Full Judgment Text
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PETITIONER:
HOSHNAK SINGH
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT27/02/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SHINGAL, P.N.
CITATION:
1979 AIR 1328 1979 SCR (3) 399
1979 SCC (3) 135
CITATOR INFO :
RF 1981 SC 960 (12)
D 1984 SC 463 (5)
ACT:
Displaced Persons (Compensation & Rehabilitation) Act,
1954-Ss. 10 & 12-Scope of.
Res judicata-Principles analogous to res judicata when
could be invoked.
HEADNOTE:
A part of the land allotted to the appellant on quasi-
permanent basis as a displaced person from West Pakistan was
acquired by the Government. When the question of payment of
compensation in respect of the land acquired was pending,
the Displaced Persons (Compensation and Rehabilitation) Act,
1954 was passed which enabled holders of quasi-permanency
rights to obtain permanent settlement pursuant to which
permanent settlement in respect of acquired land was made in
favour of the appellant.
Alleging that the land allotted to the appellant was
not allottable on a permanent basis, the Chief Settlement
Commissioner, by his order dated 17th March, 1961, cancelled
the allotment. The appellant’s petition questioning the
correctness of this decision was dismissed by the High Court
in limine.
Thereupon the appellant preferred a petition under s.33
of the Act to the Joint Secretary to the Government of
India, Rehabilitation Department, challenging the order of
the Chief Settlement Commissioner. By his order dated 29th
September, 1964 the Joint Secretary rejected the petition
pointing out that the cancellation of the appellant’s
permanent settlement rights in the land was in accordance
with law and that no interference was called for.
The appellant filed a writ petition in the High Court.
In rejecting the appellant’s writ petition impugning the
order dated 29th September, 1964 the High Court was of the
view that it was barred by principles analogous to res
judicata because if that petition were allowed, it would in
effect, amount to cancellation of the order dated the 17th
March, 1961 which became final as against the appellant on
dismissal of his first petition.
Allowing the appeal,
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^
HELD: 1(a) Where a petition under Art. 226 is dismissed
in limine without a speaking order, such a dismissal would
not constitute a bar of res judicata to a subsequent
petition on the same cause of action. When a petition is
dismissed on the ground that the petitioner has an
alternative remedy by way of appeal or revision under a
statute and on failure to get relief after pursuing the
remedy by way of appeal or revision, he moved the High
Court, it would be incorrect to dismiss the petition on the
ground that the order made by the revisional authority had
the effect of merging the original order with the order of
the revisional authority, and that the challenge on the
fresh cause of action to the order of the revisional
authority would of necesity be a challenge to the original
order also and that therefore the petition would be barred
by principles analogous to res judicata as the first order
had become final. [407C-E]
400
Daryao & Ors. v. State of U.P. & Ors. [1962] 1 SCR 574;
Virudhunagar Steel Rolling Mills Ltd. v. The Govt of Madras,
[1968] 2 SCR 740; Tilokchand Motichand & Ors. v. H. B.
Munshi & Anr., [1969] 2 SCR 824; referred to.
In the instant case in the first writ petition the
appellant questioned the correctness of the order of the
Chief Settlement Commissioner dated 17th March, 1961 without
claiming therein any compensation for the land acquired.
That having been dismissed in limine he invoked the
revisional jurisdiction under s. 33 of the Act. When that
petition was dismissed by the revisional authority he
preferred the second writ petition. What he prayed in the
second petition was a direction quashing the order dated
29th September, 1964 of the Joint Secretary to the
Government of India. The High Court was, therefore, in error
in rejecting the second petition on the sole ground that the
order of 17th March, 1961 merged into the order of 29th
September, 1964 and in substance the challenge was to the
order dated 17th March, 1961 which had become final. [408 A-
B]
(b) Secondly, if the claim for compensation was not
raised in the first petition but was specifically raised in
the second, it would not be dismissed on the ground that it
was barred by principles analogous to res judicata. [408 D]
2(a) It has been well established by a long line of
decisions of this Court that after July 22, 1952 the
Custodian had no authority to cancel or modify quasi-
permanent allotment, that the allottes of these rights could
not be dispossessed at the whim or caprice of the Custodian,
that the quasi-permanent rights were heritable and that the
holders were entitled to permanent settlement by issuance of
sanad. Added to this was the fact that r. 14(6) of the
Administration of Evacuee Property (Central) Rules, 1950 as
amended from July 22, 1952 restricted the power of the
Custodian to resume or cancel quasi-permanent rights of the
allottees except in the circumstances mentioned in the
subrule and no material is placed on record to show that the
Custodian had exercised his power under r. 14(6) of the
Rules. [411 D-E]
P. D. Sharma v. State Bank of India, [1968] 3 SCR 91;
Amar Singh v. Custodian, Evacuee Property, Punjab, [1957]
SCR 801; State of Punjab v. Suraj Prakash Kapur, etc.,
[1962] 2 SCR 711; Joginder Singh & Ors. v. Deputy Custodian
General of Evacuee Property, [1962] 2 SCR 738 at 740;
referred to.
(b) Nor again is there any material to show that the
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Custodian had the power to cancel the allotment under the
State Rules. It was not shown that the State Government had
framed any re-settlement scheme and that the allotment was
cancelled for that purpose. [412 H]
3 (a) Under the Evacuee Property Act, 1950 property
which was declared us evacuee property vested in the
Custodian and was allotted to displaced persons on a quasi-
permanent basis. To obviate difficulties caused by continued
unextinguished title of the evacuee, the 1954 Act was
passed, under s. 12(2) of which the right, title and
interest of any evacuee in the evacuee property specified in
the notification issued under the section stood extinguished
and the evacuee property would vest absolutely in the
Central Government. Evacuee property acquired in this manner
formed part of the compensation pool. Therefore, the
appellant’s property which was acquired in 1953, much before
the coming into force of the 1954 Act, could not have become
part of the compensation pool. [413 G-H]
401
(b) Even assuming that though the property was taken
over by the Central Government in 1953 evacuee interest in
it had not been extinguished till a notification under s. 12
of the 1954 Act had been issued and that on the issue of the
notification it became part of the compensation pool, the
consequence envisaged by s. 10 of the 1954 Act must ensue.
It is that so long as the property remained vested in the
Central Government it shall continue in possession of the
person to whom it was allotted on the same conditions on
which he held the property immediately before the date of
acquisition. [914 C-D]
In the present case if the property had been taken over
by the Central Government much before the 1954 Act came into
force neither s. 12 of the 1954 Act nor r. 49 would be
attracted. If on the other hand the evacuee interest in the
property came to be extinguished on the issue of a
notification under s. 12, s. 10 would be attracted and the
appellant would be entitled to hold the property till it
continued to vest in the Central Government under s. 12. In
other words in either event he would be entitled to
compensation. [415 C-D]
(c) Nor again is it correct to say that it was a fresh
allotment under s. 10 of the 1954 Act. The land was allotted
in 1949 and s. 10 does not purport to make a fresh
allotment. [415 A]
4(a) The whole of chapter VIII of the 1955 Rules (which
includes rr. 49 to 69) would not apply because the land
allotted was agricultural land and the allotment was made
under the notification of the Government of Punjab dated 8th
July, 1949. [416 C]
(b) Once chapter VIII of the 1955 Rules and especially
r. 49 which provides for payment of compensation in the form
of land is out of the way, there is nothing in the Act which
would debar a quasi-permanent allottee asking for
compensation in cash and the Govenment paying it. Moreover
on the former occasion the appellant was paid compensation
in cash for a part of the land acquired from him. [417 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2082 of
1969.
Appeal by Special Leave from the Judgment and Order
dated 14-2-1969 of the Punjab and Haryana High Court in
L.P.A. No. 103/68.
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R. S. Narula, S. K. Mehta, T. S. Doabia, P. N. Puri and
K. R. Nagaraja, for the Appellant.
Girish Chandra for Respondent No. 1.
Hardev Singh and R. S. Sodhi for Respondents 2-5.
The Judgment of the Court was delivered by
DESAI, J.-This appeal by special leave arises from the
dismissal of the Civil Writ Petition filed by the present
appellant by a learned single Judge of the Punjab & Haryana
High Court as also dismissal in limine of the Letters Patent
appeal preferred by him.
Appellant is a displaced person from West Pakistan. On
his migration to India he was allotted on quasi-permanent
basis land admeasuring 321/2 standard acres in village
Daulatpur, Tehsil Pathankot,
402
District Gurdaspur. First respondent Union of India acquired
land admeasuring 1243 canals, 5 marlas which included 15
acres of land alloted to the appellant, for constructing a
railway line. According to the appellant he was paid cash
compensation for the same. First respondent further acquired
in 1950 some land for construction National Highway from
Jammu to Jullundur and the acquistion included a portion of
the land allotted to the appellant and along with other
allottees he was paid cash compensation for the same. First
respondent wanted an open plot of land for setting up a
housing colony for rehabilitating some refugees from Mirpur
(Kashmir) and in all it took possession of land comprising
7.88 acres of non-evacuee land and 6.64 acres of evacuee
land. This acquisition included land admeasuring 1 standard
acre and 151/2 units of land allotted to the appellant.
Possession of the land including the land of the appellant
was admittedly taken over in July 1953. Since then the
appellant has been requesting the first respondent and other
competent authorities for payment of compensation for the
same. In the mean time after the introduction of the
Displaced Persons (Compensation and Rehabilitation) Act,
1954, (’1954 Act’ for short), allotment of land to appellant
which was till then on quasi permanent basis was converted
into permanent basis. As the appellant was clamouring for
compensation for the land taken from him, the Chief
Settlement Commissioner, Punjab, made an order on 17th March
1961, Annexure ’C’, whereby a reference made from the
Evacuee Property Department was accepted and the permanent
settlement rights conferred on the appellant in respect of 1
standard acre and 151/2 units of land were cancelled on the
ground that there already existed houses over that portion
of the land and the land was described as ghair mumkin abadi
and was not allottable on permanent settlement, as
agricultural land against the verified claim of the
appellant. The appellant questioned the correctness of this
order in Writ Petition No. 559/61 in the High Court which
was dismissed in limine on 22nd March 1961 and which has led
to a contention on behalf of the respondents that the
subsequent writ petition from which the present appeal
arises is barred by the principles analogous to res
judicata. After the dismissal of the aforementioned writ
petition the appellant approached the Financial Commissioner
(Rehabilitation Department), Chandigarh, as per his
representation Annexure ’D’ dated 15th March 1963 requesting
him to pay cash compensation for the land taken over by the
first respondent which till such taking over was held by the
appellant on quasi permanent allotment. On receipt of this
representation the appellant was directed as per Annexure
’E’ dated 25th April 1963 to appear before the Financial
Commissioner (Taxation) on 16th March 1963 at Chandigarh.
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The appellant accordingly appeared before the
403
Financial Commissioner (Taxation) and represented his case
for cash compensation. Subsequent thereto, Secretary to the
Government of Punjab, Rehabilitation Department, wrote to
his counterpart in the Central Government requesting the
first respondent to concur with the decision of the Punjab
Government for payment of cash compensation to the appellant
adding that the land held by the appellant on quasi
permanent basis was taken over for the purpose of the first
respondent and that as the area involved was less than 2
acres, the decision to pay cash compensation in respect of
such area arrived at in the meeting held between the
officers of the Punjab Government and the Ministry of
Rehabilitation on 27th August, 1957 would govern the case.
Presumably in response to this communication from the Punjab
Government the then Home Minister wrote a demi official
letter to the then Chief Minister of Punjab in which it was
admitted that the land allotted to the appellant was in
rural areas and a part of it was required later on for
public purpose and that in view of the decision arrived at
the meeting on 27th August, 1957 the appellant would be
entitled to cash compensation and requested the Chief
Minister to process the case accordingly. Thus, even though
both the Governments agreed in their inter-departmental
communications that the appellant would be entitled to cash
compensation, nothing tangible came out with the result that
the appellant preferred a petition under s. 33 of the 1954
Act challenging the order dated 17th March 1961 of the then
Settlement Commissioner cancelling the permanent settlement
rights conferred upon the appellant. This application was
rejected by the Joint Secretary to the Government of India
observing that the cancellation of the permanent settlement
rights was in accordance with law and no interference was
called for. Thereafter the appellant filed the writ petition
from which the present appeal arises.
After the writ petition was filed and rule nisi was
issued, a return was filed as per the affidavit of one R. C.
Aggarwal, Under Secretary to Government of Punjab,
Rehabilitation Department, presumably on behalf of all the
respondents which undoubtedly amongst others, include the
Union of India, the first respondent, and the State of
Punjab, the second respondent. It must be specifically
mentioned that the Union of India did not file any separate
return and accepted the return filed by and on behalf of the
State of Punjab and other officers of the Punjab Government.
There are certain averments in this return which must be
noticed. Appellant is a displaced person and he was allotted
32-1/2 standard acres of land on quasi permanent basis is in
fact admitted. It is equally admitted that the land which
was taken over for setting up a colony for rehabilitation of
some families from Kashmir included one
404
standard acre and 15-1/2 units of land which was till then
held by the appellant and that the land was taken over in
July 1953. It was contended that when land is allotted on
quasi permanent basis, the allotment can be cancelled and
the land can be resumed and that when such a resumption
takes place the allottee is only entitled to compensation in
the form of land and not in cash. It was also contended that
the cancellation of the permanent settlement rights was just
and legal because the conferment was the result of a fraud
between the appellant and some officers of the Punjab
Government and proceeded on the erroneous assumption that
the land was used as agricultural land though in fact it can
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be appropriately described as ghair mumkin abadi. The manner
in which the preliminary objection was raised at the hearing
of the writ petition that in view of the dismissal of the
earlier petition bearing on the same subject the present
petition is barred by the principles of res judicata was not
in terms taken up in the return filed on behalf of the
respondents. The High Court, however, appears to have
permitted the respondents to raise that contention.
The learned single Judge held that the effect of
dismissal of the earlier petition filed by the present
appellant was that the order dated 17th March, 1961 by which
permanent settlement rights conferred on the appellant were
cancelled became final and if the present petition is
allowed the only thing the court would have to do would be
to cancel the order dated 17th March, 1961 which has become
final against the appellant and, therefore, the petition is
barred by the principles analogous to res judicata.
Mr. Girish Chandra for the first respondent and Mr.
Hardev Singh for the remaining respondents urged that the
appeal must fail for the same reason for which the earlier
petition of the appellant was dismissed inasmuch as the
cause of action for both the petitions being the same, the
subsequent petition would be barred by the principles
analogous to res judicata.
In the earlier petition the appellant questioned the
correctness of the decision dated 17th March 1961 by which
permanent settlement rights conferred on the appellant for
the land held by him on quasi permanent basis, including the
land admeasuring 1 standard acre and 15-1/2 units taken over
by the first respondent in Joly 1953, and the appellant in
the earlier petition did not claim any cash compensation for
the land taken over by the first respondent. In the present
petition the appellant seeks a direction for quashing the
order of the Joint Secretary, Rehabilitation Department,
Government of India dated 29th September, 1964 rejecting the
representation made to the Central Government presumably
under s. 33 of the 1954 Act question-
405
ing the correctness of the order dated 17th March 1961.
Under s. 33 the Central Government has power to call for the
record of any proceeding under the Act and to pass such
order in relation thereto as in its opinion the
circumstances of the case require and as is not inconsistent
with any of the provisions contained in the Act or the rules
made thereunder. Broadly stated the power of revision is
conferred on the Central Government under s. 33. Appellant
invoked this revisional jurisdiction under s. 33 against the
order dated 17th March 1961 which he challenged in the first
petition. After the dismissal of the first petition he
preferred revision application under s. 33 and when this
revision petition was dismissed he preferred the second
petition. The High Court was of the view that the order
dated 17th March 1961 merged into the order dated 29th
September 1964 passed by the Central Government while
dismissing the revision application of the appellant and,
therefore, if now the petition is allowed it would have the
effect of setting aside the order dated 17th March 1961
which in view of the dismissal of the earlier petition of
the appellant had become final. The High Court is clearly in
error in reaching this conclusion.
The earlier petition was dismissed by a non-speaking,
one word, order ’dismissed’. The High Court may as well
dismiss the petition in limine on the ground of delay or
laches or on the ground of alternative remedy. The second
petition after pursuing the alternative remedy would not be
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barred by the principles analogous to res judicata. More
often a petition under Article 226 is dismissed on the
ground that before invoking the extraordinary jurisdiction
of the High Court, if the petitioner has an alternative
remedy under a statute under which the right is claimed by
the petitioner, the Court expects the petitioner to exhaust
the remedy and in such a situation the petition is dismissed
in limine.
If after preferring an appeal or revision under the
statute under which the right is claimed by the petitioner a
petition under Article 226 is filed irrespective of the fact
that the revision or appeal was dismissed and the original
order which was challenged in the first petition had merged
into the appellate or revisional order, nonetheless the
second petition in the circumstances would not be barred by
the principles analogous to res judicata because the cause
of action is entirely different and the merger of the order
cannot stand in the way of the petitioner invoking the
jurisdiction of the High Court under Article 226.
In the leading case of Daryao & Ors. v. State of U.P. &
Ors.(1) this Court in terms said that if the petition filed
in the High Court under
406
Article 226 is dismissed not on the merits but because of
the laches of the party applying for the writ or because it
is held that the party had an alternative remedy available
to it then the dismissal of the writ petition would not
constitute a bar to the subsequent petition under Art. 32
except in cases where the facts found by the High Court may
themselves be relevant even under Art. 32. If a writ
petition is dismissed in limine and an order is pronounced
in that behalf whether or not the dismissal would constitute
a bar would depend upon the nature of the order. If the
order is on the merits it would be a bar; if the order says
that the dismissal was for the reason that the petitioner
was guilty of laches or that he had an alternative remedy it
would not be a bar except in cases indicated in the
judgment. Then comes an observation which may better be
quoted:
"It the petition is dismissed in limine without
passing a speaking order then such dismissal cannot be
treated as creating a bar of res judicata. It is true
that, prima facie, dismissal in limine even without
passing a speaking order in that behalf may strongly
suggest that the Court took the view that there was no
substance in the petition at all, but in the absence of
a speaking order it would not be easy to decide what
factors weighed in the mind of the Court and that makes
it difficult and unsafe to hold that such a summary
dismissal is a dismissal on merits and as such
constitutes a bar of res judicata against a similar
petition filed under Art. 32".
In Virudhunagar Steel Rolling Mills Ltd. v. The
Government of Madras,(1) rejecting the contention that if
the petition under Art. 226 is dismissed without issuing a
notice to the other side though by a speaking order such a
dismissal would not bar the subsequent petition for same
cause of action or for the same relief, it was observed that
this Court in Daryao’s case(2) did not mean to lay down that
if the petition is dismised in limine without notice to the
opposite side it would not bar a subsequent petition. This
Court only ruled that if the petition is dismissed in limine
but with a speaking order which order itself indicates that
the petition was dismissed on merits, the absence of notice
to other side by itself would not be sufficient to negative
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the plea of res judicata in a subsequent petition in respect
of the same cause of action. However, while negativing the
contention on the facts of the case this Court reaffirmed
that if the petition is dismissed in limine without passing
a speaking order than such a dismissal cannot be treated as
creating a bar of res judicata. Similarly in Tilokchand
Motichand & Ors. v. H. B.
407
Munshi & Anr.,(1) a majority of the Judges affirmed the
ratio in Daryao’s case (supra) that if a petition under Art.
226 is dismissed not on merits but because an alternative
remedy was available to the petitioner or that the petition
was dismissed in limine without a speaking order such
dismissal is not a bar to the subsequent petition under Art.
32. It must follow as a necessary corollary that a
subsequent petition under Art. 226 would not be barred by
the principles analogous to res judicata. Re-affirming the
view taken on this point in Daryao’s case, in P. D. Sharma
v. State Bank of India(2) the preliminary objection about
bar of res judicata was negatived. It is, therefore,
incontrovertible that where a petition under Art. 226 is
dismissed in limine without a speaking order such a
dismissal would not constitute a bar of res judicuta to a
subsequent petition on the same cause of action, more so,
when on the facts in this case it appears that the petition
was dismissed presumably because the petitioner had an
alternative remedy by way of a revision petition under s. 33
of the 1954 Act which remedy he availed of and after failure
to get the relief he moved the High Court again for the
relief. It would be incorrect in such a situation to dismiss
the petition on the ground that the order made by the
revisional authority dismissing the revision petition had
the effect of merging the original order against which the
revision was preferred with the order made by the revisional
authority and, therefore, the challenge on the first cause
of action to the order made by the revisional authority
would of necessity be a challenge to the original order also
and the petition would be barred by the principles analogous
to res judicata as the rest order had become final. The High
Court was clearly in error in dismissing the petition on
this short ground.
There is yet another fallacy in the approach of the
High Court while dismissing the petition as being barred by
the principles analogous to res judicata because the second
relief claimed by the appellant in the second petition was
never claimed in the first petition and is an independent
and separate relief which the High Court was invited to
grant if the appellant was otherwise entitled to it. The
appellant, by prayer (b) of the petition, sought a direction
that the respondents be ordered to pay cash compensation to
the appellant for the area of land which had been taken over
by the respondents. It is nobody’s case that such a prayer
was ever made in the first petition. In the first petition
the grievance of the appellant was that the order dated 17th
March, 1961 made by the Chief Settlement Commissioner
cancelling the permanent settlement rights conferred on the
appellant in respect of his land was illegal and invalid.
There was no claim for
408
compensation. A claim for compensation was being separately
pursued by the appellant and he did not invoke the
jurisdiction of the High Court praying for a direction to
pay him compensation. In the second petition from which this
appeal arises there is a specific prayer for compensation
and Mr. Narula, learned counsel for the appellant, stated
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that the appellant is not interested in the first prayer
questioning the validity of the order made by the Joint
Secretary to Government of India dated 29th September 1964
affirming the order dated 17th March, 1961 which was the
subject-matter of the first petition. Now, if claim for
compensation was not raised in the first petition and if it
is specifically raised in the second petition on the
allegation that as the land of the appellant has been taken
over by the Government for its own use, if compensation is
not paid it would be deprivation of property without
compensation and would be denial of fundamental right to
hold property, it is unthinkable that the present petition
for this particular relief can ever be dismissed in the
facts of this case on the ground that it is barred by the
principles analogous to res judicata. For this additional
reason the order of the High Court is unsustainable.
And now to the facts of the case. The appellant is
admittedly a displaced person to whom 32-1/2 standard acres
of land was allotted and the allotment admittedly was on
quasi permanent basis. It is again an admitted position that
in July 1953 the first respondent, Union of India, took
possession of 1 standard acre and 15-1/2 units of land from
the land allotted to the appellant on quasi permanent basis
for its use, viz., for setting up a colony. Appellant
contends that he must be paid compensation in cash for the
land taken over from him. Respondents on the other hand
contend that an allotment of land on quasi permanent basis
could be resumed by the first respondent when the land was
required for its own use and on such resumption the
appellant would only be entitled to allotment of an
equivalent area of land but in no case the appellant would
be entitled to compensation in cash.
This necessitates examination as to what is the
interest of the appellant in the land allotted to him on
quasi permanent basis and when and in what circumstances and
for what purpose it can be resumed or allotment cancelled
and if so resumed, to what relief the appellant is entitled
to.
There has been a flood of enactments on the taking over
and administration of evacuee property as also compensation
payable to displaced persons. This Court in Amar Singh v.
Custodian, Evacuee
409
Property, Punjab,(1) exhaustively and stage by stage
examined the measures taken by the Central and State
Governments first for rehabilitating displaced persons,
taking over of properties left by those who migrated to
Pakistan, its distribution and allotment to displaced
persons who came over to India on partition, and ultimately
extinguishment of the evacuee interest in such properties.
To recapitulate them here would be merely adding to the
length of this judgment. We would, therefore, only take note
of the conclusion reached in Amar Singh’s case (supra) with
regard to the interest of the displaced persons to whom
agricultural land was allotted on quasi permanent basis up
to July 22, 1952. Says the Court at page 823:
"(1) The allottee is entitled to right of use and
occupation of property until such time as the
property remains vested in the Custodian;
(2) The benefit of such right will enure to his
heirs and successors;
(3) His enjoyment of the property is on the basis
of paying land revenue thereupon and cesses
for the time being. Additional rent may be
fixed thereupon by the Custodian. If and when
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he does so, the allottee is bound to pay the
same;
(4) He is entitled to quiet and undisturbed
enjoyment of the property during that period;
(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;
(6) He is entitled to exchange the whole or any
part of the land for other evacuee land with
the consent of the Custodian;
(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;
(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
410
varied administrative considerations and
actions such as the following:
..................."
Undoubtedly this Court held that these quasi permanent
rights in land would not be property within the meaning of
Article 31 of the Constitution and, therefore, if
deprivation of property is complained of a petition under
Art. 32 would not lie. However, after concluding in this
manner this Court summed up the position with regard to the
interest of quasi permanent holder in his holding as under :
"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 recognised in the statutory rules are
important and constitute the essential basis of a
satisfactory rehabilitation and settlement of displaced
land-holders. Until such time as these land-holders
obtain sanads to the lands, these rights are entitled
to the zealous protection of the constituted
authorities according to administrative rules and
instructions binding on them, and of the courts by
appropriate proceedings where there is usurpation of
jurisdiction or abuse of exercise of statutory powers".
After re-affirming the position of the quasi permanent
allottees as herein quoted, this Court in State of Punjab v.
Suraj Prakash Kapur, etc.,(1) held that after July 22, 1952,
the Custodian ceases to have any authority to cancel or
modify quasi permanent allotment. This enunciation of the
interest of the quasi permanent allottees in the land
allotted to them should dispel any doubt about their
entrenched interest in the land. Nor could it be said that
those allottees were at the mercy of the Custodian and can
be dispossessed at his whim or caprice. These were heritable
rights and the holders were entitled in due course to
permanent settlement by issuance of sanads. But even before
this situation was reached a fundamental change occurred in
the position of the Custodian vis-a-vis the quasi permanent
allottees about the right of the former to cancel allotment
and resume land. In exercise of the powers conferred by s.
56 of the Administration of Evacuee Property Act, 1950, the
Central Government enacted what are styled as Administration
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of Evacuee Property (Central) Rules, 1950 Rule 14 recites
the power of the Custodian to vary or cancel the lease or
allotment under certain circumstances mentioned therein.
Initially sub-rule (6) was added to this rule and later on
it was modified where-
411
by the power to cancel any allotment or resume evacuee
property allotted on quasi permanent basis was circumscribed
and was available in the circumstances mentioned in amended
sub-rule (6). The amendment effective from 22nd July 1952
had undoubtedly the effect of modifying and thereby
restricting the power of resumption or cancellation vested
in the Custodian in respect of quasi permanent allottees and
the power was confined within very narrow limits. Therefore,
subsequent to July 22, 1952, the Custodian of Evacuee
Property would have the power to cancel an allotment only
upon a ground which falls within the exceptions enumerated
in sub-rule (6) (vide Joginder Singh & Ors. v. Deputy
Custodian General of Evacuee Property). (1) We need not
examine the circumstances in which resumption or
cancellation can be ordered under the amended sub-rule (6)
of rule 14 because it is not the case of the respondents
that the land was resumed in exercise of the power conferred
by rule 14 and in one or other of the circumstances
mentioned in sub-rule (6) thereof. Suffice it to say that
after July 22, 1952, the Custodian had no authority to
cancel quasi permanent allotment and resume land except in
the circumstances and contingencies mentioned in sub-rule
(6) of rule 14 and that having not been done, it cannot be
contended on behalf of the respondents that the land in this
case allotted on quasi permanent basis to appellant was
resumed by the Custodian. Two fact situations material and
necessary for raising this contention are absent in this
case. There is no material placed on record, including the
counter-affidavit, which would show that the Custodian
resumed the land of the appellant in exercise of the power
conferred by rule 14 and in one of the circumstances
mentioned in sub-rule (6). And secondly, no such order of
Custodian is forth-coming even after time was given to
produce the file.
Mr. Hardev Singh, however, contended that even though
sub-rule (6) of rule 14 as amended up to July 22, 1952 would
not enable the Custodian to resume land or cancel allotment
granted on quasi permanent basis except in the circumstances
mentioned in sub-rule (6), yet the State Government had the
requisite power under a rule made by the Punjab State
Government on 29th August, 1951. It was contended that in
exercise of the powers delegated by the Central Government
under sub-s. (1) of s. 55 of the Administration of Evacuee
Property Act, 1950, to make rules under clause (i) of sub-
section (2) of s. 56, the Punjab Government made the rule,
the relevant portion of which reads as under :
412
"The Custodian shall be competent to cancel or
terminate any lease or allotment or vary the terms of
any lease, allotment or agreement and evict the lessee
allottee in any one of the following circumstances;
.. .. .. ..
(h) that it is necessary or expedient to cancel or
vary the terms of a lease/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".
Mr. Hardev Singh contended that presumably the
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Custodian at the State level cancelled the allotment in
respect of the land taken over for resettlement and
rehabilitation of refugees from Kashmir and that this
cancellation and resumption must be for implementation of
resettlement scheme or under the rules framed for such
resettlement schemes by the State Government and, therefore,
the resumption was one under the Administration of Evacuee
Property Act and it was not a case of either acquisition or
taking over of the land of the petitioner.
There is no material placed before us to support this
submission. In the counter-affidavit on behalf of the
respondents not one word has been stated that the Custodian
at State level cancelled the allotment and resumed the land.
The stand taken in the return filed in the High Court is
that evacuee area measuring 7.88 acres was taken over by the
Government for construction and development of a colony for
rehabilitation of 300 Kashmiri displaced persons and that
such land included an area of 1 standard acre and 15-1/2
units of the land allotted to the petitioner. It was further
stated that this land of the appellant stood acquired under
s. 12 of the Displaced Persons (Compensation &
Rehabilitation) Act, 1954. There is not the slightest
suggestion that the Custodian in exercise of the power under
the aforementioned rule cancelled the allotment in favour of
the appellant and resumed the land. If such is not the case,
the power claimed under the rule cannot help the
respondents. Assuming that there was power to cancel
allotment and resume land under the State Rules, it must be
shown that the State Government had framed a resettlement
scheme and for the purpose of the scheme the allotment was
cancelled and land was resumed. The fact pleaded is to the
contrary that the Union of India took possession of the land
for setting up a colony. This also becomes clear from the
letter written by the Secretary to Government of Punjab,
Rehabilitation Department, Annexure ’F’ wherein it was in
terms stated that
413
the land in question was not acquired by the State
Government but stood acquired by the Central Government in
terms of the general notification issued in 1955 and,
therefore, the Government should concur in payment of
compensation out of the funds allotted for setting up of the
colony. From the contents of the letter which have remained
uncontroverted the situation that emerges is that the land
was acquired by the Central Government for its own use. The
Central Government could exercise powers under the Central
Rules. It had not asked the State Government to acquire the
land. Therefore, the power conferred on the State Custodian
under the State Rules would not help the respondents as
contended by Mr. Hardev Singh.
It was next contended that on the introduction of the
1954 Act and the issuance of Notification under s. 12, all
evacuee property was acquired by the Central Government and
under sub-s. (4) of s. 12 such acquired evacuee property
formed part of the compensation pool. It was further said
that if acquisition was under s. 12 of the 1954 Act, the
allottee of land on quasi permanent basis would be entitled
to compensation as provided by rule 49 of Displaced Persons
(Compensation & Rehabilitation) Rules, 1955, and in that
event he would be entitled to compensation by allotment of
agricultural land but not cash compensation. To understand
the full import of the submission it is necessary to state
that when there was migration of large number of persons
both the ways from India to Pakistan and vice versa,
initially such property left by migrants from India to
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Pakistan was taken over for the purpose of administration
under the provisions of the Administration of Evacuee
Property Act, 1950. This Act broadly provided for
appointment of Custodian General of Evacuee Property and
other authorities subordinate to him. The authorities set up
under the Act were empowered to declare certain properties
to be evacuee property and any property so declared as
evacuee property would, under s. 8, vest in the Custodian
for the State. The Custodian was empowered to administer the
property and the powers and duties of the Custodian were
enumerated in s. 10. In exercise of this power the Custodian
allotted lands on quasi permanent basis to displaced
persons. But this was an unsatisfactory situation because
the interest of the evacuee in the evacuee property remained
intact and till such evacuee interest was extinguished, the
evacuee property could not be settled on permanent basis. In
order to obviate this difficulty the Displaced Persons
(Compensation & Rehabilitation) Act, 1954, was enacted by
Parliament. Section 12 provided for issuance of a
notification as hereinabove mentioned and sub-s. (2) of s.
12 amongst others provided that the right, title and
interest of any evacuee in the evacuee property specified in
414
the notification shall, on and from the beginning of the
date on which the notification is so published, be
extinguished and the evacuee property shall vest absolutely
in the Central Government free from all encumbrances.
Evacuee properties acquired in this manner would form part
of the compensation pool.
If the scheme of the 1954 Act is as hereinbefore
mentioned, we fail to see how the property which was
admittedly allotted to the appellant on quasi permanent
basis and which was taken over by the Central Government in
July 1953, i.e. much before the introduction of the 1954
Act, became property of the compensation pool. Assuming that
even though it was taken over by the Central Government in
July 1953, the evacuee interest therein having not been
extinguished till the issue of a notification under s. 12 of
the 1954 Act and, therefore, on the issue of a notification
the property became part of the compensation pool, the
consequences provided in 1954 Act must ensue, viz., that so
long as the property remained vested in the Central
Government it shall continue in possession of the person to
whom it was allotted on the same conditions on which he held
the property immediately before the date of acquisition. In
this connection reference to s. 10 of the 1954 Act would be
advantageous. The relevant portion reads as under :
"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
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
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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."
415
Now, indisputably the appellant was allotted the
property on quasi permanent basis under the conditions
published by the notification of the Government of Punjab in
the Department of Rehabilitation, dated 8th July 1949. If he
had continued to hold the property on the clate on which the
notification under s. 12 of the 1954 Act was issued, by the
operation of s. 10 he would be entitled to hold the property
till the property remained vested in the Central Government
and would be entitled to payment of compensation by transfer
to him of such property on terms and conditions that may be
prescribed. Therefore, if 1954 Act is not attracted because
the property in question was already taken over by the
Central Government in July 1953 much before the 1954 Act
came into force neither s. 12 nor Rule 49 would be
attracted. If on the other hand the evacuee interest in the
property came to be extinguished on the issue of a
notification under s. 12 of the 1954 Act, its consequences
would be as provided in s. 10 and the appellant would be
entitled to hold the property till it continues to vest in
the Central Government under s. 12. In either event he would
be entitled to compensation.
Mr. Hardev Singh, however, urged that assuming that the
appellant is entitled to compensation for taking over of his
land the land having formed part of the compensation pool on
the issue of a notification under s. 12 and the allotment in
this case being one not under the notification of the
Government of Punjab dated 8th July 1949 but a fresh
allotment under s. 10, the compensation would only be
payable in the form of land under rule 49. There is a two-
fold fallacy in this submission. Indisputably the land was
allotted to the appellant under the conditions published by
the notification of the Government of Punjabs dated 8th July
1949 and s. 10 does not purport to make a fresh allotment.
It merely takes note of the earlier allotment and assures
that if the displaced person has continued to be in
possession of the land allotted, on the issue of a
notification under s. 12 and the land becoming part of the
compensation pool, such allottee would be entitled to
continue in possession of such property on the same
conditions on which he held the property immediately before
the date of acquisition by issue of notification under s. 12
till the property continues to vest in the Central
Government and further he would be entitled to the transfer
of such property to him presumably on permanent settlement
basis as and by way of compensation. Section 10 does not
permit a construction as canvassed for by Mr. Hardev Singh
that a fresh allotment could be made under s. 10
416
Further, rule 49 which provides that compensation shall
be in the from of land will have to be read with r. 69 which
reads as under:
"69. Saving-Nothing in this Chapter shall apply to
agricultural land allotted in the States of Punjab and
Patiala and East Punjab States Union under section 10
of the Act."
It will immediately appear that where allotment was
made under the conditions published by the notification of
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the Government of Punjab dated 8th July 1949, the whole of
Chapter VIII of the 1955 Rules which includes Rules 49 to 69
would not apply. In this case appellant was allotted
agricultural land and the allotment was under the
notification hereinbefore mentioned which has been set out
in rule 10(a) and in that situation provisions contained in
Chapter VIII of the Rules would not be attracted. Therefore,
rule 49 cannot be called in aid by the respondents.
The last contention, however, is that if the appellant
is a displaced person and he was being allotted land against
a verified claim in respect of agricultural land held by him
in Pakistan, ordinarily compensation for land taken over
must be in the form of land and not in form of cash.
Ordinarily it should be so. But in this connection the
experience gained by the Government in disposing of the
claims cannot be overlooked. There were allottees of small
plots of land. Once allotment is made and thereafter the
land is taken over by the Government a fresh allotment
cannot be in a compact area and if a small plot of land is
allotted at a distant place the allottee would be put to a
serious disadvantage. Realising this position, at a meeting
between the officers of the Punjab Government and the
Ministry of Rehabilitation of the Central Government held on
27th August 1957, a decision was taken which was notified by
the Press Note Annexure ’A’ of the very date. It provides
that there are large number of displaced land allottees
whose whole or part of the land were acquired by the
Government for various public purposes and their claim for
cash compensation is pending. Such of the allottees who have
acquired permanent rights and others who are quasi permanent
allottees and small pieces of their land are acquired by the
Government, should send their applications to the Deputy
Secretary to the Government of Punjab, Rehabilitation
Department, Jullundur, giving various details therein. The
decision further provided that quasi permanent land allottes
whose land exceeding two standard acres have been acquired
should apply for alternative allotment to the Land Claims
Officer, and those whose land admeasuring less than two
standard acres is acquired should apply for payment of
compensation in cash. The decision was the decision of the
Central
417
Government and the Punjab State Government that displaced
persons to whom lands were allotted on quasi permanent
basis, part of which was taken over for public purposes by
the Government and where the land acquired was less than two
standard acres in area, payment of compensation would be in
cash and applications were accordingly invited. This
decision was affirmed in the letter of the Secretary to
Government of Punjab, Rehabilitation Department, addressed
to his counterpart in the Central Government wherein after
referring to the meeting dated 27th August, 1957 and the
decision arrived at it, he requested the Central Government
that the appellant would be entitled to cash compensation
because the land taken over from him was less than two
standard acres and was covered by the decision arrived at,
at the meeting and that the Central Govermnent should concur
in payment of compensation out of the funds allotted for
setting up the colony for which the land was acquired. In
the face of this position it is difficult to entertain the
contention that compensation in cash was never payable for
agricultural land taken over from a quasi permanent
allottee. It was said that such a decision which runs
counter to the statute cannot be given effect to by the
Court. Once Chapter VIII of 1955 Rules and especially rule
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49 which provides for payment of compensation in the form of
land is out of the way, we see nothing in the statute which
would debar a quasi-permanent allottee asking for
compensation in cash and the Government paying the same. In
fact the appellant has averred in his petition and in his
affidavit that on former occasion he was paid compensation
in cash and the denial is on the ground of want information
which can frankly be styled as a vague one.
Now it is indisputable that the appellant was a quasi
permanent allottee and that his land admeasuring 1 standard
acre and 151/2 units had been taken over by the Central
Government in July 1953. In view of the decision recorded in
the Press Note referred to above he would be entitled to
compensation in cash which has not been paid to him. The
appellant would be entitled to compensation in cash for the
interest that he had in the land because land was taken away
from him. What is the quantum of compensation will have to
be worked out according to law and the modalities of
determining the compensation.
This appeal accordingly succeeds and is allowed. The
respondents are directed to pay the compensation in cash to
the appellant for the land admeasuring 1 standard acre and
151/2 units taken over in July
418
1953. As there is a delay of nearly 25 years, the
respondents should pay the compensation as directed herein
within a period of six months from today. Respondents should
also pay the costs of the appellant and bear their own
costs.
P.B.R. Appeal allowed.
419