Amarsingh vs Custodian, Evacuee Property, Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 351 of 1954

Decision Date: 29 March, 1957

Coram: B. Jagannadhadas, Natwarlal H. Bhagwati, Syed Jaffer Imam, P. Govinda Menon, J.L. Kapur

In the matter titled Amarsingh versus the Custodian of Evacuee Property in Punjab, the Supreme Court rendered its judgment on 29 March 1957. The decision was authored by Justice B. Jagannadhadas and delivered by a bench that included Justices Natwarlal H. Bhagwati, Syed Jaffer Imam, P. Govinda Menon, and J. L. Kapur. The case was reported in the 1957 volume of AIR at page 599 and in the Supreme Court Reports at page 801, and it concerned provisions of the Administration of Evacuee Property Act, 1950, together with the constitutional guarantees under Articles 19(1)(f), 31(1) and 31(2) of the Constitution of India.

The petitioners were individuals who had been displaced from Pakistan and who owned land there. They were also co‑sharers in a joint khata that was owned by a group of evacuees residing in a suburban village in East Punjab. Upon their displacement, the petitioners were initially given a temporary agricultural land allotment in that village. Later, a readjustment of the suburban land allocations among various groups that enjoyed quasi‑permanent allotments was carried out in accordance with certain rules and executive instructions. As a result of this readjustment, the allotments that had been granted to the petitioners were cancelled.

The petitioners argued that their allotments were of a quasi‑permanent nature and that, consequently, they had acquired enforceable rights in the land that amounted to property. They contended that the order cancelling their allotments violated their fundamental rights to property protected by Articles 19(1)(f), 31(1) and 31(2). While the petitioners acknowledged that they had been allotted agricultural land on a quasi‑permanent basis, they also admitted that they had been unable to obtain a sanad under the rules that would have conferred permanent ownership of the land originally allotted to them. The cancellation of the allotments was undertaken under the purported authority of the Administration of Evacuee Property Act, 1950, and the regulations made thereunder, together with certain executive instructions.

The Court held that the interest held by a quasi‑permanent allottee does not constitute “property” within the meaning of Articles 19(1)(f), 31(1) or 31(2) of the Constitution. Accordingly, the orders that cancelled the allotments could not be said to infringe the petitioners’ fundamental rights under those provisions. The Court explained that the essential features of a quasi‑permanent allotment are that the ultimate ownership of the land remains with the evacuee and that the allotment remains subject to resumption or cancellation in the public interest of administering evacuee property. The interest created by such an arrangement is provisional, intended to lead to eventual stabilisation and permanent settlement, but it does not create a proprietary right that can be bought, sold, mortgaged, gifted or bequeathed. The Court therefore concluded that this interest could not be fitted within any concept of property, citing the principle established in Julius v. Lord Bishop of Oxford, (1880) 5 A.C. 214, distinguished. Consequently, the cancellation of the quasi‑permanent allotments did not amount to an unlawful deprivation of property under the constitutional provisions.

The Court observed that the interest granted to a quasi‑permanent allottee does not qualify as “property” for the purposes of Articles 19(1)(f), 31(1) and 31(2) of the Constitution. Such an interest is created only by a statutory grant to a person belonging to a prescribed class, and it cannot be acquired by an ordinary citizen through the usual modes of acquisition. Moreover, the allottee is not authorised to dispose of the interest by sale, mortgage, gift or testamentary disposition. Because the interest cannot be the subject of “acquisition and disposal”, Article 19(1)(f) does not apply. To invoke Article 31(1) it is insufficient merely that a deprivation occurs; the deprivation must also be without legal authority. In the present case the petitioners’ quasi‑permanent allotments were cancelled under the statutory right of resumption or cancellation, which is an incident of the governing evacuee law. Consequently, the cancellation was exercised with legal authority and did not infringe Article 31(1). The Court further held that the pre‑amendment wording of Article 31(2) – referring to “taking possession” or “acquisition” – is inappropriate for rights that constitute quasi‑permanent tenure, and therefore such tenure cannot be brought within its scope.

The Court noted that the word “deemed” in Article 31(2A) suggests a retrospective effect of the amendment to Article 31(2), yet even with that amendment the provision remains inapplicable because it contemplates acquisition or requisition only after a transfer of ownership or possession rights. The Court expressly disapproved the decision in Suraj Parkash Kapur v. State of Punjab (1957) LIX P.L.R. 103, which had held that a quasi‑permanent allottee’s interest amounted to “property” protected by fundamental rights. While recognising that a quasi‑permanent allotment does not create a constitutional right to property, the Court emphasized that the statutory rights of the allottee are crucial for the effective rehabilitation and settlement of displaced land‑holders. Until the land‑holders obtain formal titles, these rights must receive vigorous protection from the competent authorities under the applicable rules and instructions, and from the courts where jurisdiction is usurped or statutory powers are exercised improperly. The matter arose under original jurisdiction as Petition No. 351 of 1954, filed under Article 32 for enforcement of fundamental rights. Counsel for the petitioners and interveners were instructed, and the judgment was delivered on 29 March 1957 by Justice Jagannadhadas. The petitioners, including Amar Singh and four others, were displaced persons who previously owned land in Chak No. 159‑RB, Tahsil Jaranwala, District Lyallpur (now in Pakistan), and were co‑sharers of a joint khata in the village of Sultanwind, East Punjab.

In the wake of their displacement, the petitioners were initially allotted temporary agricultural land in Sultanwind. Taking into account their original village position, in 1949 they were allotted a total of thirty‑eight standard acres and thirteen units of agricultural land there. This initial allotment later had to be disturbed because of certain circumstances. By an order dated 7 January 1950, the Director‑General of Relief and Rehabilitation, acting as Additional Custodian, directed that out of the 1,263 standard acres and one ¾ units of suburban land of Amritsar, one hundred and forty‑two standard acres and five units should be allotted to the allottees of Provincial Gardens. This directive required a readjustment of the suburban land of Sultanwind among the various groups that held quasi‑permanent allotments there. Accordingly, pursuant to the applicable rules and instructions, the allotment held by the five petitioners and by some others was proposed for cancellation by an order of the Deputy Custodian, Amritsar, dated 31 July 1951. The proposal received the approval of the Custodian, who was the Financial Commissioner of Relief and Rehabilitation, on 6 February 1952, and the allotment was consequently cancelled. The petitioners claim that neither the proposal nor the cancellation order was served upon them. Aggrieved by the cancellation, they filed an application before the Custodian‑General of Evacuee Property seeking revision under section 27 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950). The Deputy Custodian‑General considered the application and dismissed it by an elaborate order dated 1 May 1954 after hearing the parties. The petitioners have now approached this Court under article 32 of the Constitution. They argue that their allotment was on a quasi‑permanent basis, which gave them a right in the land that constitutes “property.” They contend that the orders of the Custodian cancelling the allotment and of the Deputy Custodian‑General affirming that cancellation violate their fundamental rights to property under articles 19(1)(f), 31(1) and 31(2) of the Constitution, and therefore seek to have those orders set aside and their property rights recognised and protected. It is not contested that the petitioners are allottees of agricultural land under what is described as a quasi‑permanent allotment, nor is it disputed that the cancellation was carried out under powers purportedly vested in the Custodian by certain provisions of the Administration of Evacuee Property Act, 1950 and the rules and executive instructions made thereunder. It may be observed that the expression “quasi‑permanent allotment” has emerged in later statutory rules, has never been expressly defined, but is now commonly understood. Consequently, the two principal questions for determination are: (1) whether the rights of a quasi‑permanent allottee amount to “property” within the meaning of the constitutional provisions cited.

The Court identified two questions that required resolution. First, it had to determine whether the rights of a quasi‑permanent allottee fell within the meaning of “property” under Articles 19(1)(f), 31(1) and 31(2) of the Constitution. Second, it needed to decide whether the orders issued by the Custodian and the Deputy Custodian‑General that cancelled such quasi‑permanent allotments amounted to a violation of the fundamental rights protected by those constitutional provisions. Both queries demanded a thorough examination of the Evacuee Property Law as it applied to the allocation of agricultural lands belonging to evacuees to displaced persons, together with an appreciation of the historical backdrop that gave rise to those legal measures. The backdrop began with the Declaration of Independence and the partition of India on 15 August 1947, which produced a massive exchange of populations: roughly five million non‑Muslims moved from West Punjab to East Punjab, while a comparable number of Muslims travelled from East Punjab to West Punjab. These migrations occurred amid communal riots that created a climate of panic and left many migrants from West Punjab arriving in East Punjab virtually destitute. The unprecedented scale of displacement generated enormous administrative challenges, particularly concerning the rehabilitation and resettlement of the displaced. For clarity, the Court used the terms “evacuees” for those who left East Punjab for West Punjab, and “displaced persons” for those who arrived in East Punjab from West Punjab. The displaced persons had left behind lands in Pakistan estimated at about sixty‑seven lakh acres, whereas the evacuees had abandoned roughly forty‑seven lakh acres in East Punjab and PEPSU. This created a shortfall of more than twenty lakh acres needed for resettlement. Initial attempts to address the imbalance involved mutual exchanges of land, either on an individual basis or through governmental negotiations and inter‑Dominion conferences between India and Pakistan, but these efforts ultimately proved unsuccessful.

The subsequent administrative steps taken to settle the displaced agricultural population on the abandoned lands of the evacuees are recorded in the Land Resettlement Manual compiled by Shri Tarlok Singh, then Director‑General of Relief and Rehabilitation. In the earlier decision of Dunichand Hakim v. Deputy Commissioner (Deputy Custodian, Evacuee Property), Karnal, the Court referred to this manual, citing it as (1) [1954] S.C.R. 578, and observed that it bore the stamp of authority. The Court clarified that the manual should not be treated as binding authority for every factual or legal proposition it contains; rather, it serves as a valuable guide for understanding the extraordinary circumstances faced by the administration, the strategies employed to resolve those difficulties, the rules and practices that the administration regarded as binding upon itself, and the policy considerations that inspired the subsequent legislation. From the manual it emerges that, within approximately one month after the partition of India, the Government made an emergency decision to allocate the lands of evacuees to groups of displaced persons on a temporary basis, a measure that laid the foundation for later policy developments concerning quasi‑permanent allotments.

The government was forced, in the immediate aftermath of the partition, to adopt an emergency measure that allotted lands belonging to evacuees to groups of displaced persons on a temporary basis. This provisional arrangement, however, failed to satisfy the displaced landholders, who increasingly demanded an allotment that would enable them to settle permanently on the former evacuee lands. In response to this persistent pressure, the authorities abandoned the policy of temporary allotments and instituted a new system that came to be known as “quasi‑permanent allotment.” This policy shift was formally announced by the Government of East Punjab through a Press Communiqué dated 7 February 1948, a document reproduced on pages 28 and 29 of the Resettlement Manual. The Communiqué contained an extensive statement of purpose, which reads: “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 West Punjab. The new allotments will not confer rights of ownership or permanent occupancy, but the possession of allottees 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 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 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 of rights in West 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.”

The Court observed that the existing allotments to current holders would continue only after a thorough examination of all present allotments, the cancellation of any unauthorised or excessive allotments, the removal of illegal occupations and any other adjustments deemed necessary, including adjustments to the size of allotments as decided by the Government. To implement the resettlement of displaced persons on evacuated land under this new system of allotment, a series of steps were required. First, land claims had to be registered and verified. Second, those claims needed to be assessed and valued. Third, the villages and the lands of evacuees that were available for allotment had to be classified. Fourth, the classified claims were to be allocated to various areas. Fifth, lands were to be allotted to individuals based on the valuation of their claims, taking into account various considerations, priorities, preferences and other administrative determinations. The underlying principle that guided these measures was that a displaced landholder, subject to graded reductions, should receive, from the agricultural land of evacuees, parcels that in extent, quality and other relevant features bore a reasonable relationship to the lands the landholder had left in West Punjab. The Court noted that each of these steps involved elaborate administrative procedures as previously outlined. In order to examine the legislative basis for these procedures and to determine the extent to which the legislation recognised property rights of displaced land‑holders, the Court first needed to outline the general law governing the administration of all kinds of evacuee property. This required a brief survey of the existing legal framework and its historical development, after which the Court could focus on the specific legislative measures relating to agricultural land. The earliest legislative instrument in this area was the East Punjab Evacuees’ (Administration of Property) Ordinance, 1947 (E.P. Ordinance IV of 1947) dated 14 September 1947. That Ordinance was a simple measure that defined the terms “evacuee”, “evacuee property”, “Custodian of evacuee property” and related expressions, and authorised the appointment of a Custodian. It empowered the Custodian to take possession of evacuee property and to take all necessary and expedient measures for its preservation, granting him extensive powers of management. The Court characterised this Ordinance as an emergency provision intended primarily to secure possession of the properties as a caretaker. Subsequently, this Ordinance was superseded by a series of legislative enactments that were periodically amended. These were initially Provincial statutes, namely the East Punjab Evacuees’ (Administration of Property) Act, 1947 (E.P. XIV of 1947); the East Punjab Evacuees’ (Administration of Property) (Second Amendment) Ordinance, 1948 (E.P. Ordinance XVI of 1948); the East Punjab Evacuees’ (Administration of Property) Second Amendment Act, 1948 (E.P. XLIX of 1948); and the East Punjab Evacuee Property (Administration) Ordinance, 1949 (E.P. Ordinance IX of 1949). These Provincial measures were later repealed and replaced by Central legislation, specifically the Administration of Evacuee Property Ordinance, 1949 (Ordinance XXVII of 1949) as amended by the Administration of Evacuee Property (Amendment) Ordinance, 1950 (Ordinance IV of 1950). The Court further indicated that those Ordinances were subsequently repealed and superseded by the Administration of Evacuee Property Act, 1950 (XXXI of 1950), whose principal provisions, with some modifications, remain in force and are relevant to the matters before the Court.

The Court explained that the provincial statutes that had earlier governed evacuee property were eventually replaced by central legislation. First, the Administration of Evacuee Property Ordinance of 1949, identified as Ordinance XXVII of 1949, was enacted, and it was subsequently amended by the Administration of Evacuee Property (Amendment) Ordinance of 1950, known as Ordinance IV of 1950. Both of these instruments were later repealed and superseded by the Administration of Evacuee Property Act of 1950, cited as Act XXXI of 1950. The Court noted that the principal provisions of the central Act, with certain modifications, remained in force at the time of the judgment and were therefore relevant to the issues before it.

According to sections 5 and 6 of the Act, each State was required to establish an administrative machinery for the management of evacuee property. This machinery comprised a Custodian, together with Additional, Deputy and Assistant Custodians, all appointed by the respective State Government. The Custodians operated under the overall superintendence and control of a Custodian‑General appointed by the Central Government, who in turn was assisted by Deputy and Assistant Custodian‑Generals also appointed by the Central Government. Section 2(d) and 2(f) of the Act defined the terms “evacuee” and “evacuee property.” Under section 7, the Custodian was empowered to determine and formally notify which property qualified as evacuee property. Once property was declared evacuee property, section 8 vested that property in the Custodian.

The Court described the powers conferred on the Custodian under section 9, which authorized the Custodian to take possession of all property vested in him. Section 10 listed the general powers and duties of the Custodian, allowing him to take any measures he deemed necessary or expedient for securing, administering, preserving and managing the evacuee property, and for fulfilling any duties imposed by the Act. The provision also permitted the Custodian to perform any acts and incur any expenses that were necessary or incidental to those purposes.

One specific duty imposed on the Custodian, the Court observed, was the maintenance of accounts as required by section 15. Sub‑section 1 of that section mandated that the Custodian keep a separate account for each evacuee’s property that he had taken into possession, and record all receipts and expenditures relating to that property. Section 16 provided that a displaced person could apply for the restoration of his property, and that the Custodian was required to furnish, on demand, a statement containing an abstract of the income received and the expenditure incurred in respect of the property.

Furthermore, the Court pointed out that the broad management powers under section 10 enabled the Custodian to grant leases and make allotments of evacuee property to displaced land‑holders. However, those powers were subject to the authority granted by section 12(1), which allowed the Custodian to vary or cancel any lease or allotment of evacuee property. The Court concluded that while many other substantive and incidental provisions existed in the Act, it was unnecessary to refer to them for the purposes of the present petition. The essential features of the administration of evacuee property law, as derived from the provisions discussed, were that all evacuee property vested in the Custodian, who bore the responsibility of managing the property, maintaining detailed accounts, and exercising extensive administrative powers, including the ability to grant, vary or cancel leases and allotments, and to restore property to the rightful evacuee upon application.

In this case the Court explained the statutory scheme concerning the Custodian of evacuee property. The statute vests all evacuee property in the Custodian. The Custodian is charged with managing the property, keeping proper accounts of the management, and he possesses extensive administrative powers. As part of those administrative functions the Custodian may grant leases and make allotments of the property. He also has the authority to vary or cancel any such lease or allotment. The statute further allows an evacuee to apply for the return of his property, and if the application is successful the property must be restored to him. Upon such restoration the Custodian is required, on the evacuee’s request, to provide a statement that contains an abstract of the income received and the expenditure incurred with respect to that property. Besides these large administrative duties the Custodian also performs quasi‑judicial functions. These include deciding whether a person qualifies as an evacuee, determining whether a particular property is evacuee property, adjudicating whether a transfer of evacuee property should be confirmed, and ruling on whether a lease or allotment should be varied or cancelled, as well as ordering restoration of the property. The actions taken by the Custodian or his subordinate officers in the exercise of either administrative or quasi‑judicial powers are reviewable by higher authorities under sections 24 to 27 of the Act. Section 28 stipulates that orders made under those sections are final and cannot be challenged in any original suit, application or execution proceeding. Moreover section 46 excludes the civil and revenue courts from exercising jurisdiction over any matter that the Custodian‑General or the Custodian is empowered to determine under the Act. The Court noted the historical evolution of these provisions. The original East Punjab Ordinance IV of 1947 did not contain a provision vesting evacuee property in the Custodian; this vesting was introduced by East Punjab Act XIV of 1947, which declared that the property would remain vested until the Provincial Government, by notification, directed otherwise. An amendment in 1948 replaced that clause with one stating that the property would remain vested until it was returned to the owner in accordance with section 12. The later Central legislation omitted the duration clause and simply provided that the property “shall continue to so vest.” The earliest provision for return of property to the evacuee appears in East Punjab Ordinance IV of 1947. Section 12 of that ordinance gave the owner of any property in the Custodian’s possession the right to restoration upon application to the Custodian and upon payment of any excess of expenditure over receipts arising from the Custodian’s management of the property.

The Court noted that the earlier provision required that any expenditure exceeding the receipts from the management of such property by the Custodian be borne by the applicant. In the East Punjab Act XIV of 1947, which replaced the earlier Ordinance, the right of restoration to the evacuee was qualified by section 12(1). That subsection provided that, upon being satisfied that evacuees had returned or were returning to the Province, the Provincial Government could, by a notification in the Official Gazette, authorise the return of their immovable property to the owners in accordance with the section. Section 12(2) further stipulated that any person claiming entitlement to such property could make a written application to the Custodian. The Custodian, after publishing a public notice and conducting an enquiry, was required to issue a formal order identifying the person to whom possession of the property should be delivered. The Court then turned to the Central Ordinance XXVII of 1949 and the Central Act XXXI of 1950, which contained a provision for restoration in section 16. Under that provision, the Custodian could, on an application by the evacuee or his heir, restore the property subject to such terms and conditions as the Custodian deemed appropriate, provided that the applicant produced a certificate from the Central Government confirming that the property could be restored if the applicant was otherwise entitled to it. From this comparison, the Court observed that the earliest East Punjab Ordinance of 1947 recognised an almost unrestricted right for the evacuee to obtain restoration of property. However, the East Punjab Act XIV of 1947 introduced a qualification by requiring that the Custodian could return property only after the Provincial Government issued a notification declaring that it was satisfied with the return of evacuees and that it authorised the return. The later Central legislation of 1949 and 1950 relaxed this requirement by mandating only a preliminary certificate from the Central Government from the individual applicant. The Court further pointed out that neither the East Punjab Ordinance IV of 1947 nor the East Punjab Act XIV of 1947, which superseded it, referred to or defined the terms “lease” or “allotment”. These terms were first defined by the amending East Punjab Ordinance XVI of 1948, which clarified that an allotment was distinct from a lease. Historically, it appeared that “allotment” was intended for the grant of property to displaced landholders, while “lease” denoted a temporary grant to other displaced persons. Nonetheless, the temporary nature of the right conveyed by an “allotment” was expressly specified by defining “allotment” as the grant by the Custodian of a temporary right of use and occupation of evacuee property to any person, other than by way of lease. This temporary character was reiterated in East Punjab Ordinance IX of 1949 and in Central Ordinance XXVII of 1949. It was only in Central Act XXXI of 1950 that the definition of “allotment” was altered, as explained in the subsequent provision.

In the 1950 legislation the word “temporary” was removed from the definition of “allotment.” Thereafter “allotment” was defined as a grant made by a person who was duly authorised of a right to use or occupy an immovable evacuee property to any other person, and the definition expressly excluded any grant that was made by way of a lease. By removing the adjective “temporary,” the 1950 Act for the first time allowed that an allotment could be something other than a temporary grant. Both this Act and the earlier Central ordinance failed to give any definition of the term “lease.” The omission of a lease definition appears to have been prompted by a Punjab Government notification dated 8 July 1949, which introduced what later became known as a quasi‑permanent allotment. The Court indicated that the provisions of that notification and their legal effect would be examined later. After noting this background, the Court proceeded to trace the statutory provisions that dealt with the power to cancel allotments, relying on the text of the principal Ordinances and Acts themselves and setting aside, for the moment, the detailed rules that had been framed under those statutes.

The earliest statutory provision dealing with cancellation of allotments was section 9‑A of the East Punjab Act XIV of 1947, which had been inserted by the East Punjab Ordinance XVI of 1948 and later replaced by the East Punjab Act XLIX of 1948. Sub‑section (2) of that section provided that, notwithstanding any other law then in force, the Custodian could cancel any allotment or amend the terms of any agreement on which an evacuee property was held or occupied by any person, whether that agreement had been entered into before or after the commencement of the Ordinance XVI of 1948. Sub‑sections (3) and (4) further authorised the Custodian, where a person was in unauthorised possession of evacuee property, to treat that person either as a tenant or as a trespasser; a person classified as a trespasser, upon cancellation of the allotment, was required to surrender possession to the Custodian on demand. The same substantive cancellation provisions were reproduced in the East Punjab Ordinance IX of 1949, the Central Ordinance XXVII of 1949 and the Central Act XXXI of 1950. All of these enactments also contained a clause granting rule‑making power from the inception of the East Punjab Act XIV of 1947, together with a provision that the Act and any rules made under it would have effect notwithstanding any inconsistent provision in any other legislation, except the Act itself. References to the relevant rule‑making sections are found in sections 22 and 18‑B of the East Punjab Act XIV of 1947 and sections 55, 56 and 4 of the Central Act XXI of 1950. By virtue of this rule‑making authority, both the Provincial Government and the Central Government subsequently framed rules from time to time, which the Court intended to discuss later.

From the foregoing history of legislative modifications, it is evident that the statutes governing evacuee property were repeatedly amended to meet the pressing needs and difficulties that arose in both internal administration and in the inter‑Dominion conferences held between Pakistan and India. During the two‑year interval separating the first provincial enactment of 1947 from the initial central legislation of 1949, six such inter‑Dominion conferences were convened—in January 1948, April 1948, July 1948, December 1948, April 1949 and June 1949. The general position that emerges from this sequence is that ownership of all evacuee property vested in the Custodian, while the original evacuee retained a residual ownership interest subject to specific limitations. The law therefore recognised that the evacuee could, upon return, claim restitution of his property together with an accounting of the Custodian’s management of that property. Initially, this right of return was contemplated without any restriction; however, later it became conditioned upon the issuance of a notification or a certificate from the Central Government. Until such restitution is effected, the Custodian was authorized to manage the property by granting allotments to displaced persons. An allotment, by definition, confers a right of use and occupation. At first this right was intended to be temporary, but a subsequent definition broadened the scope so that it was no longer limited to temporary occupancy. Nevertheless, every allotment remained subject to the Custodian’s power to cancel the grant and to reclaim possession. These rules continued to evolve from time to time, reflecting the changing administrative and political circumstances.

In light of these developments, it is prima facie difficult to regard an allottee of any evacuee property—under the principal provisions of the Evacuee Property Administration Acts, which are not altered by specific rules for particular classes of property or by individual contracts—as a holder of a proprietary right or a recognised interest that, by itself, constitutes “property.” Rather, the allottee’s right resembles a licence that may be withdrawn by the grantor at any time. It is noted that the East Punjab Government issued certain rules on 6 August 1948 under the East Punjab Act XIV of 1947, as amended in 1948, relating to the cancellation of allotments; however, the text of those rules was not available for examination. Regardless of the unavailability of those specific rules, it was argued that other legislative measures and statutory rules, exercised under the authorized statutory powers, altered the legal position concerning allotments of agricultural lands granted to displaced persons in East Punjab who had abandoned land in West Punjab. These subsequent measures therefore impacted the nature and security of the allotments granted under the earlier framework.

In order to examine the scheme for resettling displaced land‑holders who had lost property in West Punjab, the Court noted that the initial measure was the East Punjab Refugees (Registration of Land Claims) Ordinance, 1948, referred to as E. P. Ordinance VII of 1948. This Ordinance was subsequently replaced by the East Punjab Refugees (Registration of Land Claims) Act, 1948, cited as E. P. XII of 1948. The rules made under that Act introduced a standardized “Parcha” claim form, which required the claimant to provide extensive and precise information in order to determine the quantity of land that could be allotted to each displaced land‑holder. Following this framework, the East Punjab Displaced Persons (Land Resettlement) Ordinance, 1949 (E. P. Ordinance XIV of 1949) was enacted, and it too was later superseded by the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (E. P. XXXVI of 1949). The purpose of that Act was expressly to provide for the allotment of evacuee lands situated in East Punjab. The Act also delineated the rights of an allottee, including the right to possession of the allotted land subject to the payment of rent to the Custodian, the Custodian’s entitlement to a share of the rent from the current cultivator, and other ancillary rights that arose from possession.

Between the two Acts, the Punjab Government issued Notification No. 4892/S dated 8 July 1949, exercising its rule‑making authority under clauses (f) and (ff) of sub‑section (2) of section 22 of East Punjab Act XIV of 1947, as amended in 1948. That notification set out the conditions under which the Custodian could grant land allotments and effectively formed the charter of rights for allottees, giving rise to what became known as a “quasi‑permanent” allotment. The rules contained in the notification defined a “displaced person” as a land‑holder from West Punjab and stipulated that an allotment would be made in favour of such a displaced person for as long as the land remained vested in the Custodian. The term “allottee” was defined to include the heirs, legal representatives, and lessees of the original allottee. The East Punjab Displaced Persons (Land Resettlement) Act, 1949, enacted shortly after the notification, adopted the same definition, stating that an allottee means a displaced person to whom land is allotted by the Custodian under the conditions published in Notification No. 4892/S of 8 July 1949 and that the definition also embraces his heirs, legal representatives, and sub‑lessees. Consequently, both the rules of 8 July 1949 and the subsequent Act recognized that an allotment is granted to a displaced land‑holder for the period during which the land remains vested in the Custodian, while simultaneously extending the benefit of that allotment to the allottee’s heirs and legal successors.

The Court noted that although the land was vested in the Custodian, the benefit of that land was intended to run to the allottee’s heirs and legal representatives, establishing that the first implication of the 8 July 1949 notification was the heritability of the allottee’s rights, thereby creating a quasi‑permanent allotment. The Court observed that clauses 3, 4, 5, 7 and 8 of the same notification enumerate additional rights, which would be summarized later, but it was important to point out that the allotment itself remained subject to resumption under clause 6 of the notification. Before analysing the nature of the interest conferred by those various clauses on the quasi‑permanent allottee, the Court said it was necessary to examine the extent to which the 8 July 1949 notification had been affected by later legislation and the rules made thereunder.

The Court explained that the original East Punjab Evacuee Property Administration Acts had been repealed and replaced by Central Ordinance XXVII of 1949 and by Central Act XXXI of 1950. Both the Ordinance and the Act contained provisions—section 53 in the Ordinance and section 55 in the Act—allowing the Central Government to delegate its rule‑making power to the State Government. Exercising that delegated authority, the Provincial Government issued Notification No. 1554‑Cust dated 6 February 1950. In that notification the Provincial Government declared that the Statement of Conditions issued by the Custodian and published under Notifications No. 4891/S and No. 4892/S dated 8 July 1949 would be deemed to remain in force as rules framed under sub‑section (2) of section 53 of Central Ordinance XXVII of 1949, pursuant to the Central Government’s delegation under Notification No. 3094‑A/Cus/49 dated 2 December 1949, subject to certain modifications and amendments.

The Court quoted the relevant portion of the 6 February 1950 notification, which renamed the rules as the “Administration of Evacuee Property (Rural) Rules, 1949” and defined the term “ACT” to mean the Administration of Evacuee Property Ordinance 1949 (Ordinance No. XXVII of 1949). Accordingly, the Court held that the rules originally issued on 8 July 1949 continued to operate as rules made under the Central Ordinance. When the Central Ordinance was later repealed by Central Act XXXI of 1950, section 58 of that Act caused the same rules to continue in force as if they were made under the Central Act of 1950.

Finally, the Court observed that the Central Government promulgated the “Administration of Evacuee Property (Central) Rules, 1950” on 28 September 1950, and subsequently the Punjab Government, exercising the delegated power under section 55 of the Central Act, issued the “Instructions for Review and Revision of Land Allotment” on 29 August 1951. The Court concluded that these two later sets of rules would affect the 8 July 1949 rules only to the extent that any of their provisions were inconsistent with the earlier rules.

In reviewing the relationship between the later rules and the earlier rules dated 8 July 1949, the Court observed that a detailed comparison demonstrated that the subsequent rules did not address any of the subjects covered by the 1949 rules, nor by the rules of 1950, except for the provisions dealing with resumption, which essentially amount to the cancellation of allotments. Consequently, the rules of 8 July 1949 remained in force, to the extent that they were not altered by later legislation. The Court noted that if any part of those earlier rules had been varied by the later rules, such variation could now be identified. The provision for resumption as published by the Punjab Government in its notification of 8 July 1949 was set out as follows: “6. The Custodian, or as the case may be, the Rehabilitation Authority shall be competent to resume, amend, withdraw, or cancel the allotment on any of the following grounds: (a) It is contrary to the orders of the East Punjab Government, or the instructions of the Financial Commissioner, Rehabilitation, or the Custodian, Evacuee Property, East Punjab; (b) The allottee has infringed or appears to be, preparing to infringe any of the terms of allotment; (c) The allotment was obtained by false declaration or insufficient information or is contrary to the purpose of rehabilitating the displaced persons; (d) The area allotted or occupied by the allottee is more than he was authorised to take on allotment or occupy under the instructions issued by the East Punjab Government or the Financial Commissioner, Rehabilitation, or the Custodian, Evacuee Property, East Punjab; (e) Where the claims of other parties with respect to the land have been established or accepted by the Custodian or the Rehabilitation Authority; (f) When the allottee has been convicted of an offence under the Act; or (g) If the allottee fails to take possession of the land within the time as may be allowed by the Custodian or the Rehabilitation Authority, or after having taken possession, fails to cultivate the land or any part thereof.”

The Court then turned to the next series of rules that were made under Central Act XXXI of 1950. Rule 14 of the Central Rules 1950 was examined, and although the first sub‑section was omitted in the record, the relevant parts were quoted as follows: “(2) In case of an allotment granted by the Custodian himself, the Custodian may evict a person on any ground justifying eviction of a tenant under any law relating to the Control of Rents for the time being in force in the State concerned, or for any violation of the conditions of the allotment. (3) The Custodian may evict a person who has secured an allotment by misrepresentation or fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements. (4) …” The Court observed that these provisions did not confer a power to cancel or modify an allotment per se; rather, they served as supplementary measures permitting the eviction of an allottee under the circumstances described. Finally, the Court noted that the subsequent set of rules dated 29 August 1951, enacted by the Punjab Government in exercise of the delegated authority granted by the Central Act, were also relevant to the matter, and they would be examined in the following part of the judgment.

The Court observed that the rules dated 29 August 1951 were issued by the Punjab Government pursuant to powers delegated to it by the Central Government under section 55(1) of Central Act XXXI of 1950. Regarding allotments, clauses (a) to (g) of rule (1) of those 1951 rules were found to be virtually identical to the provisions concerning resumption contained in the notification of 8 July 1949. The 1951 rules added two further circumstances, labelled (h) and (i). Clause (h) permitted the Custodian to cancel, terminate, vary or evict an allottee where it was necessary or expedient to do so for the implementation of state‑government resettlement schemes, for equitable distribution among displaced persons, or for other reasons deemed proper. Clause (i) allowed cancellation, variation or eviction where it was necessary or expedient for the preservation, proper administration, management of the property or for the interests of proper rehabilitation of displaced persons. Sub‑rule (2) of the 1951 rules provided that any act or action taken under the earlier rules would be deemed to have been taken under the new rules as if they were in force at that time. The Court noted that the Central Rules of 1950, particularly rule 14, did not alter the power of resumption or cancellation of quasi‑permanent allotments made under the 8 July 1949 notification; instead they merely supplied supplementary eviction powers for specific contingencies. When compared with clause (6) of the 8 July 1949 notification under the heading “Resumption”, the 1951 Punjab rules were substantially the same, differing only by the addition of clauses (h) and (i) and by a provision giving the new rules retrospective effect. Subsequently, rule 14 of the Central Rules was amended by notification S.R.O. 1722 dated 29 October 1951, which inserted sub‑rule (6) stating that if any State Government, exercising delegated powers, made rules under clause (1) of sub‑section (2) of section 56 of the Act that conflicted with the Central rule, the State rules would prevail. This provision, the Court held, clearly indicated that in cases of inconsistency regarding cancellation powers, the State rules would override the Central rules. The Court further explained that all such rules, whether derived from the Provincial or Central Acts, must be interpreted in accordance with the ordinary rules of construction so as to harmonise with the cancellation powers expressly provided in the Act itself. Consequently, the Court concluded that the appropriate construction followed from these observations.

It was held that rule (6) dealing with the resumption of allotments under the notification dated 8 July 1949, as it stood from its commencement until 6 February 1950, must be read together with section 9‑A of the East Punjab Act XIV of 1947 as amended in 1948, to the extent that both provisions relate to allotments. In the same manner, the Central Rules of 1950 and the State Rules delegated in 1950 and 1951 must be read so as to be consistent with section 12 of the Central Act XXXI of 1950, again to the extent that those rules concern allotments made under the 8 July 1949 notification. When the powers of cancellation contained in the Act and in the Rules are read together, it becomes clear that the authority to cancel such allotments is expansive and varied, and that it depends largely on administrative orders and considerations.

Rule 14 of the Central Rules of 1950 was altered in July 1952 and again in February 1953. Those later alterations occurred after the date on which the allotment in the present matter was cancelled and therefore they did not have any direct effect on the present case. The Court therefore paused to summarise the legal position as it existed up to 22 July 1952, which was the date when further relevant rules were framed, with regard to the rights that arose under the quasi‑permanent allotment scheme introduced by the 8 July 1949 notification. The following points set out those rights, the references given in each case being to the appropriate provisions of that notification.

First, the allottee possessed the right to use and occupy the land until such time as the land remained vested in the Custodian, as provided by clause 3(1). Second, the benefit of that right was capable of passing to the allottee’s heirs and successors, according to the definition of “allottee”. Third, the allottee’s enjoyment of the land was conditioned upon the payment of land revenue and any cesses that were applicable at the time; the Custodian could also fix an additional rent, and the allottee was obliged to pay that rent when it was demanded, as stated in clause 3(3). Fourth, the allottee was entitled to peaceful and undisturbed enjoyment of the property during the period of his occupation, as reflected in clause 8.

Fifth, the allottee could make improvements to the land, but only with the assent of the Custodian, and he was entitled to compensation for such improvements in accordance with the Punjab Tenancy Act, as set out in clause 7. Sixth, the allottee was permitted to exchange the whole or any part of the land for other evacuee land, provided that the Custodian gave his consent, as indicated in clause 5. Seventh, the allottee could lease the land for a term not exceeding three years without needing the Custodian’s permission, and could lease for a longer term only with the Custodian’s consent; however, the allottee could not transfer his rights by sale, gift, will, mortgage or any other private contract, as prescribed in clause 4(c). Eighth, the allottee’s rights in the allotment were subject to the relatively wide powers of cancellation that existed under the Act and the Rules as they stood before 22 July 1952, and these powers could be exercised on a variety of administrative considerations and actions, including those enumerated in clause 6 and the subsequent rules of 1951, such as the situation where the allotment was found to be contrary to the orders of the Punjab Government.

The Court recorded that the power to cancel or vary an allotment could be exercised only under specific circumstances: first, when the cancellation was directed by the Financial Commissioner, Relief and Rehabilitation, or by the Custodian of Evacuee Property, Punjab; second, when the claims of other parties concerning the land had been established or accepted by the Custodian or by the Rehabilitation Authority; third, when it was deemed necessary or expedient to cancel or vary the terms of an allotment in order to implement resettlement schemes or rules framed by the State Government, or to effect a distribution among displaced persons that the Custodian considered equitable and proper; and fourth, when it was necessary or expedient to cancel or vary the terms of an allotment for the preservation, proper administration, or management of the property, or in the interests of proper rehabilitation of displaced persons. The Court further noted that the cancellation powers also extended to situations where an allotment was obtained on a false declaration or insufficient information, and where the allottee had been convicted under the provisions of the Evacuee Property Administration Acts, as reflected in Clause 6 (c) and (f). Taking these provisions together, the Court observed that a displaced land‑holder who received evacuee agricultural land under the notification of 8 July 1949 occupied a clearly superior legal position compared with an allottee of other categories of property governed by the Central Act XXXI of 1950 and the Central Rules of 1950, who was essentially a licensee. Nevertheless, the Court emphasized that even this superior status fell short of granting full property rights, whether in a broad or narrow sense.

The Court acknowledged that counsel for the petitioner strongly argued that the view of a limited property right altered when later legislation and subsequently amended rules were considered, contending that such legislation implemented the original Press Communiqué dated 7 February 1948, which purported to assure permanent property rights. While the later legislation and the Press Communiqué were brought to the Court’s attention, the Court decided to note the contention and examine its possible effect without deciding whether those materials were decisive for the present case. The Court identified the earliest modification of the pre‑existing situation as arising from two notifications: S.R.O. 1290 dated 22 July 1952 and S.R.O. 351 dated 13 February 1953. These notifications resulted in the amendment of sub‑rule (6) of rule 14 of the Central Rules of 1950, substituting a new sub‑rule that began, “Notwithstanding anything contained in …”. The Court therefore recognized the amendment as a significant development in the framework governing cancellation and variation powers.

The Court explained that a specific provision of the rule stated that the Custodian of Evacuee Property in each of the States of Punjab and Patiala and East Punjab States Union was prohibited from exercising the power to cancel any allotment of rural evacuee property that was granted on a quasi‑permanent basis, and also prohibited from varying the terms of any such allotment, unless one of several expressly enumerated circumstances applied. The first circumstance was where an allotment had been made despite the fact that the allottee did not own any agricultural land in Pakistan at the time of the allotment. The second circumstance covered situations in which the allottee had obtained an amount of land that exceeded the area to which he was entitled under the land‑allotment scheme that was in force at the time of the original allotment. The third circumstance dealt with cases where the allotment was to be cancelled or varied, and it set out four sub‑categories. Sub‑category (a) allowed cancellation or variation when an order had been issued by a competent authority pursuant to section 8 of the East Punjab Refugees (Registration of Land Claims) Act, 1948. Sub‑category (b) permitted cancellation or variation on the ground that the allottee had failed to take possession of the allotted evacuee property within six months of the date of the allotment. Sub‑category (c) authorized cancellation or variation in consequence of a voluntary surrender of the allotted property, or a voluntary exchange with other available rural evacuee property, or a mutual exchange with such other property. Sub‑category (d) allowed cancellation or variation in accordance with any general or special order issued by the Central Government.

The provision further specified that, where an allotment was cancelled or varied under the second circumstance—namely, where the allottee had obtained land in excess of his entitlement—the allottee would be entitled to retain that portion of the land to which he would have been entitled under the scheme of quasi‑permanent allotment of land. In addition, the rule contained a further safeguard: nothing in that sub‑rule would apply to any application for revision made under section 26 or section 27 of the Act, provided that such application was filed within the prescribed time and was directed against an order passed by a lower authority on or before 22 July 1952.

The Court observed that this amendment unmistakably altered the power of resumption or cancellation that had previously been vested in the Custodian authorities with respect to quasi‑permanent allottees, confining that power to the narrow limits expressly set out in the amendment. However, the Court noted that a difficulty arose in determining whether the restrictions imposed by the new sub‑rule could be reconciled with the broader power to vary or cancel allotments that was vested in the Custodian under section 12 of Central Act XXXI of 1950. The Court assumed, for the sake of analysis, that if reconciliation was possible, the latest amendment of rule 14 of the Central Rules 1950—by inserting the revised sub‑rule (6)—would have to be read together with the main statutory provision in a manner that would not nullify the beneficial provisions that had been enacted in mandatory language.

The Court pointed out that the language of the new sub‑rule (6) of rule 14 operated only as a restraint on the exercise of the Custodian’s power of cancellation and did not eliminate that power altogether. Consequently, the Court concluded that there might be no inconsistency between the two sources of authority, suggesting that the choice of wording was intentional. The Court also remarked that, in the same context, there had been further amendments in 1953, 1954 and 1956 to section 16 of Central Act XXXI of 1950, which related to the return of evacuee property to the evacuee and could have implications for the continued existence of the power to cancel allotments.

In this case the Court examined the provisions of Central Act XXXI of 1950, which dealt with the return of evacuee property to the evacuee. That statute continued to recognise the evacuee’s right to have the property restored to him and it also introduced certain modifications in the procedural details governing such return. The Court observed that as long as the right of return remained in force, the power to cancel an allotment of that property could also be presumed to continue. The Court then turned to the next significant piece of legislation, namely the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act XLIV of 1954). Section 12 of that Act contains a three‑part provision. Sub‑section (1) states that if the Central Government is of the view that it is necessary to acquire any evacuee property for a public purpose connected with the relief and rehabilitation of displaced persons, including the payment of compensation to them, the Government may at any time acquire such property by publishing a notification in the Official Gazette declaring its intention to acquire the property under this section. Sub‑section (2) provides that, once such a notification is published, the right, title and interest of the evacuee in the property named in the notification shall, from the beginning of the date of publication, be extinguished and the property shall vest absolutely in the Central Government free of all encumbrances. Sub‑section (3) continues the provision, although the text is omitted in the judgment extract. The Court noted that, by virtue of Central Government Notification No. S.R.O. 697 dated 24 March 1955, and relying on sub‑section (1) of Section 12, the Government acquired all evacuee property that had been allotted under the Punjab Government notification of 8 July 1949, except for certain categories of property for which legal proceedings were still pending. The Court further observed that the specific properties which are the subject of the present application do not appear to have been acquired under that 1955 notification, presumably because the dispute concerning them remains unresolved. Section 3 of the 1954 Act provides that compensation shall be paid to an evacuee for any property acquired under Section 12, in accordance with principles and in a manner to be agreed between the Governments of India and Pakistan. Section 14 creates a compensation pool intended to finance compensation and rehabilitation grants to displaced persons, and the property acquired under Section 12 is included in that pool. The Court then highlighted Section 10, which is pivotal. It stipulates that where any immovable property was allotted to a displaced person by the Custodian pursuant to conditions published in Punjab Government Notification No. 4892‑8 dated 8 July 1949, and that property is subsequently acquired under the Act and becomes part of the compensation pool, the displaced person shall, for as long as the property remains vested in the Central Government, continue to possess the property on the same terms that applied immediately before the acquisition. The provision further allows the Central Government, for the purpose of making compensation payments, to transfer the property to the displaced person on terms and conditions prescribed by the Government.

In the judgment, the Court explained that Section 40 of the Act granted rule‑making authority to the Central Government. Sub‑section 1(a) of that provision empowered the Government to prescribe rules that would determine the form, manner and time within which an application for compensation could be made, and also to specify the particulars that such an application must contain. The Court observed that the term “compensation” used in Section 10, when applied to a displaced person, referred solely to compensation for the loss of his property in Pakistan. The Court clarified that this reference did not create a recognised right to compensation for any deprivation of interest that might arise from the cancellation of an allotted property.

The Court noted that the Central Government had issued the Displaced Persons Compensation and Rehabilitation Rules, 1955, by a notification dated 21 May 1955. Among those rules, Rules 71 and 73 dealt with “verified claims,” which the Court found to relate only to urban immovable property as defined in the Displaced Persons (Claims) Act, 1950 (XLIV of 1950). Rule 72(1) was identified as applicable to an allottee of agricultural land who did not possess a verified claim. Rule 72(2) provided that, if the Settlement Officer was satisfied that the allotment complied with the quasi‑permanent scheme, he could pass an order transferring the allotted land to the allottee in permanent ownership as compensation. The rule further required the Officer to issue a sanad, in the form prescribed in Appendix XVII or Appendix XVIII, thereby granting the allottee the relevant rights.

On examining the sanad reproduced on page 70 of Appendix VII of the 1955 Rules, the Court observed that only by virtue of this sanad could an allottee acquire permanent ownership of land that originally belonged to an evacuee and had been allotted under the quasi‑permanent allotment scheme. The Court described the sanad as the culmination of the hopes and expectations that had been expressed in the press communique dated 7 February 1948. The Court further held that, until such a sanad was issued, the allottee possessed no interest in the evacuee lands that could, by itself, qualify as “property” for the purpose of protected fundamental rights.

The Court recorded that counsel for the petitioners admitted that the petitioners in the present case had not yet obtained any sanad under the Rules for the lands that had originally been allotted to them and later cancelled by the orders of the Custodian and the Deputy Custodian‑General. Nevertheless, counsel argued that, considering the entire scheme and assuming that the cancellation orders were erroneous, the petitioners would ordinarily have obtained the sanad for the lands. On that basis, counsel submitted that the right to relief under Article 32 should be assessed according to this assumed position. The Court emphasized that great importance was attached to the fact that, under the scheme of the Central Act XLIV of 1954, a quasi‑permanent allottee could continue to possess the property under Section 10 on the same conditions as before, provided the property remained vested in the Central Government, and could apply for transfer of the property to himself under Rule 72(2) of the Rules, which normally resulted in the issuance of a sanad.

It was observed that under the scheme of Central Act XLIV of 1954, even when evacuee property is acquired pursuant to section 12 of that Act, a quasi‑permanent allottee retains the right to remain in possession of the property under section 10 on exactly the same terms that applied before, provided that the title to the land continues to vest in the Central Government. The Court also noted that the allottee may make an application for the transfer of the allotment to his own name under rule 72(2) of the rules made under the Act, the transfer being in satisfaction of compensation due to him for property left in West Punjab. Such applications for transfer are ordinarily approved and a sanad is normally issued to the applicant. In raising this point, counsel for the petitioners invoked a well‑known principle that when a statutory authority is given a discretionary power to act in certain situations for the benefit of a particular person or class of persons—such as the power conferred by section 10 of Central Act XLIV of 1954 and rule 72(2) of the corresponding rules—the authority must exercise that power in favour of the person, provided the required conditions exist; the power is therefore obligatory and not optional, a rule articulated in the case of Julius v. Lord Bishop of Oxford. The Court, however, held that this principle did not apply to the present dispute. While it is correct that, under section 10, a quasi‑permanent allottee enjoys the benefit of continued possession and may obtain a transfer upon application, those benefits are limited by the powers set out in section 19 of the same Act and rule 102 of the rules made thereunder. The Court pointed out that evacuee property acquired under section 12, which forms part of the compensation pool referred to in section 14, may be placed under the management of Managing Officers or Managing Corporations appointed by the Central Government under section 16. Section 19 expressly empowers a managing officer or managing corporation, notwithstanding any contract or other law then in force but subject to any rules made under the Act, to cancel any allotment or to alter its terms for any evacuee property held or occupied by a person, irrespective of whether the allotment was made before or after the commencement of the Act. Rule 102 of the rules similarly authorises a managing officer or managing corporation, with respect to property in the compensation pool entrusted to them, to cancel an allotment or vary its terms if the allottee has, among other things, sub‑let or otherwise disposed of possession of any part of the allotted property without the permission of a competent authority, has used the property for a purpose other than that for which it was allotted without such permission, has committed an act that is destructive or permanently injurious to the property, or for any other sufficient reason recorded in writing, provided that the allottee has been given a reasonable opportunity to be heard. These provisions are wide enough to encompass quasi‑permanent allotments, thereby showing that, despite the entitlement to remain in possession under section 10 and the possibility of applying for transfer under rule 72(2), the allotment itself may be cancelled under section 19 and rule 102. Consequently, the Court concluded that the quasi‑permanent allottee does not possess an indefeasible right to obtain a transfer as contemplated in the Bishop of Oxford principle.

The rule provides that an allottee may be cancelled if he uses the property for a purpose other than that for which it was allotted without permission of a competent authority. The rule also allows cancellation if the allottee commits any act that is destructive or permanently injurious to the property. A further ground for cancellation is any other sufficient reason that is recorded in writing. No cancellation action shall be taken unless the allottee has been given a reasonable opportunity to be heard. These provisions are expressed in terms wide enough to include quasi‑permanent allotments. Consequently, despite the privilege granted to a quasi‑permanent allottee to remain in possession under section 10, his allotment remains subject to cancellation under section 19 and rule 102. Also, any right he may have to obtain a transfer under section 10 and rule 72(2) does not override the power to cancel. Therefore the allottee does not possess a right to obtain a transfer that could be effected under the principle articulated in the Bishop of Oxford case. He therefore does not enjoy an indefeasible right to obtain a transfer of the very land of which he is the quasi‑permanent allottee when that land has been acquired under section 12 of the Act. Accordingly, whether the quasi‑permanent allottee acquired his rights before 22 July 1952 or after that date, his rights remain subject to the power of cancellation that may be exercised by the appropriate authorities. This limitation applies whether his interest originates from the notification of 8 July 1949 or from section 10 of Central Act XLIV of 1954, and follows the evolving requirements of evacuee‑property law and its administration. Thus the nature of the interest held by a displaced allottee in evacuee agricultural land is the same for the purpose of this case, and the substantive issue becomes whether such interest qualifies as “property” within the meaning of Articles 19, 31(1) and 31(2) of the Constitution. The detailed examination of the various incidents that constitute a quasi‑permanent allotment demonstrates that the totality of those incidents does not, in any sense, amount to qualified ownership of the allotted land. The interest is analogous to the Roman‑law concept of jus in re aliena, representing a limited interest in land. The core characteristics are that the ultimate ownership of the land continues to be vested in the evacuee, and the allotment remains liable to resumption or cancellation in response to administrative exigencies concerning evacuee property. In its essence, the recognized interest is provisional, intended to move toward stabilization and permanence. The provisional nature of the interest is reflected in the series of inter‑Dominion conferences that were convened at the governmental level to resolve the problems arising from evacuee property in the two countries. Stabilization of the interest could await the outcomes of those conferences. Accordingly, both with reference

Because the administration faced internal difficulties in settling displaced persons on evacuee lands and because the two governments had to reach external understandings, the rights granted to the settlers were required to be adjusted from time to time. These rights therefore possessed an element of instability, although they were gradually being given more stable characteristics.

The Court observed that an interest in land that remained owned by another person could not be described as “property” in the ordinary sense. The notion that a bundle of rights in agricultural land constitutes property arises only when a stable and settled situation exists concerning those rights. Historical jurisprudence confirms that the concept of individual property in agricultural land developed only under conditions of social stability. In the present case, the incidents that created the quasi‑permanent allotment were entirely statutory. One such incident was the power of the Custodian, in whose name the property was vested, to cancel the allotment; this power defined the nature of the interest. After careful consideration, the Court concluded that the interest of a quasi‑permanent allottee could not be regarded as “property” within the meaning of the word, and therefore could not attract the protection of fundamental rights.

The Court explained that, to fall within Article 19(1)(f), a property must be capable of acquisition and disposal. The interest of a quasi‑permanent allottee arose from a statutory grant to a specific class of persons and could not be acquired by an ordinary citizen through normal modes, nor could the allottee dispose of it by sale, mortgage, gift or testament. Consequently, this interest could not be placed within the ambit of Article 31(2). Article 31(2), as recently amended and read together with Article 31(2A), contemplates acquisition or requisitioning that results in a transfer of ownership or the right to possession. Although the amendment became operative on 27 April 1955, the orders of the Custodian and Deputy Custodian‑General were dated 6 February 1952 and 1 May 1954 respectively. Because the amendment uses the word “deemed,” the Court considered that the amendment was intended to apply retrospectively. Even assuming otherwise, the terms “taking possession” or “acquisition” in Article 31(2) before the amendment were wholly inappropriate for the bundle of rights that formed the quasi‑permanent tenure, and the protection of Article 31(2) could not be applied either before or after the amendment. Counsel for the petitioners argued that, even if Articles 19(1)(f) and 31(2) were inapplicable, other provisions might still offer protection.

Petitioners sought to invoke the protection of Article 31(1), which provides that no person shall be deprived of his property except by authority of law. They relied on the judgment of a Justice in State of West Bengal v Subodh Gopal Bose (1), wherein it was stated that the word “property” in Article 31(1) may be intended to have a broad meaning and that the deprivation of any individual right taken from a bundle of rights forming concrete property could be regarded as deprivation of “property,” thereby requiring authority of law. The Court noted, however, that this view was not shared by the other members of the Court in that decision. Moreover, the Court observed that for Article 31(1) to apply, a mere deprivation is insufficient; the deprivation must occur without authority of law. In the present case, the Court found that there was no deprivation of property without legal authority, even if the bundle of rights constituting the interest in land were to be considered property. The cancellation of the allotment represented the exercise of the right of resumption or cancellation, which the Court described as one incident of the property itself. That cancellation was carried out by the Custodian authorities under the very statute that had created those rights. Although the exercise of that authority might be questioned as erroneous, the Court held that it could not be set aside in view of sections 28 and 46 of Central Act XX‑XI of 1950, and it did not amount to an illegal usurpation of jurisdiction that would negate the authority of law. What had occurred, the Court explained, was the cancellation of the petitioners’ quasi‑permanent allotment in order to implement readjustments resulting from an order of a higher authority. Counsel for the petitioners argued vigorously that under the quasi‑permanent allotment scheme the allottee possessed a right to possession within the limits of the relevant notification and that such right to possession itself constituted “property.” The Court acknowledged that this may be true in a limited sense, but it did not resolve the question of whether such a right qualified as “property” for the purpose of attracting fundamental‑rights protection under the Constitution. The Court further held that if the totality of the bundle of rights enjoyed by a quasi‑permanent allottee in evacuee land does not amount to property entitled to constitutional protection, then mere possession of the land by virtue of that interest does not enjoy a superior status. Counsel also referred to several Punjab statutes and notifications that, in practice, treated a quasi‑permanent allottee as being on the same footing as a land owner for certain purposes. For example, Rule 5 of the Land Revenue Rules under the Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887) classed a quasi‑permanent allottee together with other land owners for eligibility to be appointed as zaildars.

In the statutes, a quasi‑permanent allottee is placed in the same category as other land owners for the purpose of being appointed as a zaildar. By the same token, the rules made under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act L of 1948) require a quasi‑permanent allottee to bear the cost of consolidation when the consolidation involves lands that he occupies. The Court observed, however, that these provisions and similar statutory rules do not address the substantive question that is before it. After the arguments were concluded, the Court was informed of a recent judgment of the Punjab High Court reported in Suraj Parkash Kapur v. The State of Punjab(1). The Court gave that decision careful consideration. While it acknowledged that the High Court’s decision might be correct on its own merits, the Court expressly refrained from opining on that point. More importantly, the Court could not accept the view expressed in the Punjab High Court that a quasi‑permanent allottee’s interest in the allotted land qualifies as “property” in the sense that it would attract the protection of fundamental rights guaranteed by the Constitution. Consequently, the Court found that no fundamental right of the petitioners had been infringed, as reflected in the citation (1957) LIX P.L.R. 103. Accordingly, the petition was dismissed, the Court ordering dismissal without costs. In holding that a quasi‑permanent allotment does not confer a constitutional right to property, the Court clarified that this holding does not diminish or deny the statutory rights that the allottee enjoys. Those statutory rights are essential for the effective rehabilitation and settlement of displaced land‑holders. Until the land‑holders receive formal sanads to their lands, those rights must be zealously protected by the appropriate administrative authorities in accordance with the rules and instructions that bind them, and also by the courts through proper proceedings whenever there is usurpation of jurisdiction or misuse of statutory powers. The petition was dismissed.