LAKHMI DASS Vs. CHIEF SETTLEMENT COMMISSIONER HARYANA

JUDGEMENT

(1.) This is a writ petition under Articles 226 and 227 of the Constitution for the issuance of a writ of certiorari quashing the orders passed by the respondents.

(2.) The petitioner is a displaced person from West Pakistan and owned land in District Multan. After partition, he settled in Hissar District and in lieu of the land left in Pakistan, was allotted land measuring 18-7-3/4 standard acres in Hansi under the Punjab Government notification dated July 8, 1949, on quasi-permanent basis. Permanent rights in the same were conferred on him in 1961. On a reference by the Managing Officer, that the petitioner had been allotted excess land to the extent of 1-1-3/4 standard acres the Chief Settlement Commissioner, respondent No. 1, by his order dated August 30, 1971 (Annexure A), cancelled the allotment of the petitioner to the extent of this area. This order had been passed ex parte. In pursuance of the order of respondent No. 1, a detailed enquiry was made into the claim of the petitioner regarding the allotment as a result of which it was held that the petitioner had not been allotted excess land; rather he was entitled to the allotment of more land to the extent of 0-12-1/4 standard acres. Consequently, the order, (Annexure A) was set aside. As the petitioner had also challenged the order of the Managing Officer cancelling his allotment to the extent of the alleged excess area, the Assistant Registrar-cum-Managing Officer, restored the cancelled area to the petitioner, but declined the petitioner's prayer for making good the deficiency in the land to which he was entitled. A copy of the said order dated March 6, 1964, is Annexure B. The petitioner filed an appeal under Section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter referred to as the Act), before the Assistant Settlement Commissioner, respondent No. 2. The same was, however, dismissed by him by his order dated October 7, 1964 (Annexure D), only on the ground that the application for additional allotment had not been filed before December 31, 1963. This order was challenged through a revision petition filed on February 14, 1967, before the Chief Settlement Commissioner, respondent No. 1, (Annexure D/1). The same was dismissed by the authorised Chief Settlement Commissioner by his order dated February 15, 1967 (Annexure E) holding the said revision petition to be time-barred. However, no finding was given on merits. The petitioner challenged the impugned orders, Annexures B, D and E, through this writ petition filed on July 25, 1967. Reply has been filed on behalf of the respondents according to which the impugned orders do not suffer from any legal infirmity.

(3.) A preliminary objection was raised by the learned counsel for the State that the writ petition is liable to be dismissed under Article 226(3) of the Constitution as the petitioner did not avail of the alternative remedy which was available to him under section 33 of the Act. The same, however, has no merit. A perusal of Article 226(3) of the Constitution clearly shows that the existence of an alternative remedy stands in the way of filing a writ petition only in cases covered by clauses (b) and (c) of Article 226(1). If the writ petition involves the enforcement of any of the fundamental rights conferred by the provisions of Part III of the Constitution non-availing of the alternative remedy does not stand in the way. In the present case, it was clearly held in the impugned order (Annexure B), dated March 6, 1964 by the Assistant Registrar-cum-Managing Officer that the petitioner had been allotted less land to the extent of 0-12-1/4 standard acres though it was his due. In the impugned orders, Annexures D and E, this position was not controverted by any of the higher authorities though the appeal and the revision by the petitioner were dismissed on other grounds. This being the position, the petitioner has claimed the right to the property, in the present writ petition, to which his claim was admitted by the respondents. Consequently, enforcement of the fundamental right of the petitioner to property is clearly involved. In the alternative, even if it is held that the impugned orders challenged in the writ petition do not relate to the fundamental right of the petitioner and the case falls under sub-clauses (b) and (c) of Article 226(1) the writ petition cannot be thrown out on the mere ground of having not availed of the alternative remedy under section 33 of the Act. The petitioner filed his appeal under Section 22 and also the revision under Section 24 of the Act. Section 33 embodies residuary powers of the Central Government to call for the record of any proceedings at any time and pass the appropriate order as may be warranted by the circumstances of the case. It has been held in Basant Ram Jaitly and another V. Chief Settlement Commissioner and another, 1965 CurLJ 817 that the remedy under Section 33 is not equally efficacious and adequate. In Col. Kehar Singh V. Chief Settlement Commissioner, Punjab and others, 1969 PunLR Shorts Notes of Cases 10, it was held that under Section 33 of the Act, an aggrieved person cannot claim personal hearing by the Central Government as a matter of right and his petition can be dismissed without affording any opportunity of hearing. In these circumstances this remedy cannot be held to be effective and efficacious and the non-availing of the same will not stand in the way of filing the writ petition.