Dalip Singh Naik vs Financial Commissioner Revenue, Punjab

D.S. Tewatia, J.

After the petitioner of the country, the petitioner as orphan minor of 2 or 3 years the parents and other members of the family having been allegedly murdered in the riots was brought by the Army from Pakistan along with his paternal grandmother. She died in 1950 and thereafter the petitioner was admitted in Gandhi Vanita Ashram where he remanded upto 1951 and thereafter he was put into Jain School, Panchkula, where he received education at the Government expense. After matriculation he joined the Army. On 14th October, 1974 he applied to the Managing Officer, Jullundur, for allotment of land in lieu of the land abandoned in Pakistan by the deceased brother and uncle of the petitioner of whom he was the sole heir. This application was dismissed by the Managing Officer vide order dated 25th March, 1975 for the reasons: (1) that the petitioner had not filed any mutalba claim and (2) that the application for the allotment was timebarred in terms of the provisions of rule 67A of the Punjab Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules) he having applied long after 31sr December, 1963 the last date by which such application could have been made in terms of the said rule. The petitioner challenged that order in appeal before the Settlement Commissioner, who vide his order dated 11th July, 1975 set aside the order dated 25th March, 1975 of the Managing Officer and remanded the case back to him for fresh decision in the light of his order. The Managing Officer vide his order dated 28th November, 1975 again dismissed the petitioner''s application which again led to fresh appeal to the Settlement Commissioner who again vide order dated 12th February, 1976 allowed the appeal and this time gave a direction to the Managing officer to pass an order effecting allotment of land to the petitioner. However, before this order could be given effect to by allotting the land in compliance thereof, the department suo motu made reference to the Chief Settlement Commissioner under section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short) the Act, 1978 (Annexure P.3.) allowed the reference and set aside the orders of the Settlement Commissioner dated 12th February, 1976. A revision Petitioner against this order at the instance of the petition under section 33 of the Act was dismissed by the Financial Commissioner vide order dated 20th February, 1979 (Annexure P.5). So the present petitioner at the instance of the petitioner.

It is not in dispute that the petition was an orphan minor of a tender age when with the help of the Army he crossed into India from Pakistan after the partition of India. It is also not in dispute that he is sole heir of his deceased brother and uncle in question. It is also not in dispute that on the basis of the Jamabandi entries received from Pakistan, the appellant''s brother and uncle were entitled to be allotted land measuring 0.111/4 standard acres and 1.6 standard acres respectively. The question that now falls for consideration is as to whether the petitioner is to be denied the allotment of the land in question on the ground that in view of the provisions of the rule 67A of the Rules his application was barred by limitation. Rule 67A of the Rules is in the following terms:

"Notwithstanding anything contained in this Chapter a displaced person from West Punjab or a displaced person who was originally in the undivided Punjab, but who before the partition of India had settled in North West Prontier Province, Baluchistan, Bahawalpur 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 the displaced person applies for payment of compensation in such form not later than the 31st day of December, 1963.

Provided further 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 duties."

A persual of the aforesaid rule would show that it envisage submission of application for allotment in regard to unsatisfied verified claims. The expression "verified claim" has been defined in section 2(e) of the Act which is in the following terms:

"2. (e) "verified claim" means any claim registered under the Displaced Persons (Claims) Act, 1950 (XLV of 1950) in respect of which a final order has been passed under that Act or under the Displaced Persons (Claims) Supplementary Act, 1954 (12 of 1954), and includes any claim registered on or before the 31st day of May, 1953 under the (East Punjab Act XII of 1948) or under the Patiala Refuges (Registration of Land) (Claims) Ordinance 2004 (Order 10 of 2004 Bk) and verified by any authority appointed for the purpose by the Government of Punjab, the Government of Patiala or the Government of Patiala and East Punjab States Union, as the case may be, which has not been satisfied wholly or partially by the allotment of any evacuee land under the relevant notification specified in section 10 of this Act, but does not include

(i) any such claim registered in respect of property held in trust for a public purpose of a religious or charitable nature;

(ii) except in the case of a banking company for the purpose of subclause (i) of clause (b)of subsection (3) of section 6, namely

(a) any such claim made by or on behalf of any company or association, whether incorporated or not;

(b) any such claim made by a mortgagee or other person holding a charge or lien on immovable property belonging to a displaced person in West Pakistan."

A reading of the aforesaid provision would show that there is the provision of East Punjab Refugees (Registration of Land) (Claims) Act, 1948 (East Punjab Act XII of 1948) which envisage registration of claims regarding land. The definition further envisage that only such claims would be considered as verified as had been registered under this Act i.e. East Punjab Refuges (Registration of Claims) Act, on or before the 31st day of May 1953. On that day the petitioner was hardly 5 or 6 years old and even his paternal grandmother had died by then. Obviously he was not in a position to have his claim registered by the aforesaid date with the result that he could not have a verified claims and since he did not have a verified claim so there was no question of any allotment being made to him even if he was to file an application of allotment before 31st December, 1963, the last date envisaged by rule 67A of the rules. Therefore to a case of this kind the provisions of rule 67A could not be made applicable. Petitioner''s case is of its own kind.

As to whether the existence of verified claim is a condition precedent to the satisfaction of a claim for the allotment of claim regarding land left behind in Pakistan is the question that requires consideration.

Much before the legislation was enacted, a scheme was prepared which is referred to in the Land Resettlement Manual, to which reference has been made by this Court in a judgment rendered on 28th February, 1963 in Civil Writ No. 1412 of 1962 (Shri BrijLal and another v. The Chief Settlement Commissioner, Chandigarh). In this case an indentical question arose before this Court. This Court had the following to say regarding the same:

"The principal reason which has impelled the Chief Settlement Commissioner to resort to the course of cancellation is that no claim having been made by Tidan Devi or Brij Lal an order for allotment of land in their favour could not be sustained. In my judgment, the order of the Chief Settlement Commissioner is not in accordance with law besides being inequitable and unjust. As has been found by Shri Raja Lal, Managing Officer in his order of 17th of February, 1959. Suraj Bhan had filed the claim on behalf of all the cosharers as a manager of the joint Hindu family. The evidence adduced by Suraj Bhan to submit the claim in respect of he total holding held by the successors of Lekh Ram. It is worthy of note that Mangal Chand did not file any separate claim though his share was mentioned in the claim itself. I do not see how the case of Tidan Devi and her son Brij Lal becomes different or distinguishabe from that of Mangal Chand and it is hardly fair that when Mangal Chand is allowed to retain the benefit of allotment of land for which he never filed a separate claim. Tidan Devi and her minor son Brij Lal should be denied this right. Mr. H.S. Wasu for the petitioner has invited may attention to many references in the Land resettlement Manual of Tarlok Singh in support of his contention that the submission of claim is not always an essential prerequisite for allotment of agricultural land. In dealing with the subject of comparison between claims and oral verification at page 44 of this treatise, it is mentioned that " persons whose areas were traced as a result of entries in jamabandis, but who had not themselves filed claims were shown in the fehrisht assamiwar at the end of the list prepared on the basis of the original claims and the verification, a reference being made in each case at the appropriate place in the alphabetically arranged "fehrist assamiwar" Thus a list of claimants could and indeed had to include persons who may not have submitted their claims but the area abandoned by them had been shown in the jamabandis. Reference may also be made to paragraph 32 at page 52 of the Manual that "Parcha" claims prepared on the basis of jamabandi entries and unaccompanied by claims or entries in the parcha tasdiq came to be known as `E'' category claims." It seems that when the revenue records came to be scrutinized and examined it became the duty of the authorities to prepare a list of claimants (fehrist assamiwar) although no claims had been made by them. In dealing with different classes of allotment it is possible without as envisaged that allotment actual claim being made. Reference may be made to Chapter III of the Manual, at page 75, where it is stated that "where an entry in the jamabandi in favour of an individual was not supported by a claim and the claimant had not been actually linked up with heirs of other claimants, the allotment was shown in a reserve category". Thus, the right of allotment was dependent on entries in the jamabandi and not on the actual claims made. Such was stated to be the recommendation of the Committee as pointed out in the Land Resettlement Manual at page 74 in these words:

"On the recommodations of the Committee appointed by the Joint Rehabilitation Board, the Board approved that allotments of land to individuals should be made not on the basis of verified claims but on the basis of copies of jamabandis received from Pakistan. If any exceptions were to be made, the orders of the Financial Commissioner, Rehabilitation, were to be obtained and the matter was to be brought to the notice of Government.

Mr. Lachhman Dass Kaushal, Deputy AdvocateGeneral has brought to my notice section 4 of the East Punjab Refugees (Registration of Land Claims) Act, 1948, under which "a refugee may submit to the Registering Officer on the prescribed form and supported by an affidavit an application for the registration of his claim in respect of his land abandoned by him, or which he has been made to abandon." This provision of law cannot be construed to mean that a claimant must submit a claim before entitling himself for allotment. Mention has also been made in the impugned order about the target date before which the claims had to be submitted. There is no statutory support for the fixation of such target date and as is clear from the various reference in the Land Resettlement Manual, provision has been made for allotments even though no claims have been preferred."

In view of what has been observed above by this Court, it has to be held that a displaced person even if he does not hold a verified claims, is entitled to be allotted land in lieu of the land left behind in Pakistan on the basis of the entries in the jamabandis received from Pakistan.

In the present case, as already observed earlier, the jamabandi received from Pakistan to show that petitioner''s decassed brother and uncle owned land in Pakistan. Such being the position, then there is no escape from conclusion that the petitioner was entitled to be allotted the land as claimed by him.

For the reasons aforementioned the impugned orders Annexures P.3 and P.5 are set aside and the petition is allowed. The respondents are directed to give effect to the order of the Settlement Commissioner dated 12th February, 1976 (Annexure P.1/A)and the order passed by the Managing Officer on 25th February, 1976 (Anne P.2/T) in pursuance thereof and put the petitioner in possession of the land within four months from today.