Judgement

THAKKAR, J.:- Five displaced persons (respondents 1 to 5) were allotted certain lands under the provisions of Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (Rules) from the compensation pool. By some inadvertent error on the part of the allotting authority in making computation, agricultural land to the extent of 11 standard acres, 2 units was allotted to them in excess of their lawful entitlement in lieu of agricultural lands left behind by them in areas now forming a part of Pakistan when they were obliged to migrate to India in the wake of the partition. A number of proceedings were undertaken in the context of the excess allotment made to them (hereafter called the allottees). Ultimately the Chief Settlement Commis-sioner by his order dated May 4, 1963 cancelled the allotment of the excess land (11 S. A. 2 units) which was made by an inadvertent mistake. On May 17, 1963 the allottees made an application praying that the excess land wrongly allotted to them should be sold to them under R. 73(2)(ii) of the Rules. On the premise that they had a legal right to purchase the excess land under the said rule. This application was rejected by the Chief Settlement Commissioner on March 19, 1964 who repelled the plea of the allottees holding to the effect that he had a discretion in the matter and that it was not incumbent on him to sell the excess land and it was not obligatory to do so. The allottees challenged both the aforesaid orders by way of writ petitions in the High Court. It appears that meanwhile, the Competent Authority (Chief Settlement Commissioner) allotted aforesaid excess land to Piara Singh, Inder Singh and Joginder Singh (present respondents 6, 7 and 9). When the writ petitions came up for hearing the learned single Judge of the High Court upheld the contention of the original allottees in regard to the interpretation of R. 73(2)(ii) and directed the appellants to sell the excess land to the original allottees in pursuance thereto. The Division Bench concurred with the learned single Judge and confirmed the order. This appeal by certificate stems from the said judgment of the High Court.

The rule in question provides as under :

The Settlement Commissioner may, after considering the recommendation of the Settlement Officer, direct the Settlement Officer :-

(i)…………………….

(ii) to transfer to the allottee in permanent ownership less area than originally allotted to him unless the allottee is prepared to pay for the excess area either in cash or by adjustment against the compensation payable to him in respect of verified claim for any urban property or rural building."

The High Court has acceded to the submission urged on behalf of the allottees that by virtue of the aforesaid Rule the Chief Settlement Commissioner was under a legal obligation to allot the excess area to them upon their paying for the excess area in cash or by adjustment against the compensation payable to them in respect of verified claim for any urban property or rural building. The High Court negatived the contention urged on behalf of the appellant (Chief Settlement Commissioner, Punjab) that the expression may conferred a discretion on the Settlement Commissioner and that it did not impose any legal obligation on him to sell the excess area to the persons to whom land was allotted in excess of their lawful entitlement. It is the validity of this view which is in issue before this Court.

2. The question as regards the true interpretation of R. 73(2)(ii) is no more res integra. It has been concluded in favour of the appellants by a decision rendered by a Constitution Bench of this Court in Civil Appeal No. 375 of 1963, (Mohinder Singh and others v. Chief Settlement Commissioner and another) rendered in the context of R. 62 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 which is in pari materia to the present Rule, namely, C1. (ii) of sub-r. (3) of R. 73. The Constitution Bench has taken the view that the