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State of Punjab Vs. Suraj Parkash Kapur [1961] INSC 217 (4 May 1961)

SUBBARAO, K.

KAPUR, J.L.

HIDAYATULLAH, M.

SHAH, J.C.

DAYAL, RAGHUBAR

CITATION: 1963 AIR 507 1962 SCR Supl. (2) 711

CITATOR INFO :

RF 1973 SC2344 (2) RF 1979 SC1328 (16)

ACT:

Evacuee Property Lands allotted to evacuee by Custodian Government notification for consolidation of holdings-Draft scheme by Consolidation Officer Substituting lands by lands of less value on Government direction-Validity of scheme Application for issue of writ by allottee –Maintainability East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab 50 of 1948), S. 14Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), SS. 10, 12--Administration of Evacuee Property (Central) Rules, 1950, r. 14(6)-Constitution of India, Art. 220. 712

HEADNOTE:

The respondents, a joint Hindu family and evacuees from Pakistan, were allotted certain lands by the Custodian of Evacuee Property. A draft scheme for consolidation of holdings was framed and published by the Consolidation Officer in pursuance of a notification by the State Government under s. 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.

The scheme under the directions of the State Government and contrary to the Act substituted lands of a lesser value for those already allotted to the respondents. Objections filed by the respondents were rejected by the Consolidation Officer and the scheme was confirmed by the Settlement Commissioner. Before the confirmation, the Central Government by a notification under S. 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, acquired all evacuee properties and after the said confirmation issued a sand conferring proprietary rights of the said lands on the respondents. The respondents bad moved the High Court under Art. 226 of the Constitution before the issue of the sanad but the matter was finally disposed of by the High Court thereafter by setting aside the said scheme and directing the Consolidation Officer to dispose of the matter according to law.

Held, that the notification issued by the Central Government under s. 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, did not put an end to the rights the respondents had in the lands originally allotted to them by the Custodian and they had the right to move the High Court under Art. 226 of the Constitution. Sections 10 and 12 of the said Act read with r. 14(6) of the Rules framed under the Administration of Evacuee Property Act, 1950, made it amply clear that the respondents held a quasi-permanent tenure in the said lands and as such had a valuable right therein. Such right continued while they remained in possession and the lands remained vested in the Central Government and with the grant of the sanad the limited right they had in the lands became a full-fledged right of property.

Amar Singh v. Custodian, Evacuee Property, Punjab, [1957] S.C.R. 801, referred to.

The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, did not empower the Consolidation Officer to take away an allottee's lands without giving him other lands of equal value or paying compensation nor did the Act empower the State Government either to do so in any way or to direct the Consolidation Officer as to how he should exercise his powers there under.

Since, in the instant case, the respondents' lands had admittedly been substituted by lands of less value and no compensation had been paid to them, the High Court was right in setting aside the order confirming the scheme.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 349 of 1959.

Appeal from the judgment and order dated February 1, 1957, of the Punjab High Court, in Civil Writ Application No. 385 of 1955.

B. K. Khanna and D. Gupta, for the appellants.

The respondent did not appear.

1961. May 4. The Judgment of the Court was delivered by SUBBA RAO, J.-This appeal by certificate is preferred against the order of the Punjab High Court dated November 9, 1956, setting aside the order of the Consolidation Officer and directing him to proceed with the matter in accordance with law.

The respondents are members of a joint Hindu family and are evacuees from Pakistan. On March 3, 1950, in lieu of the lands left by the family in Pakistan, the Custodian of Evacuee Property allotted to the said. family 11 standard acres and 9 units of Grade 'A' land in Pati Kankra, Shahabad Estate in Tehsil Thanesar in Karnal District. The said units were valued as equal to 123 standard kanals and 18 standard marlas of 'A' Grade land. The family took possession of the said land, and, it is alleged, made improvements thereon. On July 28, 1954, the State Government issued a notification under s. 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), declaring its intention to make a scheme for the consolidation of the holdings. On April 30, 1955, a draft scheme was proposed by the Consolidation Officer and published indicating, inter alia, that the respondents' family would be given 84 standard kanals consisting of 50 standard kanals and 7 standard marlas of 'A' Grade land, and 34 standard kanals and I standard marla of 'B' Grade land.

The lands proposed to be substituted for the lands already allotted on quasi-permanent tenure to the respondents' family are admittedly of a lesser value than the land allotted to them earlier. The said consolidation was not made 714 in strict compliance with the provisions of the Act, but pursuant to administrative directions given to the Consolidation Officer by the State Government. Broadly stated, under the said directions the Consolidation Officer was directed to take into consideration, for the purpose of consolidation, the number of acres held by the evacuee and not the actual valuation at site of the land allotted to him. The objections filed by the respondents were rejected by the Consolidation Officer. By an order dated August 6, 1958, the Settlement Commissioner confirmed the scheme propounded by the Consolidation Officer. Meanwhile, the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954) became law; it came into force on October 9, 1954, i.e., after the Estate had been notified for consolidation of holdings. On March 24, 1955, the Central Government issued a notification under s. 12 of the Displaced Persons Act (44 of 1954) acquiring all the evacuee properties to which that Act applied. This notification was issued before the scheme of consolidation was confirmed by the Settlement Commissioner. On February 23, 1956, the Central Government issued a sanad conferring proprietary rights on the respondents in respect of the lands allotted to them in 1950. This sanad was issued after the order of the Settlement Commissioner confirming the scheme of consolidation. On November 9, 1955, i.e., before the said sanad was issued to them, the respondents filed a petition in the High Court of Punjab under Art. 226 of the Constitution praying for the issue of an appropriate writ to quash the said scheme of consolidation. The High Court by its final order dated February 1, 1957, allowed the said objection and issued a direction to the Consolidation Officer to proceed with the matter before him in accordance with law.

Mr. Khanna, learned counsel for the State, raised before us the following two points: (1) The respondents had no legal right to maintain the petition under Art. 226 of the Constitution. And (2) the directions issued by the State Government were validly issued and, therefore, the Consolidation Officer was 715 within his rights to formulate the scheme on the basis of those instructions.' Re. (1). The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the court under Art. 226 of the Constitution. The right that can be enforced under Art. 226 of the Constitution shall ordinarily be the personal or individual right of the applicant. It may be first considered whether the respondents had such a right on the date when they filed the petition under Art. 226 of the Constitution. They filed the petition on November 9, 1955, i.e., after the Central Government issued the, notification acquiring all the evacuee properties and before it issued the sanad conferring proprietary rights on the respondents in respect of the lands allotted to them. The nature of interest of a displaced person in the properties allotted to him under the evacuee law has been authoritatively decided by this Court in Amar Singh v. Custodian, Evacuee Property, Punjab (1). There, Jagannadhadas, J., speaking for the Court, after an elaborate survey of the law on the subject, came to the conclusion that the interest of a quasipermanent allottee was not property within the meaning of Art. 19(1)(f) and Art. 31(2) of the Constitution. But the learned Judge made it clear that, notwithstanding the said conclusion an allottee had a valuable right in the said interest. The learned Judge stated the legal position in the following words:

"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 recognized 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 zealous protection of the constituted authorities according to administrative rules and instructions binding on them, and of the (1) [1957] S.C.R. 801, 836.

716 courts by appropriate proceedings where there is usurpation of jurisdiction or abuse of exercise of statutory powers." It may be mentioned that the learned Judge in coming to the conclusion noticed all the relevant Acts on the subject, including the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) and particularly s.

12 thereof. The observations of this Court indicate that notwithstanding such notification an evacuee has a valuable right in the property allotted to him, and that the said right is entitled to the protection of the constituted authorities and the courts. A perusal of the relevant provisions of Act 44 of 1954 demonstrates the correctness of the said observations.

Section 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 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.

Section 12. (1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such 717 persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.

A reference to r. 14(6) of the rules made under the Administration of Evacuee Property Act, 1950, will also be useful in this context. Tinder that rule, the Custodian has no power to make any order after July 22, 1952, cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here. The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted to them in 1950.

After July 22, 1952, the Custodian ceased to have any authority to cancel or modify the said allotment. After the notification issued by the Government under s. 12 of the Act, so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable, right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.

That apart, on February 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties. Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed 91 718 into a full-fledged property right. In the circumstances of the case, the High Court was-fully justified in taking note of that fact. From whatever perspective this case is looked at, it is obvious that the respondents hate sufficient interest in the property to sustain their petition under Art. 226 of the Constitution.

Re (2). The second point has absolutely no legs to stand upon. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enacted, in the words of the long title annexed to the Act, to, provide for compulsory consolidation of' agricultural holdings and for the. prevention of fragmentation of agricultural holdings in the State of Punjab. Under s. 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property of equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of 'A' Grade land on a quasi permanent basis by the Custodian and later confirmed by the Central Government, the consolidation proceedings gave him only 50 kanal 8 and 7 marlas of 'A' Grade land, and 34 kanals and 1 marla of 'B' Grade land. The area given under the consolidation proceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provision in the Act empowering the State Government to 719 give any such instructions to the Consolidation Officer;

nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land of any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the provisions of the Act. That apart, no such statutory rule empowering the State Government to issue such instructions has been placed before us. Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the 'scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court.

In the result, the, appeal fails and is dismissed with costs.

Appeal dismissed.

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