State of Punjab v. Suraj Parkash Kapur, Etc.

SUBBA RAO, J.-This appeal by certificate is pre-Subba Rao J. ferred against the order of the Punjab High Court dated November 9, 1956, setting aside the order of the Consolidation Officer and directing him to proceed with the matter in accordance with law.

The respondents are members of a joint Hindu family and are evacuees from Pakistan. On March 3, 1950, in lieu of the lands left by the family in Pakis-tan, the Custodian of Evacuee Property allotted to the sa.id family 11 standard acres and 9 units of Grade 'A' land in Pati Kankra, Shahabad Estate in Tehsil Thanesar in Karna! District. The said units were valued as equal to 123 standard kanal,s and 18 standard marlas of 'A' Grade land. The family took possession of the said land, and, it is alleged, made improvements thereon. On July 28, 1954, the State Government issued a notification under s. 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), declaring its intention to make a scheme for the consolidation of the holdings. On April 30, 1955, a draft scheme was proposed by the Consolidation Offi-cer and published indicating, inter alia, that the res-pondents' family would be given 84 standard kanals consisting of 50 standard kanals and 7 standard marlas of 'A' Grade land, and 34 standard kanals and 1 standard maria of 'B' Grade land. The lands propos-ed to be substituted for the lands already allotted on quasi-permanent tenure to the respondents' family are admittedly of a lesser value than the land allotted to them earlier. The said consolidation was not made

in strict compliance with the provisions of the Act, but pursuant to administrative directions given to Stat~ of Punjab the Consolidation Officer by the State Government.

v. Broadly stated, under the said directions the Consoli-Suraj Patkash Kapur, etG. dation Officer was directed to take into consideration,

for the purpose of consolidation, the number of acres Subba Rao j. held by the evacuee and not the actual valuation at

site of the land allotted to him. The objections filed by the respondents were rejected by the Consolida-tion Officer. By an order dated August 6, 1958, the Settlement Commissioner confirmed the scheme pro-pounded by the Consolidation Officer. Meanwhile, the Displaced Persons (Compensation and Rehabilitation) Act (44 of.1954) became la.w; it came into force on October 9, 1954, i.e., after the Estate had been noti-fied for consolidation of holdings. On March 24, 1955, the Central Government issued a notification under s. 12 of the Displaced Persons Act ( 44 of 1954) acquir-ing all the evam.1ee properties to which that Act applied. This notification was issued before the scheme of consolidation was confirmed by the Settle-ment Commissioner. On February 23, 1956, the Cen-tral Government issued a sanad conferring proprie-tary rights on the respondents in respect of the lands allotted to them in 1950. This sanad was issued after the order of the Settlement Commissioner confirming the scheme of consolidation. On N ovembcr 9, 1955, i.e., before the said sanad was issued to them, the res-pondents filed a petition in the High Court of Punjab under Art. 226 of the Constitution praying for the issue of an appropriate writ to quash the said scheme of consolidation. The High Court by its final order dated E'ebruary l, 1957, allowed the said objection and issued a direction to the Consolidation Officer to pro-ceed wHh the matter before him in accordance with law.

Mr. Khanna, learned counsel for the State, raised before us the following two points: (1) The respon-dents had no legal right to maintain the petition under Art. 226 of the Constitution. And (2) the direc-tions issued by the State Government were validly issued and, therefore, the Consolidation Officer was within his rights to formulate the scheme on the basis of those instructions. Slat• of Punj•b

Re. (1). The existence of a right and the infringe-v. ment thereof are the foundation -0f the exercise of the Suraj ParAasll jurisdiction of the court under Art. 226 of the Consti-Kapur, tic. tution. The right that can be enforced under Art. 2!:!6 f, Subba Rao of the Constitution shall ordinarily be the personal or individual right of the applicant. It may be first considered whether the respondents had such a right on the date when they filed the petition under Art.

226 of the Constitution. They filed the petition on N"ovember 9, 1955, i.e., after the Central Government issued the notification acquiring all the evacuee properties and before it issued the sanad conferring proprietary rights on the respondents in respect of the lands allotted to them. The nature of interest of a displaced person in the properties allotted to him under the evacuee law has been authoritatively decid-ed by this Court in Amar Singh v. Custodian, Evacuee Property, Punjab('). There, Jagannadhadas, J., speak-ing for the Court, after an elaborate survey of the law on the subject, came to the conclusion that the interest of a quasi-permanent a.llottee was not pro-perty within the meaning of Art. 19(1)(f) and Art.

31(2) of the Constitution. But the learned Judge ma.de it clear that, notwithstanding the said conclusion an a.llottee had a. valuable right in the said interest. The learned Judge stated the legal position in the follow-ing words:

"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 recognized in the sta-tutory rules are important and constitute the essen-tial basis of a satisfactory rehabilitation and settle-ment 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

r96r courts by appropriate proceedings where there is usurpation of jurisdiction or abuse of exercise of State of Punjab statutory powers."

v.

Suraj Parkash It may be mentioned that the learned Judge in com-I<apur, etc. ing to the conclusion noticed all the relevant Acts on

the subject, including the Displaced Persons (Compen-Subba Rao ]. sation and Rehabilitation} Act, 1954 (44 of 1954) and

particularly s. 12 thereof. The observations of this Court indicate that notwithstanding such notification an evacuee has a valuable right in the property allot-ted to him, and that the said right is entitled to the protection of the constituted authorities and the courts. A perusal of the relevant provisions of Act 44 of 1954 demonstrates the correctness of the said observations.

Section 10. Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions published- (a) by the notification of the Government of Punjab in the Department of Rehabilitation No. 4891-S or 4892-S, dated the 8th July, 1949; or (b) by the notification of the Government of Patiala and East Punjab States Union in the Depart-ment of Rehabilitation No. SR or 9R, dated the 23rd July, 1949, and published in the Official Gazette of that State, dated the 7th August, 1949, and such property is acquired under the provisions of this 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, and the Central Govern-ment may, for the purpose of payment of compen-sation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.

Section 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 con-nected 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 Stat• of Pu>ljab-v. Central Government has decided to acquire such Suraj Par.ka.sb evacuee property in pursuance of this section. Kapur, et()_ A reference to r. 14(6) of the rules made under the J. Administration of Evacuee Property Act, 1950, will S14bba Rao also be useful in this context. Under that rule, the Custodian has no power to make any order after July 22, 1952, cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here. The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted to them in 1950. After July 22, 1952, the Custodian ceased to have any authority to cancel or modify the said allotme_nt.

After the notification issued by the Government under s. 12 of the Act, so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is with-out any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.

That apart, on February 23, 1956, the Central Government issued a sanad to the respondents con-ferring an absolute right on them in respect of the said properties. Though the sanad was issued sub.

sequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed 1961 into a full.fledged property right. In the oiroumstan-s ,, P . b ces of the case, the High Court was fully justified in 1011 ., ., UMJ• · takmg • . note o f t h at f a.ct. F rom w h a.tever perspect1v.e . sur•f Pa;Aash this case is looked at, it is obvious that the respon. K•P"" '''· dents have sufficient intertist in the property to sus.

tain their petition under Art. 2211 of the Constitution. Subb• Rao J. Re. (2). The second point has absolutely no legs

to stand upon. The East Punjab Holdings (Oonsolida tion and Prevention of Fragmentation) Act, 1948, was enacted, in the words of the long title annexed to the Act, to provide for compulsory consolidation of agricultural holdings and for the prevention of frag. mentation of agricultural holdings in the State of Punjab. Under s. 15 of the said Act, the scheme pr-e-pa.red by the Consolidation Officer shail provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensa-tion from any owner who is allotted a holding of greater market value than that of his original hold-ing. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property of equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of 'A' Grade land on a quasi-permanent basis by the Custodian and later confirmed by the Central Government, the consolidation pro. ceedings gave him only 50 kanals and 7 marlas of 'A' Grade land, and 34 kanals and I marla of 'B' Grade land. The area given under the consolidation pro. ceedings is admittedly of less value than that of thti holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any com. pensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provi-sion in the Act empowering the State Government to give any such instructions to the Consolidation 1961 Officer ; nor does any provision of tbe Act 1J011fer on the State Government any power to make rules Slate of Punjab or issue notifications to deprive owners of land v. of any part thereof or to direct the Consolidation Su~aj R~rkash Kapur, etc. Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the Subba Rao J provisions of the Act. That apart, no such statu-tory rule empowering the State Government to issue such instructions has been placed before us.

Both here as well as in the High Court, leamed counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court.

In the result, the appeal fails and is dismissed with costs.

Appsal dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. x96x 349of1959. Stale of Pu11jab

Appeal from the judgment and order dated Februa-v. ry 1, 1957, of the Punjab High Court, in Civil Writ Suraj Parkash Application No. 385 o f 1 9 55. Kapur, etc,

B. K. Khanna and D. Gupta, for the appellants.

The respondent did not appear.

1961. May 4. The Judgment of the Court was delivered by