Case: Dunichand Hakim And Others Vs. Deputy Commissioner (Deputy Custodian Evacuee Property

2. The petitioners are displaced persons from Pakistan who migrated to India after the partition ofThey owned certain agricultural land in Tehsil Chunian, District Lahore, which according to them, was mostly canal irrigated land of the first grade, yielding on an average 16 to 20 maunds of wheat per acre. It appears that upon partition, the East Punjab Government was confronted with the serious problem of settling agricultural lands abandoned by Muslim evacuees from the areas, now called East Punjab and Pepsu. Accordingly they decided on the 15th September, 1947 to allot evacuee lands for the current Kharif and the Rabi ofThis decision was obviously taken with a view to prevent famine and fall in agricultural production in the area, as also to provide means of livelihood for the agriculturalpursuance of this policy the petitioners were settled on land in village Dhakata - admittedly a first grade village, - Tehsil Thansar, district Karnal, in the State of East Punjab. Their claims were verified under the provisions of the East Punjab Refugees (Registration of Land Claims) Act XII ofThey were allotted specific areas of land under the Settlement of Conditions, contained in Notification Nos. 489/S, dated the 8th July, 1949, on quasi permanent basis in lieu of the lands left by them in Pakistan. Subsequently the petitioners lands left in Pakistan, are alleged to have been downgraded with the result that the lands allotted to them were re-allotted on the 25th April, 1951, to Ishar Singh and others who appears as respondents to oppose the presentJuly 1951 the petitioners moved the East Punjab High Court under Article 226 for a writ restraining their eviction form the lands but as no allotment had been cancelled by that time they withdrew the petition some time inThe original allotment was, however, cancelled on the 1st July,This order was challenged by a revision under Section 27 of the Administration of Evacuee Property Act, 1950. The Deputy Custodian General dismissed the revision petition on the 2nd December, 1953, holding that the order of the Deputy Custodian was not illegal or without jurisdiction on the ground that no notice of cancellation of allotment had been issued towas observed in the course of the judgment that the petitioners had conceded before the Assistant Custodian on the 9th May, 1952, that the lands abandoned by them in Pakistan were second grade lands but had claimed that they should, nevertheless, be allotted first grade lands.The order of the 1st July, 1952, is the first order which is challenged before us as being without jurisdiction and infringing the fundamental right of the petitioners.

Court's reasoning:
The various evacuee property Ordinance passed by the Central or the State Government from time to time which were eventually replaced by the Central Act No. XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until such time as a final decision was reached by the Government of India as to its ultimate14 (2) which is one of the rules framed under Section 56, specifies the circumstances under which leases and allotments can be cancelled or varied. Sub-rule 3 says that the Custodian may evict a person who has secured an allotment by misrepresentation or by fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements.Sub-rule (4) requires the Custodian before passing any order of cancellation or variation of the terms of lease, to serve the person or person concerned with a notice to show cause against the order proposed to be made and to afford him a reasonable opportunity of being heard. No notice is provided for cancellation of an allotment under theobvious answer to this differentiation appears to be that a lease is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing. Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to put forward their case before the allotment wasAssistant Custodian who was acting under the orders of the Deputy Custodian had already heard the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already beenDeputy Custodian had filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them. Even if the order of cancellation was passed during the operation of a stay order, the order of cancellation cannot be challenged on thatcorrespondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub-rule 6 of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.It is clear, therefore, that the central Government merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force. Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.Sub-rule 6 to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than undeserved or excessive allotments, once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under Section 54, it cannot have the effect of restoring what had been lost.