# CHIEF SETI'LEMENT COMMISSIONER, REHABILITADON DEPARTMENT, PUNJAB & ORS, ETC v. OM PARKASH & ORS. ETC

- **Citation:** [1968] 3 S.C.R. 655
- **Court:** Supreme Court of India
- **Decided:** 1968-04-05
- **Bench:** J. C. Shah, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chief-seti-lement-commissioner-rehabilitadon-department-punjab-ors-etc-v-om-4330
- **Pages:** 7

## Headnote

The East Punjab Evacuees (Administration of Property) Act, 1947Definition of 'displaced perwn' in para 2(e) of Notification ~ssued under
Rules made pursuant to s. 22(2){f) and (ft); The East Pun1ab Refugets
c
(Registration of Land Claims) Act 12 of 1948, s. 2(d)-Definition of
'refugees'; Person with prop~rty in Pakistan coming to Jnd~a .Prior
to
partition-Dying in June 1941-Shown as owner of properties in revenue
records received from West Punjab-If displaced person-Whether allotment of land in India must be made in his name or in the name of /lis
heirs.
.~.:;;!
N owned agricultural lands in Bahawalpur State now forming part of
~
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Pakistan and also owned some property in Pnnjab in India. He died in
June 1947 while on a visit to India in the normal course of business,
leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his
death by his sons, had to be abandoned. After migrating to India, the
three respondents filed separate claims
as displaced persons and were
allotted an area of land in Punjab.
Therea'fter a complaint was filed
before the Managing 'Officer that these respondents had received double
E
allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the
partition, must be treated as a displaced land:.holder for the purpose (j(
allotment of land as his name continued to be shown in the J amabandi
as the owner of the abandoned land in Pakistan.
In consequence of this
finding a large portion of the land allotted to the three rcspc>ndents was
cancelled by an order of the Managing Officer dated September
F
18, 1961. Appeals made by the respondents to the A>si<tant Settlement
Commissioner as well as revision petitiom betfore the Chief Settlement
Commissioner Punjab, were dismissed.
In dismissing the revision petilions, the Chief Settlement Commissioner relied on para. 17 of ''Tarlok
Singh's Land Resettlement Manual"-1952 edition-Page 180, to
the
effect that "Even where a displaced land-holder in who<e name the land
stands in the records received from West Punjab has died, the allotment
is made in the name of the deceased". He therefore upheld the view
G
that the land could only be allotted in the name of N. The respondents
then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed.
On appeal to this Court,
HELD : Dismissing the appeal,
H
. The definition of a. "displaced person" in para 2(e) of the Notifica·
!!on of July 8. 1949, JSsued by the Custodian in accordance with provisions of the East Pnnjab Evacuees (Administration of Property)
Act
1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d)
of the East Punjab Refugees (Registration of Land Claims) Act 12 di
656
SUPREME COURT REPORTS
[1968) 3 S.C.R.
1948, show that these expressions have been used in the relevant enactments \vith refereiice to a person who has migrated to India as a result of
disturbances O'f fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had
never migrated to India as a result of the disturbances and he died before
such migration, he could not come within the meaning of the expression
"displaced person" or the word '"refugee"' under the
relevant statutory
enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in
Bahawalpur on account of the civil disturbances or the fear df such disturbances or the partition of the country. [660 A-DJ
There WRS no force in the contention that even though N never became a refugee or a displaced land-holder, the allotment had to be made
in his name because he was shown in the revenue records received from
West Punjab as the owner of the land and there had been no mutation
of the names of the respondents
in the revenue records. The rule in
pa'r

## Text

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CHIEF SETI'LEMENT COMMISSIONER, REHABILITADON
DEPARTMENT, PUNJAB & ORS, ETC.
v.
OM PARKASH & ORS. ETC.
B
April 5, 1968
[J. C. SHAH AND V. RAMASWAMI, JJ.J
The East Punjab Evacuees (Administration of Property) Act, 1947Definition of 'displaced perwn' in para 2(e) of Notification ~ssued under
Rules made pursuant to s. 22(2){f) and (ft); The East Pun1ab Refugets
c
(Registration of Land Claims) Act 12 of 1948, s. 2(d)-Definition of
'refugees'; Person with prop~rty in Pakistan coming to Jnd~a .Prior
to
partition-Dying in June 1941-Shown as owner of properties in revenue
records received from West Punjab-If displaced person-Whether allotment of land in India must be made in his name or in the name of /lis
heirs.
.~.:;;!
N owned agricultural lands in Bahawalpur State now forming part of
~
D
Pakistan and also owned some property in Pnnjab in India. He died in
June 1947 while on a visit to India in the normal course of business,
leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his
death by his sons, had to be abandoned. After migrating to India, the
three respondents filed separate claims
as displaced persons and were
allotted an area of land in Punjab.
Therea'fter a complaint was filed
before the Managing 'Officer that these respondents had received double
E
allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the
partition, must be treated as a displaced land:.holder for the purpose (j(
allotment of land as his name continued to be shown in the J amabandi
as the owner of the abandoned land in Pakistan.
In consequence of this
finding a large portion of the land allotted to the three rcspc>ndents was
cancelled by an order of the Managing Officer dated September
F
18, 1961. Appeals made by the respondents to the A>si<tant Settlement
Commissioner as well as revision petitiom betfore the Chief Settlement
Commissioner Punjab, were dismissed.
In dismissing the revision petilions, the Chief Settlement Commissioner relied on para. 17 of ''Tarlok
Singh's Land Resettlement Manual"-1952 edition-Page 180, to
the
effect that "Even where a displaced land-holder in who<e name the land
stands in the records received from West Punjab has died, the allotment
is made in the name of the deceased". He therefore upheld the view
G
that the land could only be allotted in the name of N. The respondents
then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed.
On appeal to this Court,
HELD : Dismissing the appeal,
H
. The definition of a. "displaced person" in para 2(e) of the Notifica·
!!on of July 8. 1949, JSsued by the Custodian in accordance with provisions of the East Pnnjab Evacuees (Administration of Property)
Act
1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d)
of the East Punjab Refugees (Registration of Land Claims) Act 12 di
656
SUPREME COURT REPORTS
[1968) 3 S.C.R.
1948, show that these expressions have been used in the relevant enactments \vith refereiice to a person who has migrated to India as a result of
disturbances O'f fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had
never migrated to India as a result of the disturbances and he died before
such migration, he could not come within the meaning of the expression
"displaced person" or the word '"refugee"' under the
relevant statutory
enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in
Bahawalpur on account of the civil disturbances or the fear df such disturbances or the partition of the country. [660 A-DJ
There WRS no force in the contention that even though N never became a refugee or a displaced land-holder, the allotment had to be made
in his name because he was shown in the revenue records received from
West Punjab as the owner of the land and there had been no mutation
of the names of the respondents
in the revenue records. The rule in
pa'ra 17 o'f "Tarlok Singh's Manual" consistently with the statutory enactments, \vould be applicable only to such persons who were land-holders
at the time of their becoming displaced persons or refugees and who died
afterwards before allotment could be made in their favour.
It does not
apply to a person like N who was not a displaced land-holder at the time
of his death. [661 D-F]
C1v1L APPELLATE JuRISDICTION:
Civil Appeal No. 937 of
1965.
Appeal from the judgment and order dated September 13.
1963 of the Punjab High Court in Civil Writ No. 841 of 1962
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and Civil Appeal No. 938 of 1965.
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Appeal from the order dated September 13, 1963
of the
Punjab High Court in Civil Writ No. 526 of 1963 and Civil
Appeal No. 1195 of 1967.
Appeal from the order dated August 6. 1964 of the Punjab
F
High Court in Letters Patent Appeal No. 136 of 1964.
D. R. Prem, R. N. Sachthey and S. P. Nayar, for the appellants
(in C.A. No. 937 of 1965).
R. N. Sachthey, and S. P. Nayar, for the appellauts (in C.A.'s
G
Nos. 938 of 1965 and 1195 of 1967).
S. V. Gupte, Bhawani Lal and B. P. Jha, for respondent
Nos. 1 to 3 (in C.A. No. 937 of 1965).
R. V. Pillai, for the reipondent (in C.A. No. 938 of 1965).
H. L. Mittal and Naunit Lal, for the respondents (in C.A.
No. 1195 of 1967).
H
SETTLEMENT COMMR. v. OM PARKASH (Ramaswami, !.)
657'
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Civil Appeal No. 937 of 1965
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The Judgment of the Court was delivered by
Ramaswami, J.-This appeal is brought, by certificate, from
the judgment of the Punjab High Court dated September
13,
1963 in Civil Writ No. 841 of 1962.
Nanak Chand owned agricultural lands in Bahawalpur State
now forming part of West Pakistan.
He also owned some property at Kot Kapura, Tehsil Faridkot, District Bhatinda now
Joca'ted in India.
Nanak Chand had in normal course of business
come to Bhatinda where he died in June, 194 7 leaving behind
three sons, Om Parkash, Sat Narain and Ram Parshotam who are
the respondents in this appeal.
As a result of the partition of
India the land originally owned by Nanak Chand and after his
death by his sons in Bahawalpur State had to be abandoned.
After the partition of India the three respondents migrated to India
and filed separate claims in accordance with law and obtained
allotment of certain area in village Kot Kapura, district Bhatinda
in lieu of the land abandoned by them in Pakistan: The Revenue
Authorities allotted an area measuring 206.8t standard acres in
;-il!age Kot Kapura, District Bhatinda.
After the allotment was
made one Rur Singh filed a complaint before the Managing Officer
that these respondents had received double allotments in village
Kot Kapura.
The complaint was examined by Shri Shankar Das
Katya!, Managing Officer who held that Shri Rur Singh failed to
substantiate the allegation of double allotment.
But the Managing Otlicer came to the conclusion that Nanak Chand although he
had died long before the partition of the country must be treated ·
as a displaced land-holder for the purpose of allotment of land.
The reason given was that his name continued to be shown in the
J amabandi as the owner of the abandoned land in Pakistan.
In
consequence of this finding a large portion of the land allotted to
the three respondents was cancelled by the Managing Officer by
his order dated September 18, 1961.
The three respondents preferred an appeal before
the Assistant Settlement Commissioner
and a revision petition before the Chief Settlement Commissioner
Punjab but the appeal and the revision petition were both dismissed. In dismissing the revision petition the Chief Settlement Commissioner relied upon paragraph 17 of Tadok Sinah's Land Resettlement Manual, 1952 Edition, page 180 which\vas to
the
following effect :
"Even where a displaced land holder in whose name
the la~d stands in the records received from West Punjab
has died, the a!Jotment is made in the name of the decea~ed. In the fard taqsim, 'therefore, the entry will
?e m ~he name of the deceased land holder.
Possession
is ordmarily given to the heirs but there must be regular
•
~58
SUPREME COURT REPORTS
[1968] 3 S.C.R.
mutation proceedings before the entry in column 3 of
the fard taqsim is altered in favour of the heirs."
It was held by the Chief Settlement Commissioner that this para·
graph related to all persons who continued to be shown as owners
in the revenue records irrespective of the fact whether they had
died before or after migration. In other words, the Chief Settle·
ment Commissioner took the view that the land could only be
allotted in the name of Nanak Chand even assuming that he had
died in June, 1947. Against the order of the Chief Settlement
Commissioner the respondents filed a Writ Petition (Civil Writ
No. 841of1961) before the Punjab High Court. The Writ Peti·
tion was allowed by the High Court by its order dated September
13, 1963 and the orders of the Chief Settlement Commissioner
·dated June 8, 1962, of the Assistant Settlement Commissioner
dated December 26, 1961 and of the Managing Officer dated
September 18, 1961 were all quashed by the grant of a writ in th~
nature of certiorari.
It is necessary at this stage to set out the provisions of the
relevant statutes.
Section 2(b) of the East Punjab Evacuee;·
(Administration of Property) Act, 1947 (East Punjab Act No.
XIV of 1947) defines an "evacuee" as meaning "a person ordi·
narily resident in or owning property or carrying on business
within the territories comprised in the Province of East Punjab,
who on account of civil disturbances, or the fear of such distur·
bances, or the partition of the country : (i) leaves or has s:nce
the first day of March 194 7, left the said territories for a place
outside India, or (ii) cannot personally occupy or supervise hi'
property or business." Section 4 of that Act provided that "All
evacuee property situated within the Province shall vest in the
Custodian for the purposes of this Act and shall continue to be so
vested until the Provincial Government by notification otherwise
directs." In pursuance of the powers conferred by the rules made
by the State Government under els. (f) and (ff) of s. 22(2) of
the East Punjab Evacuees,
(Administration of Property) Act,
1947, the Custodian issued a notification no. 4892/S on July 8,
1949 regarding the conditions on which he was prepared to grant
allotment of land vested in him under' the provisions of the said
Act to displaced persons.
Para 2 ( e) of this notification states :
" "Displaced person" means a land holder in the terri·
tories now comprised in the province of West Pun.iab
or a person of Punjabi extraction who holds land in the
Provinces of North-Western Frontier Province, Sind or
Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakis·
tan and who has since the 1st day of March, 1947,
ab~ndoned or been made to abandon his land in the
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SETTLEMENT COMMR. v. OM PARKASH (Ramaswa111i, J.)
659
said territories on account of civil disturbances, or the
fear of such disturbances, or the partition of the
country."
Section 2(d) of the East Punjab Refugees (Registration of Land
Claims) Act. 1948 (East Punjab Act No. XII of 1948) states:
"2. Interpretation.-In this Act unless there is anything repugnant in the subject or context,-
( d) 'refugee' means a landholder in the territories
now comprised in the Province of West Punjab, or
who or whose ancestor migrated as a colonist from the
Punjab since 1901 to the Provinces of North-West
Frontier Province, Sind or Baluchistan or to any State
adjacent to any of the aforesaid Provinces and acceding
to the Dominion of Pakistan, and who has since the 1st
day of March, 194 7, abandoned or been made to abandon his land in the said territories on account of civil
disturbances, or the fear of such disturbances, or the
partition of the country;"
Section 2 ( c) defines a "landholder" to mean "an owner of land:
or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 (XVI of 1887) or a tenant as defined in section
3 of the Colonization of Governmell'I Lands Act, 1912 (Punjab
Act V of 1912) and such other holder or grantee of land as may
be specified by the Provincial Government;".
Section 2(c) of
the East Punjab Displaced Persons (Land Resettlement)
Act,
1949 (East Punjab Act No. XXXVI of 1949) defines a "displaced person" as follows :
" 'displaced person' means a land-holder in· the territories now comprised in the Province of West Punjab
or a person of Punjabi extraction who holds land in the
Provinces of North-West Frontier Province, Sind or
Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of
Pakistan, and who has since the 1st day of March
194 7, abandoned or been made to abandon his land in
the said territories on account of civil disturbances, or
the fear of such disturbances, or the partition of the
country".
Section 2(b) o.f this Act defines an "allottee" as follows :
" 'allottee' means a displaced person to whom land
is allotted by the Custodian under the conditions published with East Punjab Government notification no.
4892/S, dated the 8th July, 1949, and includes his heirs,
legal representatives and sub-lessees".
660
SUPREME COURT REPORTS
[1968] 3 S.CR.
The main question to be considered in this .appeal is whether
Nanak Chand was a 'displaced person' as defined in para 2(e)
of the notification dated July 8, 1949 iir a "refugee" as defined
under s. 2(d) of Act No. XII of 1948 and whether he was entitled
for aliotment of land. It is manifest that the expression "displaced
person" or the word "refugee" has been used in the relevant enactments with reference to a person who has migrated to India as
.a result of disturbances or fear of disturbances or the partition of
the country.
Therefore if a person had died before the disturbances took place or he had never migrated to India as a result
of the disturbances and he died before such migration, he could
not come within the meaning of the expression "displaced person''
or the word "refugee" under the relevant statutory enactments.
It is manifest in the present case that Nanak Chand died in Jun~.
1947 long before the partition of the country and he did not abandon or was not made to abandon his land in Bal)awalpur on account of the civil disturbances or the fear of such disturbances or
the partition of the country:
It was, however, contended by Mr. D. R. Prem on behalf of
the appellants that even though Nanak Chand never became a
refugee or a displaced land-holder, the allotment had to be made
in his name because he was shown in the revenue records received
from West Punjab as the owner of the land and there had been
no mutation of the names of the respondents in the revenue records.
Reference was made in this connection to paragraph 17 of Tarlok
Singh's Land Resettlement Manual which has already been quoted.
It was contended by Mr. Prem that the instructions contained
in this paragraph would apply even though Nanak Chand had
never become a refugee or a displaced land-holder and the allotment has to be made in his name by the revenue authorities because bis name still stands in the revenue records received from
West Punjab. We are unable to accept this argument as correct.
It is not disputed that paragraph 17 of Tarlok Singb's Manual
has no statutory authority but it merely embodies executive or
administrative instructions for general guidance. If there is a
conflict between the provisions contained in this paragraph and
the statutory enactments already referred to it is manifest that the
statutory provisions must take precedence and must prevail over
the directions contained in para 17 of Tarlok Singh's Manual.
In this context it is essential to emphasise that under our con~
·titutional system the authority to make the law is vested in the
Parliament and the State Legislatures and other law making bodies
and whatever legislative power the executive administration
possesses must be derived directly from the delegation of the legis1ature and exercised. validly only within the limits prescribed. The
notion of inherent or autonomous law-making power in the exe-
·Cutive administration is a notion that must be emphatically rejectA
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SETTLEMENT COMMR. V, OM PARKASH (Ramaswami, J.)
661
ed.
As observed by Jackson, J. in a recent American caseYoungstown Sheet & Tube Co. v. Sawyer( 1 )-"With all i:ts defects
delays and inconveniences men have discovered no technique for
long preserving free government except that the Executive be
under the law, and that the law be made by parliamentary deliberations." In. our constitutional system, the central and most
characteristic feature is the concept of the rule of law which
means, in the present context, the authority of the law courts to
test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard
will be set aside if the aggrieved person brings the appropriate
action in the competent court. The rule of law rejects the conception of the Dual State(") in which governmental action is
placed in a privileged position of immunity from control by law.
Such a notion is foreign to our basic constitutional concept.
In our opinion, however, it is possible to give a restricted interpretation to paragraph 17 of Tarlok Singh's Manual so as to make
it consistent with the requirements of the statutory enactments.
The intention of para 17 is that it is applicable only to such persons who are land-holders at the time of their becoming displaced
persons or refugees and who died afterwards before allotment
could be made in their favour. In other words, the paragraph
applies tu a displaced land-holder who dies after having become a
"displaced person" within the meaning of the relevant statutory
enactments referred to above.
The paragraph does not apply to
a case of a person who was not a displaced land-holder at the time
of his death. In the present case it is admitted that Nanak Chand
never became a displaced land-holder.
On the other hand, Nanak
Chand died before he became a displaced land-holder and therefore para 17 of Tarlok Singh's Manual has no application to the
facts of the present case.
For these reasons we hold that this appeal has no merit and
it must be dismissed with costs.
Civil Appeals Nos. 938 of 1965 & 1195 of 1967
The question arising in these two appeals is identical wilt the
question of law in Civil Appeal No. 937 of 1965. For the reasons
given in that judgment we hold that the decision of the High
Court challenged in these appeals is correct and these appeals
must be dismissed with costs.
R.K.P.S.
Appeals dismissed.
(I) 343 u. s. 579, 655.
(2) This term is deri\rcd from Fraenkel, Tile Dual State (1941).