UNION OF INDIA Vs. AVTAR SINGH

JUDGEMENT

(1.) Avtar Singh and Dr. Kartar Singh two sons of S. Harnam Singh filed Civil Writ No. 1242 of 1965 against their father S. Harnam Singh, respondent No. 2 and Union of India and Tehsildar cum Managing Officer, respondents Nos. 1 and 3 respectively questioning the correctness and validity of an order dated, March 15, 1965, Anexure 'G' to the petition.

(2.) S. Harnam Singh was the owner of agricultural land comprised in Deh No. 100 as also a portion of the land included in Deh No. 99 situated in District Nawab Shah, in erstwhile Sind Province now forming part of Pakistan. Harnam Singh had three sons; Avtar Singh, Dr. Kartar Singh and Harbans Singh. Smt. Tej Kaur was the wife of Harnam Singh. It was alleged that in the year 1946 Harnam Singh effected a partition of agricultural land between himself, his three sons and his wife Smt. Tej Kaur each being given an almost equal share. It was alleged that intimation of the alleged partition was sent to the revenue authorities of Sind Province with a request to effect necessary mutation in the revenue records showing land as having been given in the partition to the particular person. After the partition of the country S. Harnam Singh his three sons and his wife migrated to India and they claim to be displaced persons. Harnam Singh lodged a claim on March 15, 1948 in respect of the entire land including the land belonging to the heirs of Ch. Avtar Singh who was his father-in-law. Later on, April 21, 1948 Harnam Singh intimated to the Rehabilitation Authorities that out of a total claim of 300 acres of land lodged by him, about 75 acres. of land was of the ownership of Ch. Attar Singh and confined his claim to the total area of 225 acres of land. It may be mentioned that in the claim lodged on March 15,1948 there was no reference to the partition effected by Harnam Singh between himself, his sons and his wife. On the introduction of the Punjab Refugees (Registration of Land Claims) Act. 1948 ('Act' for short) on April 3, 1948 Harnam Singh and his sons as also Smt. Tej Kaur filed separate claims on the basis of the partition of the land which originally belonged to S. Harnam Singh. It was alleged that these claims were verified and allotments of land were made to the extent of 21-8 standard acres in favour of each claimant on temporary basis. On October 5, 1953 Harnam Singh and his sons approached the authorities in the Rehabilitation Department to convert temporary allotment into quasi-permanent allotment. Deputy Registrar Land Claims accepted the request of Harnam Singh and his sons, both with regard to the ownership of the land as well as partition thereof amongst various members of the family. However, it was recommended that on the basis of the revised calculation, each claimant would be entitled to 19-11 1/2 S. A. of land instead of 21-8 S. A. and the excess allotment should be cancelled. This recommendation was approved by the comepetent authority vide its order dated October 28, 1953 as also by the Deputy Custodian of Evacuee Property as per its order dated November 11, 1953. Consequently excess allotment of 8-14 1/2 standard acres in respect of five claimants was cancelled and the remaining allotment was ordered to be made on quasi-permanent basis. It was alleged that later on proprietary rigts were conferred on each claimant in respect of the land allotted to him by the Managing Officer. Sometime in 1960, a notice was received by the allottees from the Chief Settlement Commissioner, Punjab calling upon them to show cause why their allotment should not be cancelled. In view of the notice, it became necessary for the allottees to establish not only the ownership of land in Sind but the partition thereof amongst themselves. The allottees claimed that they offered the necssary proof which satisfied the Chief Settlement Commissioner who had issued notice on the basis of Jamabandi entries received from Pakistan. Accordingly the Chief Settlement Commissioner by his order dated August 21, 1961 confirmed the alloment, directed conferment of quasi-permanent status and rejected the departmental reference. Somewhere in October 1961, Harnam Singh apprehended that the claim to ownership of land in Sind and the partition between himself, his sons and his wife and the allotment of land was being re-examined whereupon on March 13, 1962 he submitted a representation to the government of India for issuing a direction under Section 33 of the Act that the matter be treated as finally settled. It is aleged that on this representation, the Government of India sent for the record of the whole case, called for the comments of the Punjab Rehabilitation Department which led Land Claims Officer to forward his note dated October 27, 1961 to the Governmeat of India along with the whole record of the case. It is alleged that the case was examined and the Joint Secretary to the Government of India, Ministry of Rehabilitation, one Shri Dube conveyed the decision of the Government of India to the Deputy Secretary to the Government of Punjab, Rehabilitation Department, Jullundur vide his D. O. Letter No. 13(66)/L and RO-62 dated May 31, 1963 with certain observations which it is alleged tend to show that the power of revision under Section 33 was exercised and both, the holding of the land in Sind, partition thereof between Harnam Singh, his sons and his wife and the allotment of land to them as displaced persons in India were considered as valid and finally settled. It appears that the Managing Officer of the Rehabilitation Department, Punjab Government submitted a note dated November 5, 1963 to move the Central Government under Section 33 of the Act for cancellation of the order of the Chief Settlement Commissioner dated August 21, 1961. Thereupon the Chief Settlement Commissioner issued a notice dated May 21, 1964 to the allottees calling upon them to show cause why allotment in favour of each of them should not be cancelled. The allottees appeared and submitted their objections to the re-opening of the case inter alia contending that the power of revision conferred by Section 33 of the Act cannot be repeatedly exercised and it having been earlier exercised and the allotment having been held to be valid as per the letter of Shri Dube dated May 31, 1963, the Central Government had no jurisdiction either to revise or review its previous decision more particularly when no fresh material against the allottees is produced after the earlier decision. Ultimately the Joint Secretary of the Government of India exercising power of revision conferred by Sec. 33 by his order dated 15-3-1965 Annex. G to the writ petition quashed and set aside the order of the Chief Settlement Commissioner dated August 21, 1961and further directed that the allotment of land in favour of Harnam Singh, his sons and his wife be cancelled and that a fresh allotment be made on the footing that Harnam Singh alone was the owner of the land situated in Sind. In other words, the claim that each son of Harnam Singh had acquired land on partition was rejected as untenable. Thereupon, two sons, of Harnam Singh, Shri Avtar Singh and Dr. Kartar Singh filed Civil Writ Petition in the High Court of Punjab at Chandigarh.

(3.) An affidavit in opposition was filed on behalf of respondent Nos. 1 and 3 by one A. G. Vaswani, Settlement Commissioner (A) and Ex-Officio Under Secretary to the Government of India, Ministry of Labour Employment and Rehabilitation inter alia contending that in April, 1948 when for the first time Shri Harnam Singh lodged his claim as displaced person against the loss of his land and property in Pakistan, he had categorically stated that 225 acres of land situated in Sind belonged to him and there was no express or implied, overt or covert reference or even a whisper of a partition between himself and his sons and wife before he migrated to India. It was also contended that the claim lodged by Harnam Singh in April, 1948 was attested by Shri Harbans Singh, then Deputy Custodian of Evacuee Property, East Punjab and at the relevant time Judge of the Punjab High Court. It is alleged that on the basis of the alleged partition, separate claims were lodged for the first time in June 1948 each claiming 48 acres of land which was reduced to 32 acres. It was specifically contended that the separate claims on the basis of alleged oral partition were an after thought and were submitted to escape a higher graded cut under the Quasi-permanent Allotment Scheme. Other averments in the affidavit are hardly relevant. With respect to the D. O. Letter of Shri Dube, it was stated that the opinion expressed in it was not a judicial decision in exercise of the revisional jurisdiction under Section 33 of the Act nor could it constitute an exercise of power under Section 33 of the Act. It was submitted that the revisional power was exercised for the first time when the allotment was cancelled and a direction was given for fresh allotment on the basis that Harnam Singh alone was the owner of the land situated in Sind.