1957 Supreme(SC) 33

SUPREME COURT OF INDIA
29th March, 1957
BHAGWATI, JAGANNADHA DAS, IMAM, GOVINDA MENON AND KAPUR, JJ.
Amar Singh and others, Petitioners
Versus
Custodian, Evacuee Property Punjab and another, Respondents.
Petn. No. 351 of 1954.
Advocates appeared
Mr. N. S. Bindra, Senior Advocate (M/s Udhat Bhan Choudhury and Gopal Singh, Advocates with him), for Petitioners; Mr. S. L. Pandhi and Mr. K. L. Mehta, Advocates, for Murat Singh - Intervener.

Headnote:Administration of Evacuee Property Act, 1950, Ss. 12 and 50-Administration of Evacuee Property (Central Rules (1950), R. 14)-Displaced Persons (Compensation and Rehabilitation Act, 1954, Ss. 10,• 12 and 19-Displaced Persons Compensation and Rehabilitation Rules (1957), Rr. 72 (2) and 102.

       E. p. Evacuees (Administration of Evacuee Property) Act, 1947, Ss. 9A and 22(2) (f) and (ff).

       Rights of quasi-permanent allottee do not constitute property within Articles 19(1) (f), 31 (I) and 31(2) of the Constitution. - Articles 31 (I) and 31 (2)-Administration of Evacuee Property Act, 1950, Ss. 12 and 50-E.P. Evacuees (Administration of Evacuees Property) Act, 1947, SS.9A and 22 (2) (f) and (ff)Rights of quasi-permanent allotted do not constitute property within Articles 19 (1) (f), 31 (I) and 31 (2) of the Constitution. - Articles 19 (I) (f), 31 (I) and 31 (2)-Administration of Evacuee Property Act, 1950, Ss. 12 and 50-Administration of Evacuee Property (Central Rules, 1950, R. I4)-Displaced Persons (Compensation and Rehabilitation) Act, 1954. Ss. 10, 12 and 19Displaced Persons. (Compensation and Rehabilitation Rules, 1957, Rr. 72 (2) and 102.

       E. P. Evacuees (Administration of Evacuee Property) Act, 1947, Ss. 9 A and 22 (2) (f) and (ff).

       Rights of quasi-permanent allottee do not constitute property within Articles 19 (I) (f), 31 (I) and 31 (2) of the Constitution.

       The applicants were displaced persons who owned land in District Lyalpur in Pakistan. They were also co-sharers in a joint khata owned by some evacuees in village Sultanwind, a suburb of Amritsar in East Punjab. On their displacement, they were in the first instance temporarily allotted agricultural land in Sultanwind. Having regard to their original position in the village, they were allotted in the year 1949 a total area of 38 standard acres and 13 units of agricultural land therein. The allotment, however, was sub-sequenty disturbed and cancelled under the orders of the Custodian on 6th February 1952, and revision application there from under S. 27 of the Administration of Evacuee Property Act 1950 was also dismissed. The petitioners then applied to the Supreme Court for a writ under Art. 32 of the Constitution.

       Two substantial questions arose for a consideration: (I) whether the rights of a quasi-permanent allottee constituted property within the meaning of Articles 19 (I) (f), 31 (1),31 (2) of the Constitution, and (2) whether the orders of the Custodian and Deputy Custodian-General canceling the quasi-permanent allotment amounted to violation of fundamental rights contemplated by the above articles.

       Held (dismissing the petition) : (1) All the rules relating to the power of cancellation which derive their authority from the rule-making power given by the Provincial and Central Acts must, according to the ordinary rules of construction, be read so as to harmonise with the powers of cancellation under the Act itself. It follows that R. (6) relating to resumption of allotments under the notification of July 8, 1949, as it originally stood until February 6, 1950, must be read with S. 9-A of the East Punjab Act XIV of 1947, as amended in 1948 in so far as it relates to allotment. Similarly Central Rules of 1950 and 1951 must be read to harmonise with S. 12 of the 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.

       Taking all the incidents together as to the position of a displaced land-holder to whom evacuee agricultural land has been allotted under 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 the Central Act XXXI of 1950 and the Central Rules of 1950, who is more or less in the position of a licensee. 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 ..

       (2) Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act and R. 109 framed under the Act 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 there under, 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,! viz, where a discretionary power is vested in a statutory authority, to act in certain circumstances for the benefit of certain person or class of persons, the exercise of such power in favour of such a person, where the requisite conditions exist, is obligatory and not optional. He does not, therefore, appear to have 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 a quasi-permanent allottee, whether before 22nd July 1952, or after that date, is that his rights, such as they are, either under the notification of 8th July 1949 or under S. 10 of Central Act 44 of 1954, are subject to powers of cancellation exercisable by the appropriate authorities in accordance with the changing requirements of the evacuee property law and its administration.

       The sum total of the various incidents of 2l quasi-permanent allotment does not in any sense constitute even qualified ownership of the land allotted. At best it is analogous to what is called jus in re aliena, according to the concept of Roman Law and may be some kind of interest in land. The basic features of that interest are that the ultimate ownership of the land is still recognised to be that of the evacuee and allotment itself is liable to resumption or cancellation with reference to exigencies of the administration of evacuee law. The interest so recognised is in its essential concept provisional, though with a view to stabilizations and ultimate permanence. It cannot, therefore, be held 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.

       (3) Property to fall within the scope of Art. 19 (1) (1) must be capable of being the subject-matter of "acquisition and disposal". The interest of the quasi-pemanent allottee arises by statutory grant to a specified class of persons and is not capable of acquisition by the ordinary citizen

       1.(18BO) 5 A. C.214.

       2.Views to the contrary expressed in Suraj Parkash Kapur v. State of Punjab, 59 Punj. L. R. 103 disapproved. in any of the normal modes. Nor is it capable of disposal by the allottee himself in the normal modes by way of sale, mortgage, gift or will. Neither is the interest of the quasi-perm a Dent 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 possession. It is true that the recent amendment came into operation on April 27, 1955, and the impugned orders of the Custodian and Deputy Custodian-General are on February 6, 1952 and May I, 1954. But in view of the word "deemed" in the amended Art. 31 (2A) it appears likely that the amendment was intended to be retrospective. Even assuming that it is not so, the words "taking possession" or "acquisition" in Art. 31 (2) prior to the amendment are wholly inapt and inapplicable to the bundle of rights of the nature detailed above which constitute quasi-permanent tenure and it is difficult to apply to it the protection under Art. 31 (2) either as it stood before the amendment or after the amendment.

       (4) In order that Art. 31 (1) may apply, it is not enough that there is depreciation but it must also be depreciation without the authority of law. The allottee whose quasi-permanent allotment has been cancelled in order to work out re-adjustments consequent upon the order of the higher authority cannot invoke the protection of Art. 31 (1), as it is not an illegal usurpations of jurisdiction by the authority so as to constitute negation of authority of law.

       (5) The fact 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, does not affect the question whether it is property so as to attract the protection of fundamental rights under the Constitution.

       (6) Though quasi-permanent allotment does not carry with it a fundamental right to property under the Constitution, the rights of the allottee as recognised in the statutory rules are important and constitute the essential basis of a satisfactory rehabilitation and settlement of displaced landholders. Until such time as the landholders 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 courts by appropriate proceedings where there is usurpation of jurisdiction or abuse of exercise of statutory powers.