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TMI Blog1960 (9) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ea of Lahore, the petitioner after his migration to India was given on lease 46 Kanals of evacuee agricultural land within the municipal area of Jullundur City. His lease was renewed from year to year and he has been in possession of this land ever since. In 1954 the Displaced Persons (Compensation and Rehabilitation) Act, No. 45 of 1954, was enacted to provide for the payment of compensation and rehabilitation grants to displaced persons and the Central Government acquired all the evacuee property, including the land in dispute which is urban agricultural land, and put it in the compensation pool. On the 4th June 1957, the Central Government issued the following press note in which it was mentioned as to how these urban agricultural lands would be permanently transferred: 'Evacuee urban agricultural lands in the Punjab and in the erstwhile Pepsu Union had been given temporarily on lease to displaced persons who had left such lands in West Pakistan. The leases were renewed from time to time. There has been a demand from displaced persons to whom these lands had been leased out that they should be transferred to them permanently. These demands have been made both by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. On the 15th October, 1958, another press note was issued by the Central Government announcing some concessions in addition to those already mentioned in the previous press note. It is in the following words : Evacuee urban agricultural land, in the Punjab and in the erstwhile Pepsu Union had been given temporarily on lease to displaced persons who had left such lands in West Pakistan. The leases were renewed from time to time. In order to avoid hardship to the displaced persons who were in occupation of these lands, the Ministry of Rehabilitation had decided to treat those lands in the same manner as other urban evacuee properties in the matter of allotment, subject to certain conditions. 2. In accordance with this decision, urban agricultural plots, the value of which did not exceed Rs. 10,000/- were made transferable at the reserve price to the lessees or sub-lessees in occupation under Certain conditions. The details of these conditions were explained in a press note issued by the Ministry of Rehabilitation in June, 1957. 3. It has been represented to the Government of India that the concessions in regard to the transfer of agricultural plots, announced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the unit of disposal was a holding, i.e., several plots or khasra numbers. If such a holding was valued at Rs. 10,000/- or less, the lessee or the sub-lessee, as the case may be, was entitled to allotment. If the value of the holding as such was more than Rs. 10,000/-, no allotment was to be made. 2. In the September instructions further concessions were envisaged. Under these concessions, even if the holding, i.e., several plots or khasra numbers taken together were valued at more than Rs. 10,000/-, the lessee or the sub-lessee, was entitled to choose one single plot or khasra number for allotment, provided that this plot cr khasra number was valued at Rs. 10,000/- or less. According to the present instructions the basic unit is a plot or khasra number and not a holding except that where a holding consisting of several plots is valued at less than Rs. 10,000/-, the holding as such is allotted, I must emphasize that wherever the word 'plot' has been used in the latest instructions, this is synonymous with khasra number . 5. In contravention of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 19S4, hereinafter called the Act, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in them under Sub-section (1) of Section 16 of the Act and were quite legal, that no illegality had been committed by granting certain concessions to displaced persons, that the total value of the petitioner's holding exceeded Rs. 10,000/- and the same was saleable under the press notes, that the memorandum had been issued by the Chief Settlement Commissioner in exercise of the powers vested in him by virtue o the provisions of Rule 87, that the respondents were fully competent to issue executive orders regarding the manner, terms and conditions on which the acquired evacuee urban agricultural lands in the Punjab should be disposed of, and that the press notes and instructions issued by them were, consequently, legal. 8. Learned counsel for the petitioner has argued that both the press notes issued by the Central Government and the memorandum issued by the Chief Settlement Commissioner are merely departmental or executive instructions and cannot have the statutory force of the Rules framed under the Act and consequently any action taken or intended to be taken on the basis of these press notes and memorandum is of no legal effect. He further submits that no rules have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Area Committee, Town Area, Small Town Committee and Cantonment, as these limits stood on the 15th August, 1947'. Land situated within urban area is, like other property in urban areas, subject to sale or exchange. For this reason the general scheme of land resettlement comprises only those evacuee lands which are not by definition urban lands. From the area abandoned by a displaced person, therefore, land held by him in an urban area has been placed in a separate category and only the balance of his land, described as agricultural property, is subjected to valuation and cut with a view to allotment of agricultural land in East Punjab and Pepsu . 12. Moreover, in Appendix I to the Rules, in the application form for compensation in column 10(b) urban agricultural lands is entered as a distinct and separate class of evacuee property. I may mention here that the learned counsel for the respondents did not seriously dispute the fact that this was a separate category of evacuee property and the displaced Persons in possession of such Property were considered to be a separate class by themselves. 13. Coming to the relevant provisions of the Act, Section 4 of the Act requires a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following matters, namely: ******** (c) the scales according to which, the form and manner in which, and the instalments by which, compensation may be paid to displaced persons; ******** (j) the procedure for the transfer of property out of the compensation pool and the manner of realisation of the sale proceeds or the adjustment of the value of the property transferred against the amount of compensation; * * * * * * * * 15a. In exercise of the powers conferred by Section 40 of the Act, detailed rules have been framed by the Central Government and they are called the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, and are divided into various chapters. It is significant to note that Rules have been framed for payment of compensation out of various categories of evacuee property except urban agricultural land. 16. If one were to read Sections 8, 14 and 40 of the Act together it is quite plain that for the purpose of payment of compensation to different classes of displaced persons under the Act, the Central Government had to make rules regarding the various categories of evacuee property. As a matter of fact Rules have been framed with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the class of people for whose benefit the Rules have to be framed have been specifically pointed out in the Act and they are displaced persons as defined in Section 2(b) of the Act, and Section 8(2) of the Act defines the conditions upon which they are entitled to call for the exercise of that power. 19. Learned counsel for the respondents then referred to the case of Baker, In re; Nichols v. Baker, (1890) 44 ChD 262, wherein also reliance was placed on the case of (1880) 5 AC 214. Besides, at page 273, Lopes, L. J., observed: Now the word used in Sub-section (4) is 'may', and the word 'may' is beyond all question potential, it implies a power; but, if it is coupled with a duty on the Court or the person to whom it is given to use that power in a certain particular way, it then no doubt becomes imperative . 20. After examining the relevant provisions of the Act, I am of the view that it was necessary for the Central Government under the Act to frame rules for this class of displaced persons also. These Rules are necessary in order that the objects of the Act may be attained. The Act really imposes a duty on the Central Government to make rules to car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, according to Rule 23, ordinarily be sold. Rule 23 immediately follows Rule 22 and therefore they should be read together and reading them together, my view is that the words all acquired evacuee properties do not cover all types of evacuee properties, as contended by the learned counsel for the respondents, but refer only to those three types of evacuee properties mentioned in Rule 22 and which are not allottable under that rule because of the value of those properties being above their prescribed limits mentioned in Rule 22. This is also clear from the words which are not allottable under Rule 22 in Rule 23 which immediately follow the words all acquired evacuee properties in the same rule. If one were to accept the contention of the learned counsel for the respondents that the list of allottable evacuee properties is given in Rule 22 and the rest is all saleable under Rule 23, then even agricultural lands in rural areas, groves and gardens, rural houses and shops will also become saleable, which is not the case. By Rule 44 certain houses and shops in rural areas have been made allottable. By virtue of Rule 49, agricultural land in rural areas is also allottable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced persons and now they are trying to utilise them as a substitute for rules which they cannot do under the law, because executive or departmental instructions have no statutory force and cannot override or curtail or enlarge the scope of the provisions of the Act or the Rules. 28. Reliance was then placed by the learned counsel for the respondents on the provisions of Section 16(1) of the Act and Rule 87 of the Rules, and it was submitted that the Central Government was fully authorised to take any measures as it considers necessary or expedient for the disposal of the compensation pool. 29. In my opinion, Section 16 has to be read along with Section 8 of the Act, and Section 16 only provides a procedural machinery for the custody, management and disposal of the compensation pool. Right of disposal of the compensation pool is there but it is subject to the provisions of the Act, and the Act says that the rules shall be framed under ,Sections 8 and 40. The Central Government cannot override and by-pass Section 8(2) and Section 40(2) (c) and (j) of the Act. It cannot take recourse to Section 16 of the Act for prescribing a mode for payment of compensation to displaced pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons to whom compensation may be paid; (b) X XX (c) XXX (d) X X X Sub-section 1 of Section 40 which deals with power to make rules, provides: The Central Government may, by notification in the official Gazette make rules to carry out the purposes of this Act . Sub-section 2 while saving the generality of the power as given in Sub-section (1) particularises the matters which may be provided by rules and they include: (c) the scales according to which, the form and manner in which, and the instalments by which, compensation may be paid to displaced persons; * * (j) the procedure for the transfer of property out of the compensation pool and the manner of realisation of the sale proceeds or the adjustment of the value of the property transferred against the amount of compensation . 34a. As the extensive rule making power, conferred upon the Central Government, is in the nature of subordinate legislation by the executive, Sub-section (3) of Section 40 provides a very desirable and essential legislative control. It reads: (3) All rules made under this section shall be laid for not less than thirty days before both Houses of Parliament, as soon as possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The above words cannot be read in a detached manner, and in utter disregard of the context, in which, they were used. In that case, all that was held was, that the power given by the Bankruptcy Act 1883, Section 125, Sub-section 4, to transfer the administration of an insolvent estate from the Chancery Division to the Court of Bankruptcy, is a discretionary power, and not a power which the Judge is bound to exercise whenever the estate is shown to be insolvent. It is an error to assume, that Cotton L. J. intended to convey, that under no circumstances the word 'may' can be construed in mandatory sense. This is also clear from the observations at pages 268 and 271 of Cotton L. J. During the course of the counsel's arguments, he remarked, It is an inaccuracy of language to say that may can mean must or shall . It simply confers a power. We must look at the object of the statute to see whether a duty to exercise the power is imposed, (vide page 268). During the course of the judgment, Cotton L. J. said: In my opinion there is given by the word may a power as to the exercise of which there is a discretion, and there is not here enough to show that it was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, that where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application. The question in that case related to the interpretation of the word may in the 13th Section of the County-courts Extension Act, which provides, that, in certain cases, the court or a judge at chambers may by rule or order direct that the plaintiff shall recover his costs. Jervis, C. J., at page 679 said : ............ we are of opinion, that the word may is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. But, if it be doubtful in which sense the word may is used, we should be justified, by the rule of construction to which we have referred, in considering whether absurdity or repugnance would not follow from holding that a discretion was given, and might accordingly modify the word so as to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stulates a purposeful contrariety, which cannot be imputed to the Legislature, as that would lead to reductio ad absurdum. 41. The apparent intention of the statute as gathered from the context is that whenever it has to determine the mode of payment of compensation to the several classes of displaced persons or to effectuate the general and specified purposes of the Act, the Government must frame rules and it cannot proceed with those matters otherwise. The use of the word may in the above provisions though facultative, nevertheless, makes it obligatory on the Government, to make rules and then to proceed with the matter in accordance with them, and not to omit to make rules and give effect to the provisions through Press Notes and thus bypass the provisions of Sub-section (3) of Section 40 which require legislative scrutiny of both Houses of Parliament in relation to the rules. The clear intention of the relevant provision is that if the Government desires to exercise certain powers in order to give effect to the Legislative intent, it has to do so by framing appropriate rule and in no other way. The statutory directions given to the Central Government that it may make ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guity in the language employed. That construction has to be preferred which carries out rather than defeats the object of the statute, according to the principle ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). Wherever possible, words ought to be made subservient, and not opposed to the intention of the framers of the Act. An interpretation which may result in thwarting the real intention of the Legislature by resort to a disingenuous device to facilitate circumvention cannot but be discountenanced. 44. The holders of urban agricultural land form a separate class of displaced persons and even the Press Notes of the Government make this obvious and it was, therefore, necessary to frame rules for this class. I do not agree with the contention of the learned Advocate-General, that the existing provisions, both in the Act and in the rules, cover the case of this class of displaced persons. The argument that Section 16 allows the Central Government to take such measures, as it considers necessary, or, expedient for the custody, management and disposal of the compensation pool in order that it may be effectively utilized in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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