Case: Prem Singh &amp; Others Vs. Deputy Custodian General, Evacuee Property &amp; Others

2. The events which led up to the present appeal may now be briefly stated. The appellants are refugees from Rawalpindi. On the partition of the country the appellants migrated to India abandoning 273 acres 6 kanals of first grade land irrigated by perennial canals situate in Chak No. 205/R. B., Tehsil Jaranwala, District Lyalpur. In 1947 the appellants were given two units of lands in two villages, Todarpur and Naharpur, in Tehsil Jagadhari, District Ambala on a temporary basis. At the time ofallotment in November 1949, the appellants were given 133 acres 15 1/4 units of land in two villages Khandua and Naharpur, which lands were of the second grade. On 20th February 1950 the appellants allotment in Khandua was cancelled and the whole of 133 acres 15 1/4 units of land was allotted to them in village Naharpur. In order to accommodate a group of people known as Brij Lal group in village Naharpur the allotment made to the appellants was cancelled on 6th June 1950, and the appellants were directed by the Director General, Relief and Rehabilitation (Additional Custodian), hereinafter referred to as the Director General, to be shifted from village Naharpur to the villages of Jaurian and Kottarkhans in Tehsil Jagadhari in the District of Ambala, where the lands were of the first grade. It appears that on 7th June 1950, the appellants wentto the headquarters of the Relief and Rehabilitation department protesting against their eviction from Naharpur in view of the improvements alleged to have been made by them in that village and prayed that they should be retained there. In this application the appellants did not pray for an allotment of land in village Ratauli. The Director General Directed the Revenue Assistant to make a report on that application. On the same date the Revenue Assistant promptly reported that the appellants were sitting allottees of village Naharpur, which was a village of second grade, that the appellants were entitled to first grade lands and that consequently they had been ordered to be shifted from the second grade village to the first grade villages of Jaurian and Kotarkhana in Tehsil Jagadhari. With these remarks he concluded the report with the word "submitted." In the margin of this report, however, the following words were endorsed : "Area also is reserved for Railway Workshop in village Ratauli. It approved Prem Singh and Narain Singh may be allotted land in the village." It is not easily understandable how, if the land in village Ratauli was reserved for Railway Workshop, such reserved land could be recommended for allotment to the appellants. There is an endorsement by the Director General of the word "Approved" on the same date. The extreme expedition with which the order of 6th June 1950 was cancelled and a fresh allotment was made in favour of the appellants in villages Ratauli, which they did not ask for, evidently created some doubts in the mind of the Deputy Custodian General as to the regularity of the procedure when he made his order on 18th August 1953. Be that as it may, he did not decide the matter on the strength of such doubts. After the Director General had "approved" the report a sanad was issued on 13th July 1950, in favour of the appellants in respect of 133 acres 15 1/4 units of land in village Ratauli and the appellants claim to have been put in possession of this land on 15th July 1950.3. The respondent No. 2 (N. R. Batra) is theof one Rai Sahib Maya Bhan Batra (since deceased) who had migrated from Phularwan, Tehsil Bhalwal in the District of Shahapur leaving behind about 543 acres of first class land irrigated by canal in the District of argodha. On 15th December 1947 36 acres of land were allotted to Rai Sahib Maya Bhan Batra in village Ratauti on a temporary basis. This temporary allotment of 36 acres was, however, reduced to an allotment of 12 acres for at that time no. single allotment was being made for more than 12 acres. The Rehabilitation Department having, later on, issued instructions that persons, who had left large holdings in Pakistan, could be allotted more than 12 acres, Rai Sahib Maya Bhan Batra on 5th June 1948, applied to the Director General for the allotment in the same village of Ratauli of the balance of the lands to which he was entitled. Rai Sahib Maya Bhan Batra died on 29th June 1948, leaving certain heirs of whom the respondent No. 2, N. R. Batra, is one. Before any allotment could be made in favour of the heirs of Rai Sahib Maya Bhan Batra, a notification was issued on 9th September 1949, at the instance of the Northern Railway reserving the lands in certain villages including the village of Ratauli for the purpose of construction of Railway Workshop. In view of the fact that there was no. land available in the village of Ratauli, in consequence of the reservation of the lands for the Railways, an area of 112.7 acres was on 11th November 1949, allotted in the name of Rai Sahib Maya Bhan Batra in the village of Mussambal Mussalmanan. In February, 1950 there was a rumour that the Rehabilitation Department had decided that no. single allottee would be allowed to have more than 60 acres of land. In view of this rumour the heirs of Rai Sahib Maya Bhan Batra became apprehensive that the allotment of 112.7 acres in the single name of Rai Sahib might be reduced and so B. L Batra, a son of the Rai Sahib, made a representation on behalf of all the heirs of the Rai Sahib to the Director General that as they were three brothers and the share of each in 112.7 acres was only about 37 acres, their allotment of 112.7 acres should not be cancelled and that if the allotment for any reason was cancelled they should be accommodated in village Ratauli. In February or March, 1950, the heirs of Rai Sahib Maya Bhan Batra were allotted lands in three villages, Mussambal Mussalmanan (64 acres 14 3/4 units), Kotarkhana (44 acres 10 3/4 units) and Chahju Nagla (2 acres 13 1/2 units).4. Respondents Nos. 3 and 4Hargobind and Jai Kishanare the sons of L. Devan Chand Sari, who are also refugees from Rawalpindi. They were entitled to an allotment of 175 acres in lieu of the lands they had left behind in Pakistan. They applied for allotment in the District of Karnal as unsatisfied claimants. After allotting 133 acres 15 1/4 units of land in village Ratauli there remained a balance of 93 acres still available in that village for allotment. On August 31, 1950, the Director General allotted those 93 acres of land to Respondents Nos. 3 and 4 and the balance of 82 acres were allotted to him in two other villages Mahalanwali and Habibpur.5. It appears that after the Railway had abandoned the project of building a workshop on the lands reserved for them, the officer on Special Duty (AMBLA) wrote to the Director General Relief and Rehabilitation asking him to reserve the lands released by the Railways for accommodating those who had been ousted from Chandigarh, the new capital of the Punjab. On October 28, 1950, the Director General applied stating that the allotment that had been made in favour of the appellants should stand and that he had no. objection if the allotment made in favour of other persons were cancelled. Accordingly the allotment of 93 acres to respondents 3 and 4 in village Ratauli was cancelled. The above cancellation, however, was rescinded and the land was restored to them.6. It appears from a letter dated April 28, 1950, from the Chief Administration Officer (Engineering) E. P. Railway, Delhi to the Chief Engineer (Development) Punjab P.W.D. Buildings and Roads Branch, Simla that owing to the stringency of funds the project for construction of the Railway Workshop had been abandoned and that the notification for acquisition of the lands might not be published in the Punjab Government Gazette. It is not clear at all that this information was passed on to the Relief and Rehabilitation Department at any time prior to September 1950. It appears that the application made by B. L. Batra on February 20, 1950, for allotment of land to them in village Ratauli where they originally had temporary allotments, was followed up by an other application by the heirs of Rai Sahib Maya Bhan Batra on March 23, 1951. The fact of this application is admitted by the Additional Custodian in his written Statement but he stated that it was not forthcoming presumably meaning that it had been misled in the office. A remainder appears to have been sent on August 1, 1951. Not having received any response from the office of the Director General the Respondent No. 2, N. R Batra, one of the heirs of Rai Sahib Maya Bhan Batra, on December 10, 1951, made a like representation to the Financial Commissioner Relief and Rehabilitation hereinafter referred to as the Financial Commissioner, who was the Custodian. On July 17, 1952 the Financial Commissioner custodian rejected the application of Respondent No. 2, The Respondent No. 2 thereupon went in revision under S. 27 of the Administration of Evacuee Property Act (Act XXXI of 1950) hereinafter referred to as the Act. This application was dealt with and disposed of by the Deputy Custodian General, who held that under the circumstances the allotment in favour of the appellants in village Ratauli could not be allowed to stand. He also rejected the contention of the appellants that if anybody were to be evicted from village Ratauli in order to accommodate the heirs of Rai Sahib Maya Bhan Batra, it should be Respondents Nos. 3 and 4Hargobind and Jaiwho had obtained their allotment in that village during the pendency of the disputes. The Deputy Custodian General made the following order on August 18, 1953allotment of respondents 4 to 6 (Prem Singh etc. to the extent of 112 S. A. 7 units in village Ratauli is cancelled and the area so made available shall be allotted to the petitioners and petitioners" allotment in village Kotarkhana and Chhaju Nangal and Mussambal Mussalmanan shall stand cancelled. The area thus rendered available may be allotted to respondents 4 to 6 unless they desire an allotment elsewhere and area is available. Parties to be informed.The appellants thereupon moved the Punjab High Court under Art. 226 of the Constitution praying for a writ quashing the above order of the Deputy Custodian General. The application came up before a Single Judge, who by his order dated September 3, 1954, referred the matter to a Division Bench and the Division Bench in its turn on September 28, 1954, referred the following questions to a Full Bench for a decisionWhether R. 14 (6) of the Administration of Evacuee Property Rules made under S. 56 of the Administration of Evacuee Property Act is ultra vires because it goes beyond the rule making power or because it is inconsistent with the other provisions of the Evacuee Property Act?""(2) Whether R. 14 (6) even if intra vires, is applicable to it orders cancelling the allotments if such orders have been made before the date on which the amendments were made?"The Full Bench answered the first question in the negative and in answer to the second question held that "orders passed by either the Custodian or Custodian General in exercise of their powers under S. 26 or 27 cancelling allotments in pending cases regarding orders passed before 22nd July 1952, were valid, even if passed by the Custodian before 13th February, 1952, and by the Custodian General before 25th August,matter then went back to the Division Bench which in the light of the answers given by the Full Bench, found no. ground for interference and dismissed the appellants writ petition. The High Court, however, gave a certificate of fitness for appeal to this Court with which the present appeal has been filed.

Court's reasoning:
The Deputy Custodian General has given cogent grounds for such cancellation, namely, that Tehsil Jugadhari was not within the area ofscheme so far as the appellants are concerned, that, in the second place, the appellants never had any temporary allotment in village Ratauli and could not, therefore, be said to be sitting allottees of that village. Rai Sahib Maya Bhan Batra, on the other hand came from Sahapur and was entitled to be accommodated in Tehsil Jugadhari and in point of fact, he had a temporary allotment of 36 acres, which was subsequently reduced to 12 acres, in village Ratauli. His allotment was changed only because the lands in certain villages including Ratauli were reserved for the Railway Workshop. As soon as the Railways had abandoned that scheme, the heirs of Rai Sahib Maya Bhan Batra asserted their claim to be accommodated in village Ratauli. Under these circumstances it was only equitable and proper that the heirs of Rai Sahib Bhan Batra should bein that village and the cancellation of the allotment in favour of the appellants was obviously equitable and in the interest of proper rehabilitation of displaced persons within the meaning of cls. (h) and (i).Learned counsel has enumerated the following errors, namelythat the Deputy Custodian General in his judgment assumes that, in the application made on March 23, 1951 the case of respondent No. 2 was that he had a preferential claim to allotment in Ratauli and he wants us to refer to that application to see that there was in fact no. suchclaim. This is obviously not an error of law.(2)that the order proceeds on the assumption that the allotment made to the appellants had not the approval of the Financial Commissioner. In point of fact the allotment to the appellants was made by the Director General, who had the word "approved" endorsed on the report of the RevenueAssistant. The rejection of the application of the respondent No. 2 for allotment in village Ratauli cannot certainly be regarded as an approval by the Financial Commissioner of the allotment of land in favour of the appellants out of the area of thescheme. In any case this also cannot be said to be an error of law.(3)that on the 7th June, 1950, when allotment was made to the appellants the respondent No. 2 and his relations were not sitting allottees of village Ratauli, for on that date the respondent No. 2 and his relations were settled in three other villages and consequently they could not under the law recorded in the Manual claim any allotment in village Ratauli where they ceased to be sitting allottees and, therefore, there is an error of law apparent on the face of record.The fact is that Rai Sahib Maya Bhan Batra was originally allotted land in village Ratauli. He having come from Sahapur District Jugadhari was the proper Tehsil forhim. The allotment to him was shifted only because the lands in Ratauli and other villages had been reserved for the Railway Workshop. These are matters which could properly be taken into consideration in applying the departmental instructions contained in the LandManual. There is nothing in the departmental rules which militates against the allotment of lands in Ratauli to the heirs of Rai Sahib Maya Bhan Batra or which takes away the power of cancellation given to the Custodian to cancel the allotment of the appellants. These departmental instructions, on the appellants own showing in(viii) of para. 12 of their petition under Art. 226, were not inflexible and were not adhered to rigidly and were merely in the nature of procedure and that the rehabilitation authorities had full authority and complete powers to make allotment without adhering rigidly to the departmental instructions, e.g., the scheme ofIt, therefore, does not lie in the mouth of the appellants to say that these departmental instructions are law and that in the context of these departmental instructions it must be held that there is an error of law apparent on the face of the judgment. The errors pointed out, if they are errors at all are mostly errors of fact and even if the errors may by any stretch of argument be said to constitute errors of law, they are nothing more than mere errors of law, which may be corrected by a court of appeal but which do not render the order a "speaking order" showing a clear ignorance or disregard of the provisions of the law, so as to be amenable to correction by a writ of certiorari. There is, in our opinion, no. substance in this contention.e last point urged by learned counsel for the appellant is that if anybody is to be ousted from village Ratauli for accommodating the respondent No. 2, there is no. reason why the appellants should be ousted and not the respondents Nos. 3 andLearned counsel for therespondents Nos. 3 and 4 urged with considerable force that there are good grounds for not disturbing his clients.In the first place, the appellants are bigger allottees and if anybody were to be distributed, it must be the bigger allottees and not the smaller. Reference is made to page 84 of the Resettlement Manual and it is claimed that this rule has laid down a rule of equity of general application. In the next place the appellants and the respondents Nos. 3 and 4 both came from Rawalpindi and they can bein Ratauli only on sanction given by Financial Commissioner and reference is made to page 82 paragraph 7 of chapter (iv) which lays down the principles of allocation. It is pointed out that the allotment of land in Ratauli in favour of the appellants were made by the Director General and were never sanctioned by the Financial Commissioner. Further the Rehabilitation authorities charged with the duty of making allotments have exercised their discretion and for cogent reasons stated in the Deputy Custodian Generals order the allotment to respondents Nos. 3 and 4 were not disturbed. There is no. reason to interfere with that decision on an application under Art. 226. None of the prerequisites for the issue of a writ of certiorari exists and the claim of the appellants as against the respondents Nos. 3 and 4 was therefore rightly rejected. It was not a proper matter to be decided on a petition under Art. 226.