Bihari Lal Batra Vs. The Chief
Settlement Commissioner & Ors [1964] INSC 71 (12 March 1964)
12/03/1964 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1965 AIR 134 1964 SCR (7) 192
ACT:
Evacuee property-Land allotted to a refugee
in urban areaAllotment is invalid under the rules-Displaced Persons
Compensation and Rehabilitation Rules, 1955, Rule 2(h).
HEADNOTE:
The father of the appellant owned
considerable agricultural property in Pakistan and he with the members of his
family moved over to India on partition. The appellant's father had some
unsatisfied claim for allotment and on December 29.
1955 he was allotted some plots in Urban area
within a certain municipality. The appellant's father died in 1952 and the
allotment made was actually to the appellant in lieu of the claim of his
father. On the allotment being made, a sanad was issued to the appellant by the
Managing Officer.
When the appellant tried to take possession
of these lands, disputes were raised by respondents Nos. 4 and 5. These
respondents moved the Assistant Settlement Commissioner for cancellation of the
allotment on the ground that these disputed plots were within an "urban
area" within the meaning of r. 2(h) of the Displaced Persons, Compensation
and Rehabilitation Rules, 1955 and, therefore, the allotment to the appellant
was contrary to law. The Assistant Settlement Commissioner accepted the
contention of the respondents and allowed the appeal and cancelled the
allotment.
The appellant then applied to the Chief
Settlement Commissioner in revision. He rejected the petition. Then the
appellant moved a petition under Arts. 226 and 227 of the Constitution before
the High Court. This petition was also dismissed. the High Court granted
certificate of fitness under Art. 133 of the Constitution and hence the appeal.
Held:(i) Where an order making an allotment
was set aside by the Assistant Commissioner or Settlement Commissioner the
title which was obtained on the basis of the continuance of that sanad or order
also fell with it.
Shri Mithoo Shahani v. Union of India, [1964]
7 S.C.R. 103, relied on.
(ii)The contention of the appellant that r.
2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955, was
unconstitutional as contravening Art. 14 of the Constitution must fail. This
contention is based on the basis of the proviso to Rule 2(h). Rule 2(h) was
framed under s. 40 of the Act. This rule along with other rules came into force
on May 21, 1955. The allotment was made to the appellant on December 29, 1955
and the Sanad was issued two days later. In other words the allotment in favour
of the appellant was after the rule came into force and was not one
"already made" as stated in the proviso to r. 2(h).
Therefore, if on the date of the allotment
the land was in an urban area, the allotment would be governed by the main para
of the definition and the proviso, had no application.
193 The discrimination is said to consist in
the rule having drawn a dividing line at the date when it came into force, for
determining whether the allotment was valid or not.
Such a contention is patently
self-contradictory. Every law must have a beginning or time from which it
operates, and no rule which seeks to change the law can be held invalid for the
mere reason that it effects an alternation in the law.
It is sometimes possible to plead injustice
in a rule which is made to operate with retrospective effect, but to say that a
rule which operates prospectively is invalid because thereby a difference is
made between the past and the future, is one which cannot be accepted.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 543 of 1962.
Appeal from the judgement and order dated
November 26, 1959 of the Punjab High Court in Civil Writ No. 678 1957.
Bishan Narain and N. N. Keswani, for the
appellant.
B. K. Khanna and B. R. G. K. Achar, for
respondent Nos. 1 to 3.
D. N. Mukherjee, for respondent No. 4.
R. V. S. Mani and T. R. V. Sastri, for
respondent No. 5.
March 12, 1964. The Judgment of the Court was
delivered byAYYANGAR, J.-This is an appeal on a certificate of fitness granted
under Art. 133 by the High Court of Punjab against the order of that Court
dismissing the appellant's petition to it under Art. 226 of the Constitution.
The point in controversy lies within a narrow
compass and hence of the voluminous facts we propose to set out only those
which are relevant for appreciating the contentions urged before us. The father
of the appellant owned considerable agricultural property in Pakistan and he
with the members of his family moved over to India on partition. The
appellant's father was allotted a considerable extent of land in village
Kharar, District Ambala, but we are not concerned with that. He had still some
unsatisfied claim for allotment and on December 29, 1955 he was allotted by the
Managing Officer on quasi-permanent tenure Khasra Nos.
880, 881 and 882 which were within the
municipal area of Kharar with the regularity of which allotment alone this
appeal is concerned. It may be mentioned that the appellant's father had died
in 1952 and the allotment made was actually to the appellant in lieu of the
claim of his father. On the allotment being made, a sanad was issued to the
appellant on December 31, 1955 by the Managing Officer.
When the appellant tried to take possession
of these lands, disputes were raised by respondent& L/P (D) ISCI-7 .....
194 Nos. 4 and 5. They were not displaced
persons but they claimed that they had been in possession of this property from
a long anterior date from which they could not be disturbed and also that the
property could not be the subject of a valid allotment. These respondents moved
the Assistant Settlement Commissioner for cancellation of the allotment and
this appeal was allowed by the officer who found that the land comprised in
these three khasra numbers were within an " urban area" within the
meaning of r.
2(h) of the Displaced Persons Compensation
and Rehabilitation Rules, 1955 and consequently that the allotment to the
appellant was contrary to law. He, therefore, cancelled the allotment. The
appellant thereafter applied to the Chief Settlement Commissioner in revision
and not being successful there moved the High Court by a, petition under Arts.
226 and 227 of the Constitution..
As stated earlier, this petition was
dismissed and it is the correctness of this dismissal that is challenged in the
appeal before us.
Mr. Bishan Narain, learned Counsel for the
appellant urged in the main two contentions in support of the appeal. The first
was (1) that after the Managing Officer granted a sanad on December 31, 1955 in
the name of the President of India, the appellant obtained an indefeasible
title to the property and that this title could not be displaced except on
grounds contained in the sanad itself even in the event of the order of
allotment being set aside on appeal or revision. We have considered this point
in Shri Mithoo Shahani and Ors. v. The Union of India and Ors.(1) which was
pronounced on March 10, 1964 and for the reasons there stated this submission
has to be rejected.
The second point that he urged was, and this
was in fact the main contention raised before the High Court, that rule 2(h) of
the Displaced Persons Compensation and Rehabilitation Rules, 1955 was
unconstitutional as contravening Art. 14 of the Constitution and so the
original allotment to the appellant must be held to be lawful. We consider that
there is no substance in this argument. In fact, we are unable to appreciate
the ground on which the contention is being urged. Section 40 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 enables the Central
Government by Notification in the Official Gazette to make rules to carry out
the purposes of the Act, and in particular on an elaborately enumerated list of
matters. It was not suggested that the rules of 1955 were not competently made
under s. 40. These rules were published on May 21, 1955 when they came into
force. Rule 2(h) the validity of which is impugned in these proceedings is a
rule containing the definitions. Rule 2(h) reads, to extract what is material:
(1) [1964] 7 S.C.R. 103.
195 "2. In these rules, unless the
context otherwise requires(a) to (g)..................................
(h) 'Urban area' means any area within the
limits of a corporation, a municipal committee, a notified area committee, a
town area committee, a small town committee, a cantonment or any other area
notified as such by the Central Government from time to time;
Provided that in the case of the quasi-permanent
allotment of rural agricultural lands already made in the States of Punjab and
Patiala and East Punjab States Union, the limits of an urban area shall be as
they existed on the 15th August, 1947." The words 'of rural agricultural
lands' occurring in the proviso to this rule were replaced by an amending
Notification of 1957 by the words 'in rural area', but this amendment is
obviously of no significance. "Rural area" is defined by rule 2(f) to
mean 'any area which is not an urban area'.
Pausing here, it would be useful to state two
matters which are not in dispute: (1) that the allotment to the appellant was
made on December 29, 1955, the sanad being issued two days later. It was
therefore an allotment which was made after May 21, 1955 when the rules came
into force; (2) the other matter is that Khasra Nos. 880, 881 and 882 were
included in urban limits on February 10, 1951 by the municipal area of Kharar
being extended to cover these plots. It would, therefore, be obvious that on
the date when the allotment was made, the allotted land was in an "urban
area" and therefore it could not have been validly allotted.
We must confess our inability to comprehend
what precisely was the discrimination which the rule enacted which rendered it
unconstitutional as violative of Art. 14. So far as we could understand the
submission, the unreasonable discrimination was said to exist because of the
operation of the proviso. Under the proviso in regard to quasipermanent
allotments 'already made, i.e. made before May 21, 1955 in the States of Punjab
and PEPSU, the test of what was to be considered an "urban area" was
to be determined on the basis of the state of circumstances which obtained on
15th August, 1947. The allotment in favour of the appellant was after the rules
came into force and was not one "already made".
Therefore if on the date of the allotment the
land was in an urban area, the allotment would be governed by the main para of
the definition and so could not have been validly made and that was the reason
why it was set L, P(D) 1 SCI-, (a)..
196 aside. The discrimination is said to
consist in the rule having drawn a dividing line at the date when it came into
force, or determining whether the allotment was valid or not. It is the
discrimination that is said to be involved in this prospective operation of the
rule that we find it difficult to appreciate. It is possible that before the
rules were framed the land now in dispute could have been allotted, but because
of this it is not possible to suggest that the rule altering the law in this
respect which ex concessis is within the rule-making power under the Act, is
invalid. Such a contention is patently self-contradictory.
Every law must have a beginning or time from
which it operates, and no rule which seeks to change the law can be held
invalid for the mere reason that it effects an alteration An the law. It is
sometimes possible to plead injustice it', a rule which is made to operate with
retrospective effect, but to say that a rule which operates prospectively is
invalid because thereby a difference is made between the past and the future,
is one which we are unable to follow.
There are no merits in this appeal which
fails and is dismissed with costs.
Appeal dismissed.
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