Appeal No 349 of 1959
Appeal from the judgment and order dated February 1 1957 of the Punjab High Court in Civil Writ Application No 385 of 1955
B K Khanna and D Gupta for the appellants
The respondent did not appear
May 4
The Judgment of the Court was delivered by SUBBA RAO J
This appeal by certificate is preferred 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 said
family 11 standard acres and 9 units of Grade A  land in Pati Kankra Shahabad Estate in Tehsil Thanesar in Karnal District
The said units were valued as equal to 123 standard kanals 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 section 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 I standard marla 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 714 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 pro pounded by the Consolidation Officer
Meanwhile the 44 of 1954 became law it came into force on October 9 1954 ie after the Estate had been notified for consolidation of holdings
On March 24 1955 the Central Government issued a notification under section 12 of the Displaced Persons Act 44 of 1954 acquiring all the evacuee 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 November 9 1955 ie before the said sanad was issued to them the respondents filed a petition in the High Court of Punjab under article 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 February 1 1957 allowed the said objection and issued a direction to the Consolidation Officer to proceed with 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 article 226 of the Constitution
And 2 the directions issued by the State Government were validly issued and therefore the Consolidation Officer was 715 within his rights to formulate the scheme on the basis of those instructions  Re
The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the court under article 226 of the Consti tution
The right that can be enforced under article 226 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 article 226 of the Constitution
They filed the petition on November 9 1955 ie 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 vs Custodian Evacuee Property Punjab 1
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 allottee was not property within the meaning of article 191f and article 312 of the Constitution
But the learned Judge made it clear that notwithstanding the said conclusion an allottee 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 settle ment 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 SCR 801 836 716 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 44 of 1954 and particularly section 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 8R 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 compen sation 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 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 146 of the rules made under the  will also be useful in this context
Tinder 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  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 allotment
After the notification issued by the Government under section 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 article 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 subsequent 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 91 718 into a full fledged property right
In the circumstances of the case the High Court was fully justified in taking note of that fact
From whatever perspective this case is looked at it is obvious that the respondents hate sufficient interest in the property to sustain their petition under article 226 of the Constitution
Re 2
The second point has absolutely no legs to stand upon
The East Punjab Holdings Consolidation 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 fragmentation of agricultural holdings in the State of Punjab
Under section 15 of the said Act the scheme prepared by the Consolidation Officer shall 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 quasi permanent basis by the Custodian and later confirmed by the Central Government the consolidation proceedings gave him only 50 kanal 8 and 7 marlas of A  Grade land and 34 kanals and 1 marla of B  Grade land
The area given under the consolidation pro ceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian and the Consolidation Officer has not paid any compensation 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 719 give any such instructions to the Consolidation Officer nor does any provision of the Act confer 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 learned 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
Appeal dismissed


Summary:
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 section 14 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 Govern ment by a notification under section 12 of the  acquired all evacuee properties and after the said confirmation issued a sand conferring proprietary rights of the said lands on the respondents
The respondents bad moved the High Court under article 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 Government under section 12 of the  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 article 226 of the Constitution
Sections 10 and 12 of the said Act read with r 146 of the Rules framed under the  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 vs Custodian Evacuee Property Punjab 1957 SCR 801 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 less value and no compensation had been paid to them the High Court was right in setting aside the order confirming the scheme 713