Full Judgment Text
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PETITIONER:
CHIEF SETTLEMENT COMMISSIONER, REHABILITATIONDEPARTMENT, PUN
Vs.
RESPONDENT:
OM PARKASH & ORS, ETC.
DATE OF JUDGMENT:
05/04/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
CITATION:
1969 AIR 33 1968 SCR (3) 655
CITATOR INFO :
R 1975 SC1856 (7)
RF 1976 SC1207 (352,464)
ACT:
The East Punjab Evacuees (Administration of Property) Act,
1947-Definition of ’displaced person’ in para 2(e) of
Notification issued under Rules made pursuant to s. 22(2)
(f) and (ff); The East Punjab Refugees (Registration of Land
Claims) Act 12 of 1948, s. 2(d)-Definition of ’refugees’;
Person with property in Pakistan coming to India prior to
partition-Dying in June 1947-Shown as owner of properties in
revenue records received from West Punjab-If displaced
person-Whether allotment of land in India must be made in
his name or in the name of his heirs.
HEADNOTE:
N owned agricultural lands in Bahawalpur State now forming
part of Pakistan and also owned some property in Punjab in
India. He died in June 1947 while on a visit to India in
the normal course of business, leaving behind three sons,
the respondents in the appeal. On the partition of India,
the land in Pakistan originally owned by N and after his
death by his sons, had to be abandoned. After migrating to
India, the three respondents filed separate claims as
displaced persons and were allotted an area of land in
Punjab. Thereafter a complaint was filed before the
Managing Officer that these respondents had received double
allotments. The Managing Officer, held this allegation was
not substantiated but came to the conclusion that N,
although he had died before the partition, must be treated
as a displaced land-holder for the purpose of allotment of
land as his name continued to be shown in the Jamabandi as
the owner of the abandoned land in Pakistan. In consequence
of this finding a large portion of the land allotted to the
three respondents was cancelled by an order of the Managing
Officer dated September 18, 1961. Appeals made by the
respondents to the Assistant Settlement Commissioner as well
as revision petitions before the Chief Settlement
Commissioner Punjab, were dismissed. In dismissing the
revision petitions, the Chief Settlement Commissioner relied
on para. 17 of "Tarlok Singh’s Land Resettlement Manual"-
1952 edition-Page 180, to the effect that "Even where a
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displaced land-holder in whose name the land stands in the
records received from West Punjab has died, the allotment is
made in the name of the deceased". He therefore upheld the
view 4 at the land could only be allotted in the name of N.
The respondents then filed a writ petition against the
orders of the Chief Settlement Commissioner which was
allowed.
On appeal to this Court,
HELD:Dismissing the appeal,
The definition of a "displaced person" in para 2(e) of the
Notification of July 8, 1949, issued by the Custodian in
accordance with provisions of the East Punjab Evacuees
(Administration of Property) Act 1947, and the Rules made
thereunder, or of a "Refugee" in Section 2(d) of the East
Punjab Refugees (Registration of Land Claims) Act 12 of
656
1948, show that these expressions have been used in the
relevant enactments with reference to a person who has
migrated to India as a result of disturbances or fear of
disturbances or the partition of the country. Therefore if
a person had died before the disturbances took place or he
had never migrated to India as a result of the disturbances
and he died before such migration, he could not come within
the meaning of the expression "displaced person" or the word
"refugee" under the relevant statutory enactments. N died
in June, 1947, long before the partition of -the country and
he did not abandon or was not made to abandon his land in
Bahawalpur on account of the civil disturbances or the fear
of such disturbances or the partition of the country. [660
A-D]
There was no force in the contention that even though N
never became a refugee or a displaced land-holder, the
allotment had to be made in his name because he was shown in
the revenue records received from West Punjab as the owner
of the land and there had been no mutation of the names of
the respondents in the revenue records. The rule in para 17
of "Tarlok Singh’s Manual" consistently with the statutory
enactments, would be applicable only to such persons who
were land-holders ’it the time of their becoming displaced
persons or refugees and who died afterwards before allotment
could be made in their favour. It does not apply to a
person like N who was not a displaced land-holder at the
time of his death. [661 D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 937 of 1965.
Appeal from the judgment and order dated September 13. 1963
of the Punjab High Court in Civil Writ No. 841 of 1962 and
Civil Appeal No. 938 of 1965.
Appeal from the order dated September 13, 1963 of the Punjab
High Court in Civil Writ No. 526 of 1963 and Civil Appeal
No. 1195 of 1967.
Appeal from the order dated August 6, 1964 of the Punjab
High Court in Letters Patent Appeal No. 136 of 1964.
D. R. Prem, R. N. Sachthey and S. P. Nayar, for the
appellants (in C.A. No. 937 of 1965).
R. N. Sachthey, and S. P. Nayar, for the appellants (in
C.A. s Nos. 938 of 1965 and 1195 of 1967).
S. V. Gupte, Bhawani Lal and B. P. Jha, for respondent
Nos. 1 to 3 (in C.A. No. 937 of 1965).
R. V. Pillai, for the respondent (in C.A. No. 938 of
1965).
H. L. Mittal and Naunit Lal, for the respondents (in C.A.
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No. 1195 of 1967).
657
Civil Appeal No. 937 of 1965
The Judgment of the Court was delivered by
Ramaswami, J.-This appeal is brought, by certificate, from
the judgment of the Punjab High Court dated September 13,
1963 in Civil Writ No. 841 of 1962.
Nanak Chand owned agricultural lands in Bahawalpur Statenow
forming part of West Pakistan. He also owned some property
at Kot Kapura, Tehsil Faridkot, District Bhatinda now
located in India. Nanak Chand had in normal course of
business come to Bhatinda where he died in June, 1947
leaving behind three sons, Om Parkash, Sat Narain and Ram
Parshotam who are the respondents in this appeal. As a
result of the partition of India the land originally owned
by Nanak Chand and after his. death by his sons in
Bahawalpur State had to be abandoned. After the partition
of India the three respondents migrated to India and filed
separate claims in accordance with law and obtained
allotment of certain area in village Kot Kapura, district
Bhatinda in lieu of the land abandoned by them in Pakistan.
The Revenue Authorities allotted an area measuring 206.8 1/2
standard acres in village Kot Kapura, District Bhatinda.
After the allotment was made one Rur Singh filed a complaint
before the Managing Officer that these respondents had
received double allotments in villager Kot Kapura. The
complaint was examined by Shri Shankar Das Katyal, Managing
Officer who held that Shri Rur Singh failed to substantiate
the allegation of double allotment. But the Managing
Officer came to the conclusion that Nanak Chand although he
had died long before the partition of the country must be
treated as a displaced land-holder for the purpose of
allotment of land. The reason given was that his name
continued to be shown in the Jamabandi as the owner of the
abandoned land in Pakistan. In consequence of this finding
a large portion of the land allotted to, the three
respondents was cancelled by the Managing Officer by his
order dated September 18, 1961. The three respondents pre-
ferred an appeal before the Assistant Settlement
Commissioner and a revision petition before the Chief
Settlement Commissioner Punjab but the appeal and the
revision petition were both dismissed. In dismissing the
revision petition the Chief Settlement Commissioner relied,
upon paragraph 17 of Tarlok Singh’s Land Resettlement
Manual, 1952 Edition, page 180 which was to the following
effect :
"Even where a displaced land holder in whose
name the land stands in the records received
from West Punjab has died, the allotment is
made in the name of the deceased. In the fard
taqsim, ’therefore, the entry will be in the
name of the deceased land holder. Possession
is ordinarily given to the heirs but there
must be regular
658
mutation proceedings before the entry in
column 3 of the fard taqsim is- altered in
favour of the heirs."
It was held by the Chief Settlement Commissioner that this
paragraph related to all persons who continued to be shown
as owners in the revenue records irrespective of the fact
whether they had died before or after migration. In other
words, the Chief Settlement Commissioner took the view that
the land could only be allotted in the name of Nanak Chand
even assuming that he had died in June, 1947. Against the
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order of the Chief Settlement Commissioner the respondents
filed a Writ Petition (Civil Writ No. 841 of 1961) before
the Punjab High Court. The Writ Petition was allowed by the
High Court by its order dated September 13, 1963 and the
orders of the Chief Settlement Commissioner ,dated June 8,
1962, of the Assistant Settlement Commissioner dated
December 26, 1961 and of the Managing Officer dated
September 18, 1961 were all quashed by the grant of a writ
in the nature of certiorari.
It is necessary at this stage to set out the provisions of
the relevant statutes. Section 2(b) of the East Punjab
Evacuees’ (Administration of Property) Act, 1947 (East
Punjab Act No. XIV of 1947) defines an "evacuee" as meaning
"a person ordinarily resident in or owning property or
carrying on business within the territories comprised in the
Province of East Punjab, who on account of civil
disturbances, or the fear of such disturbances, or the
partition of the country : (i) leaves or has since the first
day of March 1947, left the said territories for a place
-outside India, or (ii) cannot personally occupy or
supervise hi,; property or business." Section 4 of that Act
provided that "All evacuee property situated within the
Province shall vest in the Custodian for the purposes of
this Act and shall continue to be so vested until the
Provincial Government by notification otherwise directs." In
pursuance of the powers conferred-by the rules made by the
State Government under cls. (f) and (ff) of S. 22(2) of the
East Punjab Evacuees, (Administration of Property) Act,
1947, the Custodian issued a notification no. 4892/S on July
8, 1949 regarding the conditions on which he was prepared to
grant -allotment of land vested in him under the provisions
of the said Act to displaced persons. Para 2(e) of this
notification states
" "Displaced person" means a land holder in
the territories now comprised in the province
of West Punjab or a person of Punjabi
extraction who holds land in the Provinces of
North-Western Frontier Province, Sind or
Baluchistan or any State adjacent to any of
the aforesaid Provinces and acceding to the
Dominion of Pakistan, and who has since the
1st day of March , 1947, abandoned or been
made to abandon his land in the
659
said territories on account of civil
disturbances, or the fear of such
disturbances, or the partition of the
country."
Section 2(d) of the East Punjab Refugees (Registration of
Land, Claims) Act. 1948 (East Punjab Act No. XII of 1948)
states
"2. Interpretation.-In this Act unless there
is anything repugnant in the subject or
context,-
(d) ’refugee’ means a landholder in the
territories now comprised in the Province of
West Punjab, or who or whose ancestor migrated
as a colonist from the Punjab since 1901 to
the Provinces of North-West Frontier Province,
Sind or Baluchistan or to any State adjacent
to any of the aforesaid Provinces and acceding
to the Dominion of Pakistan, and who has since
the 1 st day of March, 1947, abandoned or been
made to abandon his land in the
said territories on account of civil
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disturbances, or the fear of such
disturbances, or the partition of the
country;"
Section 2(c) defines a "landholder" to mean "an owner of
land. or a tenant having a right of occupancy under the
Punjab Tenancy Act, 1887 (XVI of 1887) or a tenant as
defined in section 3 of the Colonization of Government Lands
Act, 1912 (Punjab Act V of 1912) and such other holder or
grantee of land as may be specified by the Provincial
Government;". Section 2(c) of the East Punjab Displaced
Persons (Land Resettlement) Act,1949 (East Punjab Act No.
XXXVI of 1949) defines a "displaced person" as follows :
" ’displaced person’ means a land-holder in
the territories now comprised in the Province
of West Punjab or a person of Punjabi
extraction who holds land in the Provinces of
North-West Frontier Province, Sind or
Baluchistan or any State adjacent to any of
the aforesaid Provinces and acceding to the
Dominion of Pakistan, and who has since the
1st day of March 1947, abandoned or been made
to abandon his land in the said territories on
account of civil disturbances, or the fear of
such disturbances, or the partition of the
country".
Section 2(b) of this Act defines an "allottee"
as follows
" allottee’ means a displaced person to whom
land is allotted by the Custodian under the
conditions published with East Punjab
Government notification no. 4892/S, dated the
8th July, 1949, and includes his heirs,. legal
representatives and sub-lessees".
660
The main question to be considered in this appeal is whether
Nanak Chand was a ’displaced person’ as defined in para 2
(e) of the notification dated July 8, 1949 ,or a "refugee"
as defined under S. 2(d) of Act No. XII of 1948 and whether
he was entitled for allotment of land. It is manifest that
the expression "displaced person" or the word "refugee" has
been used in the relevant enactments with reference to a
person who has migrated to India as a result of disturbances
or fear of disturbances or the partition of the country.
Therefore if a person had died before the disturbances took
place or he had never migrated to India as a result of the
disturbances and he died before such migration, he could not
come within the meaning of the expression -"displaced
person" or the word "refugee" under the relevant statutory
enactments. It is manifest in the present case that Nanak
Chand died in June, 1947 long before the partition of the
country and he did not abandon or was not made to abandon
his land in Bahawalpur on account of the civil disturbances
or the fear of such disturbances or the partition of the
country.
It was, however, contended by Mr. D. R. Prem on behalf of
the appellants that even though Nanak Chand never became a
refugee or a displaced land-holder, the allotment had to be
made in his name because he was shown in the revenue records
received from West Punjab as the owner of the land and there
had been no mutation of the names of the respondents in the
revenue records. Reference was made in this connection to
paragraph 17 of Tarlok Singh’s Land Resettlement Manual
which has already been quoted. It was contended by Mr. Prem
that the instructions contained in this paragraph would
apply even though Nanak Chand had never become a refugee or
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a displaced land-holder and the allotment has to be made in
his name by the revenue authorities because his name still
stands in the revenue records received from West Punjab., We
are unable to accept this argument as correct. It is not
disputed that paragraph 17 of Tarlok Singh’s Manual has no
statutory authority but it merely embodies executive or
administrative instructions for general guidance. If there
is a conflict between the provisions contained in this
paragraph and the statutory enactments already referred to
it is manifest that the statutory provisions must take
precedence and must prevail over the directions contained in
para 17 of Tarlok Singh’s Manual.
In this context it is essential to emphasise that under our
constitutional system the authority to make the law is
vested in the Parliament and the State Legislatures and
other law making bodies and whatever legislative power the
executive administration possesses must be derived directly
from the delegation of the legislature and exercised validly
only within the limits prescribed. The notion of inherent
or autonomous law-making power in the executive
administration is a notion that must be emphatically reject-
661
ed. As observed by Jackson, J. in a recent American case-
Youngstown Sheet & Tube Co. v. Sawyer(1)-"With all its
defects delays and inconveniences men have discovered no
technique for long preserving free government except that
the Executive be under the law, and that the law be made by
parliamentary deliberations." In our constitutional system,
the central and most characteristic feature is the concept
of the rule of law which means, in the present context, the
authority of the law courts to test all administrative
action by the standard of legality. The administrative or
executive action that does not meet the standard will be set
aside if the aggrieved person brings the appropriate action
in the competent court. The rule of law rejects the con-
ception of the Dual State (2 ) in which governmental action
is placed in a privileged position of immunity from control
by law. Such a notion is foreign to our basic
constitutional concept.
In our opinion, however, it is possible to give a restricted
interpretation to paragraph 17 of Tarlok Singh’s Manual so
as to make it consistent with the requirements of the
statutory enactments. The intention of para 17 is that it
is applicable only to such persons who are land-holders at
the time of their becoming displaced persons or refugees and
who died afterwards before allotment could be made in their
favour. In other words, the paragraph applies to a
displaced land-holder who dies after having become a
"displaced person" within the meaning of the relevant
statutory enactments referred to above. The paragraph does
not apply to a case of, a person who was not a displaced
land-holder at the time of his death. In the present case
it is admitted that Nanak Chand never became a displaced
land-holder. On the other hand, Nanak Chand died before he
became a displaced land-holder and therefore para 17 of
Tarlok Singh’s Manual has no application to the facts of the
present case.
For these reasons we hold that this appeal has no merit and
it must be dismissed with costs.
Civil Appeals Nos. 938 of 1965 & 1195 of 1967
The question arising in these two appeals is identical with
the question of law in Civil Appeal No. 937 of 1965. For
the reasons given in that judgment we hold that the decision
of the High Court challenged in these appeals is correct and
these appeals must be dismissed with costs.
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R.K.P.S. Appeals dismissed.
(1) 343 U. S. 579, 655.
(2) This term is derived from Fraenkel, The Dual State
(1941).
662