# AMAR SINGH v. CUSTODIAN, EVACUEE PROPERTY, PUNJAB

- **Citation:** [1957] 1 S.C.R. 801
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Bench:** Bhagwati, jAGANNADHADAs, jAFER IMAM, GovINDA · MENON, ]. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-singh-v-custodian-evacuee-property-punjab-1375
- **Pages:** 36

## Headnote

Evacuee
property-Allotment-Displaced
land-holders-Quasi"
permanent
allotment-Cancellation-Violation
of
Fundamental
Rights-Constitution of India, Arts. 19(1)(f), 31(1), 31(2)-Administration ef Ev!lcuee Property Act, 1950 (XXXI of 1950).
The petitioners, who were displaced persons from Pakistan
owning land therein, were also co_-sharers in a joint khata owned by
some evacuees in a suburban village in East Punjab. On their
displacement they were in the first instance temporarily allotted
agricultural land in that village. Subsequently, a.s a result of the
readjustment of allotments of the suburban land amongst the
various groups who had quasi-permanent allotments therein,
which had to be carried out according to certain rules and instructions, the allotments of the petitioners were cancelled. The case
of the petitioners was that the allotment to them was on a quasipermanent basis and that, therefore, they had acquired certain
rights in the land which constituted property, and they contended
that the order cancelling the allotment was in violation of their
fundamental rights to property under Arts. 19(1)(f), 31 (1) and 31 (2)
of the Constitution of India. Though the petitioners were allottees
of agricultural land on the basis of a quasi-permanent allotment
it was admitted that they were not able to get a sanad under the
rules for the lands originally allotted to them, when only they
could obtain permanent property in the land. It was not disputed
that the cancellation of the allotment was under the purported
exercise of powers under the provisions of the Administration of
Evacuee Property Act, 1950, and the rules framed thereunder
taken with some executive instructions.
Held, that the interest of a quao;i-permanent allottee does not
constitute 'property' within the meaning of Arts. 19(1)(f), 31(1) or
31 (2) of the Constitution of India, and accordingly the orders
cancelling the allotments could not amount to violation of fundamental rights under those Articles.
The basic features of the interest of a
quasi-permanent
allottee ·are that the ultimate ownership of the land is
still
recognised to be that of the evacuee and the allotment itself is
l~ble to resumpt!o? or ~ancellation with reference to the exigencies of the adm1mstration of evacuee law. The interest
so
"recognised is, in its essential concept, provisional though with a
view to stabilisation and ultimate permanence. An interest in
land owned by another in such a situation cannot be fitted into
any concept of property in itself.
1957
March 290
1957
Amar Siffl~
v.
Custr.Jian, ECJ(Jcutt
Prop<rty, Ptajab.
SUPREME COURT REPORTS
. Julius v. Lord Bishop of Oxford, (188o) 5 A.C. 214, distinguished.
Property in order that it may fall within the scope of A1t.
19( 1 )(f) must be capable of being the subject matter of "acquisition
and disposal". But tJ:ie interest of a quasi-permanent allottee
arises by statutory grant to a person of a specified class and is not
capable of being acquired by an ordinary citizen in any of the
normal modes.
Nor is it capable of
b6ng disposed of by the
allottee himself by way of sale, mortgage, gift or will.
Consequently, Art. 19(1)(f) cannot apply to the case.
In order that Art . 31 ( 1) may apply it is not enough that there
is deprivation, but such deprivation must be \\-·ithout the authority
of law. In the present case the quasi-permanent allotments of
the petitioners were cancelled in enforcement of a right
of
resumption or cancellation which is an incident of such property,
and hence the Article has not been infringed.
The interest of a quasi-permanent allottee cannot ho brought
within the scope of Art. 31(2) as it stood prior to the an1endment.
The words "taking possession" or "acquisition" there are in~.ppro
priate in respect of the rights which constitute quasi-permanent
tt"nurc.
In vie\v of the word "deemrd" occurring in Art. 31 (2A) it
appears likely that the amendment to Art. 31(2) was inlenrled to
be retrospective, but even then the amended A

## Text

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S.C.R.
SUPREME COURT REPORTS
801
AMAR SINGH
v.
CUSTODIAN, EVACUEE PROPERTY, PUNJAB
(BHAGWATI, jAGANNADHADAs, jAFER IMAM, GovINDA
·
MENON and ]. L. KAPUR JJ.)
Evacuee
property-Allotment-Displaced
land-holders-Quasi"
permanent
allotment-Cancellation-Violation
of
Fundamental
Rights-Constitution of India, Arts. 19(1)(f), 31(1), 31(2)-Administration ef Ev!lcuee Property Act, 1950 (XXXI of 1950).
The petitioners, who were displaced persons from Pakistan
owning land therein, were also co_-sharers in a joint khata owned by
some evacuees in a suburban village in East Punjab. On their
displacement they were in the first instance temporarily allotted
agricultural land in that village. Subsequently, a.s a result of the
readjustment of allotments of the suburban land amongst the
various groups who had quasi-permanent allotments therein,
which had to be carried out according to certain rules and instructions, the allotments of the petitioners were cancelled. The case
of the petitioners was that the allotment to them was on a quasipermanent basis and that, therefore, they had acquired certain
rights in the land which constituted property, and they contended
that the order cancelling the allotment was in violation of their
fundamental rights to property under Arts. 19(1)(f), 31 (1) and 31 (2)
of the Constitution of India. Though the petitioners were allottees
of agricultural land on the basis of a quasi-permanent allotment
it was admitted that they were not able to get a sanad under the
rules for the lands originally allotted to them, when only they
could obtain permanent property in the land. It was not disputed
that the cancellation of the allotment was under the purported
exercise of powers under the provisions of the Administration of
Evacuee Property Act, 1950, and the rules framed thereunder
taken with some executive instructions.
Held, that the interest of a quao;i-permanent allottee does not
constitute 'property' within the meaning of Arts. 19(1)(f), 31(1) or
31 (2) of the Constitution of India, and accordingly the orders
cancelling the allotments could not amount to violation of fundamental rights under those Articles.
The basic features of the interest of a
quasi-permanent
allottee ·are that the ultimate ownership of the land is
still
recognised to be that of the evacuee and the allotment itself is
l~ble to resumpt!o? or ~ancellation with reference to the exigencies of the adm1mstration of evacuee law. The interest
so
"recognised is, in its essential concept, provisional though with a
view to stabilisation and ultimate permanence. An interest in
land owned by another in such a situation cannot be fitted into
any concept of property in itself.
1957
March 290
1957
Amar Siffl~
v.
Custr.Jian, ECJ(Jcutt
Prop<rty, Ptajab.
SUPREME COURT REPORTS
. Julius v. Lord Bishop of Oxford, (188o) 5 A.C. 214, distinguished.
Property in order that it may fall within the scope of A1t.
19( 1 )(f) must be capable of being the subject matter of "acquisition
and disposal". But tJ:ie interest of a quasi-permanent allottee
arises by statutory grant to a person of a specified class and is not
capable of being acquired by an ordinary citizen in any of the
normal modes.
Nor is it capable of
b6ng disposed of by the
allottee himself by way of sale, mortgage, gift or will.
Consequently, Art. 19(1)(f) cannot apply to the case.
In order that Art . 31 ( 1) may apply it is not enough that there
is deprivation, but such deprivation must be \\-·ithout the authority
of law. In the present case the quasi-permanent allotments of
the petitioners were cancelled in enforcement of a right
of
resumption or cancellation which is an incident of such property,
and hence the Article has not been infringed.
The interest of a quasi-permanent allottee cannot ho brought
within the scope of Art. 31(2) as it stood prior to the an1endment.
The words "taking possession" or "acquisition" there are in~.ppro
priate in respect of the rights which constitute quasi-permanent
tt"nurc.
In vie\v of the word "deemrd" occurring in Art. 31 (2A) it
appears likely that the amendment to Art. 31(2) was inlenrled to
be retrospective, but even then the amended Article taken
w~th
Art. 31 (2A) is equally inapplicable as it contemplates acquisition
or requisitioning (and taking possession) as a result of transfer of
the ownership or of the right to possession.
Suraj Parkash Kapur v.
The State of
Pu,Yab, (1957) LIX
P.L.R. 103, in so far as it purported to t:ecide that the interest in
the land allotted
to a quasi-permanent
allottee constitutes
"property" which attracts the protection of fundamental rights
under the Constitution, is disapproved.
Thc·ugh a quasi-permanent allotm~nt does not carry with it
a fundamental right to property under tl:e 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 land-holders. Until
such time as the 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 courts by appropriate proceed~ngs where there is
uswpation of jurisdiction or abuse of exercise of statuto1 y po\\o·ers.
ORIGINAL juRISDICTION : Petition No. 351 of 1954.
Petition under Article 32 of the Constitution for the
t>nforcement of fundamental rights.
S.C.R.
SUPREME COURT REPORTS
N. S. Bindra,
Udhai Bhan Choudhury and Gopal
Singh, for the petitioners.
1957
Amar Singh
S. L. Pandhi and K. L. Mehta, for the Intervener. CustodU.:; Evacwe
Prop111Y, Punjab.
1957, March 29.
The Judgment of the Court was
delivered by
JagannmDwdasJ.
JAGANNADHADAS J.-This is an application under
Art. 32 of the Constitution by the petitioners, Amar
Singh and four others, in the following circumstances.
All these five are displaced persons who owned land in
the non-suburban village of Chak. No. 159-RB, Tahsil
Jaranwala, District Lyallpur 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
1 949 a
total area of 38 standard acres and 13 units of agricultural land therein.
This allotment had to
be
disturbed under the following circumstances. The
Director-General of Relief and Rehabilitation (Additional Custodian) directed by an order dated January
7, 1950, that out of the 1,263 standard acres
and
1£ units of suburban land of Amritsar, 142 standard
acres and 5 units were to be allotted to allottees of
Provincial Gardens. This necessitated readjustment
of allotments of the suburban land of Sultanwind
amongst the various groups who had quasi-permanent
allotment therein.
As a result of this readjustment
which had to be carried out according to certain rules
and instructions
the allotment of these five petitioners
(as also of some others) was proposed for cancellation
by the order of the Deputy Custodian, Amritsar, dated
July 31, 1951. This proposal was approved by the
Custodian (Financial Commissioner, Relief and Rehabilitation) on February 6, 1952, and the 1allotment was
cancelled. The proposal and the order of cancellation
are said to have been passed without notice to the
petitioners.
Being aggrieved thereby they moved the
Custodian-General of Evacuee Property for revision
thereof under s. 27 of the Administration of Evacuee
1957
Amar Singh
v.
Custodiun, Evacuee
Proptr!J, Punjab.
JagannadhadrM J.
SUPREME COURT REPORTS
Property Act, 1 950 (XXXI of 1950). This was dealt
with by the Deputy Custodian-Genera] who dismissed
the same by a fairly elaborate order dated May 1, 1954,
after hearing the parties. The petitioners have come
up to this Court by this application under Art. 32 of
the Constitution.
The case of the petitioners is that the allotment to
them was on quasi-permanent basis and that, therefore,
they have acquired certain rights in the lands which
constitute 'property'.
They urge that the order of the
Custodian cancelling the allotment and that of the
Deputy Custodian-General affirming the same are in
violation of their fundamental rights to property under
Arts. 19(1)(f), 31(1) and 31(2) of the Constitution.
They accordingly contend that they are entitled to have
these orders quashed and their rights to property
declared and protected.
That the
petitioners are
allottees of agricultural land on the basis of what has
come to be known as quasi-permanent allotment is not
disputed. It is
also not disputed that cancellation
thereof was
under the purported exercise of powers
vested in the Custodian under certain provisions of the
Administration of Evacuee Property Act, 1950 (XXXI
of 1950) and the rules framed thereunder taken with
some executive instructions. It may be mentioned that
the term "quasi-permanent allotment" appears to be a
term which has come into vogue in later statutory rules
and has at no time been specifica!Iy defined, though it
appears to be now fairly well-understood.
The two
substantial questions that arise, therefore, for consideration are ( 1) whether the rights of a quasi-permanent
allot tee constitute property within the meaning of the
articles above referred to, and ( 2) whether the orders
of the Custodian and Deputy Custodian-General cancelling the quasi-permanent allotment amount
to
violation of fundamental rights contemplated by the
above articles. Both these questions require a review
of the Evac.uee Property Law in so far as it relates to
the allotment of agricultural lands of the evacuees to
displaced !and-holders and an appreciation of the
background of the circumstances that necessitated it.
S.C.R.
SUPREME COURT REPORTS
805
The Declaration of Independence and the partition of
India into Pakistan and India on August r 5, r 94 7, was
accompanied by mass migrations of Non-Muslims from
West Punjab to East Punjab and of Muslims from
East Punjab to West Punjab. These mass migrations
were on a stupendous scale.
About five million persons
are said to have moved from each side to the other.
This was done in a state of panic generated by
communal riots.
Migrants from West Punjab reached
East Punjab almost destitute.
This unprecedented
situation brought in its
train gigantic problems of
administration relating to rehabilitation and resettlement of these persons.
One of such problems was that
relating to agricultural immovable property left on
either side by the migrants. For purposes of convenience
persons who crossed over from East Punjab to '\'est
Punjab are referred to as evacuees and persons who
came over from West Punjab to East Punjab are referred
to as displaced persons. The displaced persons are said
to have left in Pakistan lands of the extent of about 67
l,akh acres.
The evacuees seem to have left in East
Punjab and Pepsu, lands of the extent of about 47 lakh
acre'. This meant a deficit of over 20 lakh acres for
resettlement.
It would appear that in the earlier stages there were
attempts to settle the question by way of mutual
exchanges either in iPdividually or at the govermental
level and by means of inter-dominion conferences bet-
.ween India and Pakistan. But for one reason or other,
these attempts appear to have failed. The various :.teps
and administrative measures taken to settle
the displaced agricultural population who came over from
West Punjab, on the hurriedly abandoned lands of the
evacuees from East Punjab, are to be found described
in the Land Resettlement Manual by Shri Tarlok Singh
who was the Director-General of Relief and Rehabilitation
(hereinfter referred to as
the
Resettlement
Manual). In Dunichand Hakim v. Deputy Commissioner
(Deputy Custodian, Evacuee Property),
K arnal ( 1), this
book has been referred to by this Court as having the
stamp of authority.
It can be usefully referred to not
(t) [1954] S. C.R. 578.
1957
Amar Singh
v.
Custodian, Ev(l(,uee
Proper(Y, Punjab.
Jagannadhadas ].
1957
Amtu Singh·
v.
Custodian, Evactltt
Property, Purg"ab.
Jagannadhadas].
806
SUPREME COURT REPORTS
[ 1957
necessarily as an authority for every statement of fact
or law contained therein but as a guide to appreciate
the background of the problems which the administration had to face in that unprecedented situation,
how the administration attempted to solve the same,
what were the rules and practice which the administration normally followed and considered binding on
itself, and what ideas inspired the course of legislation
in this behalf. It appears therefrom that within about
a month after the partition of India, the Government
had to take an emergency decision to allot evacuee
lands to groups of displaced persons on temporary
basis.
But this was found not to satisfy the displaced
landholders.
There was insistent pressure from them
for such allotment as would enable them to settle on
the lands of the evacuees on a permanent basis.
This
led to the abandonment of the policy of temporary
allotments and the introduction of a system of allotment which came to be known as quasi-permanent
allotment.
This policy was announced by the Government of East Punjab in its Press Communique date.cl
February 7, 1948, which is reproduced at pages 28
and 29 of the Resettlement Manual. The following
extract therefrom is instructive :
"The East Punjab Government propose to replace
the present system of temporary allotments of evacuee
lands by a new system of allotments which will take
account of the holdings of evacuees in ',yest Punjab.
The new allotments will not confer rights of ownership
or permanent occupancy, but the possession of allotted
will be maintained.
Claims of allottees will be dealt
with in accordance with decisions reached eventually
regarding the treatment of evacuee property.
In the new scheme of allotments, land will be
allotted only to those who, in West Punjab, were
owners, occupancy tenants under the Punjab Tenancy
Act, and tenants under the Colonization of Government Lands Act and to certain other classes of grantees
and holders of land in West Punjab to be specified by
Government.
It is proposed to give to small holders
allotments of equivalent areas, while in the case of
larger holders there will be graded cuts.
The definition
' '·
I
S.C.R.
SUPREME COURT REPORTS
of the "Small Holders" and the details of the graded
cuts will be determined when detailed
information
regarding the available areas in East Punjab and the
East Punjab States, the areas held by the population
to be settled in East Punjab and the East Punjab States,
and other relevant information becomes available.
It is intended to complete the new
system of
allotments in the East Punjab and the East Punjab
States, not later than the 31st May, 1948. Government
are, however, anxious to introduce the new scheme as
early as may 'be feasible and steps to this end will be
taken at once.
Arrangements for collecting complete information
regarding the land available for allotment in East
Punjab and
the East
Punjab States and the land
abandoned by individual evacuees will be taken in
hand
without
delay and it is hoped also to make
arrangements on a reciprocal
basis to secure information from records ofrights in \'\'est Punjab.
To ensure accurate information an Ordinance will
shortly be promulgated prescribing punishment for
false information regarding claims to land and action
by way of forfeiture and
otherwise
in respect
of
allotments taken on false information.
Claims to
land will be invited on a form to be prescribed by
Government.
Until the new system of allotments can be
introduced, the present system of allotments will
continue and allotments made to the present holders
will be maintained subject to a complete scrutiny of
ex1stmg allotments, cancellation of unauthorised and
excessive allotments, dispossession from illicit occupation and such other adjustments as may be necessary
including adjustments in the unit of allotment decided
upon by Government."
To facilitate the process of resettling the displaced
persons on evacuated land on this new basis of allotment various steps became necessary. They are roughly
the following.
1.
Registration and verification of land claims.
2.
Assessment and valuation of such claims.
1957
Amar Singh
v.
Custodian,
EvatU•
Properly, Punjab.
Jagannadhadas J
1957
Amar Singh
v.
Custodian, Evacuee
Property, Punjab,
Jagannadhadas J.
808
SUPREME COURT REPORTS
(I 95 7}
3.
Classification of the villages and of lands of
evacuees available for allotment.
4.
Allocation of the claims to various areas with
reference to such classification.
5.
Allotment of lands to individuals with reference
to the valuation of their
claims, guided by various
considerations, priorities and preferences and so forth
administrati\"elv determined.
The basic 'idea which inspired and regulated these
measures was that the displaced landholder is to be
allotted (subject to graded cuts) such lal!ds out of the
evacuee agricultural Lrnd which, in its extent, quality
and other rdc1·ant features, bear some reasonable
relation and correspondence to the lands left by him
in \\'est Punjab.
All these steps involved very elaborate administrati1·e measures as indicated above.
\ \' e
are concerned in this context to trace the lcg;islation
which brought about these
steps
and
to
examine
whether and to what extent such legislation recognised
property rights in the
displaced
land-holders.
But
before tracing the legislative measures which brought
about the quasi-permanent allotments of evacuee lands
in favour of displaced land-holders from \\'est Punjab,
it will be convenient to have a brief survey of the
present Jaw in its aprlication to administration of
evacuee property of all kinds in general with the
history of such of the provisions therein as arc relevant
for. our purpose and then to consider
the
rekv<mt
legislati1·e measures taken specifically with reference
to agricultural land.
The earliest legislative measure in this behalf i; the
East Punjab Evacuees' (Administration of Property)
Ordinance, 1947, (E.P. Ordinance IV of 1947) dated
Sertember 14, 1947, which was a simple measure
defining- the terms 'evacuee', 'evacuee property', and
'Custodian of evacuee property' and other terms, and
authorising the appointment of a Custodian. It gave
the Custodian power to take possession
of evacuee
property and to take all measures
necessary and
expedient for preserving such property.
It vested in
him extensive powers of management thereof.
This
was an emergency measure which appears to have
S.C.R.
SUPREi\1E COURT REPORTS
809
been meant to get possession of the properties as a
care-taker.
This was superseded and followed by a
series of legislative measures which underwent modifications from time to time.
These legislati\'e measures
were in the first instance Provincial, ~i·i:;.., East Punjab
Evacuees' (Administration of Property)
Act,
1g47
(E.P. XIV of 1947) ; East Punjab £,·acuees' (Administration of Propert\') (Second Amendment) Ordinance,
19.1B (E.P. Ordinance XVI of 1948) ; East Punjab
E\·acuees' (Administration of Property) (Second Amendment) Act,
1948
(E.P. XLIX of 1948 ) ; and East
Punjab Evacuee Property (Administration) Ordinance,
1949 (E.P. Ordinance IX of 1949).
These Provincial
measures were repealed and superseded by Central
legislation, viz.,
:\clrninistration of Evacuee Property
Ordinance, 1949 1,0rdinancc XX.VII of 1949) amended
by the Administration of E\'acuee Property (Amendment) Ordinance 19'.)0 :Ordinance IV of 1950).
These
were repealed and superseded by the Administration
of Evacuee Property Act, 19,50 \XXXI of 1950).
The main prm is ions of Central Act XXXI of 1950,
\\·hich, \\·ith some modifications, is at present in force,
may now be noticed so far as they arc relevant.
U ndcr ss. 5 and 6 of the Act an administrative machincn· consisting of Custodians, Additional, Deputy and
Assistant Custodians of EYan1cc Property,. is set up
for each State by the State Gm·crnment thereof.
Tltey
are under the general superintendence and control of
a Custodian-General appointed by the Central-Government \\·ho has, for his assistance, Deputy and Assistant
Custodian-Generals, who are also
appointed
by the
Central
Government.
The
terms
'evacuee'
and
'eYacuee property' arc defined in s. 2ld) and (f) and
the Custodian is gi,-cn power to determine and notify
e\'acuec property under s. 7.
:\II property declared
as 'evacuee property'. becomes yested in the Custodian
under s. 8.
The Custodian has under s. 9 the power
to take possession of all the 'evacuee property' so
vested in him.
Section· 1 o enumerates the powers and
1957
Amar Si11gh
'"
Custodian,
Evacuee
Proper!)'. Punjab.
Ja.r;annadhada~ ].
1957
Amar Singh
v.
Custodian, Evocue1
Property, Punjab.
JagannadhadlU J.
810
SUPREME COURT REPORTS
duties of the Custodian generally and declares that he
may take such measures as he considers necessary or
expedient for the purposes of securing, administering,
preserving and managing any evacuee property and
generally for the purposes of enabling him satisfactorily
to discharge any of the duties imposed on him by or
under the Act, and may, for any such purpose as aforesaid, do all acts and incur all expenses
necessary or
incidental thereto.
One of the duties laid on the
Custodian is the maintenance of accounts under s. 15.
Section 15( 1) says that the Custodian shall maintain a
separate account of the property of such evacuee,
possession whereof has been taken by him, and shall
cause to be made therein entries of all receipts and
expenditure in respect thereof.
Section 16 provides
for restoration of property to the evacuee on his application and enjoins the Custodian to furnish the evacuee
on demand with a statement containing an abstract of
the account of the income received and expenditure
incurred in respect of the property. The general
powers of management vested in the Custodian under
s. 10 enable him to grant leases and make allotments
out of evacuee property in favour of displaced landholders.
This is subject to the power vested in him
under s. 12(1) to vary or cancel leases or allotments
of evacuee property. There are a number of other
substantive and incidental provisions, which
it
is
unnecessary to refer to for the purposes of this petition.
Thus, the broad features of the
administration
of
evacuee property law, as indicated from the provisions
above noticed, are the following :
1.
All evacuee property is vested in. the Custodian.
2.
He .has the duty of managing the property
and maintaining accounts for such management and
has large adn:iinistrative powers.
3.
As incidental to ·such management he can
grant leases and make allotments.
4.
He has the power to vary or cancel leases and
allotments.
S.C.R.
SUPREME dOURT REPORTS
8r l
5.
The evacuee can come forward and apply for
return of the evacuee property and such property is
liable to be restored to him.
1957
Amar Singh
v.
Custodian,
Evacuee
6.
The Custodian, presumably on such restoraProperry, Punjab.
tion, has to furnish to the evacuee on
demand
a
Jagannadhadas J.
statement containing an abstract of the account of the
income received and expenditure incurred in respect of
the property.
In addition to large administrative functions for
the purposes of the Act, the Custodian has. also the
function of deciding various matters of a quasi-judicial
nature, such as ( r) whether a person is. an evacuee or
whether certain property is evacuee property ; ( 2)
whether a transfer of evacuee property is or is not to be
confirmed ; (3) whether a lease or an allotment is or
is not to be cancelled or varied ; anrl (4) whether
property is to be restored to the evacuee and so forth.
The actions of the Custodian and his subordinates in
exercise of their administrative .as well as of quasijudicial functions are subject to appeal and revision by
the higher authorities under the Act as provided under
ss. 24 to 27.
Section 28 provides that orders made
under the above sections shall be final and shall not be
called in question in any original suit, application or
execution proceeding.
Section 46 bars the jurisdiction
of the civil or revenue courts in respect of any matter
which the Custodian-General or the Custodian is
empowered by or under the Act to determine.
The history of some of the above statutory provi- ·
sions as traceable from the
corresponding provisions
of the earlier legislation is significant.
The provision
vesting· evacuee property in the Custodian was not
enacted in the earlier East Punjab Ordinance IV of
r 94 7.
But it was enacted by the next legislative
measure, East Punjab Act XIV of 1947, which declared
the vesting of evacuee property, and provided that the
property "shall continue to be so vested until
the
Provincial
Government
by
notification
otherwise
directs."
This last clause was substituted in 1948 by
an Amending Act, by the clause "until it }s returned
to the owner in accordance with the provisions of
1957
Amar Singh
v.
Cwtodian, Evat:JUe
l+opmy, Pu'!l"ab.
Jagannadhadas ].
812
SUPREME COURT REPORTS
[ 195 7]
section 12".
This clause as to the duration of such
vesting was omitted in the later Central legislation and
was substituted by the phrase
"shall continue to so
vest".
(See Central Ordinance XXVII of 1949 and
Central Act XXXI of 1950). The earliest provision
for return of evacuee property to the evacuee is in
East Punjab Ordinance IV of 1947.
Section 12 thereof
provided that the owner of any property in the possession or control of the Custodian shall be entitled to
restoration thereof upon application to the Custodian
and on payment of excess, if any, of expenditure over
receipts from the management of such property by the
Custodian.
In East Punjab Act XIV of 1947 which
superseded this Ordinance, this right of restoration to
the evacuee was qualified by virtue of s. 12 ( 1) thereof
which is as follows :
"On being satisfied that evacuees have returned
or are returning to the Province, the Provincial
Government may by notification in the Official Gazette
authorise return of their immovable property to the
owners in accordance with this section."
Sub-section ( 2) of s.
12 provided that any person
claiming to be entitled to any such property
may
apply in writing to the Custodian who, after giving
public notice and holding an enquiry, will make a
formal order declaring the person to whom possession
of the property may be delivered.
In Central Ordinance XXVII of 1949 and in Central Act XXXI of
1950, the provision for restoration of property to the
evacuee in s. 16 thereof is that the Custodian may, on
application by the evacuee or his heir, restore to him
the property subject to such terms and conditions as
he may think fit to impose provided that the applicant produces a certificate from the Central Government that the property may be so restored if he is
otherwise entitled to it.
Thus it will be seen that while
the earliest East Punjab Ordinance of 1947 recognised
almost an unrestricted right in the evacuee to obtain
restoration of property this was changed shortly thereafter by the East Punjab Act of 1947 which required
that such'-return by the Custodian can only follow a
S.C.R.
SUPREME COURT REPORTS
813
notification by the Provincial Government as to its
being satisfied that evacuees have returned or are
returning and authorising the return of the property.
The Central legislation of 1949 and of 1950 however
lessened the rigour of it by requiring only a preliminary
certificate from the Central Government by the individual applicant concerned.
Next, it may be noticed that neither East Punjab
Ordinance IV of 1947 nor East Punjab Act XIV of
l 94 7 which replaced it refer to or define either the word
'lease' or 'allotment'.
These two words were for the
first time defined only by the amending East Punjab
Ordinance XVI of 1948 and it was made clear therein
that an allotment was different from a lease.
From
the historical background it would appear likely that
the word 'allotment' was used for the grant of property
to displaced land-holders while 'lease' was intended to
denote a temporary grant to other displaced persons.
But even so the temporary character of the right
involved in the word 'allotment' was specified by
defining 'allotment' as meaning the grant by the Custodian of a temporaiy right of use and occupation of
evacuee property to any person otherwise than by way
of lease.
This temporary character of the right was
reiterated also in East Punjab Ordinance IX of 1949
and in Central Ordinance XXVII of 1949·
It is only
in Central Act XXXI of 1950 that by s. 2(a) thereof
the word 'temporary' in the definition of the word
'allotment' was dropped and 'allotment' is defined as
meaning the grant by a person duly authorised of a
right of use or occupation of an immovable evacuee
property to any other person but does not include a
grant by way of a lease.
Thus the legislation of l 950
for the first time contemplated that allotment may be
otherwise than temporary.
This Act as well as the
previous Central Ordinance completely omitted the
definition of the word 'lease'.
These changes were
apparently necessitated by the fact that, in between,
Punjab Government notification dated July 8, 1949,
came into operation providing for what has become
subsequently known as quasi-permanent allotment.
1957
Amar Singh
v.
Custodian, Evaciu,
Property, Punjab.
Jaganrwdhadas ],
1957
Amar Singh
v.
Custodian, Evacuee
Profurty, Pury°ab,
Jagunnadhadas
J.
SUPRE11E COURT REPORTS
The provisions of that notification and the legal effect
thereof will be noticed in due course.
We may next trace the provisions in the various
Acts relating to the power of cancellation of allotments in so far as they appear from the body of the
main Ordinances
and
Acts
themselves,
leaving
aside-for the time being-the rules framed thereunder.
It may be mentioned that in the rest of the
judgment in noticing the statutory provisions which
deal with leases and allotments together, all reference
to leases are omitted for the sake of simplification.
The earliest provision in this behalf is s. 9-A of East
Punjab Act XIV of 1947 which was inserted into it by
East Punjab Ordinance XVI of 1948 replaced by East
Punjab Act XLIX of 1948.
Sub-section (2) of s. 9-A
provides that notwithstanding anything contained in
any enactment for the time being in force, the
Custodian may cancel any allotment
or amend the
terms of any agreement on which any evacuee property
is held or occupied by any person, whether such agreement was entered into before or after the coming into
force of East Punjab Ordinance XVI of 1948.
It is
further provided by sub-ss. (3) and (4) thereof, that if
a person is in unauthorised possession of any evacuee
property the Custodian may treat such person either
as a tenant or as a trespasser and that a person
treated as a trespasser, on concellation of allotment,
shall, on demand surrender possession to the Custodian.
The subsequent East Punjab Ordinance IX of lr49,
Central Ordinance XXVII of 1949 and Central Act
XXXI of 1950 contain substantially the same provisions relating to cancellation of allotments.
It may
be mentioned that all these legislative measures had a
section relating to rule-making power right from the
time of East Punjab Act XIV of 1947 and also a
provision that the provisions of the Act and the rules
made thereunder shall have effect notwithstanding
anything inconsistent therewith in any enactment
other than that Act.
(See ss.
2~ and 18-B of Esta
Punjab Act XIV of 1947 and ss. 55, 56 and 4 of
Central Act XXXI of 1950.)
By virtue
of this
•
S.C.R.
SUPREME COURT R"'.PO'!'.rs
rule making power, the Provincial Government and
the Central Government made rules from time to time,
-,.-~which will be noticed presently.
· From the above history of alterations
at short
intervals in some of the main relevant provisions, it is
clear that the legislation was being adjusted from
time to time with reference to the exigencies and
difficulties of the different problems which had to be
grappled with, both in the matter of internal administration as also on account of inter-dominion conferences
between Pakistan and India.
It may be mentioned
that during the two year period between the first
. Provincial legislation in 1947 and the first Central
Y.legislation in 1949 there were as many as six-inter
dominion conferences, i.e., in January 1948, April
1948, July 1948, December 1948, April 1949 and June
1949·
Stopping here it will be seen that the position, m
its general aspect, is that all evacuee property is
vested in the Custodian. But the evacuee has not
lost his ownership in it.
The law recognised his ultimate ownership subject to certain limitations.
The
evacuee may come back and obtain return of his
property, as also an account of the management there_ . .of,
by the Custodian.
Such return which
was
~ originally contemplated without
any restriction,
is
subsequently dependent on a notification or a certificate of the Central Government.
Until such return
the Custodian may manage the property by granting
allotments in favonr of displaced persons.
The nature
of an allotment is clear from its definition that it is
grant of the right of use and occupation.
This in the
first instance was contemplated as being only temporary.
By a later definition, it was made wider so as
not to be restricted to a temporary use and occupation.
But the allotment is clearly subject to the power of
~~cancellation thereof vested in the Custodian, which
1 will entitle him to obtain its possession.
Such
rules
were undergoinl" alterations
from time to time.
In
0
such a situation it would prima facie be difficult to·
7-99 s.c.!./59
1957
Amar Singh
v.
CustoC.ian, Eva.:11e8
Property, Punjab.
Jagannadhadas ].
1957
Am!Zr Singh
v.
Custodian, Evacutt
Prop!rty, Punjab.
Jagannadhadas J.
816
SUPREME COURT REPORTS
recognise the allottee of any evacuee property in so
far as his position is governed by the main pr~visions
of the Evacuee Property Administration Acts ( unaffected by any specific rules applicable to any particular
class of property or any specific
arrangement
or
contract), as a person having some kind of property
or having a recognised interest therein which by itself
constitutes 'property'.
It is ;nore in the nature of a
licence which is liable to be cancelled by the grantor.
It may be mentioned that there appear to be certain
rules made by the East Punjab Government dated
August 6, 1948, under East Punjab Act XIV of i :14 7
as amended in 1948 relating to cancellation of allotments.
But the text of these rules was not available
to us.
However this may be, it is urged that certain
other legislative measures and sta>utory rules maue in
exercise of the statutory powers, have made a differef!ce
in the position arising in respect of allotments of
agricultural lands granted in favour of displaced
persons in East Punjab who left landed property in
West Punjab.
It is, therefore, necessart to review the
same.
The first measure for the resettlement of the displaced land-holders of \'\'est Punjab on evacuee lands
was the East Punjab Refugees
(Registration of Land
Claims) Ordinance, 1948 (E.P. Ordinance VII of 1948)
which was replaced by East Punjab Refugees (Registration of Land Claims) Act, 1948 (E.P. XII of 1948).
It is in pursuance of the rules framed under this Act
that what is known as the Parcha claim and the form
therefor were standardised calling for accurate information as regards quite a large number of details
which had to be taken into consideration in determining the land to be allotted to a displaced land-holder.
This was followed by the East Punjab Displaced
Persons (Land Resettlement) Ordinance, 1949
(E.P.
Ordinance XIV of i949) which was replaced by the
East Punjab Displaced Persons (Land Resettlement)
Act, 1949 (E. P. XXXVI of r949).
This Act was meant
"to provide for the allotment of evacuee lands in East
Punjab". The right of an allottee to possession of the
SUPREME COURT REPORTS
817
land allotted subject to payment of rent, etc., to the
Custodian or his right to a share in the rent from the
present holder thereof (that is, the cultivating occupant),
if any, and other incidents arising from such possession were specifted in this Act.
In between these two
Acts, notification No. 4892/S dated July 8, 1949, was
issued by the Punjab Government in exercise of the
rule-making power vested in it under els. (f) and (ff)of
sub-s. (2) of s. 22 of East Punjab Act XIV of 1947 as
amended in
1948.
This notification sets out the
statement of conditions on which the Custodian could
grant allotments of land vested in him.
This notification is virtually the charter of the rights of allottees.
It is the basis of what has come to be known as the
quasi-permanent allotment. In the rules set out i11
this notification a 'displaced person' i~, defined
as 'a
land-holder in West Punjab etc.' and it is specified that,
"an allotment sha11 be made in favour of a displaced
person and for a period for which the land remains
vested in the Custodian." The word 'allottee' is
defined as including "heirs, legal representatives and
lessees of the allottee.
It ma-,r be mentioned in this
context that East Punjab Displaced Persons
(Land
Resettlement) Act, 1949, mentioned above, which was
passed shortly after these rules were notified also
defines the word 'allottee' and says that allottee
means "a displaced person to whom land is allotted
by the Custodian under the conditions published with
East Punjab Government notification
No.
4.892/S
dated July 8, 1949 and includes his heirs, legal
representatives and sub-lessees."
Thus the definitions
of the word 'allottee' in the rules of July 8, 1949 and
under the Act passed shortly thereafter recognise not
only that an allotment is to be in favour of a displaced
land-holder for the period the land is vested in the
Custodian but that it enures for the benefit of his heirs
and legal representatives.
Therefore, the first incident
of allotment implicit in this is the heritability of the
rights of the allottee which constitute quasi-permanent
allotment nuder the above mentioned notification of
July 8, 1949.
Various other rights are specified in
1957
All"ar Singh
v.
Custodian, Evacuee
Property, Punjab.
Jagannadhadas J.
1957
Amar Singh
v.
Custodian, Evacuee
Property, Pu11jab.
Jagannadhadas
J.
SUPREME COURT REPORTS
els. 3, 4, 5, 7 and 8 of the said notification.
These
will be summarised later.
But it is to be noticed that
the allotment itself is subject to resumption
under
cl. (6) thereof.
Before considerii:ig the nature of the
interest which these various clauses of the notification
confer on the quasi-permanent allottee, it is necessary
to see how far this
notification of July 8,
1949, is
affected by subsequent legislation and the rules framed
thereunder.
Now the East Punjab Evacuee Property Administration Acts were repealed and replaced by Central
Ordinance XXVII of 1949 and Central Act XXXI of
i 950.
Both the Central Ordinance and Central Act
had each a section, s. 53 and s. 55 respectively, under
which the Central Government may delegate its rulemaking power to the State Government.
In exercise of
such delegated power the State Government issued a
notification No. 1554-Cust.
dated February 6, 1950
the relevant portion of which is as follows :
'
"The Provincial Government is pleased to notify
that Statement of Conditions issued by the Custodian
and published ·under the notification No. 4.891/S and
4892 /S dated the 8th July,
l 949, shall be deemed
to be and shall continue to remain in force as
rules
framed by the Provincial Government under sub-section
(z) of section 53 of the Central Ordinance No. XXVII
of 1949 under delegation from the Central Government
under Notification No. 3094-A/Cus/49
dated
2nd
December, 1949, subject to the following modifications
and amendments :
(i) The rules as stated in the Statement of Conditions under notification Nos.