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TMI Blog1957 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 7, 1950, that out of the 1,263 standard acres and 1 3/4 units of suburban land of Amritsar, 142 standard acres and 5 units were to be allotted to allottees of Provincial Gardens. This necessitated readjustment of allotments of the suburban land of Sultanwind amongst the various groups who had quasi-permanent allotment therein. As a result of this readjustment which had to be carried out according to certain rules and instructions, the allotment of these five petitioners (as also of some others) was proposed for cancellation by the order of the Deputy Custodian, Amritsar, dated July 31, 1951. This proposal was approved by the Custodian (Financial Commissioner, Relief and Rehabilitation) on February 6, 1952, and the allotment was cancelled. The proposal and the order of cancellation are said to have been passed without notice to the petitioners. Being aggrieved thereby they moved the Custodian-General of Evacuee Property for revision thereof under s. 27 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950). This was dealt with by the Deputy Custodian-General who dismissed the same by a fairly elaborate order dated May 1, 1954, after hearing the parties. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m West Punjab reached East Punjab almost destitute. This unprecedented situation brought in its train gigantic problems of administration relating to rehabilitation and resettlement of these persons. On of such problems was that relating to agricultural immovable property left on either side by the migrants. For purposes of convenience persons who crossed over from East Punjab to West Punjab are referred to as evacuees and persons who came over from West Punjab to East Punjab are referred to as displaced persons. The displaced persons are said to have left in Pakistan lands of the extent of about 67 lakh acres. The evacuees sum to have left in East Punjab and Pepsu, lands of the extent of about 47 lakh acres. This meant a deficit of over 20 lakh acres for resettlement. 4. It would appear that in the earlier stages there were attempts to settle the question by way of mutual exchanges either individually or at the governmental level and by means of inter-dominion conferences between India and Pakistan. But for one reason or other, these attempts appear to have failed. The various steps and administrative measures taken to settle, the displaced agricultural population who came over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lands Act and to certain other classes of grantees and holders of India in West Punjab to be specified by Government. It is proposed to give to small holders allotments of equivalent areas, while in the case of larger holders there will be graded cuts. The definition of the Small Holders and the details of the graded cuts will be determined when detailed information regarding the available areas in East Punjab and the East Punjab States, the areas held by the population to be settled in East Punjab and the East Punjab States, and other relevant information becomes available. It is intended to complete the new system of allotments in East Punjab and the East Punjab States, not later than the 31st May, 1948. Government are, however, anxious to introduce the new scheme as early as may be feasible and steps to this end will be taken at once. Arrangements for collecting complete information regarding the land available for allotment in East Punjab and the East Punjab States and the land abandoned by individual evacuees will be taken in hand without delay and it is hoped also to make arrangements on a reciprocal basis to secure information from records of rights in West Punjab. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant for our purpose and then to consider the relevant legislative measures taken specifically with reference to agricultural land. 7. The earliest legislative measure in this behalf is the East Punjab Evacuees' (Administration of Property) Ordinance, 1947, (E.P. Ordinance IV of 1947) dated September 14, 1947, which was a simple measure defining the terms 'evacuee', 'evacuee property', and 'Custodian of evacuee property' and other terms, and authorising the appointment of a Custodian. It gave the Custodian power to take possession of evacuee property and to take all measures necessary and expedient for preserving such property. It vested in him extensive powers of management thereof. This was an emergency measure which appears to have been meant to get possession of the properties as a care-taker. This was superseded and followed by a series of legislative measures which underwent modifications from time to time. These legislative measures were in the first instance Provincial, viz., East Punjab Evacuees' (Administration of Property) Act, 1947 (E.P. XIV of 1947); East Punjab Evacuees' (Administration of Property) (Second Amendment) Ordinance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof. Section 16 provides for restoration of property to the evacuee on his application and enjoins the Custodian to furnish the evacuee on demand with a statement containing an abstract of the account of the income received and expenditure incurred in respect of the property. The general powers of management vested in the Custodian under s. 10 enable him to grant leases and make allotments out of evacuee property in favour of displaced landholders. This is subject to the power vested in him under s. 12(1) to vary or cancel leases or allotments of evacuee property. These are a number of other substantive and incidental provisions, which it is unnecessary to refer to for the purposes of this petition. Thus, the broad features of the administration of evacuee property law, as indicate from the provisions above noticed, are the following : 1. All evacuee property is vested in the Custodian. 2. He has the duty of managing the property and maintaining accounts for such management and has large administrative powers. 3. As incidental to such management he can grant leases and make allotments. 4. He has the power to vary or cancel leases and allotments. 5. The evacuee can co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Punjab Ordinance IV of 1947. Section 12 thereof provided that the owner of any property in the possession or control of the Custodian shall be entitled to restoration thereof upon application to the Custodian and on payment of excess, if any, of expenditure over receipts from the management of such property by the Custodian. In East Punjab Act XIV of 1947 which superseded this Ordinance, this right of restoration to the evacuee was qualified by virtue of s. 12(1) thereof which is as follow : On being satisfied that evacuees have returned or are returning to the Province, the Provincial Government may by notification in the Official Gazette authorise return of their immovable property to the owners in accordance with this section. 11. Sub-section (2) of s. 12 provided that any person claiming to be entitled to any such property may apply in writing to the custodian who, after giving public notice and holding an enquiry, will make a formal order declaring the person to whom possession of the property may be delivered. In Central Ordinance XXVII of 1949 and in Central Act XXXI of 1950, the provision for restoration of property to the evacuee in s. 16 thereof is that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime contemplated that allotment may be otherwise than temporary. This Act as well as the previous Central Ordinance completely omitted the definition of the word 'lease'. These changes were apparently necessitated by the fact that, in between, Punjab Government notification dated July 8, 1949, came into operation providing for what has become subsequently known as quasi-permanent allotment. The provisions of that notification and the legal effect thereof will be noticed in due course. 13. We may next trace the provisions in the various Acts relating to the power of cancellation of allotments in so far as they appear from the body of the main Ordinances and Acts themselves, leaving aside - for the time being - the rules framed thereunder. It may be mentioned that in the rest of the judgment in noticing the statutory provisions which deal with leases and allotments together, all reference to leases are omitted for the sake of simplification. The earliest provision in this behalf is of East Punjab Act XIV of 1947 which was inserted into it by East Punjab Ordinance XVI of 1948 replaced by East Punjab Act XLIX of 1948. Sub-section (2) of s. 9-A provides that notwithstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acuee may come back and obtain return of his property, as also an account of the management thereof, by the Custodian. Such return which was originally contemplated without any restriction, is subsequently dependent on a notification or a certificate of the Central Government. Until such return the Custodian may manage the property by granting allotments in favour of displaced persons. The nature of an allotment is clear from its definition that it is grant of the right of use and occupation. This in the first instance was contemplated as being only temporary. By a later definition, it was made wider so as not to be restricted to a temporary use and occupation. But the allotment is clearly subject to the power of cancellation thereof vested in the Custodian, which will entitle him to obtain its possession. Such rules were undergoing alterations from time to time. In such a situation it would prima facie be difficult to recognise the allottee of any evacuee property, in so far as his position is governed by the main provisions of the Evacuee Property Administration Acts (unaffected by any specific rules applicable to any particular class of property or any specific arrangement or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of conditions on which the Custodian could grant allotments of land vested in him. This notification is virtually the charter of the rights of allottees. It is the basis of what has come to be known as the quasi-permanent allotment. In the rules set out in this notification a 'displaced person' is defined as 'a land-holder in West Punjab etc.' and it is specified that an allotment shall be made in favour of a displaced person and for a period for which the land remains vested in the Custodian. The word allottee is defined as including heirs, legal representatives and lessees of the allottee. It may be mentioned in this context that East Punjab Displaced Persons (Land Resettlement) Act, 1949, mentioned above, which was passed shortly after these rules were notified also defines the word 'allottee' and says that 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 July 8, 1949 and includes his heirs, legal representatives and sub-lessees. Thus the definitions of the word 'allottee' in the rules of July 8, 1949 and under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ................................... 18. The above rules of July 8, 1949, have, therefore, continued to be operative as rules made under the Central Ordinance. On the repeal of the Central Ordinance by Central Act XXXI of 1950 and by virtue of s. 58 thereof, these rules continue to be in force as though they are rules made under the Central Act of 1950. Further, the Central Government framed rules on September 28, 1950, entitled Administration of Evacuee Property (Central) Rules, 1950, which will be noticed presently. Later, in exercise of the delegated rule-making power vested in the Provincial Government under s. 55 of the Central Act, the Punjab Government framed rules dated August 29, 1951, entitled Instructions for review and revision of land allotment. These two sets of subsequent rules would affect the rules of July 8, 1949, to the extent that any of them are inconsistent with the earlier rules. A comparison of the subsequent rules with the earlier rules of July 8, 1949, shows that the later rules do not concern any of the matters provided by the earlier rules of 1949 (and 1950) excepting as regards the provisions relating to resumption - which virtually is cancellation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rements. (4)............................................................... 21. It will be seen that the above provisions are not in themselves powers of cancellation or modification of allotment but are supplementary thereto authorising eviction of an allottee under the circumstances indicated therein. The next set of rules in this connection are rules dated August 29, 1951, enacted by the Punjab Government in exercise of powers delegated to it by the Central Government under s. 55(1) of Central Act XXXI of 1950. In so far as these rules relate to allotments, cls. (a) to (g) of r. (1) thereof are virtually the same as those relating to resumption in the notification of July 8, 1949. The additions thereto in the 1951 rules are the following : (1) The Custodian shall be competent to cancel or terminate any allotment or vary the terms of any allotment or agreement and evict the allottee in any one of the following circumstances : (a) to (g) ....................................................... (h) that it is necessary or expedient to cancel or vary the terms of an allotment for the implementation of resettlement schemes and/or rules framed by the State Government; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended in 1948, in so far as it relates to allotment. Similarly Central Rules of 1950, and the delegated State Rules of 1950 and 1951 must be read to harmonise with s. 12 of Central Act XXXI of 1950, in so far as they relate to allotments made under the notification of July 8, 1949. Reading these powers of cancellation under the Act and the Rules together, it will be found that the power of cancellation of such allotments is wide and varied and depends to a substantial extent on administrative orders and considerations. Rule 14 of Central Rules, 1950, underwent alterations in July, 1952, and February, 1953. These are subsequent to the date of cancellation of the allotment in the present case and have no direct bearing on the present case. 25. Pausing here and summarising the position as it obtained till July 22, 1952 (when further relevant rules were framed) as regards the rights under the (quasi-permanent) allotment scheme introduced by notification July 8, 1949, may be stated thus. (References given as against each are to the relevant provisions of the notification of July 8, 1949). 1. The allottee is entitled to right of use and occupation of the property until such time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is secured by false declaration or insufficient information, and also if the allottee is convicted under the provisions of the Evacuee Property Administration Acts. (Clause 6(c) and (f).). 27. Taking all the above incidents together as to the position of a displaced land-holder to whom evacuee agricultural land has been allotted under the notification of July 8, 1949, there can be no doubt that he is in a definitely better legal position than the allottee of other kinds of property under Central Act XXXI of 1950 and the Central Rules of 1950, who, as already shown, is more or less in the position of a licensee. 28. But even so, it is still far short of what can be considered as being in itself 'property' either in the widest sense or in a limited sense. It is very strenuously urged that though this might appear to be so if one has regard only to the legislation and to the statutory rules up to July 22, 1952, the position of such an allottee emerges more definitely and clearly in the light of further legislation and subsequently amended rules. It is urged that this later legislation was in implementation of the original Press Communique dated February 7, 1948, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision, made under section 26 or section 27 of the Act, within the prescribed time, against an order passed by a lower authority on or before 22nd July, 1952. 30. This amendment has undoubtedly the effect of modifying the power of resumption or cancellation vested in the Custodian authorities in respect of quasi-permanent allottees by virtue of the per-existing rules and to confine such power within narrow limits as specified therein. But whether the restrictions on this power of cancellation can be harmonised with the power to vary or cancel allotments vested in the Custodian under s. 12 of Central Act XXXI of 1950 is a matter not without some difficulty. It may, however, be assumed that, if possible, that latest amendment or r. 14 of Central Rules, 1950, by the insertion of the amended sub-r. (6) therein will have to be harmonised with the main section by a process of construction so as not to nullify the beneficent provisions specifically enacted in mandatory language. It is noteworthy that the language of the new sub-r. (6) of r. 14 operates only as a restraint on the exercise of the power of cancellation vested in the Custodian and not as a negation of the power itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 12 in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan. 33. Section 14 makes provision for constituting a compensation pool for the purpose of payment of compensation and rehabilitation grants to displaced persons. The evacuee property acquired under s. 12 forms part of this compensation pool. Section 10 is important and provides inter alia that where any immovable property has been allotted to a displaced person by the Custodian under conditions published by the notification of the Government of Punjab No. 4892-S dated July 8, 1949, and such property is acquired under the provisions of the 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. It is further provided that 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. Section 40 provides for the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to them and cancelled by the impugned orders of the Custodian and the Deputy Custodian-General. He urges, however, that having regard to the whole scheme and on the assumption that the orders of cancellation, which he challenges, are erroneous, they would in the ordinary course have obtained the sanad for the lands and that the right to relief under Art. 32 must be determined on that footing. Great stress is laid on the fact that under the scheme of Central Act XLIV of 1954, even if evacuee property is acquired under s. 12 thereof, the quasi-permanent allottee is entitled to continue in possession of the property under s. 10 on the same conditions as before so long as the property remains vested in the Central Government. Stress is also laid on the fact that he can apply for transfer of the property to himself under r. 72(2) of the rules made under the Act in payment of compensation payable to him in lieu of his property left in West Punjab and that such application for transfer is normally to be granted and a sanad issued to him. In this context, learned counsel for the petitioners relies on the well-known principle, viz., where a discretionary power is vested in a statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent reason to be recorded in writing. Provided that no action shall be taken under this rule unless the allottee has been given a reasonable opportunity of being heard. 35. These are in terms wide enough to include quasi-permanent allotments. This shows that notwithstanding the privilege of the quasi-permanent allottee to continue in possession under s. 10 and the scope he has for obtaining a transfer under the same section and r. 72(2) of the rules made thereunder, his allotment itself is liable to be cancelled under s. 19 and r. 102. Hence he has no such right to obtain a transfer which can be given effect to within the principle of Bishop of Oxfords case (1880) 5 App. Cas. 214. He does not, therefore, appear to have an indefeasible right to obtain transfer of the very land of which he is the quasi-permanent allottee, if such land is acquired under s. 12 of the Act. Thus the position of quasi-permanent allottee, whether before July 22, 1952, or after that date, is that his rights, such as they are, either under the notification of July 8, 1949, or under s. 10 of Central Act XLIV of 1954, are subject to powers of cancellation exercisable by the appropriate authorities in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant to observe that the incidents of quasi-permanent allotment are entirely statutory. Subjection to the power of cancellation by the Custodian in whom the property is vested is one of such incidents and determines the quality thereof. Therefore, having given our best consideration, we are unable to hold that the interest of a quasi-permanent allottee is 'property' within the concept of that word so as to attract the protection of fundamental rights. 37. Property, to fall within the scope of Art. 19(1)(f), must be capable of being the subject-matter of acquisition and disposal . The interest of the quasi-permanent allottee arises by statutory grant to a specified class of persons and is not capable of acquisition by the ordinary citizen in any of the normal modes. Nor is it capable of disposable by the allottee himself in the normal modes by way of sale, mortgage, gift or will. Neither is the interest of the quasi-permanent allottee such as can be brought within the scope of Art. 31(2). Article 31(2) as recently amended, taken with Art. 31(2A) contemplates acquisition or requisitioning (and taking possession) as a result of transfer of the ownership or of the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case what has happened is that the quasi-permanent allotment of the petitioners has been cancelled in order to work out readjustments consequent upon the order of the higher authority. 40. Learned counsel for the petitioners has strenuously urged that under the quasi-permanent allotment scheme the allottee is entitled to a right to possession within the limits of the relevant notification and that such right to possession is itself 'property'. That may be so in a sense. But it does not affect the question whether it is property so as to attract the protection of fundamental rights under the Constitution. If the totality of the bundle of rights of the quasi-permanent allottee in the evacuee land constituting an interest in such land, is not property entitled to protection of fundamental rights, mere possession of the land by virtue of such interest is not on any higher footing. 41. Learned counsel has also drawn our attention to a number of Acts and notifications of the Punjab Government to show that a quasi-permanent allottee has been treated as being in the same position as an owner of land itself for various purposes. Thus in r. 5 of the Land Revenue Rules und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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