tehsildar-cum-
Managing Officer which adversely affected the allotment
already made in his favour, the respondent preferred an
appeal to the Assistant Settlement Commissioner (with powers
of Settlement Commissioner), Punjab, Jullundur contending
that 13 standard acres and 3 1/2 units of land in Bahmniwala
allotted to him in 1957 had been erroneously included in the
‘kurrah’ of the Custodian at the time of the Consolidation
operations and that the same had now been erroneously
allotted without his knowledge to Bagga Singh, Inder Singh,
Madan
1282
Mohan Singh and his sons. Curiously enough, the Assistant
Settlement Commissioner (with powers of Settlement
Commissioner) while conceding that the aforesaid 13 standard
acres and 3 1/2 units and 13 standard acres and 13 1/2 units
in village Bahmniwala were allotted in favour of the
respondent on June 17, 1957 and October 10, 1958
respectively and that there was no cancellation order in
respect thereof and that the consolidation authorities
should not have withdrawn the area from the name of the
respondent who had through no fault of his been put to a lot
of difficulty and that it was just and proper that the
matter of allotment to which he was entitled be settled once
for all in such a way that whole of the area is given to him
permanently in one village, rejected the appeal by his order
dated April 18, 1962 observing that there was no good ground
for interfering with the allotment of the appellants and
that it would be open to the respondent to apply to the Naib
Tehsildar-cum-Managing Officer to make up the shortfall in
his area by allotment of some other land which may be
available in that village. Dissatisfied with the order of
the Assistant Settlement Commissioner, the respondent took
the matter in revision to the Deputy Secretary
(Rehabilitation) exercising the powers of the Chief
Settlement Commissioner who also after paying lip sympathy
dismissed the revision on the ground that it was time
barred. Aggieved by these orders, the respondent moved the
High Court of Punjab and Haryana by means of the aforesaid
petition under Articles 226 and 227 of the Constitution. The
High Court by its judgment and order dated September 25,
1962 set side the aforesaid thee impugned orders holding
that they were wholly without jurisdiction and the
Tehsildar-cum-Managing Officer was not authorised to allot
to the appellants the land which was already comprised in a
subsisting valid allotment of the respondent. It is against
this judgment and order of the High Court that the present
appeal is directed.
On the appeal coming up before us on July 19, 1978, we
heard counsel for the parties at considerable length and
felt it necessary for clarification of certain points which
had been left vague the courts below to have before us the
entire record relating to the allotment made in favour of
the respondent. Accordingly, with the consent of counsel for
the parties, we adjourned the hearing of the case and
directed the Union of Indian to instruct the Chief
settlement Commissioner, State of Haryana, either to appear
himself before us with all the relevant record relating not
only to the allotment originally made in favour of the
respondent vide Sanad No. HS4/ 1957/11202 dated March 1,
1957 but also with the record pertaining to all the
subsequent allotments made in his favour upto date or
1283
cause the appearance of a responsible officer with the
aforesaid record. To obviate delay in disposal of the case,
we also directed the Chief Settlement Commissioner to have
in readiness a factual statement showing the net area in
terms of standard acres to which the respondent was entitled
as a displaced person, the particulars of the field
initially allotted in his favour including the survey
numbers and the extent of the area thereof, particulars of
the survey numbers of the fields taken out of the
respondent’s allotment vide Naib Tehsildar-cum-Managing
Officer, Tehsil Fatehabad’s order dated May 23, 1960 and
particulars of all the subsequent allotments made upto date
in the respondent’s favour in different villages of District
Hissar including village Bahmniwala as also the extent of
the allotted area which is at present held by him.
Accordingly, the Chief Settlement Commissioner has caused
the attendance of K. L. Narula, Deputy District Attorney,
Rehabilitation Department, Haryana, Chandigarh who has also
filed an affidavit relating to the points on which
information was required by us. We have perused the entire
material and have again heard counsel for all the sides.
Two questions arise for determination in this case-(1)
whether the respondent acquired any enforceable right as a
result of the allotment made in his favour on March 1, 1957
and delivery in pursuance thereof to him of possession of
the aforesaid khasra numbers on June 17, 1957 and (2)
whether the parcels of land which already stood allotted in
favour of the respondent vide allotment order dated March 1,
1957 could be allotted by the Naib Tehsildar-cum-Managing
Officer, Fatehabad in favour of Madan Mohan Singh and others
without notice to the respondent and without affording him
in opportunity of being heard.
The first question has to be considered in the light of
the judgment of this Court in Amar Singh v. Custodian
Evacuee Property, Punjab where the whole history of the
legislative measures devised from time to time in the
erstwhile State of Punjab to combat the gigantic problems
created as a result of the mass migration of non-Muslim land
holders to East Punjab is traced. A perusal of the judgment
reveals that in exercise of the rule making power vested in
it under clauses (f) and (ff) of sub-section (2) of section
22 of the East Punjab Evacuees’ (Administration of Property)
Act, 1947 (E. P. Act No. XIV of 1947) as amended in 1948,
the Punjab Government issued Notification Nos. 4891-S and
4892-S on July 8, 1949
1284
setting out the conditions regulating allotment by the
Custodian of the land which vested in him. The first
incident of allotment deducible from the notification is
hereditability of the rights of the allottee which
constitute quasi-permanent allotment. The statement of
conditions published under Notification Nos. 4891-S and
4892-S of July 8, 1949 was continued in force as the
Administration of Evacuee Property (Rural) 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 December 2, 1949 subject to certain
modifications and amendments. On repeal of the Central
Ordinance by Central Act XXXI of 1950, the aforesaid rules
were continued by virtue of section 58 of the Act as though
made under that Act. Later in exercise of the delegated rule
making power vested in the Provincial Government under
section 55 of the Central Act, the Punjab Government framed
rules dated August 29, 1951 entitled “Instructions for
review and revision of land allotment” which affected the
rules of July 8, 1949 only to the extent that they were
inconsistent with the earlier rules. A reference to the
earlier and subsequent rules would show that the later rules
do not concern any of the matters provided by the earlier
rules of 1949 (and 1950) excepting as regards resumption
which virtually is cancellation of allotment. The position
that emerges from the foregoing is that the rules of July,
1949 continued in force except to the extent of
inconsistency. (The next set of rules are those made under
Central Act XXXI of 1950). Then came the rules dated August
29, 1951 made by the Punjab Government in exercise of the
powers delegated to it by the Central Government under
section 55(1) of the Central Act XXXI of 1950. It will be
seen that the rules of August 29, 1951 are substantially the
same as those enumerated in clause (6) of July 8, 1949
notification as regards resumption and only supplement the
notification of July 8, 1949 as regards eviction in certain
contingencies. The rights and incidents enjoyed by the
allottees under the quasi-permanent scheme introduced by the
aforesaid notification of July 8, 1949 are catalouged at
page 823 of the aforesaid judgment of this Court in Amar
Singh v. Custodian, Evacuee Property, Punjab (supra). They
are:
“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 ensure to his
heirs and successors. (Definition of ‘allottee’).
3. His enjoyment of the property is on the basis
of paying land-revenue thereupon and ceases for the
time being.
1285
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 entiled 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;
(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;
1286
(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.
Then came the two Notifications Nos. SRO 129 dt. July 22,
1952 and SRO 351 dated Feb. 13, 1953 amending and recasting
sub-rule (6) of Rule 14 of the Central Rules of 1950 as
under:
“(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
competent authority 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;
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 he
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
1287
section 27 of the Act, within the prescribed time,
against an order passed by a lower authority on or
before 22nd July, 1952.”
Thus the power of resumption or cancellation of quasi-
permanent allotment was restricted and reduced.
The next legislative measure is the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 (Act No. XLIV of
1954), important provisions whereof which may be useful in
dealing with the first question may be noticed. Section 4
provides for the time, the manner and the form of making an
application for payment of compensation.
Section 10 of the Act inter alia lays down that where
any immovable property has been leased or allotted to a
displaced person by the Custodian under conditions published
by the Notification of the Government of Punjab No. 4891-S
or 4892-S 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 same conditions on
which he held the property immediately before the date of
the acquisition. It further provides that the Central
Government may for the purpose of payment of compensation to
such displaced persons transfer to him such property on such
forms and conditions as may be prescribed.
Section 12 provides:-
“12.(1) 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
sub-section (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 pro-
1288
perty shall vest absolutely in the Central Government
free from all encumbrances.
(3) .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
It may be noted that by virtue of Central Government
Notification No. S.R.O. 697 dated March 24, 1955, under sub-
section (1) of this section 12, all evacuee property
allotted under the Punjab Government Notification dated July
8, 1949 was acquired by the Central Government excepting
certain specified categories in respect of which proceedings
were pending.
Section 13 which deals with compensation for evacuee
property acquired says:
“13. 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 which provides for the constitution of
compensation pool runs thus:
“14. (1) For the purpose of payment of
compensation and rehabilitation grants to displaced
persons, there shall be constituted a compensation pool
which shall cosist of:
(a) all evacuee property acquired under section
12, including the sale proceeds of any such
property and all profits and income accruing
from such property;
(b) such cash balances lying with the Custodian
as may, by order of the Central Government,
be transferred to the compensation pool;
(c) such contributions, in any form whatsoever,
as may be made to the compensation pool by
the Central Government or any State
Government;
(d) such other assets as may be prescribed.
(2) The compensation pool shall vest in the
Central Government free from all encumbrances
and shall be utilised in accordance with the
provisions of this Act and the rules made
thereunder.”
Section 16 authorised the Central Government to appoint
Managing Officers or constitute Managing Corporations for
the custody, management and disposal of compensation pool so
that it may be effectively used in accordance with the
provisions of the Act.
1289
Section 40 enables the Central Government by
notification in the official gazette to make rules. Whereas
sub-section (1) of the section confers general power on the
Central Government to make rules to carry out the purposes
of the Act, sub-section (2) of the Section particularities
the subjects on which rules may be made by the Central
Government without prejudice to the general power contained
in sub-section (1). In exercise of this power, the Central
Government made rules called the Displaced Persons
(Compensation and Rehabilitation) Rules, 1955 and published
the same vide Notification dated May 21, 1955.
Rule 3 lays down that an application for compensation
may be made by a displaced person having a verified claim or
if such displaced person is dead, by his successor-in-
interest.
Rule 4 prescribes the from of application for
compensation.
Rule 16 says that compensation shall be payable in
accordance with the scale specified in Appendices VIII or IX
as the case may be.
Rule 49 as originally made ran thus:
“49. Compensation normally to be paid in the form
of land.
Except as otherwise provided in this chapter, a
displaced person having verified claim in respect of
agricultural land shall, as far as possible, be paid
compensation by allotment of agricultural land.
Provided that where any such person wishes to have his
claim satisfied against property other than
agricultural land, he may purchase such property by
bidding for it at an open auction or by tendering for
it and in such a case the purchase price of the
property shall be adjusted against the compensation due
on this verified claim for agricultural land which
shall be converted into cash at the rate specified in
Rule 56.”
In 1960, the following explanation was added to the
above rule:
“Explanation:-In this rule and in the other rules
of this chapter, the expression ‘agricultural land’
shall mean the agricultural land situated in a rural
area.”
Rule 51 lays down that the scale for the allotment of
land as compensation in respect of a verified claim for
agricultural land shall be
1290
the same as in the quasi-permanent land Allotment Scheme in
the States of Punjab and Patiala and the East Punjab States
Union as set out in Appendix XIV.
Rule 67AA provides:
“67A. Compensation to displaced persons from West
Punjab, etc., in respect of agricultural land.
Notwithstanding anything contained in this Chapter, a
displaced person from West Punjab or a displaced person
who was originally domiciled in the undivided Punjab,
but who before the partition of India had settled in
North-West Frontier Province, Baluchistan, Bhawalpur or
Sind, whose verified claim in respect of agricultural
land has not been satisfied or has been satisfied only
partially by the allotment of evacuee land under the
relevant notification specified in section 10 of the
Act shall not be paid compensation in any form other
than the transfer of acquired evacuee agricultural land
and rural houses and sites in the State of Punjab or
Patiala and East Punjab States Union in accordance with
the scales specified in the quasi-permanent allotment
scheme operating in those States:
Provided that if any person has been allotted land
in a State other than Punjab and his land claim has not
been satisfied fully, he may, for the remaining claim,
either be allotted land due to him in that State or
issued a Statement of Account which he may utilise for
purchase of property forming part of the compensation
pool or for adjustment of public dues.”
Rule 68 is to the following effect:-
“68. Grant of Sanad for transfer of agricultural
land- Where any agricultural land is transferred to any
person under these rules, the transferee shall be
granted a Sanad in the form specified in Appendix XV
(with such modifications as may be necessary in the
circumstances of any particular case), or the transfer
may be effected in any other manner in conformity with
the provisions of any local or special law relating to
transfer of agricultural land in force in the area
where such agricultural land is situated.”
Rule 71 casts an obligation on every person to whom any
immoveable property has been allotted by the Custodian under
any of the notifications specified in section 10 of the Act
to file a declara-
1291
tion in the form specified in Appendix XVI in the office of
the Settlement Officer or before the authorised officer in
the village concerned on the date and place notified under
sub-rule (4).
Rule 72(1) provides for an enquiry where the allottee
has no verified claim.
Rule 72(2) lays down 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 permanent ownership as
compensation and shall also issue to him a sand in the form
specified in Appendix XVII or XVIII, as the case may be with
such modifications as may be necessary in the circumstances
of any particular case granting him such right.
After the foregoing conspectus of the various
legislative and delegated legislative measures, let us see
whether the respondent had any right the enforcement of
which he could have sought by means of the above mentioned
writ petition. From the material on the record it is
abundantly clear that the respondent migrated to India from
West Punjab in the wake of the partition of the Sub
Continent in 1947 and that the settlement and rehabilitation
authorities satisfied themselves that he was entitled to an
allotment of 113 Standard acres and 3 units of land in lieu
of the land left behind by him in Bhawalpur. Since the
respondent migrated from Bhawalpur where he had indisputably
settled before the partition of the Sub Continent and his
verified claim in respect of agricultural land had been only
partially satisfied, he could not according to rule 67A of
the Displaced Persons (Compensation and Rehabilitation)
Rules, 1955, be paid compensation in any form other than by
transfer of acquired evacuee agricultural land in accordance
with the scale specified in the quasi permanent allotment
scheme. Consequently, it was the duty of the Settlement
officer under Rule 72(2) of the Displaced Persons
(Compensation and Rehabilitation) Rules, 1955 to pass an
order transferring the land allotted to the respondent in
permanent ownership as compensation and had to issue him a
Sanad in the prescribed form. It also appears that by virtue
of Notification No. 697 dated March 24, 1955 issued under
sub-section (1) of section 12 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1954, all evacuee
property allotted under the Punjab Government Notification
dated July 8, 1947 (excepting certain specified categories
in respect of which proceedings were pending) was acquired
by the Central Government. It is in view of this
unchallengable position that we
1292
find from the record particularly the copy of Dharam Chand
Patwari’s statement dated April 6, 1962 made before the
Assistant Settlement Commissioner (Annexure ‘A’ to the
petition at pages 24 and 25 of the printed Paper Book) that
allotment on permanent proprietary basis of 13 standard
acres and 3 1/2 units of land situate in village Bahmniwala
was made in favour of the respondent on March 1, 1957 that
Sanad evidencing allotment of the aforesaid 28 kila numbers
was issued in favour of the respondent on the same date;
that possession of the aforesaid area of 13 standard acres
and 3 1/2 units was handed over to the respondent on June
17, 1957; that entry regarding delivery of possession of the
aforesaid 28 kila numbers was made by the Patwari in the
Roznamcha Waqaati on June 17, 1957; that entries exist in
khasra girdawaries of village Bahmniwala regarding the
respondent’s possession of the aforesaid fields from June
17, 1957 upto Rabi 1960 when due to carelessness on the part
of the Consolidation Officer, Ratia, Rectangle No. 133 (kila
Nos. 4min, 5min, 6min, 7min, 14min, 15, 16, 17min, 24 and
25) and Rectangle No. 134 (kila Nos. 8min, 9min, 18min,
19min, 20, 21min and 22min) which were allotted in exchange
of the aforesaid 28 kila numbers were entered not in the
name of the respondent but in the kurrah of the Custodian
and subsequently due to the carelessness on the part of the
Naib Tehsildar-cum-Managing Officer were allotted to Madan
Mohan Singh and others.
In view of the foregoing, we are of the opinion that
the respondent has succeeded in establishing that permanent
proprietary allotment of the aforesaid 28 kila numbers of
village Bahmniwala was validily made in his favour vide
aforesaid allotment order dated March 1, 1957. Accordingly,
we have no hesitation in holding that the respondent had an
enforceable right in respect of the aforesaid 28 kila
numbers of village Bahmniwala. In view of our aforesaid
finding that permanent proprietary allotment of the
aforesaid 28 kila numbers was validly made in favour of the
respondent which conferred an enforceable right on him, the
answer to the second question cannot but be in the negative.
The view that we have formed is reinforced by the provisions
of section 19 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 and Rule 102 of the Displaced
Persons (Compensation and Rehabilitation) Rules, 1955 which
provide as under:-
“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
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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…… ”
102. Cancellation of allotments : “A managing
officer or a managing corporation may in respect of 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.”
Though in view of the above quoted provisions, it may,
in certain contingencies, be open to the Managing Officer or
Managing Corporation to cancel the allotment under the
aforesaid section 19 of the Displaced Persons (Compensation
and Rehabilitation) Act, 1954 read with Rule 102 of the
Displaced Persons (Compensation and Rehabilitation) Rules,
1955, it cannot be done unless an allottee is given a
reasonable opportunity of being heard. In the present case,
it is clear from the record that no action for cancellation
of allotment was taken under the aforesaid provisions of the
Act and the Rules. It is not understood how without
complying with the aforesaid provisions, the Naib Tehsildar-
cum-Managing Officer allotted the aforesaid parcel of land
which already stood allotted in the name of the respondent
to the appellants. The action on the part of the Naib
Tehsildar-cum-Managing Officer was evidently in flagrant
violation of the clear and unequivocal provisions of law.
Accordingly,
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we agree with the High Court that the impugned orders are
manifestly illegal, arbitrary, unjust and cannot be
sustained. However, taking into consideration all the facts
and circumstances of the case particularly the fact that the
appellants appear to have purchased the area in question
from Madan Mohan Singh for a huge sum of Rs. 40,000/- and
invested a considerable amount on the construction of a
house, we think that it will be eminently just and fair if
the appellants are allowed to retain Rectangle No. 134
comprising kila Nos. 8min, 9min, 10min, 11, 12, 13min,
18min, 19min, 20, 21min and 22min on which their house also
stands and Rectangle No. 133 comprising kila Nos. 4min,
5min, 6min, 7min, 14min, 15, 16, 17min, 24 and 25 is given
over to the respondent. The learned counsel for the parties
also agree to this course being adopted in the interest of
justice.
The respondent shall be at liberty to approach the
settlement authorities for allotment of some other suitable
land in lieu of Rectangle No. 134 comprising kila Nos. 8min,
9min, 10min, 11, 12, 13min, 18min, 19min, 20, 21min and
22min to make up the deficiency, if any, in the land to
which he may be entitled and if the latter i.e. the
settlement authorities find that the area already held by
the respondent if added to the area now ordered to be given
to him still falls short of his entitlement, they will be
free to allot him an area which will make up his unsatisfied
claim provided he is found otherwise authorised to hold the
said area on allotment or occupy the same under any other
law in force in the State. The allotment of the area to
which the respondent may be found entitled to shall, as far
as possible, be made in the vicinity of the area already
held by him. Subject this modification, the rest of the
judgment and order of the High Court will stand. The appeal
is disposed of accordingly.
P.B.R.
