CWP No.12002 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CWP No.12002 of 1990 (O&M) Date of Decision: 18.05.2011 The State of Punjab ... Petitioner Versus The Union of India and Ors. ... Respondents 2. CWP No.12003 of 1990 (O&M) The State of Punjab ... Petitioner Versus The Union of India and Ors. ... Respondents 3. CWP No.12004 of 1990 (O&M) The State of Punjab ... Petitioner Versus The Union of India and Ors. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. K.S. Sivia, DAG, Punjab for the petitioner. Mr. Karminder Singh, Advocate, for respondent No.1. Mr. Vinod S. Bhardwaj, Advocate, for respondent No.3 in CWP No.12003 of 1990. None for respondent No.3 in CWP No.12002 of 1990. None for respondents No.3 to 9 in CWP No.12004 of 1990. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? YES 3. Whether the judgment should be reported in the digest? YES CWP No.12002 of 1990 (O&M) -2- K. KANNAN, J. (Oral) 1. All the three CWP Nos.12002, 12003 and 12004 of 1990 filed at the instance of the State challenge the order passed by the Financial Commissioner (Irrigation and Power), Punjab exercising the powers of Central Government under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (for brevity, 'the 1954 Act'). Through this order, the Financial Commissioner was setting aside the cancellation of proposals for allotment made by the Managing Officer through his proceedings dated 16.11.1984 and of other dates. The cancellation had been made by the Chief Settlement Commissioner on 16.11.1986, which was based on a report given by the SDO (Civil), Ludhiana and purported to be in possession of the Potato Seed Farm. The statement in defence by one of the proposed allottees Sahib Dass is that he was a displaced person having migrated from a place now in Pakistan and is entitled for allotment under the 1954 Act. While the proposals for allotment through the first order dated 07.01.1985 was made on the basis that Sahib Dass and other persons, who claimed to be displaced persons, the cancellation was subsequently made when the report showed that the said property had been in the possession of the Potato Seed Farm. The possession had been granted to the Potato Seed Farm by the State Government after a purported transfer of a large extent of land made over to the State Government on 'package deal'. It appears that even before the enactment of Punjab Package Deal Properties (Disposal) Act, 1976 (for brevity, 'the 1976 Act'), in relation to evacuee property directions were done through Press notes and the possession was purported to have been handed over on 10.01.1968. The report brought out CWP No.12002 of 1990 (O&M) -3- inter alia that the proposals of allotment had been made by the Kanungo (Sales) even without verifying the parties who were actually in possession of the property. An application for transfer had been made by the Potato Development Officer to the Deputy Secretary, Rehabilitation through his representation dated 17.11.1980. The report had pointed out to several deficiencies in matters of procedure and the order of cancellation was under such a circumstance made by the Chief Settlement Commissioner holding that the allotments could not be sustained. 2. Learned counsel appearing for the State affirms the order of cancellation and impugns the subsequent order modifying the same, pointing out that the property had been already in the possession of the Potato Seed Farm and it could not have been ordered to be transfered in favour of the private respondents. 3. The impugned order is supported by the counsel appearing for the third respondent in CWP No.12003 of 1990 by referring to the fact that the property which is alleged to have been transferred by the State Government to the Potato Seed Farm, could not have been validly transferred as it did not qualify for the definition of 'package deal property'. The 'package deal property' defined in Section 2(1-A) of the Punjab Package Deal Properties (Disposal) Act, 1976 is as under: “2(1-A) 'package deal property' means the surplus evacuee property taken over by the State Government and referred to in the Government of India letter – (1) See Punjab Act No.10 of 1979. (i)No.3 (35) Pol. II/60- Land & Rent, dated 3rd June, 1961, read with letter No.3 (54)/Pol. II/60-L & R, dated 5th March, 1962. CWP No.12002 of 1990 (O&M) -4- (ii)No.F. 18(40)J/61/prop/Comp & Prop. dated 23rd March, 1963 and, (iii)No.F 18 (40)/61-Prop-Comp & Prop, dated 29th March, 1963, reproduced in the Schedule of this Act; but excluding such property as may be required for transfer or allotment, by way of compensation to a displaced person, as defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and rural agricultural land required for similar allotment to a displaced person of non-Punjabi extraction in pursuance of the Directions of the Central Government given under Section 32 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, read with sub-rule (2) of rule 66 of the Displaced Persons (Compensation and Rehabilitation) Rules,1955.” 4. Learned counsel pointed out that a property which may be required for transfer or allotment by way of compensation to a displaced person as defined in the 1954 Act, is not a property which could be treated a 'package deal property' and which in turn could be transferred by the Central Government to the State Government or for the State to transfer in turn to the Potato Seed Farm. The Financial Commissioner had no power to deal with any property which comes within the 1954 Act, reserved for transfer of allotment to displaced persons. Learned counsel would refer me to a decision of a Hon'ble Division Bench in “Bishan Singh v. Chief Settlement Commissioner, 1973 PLJ 183” wherein it has been held that the Chief Settlement Commissioner has no authority to deal with the question of disposal of property acquired by the State Government under the 'package deal property' and for the disposal of such property. The final authority under CWP No.12002 of 1990 (O&M) -5- the rules made by the State Government is the Settlement Commissioner. The Chief Settlement Commissioner himself has not been invested with any power whatever by the State Government in regard to the sale of property acquired under the 'package deal property'. 5. If the issue has to be considered from the perspective of whether the order of cancellation was made by a person who was competent to pass such order, in my view, it has to be in the negative for, the power of Settlement Commissioner under the 1976 Act, is capable of being exercised only in relation to properties which are sold or dealt with by the Tehsildar (Sales) under Section 4. If only an application had been made for allotment by any of the modes prescribed under the said section after application for allotment, then the issue of exercise of power under Section 24 arises. If the power, however, is exercised under the 1954 Act, then, I am of the view that the order cannot be passed by the Financial Commissioner. 6. Learned counsel appearing for the State refers me to the instructions issued by the Government on 05.11.1984, which has statutory force, that declares that any agricultural land for which applications for transfer on the basis of possession by eligible persons is received on the prescribed date, it may not transfer the property until those applications have been disposed of. Learned counsel would argue that applications for transfer had been pending on that date since 17.11.1980 and, therefore, the property could not have been allotted or a proposal for allotment could not have been made without joining the person in possession through notices before such decision was taken. 7. This argument is also contested by the counsel for the private respondent by pointing out that the question of cancellation of applications would arise only if it had been at the instance of the person who was eligible CWP No.12002 of 1990 (O&M) -6- for such allotment and there is no basis made for treating the Potato Seed Farm as eligible for such allotment. 8. If the property had come to the Seed Farm under the 1976 Act, then I will have no difficulty in holding that the said property itself could not be taken as capable of being passed into their hands when they were unsatisfied claimants. In this case, the status of the persons in whose favour the proposals for allotment have been made as 'displaced persons' had not been denied. However, the original order of cancellation through P-10 records the fact that even at the time when the Chief Settlement Commissioner had directed their presence before him to test the bona fides of their respective claims, they did not appear. The Chief Settlement Commissioner has observed that an allotment could not have been made without hearing the claimants in person as per the instructions contained in Para 11 Clause 3(i) at page 9 of the compendium containing policies/instructions governing the disposal of surplus rural/urban evacuee lands/properties etc. If the cancellation of proposal for allotment had been done on the ground that there were procedural irregularities and the instructions which required the satisfaction of the authorities that the persons were genuine applicants and entitled to allotment under the 1954 Act, I would not treat the objections as unjustified. I am not, however, prepared to unsettle the issue of handing over the possession of the property made in the year 1968 to the Potato Seed Farm. The impugned order of the Financial Commissioner shall be affirmed so far as it holds that displaced persons who are entitled to allotment under the 1954 Act are persons whose claims will be required considered without reference to the 1976 Act. The 'package deal property' could be such property which does not fall within the property which was required to be allotted under the 1954 CWP No.12002 of 1990 (O&M) -7- Act. The affirmation of allotment to all the private respondents in these writ petitions cannot, however, be sustained only by the fact that the Tehsildar had found that they were entitled to such allotments. The procedural requirements of verification and consideration of their entitlement under the 1954 Act is still to be examined before a confirmation of allotments made. The impugned order is to that extent modified and the matter shall stand remitted to the competent authority under the 1954 Act for considering the proposals for allotment to the private respondents in the light of the rules and instructions and this shall be done after allowing the Potato Seed Farm to participate in an inquiry and take a decision after hearing the objections of the said Farm. The transfer of possession of a property under the 1974 Act, would become possible only in respect of residuary of property after satisfying the persons entitled to allotment under the 1954 Act and to that extent the private respondent in the respective writ petitions shall have priority of consideration of the claims, if they otherwise satisfy the requirements of law. 9. All the writ petitions are disposed of as above. MAY 18, 2011 ( K. KANNAN ) Rajan JUDGE