Dunichand Hakim And Others vs Deputy Commissioner (Deputy Custodian)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 324 of 1953

Decision Date: 18 December 1953

Coram: Ghulam Hasan, M. Patanjali Sastri, Vivian Bose, B. Jagannadhadas

In this case the Supreme Court of India rendered its judgment on 18 December 1953 in the matter of Dunichand Hakim and others versus the Deputy Commissioner (Deputy Custodian Evacuee Property). The judgment was authored by Justice Ghulam Hasan and was delivered by a bench comprising Justice Ghulam Hasan, Justice M. Patanjali Sastri, Justice Vivian Bose and Justice B. Jagannadhadas. The citation of the decision appears as 1954 AIR 150 and 1954 SCR 578, with a further citation recorded as E 1957 SC 599 (4). The statutory provisions relied upon included sections 2, 12 and 56(2) of the Administration of Evacuee Property Act (Act XXXI of 1905), dealing with the allotment, cancellation of allotment and the jurisdiction of the Deputy Custodian. The headnote of the judgment held that the Deputy Custodian possessed authority to cancel land allotments both under the East Punjab Evacuees’ (Administration of Property) Act, XIV of 1947 and under the Administration of Evacuee Property Act, XXXI of 1950, with the latter Act superseding the former. It further observed that no notice was required for cancellation under the rules framed pursuant to section 56, and that the petitioners-allottees in the present proceedings had been furnished notice and afforded a full opportunity to present their case before their allotments were cancelled.

The petition, numbered 324 of 1953, was filed under article 32 of the Constitution and sought the issuance of writs of certiorari, mandamus and prohibition, or any other appropriate orders directing the quashing of two orders dated 1 July 1952 and 14 October 1953 that had been passed by the Deputy Commissioner (Deputy Custodian Evacuee Property) in Karnal, State of East Punjab. The petitioners, who were twenty displaced persons from Pakistan, claimed that these orders infringed their fundamental right to hold property guaranteed by article 19(1)(f) of the Constitution. They explained that prior to the partition of 1947 they owned agricultural land in Tehsil Chunian, District Lahore, which was predominantly first-grade canal-irrigated land yielding on average sixteen to twenty maunds of wheat per acre. Following partition, the Government of East Punjab faced the urgent problem of settling agricultural lands abandoned by Muslim evacuees and therefore, on 15 September 1947, decided to allot evacuee lands for the Kharif and Rabi seasons of 1947-48 to avert famine and a decline in agricultural production. Accordingly, the petitioners were settled on land in the village of Dhakala, a recognised first-grade village in Tehsil Thanesar, District Karnal, where their claims were verified under the East Punjab Refugees (Registration of Land Claims) Act XII of 1948 and they received specific allotments under Notifications No 489 1/S and 489 2 S dated 8 July 1949 on a quasi-permanent basis as compensation for the lands left behind in Pakistan. Subsequent to the alleged downgrading of their original Pakistani holdings, the land allotted to them was re-allotted on 25 April 1951 to Ishar Singh and others, who appear as respondents opposing the present petition. In July 1951 the petitioners approached the East Punjab High Court under article 226 for a writ restraining their eviction; however, as no formal cancellation of the allotment had occurred by that time, they withdrew the petition in 1952.

The Government’s policy was to provide a means of livelihood for the agricultural refugees. In accordance with that policy, the petitioners were settled on land in the village of Dhakala, which was admittedly a first-grade village, situated in Tehsil Thanesar, District Karnal, in the State of East Punjab. Their land-claim applications were examined and verified under the provisions of the East Punjab Refugees (Registration of Land Claims) Act, 1948. Following verification, the petitioners were allotted specific parcels of land on a quasi-permanent basis, as stipulated in the statements of conditions contained in Notification Nos. 489-1/S and 489-2/S dated 8 July 1949, to compensate for the lands they had left behind in Pakistan.

Subsequently, it was alleged that the lands left by the petitioners in Pakistan had been re-graded from first to second grade. As a result of this alleged re-grading, the parcels that had been allotted to the petitioners were re-allotted on 25 April 1951 to Ishar Singh and other respondents who now oppose the present petition. In July 1951, the petitioners approached the East Punjab High Court under Article 226 of the Constitution, seeking a writ to restrain their eviction from the allotted lands. Because no formal cancellation of the allotment had occurred at that time, the petitioners withdrew their writ application sometime in 1952. Nevertheless, the original allotment was cancelled on 1 July 1952.

The cancellation order of 1 July 1952 was challenged by the petitioners through a revision petition filed under Section 27 of the Administration of Evacuee Property Act, 1950. The Deputy Custodian General dismissed the revision petition on 2 December 1953, holding that the Deputy Custodian’s order was neither illegal nor beyond jurisdiction, on the ground that the petitioners had not been served with any notice of cancellation of the allotment. During the hearing, it was observed that the petitioners had, on 9 May 1952, conceded before the Assistant Custodian that the lands they had abandoned in Pakistan were second-grade lands, yet they continued to claim that they ought to be allotted first-grade lands.

The order dated 1 July 1952 is the first order that the petitioners contest before this Court, alleging that it was issued without jurisdiction and that it infringed their fundamental right to hold the allotted property. The petition further alleges that, despite the cancellation, the petitioners remained in actual cultivating possession of the allotted lands. Nonetheless, an order was issued by the first respondent on 14 October 1953, which stated, in substance, that “the Government has decided that where persons have secured possession of part of the land, the order shall be deemed to have been implemented. In the case of M/s Ishar Singh, Rakha Singh and others of the village Dhokala, they were in possession of part of the land before 6 May 1953. Accordingly, they should be given possession of the remaining area by ousting Duni Chand and others, who are II and III grade allottees but were wrongly allotted land in a first-grade village.” The petitioners contend that the 14 October 1953 order was passed without any legal authority and deprives them of their right to hold the property allotted to them. Before addressing the validity of the impugned orders, the Court proceeds to examine the matters raised.

In this case it was necessary to refer to a compilation known as the Land Resettlement Manual for displaced persons in Punjab and Pepsu, which counsel for the petitioners relied upon heavily in his arguments. The Manual was prepared by Mr Tirlok Singh, I.C.S., who served as Director General of Relief and Rehabilitation in East Punjab, and it contains the policy decisions of that Government concerning the settlement of land for refugees soon after partition. The Manual shows that originally a temporary settlement was created, but shortly thereafter an elaborate organisation was established to make allotment of lands on a quasi-permanent basis. Displaced persons lodged claims for the agricultural land they had abandoned in West Punjab and those claims were verified with the help of revenue records exchanged with the West Punjab Government. The Manual bears the stamp of authority because its foreword was written by Mr P N Thapar, I.C.S., Financial Commissioner, Department of Relief and Rehabilitation, and Secretary to the Punjab Government, Relief and Rehabilitation Department. The Manual records that by the end of 1947 the displaced persons had been allotted lands on a temporary basis, yet there was an insistent demand for settlement on a permanent basis. In a communique dated 7 February 1948 a new system of quasi-permanent allotment was devised, the underlying object being to allow the displaced persons to remain in quiet and undisturbed enjoyment of the lands allotted to them. They were not to obtain proprietary rights or rights of permanent occupation, and the very description of the settlement as quasi-permanent indicated that it was not intended to be irrevocable. Paragraph 19 of the Manual states: “Until issues relating to evacuee property are resolved between India and Pakistan, ownership in each country of property abandoned by evacuees continues to rest with them.” This led to the use of the expression quasi-permanent as the keyword for the resettlement scheme introduced in East Punjab and Pepsu. The various Evacuee Property Ordinances passed by the Central or the State Governments, later replaced by Central Act No XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until a final decision was reached by the Government of India as to its ultimate destination. Paragraph 21 of the Manual contains the statement of conditions which counsel for the petitioners characterised as the charter of their rights. That paragraph explains that the rights of persons to whom land is given in the scheme of quasi-permanent resettlement are defined in East Punjab by two statements of conditions dated 8 July 1949, issued with Notifications Nos 4891/S and 4892/S, and this statement appears on page 193 of the Manual. Paragraph 3 of the statement says that the allotment shall be in favour of displaced persons and

The provision provided that the land would remain vested in the Custodian for a period subject to the provisions of the Act. Paragraph eight of the scheme stated that “the allottee paying the rent hereby reserved and observing and performing the several covenants, conditions and stipulations herein on his part contained, shall peacefully hold and enjoy the allotted land during the said term without any interruption by the Custodian or the Rehabilitation Authority.” Relying on these clauses, counsel for the petitioners argued that while the land stayed vested in the Custodian, the petitioners could not be dispossessed of the parcels that had been allotted to them on a quasi-permanent basis, and that any cancellation of the allotment required prior notice to the petitioners. The Court then turned to consider this contention. It was established that the statute governing the allotment at the time of its grant was the East Punjab Evacuees’ (Administration of Property) Act, XIV of 1947. That Act defined “allotment” as a grant, made by the Custodian, a Rehabilitation Authority, or any other person duly authorised by the Custodian, of a temporary right of use and occupation of evacuee property to a person, not by way of lease. Section 9 of the Act gave the Custodian powers relating to property management, and subsection 2 of section 9(A) expressly empowered the Custodian to cancel any allotment or to terminate or amend the conditions of any lease. Further, section 22, subsection 2(ff), authorised the Provincial Government to make rules specifying the circumstances in which leases and allotments could be terminated or the terms thereof varied. Subsequently, the East Punjab Act was superseded by the Central Administration of Evacuee Property Act, XXXI of 1950. The definition of “allotment” in the Central Act, found in section 2(a), was substantially the same as the earlier definition. Sections 12(1) and 56(2)(h) of the Central Act corresponded to section 9(A) and section 22(ff) of the 1947 Act respectively. Consequently, the Court held that the Deputy Custodian possessed clear jurisdiction to cancel the allotment under both the State legislation and the Central legislation, a point that could not be seriously contested. The cancellation exercised by the Deputy Custodian was carried out in accordance with the powers conferred by rules framed by the Provincial Government. In particular, the Custodian had issued a notification on 8 July 1949 pursuant to those rules. Rule 14(2), made under section 56, enumerated the situations in which leases and allotments could be cancelled or varied. Sub-rule 3 of that rule provided that the Custodian could evict an allottee who had obtained the allotment by misrepresentation or fraud, or who was found to be in possession of more than one evacuee property or occupying accommodation beyond his actual requirements. Sub-rule 4 required that before the Custodian passed any order cancelling or varying the terms of a lease, the Custodian must serve a notice to show cause on the person or persons affected, informing them of the proposed order and giving them a reasonable opportunity to be heard.

The Court observed that the rules required a notice and a reasonable opportunity to be heard before an order of cancellation could be made, but they did not prescribe a notice for cancellation of an allotment. The distinction, the Court explained, arose because a lease is granted for a fixed term and it is therefore equitable to give the lessee notice before terminating the lease prior to its expiry, whereas an allottee under the quasi-permanent settlement occupies a different position. Nevertheless, the Court considered that the issue was merely academic in the present proceedings, because the petitioners had been afforded a full opportunity to present their case before the allotment was cancelled. The order of the Deputy Custodian General dated 2 December 1953, which rejected the petitioners’ revision, demonstrated that the petitioners had indeed been heard. That order recorded that the Assistant Custodian had served a notice on the petitioners requiring them to show cause why the allotment of first-grade land, while they were all second-grade claimants, should not be cancelled. The petitioners appeared before the Assistant Custodian on 9 May 1952, their statements were recorded, and they admitted that their land was second-grade. On that basis, the Assistant Custodian reported to the Deputy Custodian, recommending cancellation of the allotment. Acting on this report, the Deputy Custodian cancelled the petitioners’ allotment in the village of Dhakala on 1 July 1952. The petitioners raised this point before the Deputy Custodian General, who held that section 12 of the Central Act did not require a notice of cancellation to be issued to the petitioners and that the order was not beyond jurisdiction because substantial compliance with rule 14 had been achieved. It was contended, however, that the cancellation order was defective because the Deputy Custodian had not given the petitioners any prior notice before passing the order. The Court noted that the Assistant Custodian, acting under the Deputy Custodian’s authority, had already heard the petitioners and recorded their statements, and therefore there was no necessity to hear them a second time. The Deputy Custodian had filed an affidavit stating that a notice had been given on 9 May 1952, that the petitioners had appeared on that date, that their statements had been recorded, and that their allotments were cancelled on 1 July 1952. Accordingly, the Court held that the contention that the Deputy Custodian’s order was without jurisdiction because it was passed in the absence of the petitioners and without a hearing had no merit. Even assuming that the cancellation order had been made during the operation of a stay order, the Court found that the order could not be challenged on that ground. The next contention raised by the petitioners was that the cancellation order conflicted with the Ministry of Rehabilitation’s order dated 14 May 1953, which prohibited authorities from cancelling allotments unless the orders in respect of them had not been implemented by 22 July 1952. The Court concluded that this contention also lacked merit.

In this case the Court noted that the contention based on the statement that the orders concerning the allotments had not been implemented by 22 July 1952 was without merit. The Court observed that the question of amending sub-rule (6) of rule 14 of the Central Rules had been the subject of a series of letters exchanged between the Central Government and the Government of East Punjab. In the letter dated 14 May 1953 the Central Government referred to a notification it had issued on 22 July 1952, which provided that any order cancelling an allotment after a prescribed date would be enforced only if the allotment fell within the categories of “undeserved” or “excessive”. The Court explained that the purpose of that notification was to stabilise quasi-permanent allotments, but that, after a representation by the State Government, the restrictive clause concerning orders passed before the specified date was relaxed and the State was authorised to implement its own orders by 22 July 1952.

The Court further stated that, after additional consideration, the Central Government decided that all cancellation orders issued before 22 July 1952 but not put into effect by 6 May 1953 would remain in abeyance except in three situations: (a) where the allotment was undeserved, (b) where the allotment was excessive, and (c) other categories later specified. The Court added that the Central Government further resolved that no other cancellation order would be executed until a contrary decision was issued by the Central Government. The correspondence indicated that the Ministry of Law was being consulted to prepare the necessary amendments to the rules, and that, acting on this decision, the East Punjab Government gave instructions to the Deputy Commissioners.

The Court noted that there was a dispute about the meaning of the term “implementation”. Before a further reference could be made to the Central Government, the Punjab Government resolved that the status quo among land allottees should be maintained. Accordingly, if a cancellation order issued before 22 July 1952 had not resulted in the possession of the original allottee being transferred to a new allottee by 6 May 1953, the possession would continue to remain with the original allottee. The Court emphasized that this correspondence merely demonstrated that the Central Government had articulated a provisional policy concerning the amendment of sub-rule (6) of rule 14, pending advice from the Law Ministry, but that the policy was never put into effect and no rule was formally framed to implement it.

The Court concluded that the Central Government had only issued interim instructions while the amendment of the rule was under consideration, and because no rule was promulgated, those instructions did not acquire any statutory force. The Court further observed that merely staying the implementation of the orders mentioned in the policy statement did not nullify the effect of the cancellation orders already issued. Although sub-rule (6) to rule 14 was eventually added, it was not incorporated in the manner originally intended, and consequently the earlier cancellation orders continued to stand on grounds other than “undeserved” or “excessive” allotments. Finally, the Court held that once the Deputy Custodian passed the cancellation order, the petitioners lost their right to possession.

The Court examined the petitioners' assertion that they were entitled to possession of the disputed property and considered whether the correspondence dated 14 May 1953 could revive that entitlement. It concluded that even if the letter of 14 May 1953 were treated as a formal direction issued by the Central Government under the authority of section 54, such a direction could not restore the possession that had already been lost. Therefore, the Court held that the petitioners had not demonstrated any infringement of a fundamental right protected by the Constitution. The Court further examined the two orders issued by respondent No. I and found that both orders were wholly valid and were exercised within the jurisdictional limits of that respondent. On that basis, the Court ordered that the petition be dismissed and directed that the costs of the proceedings be awarded to the first respondent. The dismissal of the petition was thus confirmed and entered into the record. The petitioner's counsel was Harbans Singh, who acted as the agent for the petitioners in these proceedings. The agent representing respondent No. 1 was G. H. Rajadhyaksha, who served as counsel for that respondent. The agents for respondents numbered two through fourteen were listed as R. K and Kuba, who acted on behalf of those respondents.