Singha Mal vs The Union of India and others

Grover, J.—The Petitioner Singha Mal originally owned land partly in tehsil Narowal, District Sialkot and partly in Sargodha District now in Pakistan. The land in District Sargodha which was owned by him was in ''A'' grade village. After the partition of the country he was given temporary allotment in village Lambra in District Hoshiarpur. He claimed that he was entitled to an allotment of 38 standard acres and 5.3/4 units. He was allotted land on quasi-permanent basis at first in village Lambra but later on this allotment was cancelled and he was shifted to Chakowal and thereafter he was shifted to village Patti. It is alleged that all this was done without any notice to him. Respondents Parduman Singh and Ram Narain Singh owned land in a third grade village in the former Bhawalpur State. They claimed to be colonists of village Lambra. On 4th November 1949, these Respondents along with their third brother Kartar Singh were allotted land in village Begowal which is adjacent to village Lambra. There was another group of allottees headed by Amin Chand who had been allotted land in village Lambra. On 13th January 1950, Amin Chand etc. were allotted land in village Begowal and the Respondents were allotted land in village Lambra. The Petitioner filed an application before the Minister of Rehabilitation on 16th April 1950 representing that his allotment at Lambra be continued. The Minister made an order which is to be found at page 4 of the copy of the judgment of the Supreme Court in Civil Appeal No. 16 of 1959 dated the 26th February 1960, annexure ''C''. Pursuant to this order the Patwari made a report and the Revenue Assistant, Rehabilitation made his own endorsement on it. Thereupon the Minister passed another order to the effect that the Petitioner who was a temporary allottee within his area of allocation and grade had been disturbed from his temporary place of allotment without any justification. Parduman Singh, Ram Narain Singh and Kartar Singh were never temporary allottees of village Lambra and according to the rules, temporary allottees were given preference over the colonists in their original home village. The Director General, Relief and Rehabilitation was directed to see that the wrong decision which had been taken on some incorrect reports was reversed and the allottee was brought back to the place of his temporary allotment within his area of allocation. The Director General, Relief and Rehabilitation, Shri M.S. Randhawa, endorsed the said order to the Revenue Assistant, Rehabilitation, who ordered that according to the direction of the Minister allotment be made to the Petitioner in village Lambra and the Respondents and their brother be allotted land in some other village in accordance with their grade. The said officer restored the allotment of the Petitioner in village Lambra on 27-7-1950.

The Respondents Parduman Singh etc. made an application to the Financial Commissioner, Relief and Rehabilitation-cum-Custodian on 9th June 1951 praying that they should be allowed to retain their allotments in villages Begowal and Lambra Kangri. Mr. P.N. Thapar, the Custodian of the Evacuee Property made an order on 24th July 1951 saying that it was clear from the report of Deputy Commissioner, Hoshiarpur, that Bairoon Kangri was a separate Revenue Estate and had a separate Hadbast number and that is why, there was no reason for ousting the Petitioner from village Lambra where he had his temporary allotment with a view to accommodate the aforesaid Respondents and their brother. The Custodian rejected the petition and directed that the present Petitioner''s allotment should be restored in village Lambra and that the Respondents should be given their allotments elsewhere in accordance with the rules. All these facts are set out in the judgment of their Lordships (annexure ''C'').

Respondents Parduman Singh and Ram Narain Singh filed a petition under Article 226 of the Constitution in this Court challenging the order of the Minister as also the subsequent orders. This was rejected by the learned Single Judge on 29th May 1953. The Letters Patent Appeal, however, was allowed on 22nd April 1957 and the Respondents were granted a writ, quashing the order of the Minister and other subsequent orders which were in favour of the present Petitioner. The Petitioner filed an appeal before their Lordships of the Supreme Court which was decided on 26th February I960. Their Lordships held that the foundation of the order made by Mr. Thapar and the other authorities was furnished by the remarks made by the Minister and since that order was void and inoperative, all subsequent orders passed on it must share the same infirmity. The view of the Bench of this Court was consequently affirmed.

The Petitioner filed an application on 26th February 1960 before the Chief Settlement Commissioner saving inter alia that the Respondents in question had filed exaggerated claims in so far as that they were entitled to preference over him in village Lambra. On 25th February 1930, the Chief Settlement Commissioner ordered an enquiry and report by the Managing Officer and stayed the grant of permanent rights. On 22nd February 1981, however, the application was returned on the ground that the Chief Settlement Commissioner had no jurisdiction to dispose of the matter which bad been agitated in the application, which was consequently presented to the Managing Officer. In the meantime on 7th April 1960, Shri Prem Singh, Section Officer-cum-Managing Officer, Bahawalpur, made an order for the cancellation of the excess allotment of 9.3 standard acres to Parduman Singh in village Begowal. The order was as follows:

His remaining allotment of 2.14 3/4 standard acres in village Begowal and 10.121/2 standard acres in village Lambra is converted into permanent. Sanad of P/Rights will be issued by the Tehsildar concerned after observing due formalities.

As regards Respondent Ram Narain Singh, allotment to the extent of 9.3 standard acres was cancelled but the remaining allotment of his land in that village was ordered to be converted into permanent rights in his favour. On 30th October 1931, the Managing Officer disposed of the application of the Petitioner (annexure H). It was rejected and the prayer for the cancellation of the Respondent''s allotment was declined. The appeal preferred against that order by the Petitioner was dismissed by the Chief Settlement Commissioner on 29th June 1962. The order of the Managing Officer as also of the Chief Settlement Commissioner have been impugned in Civil Writ No. 1226 of 1962.

The Petitioner had also instituted appeals against the orders made by the Managing Officer on 7th April 1960. These appeals were filed before the Assistant Settlement Commissioner who accepted them on 6th October 1961. The Respondents preferred a revision petition before the Chief Settlement Commissioner, which was dismissed as infructuous on the 29th June 1962. The order made by the Chief Settlement Commissioner was as follows:

Heard. In view of the other matter of Shri Parduman Singh pending before me, this petition has become infructuous because whatever land is found entitled to Shri Parduman Singh in the other case, he will get permanent rights with respect to the same. This revision is, therefore, rejected as infructuous.

It appears that the two Respondents had also filed two appeals against the orders of the Managing Officer dated the 7th April 1960 before the Assistant Settlement Commissioner but these were transferred by the Chief Settlement Commissioner to his file. On 29th June 1962, they were accepted (annexure ''G''). According to the order made by the Chief Settlement Commissioner, the Managing Officer was to allow Respondent, Parduman Singh, to retain the entire allotment that he was holding in village Lambra and as regards the balance of the allotment to which he was entitled he was allowed to retain the same in village Begowal. This order has been impuened by means of Civil Writ No. 955 of 1962. My order will dispose of both these petitions which are under Article 226 of the Constitution.

In the main petition (Civil Writ No. 1226 of 1962), the points that have been raked by the Petitioner before me may be stated as follows:

(1) The Chief Settlement Commissioner did not decide the contentions which were canvassed before him on behalf of the Petitioner on the merits although he referred to them and he decided the whole case on the ground that the allotment was made as far back as 1950 and the claim of the Petitioner could not now be considered for the purpose of cancelling the allotment made in the name of Respondents in village Lambra. The Chief Settlement Commissioner had thus failed to give a judicial decision on the points which he was called upon to decide and to exercise jurisdiction in this behalf.

(2) The order of the Chief Settlement Commissioner proceeded on the assumption that since the allotment had been made in 1950 in favour of the Respondents, they were entitled to hold it and the same could not be cancelled under the law. He had committed a patent error in ignoring the provisions of Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act as also Rule 102 of the Rules framed under that Act.

(3) The Chief Settlement Commissioner had come to the conclusion that the Respondents were entitled to the protection of Section 10 of the aforesaid Act and for that reason also their allotment could not be cancelled. The provisions of Section 10 cannot be made applicable as admittedly the Respondents were not in possession of the land which had been allotted to them in village Lambra.

(4) The Chief Settlement Commissioner was bound to decide whether the Respondents were entitled to allotment and transfer of permanent rights in accordance with the quasi-permanent scheme which had been laid down in the Land Resettlement Manual and he had failed to follow the provisions of Rule 72 of the Rules in this respect.

(5) That the Managing Officer had wrongly applied and misinterpreted the general instructions contained in the Resettlement Manual compiled by Shri Tarlok Singh and had also followed certain executive instructions issued in 1961 which cannot override the provisions contained in the Rules. The Chief Settlement Commissioner failed to give any decision with regard to them.

Most of these contentions overlap and it is unnecessary to dispose them of seriatim. The essential question that came up before the Managing Officer was whether the allotment of the Respondents should be cancelled on the grounds that-

(a) the Petitioner was a sitting allottee in village Lambra, and

(b) the Respondents were inferior grade claimants.

The Managing Officer has stated in his order that it is a fact that the Respondents were not sitting allottees of village Lambra and as such were not entitled to quasi-permanent allotment, there, even though they were colonists of that village, in preference to an eligible sitting allottee. He also recongnized the fact that they are inferior grade claimants and village Lambra being of Grade I, they could not be allotted land there. Nevertheless, he proceeded to examine the question whether their allotments should be cancelled at the present stage or not and said: "As regards the disparity in grades, departmental instructions now are that allotments need not be cancelled at this stage but that the inferior grade allottees should be allowed to continue in superior grade villages provided they are prepared to undergo the prescribed cut. As such, I do not see any reason for cancellation of the allotments of the Respondents at this late stage, specially when the Petitioner failed to seek the remedy from an appropriate forum and the order obtained by him has been declared as illegal and without jurisdiction by the High Court as well as the Supreme Court." The Managing Officer next examined the second contention whether the. Petitioner who was a colonist of Sialkot district and belonged to Narowal tehsil could be said to have his initial allocation in tehsil Hoshiarpur according to the rules laid down in the land Resettlement Manual. It was held that although in the initial scheme, Narowal Tehsil was allocated to Hoshiarpur but it was later on changed. Before the Chief Settlement Commissioner, the learned Counsel for the Petitioner attacked the decision given by the Managing Officer on three grounds which are given in para 8 of the order, annexure I. It is apparent that all the points on the merits were agitated. The learned Counsel for the Respondents invited the Chief Settlement Commissioner to proceed on every assumption in favour of the Petitioner on the merits and that Officer disposed of the whole matter by holding that since the Respondents had got the allotment in 1950 and the Petitioner had simply managed to retain the possession by obtaining stay orders up to the present time, the Petitioner''s claim could not be considered for the purpose of cancelling the allotment in the name of the Respondents in village Lambra. It is thus apparent that the Chief Settlement Commissioner failed to decide the question whether the allotment of the Respondents in village Lambra deserved to be cancelled and could be cancelled under the statutory provisions and rules, and further did not decide whether according to various provisions on which the Managing Officer had relied, the Petitioner was debarred from claiming preference in village Lambra.

Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 confers powers on the Managing Officer to vary or cancel allotment of property which had been acquired under the Act. It is not disputed that the land in question has been so acquired. Sub-Section 1 of Section 19 is as follows:-

Notwithstanding anything contained in any contract or any other law for the 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 terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act.

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Rule 102 has been framed indicating the grounds on which cancellation of an allotment or lease can be ordered. It is not essential to refer to the grounds other than (d) which is "for any other sufficient reason to be recorded in writing." There can be no doubt that the Managing Officer had the power to cancel the allotment no matter whether it had been made before or after the commencement of the Act, No period of limitation has been prescribed in this respect. The Chief Settlement Commissioner can also in appeal or revision examine the record of a case and reverse any order made by the Managing Officer in this behalf. The contention raised on behalf of the Petitioner is that the Respondents were not sitting allottees in village Lambra and did not own ''A'' grade land in Pakistan and, therefore, they were not entitled to land in that village in accordance with the rules contained in the Land Resettlement Manual. If the Managing Officer or the Chief Settlement Commissioner had considered these rules properly, it was open to them to cancel the allotment of the Respondents under Rule 102 (d) read with Section 19. The Massing Officer did give the decision on the merits against the Petitioner but the Chief Settlement Commissioner considered either that it was beyond his powers to order cancellation of allotment since if had been made in 1950 or that he had some kind of wide discretion under the statutory provisions and the rules to decline to cancel the allotment if so much period had elapsed since it was made. To my mind the Chief Settlement Commissioner entirely ignored the aforesaid statutory provisions and also failed to give a proper decision on the question whether the allotment of the Respondents deserves to be cancelled. This would constitute an error apparent on the face of the record.

The learned Counsel for the Respondents has drawn my attention to various decisions of their Lordships of the Supreme Court, namely, Prem Singh and Others Vs. Deputy Custodian General, Evacuee Property and Others, Dunichand Hakim v. Deputy Commissioner (Deputy Custodian, Evacuee Property) Karnal AIR 1954 S.C. 950(sic), and Amar Singh Vs. Custodian, Evacuee Property, Punjab, in support of his submission that the instructions or rules contained in the Land Resettlement Manual are not binding in nature and do not have the force of law and therefore if the Chief Settlement Commissioner has not given any decision with regard to their applicability to the facts of the present case this would not justify interference by a writ of certiorari. In Amar Singh''s case, their Lordships had observed that the rights of an allottee were entitled to zealous protection of the constituted authorities according to administrative rules and instructions binding on them, and of the Courts by appropriate proceedings. Even though this Court will not interfere by certiorari if it is found that the rules contained in the Land Resettlement Manual have not been correctly applied, but where the matter has been decided on the erroneous assumption that the authorities concerned could not cancel the allotment because it had been made serveral years ago, there would be a clear error of law, inasmuch as Section 19 and Rule 102 to which reference has been made before, confer that power on the Managing Officer which is subject to the revisional or appellate power of the Chief Settlement Commissioner. When the rehabilitation authorities are called upon to decide in any appropriate proceeding whether allottee ''A'' has preferential right to a particular land or allottee ''B'' has a better right, that has essentially to be decided in accordance with the prescribed rules contained in the Land Resettlement Manual which has been described by their Lordships in Dunichand Hakim v. Deputy Commissioner (Deputy Custodian Evacuee Property), Karnal A. I.R. 1954 S.C. 950(sic) at page 151 as containing the policy decisions of the Government arrived at in respect of the settlement of land upon the refugees soon after partition. It has further been observed that this book has evidently the stamp of authority. No one could dispute that the administrative instructions and rules laid down in this Manual form the essential basis for rehabitation of the displaced persons. The rights of allottees are to be determined in accordance with these rules and instructions. The failure on the part of the Chief Settlement Commissioner to do so and to proceed on considerations which were not germane to the essential point would constitute an obvious error.

There is another error of apparent nature which has certainly affected the judgment of the Chief Settlement Commissioner. The following part of his order may be reprodeced --

The learned Counsel for the Respondents has also argued that now the property has been acqurred by the Central Government. The Respondents have got the protection of Section 19 of the Displaced Pocess(sic) (Compansation and Rehabitation) Act and they shall continue to be the allotteed of the land and their allotention(sic) on this ground also cannot be cancelled for the purposes of allotting the same in the Appellant, also agree with this contention.

Section 10 is, however in the following words-

Special procedure for payment of compensation in certain cases.-- Where any immoveable 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 1959, or

(b) by the notification of the Government of Patiala and East Punjab States Union in the Department of Rehabilitation No. 8R 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 Government may, for the purpose of payment of compensation, to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.

The language is clear enough and it is only where a displaced person is in possession of such property that this provision can afford any protection to an allottee continuing in possession. Emphasis has, however, been laid on the word ''held''. The learned Counsel for the Respondents has pointed out that it were the Respondents who ''held'' the allotment but the second condition of their being in possession which is implicit in the words "continue in possession" is admittedly not satisfied. In Major Gopal Singh and Others Vs. Custodian, Evacuee Property, Punjab, . their Lordships have laid down that it is implicit in the aforesaid section that the displaced person to whom land was allotted "held" the land and was in possession of such property on the date of the notification u/s 12(1) of the Act. Both these conditions must be satisfied, whereas in the present case, only one of them obtained with the result that the view of the Chief Settlement Commissioner was altogether erroneous.

The learned Counsel for the Respondents has forcefully urged that the Petitioner did not have resort to the proper remedies which were open to him under the Evacuees Laws including the Central Ordinance No. 27 of 1949 and the Administration of Evacuees Property Act of 1950, XXXI of 1950, and that he initiated proceedings before the Minister who had no jurisdiction in the matter as was ultimately held by the Bench of this Court and the Supreme Court and, therefore, the Chief Settlement Commissioner was justified in declining to cancel the allotment of the Respondents as also because a number of years had elapsed since 1950 when the allotment was originally made in favour of the Respondents. That consideration may have been valid if the Chief Settlement Commissioner had any discretion in the matter but he never applied his mind to the relevant provisions and the rules and even if it be assumed that he had some sort of discretion he never purported to exercise it after consideration of the facts and the statutory provisions. It is true that the Petitioner did not file any appeal or petition for revision under the aforesaid Evacuee Ordinance and Act but the very fact that he fought the matter up to the Supreme Courts shows that he bona fide believed that he was pursuing the correct remedy. I do not consider that this could be a good reason for declining to decide the case on the merits.

It may be mentioned that according to the learned Counsel for the Petitioner the rehabilitation authorities have ordered conferment of permanent rights on the Respondents in respect of the land in village Lambra. This, it is said, would attract the applicability of Rule 72 which is as follows:

Enquiry where the allottee has no verified claim.--(1) Where the allottee has no verified claim in respect of property other than agricultural land, the Settlement Officer shall, on receipt of a declaration under Rule 71, verify the particulars specified therein in the presence of allottee or his authorised agent, and determine the public dues outstanding against such allottee.

(2) If the Settlement Officer is satisfied that the allotment is in accordance with the quasi-permanent allotment scheme, he may pass an order transferring the (property) allotted to the allottee in permanent ownership as compensation and shall also issue to him a sanad in the form specified in Appendix XVII or XVIII as the case may be with such modifications as may be necessary in circumstances of any particular case granting him such rights.

The learned Counsel for the Respondents points out that this rule applies only if a declaration has been made by the allottee under Rule 71 and that no such declaration has been made so far, and when the Respondents file such a declaration, an enquiry will have to be made under the rules. Then Sub-rule 2 may become applicable but the Settlement Officer will have to satisfy himself that the allotment in favour of the Respondents is in accordance with the quasi-permanent allotment scheme and then pass an order transferring property to the allottees in permanent ownership. It is unnecessary to pronounce upon the correctness or otherwise of the contention, which has been raised, based on Rule 72 because that matter has yet to come up, according to the learned Counsel for the Respondents, before the authorities concerned.

For all these reasons, I allow Civil Writ No. 1226 of 1962 and quash the order of the Chief Settlement Commissioner dated the 29th of June 1962. In the other Writ Petition No. 955 of 1962, it is common ground that in view of the decision given by me in Civil Writ No. 1226 of 1962, the order of the Chief Settlement Commissioner dated the 29th June 1962, annexure ''F'', has to be quashed and is hereby quashed. In exercise of my powers conferred by Article 227 of the Constitution, I direct that the Chief Settlement Commissioner should rehear and redecide the appeals or revisions in both the cases on the merits and in accordance with law, I should like to make it clear that if the Respondent Parduman Singh is found entitled to retain the allotment in village Lambra ; the allotment which he holds at present in village Lambra shall not be disturbed. On the joint request of the counsel for both the parties. I direct that these appeals or revisions will be reheard and redecided by the Deputy Secretary, Rehabilitation, Jullundur. In the circumstances, I make no order as to costs.