CWP No.7008 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7008 of 1991 Date of decision:18.07.2011 Gura Singh ..... Petitioner Versus State of Punjab and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Gurcharan Singh, Advocate for the petitioner. Mr.S.S.Sahu, AAG, Punjab for the respondents. ***** RAJIVE BHALLA, J. (ORAL) The petitioner prays for issuance of a writ in the nature of certiorari for quashing orders dated 28.11.1988 (Annexure P-6) and 17.01.1991 (Annexure P-7), passed by the Chief Settlement Commissioner, Kapurthala and the Financial Commissioner (Appeals), Punjab, Chandigarh, respectively. The petitioner, a displaced person from Pakistan, was admittedly entitled to allotment of land. Vide order dated 10.12.1984, the Tehsildar(Sales)-cum-Managing Officer (Urban Land), Kapurthala, allotted land measuring 19 kanals and 17 marlas to the petitioner. The petitioner accepted the offer and deposited Rs.5738/-. A sanad (certificate) confirming this allotment was issued by the Managing Officer on 20.12.1984. The Chief Settlement Commissioner, Sultanpur Lodhi, however, forwarded a suo motu reference against this allotment to the Chief Settlement Commissioner, Kapurthala, who vide order CWP No.7008 of 1991 -2- dated 28.11.1988 accepted the reference and set aside the allotment on the ground that Shamilat Deh land cannot be allotted to the petitioner. Aggrieved by this order, the petitioner filed an appeal before the Financial Commissioner (Appeals), Punjab. The appeal was dismissed on 17.01.1991. Counsel for the petitioner submits that the land in dispute, though Shamilat Deh was the share of Muslim proprietors, who migrated to Pakistan. The share of Muslim migrants, in Shamilat, was treated as evacuee property and allotted to a large number of displaced persons to satisfy their verified claims. However, in Gram Panchayat of village Jamalpur V/s Malwinder Singh and others PLJ 1985, page 463, the Hon'ble Supreme Court held that the share of Muslim migrants, in Shamilat Deh vests in Gram Panchayats. As large tracks of such land had already been allotted to satisfy verified claims, the State of Punjab amended Section 2(g) (5) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) and excluded such land from the definition of Shamilat Deh, if allotted before 9th July, 1985. It is further submitted that the vires of this amendment have been upheld by a Division Bench of this Court in Gram Panchayat of Village Kum-Kalan V/s State of Punjab and others, 2010(4) PLR 548. It is prayed that in view of what has been stated hereinabove, the writ petition should be allowed and the impugned orders should be set aside. Counsel for the State of Punjab, however, submits that as the CWP No.7008 of 1991 -3- land is admittedly Shamilat Deh, and vests in the Gram Panchayat as held by the Hon'ble Supreme Court in Gram Panchayat of village Jamalpur (supra), the allotment made to the petitioner was rightly cancelled. It is further submitted that the petitioner cannot be allowed to take benefit of the amendment made in the 1961 Act as the amendment operates prospectively. I have heard counsel for the parties and perused the impugned orders. Admittedly, the petitioner is a displaced person and was entitled to allotment of land. At no stage of the proceedings, whether before the Chief Settlement Commissioner, the Financial Commissioner or before this Court has any challenge been laid to the right of the petitioner for allotment of land, as a displaced person. The only dispute that requires adjudication is whether the Chief Settlement Commissioner and the Financial Commissioner were right in cancelling the allotment on the ground that as the land is Shamilat Deh, it cannot be transferred to the petitioner. The land in dispute is admittedly the share of Muslim migrants in Shamilat Deh left behind at the time of partition. The share of Muslim migrants, in Shamilat Deh was treated as evacuee property, first by the Union of India and then by the State of Punjab for satisfying verified claims of persons displaced from Pakistan. A dispute arose between allottees of such lands and Gram Panchayats, with both the parties claiming ownership. The dispute eventually came to be decided by the Hon'ble Supreme Court in Gram CWP No.7008 of 1991 -4- Panchayat of village Jamalpur (supra) by holding that the share of Muslim migrants in Shamilat Deh vests in Gram Panchayats and cannot be allotted as evacuee property. Faced with the cancellation of a large number of allotments already made by the Union of India and by the State, the definition of Shamilat Deh was amended by incorporating Section 2(g)(5) clause (ii-a) which provides that land that was Shamilat Deh but has been allotted to a displaced person after the commencement of the 1961 Act but on or before 9th July, 1985, shall be excluded from Shamilat Deh. The vires of this amendment has been upheld by a Division Bench of this Court in Gram Panchayat of Village Kum-Kalan(supra). The allotment was made to the petitioner on 10.12.1984 i.e. before 09.07.1987 and is, therefore, saved by Section 2(g)(5) clause (ii- a) of the Act. The allotment to the petitioner was cancelled on the ground that the land is Shamilat Deh. In view of Section 2(g) (5) clause (ii-a) of the Act and the judgment of a Division Bench in Gram Panchayat of Village Kum-Kalan (supra), the allotment made to the petitioner could not be cancelled on the ground that the land is Shamilat Deh. The impugned orders must, therefore, be set aside. The writ petition is allowed, the impugned orders dated 28.11.1988 (Annexure P-6) and 17.01.1991 (Annexure P-7) are set aside and the allotment made to the petitioner, to satisfy his claim as a displaced person is restored but with no order as to costs. 18.07.2011 [RAJIVE BHALLA] shamsher JUDGE CWP No.7008 of 1991 -5-