IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4966 of 2011 Date of decision: 8th September, 2011 Bakshish Singh and others .......Petitioners Versus State of Punjab and others ........Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Gurnam Singh, Advocate, for the petitioners. Hemant Gupta, J. (Oral) The challenge in the present writ petition is to an order dated 25.06.1991 (Annexure P-4) passed by the District Development & Panchayat Officer -cum- Collector, Ludhiana, whereby an application under Section 7 of the Punjab Village Common Land (Regulations) Act, 1961 filed by Panchayat has been allowed and the order in appeal dated 12.10.1994 (Annexure P-5) against the said order decided by the Joint Development Commissioner (IRD) Punjab, (exercising the powers of Commissioner). The present writ petition has been filed after gross delay impugning the order dated 12.10.1994. But still, we have examined the issues raised by the petitioners. The petitioners were given the land situated in village Mithewal, Tehsil Samrala, District Ludhiana on chakota (lease) for a period of 10 years in the year 1963 under the provisions of the East Punjab and Utilization of Land Act, 1949. It is admitted by the learned counsel for the Civil Writ Petition No. 4966 of 2011 petitioners that this lease period has not been extended. Since, the lease was not extended, the Gram Panchayat sought eviction of the petitioners under Section 7 of the Punjab Village Common Land (Regulations) Act, 1961 which has been allowed, as mentioned above. Before this Court, learned counsel for the petitioners has argued that after the judgment of the Hon'ble Supreme Court in Gram Panchayat of Village Jamalpur vs. Balwinder Singh and others (AIR 1985 S.C. 1394), the proviso of Section 2 (ii-a) has been inserted vide Punjab Act No 8 of 1995, whereby transfers of land prior to 9.07.1985 i.e. the date of decision in the aforesaid case, are protected. Therefore, it is contended that the lease hold rights granted to the petitioners in the year 1963 are protected by the Punjab Village Common Land (Regulations) Amendment Act, 1995. In support of the said contention learned counsel relies upon the two single Bench judgments of this Court in CWP No. 5282 of 1982 titled as Bachna Ram and another vs. State of Punjab and others decided on 12.02.1997 and CWP No. 1083 of 2007 titled as Kesar Singh vs. State of Punjab and others decided on 13.07.2010. We have heard learned counsel for the petitioners, but do not find any merit in the present petition. Section 5 of the East Punjab and Utilization of Land Act, 1949, permits the Collector to lease the land to any person on such terms and conditions as he may deem fit for the purpose of growing food and fodder crops. The proviso contemplates that the period of lease shall not be less than 7 years or more than 20 years. Further Section 2 (h) of the East Punjab and Utilization of Land Act, 1949, defines "Tenant” as a person to whom land is leased by the Collector under the provisions of this Act. Therefore, the petitioners were the tenants on the land in terms of Section 5 of the East Punjab and Utilization of Land Act, 1949. 2 Civil Writ Petition No. 4966 of 2011 Section 2 (g) (ii-a) of the Punjab Village Common Land (Regulations) Act, 1961 protects the transfer of a shamlat deh allotted on quasi-permanent basis to displaced person, or has been otherwise transferred to any other person by sale or any other manner whatsoever, after the commencement of that Act, but on or before the 9th July, 1985. The petitioner is a lessee for a fixed term. The land was not allotted to the petitioner either permanently or on quasi permanent basis. Soon after the partition, various steps were taken by the Government including enactments to take over and the administration of evacuee properties as well compensation payable to displaced persons. One of the earlier Statutes is the East Punjab Evacuees’ (Administration of Property) Ordinance, 1947 (E.P. Ordinance IV of 1947) dated September 14, 1947. Such Ordinance gave the Custodian power to take possession of evacuee property and to take all measures necessary and expedient for preserving such property. The expression ‘quasi permanent basis’ came to be used following Press Communique dated February 7, 1948 announced by Government of Each Punjab. Considering the said communication, the Hon’ble Supreme Court in Amar Singh and others Vs. Custodian, Evacuee Property Punjab and another AIR 1957 SC 599 noticed the distinction between the word ‘lease’ and ‘allotment’ when it was held to the following effect: “10. Next, it may be noticed that neither the East Punjab Ordinance 4 of 1947 nor the East Punjab Act 14 of 1947 which replaced it refer to or define either the word ‘lease’ or ‘allotment’. These two words were for the first time defined only by the amending East Punjab Ordinance 16 of 1948 and it was made clear therein that an allotment was different from a lease. From the historical background, it would appear likely that the word ‘allotment’ was used for the grant of property to displaced land-holders while ‘lease’ was intended to denote a temporary grant to other displaced persons. But even so the temporary character of the right involved in the word ‘allotment’ was specified by defining ‘allotment’ as meaning the 3 Civil Writ Petition No. 4966 of 2011 grant by the Custodian of a temporary right of use and occupation of evacuee property to any person otherwise than by way of lease. This temporary character of the right was reiterated also in the East Punjab Ordinance 9 of 1949 and in the Central Ordinance 27 of 1949. It is only in Central Act 31 of 1950 that by Section 2(a) thereof the word ‘temporary’ in the definition of the word ‘allotment’ was dropped and ‘allotment’ in defined as meaning the grant by a person duly authorized of a right of use or occupation of an immovable evacuee property to any other person but does not include a grant by way of a lease. Thus, the legislation of 1950 for the first time contemplated that allotment may be otherwise than temporary. This Act as well as the previous Central Ordinance completely omitted the definition of the word ‘lease’. These changes were apparently necessitated by the fact that, in between, Punjab Government notification dated 8th July, 1949, came into operation providing for what has become subsequently known as quasi-permanent allotment…..” The above extract would show that the lease is a temporary grant, whereas allotment though is a temporary right of use and occupation of evacuee property to any person otherwise than by way of lease. On 8th July, 1949, Punjab Government published Rules creating provisions for resumption or cancellation of the allotment. As per the Quasi Permanent Allotment Scheme introduced by notification dated 8th July, 1949, the allottee is entitled to right of use and occupation of the property, until such time as the property remains vested in the Custodian and that he is entitled to exchange the whole or any part of the land for other evacuee land with the consent of the Custodian as also he is entitled to lease the land for a period not exceeding three years without the permission of the Custodian and for longer period with his consent. After noticing the various rights of such allottee on the quasi permanent basis, it was concluded that the position of a displaced land-holder to whom evacuee agricultural land has been allotted under notification of July 8, 1949, he is in a definitely better legal position than the allottee of other kinds of property under the Central Act XXXI of 1950 or the Central Rules of 1950, who, as already shown, is 4 Civil Writ Petition No. 4966 of 2011 more or less in a possession of a licensee. The Court held to the following effect: “22. The above detailed consideration of the various incidents of a quasi- permanent allotment show clearly that the sum total thereof does not in any sense constitute even qualified ownership of the land allotted. At best, it is analogous to what is called jus in re aliena according to the concept of Roman law and may be some kind of interest in land. The basic features of that interest are that the ultimate ownership of the land is still recognized to be that of the evacuee and the allotment itself is liable to resumption or cancellation with reference to the exigencies of the administration of evacuee law. The interest so recognized, is in its essential concept, provisional, though with a view to stabilization and ultimate permanence…..” In Basant Ram and others Vs. Union of India and another AIR 1962 SC 994, the allotment of quasi permanent was explained to mean that it was to remain in force so long as the land was to remain vested in the Custodian of Evacuee Property. The East Punjab and Utilization of Land Act, 1949 confers power to grant lease for a period not exceeding 20 years. There is no provision for allotment of land on quasi permanent basis under the said Act. As already pointed out, lease for a fixed term and allotment of quasi permanent basis are two different connotations in law. There was no allotment in favour of the petitioner on quasi permanent basis nor the lease for a fixed period of ten years, can be treated to be anything close to quasi permanent basis. The land, which is allotted on quasi permanent basis, alone is protected under the Punjab Act No.8 of 1995 or the transfer of rights in any other manner. Since the lease-holds right conferred upon the petitioner is neither transfer of rights in the land nor his allotment on quasi permanent basis, therefore, the petitioner cannot claim protection under the amending Act i.e. Punjab Act No.8 of 1995. Still further, the protection is to a transfer by sale or by any 5 Civil Writ Petition No. 4966 of 2011 other manner. The lease for a fixed term cannot be said to be a sale nor transfer of interest or rights in the property in any manner. The expression “in any other manner” has to be read ejusdem generis with the expression sale where the transfer is of the rights in the immovable property. Both the judgments referred to by learned counsel for the petitioner deals with the allotment of land by Gram Panchayat. But in present case, the lease hold rights for a fixed term were conferred by a Custodian, which is and cannot be an allotment on quasi permanent basis or transfer of rights in the immovable property. The petitioner as a lessee and after the expiry of the lease period, cannot claim protection of the possession in view of the judgment of the Full Bench in case of CWP No. 14902 of 1992 titled as Roshan @ Roshan lal vs. The Secretary, Govt. of Haryana 1998 (3) PLR 651. It has been held that after the expiry of lease period, the leasee is an unauthorized occupant. Thus, we do not find any material illegality or irregularity in the orders passed, which may warrant any interference in exercise of writ jurisdiction of this court. Dismissed. [HEMANT GUPTA] JUDGE 08.09.2011 [VIJENDER SINGH MALIK] Shivani Kaushik/Vimal JUDGE 6