Mohinder Singh vs The State of Punjab and Others

K. Kannan, J.—The writ petition challenges the proceedings of the Government giving directions for allotment of nazool lands in rural areas. The impugned communication sent to the Deputy Commissioner in the State issued on 13.09.1989 allows for allotment of nazool lands to eligible landless scheduled caste families at the rate of 3 acres of irrigated land or 6 acres of unirrigated land or 9 acres of banjar land by draw of lots. In purported exercise of the procedure prescribed under the impugned communication, the State had sought to make an allotment of certain properties categorised as nazool lands in favour of respondents No. 4, 5, 8 and 9. The grievance of the petitioner is that the same property have been granted on lease in his favour through an auction held on 15.07.1989 for the year 1989-1990. The auction was for the grant of lease of specific Khasra numbers, which was claimed by the petitioner as already in his possession as a lessee. The property was to the extent of 59 bighas and 7 biswas. The contention is the transfer of nazool lands is Government through the Nazool Lands (Transfer) Rules, 1956 and rule 3 stipulates as under:

"3. Transfer of Nazool land

In a village where Nazool land available is less than 10 acres and is being leased to members of Scheduled castes, it may be allotted to the present lessees individually upto the limit of a unit of Nazool land provided they do not own any land of their own. Those who own some land, they may be allowed such area as would make up the unit of Nazool land as defined in the rules, when added to their own land, and the rest may be allotted to others.

(b) In the villages where nazool land available is 10 acres or more the scheduled castes land owning co-operative societies may be formed by the heads of scheduled castes families in accordance with these rules: and the Nazool land may be allotted to present lessees, i.e. members of Schedules Castes individually upto unit of Nazool land as defined in the rules provided they do not own any land of their own. Those who own some land they may be allowed such area as would make up the unit of Nazool land when added to their own area and the rest may be allotted to other members of Schedules Castes.

In the matter of allotment of Nazool land under sub-rules (a) and (b) above, the ex-servicemen Harijan shall be given preference over other Harijans cultivating Nazool land."

The petitioner would contend that in the face of express rules providing for allotment to present lessees individually upto specified unit of nazool lands defined under the rules, the procedure adopted by draw of lots through notification was not tenable. The allotment was said to have been made on 06.12.1989. A prayer in the writ petition also is that any allotment made to respondents No. 4 to 8 should be quashed and that it should be allowed only to the petitioner in his capacity as a lessee.

The contention in defence by the State is that the impugned communication is to be read as a modification of the Rules and the allotment made by draw of lots must be merely taken to be a procedure to carry out the scheme under the rule for optimal utilization of the nazool lands. The impugned directions cannot, therefore, be challenged. The State and allottees have a defence that the petitioner also had actually participated in the draw of lots held on 06.12.1989 and only after he failed in his attempt to secure the allotment, he concealed his actual participation and filed a writ petition.

The Nazool Lands (Transfer) Rules are with reference to properties which are escheated to the Government. The rules are framed for transfer of nazool lands under the Government Grants Act. The Rules have been published in the Gazette have statutory character for enforcement as law. There is no denying the fact that Rule 3 provides for an allotment of the property to a Cooperative Society and where no Cooperative Society could be formed, then it may be allotted to the present lessees or members of the scheduled castes upto the unit of the land defined in the rules. There is specific averment in paragraph 2 of the writ petition that the petitioner was a resident of the village Chalheri and the properties with specific Khasra numbers have been granted in lease for the year 1989-90 in auction held on 15.07.1989.

The written statement filed by the State specifically admits the averments contained in para 2 of the writ petition. It is, therefore, a matter of an admitted premise that on the relevant date when a draw of lots was made on 06.12.1989, there was already a subsisting lease in favour of the petitioner. The impugned communication dated 13.09.1989 specifically refers to rule 3 of the Nazool Land (Transfer) Rules, 1956. In para 2 of auction notice it is stated the nazool lands available in rural areas are to be allotted to eligible members of the scheduled castes. In para 3, it says it was decided that agricultural nazool land available in the rural areas should be allotted to eligible landless scheduled castes families and if it makes a reference for draw of lots, it must be taken as a procedure which is merely an attempt to carry out the transfer of properties for which the rules were made. The Rules set down the persons that are eligible. The manner of allotment could be either by auction or by draw of lots.

I have gone through the provisions of Rules, 1956 and the Rules have not specified anywhere the manner of said allotment. It merely identifies the persons who are eligible and the procedure for application for transfer from Cooperative Societies or individual member is not specifically set out. I will not go as far as to state that the impugned notice itself is illegal, for it does not modify any of the Rules. We have already examined Rule 3 and it specifies two classes of persons in order of priority, one agricultural cooperative societies formed by the heads of scheduled castes families and if it is not available to existing lessees. If a lease has therefore been granted as stated by the petitioner through an auction held on, 15.07.1989, then there was no scope of inviting applications and provide for allotment by draw of lots to any person. The allotment purported to have been made by draw of lots on 06.12.1989 would, therefore, require to be quashed not because the allotment of land itself is not possible through draw of lots but, because the eligible person obtaining a priority who is an existing lessee could not be defeated in his right for taking back possession under the lease already created.

The elucidation made would lead therefore the following conclusion:-

(i). The nazool lands could be transferred only in the manner contemplated under the Nazool Land (Transfer) Rules, 1956.

(ii). The two eligible classes of persons shall be in the order of priority cooperative societies of persons belonging to schedules castes families and if it cannot be found then it shall be existing lessees.

(iii). If in the manner of grant of lease it could be one such procedure after taking application in the manner contemplated under the relevant rules, which includes taking an application for transfer in form A of 1956. Form A has to be read with Rule 10 of 1956. On receipt of any application, the Collector shall cause an inquiry to be made at the instance of the cooperative society or an individual member and then it shall take steps for transferring the land in favour of such person or the society.

(iv). Grant of lease by open auction or draw of lots are two viable procedures to carry out the scheme of the Rules.

(v). If there is an existing lessee on the land till the property is actually resumed from the transferee, the grant of a fresh lease by draw of lots shall be impermissible.

I uphold the claim of the petitioner to hold as a lessee under the document on 15.07.1989 and draw of lots held even if the petitioner had participated in the same, Will be invalid. The allotment made to the respondents No. 4, 5, 8 and 9 are quashed.

Counsel appearing on behalf of the private respondents argues that the possession is actually was given to them and jamabandi entries are also in their name. The property shall be resumed by the State and handed over to the petitioner and the possession to be so granted to the petitioner cannot be disturbed till it is terminated in the manner known to law. The writ petition is allowed on the above terms.