# z96z May 4, Stale of Punjab v. Suraj PaYkash Kapur, etG

- **Citation:** [1962] 2 S.C.R. 711
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** J. L. Kapur, K. Subba Rao, M. liIDAYATULLAH, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/z96z-may-4-stale-of-punjab-v-suraj-paykash-kapur-etg-2287
- **Pages:** 9

## Headnote

Evacuee Prop<rty-Lands allotted to evacuee by CustodianGovernment notification for consolidation of holdings-Draft scheme
by Consolidation Officer substituting lands by lands of less value on
Government direction-V a!idity of scheme-Application for issue o/
writ by aUottee-Maintainability-East Punjab Holdit1gs (Co.nsoZ.-
dation and Prevention of Fragmentation) Act, z948 (East Pun1ab 50
of r948), s. 14-Displaced Persons (Compensation and Rehabilitation) Act, I954 (44 of 1954), ss. ro, 12-Administr~ti~ of Evacuee
Property (Central) Rules, 1950, r. r4(6)-Const1tut;on of India,
Art. zz6.
Delhi
Administration
v.
Ram Singh
Mudholkar J.
z96z
May 4,
Stale of Punjab
v.
Suraj PaYkash
Kapur, etG.
712
SUPREME COURT REPORTS
[1962~
The respondents, a joint Hindu family and evacuees from
Pakistan, were allotted certain lands by the Custodian of Evacuee
Property. A draft scheme for consolidation of holdings was
framed and published by the Consolidation Officer in pursuance
of a notification by the State Government under s. r4 of the
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The scheme under the directions of the
State Government and contrary to the Act substituted lands of
a lesser value for those already allotted to the respondents.
Objections filed by the respondents were rejected by the Consolidation Officer and the scheme was confirmed by the Settlement
Commissioner. Before the confirmation, the Central Government by a notification under s. r2 of the Displaced Persons
(Compensation and Rehabilitation} Act, r954, acquired all evacuee properties and after the said confirmation issued a sanad
conferring proprietary rights of the said lands on the respondents.
The respondents had moved the High Court under
Art. 226 of the Constitution before the issue of the sanad but
the matter was finally disposed of by the High Court thereafter
by setting aside the said scheme and directing the Consolidation
Officer to dispose of the matter according to law.
Held, that the notification issued by the Central Govern·
ment under s. 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954. did not put an end to the rights the
respondents had in the lands originally allotted to them by the
Custodian and they had the right to move the High Court under
Art. 226 of the Constitution. Sections ro and 12 of the said Act
read with r. 14(6) of the Rules framed under the Administration
of Evacuee Property Act, 1950, made it amply clear that the
respondents held a quasi-permanent tenure in the said lands
and as such had a valuable right therein. Such right continued
while they remained in possession and the lands remained vested in the Central Government and with the grant of the sanad
the limited right they had in the lands became a full-fledged
right of property.
Amar Singh v. Custodian, Evacuee Property, Punjab, [1957]
S.C.R. Sor, referred to.
The East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948, did not empower the Consolidation
Officer to take away an allottee's lands without giving him other
lands of equal value or paying compensation nor did the Act
empower the State Government either to do so in any way or to
direct the Consolidation Officer as to how he should exercise his
powers thereunder.
Since, in the instant case, the respondents' lands had admittedly been substituted by lands of Jess value and no compensation had been paid to them, the High Court was right in setting
..
aside the order confirming the scheme.
2 S.C.R. SUPREME COURT REPORTS
713

## Text

2 S.C.R. SUPREME COURT REPORTS
711
each exercise his power to investigate into an offence
under the Act.
I do not think that there would be a danger of such
simultaneous exercise of the power to investigate by
two officers. The offence will have to be registered at
the police station within the limits of the jurisdiction
of which the offence has taken place. Thereafter it
would be investigated into by the officer at whose
instance it was registered. If that officer happens to
be·a station-house officer the special police officer may
take out the investigation from his hands or allow
him to continue it. If the offence is registered at the
instance of the special police officer, the station-house
officer would be bound to know of it from the station.
house records and would stay his hands.
Upon this view, therefore, I would allow the appeal,
set aside the judgment of the High Conrt and of the
Magistrate and remit the case to the latter for being
dealt with according to law.
BY CouRT: In accordance with the opinion of the
majority, this appeal is dismissed.
Appeal dismissed.
STATE OF PUNJAB
v.
SURAJ P ARKASH KAPUR, ETC.
(J. L. KAPUR, K. SUBBA RAO, M. liIDAYATULLAH,
J. c. SHAH and RAGHUBAR DAYAL, JJ.)
Evacuee Prop<rty-Lands allotted to evacuee by CustodianGovernment notification for consolidation of holdings-Draft scheme
by Consolidation Officer substituting lands by lands of less value on
Government direction-V a!idity of scheme-Application for issue o/
writ by aUottee-Maintainability-East Punjab Holdit1gs (Co.nsoZ.-
dation and Prevention of Fragmentation) Act, z948 (East Pun1ab 50
of r948), s. 14-Displaced Persons (Compensation and Rehabilitation) Act, I954 (44 of 1954), ss. ro, 12-Administr~ti~ of Evacuee
Property (Central) Rules, 1950, r. r4(6)-Const1tut;on of India,
Art. zz6.
Delhi
Administration
v.
Ram Singh
Mudholkar J.
z96z
May 4,
Stale of Punjab
v.
Suraj PaYkash
Kapur, etG.
712
SUPREME COURT REPORTS
[1962~
The respondents, a joint Hindu family and evacuees from
Pakistan, were allotted certain lands by the Custodian of Evacuee
Property. A draft scheme for consolidation of holdings was
framed and published by the Consolidation Officer in pursuance
of a notification by the State Government under s. r4 of the
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The scheme under the directions of the
State Government and contrary to the Act substituted lands of
a lesser value for those already allotted to the respondents.
Objections filed by the respondents were rejected by the Consolidation Officer and the scheme was confirmed by the Settlement
Commissioner. Before the confirmation, the Central Government by a notification under s. r2 of the Displaced Persons
(Compensation and Rehabilitation} Act, r954, acquired all evacuee properties and after the said confirmation issued a sanad
conferring proprietary rights of the said lands on the respondents.
The respondents had moved the High Court under
Art. 226 of the Constitution before the issue of the sanad but
the matter was finally disposed of by the High Court thereafter
by setting aside the said scheme and directing the Consolidation
Officer to dispose of the matter according to law.
Held, that the notification issued by the Central Govern·
ment under s. 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954. did not put an end to the rights the
respondents had in the lands originally allotted to them by the
Custodian and they had the right to move the High Court under
Art. 226 of the Constitution. Sections ro and 12 of the said Act
read with r. 14(6) of the Rules framed under the Administration
of Evacuee Property Act, 1950, made it amply clear that the
respondents held a quasi-permanent tenure in the said lands
and as such had a valuable right therein. Such right continued
while they remained in possession and the lands remained vested in the Central Government and with the grant of the sanad
the limited right they had in the lands became a full-fledged
right of property.
Amar Singh v. Custodian, Evacuee Property, Punjab, [1957]
S.C.R. Sor, referred to.
The East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948, did not empower the Consolidation
Officer to take away an allottee's lands without giving him other
lands of equal value or paying compensation nor did the Act
empower the State Government either to do so in any way or to
direct the Consolidation Officer as to how he should exercise his
powers thereunder.
Since, in the instant case, the respondents' lands had admittedly been substituted by lands of Jess value and no compensation had been paid to them, the High Court was right in setting
..
aside the order confirming the scheme.
2 S.C.R. SUPREME COURT REPORTS
713
CIVIL APPELLATE JURISDICTION:
349of1959.
Civil Appeal No.
x96x
Stale of Pu11jab
Appeal from the judgment and order dated Februav.
ry 1, 1957, of the Punjab High Court, in Civil Writ Suraj Parkash
f 9
Kapur, etc,
Application No. 385 o 1 55.
B. K. Khanna and D. Gupta, for the appellants.
The respondent did not appear.
1961. May 4. The Judgment of the Court was
delivered by
SUBBA RAO, J.-This appeal by certificate is preSubba Rao J.
ferred against the order of the Punjab High Court
dated November 9, 1956, setting aside the order of
the Consolidation Officer and directing him to proceed
with the matter in accordance with law.
The respondents are members of a joint Hindu
family and are evacuees from Pakistan. On March 3,
1950, in lieu of the lands left by the family in Pakistan, the Custodian of Evacuee Property allotted to
the sa.id family 11 standard acres and 9 units of
Grade 'A' land in Pati Kankra, Shahabad Estate in
Tehsil Thanesar in Karna! District. The said units
were valued as equal to 123 standard kanal,s and 18
standard marlas of 'A' Grade land. The family took
possession of the said land, and, it is alleged, made
improvements thereon. On July 28, 1954, the State
Government issued a notification under s. 14 of the
East Punjab Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948 (hereinafter called the
Act), declaring its intention to make a scheme for the
consolidation of the holdings. On April 30, 1955, a
draft scheme was proposed by the Consolidation Officer and published indicating, inter alia, that the respondents' family would be given 84 standard kanals
consisting of 50 standard kanals and 7 standard marlas
of 'A' Grade land, and 34 standard kanals and 1
standard maria of 'B' Grade land. The lands proposed to be substituted for the lands already allotted on
quasi-permanent tenure to the respondents' family
are admittedly of a lesser value than the land allotted
to them earlier. The said consolidation was not made
Stat~ of Punjab
v.
Suraj Patkash
Kapur, etG.
Subba Rao j.
714
SUPREME COURT REPORTS
[1962]
in strict compliance with the provisions of the Act,
but pursuant to administrative directions given to
the Consolidation Officer by the State Government.
Broadly stated, under the said directions the Consolidation Officer was directed to take into consideration,
for the purpose of consolidation, the number of acres
held by the evacuee and not the actual valuation at
site of the land allotted to him. The objections filed
by the respondents were rejected by the Consolidation Officer. By an order dated August 6, 1958, the
Settlement Commissioner confirmed the scheme propounded by the Consolidation Officer. Meanwhile, the
Displaced Persons (Compensation and Rehabilitation)
Act (44 of.1954) became la.w; it came into force on
October 9, 1954, i.e., after the Estate had been notified for consolidation of holdings. On March 24, 1955,
the Central Government issued a notification under
s. 12 of the Displaced Persons Act ( 44 of 1954) acquiring all the evam.1ee properties to which that Act
applied. This notification was issued before the
scheme of consolidation was confirmed by the Settlement Commissioner. On February 23, 1956, the Central Government issued a sanad conferring proprietary rights on the respondents in respect of the lands
allotted to them in 1950. This sanad was issued after
the order of the Settlement Commissioner confirming
the scheme of consolidation. On N ovembcr 9, 1955,
i.e., before the said sanad was issued to them, the respondents filed a petition in the High Court of Punjab
under Art. 226 of the Constitution praying for the
issue of an appropriate writ to quash the said scheme
of consolidation. The High Court by its final order
dated E'ebruary l, 1957, allowed the said objection and
issued a direction to the Consolidation Officer to proceed wHh the matter before him in accordance with
law.
Mr. Khanna, learned counsel for the State, raised
before us the following two points: (1) The respondents had no legal right to maintain the petition
under Art. 226 of the Constitution. And (2) the directions issued by the State Government were validly
issued and, therefore, the Consolidation Officer was
•
~ '
2 S.C.R. SUPREME COURT REPORTS
715
within his rights to formulate the scheme on the basis
of those instructions.
Re. (1). The existence of a right and the infringement thereof are the foundation -0f the exercise of the
jurisdiction of the court under Art. 226 of the Constitution. The right that can be enforced under Art. 2!:!6
of the Constitution shall ordinarily be the personal or
individual right of the applicant. It may be first
considered whether the respondents had such a right
on the date when they filed the petition under Art.
226 of the Constitution. They filed the petition on
N"ovember 9, 1955, i.e., after the Central Government
issued the notification acquiring all the evacuee
properties and before it issued the sanad conferring
proprietary rights on the respondents in respect of
the lands allotted to them. The nature of interest
of a displaced person in the properties allotted to him
under the evacuee law has been authoritatively decided by this Court in Amar Singh v. Custodian, Evacuee
Property, Punjab('). There, Jagannadhadas, J., speaking for the Court, after an elaborate survey of the
law on the subject, came to the conclusion that the
interest of a quasi-permanent a.llottee was not property within the meaning of Art. 19(1)(f) and Art.
31(2) of the Constitution. But the learned Judge ma.de
it clear that, notwithstanding the said conclusion an
a.llottee had a. valuable right in the said interest. The
learned Judge stated the legal position in the following words:
"In holding that quasi-permanent allotment does
not carry with it a fundamental right to property
under the Constitution we are not to be supposed
as denying or weakening the scope of the rights of
the allottee.
These rights as recognized 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 these 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
( 1) [1957] S.C.R. 801, 836.
Slat• of Punj•b
v.
Suraj ParAasll
Kapur, tic.
Subba Rao f,
r96r
State of Punjab
v.
Suraj Parkash
I<apur, etc.
Subba Rao ].
716
SUPREME COURT REPORTS
[1962]
courts by appropriate proceedings where there is
usurpation of jurisdiction or abuse of exercise of
statutory powers."
It may be mentioned that the learned Judge in coming to the conclusion noticed all the relevant Acts on
the subject, including the Displaced Persons (Compensation and Rehabilitation} Act, 1954 (44 of 1954) and
particularly s. 12 thereof. The observations of this
Court indicate that notwithstanding such notification
an evacuee has a valuable right in the property allotted to him, and that the said right is entitled to the
protection of the constituted authorities and the
courts. A perusal of the relevant provisions of Act
44 of 1954 demonstrates the correctness of the said
observations.
Section 10. Where any immovable property has
been leased or allotted to a displaced person by the
Custodian under the conditions published-
(a) by the notification of the Government of
Punjab in the Department of Rehabilitation No.
4891-S or 4892-S, dated the 8th July, 1949; or
(b) by the notification of the Government of
Patiala and East Punjab States Union in the Department of Rehabilitation No. SR or 9R, dated the 23rd
July, 1949, and published in the Official Gazette of
that State, dated the 7th August, 1949,
and such property is acquired under the provisions
of this Act and forms part of the compensation pool,
the displaced person shall, so long as the property
remains vested in the Central Government, continue
in possession of such property on the same conditions
on which he held the property immediately before
the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such
property on such terms and conditions as may be
prescribed.
Section 12. (1) If the Central Government is of
opinion that it is necessary to acquire any evacuee
property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced
persons, including payment of compensation to such
·~
' •
'·
....
2 S.C.R. SUPREME COURT REPORTS
717
persons, the Central Government may at any time
acquire such evacuee property by publishing in the
Official Gazette a notification to the effect that the
Central Government has decided to acquire such
evacuee property in pursuance of this section.
A reference to r. 14(6) of the rules made under the
Administration of Evacuee Property Act, 1950, will
also be useful in this context. Under that rule, the
Custodian has no power to make any order after July
22, 1952, cancelling or varying the allotments made,
subject to certain exceptions with which we are not
concerned here. The result of these provisions is that
under the Administration of Evacuee Property Act,
the respondents became quasi-permanent allottees in
respect of the land allotted to them in 1950. After
July 22, 1952, the Custodian ceased to have any
authority to cancel or modify the said allotme_nt.
After the notification issued by the Government under
s. 12 of the Act, so long as the property remained
vested in the Central Government, the respondents
continued to be in possession of the property on the
same conditions on which they held the property
immediately before the date of acquisition, that is,
under a quasi-permanent tenure. The contention that
on the issue of the said notification, the respondents
ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on
the date when the respondents filed the petition in the
High Court they had a very valuable right in the
properties allotted to them which entitled them to
ask the High Court to give them relief under Art. 226
of the Constitution.
That apart, on February 23, 1956, the Central
Government issued a sanad to the respondents conferring an absolute right on them in respect of the
said properties. Though the sanad was issued sub.
sequent to the filing of the petition, it was before the
petition came to be disposed of by the High Court. At
the time the High Court disposed of the petition,
the limited right of the respondents had blossomed
Stat• of Pu>ljabv.
Suraj Par.ka.sb
Kapur, et()_
S14bba Rao J.
718
SUPREME COURT REPORTS
[1962J
1961
into a full.fledged property right. In the oiroumstans
,, P
. b ces of the case, the High Court was fully justified in
1011 .,
UMJ•
•
.
f h
f
F
h
.
., ·
takmg note o t at a.ct.
rom w a.tever perspect1v.e
sur•f Pa;Aash this case is looked at, it is obvious that the respon.
K•P"" '''· dents have sufficient intertist in the property to sus.
tain their petition under Art. 2211 of the Constitution.
Subb• Rao J.
Re. (2). The second point has absolutely no legs
to stand upon. The East Punjab Holdings (Oonsolida
tion and Prevention of Fragmentation) Act, 1948, was
enacted, in the words of the long title annexed to the
Act, to provide for compulsory consolidation of
agricultural holdings and for the prevention of frag.
mentation of agricultural holdings in the State of
Punjab. Under s. 15 of the said Act, the scheme pr-epa.red by the Consolidation Officer shail provide for
the payment of compensation to any owner who is
allotted a holding of less market value than that of
his original holding and for the recovery of compensation from any owner who is allotted a holding of
greater market value than that of his original holding. There is no provision in the Act empowering
the Consolidation Officer to deprive a person of any
part of his property without allotting to him property
of equal value or paying him compensation if he is
allotted a holding of less market value than that of
his original holding. In the present case it is not
disputed that while the respondents were allotted 123
kanals and 18 marlas of 'A' Grade land on a quasipermanent basis by the Custodian and later confirmed
by the Central Government, the consolidation pro.
ceedings gave him only 50 kanals and 7 marlas of 'A'
Grade land, and 34 kanals and I marla of 'B' Grade
land. The area given under the consolidation pro.
ceedings is admittedly of less value than that of thti
holding allotted to the respondents by the Custodian,
and the Consolidation Officer has not paid any com.
pensation for the deficiency. This unjust situation in
which the respondents have been placed is sought to
be supported by learned counsel for the State on the
basis of the instructions given to the Consolidation
Officer by the State Government. There is no provision in the Act empowering the State Government to
2 S.C.R.
SUPREME COURT REPORTS
719
give any such instructions to the Consolidation
Officer ; nor does any provision of tbe Act 1J011fer
on the State Government any power to make rules
or issue notifications to deprive owners of land
of any part thereof or to direct the Consolidation
Officer as to how he should exercise his statutory
duties. Any such rule would be repugnant to the
provisions of the Act.
That apart, no such statutory rule empowering the State Government to
issue such instructions has been placed before us.
Both here as well as in the High Court, leamed
counsel appearing for the State has not been able
to sustain the validity of such instructions on any
legal basis. The order of the appropriate officers
confirming the scheme on the basis of the said
instructions was obviously illegal and, therefore,
was rightly set aside by the High Court.
In the result, the appeal fails and is dismissed
with costs.
Appsal dismissed.
1961
Slate of Punjab
v.
Su~aj R~rkash
Kapur, etc.
Subba Rao J