HOSHNAK SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave arises from the dismissal of the Civil Writ petition filed by the present appellant by a learned single Judge of the Punjab and Haryana High Court as also dismissal in limine of the Letters Patent appeal preferred by him.

(2.) Appellant is a displaced person from West Pakistan. On his migration to India he was allotted on quasi permanent basis land admeasuring 32 1/2 standard acres in village Daulatpur, Tahsil Pathankot, Distt. Gurdaspur. First respondent Union of India acquired land admeasuring 1243 canals, 5 marlas which included 15 acres of land allotted to the appellant, for constructing a railway line. According to the appellant he was paid cash compensation for the same. First respondent further acquired in 1950 some land for constructing National highway from Jammu to Jullundur and the acquisition included a portion of the land allotted to the appellant and along with other allottees he was paid cash compensation for the same. First respondent wanted an open plot of land for setting up a housing colony for rehabilitating some refugees from Mirpur (Kashmir) and in all it took possession of land comprising 7.88 acres of non-evacuee land and 6.64 acres of evacuee land. This acquisition included land admeasuring 1 standard acre and 15 1/2 units of land allotted to the appellant. Possession of the land including the land of the appellant was admittedly taken over in July 1953. Since then the appellant has been requesting the first respondent and other competent authorities for payment of compensation for the the same. In the mean time after the introduction of the Displaced Persons (Compensation and rehabilitation) Act, 1954, (1954 Act' for short), allotment of land to appellant which was till then on quasi permanent basis was converted into permanent basis. As the appellant was clamouring for compensation for the land taken from him, the Chief Settlement Commissioner, Punjab, made an order on 17th March 1961, Annexure 'C' whereby a reference made from the Evacuee Property Department was accepted and the permanent settlement rights conferred on the appellant in respect of 1 standard acre and 15 1/2 units of land were cancelled on the ground that there already existed houres over that portion of the land and the land was described as ghair mumkin abadi and was not allottable on permanent settlement as agricultural land against the verified claim of the appellant. The appellant questioned the correctness of this order in writ Petition No. 559/61 in the High Court which was dismissed in limine on 22nd March 1961 and which has led to a contention on behalf of the respondents that the subsequent writ petition from which the present appeal arises is barred by the principles analogous to res judicata. After the dismissal of the aforementioned writ petition the appellant approached the Financial Commissioner (Rehabilitation Department), Chandigarh, as per his representation Annexure 'D' dated 15th March 1963 requesting him to pay cash compensation for the land taken over by the first respondent which till such taking over was held by the appellant on quasi permanent allotment. On receipt of this representation the appellant was directed as per Annexure 'E' dated 25th April 1963 to appear before the Financial Commissioner (Taxation) on 16th March 1963 at Chandigarh. The appellant accordingly appeared before the Financial Commissioner (Taxation) and represented his case for cash compensation. Subsequent thereto, Secretary to the Government of Punjab, Rehabilitation Department, wrote to his counterpart in the Central Government requesting the first respondent to concur with the decision of the Pubjab Government for payment of cash compensation to the appellant adding that the land held by the appellant on quasi permanent basis was taken over for the purpose of the first respondent and that as the area involved was less than 2 acres, the decision to pay cash compensation in respect of such area arrived at in the meeting held between the officers of the Punjab Government and the Ministry of Rehabilitation on 27th August 1957 would govern the case. Presumably in response to this communication from the Punjab Government the then Home Minister wrote a demi official letter to the then Chief Minister of Punjab in which it was admitted that the land allottted to the appellant was in rural area and a part of it was acquired later on for public purpose and that in view of the decision arrived at the meeting on 27th August 1957 the appellant would be entitled to cash compensation and requested the Chief Minister to process the case accordingly. Thus, even though both the Governments agreed in their inter-departmental communications that the appellant would be entitled to cash compensation, nothing tangible came out with the result that the appellant preferred a petition under Section 33 of the 1954 Act challenging the order dated 17th March 1961 of the then Settlement Commissioner cancelling the permanent settlement rights conferred upon the appellant. This application was rejected by the Joint Secretary to the Government of India observing that the cancellation of the permanent settlement rights was in accordance with law and no interference was called for. Thereafter the appellant filed the writ petition from which the present appeal arises.

(3.) After the writ petition was filed and rule nisi was issued, a return was filed as per the affidavit of one R. C. Aggarwal, Under Secretary to Government of Punjab, Rehabilitation Department, presumably on behalf of all the respondents which undoubtedly amongst others, include the Union of India, the first respondent, and the State of Punjab, the second respondent. It must be specifically mentioned that the Union of India did not file any separate return and accepted the return field by and on behalf of the State of Punjab and other officers of the Punjab Government. There are certain averments in this return which must be noticed. Appellant is a displaced person and he was allotted 32 1/2 standard acres of land on quasi permanent basis is in fact admitted. It is equally admitted that the land which was taken over for setting up a colony for rehabilitation of some families from Kashmir included 1 standard acre and 15 1/2 units of land which was still then held by the appellant and that the land was taken over in July 1953. It was contended that when land is allotted on quasi permanent basis, the allotment can be cancelled and the land can be resumed and that when such a resumption takes place the allottee is only entitled to compensation in the form of land and not in cash. It was also contended that the cancellation of the permanent settlement rights was just and legal because the conferment was the result of a fraud between the appellant and some officers of the Punjab Government and proceeded on the erroneous assumption that the land was used as agricultural land though in fact it can be appropriately described as ghair mumkin abadi. The manner in which the preliminary objection was raised at the hearing of the writ petition that in view of the dismissal of the earlier petition bearing on the same subject the present petition is barred by the principles of res judicata was not is terms taken up in the return filed on behalf of the respondents. The High Court, however, appears to have permitted the respondents to a raise that contention.