Appeal No 937 of 1965
Appeal from the judgment and order dated September 13
1963 of the Punjab High Court in Civil Writ No 841 of 1962 and Civil Appeal No 938 of 1965
Appeal from the order dated September 13 1963 of the Punjab High Court in Civil Writ No 526 of 1963 and Civil Appeal No 1195 of 1967
Appeal from the order dated August 6 1964 of the Punjab High Court in Letters Patent Appeal No 136 of 1964
D R Prem R N Sachthey and section P Nayar for the appellants in CA No 937 of 1965
R N Sachthey and section P Nayar for the appellants in CA s Nos 938 of 1965 and 1195 of 1967
section V Gupte Bhawani Lal and B P Jha for respondent Nos 1 to 3 in CA No 937 of 1965
R V Pillai for the respondent in CA No 938 of 1965
H L Mittal and Naunit Lal for the respondents in CA No 1195 of 1967
657 Civil Appeal No 937 of 1965 The Judgment of the Court was delivered by Ramaswami J
This appeal is brought by certificate from the judgment of the Punjab High Court dated September 13 1963 in Civil Writ No 841 of 1962
Nanak Chand owned agricultural lands in Bahawalpur Statenow forming part of West Pakistan
He also owned some property at Kot Kapura Tehsil Faridkot District Bhatinda now located in India
Nanak Chand had in normal course of business come to Bhatinda where he died in June 1947 leaving behind three sons Om Parkash Sat Narain and Ram Parshotam who are the respondents in this appeal
As a result of the partition of India the land originally owned by Nanak Chand and after his
death by his sons in Bahawalpur State had to be abandoned
After the partition of India the three respondents migrated to India and filed separate claims in accordance with law and obtained allotment of certain area in village Kot Kapura district Bhatinda in lieu of the land abandoned by them in Pakistan
The Revenue Authorities allotted an area measuring 2068 12 standard acres in village Kot Kapura District Bhatinda
After the allotment was made one Rur Singh filed a complaint before the Managing Officer that these respondents had received double allotments in villager Kot Kapura
The complaint was examined by Shri Shankar Das Katyal Managing Officer who held that Shri Rur Singh failed to substantiate the allegation of double allotment
But the Managing Officer came to the conclusion that Nanak Chand although he had died long before the partition of the country must be treated as a displaced land holder for the purpose of allotment of land
The reason given was that his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan
In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by the Managing Officer by his order dated September 18 1961
The three respondents pre ferred an appeal before the Assistant Settlement Commissioner and a revision petition before the Chief Settlement Commissioner Punjab but the appeal and the revision petition were both dismissed
In dismissing the revision petition the Chief Settlement Commissioner relied upon paragraph 17 of Tarlok Singh s Land Resettlement Manual 1952 Edition page 180 which was to the following effect  Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died the allotment is made in the name of the deceased
In the fard taqsim therefore the entry will be in the name of the deceased land holder
Possession is ordinarily given to the heirs but there must be regular 658 mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs
 It was held by the Chief Settlement Commissioner that this paragraph related to all persons who continued to be shown as owners in the revenue records irrespective of the fact whether they had died before or after migration
In other words the Chief Settlement Commissioner took the view that the land could only be allotted in the name of Nanak Chand even assuming that he had died in June 1947
Against the order of the Chief Settlement Commissioner the respondents filed a Writ Petition Civil Writ No 841 of 1961 before the Punjab High Court
The Writ Petition was allowed by the High Court by its order dated September 13 1963 and the orders of the Chief Settlement Commissioner dated June 8 1962 of the Assistant Settlement Commissioner dated December 26 1961 and of the Managing Officer dated September 18 1961 were all quashed by the grant of a writ in the nature of certiorari
It is necessary at this stage to set out the provisions of the relevant statutes
Section 2b of the East Punjab Evacuees  Administration of Property Act 1947 East Punjab Act No XIV of 1947 defines an evacuee as meaning a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Province of East Punjab who on account of civil disturbances or the fear of such disturbances or the partition of the country  i leaves or has since the first day of March 1947 left the said territories for a place outside India or ii cannot personally occupy or supervise hi property or business
 Section 4 of that Act provided that All evacuee property situated within the Province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until the Provincial Government by notification otherwise directs In pursuance of the powers conferred by the rules made by the State Government under cls
f and ff of section 222 of the East Punjab Evacuees Administration of Property Act 1947 the Custodian issued a notification No 4892S on July 8 1949 regarding the conditions on which he was prepared to grant allotment of land vested in him under the provisions of the said Act to displaced persons
Para 2e of this notification states  Displaced person means a land holder in the territories now comprised in the province of West Punjab or a person of Punjabi extraction who holds land in the Provinces of North Western Frontier Province Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan and who has since the 1st day of March  1947 abandoned or been made to abandon his land in the 659 said territories on account of civil disturbances or the fear of such disturbances or the partition of the country
 Section 2d of the East Punjab Refugees Registration of Land Claims Act
1948 East Punjab Act No XII of 1948 states 2
Interpretation
In this Act unless there is anything repugnant in the subject or context d refugee  means a landholder in the territories now comprised in the Province of West Punjab or who or whose ancestor migrated as a colonist from the Punjab since 1901 to the Provinces of North West Frontier Province Sind or Baluchistan or to any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan and who has since the 1 st day of March 1947 abandoned or been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances or the partition of the country Section 2c defines a landholder to mean an owner of land
or a tenant having a right of occupancy under the Punjab Tenancy Act 1887 XVI of 1887 or a tenant as defined in section 3 of the Colonization of Government Lands Act 1912 Punjab Act V of 1912 and such other holder or grantee of land as may be specified by the Provincial Government
Section 2c of the East Punjab Displaced Persons Land Resettlement Act1949 East Punjab Act No XXXVI of 1949 defines a displaced person as follows   displaced person  means a land holder in the territories now comprised in the Province of West Punjab or a person of Punjabi extraction who holds land in the Provinces of North West Frontier Province Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan and who has since the 1st day of March 1947 abandoned or been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances or the partition of the country
Section 2b of this Act defines an allottee as follows  allottee  means a displaced person to whom land is allotted by the Custodian under the conditions published with East Punjab Government notification No 4892S dated the 8th July 1949 and includes his heirs
legal representatives and sub lessees
660 The main question to be considered in this appeal is whether Nanak Chand was a displaced person  as defined in para 2 e of the notification dated July 8 1949 or a refugee as defined under section 2d of Act No XII of 1948 and whether he was entitled for allotment of land
It is manifest that the expression displaced person or the word refugee has been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country
Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration he could not come within the meaning of the expression displaced person or the word refugee under the relevant statutory enactments
It is manifest in the present case that Nanak Chand died in June 1947 long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country
It was however contended by Mr D R Prem on behalf of the appellants that even though Nanak Chand never became a refugee or a displaced land holder the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records
Reference was made in this connection to paragraph 17 of Tarlok Singh s Land Resettlement Manual which has already been quoted
It was contended by Mr Prem that the instructions contained in this paragraph would apply even though Nanak Chand had never become a refugee or a displaced land holder and the allotment has to be made in his name by the revenue authorities because his name still stands in the revenue records received from West Punjab
 We are unable to accept this argument as correct
It is not disputed that paragraph 17 of Tarlok Singh s Manual has no statutory authority but it merely embodies executive or administrative instructions for general guidance
If there is a conflict between the provisions contained in this paragraph and the statutory enactments already referred to it is manifest that the statutory provisions must take precedence and must prevail over the directions contained in para 17 of Tarlok Singh s Manual
In this context it is essential to emphasise that under our constitutional system the authority to make the law is vested in the Parliament and the State Legislatures and other law making bodies and whatever legislative power the executive administration possesses must be derived directly from the delegation of the legislature and exercised validly only within the limits prescribed
The notion of inherent or autonomous law making power in the executive administration is a notion that must be emphatically reject 661 ed
As observed by Jackson J in a recent American case Youngstown Sheet  Tube Co vs Sawyer1 With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by parliamentary deliberations
 In our constitutional system the central and most characteristic feature is the concept of the rule of law which means in the present context the authority of the law courts to test all administrative action by the standard of legality
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court
The rule of law rejects the con ception of the Dual State 2  in which governmental action is placed in a privileged position of immunity from control by law
Such a notion is foreign to our basic constitutional concept
In our opinion however it is possible to give a restricted interpretation to paragraph 17 of Tarlok Singh s Manual so as to make it consistent with the requirements of the statutory enactments
The intention of para 17 is that it is applicable only to such persons who are land holders at the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour
In other words the paragraph applies to a displaced land holder who dies after having become a displaced person within the meaning of the relevant statutory enactments referred to above
The paragraph does not apply to a case of a person who was not a displaced land holder at the time of his death
In the present case it is admitted that Nanak Chand never became a displaced land holder
On the other hand Nanak Chand died before he became a displaced land holder and therefore para 17 of Tarlok Singh s Manual has no application to the facts of the present case
For these reasons we hold that this appeal has no merit and it must be dismissed with costs
Civil Appeals Nos
938 of 1965  1195 of 1967 The question arising in these two appeals is identical with the question of law in Civil Appeal No 937 of 1965
For the reasons given in that judgment we hold that the decision of the High Court challenged in these appeals is correct and these appeals must be dismissed with costs
RKPS Appeals dismissed
1   655
2 This term is derived from Fraenkel The Dual State 1941


Summary:
N owned agricultural lands in Bahawalpur State now forming part of Pakistan and also owned some property in Punjab in India
He died in June 1947 while on a visit to India in the normal course of business leaving behind three sons the respondents in the appeal
On the partition of India the land in Pakistan originally owned by N and after his death by his sons had to be abandoned
After migrating to India the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab
Thereafter a complaint was filed before the Managing Officer that these respondents had received double allotments
The Managing Officer held this allegation was not substantiated but came to the conclusion that N although he had died before the partition must be treated as a displaced land holder for the purpose of allotment of land as his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan
In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by an order of the Managing Officer dated September 18 1961
Appeals made by the respondents to the Assistant Settlement Commissioner as well as revision petitions before the Chief Settlement Commissioner Punjab were dismissed
In dismissing the revision petitions the Chief Settlement Commissioner relied on para
17 of Tarlok Singh s Land Resettlement Manual 1952 edition Page 180 to the effect that Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died the allotment is made in the name of the deceased
He therefore upheld the view 4 at the land could only be allotted in the name of N
The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed
On appeal to this Court HELDDismissing the appeal The definition of a displaced person in para 2e of the Notification of July 8 1949 issued by the Custodian in accordance with provisions of the East Punjab Evacuees Administration of Property Act 1947 and the Rules made thereunder or of a Refugee in Section 2d of the East Punjab Refugees Registration of Land Claims Act 12 of 656 1948 show that these expressions have been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country
Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration he could not come within the meaning of the expression displaced person or the word refugee under the relevant statutory enactments
N died in June 1947 long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country
660 A D There was no force in the contention that even though N never became a refugee or a displaced land holder the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records
The rule in para 17 of Tarlok Singh s Manual consistently with the statutory enactments would be applicable only to such persons who were land holders it the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour
It does not apply to a person like N who was not a displaced land holder at the time of his death
661 D F