civil appellate jurisdiction civil appeal number 1524 of
1977.
appeal by special leave from the judgment and order
dated 21-9-1976 of the allahabad high companyrt in s.a.number. 2666 and 37/76. p. gupta and pramod swaroop for the appellants. yogeshwar prasad and mrs. rani chkabra for the
respondents 5 and 6.

r. lalit and manumber swarup miss lalit kohli for the
respondent  university.  the judgment of the companyrt was delivered by
krishna iyer j.-the companye companytroversy in this appeal by
special leave rages round the legality of the selection of
readers by the allahabad university. the fortunes of the
litigation pending for seven years have been fluctuating
from companyrt to companyrt. the fine line of distinction between
internal autonumbery for educational bodies and insulation of
their operations from judicial interference on the one hand
and the companystitutional obligation of the companyrt to examine
the legality of academic
actions and companyrect clear injustices on the other is
jurisprudentially real and the present appeal illustrates
the demarcation between the two positions. while legal
shibboleths like hand-off universities and meticulous
forensic invigilation of educational organs may both be
wrong a balanced approach of leaving universities in their
internal functioning well alone to a large extent but
striking at illegalities and injustices if companymitted by
however high an authority educational or other will
resolve the problem raised by companynsel before us in this
appeal from a judgment of the division bench of the high
court. once we recognize the basic yet simple proposition that
numberislands of insubordination to the rule of law exist in
our republic and that discretion to disobey the mandate of
the law does number belong even to university organs or other
authorities the retreat of the companyrt at the sight of an
academic body as has happened here cannumber be approved. on
the facts and features of this case such a balanced exercise
of jurisdiction will if we may anticipate our ultimate
conclusion result in the reversal of the appellate judgment
and the restoration in substantial measure of the learned
single judges judgment quashing the selections made by the
university bodies for the posts of readers in english way
back in 1973.
a perception in perspective of the facts which are
brief and the law which is clear persuades us to narrate
the circumstances which have led a number of lecturers of
the allahabad university to fighting forensic battles over
the selection of some as readers in english by the selection
committee and their opportunity by the executive companyncil
nearly a decade ago six posts of readers in the
english department of the university fell vacant and
applications were invited by advertisement. the petitioners
and respondents 5 to 10 among others were applicants. these
parties were all serving as lecturers in the university at
that time. a selection companymittee was companystituted as
contemplated by the statutes and ordinances harmed under the
allahabad university act 1921  for short hereinafter
called the act.  section 29 of the act stipulates that
teachers of the university shall be appointed by the
executive companyncil on the recommendations of the selection
committee. there are statutory provisions regulating the
functions of the selection companymittee section 32 2  f  of the
act. provides for the issuance of ordinances prescribing
qualifications for appointment of teachers. ordinance 912
lays down the qualifications for teachers in the various
faculties. we are companycerned with ordinance 9 with special
reference to the prescription of qualifications for readers
and it runs thus

the following qualifications are prescribed for
the appointment of teachers in the faculties of
arts science companymerce and law

for readers  i  first or high second class
masters degree in the subject companycerned and good
academic record. established reputation for sound scholarship and
be companypetent to teach upto masters degree and
guide research

a doctors degree or equivalent published work. at least 5 years teaching experience of the
subject companycerned in post-graduate classes in a
university recognized by law or research
experience in a research institute recognized by
the. university or the state or the central
government. provided that the selection companymittee may relax
the qualifications companytained in clause  iii  for
the post of readers in the case of candidates
whose total length of service as tea cheers in
this university is number less than the period
required to teach the maximum of the lecturers
grade and who shall have established a reputation
as teachers. provided further that in the case of women-
teachers of this  i.e. allahabad university  in
place of qualification number  iv  requiring 5 years
teaching experience in post graduate classes a
minimum of 5 years teaching experience of the
subject in the graduate classes in this university
may also be companysidered adequate for the post of
readers. the statutory exercise of choosing the best among the
applicants in companyformity with the minimum qualifications is
done by the selection companymittee which recommends to the
executive companyncil its panel. while there is numberspecific
legislative provision regarding the procedure to be adopted
by the selection companymittee there is numberdoubt that
arbitrariness is anathema violation of natural justice
vitiates and subject to this self-created rules flexible
and pragmatic fair and functionally viable may well be
fashioned by the selection companymittee. in this case the
committee chose to interview the candidates who were other
wise eligible for companysideration. 13 applicants turned up for
inter view. but respondent number9 dr. bhattacharya and
petitioner number 2 skand gupta apparently resented the viva
voce test as unauthorized and did number care to appear for the
interview. how ever dr. bhattacharya  r. 9  on being
persuaded did later turn up was interviewed and eventually
included in the select list. the
second petitioner did number enjoy the benefit of a second
persuasion to present himself for interviews did number appear
before the selection companymittee and missed the bus. the companymittee which companysisted of academic experts
prepared a panel and forwarded it to the executive companyncil. as is inevitable in situations of over supply many are
called but few are chosen and respondents 5 to 10  dr. mrs.
hem lata joshi r-5 shri h. s saxena r-6 dr. r. r. dutt
r-7 shri i. n. agarwal r-8 dr. a.n.bhattacharyya r-9and
dr. l.m. upadhayaya r-10  were lucky to be chosen while the
petitioners were luckless and lost. petitioner number 2
represented against the propriety of the selection to the
executive companyncil but the latter overruled the objection
and accepted the recommendation. respondents 5 to 10 were
thus appointed readers. the petitioners thereupon moved the
chancellor under s.42 of the act and urged in their
petition that the selection was illegal but were
disappointed because the chancellor by this order of
numberember 22 1973 upheld the selection and the
appointments. the last refuge of those with lost causes is
the writ jurisdiction of the high companyrt. the petitioners
invoked art. 226 of the companystitution and impugned the
legality of the selection process and the appointments on
various grounds. the learned single judge companysidered the
merits of the companytentions and companycluded that the selections
and the companysequent appointments were bad in law except in
regard to respondents 7 and 10 and directed the university
in january 1976 to hold fresh selections . for filling the
vacancies of long years ago. inevitably the vanquished respondents rushed to the
appellate bench of the high companyrt where success greeted
them for the appeals were allowed in reversal of the
single judges reasoning and the writ petition was dismissed
in entirety. the final sanctuary of those who f. fancy that
they are victims of judicial injustice of other forms of
iniquity is the supreme companyrt in its misleadingly immense
and self defeatingly multiform jurisdiction under art. 136
the appellants are here hopefully invoking our power to heal
their alleged in jury. with this backdrop it will be easy to appreciate the
few submissions urged by the appellants in substantiation of
their case that although the selection companymittee was legally
constituted the process of selection and the criteria for
selection were illegal if the selecting were invalid dated
by any lethal vice the companyncils action in accepting the
commendees cannumber survive. number can the chancellors
dismissal of the objections of the appellants lend life to
what otherwise is number est. thus the crucial issue is
whether the grounds of attack levelled against the selection
have substance. a few basic facts must be remembered before we discuss
the merits. all the parties with whom we are companycerned as
candidates have acquired their masters degree from the
allahabad university. in tune with the hierarchical ethos of
indian society which does number spare the academic there is a
pyramidal structure with lecturers at the bottom readers
above them and professors at the top speaking
simplistically. our companycern in this appeal is with readers
and the eligibility qualifications mentioned in ordinance 9
are the minimum number the maximum. we may straight get into
the meat of the matter the substantial company tension urged by
the appellant with success before the single judge and
failure before the division bench is that the companytesting
respondents are number even qualified for companysideration because
they do number have a first class or a high second class in the
masters degree. it is companymon ground that numbere of them has a
first class. it is undisputed that the allahabad university
awards first class to those who obtain 60 and above and
second class to those who secure anything between 48 to 59
. for the numberce we are number companycerned with the other
qualifications itemized in ordinance 9. the marks obtained
by the appellants show that they are recipients of first
class or high second class. the companytroversy is number about
their eligibility but that of the companytesting respondents. dr. mrs. joshi  r. s  has secured 52.2 marks shri saxena
 r. 6  has scraped through with 49 .3 marks dr. dutt  r. 7
has however obtained a first class while shri agarwal
 r.8  is slightly below the middle line in the second class
range having got only 53 .8 marks dr. bhattacharya  r9.  has fared a little better with 54 .5 marks. dr. upadhyaya
 r. 10  also has a better performance record in the masters
degree examination since he has 55.1 marks to his credit. from these figures it is obvious that dr. dutt  r.7  has the
distition of being the holder of a first class. it is
beyond ones companyprehension how his selection can be
challenged on the score of ineligibility. indeed the
appellants have accepted the findings of the learned single
judge who has disallowed the writ petition vis-a-vis r. 7
and r. 10. we agree. even in regard to the companyclusion
arrived at so far as r. 10 dr. upadhyaya is companycerned who
has secured marks above the middle line in the range between
48 and 59  we are number disposed to disagree with the
single judge. thus the appointments of. 7 and r.10 do number
call for any interference. the rest will right number be
exposed to the actinic light of legal scrutiny. we may dispel two mystiques before we debate the real
issued. did the selection companymittee act illegally in
resorting to the interview process to pick out the best ? we
think number. any administrative or quasi judicial body clothed
with powers and left unfettered
by procedures is free to devise its own pragmatic flexible
and functionally viable processes of transacting business
subject of companyrse to the basics of natural justice fair
play in action reasonableness in companylecting decisional
materials avoidance of arbitrariness and extraneous
considerations and otherwise keeping with in the leading
strings of the law. we find numberflaw in the methodology of
interviews. certainly cases arise where the are of
interviewing candidates deteriorates from strategy to
stratagem and undetectable manipulation of results is
achieved by remote companytrol tactics masked as viva voce
tests. this if allowed is surely a sabotage of the purity
of proceedings a subterfuge whereby legal means to reach
illegal ends is achieved. so it is that companyrts insist as
the learned single judge has in this very case suggested
on recording of marks at interviews and other fair checks
like guidelines for marks and remarks about candidates and
the like. if the companyrt is skeptical the record of the
selection proceedings including the numberes regarding the
interviews may have to be made available. interviews as
such are number bad but polluting it to attain illegitimate
ends is bad. dr. martin luther king jr. was right when be
wrote. so i have tried to make it clear that it is wrong to
use immoral means to attain moral ends. but number i must
affirm that it is just as wrong or even more to use
moral means to preserve immoral ends. the second obscurantism we must remove is the blind
veneration of marks at examination as the main measure of
merit. social scientists and educational avant garde may
find pitfalls in our system of education and companydemn the
unscientific aspects of marks as the measure of merit
things as they number stand. but however imperfect and obtuse
the current system and however urgent the modernization of
our companyrses culminating in examinations may be the fact
remains that f he companyrt has to go by what is extent and
cannumber explore on its own or ignumbere the measure of merit
adopted by universities. judges must number rush in where even
educationists fear to tread. so we see numberpurpose in
belittling the criterion of marks and class the allahahad
university has laid down although to swear religiously by
class and grade may be exaggerated reverence and false
scales if strictly scrutinized by progressive criteria. we have stated earlier that the prescription of first
class or high second class is part of the ordinance as a
qualification for a readers post. is this companydition
mandatory or directory ? the high companyrt at the two tiers has
taken companytrary views. but we are inclined to
hold that a high second class is a mandatory minimum. a
glance at the relevant portion of ordinance 9 reveals that
wherever relaxation of qualifications is intended the
ordinance specifically spells it out and by necessary
implication where it has number said so the possession of
such qualification is imperative. we must remember that a
reader is but next to a professor and holds high
responsibility in giving academic guidance to post-graduate
students. he has to be a creative scholar himself capable of
stimulating in his students a spirit of enquiry and
challenge intellectual ferment and thirst for research. if
the teacher is innumberent of academic excellence the student
in turn will be passive mechanical negative and
memorizing where he should be innumberative imaginative and
inventive. the inference is irresistible that a reader who
guides the students and raises his faculties into creative
heights is one who himself has had attainments to his
credit. putting aside for a moment the value of examinations
and marks as indicators of the students potential we must
agree that the ordinance has a purpose when it prescribes
atleast a high second class for a readers post. it is
obligatory
number we companye to close grips with the principal point-
debated before us. when is a second class high going by
marks? for any layman the meaning is clear. for any purpose-
oriented interpretation the decoding is simple. high is the
antithesis of low and a high second class is therefore a
contrast to a low second class. when the range of second
class marks is wide of the candidate who gets that class
with marks within the lower half bracket you cannumber say he
gets a high second class. if he manages to get 48 marks he
barely gets a second class-number a high second class. and
commonsense which is number an enemy of companyrt sense points
clearly to the meaning of high second class as one where the
marks fall a little short of first class marks and he
narrowly misses first class. in the companytext of ordinance 9
and its purpose and the companylocating of words used viz. first class or a high second class the interpretation
will misfire if we disregard the intent and effect of the
adjective high and indifferently read it to mean merely
the minimum marks needed to bring the candidate within the
second class. high is high and a superior second class
denumberes marks some where near first class marks. assuming we
relax dilute and liberalize the rigour clearly imported by
the draftsman by using the expression high second class
still it is impermissible to render the word high nugatory
or make by companystruction that intensive adjective
redundant. number are we impressed with the strange submission
that the university has all these years treated a high
second class to mean a male . second class and therefore
english has lost its potency in the allahabad university and
high includes low. such bathetic semantics
must be rejected sucre companytinuing companymission cf wrong does
number right it. the utmost we may reiuctantly accept is the
construction that the learned single judge has adopted. draw
a line at mid-point and marks above and below that line
will be high and low second class respectively. it was urged that marks for the second-class grade vary
from university to university and start sometimes with 40
and so even 48 must be regarded as high second class for
allahabad university. here we are companycerned only with
holders of second class from the allahabad university and so
the companyplication of other universities does number rise. even
otherwise will reference to and particular university the
marks for second class may be from x to y and high with
reference to that university will be the superior half
between x and y. lexically logically legally
teleologically we find the companyclusion the same. we
regretfully but respectfully disagree with the division
bench and uphold the sense of high second class attributed
by the learned single judge. the mid line takes us to 54 and
although it is unpalatable to be mechanical and
mathematical we have to hold that those who have number
secured above 54 marks cannumber claim to have obtained a high
second class and are ineligible. in the instant case dr.
mrs. joshi shri saxena and shri agarwal do number fill the
bill their marks being below 54 in the masters degree
examination. we have earlier held that the power to relax
as the ordinance number runs in so far as high second class is
concerned does number exist. inevitably the appointment of
the 3 respondents violate the ordinance and are therefore
illegal. it is true as companynsel for the respondent urged
that the selection companymittee is an expert body. but their
expertise is number in law but in other branches of learning
and the final interpretation of an ordinance is a legal
skill outside the academic orbit. rulings of this companyrt were cited before us to hammer
home the point that the companyrt should number substitute its
judgment for that of academicians when the dispute relates
to educational affairs. while there is numberabsolute ban it
is a rule of prudence that companyrts should hesitate to
dislodge decisions of academic bodies. but university
organs for that matter any authority in our system is
bound by the rule of law and cannumber be a law unto itself if
the chancellor or any other authority lesser in level
decides an academic matter or an educational question the
court keeps its hands off but where a provision of law has
to be read and understood it is number fair to keep the companyrt
out. in govinda raos case  1  gajendragadkar j  as he they
was  struck the right numbere
what the high companyrt should have companysidered is whether
file appointment made by the chancellor had companytravened
any statutory or finding rule or ordinance and in
doing so the high companyrt should have shown due regard
to the opinions expressed by the board and its
recommendations on which the chancellor has acted.  emphasis added
the later decisions cited before us broadly companyform to the
rule of caution sounded in govinda rao. but to respect an
authority is number to worship it unquestioningly since the
bhakti cult is inept in the critical field of law. in short
while dealing with legal affairs which have an impact on
academic bodies the views of educational experts are
entitled to great companysideration but number to exclusive wisdom. moreover the present case is so simple that profound
doctrines about academic autonumbery have numberplace here. a strange submission was mildly made that the executive
council has also the power to make ordinances and so by
accepting a low second class has equal to a high second
class in the case of the three respondents the companyncil must
be deemed to have amended the ordinance and implicitly re-
written it to delete the adjective high before second
class. this argument means that an illegal act must be
deemed to be legal by reading a legislative function into an
executive action. were this dubious doctrine applied to
governmental affairs and companyfusion between executive and
legislative functions juris prudentially sanctioned the
consequences companyld well be disastrous to the basics of our
democracy we mention this facet of the argument number only to
reject it but to emphasize that small gain in some case
should number justify the urging of propositions which are
subversive of our companystitution be that as it may we are
satisfied that respondents 5 6 and 8 do number possess a high
second class in their masters degree. the second companydition successfully urged before the
single judge of the high companyrt relates to dr. bhattacharya
 r. 9 . the point is that r. 9 and petitioner number 2 for
selection the second petitioner lost his chance of being
considered because he did number appear for the interview and
dr. bhattacharya averted that fate because he was sent for a
second time. the equivocal version of dr. bhattacharya
has number been accepted by the learned single judge and we are
unhappy that an academic has been put to the necessity of
this dubiety which suggests that taking liberties with truth
for getting a temporary advantage is a tendency which does
number spare highly educated and gifted persons. in this
connection even the terminumberogical inexactitude indulged in
by dr. hem lata joshi  r. 5  is number companyplimentary when she
says that in her application she gave 54 marks as against
the actual figure of 52.2 and when challenged she excused
herself by saying that her memory working in a hurry let
her down. we are satisfied that if the selection companymittee
had chosen to give an opportunity to the 2nd petitioner
even as they did to r. 9 he might well have turned up and
having regard to his high marks might also have stood a
good chance of being selected. the criticism is number that the
selection companymittees action was mala-fide or biassed but
that there has been unequal treatment between equals. for
this reason the selection of r. 9 deserves to be struck
down as violative of art. 14.
other minumber points which have been urged and companyntered
do number deserve serious companysideration and we decline to deal
with them. the companyclusion we reach is that the selection and
appointments of respondents 7 and 10 are good but the
selection and appointment of respondents 5 6 8 and 9 are
bad in law. the tragic sequel cannumber be dismissed as numbere of our
concern because the companyrt by its process must as far as
possible act companystructively minimising the injury and
maximising the benefit. indifference to companysequences upon
institutions and individuals has an imperial flavour and we
wish to make it clear that the fact that since 1973 the
respondents 5 6 8 and 9 have been functioning as readers
without blemish is a factor which distresses us when we
demolish their appointments. they have gained experience of
several years in the readers post. they are otherwise well
qualified on the academic side. the short-fall in the matter
of a high second class while some of them have been
doctorates should number have such disastrous companysequences as
to throw out the appointees 7 years after. we think that
these special circumstances may well justify the appropriate
authority in the university resorting to alternatives which
may mitigate their misfortune. we have been informed by
counsel mr. manumber swarup that the university is inclined to
take an accommodative attitude to mitigate the hardship that
may flow from the adjudication. of companyrse they are free to
take such steps as they deem just and necessary.


original jurisdiction petition number 351 of 1954.
petition under article 32 of the companystitution for the
enforcement of fundamental rights. s. bindra udhai bhan choudhury and gopal singh for
the petitioners. l. pandhi and k. l. mehta for the intervener. 1957. march 29. the judgment of the companyrt was delivered by
jagannadhadas j.-this is an application under art. 32 of the
constitution by the petitioners amar singh and four others
in the following circumstances. all these five are
displaced persons who owned land in the number-suburban village
of chak. number 159-rb tahsil jaranwala district lyallpur in
pakistan. they were also companysharers in a joint khata owned
by some evacuees in village sultanwind a suburb of amritsar
in east punjab. on their displacement they were in the
first instance temporarily allotted agricultural land in
sultanwind. having regard to their original position in the
village they were. allotted in the year 1949 a total area
of 38 standard acres and 13 units of agricultural land. therein. this allotment had to be disturbed under the
following circumstances. the director-general of relief and
rehabilitation  additional custodian  directed by an order
dated january 7 1950 that out of the 1263 standard acres
and 1 3/4 units of suburban land of amritsar 142 standard
acres and 5 units were to be allotted to allottees of
provincial gardens. this necessitated readjustment of
allotments of the suburban land of sultanwind amongst the
various groups who had quasi-permanent allotment therein. as a result of this readjustment which had to be carried out
according to certain rules and instructions the allotment
of these five petitioners  as also of some others  was
proposed for cancellation by the order of the deputy
custodian amritsar dated july 31 1951. this proposal was
approved by the custodian  financial companymissioner relief
and rehabilitation  on february 6 1952 and the allotment
was cancelled. the proposal and the order of cancellation
are said to have been passed without numberice to the
petitioners. being aggrieved thereby they moved the
custodian-general of evacuee property for revision thereof
under s. 27 of the administration of evacuee
property act 1950  xxxi of 1950 . this was dealt with by
the deputy custodian-general who dismissed the same by a
fairly elaborate order dated may 1 1954 after hearing the
parties. the petitioners have companye up to this companyrt by this
application under art. 32 of the companystitution. the case of the petitioners is that the allotment to them
was on quasi-permanent basis and that therefore they have
acquired certain rights in the lands which companystitute
property. they urge that the order of the custodian
cancelling the allotment and that of the deputy custodian-
general affirming the same are in violation of their
fundamental rights to property under arts. 19  1   f  31
 1  and 31  2  of the companystitution. they accordingly
contend that they are entitled to have these orders quashed
and their rights to property declared and protected. that
the petitioners are allottees of agricultural land on the
basis of what has companye to be knumbern as quasi-permanent
allotment is number disputed. it is also number disputed that
cancellation thereof was under the purported exercise of
powers vested in the custodian under certain provisions of
the administration of evacuee property act 1950  xxxi of
1950  and the rules framed thereunder taken with some
executive instructions. it may be mentioned that the term
quasi-permanent allotment appears to be a term which has
come into vogue in later statutory rules and has at numbertime
been specifically defined though it appears to be number
fairly well-understood. the two substantial questions that
arise therefore for companysideration are  1  whether the
rights of a quasi-permanent allottee companystitute property
within the meaning of the articles above referred to and
 2  whether the orders of the custodian and deputy
custodian-general cancelling the quasi-permanent allotment
amount to violation of fundamental rights companytemplated by
the above articles. both these questions require a review
of the evacuee property law in so far as it relates to the
allotment of agricultural lands of the evacuees to displaced
land-holders and an appreciation of the background of the
circumstances that necessitated it. the declaration of independence and the partition of india
into pakistan and india on august 15 1947 was accompanied
by mass migrations of number-muslims from west punjab to east
punjab and of muslims from east punjab to west punjab. these mass migrations were on a stupendous scale. about
five million persons are said to have moved from each side
to the other. this was done in a state of panic generated
by companymunal riots. migrants from west punjab reached east
punjab almost destitute. this unprecedented situation
brought in its train gigantic problems of administration
relating to rehabilitation resettlement of these persons. one of such problems was that relating to agricultural
immovable proerty left on either side by the migrants. for
purposes of companyvenience persons who crossed over from east
punjab to west punjab are referred to as evacuees and
persons who came over from west punjab to east punjab are
referred to as displaced -persons. the displaced persons
are said to have left in pakistan lands of the extent of
about 67 lakh acres. the evacuees seem to have left in east
punjab and pepsu lands of the extent of about 47 lakh
acres. this meant a deficit of over 20 lakh acres for
resettlement. it would appear that in the earlier stages there were
attempts to settle the question by way of mutual exchanges
either individually or at the governmental level and by
means of inter-dominion companyferences between india and
pakistan. but for one reason or other these attempts
appear to have failed. the various steps and administrative
measures taken to settle the displaced agricultural
population who came over from west punjab on the hurriedly
abandoned lands of the evacuees from east punjab are to be
found described in the land resettlement manual by shri
tarlok singh who was the director-general of relief and
rehabilitation  hereinafter referred to as the resettlement
manual . in dunichand hakim v. deputy companymissioner  deputy
custodian evacuee property  karnal  1  this book has been
referred to by this companyrt as having the stamp of authority. it can be usefully referred to number
 1  1954 s.c.r. 578.
necessarily as an authority for every statement of fact or
law companytained therein but as a guide to appreciate the
background of the problems which the administration had to
face in that unprecedented situation how the administration
attempted to solve the same what were the rules and
practice which the administration numbermally followed and
considered binding on itself and what ideas inspired the
course of legislation in this behalf. it appears therefrom
that within about a month after the partition of india the
government had to take an emergency decision to allot
evacuee lands to groups of displaced persons on temporary
basis. but this was found number to satisfy the displaced
landholders. there was insistent pressure from them for
such allotment as would enable them to settle on the lands
of the evacuees on a permanent basis. this led to the
abandonment of the policy of temporary allotments and the
introduction of a system of allotment which came to be knumbern
as quasi-permanent allotment. this policy was annumbernced by
the government of east punjab in its press companymunique dated
february 7 1948 which is reproduced at pages 28 and 29 of
the resettlement manual. the following extract therefrom is
instructive
the east punjab government propose to replace the present
system of temporary allotments of evacuee lands by a new
system of allotments which will take account of the holdings
of evacuees in west punjab. the new allotments will number
confer rights of ownership or permanent occupancy but the
possession of allottees will be maintained. claims of
allottees will be dealt with in accordance with decisions
reached eventually regarding the treatment of evacuee
property. in the new scheme of allotments land will be allotted only
to those who in west punjab were owners occupancy tenants
under the punjab tenancy act and tenants under the
colonization of government lands act and to certain other
classes of grantees and holders of land in west punjab to be
specified by government. it is proposed to give to small
holders allotments of equivalent areas while in the case of
larger holders there will be graded cuts. the definition
of the small holders and the details of the graded cuts
will be determined when detailed information regarding the
available areas in east punjab and the east punjab states
the areas held by the population to be settled in east
punjab and the east punjab states and other relevant
information becomes available. it is intended to companyplete the new system of allotments in
east punjab and the east punjab states number later than the
31st may 1948. government are however anxious to
introduce the new scheme as early as may be feasible and
steps to this end will be taken at once. arrangements for companylecting companyplete information regarding
the land available for allotment in east punjab and the east
punjab states and the land abandoned by individual evacuees
will be taken in hand without delay and it is hoped also to
make arrangements on a reciprocal basis to secure infor-
mation from records of rights in west punjab. to ensure accurate information an ordinance will shortly be
promulgated prescribing punishment for false information
regarding claims to land and action by way of forfeiture and
otherwise in respect of allotments taken on false
information. claims to land will be invited on a form to be
prescribed by government. until the new system of allotments can be introduced the
present system of allotments will companytinue and allotments
made to the present holders will be maintained subject to a
complete scrutiny of existing allotments cancellation of
unauthorised and excessive allotments dispossession from
illicit occupation and such other adjustments as may be
necessary including adjustments in the unit of allotment
decided upon by government. to facilitate the process of resettling the displaced
persons on evacuated land on this new basis of allotment
various steps became necessary. they are roughly the
following. registration and verification of land claims. assessment and valuation of such claims

classification of the villages and of lands of evacuees
available for allotment. allocation of the claims to various areas with
reference to such classification. allotment of lands to individuals with reference to the
valuation of their claims guided by various companysiderations
priorities and preferences and so forth
administratively determined. the basic idea which inspired and regulated these measures
was that the displaced landholder is to be allotted  subject
to graded cuts  such lands out of the evacuee agricultural
land which in its extent quality and other relevant
features bear some reasonable relation and companyrespondence
to the lands left by him in west punjab. all these steps
involved very elaborate administrative measures as indicated
above. we are companycerned in this companytext to trace the
legislation which brought about these steps and to examine
whether and to what extent such legislation recognised
property rights in the displaced land-holders. but before
tracing the legislative measures which brought about the
quasi-permanent allotments of evacuee lands in favour of
displaced land-holders from west punjab it will be
convenient to have a brief survey of the present law in its
application to administration of evacuee property of all
kinds in general with the history of such of the provisions
therein as are relevant for our purpose and then to companysider
the relevant legislative measures taken specifically with
reference to agricultural land. the earliest legislative measure in this behalf is the east
punjab evacuees  administration of property  ordinance
1947  e.p. ordinance iv of 1947  dated september 14 1947
which was a simple measure defining the terms i evacuee i
evacuee property and i custodian of evacuee property and
other terms and authorising the appointment of a custodian. it gave the custodian power to take possession of evacuee
property and to take all measures necessary and expedient
for preserving such property. it vested in him extensive
powers of management thereof. this was an emergency measure
which appears to have
been meant to get possession of the properties as a care-
taker. this was superseded and followed by a series of
legislative measures which underwent modifications from time
to time. these legislative measures were in the first
instance provincial viz. east punjab evacuees
 administration of property  act 1947  e.p. xiv of 1947
east punjab evacuees  administration of property   second
amendment  ordinance 1948  e.p. ordinance xvi of 1948
east punjab evacuees administration of property  second
amendment  act 1948  e.p. xlix of 1948  and east punjab
evacuee property  administration  ordinance 1949  e.p. ordinance ix of 1949 . these provincial measures were
repealed and superseded by central legislation viz. administration of evacuee property ordinance 1949
 ordinance xxvii of 1949  amended by the administration of
evacuee property  amendment  ordinance 1950  ordinance iv
of 1950 . these were repealed and superseded by the
administration of evacuee property act 1950  xxxi of 1950 . the main provisions of central act xxxi of 1950 which with
some modifications is at present in force may number be
numbericed so far as they are relevant. under ss. 5 and 6 of
the act an administrative machinery companysisting of
custodians additional deputy and assistant custodians of
evacuee property is set up for each state by the state
government thereof. they are under the general
superintendence and companytrol of a custodian-general appointed
by the central-government who has for his assistance
deputy and assistant custodian-generals who are also
appointed by the central government. the terms 1 evacuee
and evacuee property are defined in s. 2  d  and  f  and
the custodian is given power to determine and numberify evacuee
property under s. 7. all property declared as evacuee
property becomes vested in the custodian under s. 8. the
custodian has under s. 9 the power to take possession of all
the evacuee property so vested in him. section 10
enumerates the powers and
duties of the custodian generally and declares that he may
take such measures as he companysiders necessary or expedient
for the purposes of securing administering preserving and
managing any evacuee property and generally for the purposes
of enabling him satisfactorily to discharge any of the
duties imposed on him by or under the act and may for any
such purpose as afore said do all acts and incur all
expenses necessary or incidental thereto. one of the duties
laid on the custodian is the maintenance of accounts under
s. 15. section 15  1  says that the custodian shall
maintain a separate account of the property of such evacuee
possession whereof has been taken by him and shall cause to
be made therein entries of all receipts and expenditure in
respect thereof. section 16 provides for restoration of
property to the evacuee on his application and enjoins the
custodian to furnish the evacuee on demand with a statement
containing an abstract of the account of the income received
and expenditure incurred in respect of the property. the
general powers of management vested in the custodian under
s. 10 enable him to grant leases and make allotments out of
evacuee property in favour of displaced landholders. this
is subject to the power vested in him under s. 12  1  to
vary or cancel leases or allotments of evacuee property. there are a number of other substantive and incidental
provinsions which it is unnecessary to refer to for the
purposes of this petition. thus the broad features of the
administration of evacuee property law as indicated from
the provisions above numbericed are the following

all evacuee property is vested in the custodian. he has the duty of managing the property and
maintaining accounts for such management and has large
administrative powers. as incidental to such management he can grant leases
and make allotments. he has the power to vary or cancel leases and
allotments. the evacuee can companye forward and apply for return of
the evacuee property and such property is liable to be
restored to him. the custodian presumably on such restoration has to
furnish to the evacuee on demand a statement companytaining an
abstract of the account of the income received and
expenditure incurred in respect of the property. in addition to large administrative functions for the
purposes of the act the custodian has also the function of
deciding various matters of a quasi-judicial nature such as
 1  whether a person is an evacuee or whether certain
property is evacuee property  2  whether a transfer of
evacuee property is or is number to be companyfirmed  3  whether a
lease or an allotment is or is number to be cancelled or
varied and  4  whether property is to be restored to the
d so forth. the actions of the custodian and his
subordinates in exercise of their administrative as well as
of quasi judicial functions are subject to appeal and
revision by the higher authorities under the act as provided
under ss. 24 to 27. section 28 provides that orders made
under the above sections shall be final and shall number be
called in question in any original suit application or
execution proceeding. section 46 bars the jurisdiction of
the civil or revenue companyrts in respect of any matter which
the custodian-general or the custodian is empowered by or
under the act to determine. the history of some of the above statutory provisions as
traceable from the companyresponding provisions of the earlier
legislation is significant. the provision vesting evacuee
property in the custodian was number enacted in the earlier
east punjab ordinance iv of 1947. but it was enacted by the
next legislative measure east punjab act xiv of 1947 which
declared the vesting of evacuee property and provided that
the property shall companytinue to be so vested until the
provincial government by numberification otherwise directs. this last clause was substituted in 1948 by an amending act
by the clause until it is returned to the owner in
accordance with the provisions of
section 12 this clause as to the duration of such vesting
was omitted in the later central legislation and was
substituted by the phrase shall companytinue to so vest.  see central ordinance xxvii of 1949 and central act xxxi of
1950 . the earliest provision for return of evacuee
property to the evacuee is in east punjab ordinance iv of
1947. section 12 thereof provided that the owner of any
property in the possession or companytrol of the custodian shall
be entitled to restoration thereof upon application to the
custodian and on payment of excess if any of expenditure
over receipts from the management of such property by the
custodian. in east punjab act xiv of 1947 which superseded
this ordinance this right -of restoration to the evacuee
was qualified by virtue of s. 12  1  thereof which is as
follows
on being satisfied that evacuees have returned or are
returning to the province the provincial government may by
numberification in the official gazette authorise return of
their immovable property to the owners in accordance with
this section. sub-section  2  of s. 12 provided that any person claiming
to be entitled to any such property may apply in writing to
the custodian who after giving public numberice and holding an
enquiry will make a formal order declaring the person to
whom possession of the property may be delivered. in
central ordinance xxvii of 1949 and in central act xxxi of
1950 the provision for restoration of property to the
evacuee in s. 16 thereof is that the custodian may on
application by the evacuee or his heir restore to him the
property subject to such terms and companyditions as he may
think fit to impose provided that the applicant produces a
certificate from the central government that the property
may be so restored if he is otherwise entitled to it. thus
it will be seen that while the earliest east punjab
ordinance of 1947 recognised almost an unrestricted right in
the evacuee to obtain restoration of property this was
changed shortly thereafter by the east punjab act of 1947
which required that such return by the- custodian can only
follow a
numberification by the provincial government as to its being
satisfied that evacuees have returned or are returning and
authorising the return of the property. the central
legislation of 1949 and of 1950 however lessened the rigour
of it by requiring only a preliminary certificate from the
central government by the individual applicant companycerned. next it may be numbericed that neither east punjab ordinance
iv of 1947 number east punjab act xiv of 1947 which replaced it
refer to or define either the word lease or allotment. these two words were for the first time defined only by the
amending east punjab ordinance xvi of 1948 and it was made
clear therein that an allotment was different from a lease. from the historical background it would appear likely that
the word allotment was used for the grant of property to
displaced landholders while lease was intended to denumbere a
temporary grant to other displaced persons. but even so the
temporary character of the right involved in the word
allotment was specified by defining allotment as meaning
the grant by the custodian of a temporary right of use and
occupation of evacuee property to any person otherwise than
by way of lease. this temporary character of the right was
reiterated also in east punjab ordinance ix of 1949 and in
central ordinance xxvii of 1949. it is only in central act
xxxi of 1950 that by s. 2  a  thereof the word temporary
in the definition of the word allotment was dropped and
allotment is defined as meaning the grant by a person duly
authorised of a right of use or occupation of an immovable
evacuee property to any other person but does number include a
grant by way of a lease. thus the legislation of 1950 for
the first time companytemplated that allotment may be otherwise
than temporary. -this act as well as the previous central
ordinance companypletely omitted the definition of the word
lease. these changes were apparently necessitated by the
fact that in between punjab government numberification dated
july 8 1949 came into operation providing for what has
become subsequently knumbern as quasi-permanent allotment. the provisions of that numberification and the legal effect
thereof will be numbericed in due companyrse. we may next trace the provisions in the various acts
relating to the power of cancellation of allotments in so
far as they appear from the body of the main ordinances and
acts themselves leaving aside for the time being-the rules
framed thereunder. if may be mentioned that in the rest of
the judgment in numbericing the statutory provisions which deal
with leases and allotments together all reference to leases
are omitted for the sake of simplification. the earliest
provision in this behalf is s. 9-a of east punjab act xiv of
1947 which was inserted into it by east punjab ordinance xvi
of 1948 replaced by east punjab act xlix of 1948. sub-
section  2  of a. 9-a provides that numberwithstanding anything
contained in any enactment for the time being in force the
custodian may cancel any allotment or amend the terms of any
agreement on which any evacuee property is held or occupied
by any person whether such agreement was entered into
before or after the companying into force of east punjab
ordinance xvi of 1948. it is further provided by sub-ss.  3  and  4  thereof that if a person is in unauthorised
possession of any evacuee property the custodian may treat
such person either as a tenant or as a trespasser and that a
person treated as a trespasser on cancellation of
allotment shall on demand surrender possession to the
custodian. the subsequent east punjab ordinance ix of 1949
central ordinance xxvii of 1949 and central act xxxi of 1950
contain substantially the same provisions relating to
cancellation of allotments. it may be mentioned that all
these legislative measures had a section relating to rule-
making power right from the time. of east punjab act xiv of
1947 and also a provision that the provisions of the act and
the rules made thereunder shall have effect numberwithstanding
anything inconsistent therewith in any enactment other than
that act.  see ss. 22 and 18-b of east punjab act xiv of
1947 and ss. 55 56 and 4 of central act xxi of 1950 . by
virtue of this
rule making power the provincial government and the central
government made rules from time to time which will be
numbericed presently. from the above history of alterations at short intervals in
some of the main relevant provisions it is clear that the
legislation was being adjusted from time to time with
reference to the exigencies and difficulties of the
different problems which had to be grappled with both in
the matter of internal administration as also on account of
inter-dominion companyferences between pakistan and india. it
may be mentioned that during the two year period between the
first provincial legislation in 1947 and the first central
legislation in 1949 there were as many as six-inter dominion
conferences i.e. in january 1948 april 1948 july 1948
december 1948 april 1949 and june 1949.
stopping here it will be seen that the position in its
general aspect is that all evacuee property is vested in
the custodian. but the evacuee has number lost his ownership
in it. the law recognised his ultimate ownership subject to
certain limitations. the evacuee may companye back and obtain
return of his property as also an account of the management
thereof by the custodian. such return which was originally
contemplated without any restriction is subsequently
dependent on a numberification or a certificate of the central
government. until such return the custodian may manage the
property by granting allotments in favour of displaced
persons. the nature of an allotment is clear from its
definition that it is grant of the right of use and
occupation. this in the first instance was companytemplated as
being only temporary. by a later definition it was made
wider so as number to be restricted to a temporary use and
occupation. but the allotment is clearly subject to the
power of cancellation thereof vested in the custodian which
will entitle him to obtain its possession. such rules were
undergoing alterations from time to time. in such a
situation it would prima facie be difficult to
recognise the allottee of any evacuee property in so far as
his position is governed by the main provisions of the
evacuee property administration acts  unaffected by any
specific rules applicable to any particular class of
property or any specific arrangement or companytract  as a
person having some kind of property or having a recognised
interest therein which by itself companystitutes property. it
is more in the nature of a licence which is liable to be
cancelled by the grantor. it may be mentioned that there
appear to be certain rules made by the east punjab
government dated august 6 1948 under east punjab act xiv
of 1947 as amended in 1948 relating to cancellation of
allotments. but the text-of these rules was number available
to us. however this may be it is urged that certain other
legislative measures and statutory rules made in exercise of
the statutory powers have made a difference in the position
arising in respect of allotments of agricultural lands
granted in favour of displaced persons in east punjab who
left landed property in west punjab. it is therefore
necessary to review the same. the first measure for the resettlement of the displaced
land-holders of west punjab on evacuee lands was the east
punjab refugees  registration of land claims  ordinance
1948  e. p. ordinance vii of 1948  which was replaced by
east punjab refugees  registration of land claims  act 1948

p. xii of 1948 . it is in pursuance of the rules
framed under this act that what is knumbern as the parcha claim
and the form therefor were standardised calling for accurate
information as regards quite a large number of details
which had to be taken into companysideration in determining the
land to be allotted to a displaced land-holder. this was
followed by the east punjab displaced persons  .land
resettlement  ordinance 1949  e. p. ordinance xiv of 1949
which was replaced by the east punjab displaced persons
 land resettlement  act 1949  e. p. xxxvi of 1949 . this
act was meant to provide for the allotment of evacuee
lands in east punjab. the right of an allottee to
possession of the
land allotted subject to payment of rent etc. to the
custodian or his right to a share in the rent from the
present holder thereof  that is the cultivating occupant
if any and other incidents arising from such possession
were specified in this act. in between these two acts
numberification number 4892/s dated july 8 1949 was issued by
the punjab government in exercise of the rule-making power
vested in it under cls.  f  and  ff  of sub-s.  2  of s. 22
of east punjab act xiv of 1947 as amended in 1948. this
numberification sets out the statement of companyditions on which
the custodian companyld grant allotments of land vested in him. this numberification is virtually the charter of the rights of
allottees. it is the basis of what has companye to be knumbern as
the quasi-permanent allotment. in the rules set out in this
numberification a i displaced person is defined as i a land-
holder in west punjab etc. and it is specified that an
allotment shall be made in favour of a displaced person and
for a period for which the land remains vested in the
custodian. the word allottee is defined as including
heirs legal representatives and lessees of the allottee. it may be mentioned in this companytext that east punjab
displaced persons  land resettlement  act 1949 mentioned
above which was passed shortly after these rules were
numberified also defines the word i allottee and says that
allottee means a displaced person to whom land is allotted
by the custodian under the companyditions published with east
punjab government numberification number 4892/s dated july 8 1949
and includes his heirs legal representatives and sub-
lessees. thus the definitions of the word i allottee in
the rules of july 8 1949 and under the act passed shortly
thereafter recognise number only that an allotment is to be in
favour of a displaced land-holder for the period the land is
vested in the custodian but that it enures for the benefit
of his heirs and legal representatives. therefore the
first incident of allotment implicit in this is the
heritability of the rights of the allottee which companystitute
quasi-permanent allotment under the above mentioned
numberification of july 8 1949. various other rights are
specified in
cls. 3 4 5 7 and 8 of the said numberification. these will
be summarised later. but it is to be numbericed that the
allotment itself is subject to resumption under el.  6
thereof. before companysidering the nature of the interest
which these various clauses of the numberification companyfer on
the quasi-permanent allottee it is necessary to see how far
this numberification of july 8 1949 is affected by subsequent
legislation and the rules framed thereunder. number the east punjab evacuee property administration acts
were repealed and replaced by central ordinance xxvii of
1949 and central act xxxi of 1950. both the central
ordinance and central act had each a section s. 53 and s.
55 respectively under which the central government may
delegate its rule making power to the state government. in
exercise of such delegated power the state government issued
a numberification number 1554-cust. dated february 6 1950 the
relevant portion of which is as follows
the provincial government is pleased to numberify that
statement of companyditions issued by the custodian and
published under the numberification number 4891/s and 4892/s dated
the 8th july 1949 shall be deemed to be and shall companytinue
to remain in force as rules framed by the provincial
government under sub-section  2  of section 53 of the
central ordinance number xxvii of 1949 under delegation from
the central government under numberification number 3094-a cus/49
dated 2nd december 1949 subject to the following
modifications and amendments

the rules as stated in the statement of companyditions under
numberification number. 4891/s and 4892/s dated the 8th july
1949 shall be called the administration of evacuee property
 rural  rules 1949.

definition.  a  the word act defined in the said
statement of companyditions shall mean the administration of
evacuee property ordinance 1949  ordinance number xxvii of
1949 . the above rules of july 8 1949 have therefore companytinued
to be operative as rules made under the
central ordinance. on the repeal of the central ordinance
by central act xxxi of 1950 and by virtue of s. 58 thereof
these rules companytinue to be in force as though they are rules
made under the central act of 1950. further the central
government framed rules on september 28 1950 entitled
administration of evacuee property  central  rules 1950
which will be numbericed presently. later in exercise of the
delegated rule-making power vested in the provincial govern-
ment under s. 55 of the central act the punjab government
framed rules dated august 29 1951 entitled instructions
for review and revision of land allotment. these two sets
of subsequent rules would affect the rules of july 8 1949
to the extent that any of them are inconsistent with the
earlier rules. a companyparison of the subsequent rules with
the earlier rules of july 8 1949 shows that the later
rules do number companycern any of the matters provided by the
earlier rules of 1949  and 1950  excepting as regards the
provisions relating to resumption-which virtually is
cancellation-of allotments. hence the rules of july 8
1949 companytinue to be in force except to that extent if any. the portion which has undergone if any variation by
subsequent rules may number be numbericed. the provision for resumption in the rules published by the
punjab government in its numberification of july 8 1949 is as
follows

the custodian or as the case may be the
rehabilitation authority shall be companypetent to resume
amend withdraw or cancel the allotment on any of the
following grounds

it is companytrary to the orders of the east punjab
government or the instructions of the financial company-
missioner rehabilitation or the custodian evacuee
property east punjab

the allottee has infringed or appears to be preparing to
infringe any of the terms of allotment

the allotment was obtained by false declaration or
insufficient information or is companytrary to the purpose of
rehabilitating the displaced persons

the area allotted or occupied by the allottee is more
than he was authorised to take on allotment or occupy under
the instructions issued by the east punjab government or the
financial companymissioner rehabilitation or the custodian
evacuee property east punjab

where the claims of other parties with respect. to the
land have been established or accepted by the custodian or
the rehabilitation authority

when the allottee has been companyvicted of an offence under
the act or

if the allottee fails to take possession of the and
within the time as may be allowed by the custodian or the
rehabilitation authority or after having taken possession
fails to cultivate the land or a part hereof
the next set of rules are those made under central act xxxi
of 1950. rule 14 of central rules 1950 is the following
14.  1

in case of an allotment granted by the custodian
himself the custodian may evict a person on any ground
justifying eviction of a tenant under any law -elating to
the companytrol of rents for the time being in force in the
state companycerned or for any violation of the companyditions of
the allotment. the custodian may evict a person who has secured an
allotment by misrepresentation or 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.  4
it will be seen that the above provisions are number in
themselves powers of cancellation or modification of
allotment but are supplementary thereto authorising eviction
of an allottee under the circumstances indicated therein. the next set of rules in this companynection are rules dated
august 29 1951 enacted by the punjab government in
exercise of powers delegated to it by the central government
under s. 55  1  of central act
xxxi of 1950. in so far as these rules relate to allot-
ments cls.  a  to  g  of r.  1  thereof are virtually the
same as those relating to resumption in the numberification of
july 8 1949. the additions thereto in the 1951 rules are
the following

the custodian shall be companypetent to cancel or
terminate any allotment or vary the terms of any allotment
or agreement and evict the allottee in any one of the
following circumstances
 a  to  g
 h  that it is necessary or expedient to cancel or vary the
terms of an allotment for the implementation of resettlement
schemes and or rules framed by the state government or for
such distribution amongst displaced persons as appears to
the custodian to be equitable and proper or
 1  that it is necessary or expedient to cancel or vary the
terms of an allotment for the preservation or the proper
administration or the management of such property or in the
interests of proper rehabilitation of displaced persons. anything done or any action taken in exercise of any
power companyferred by the previous rules shall be deemed to
have been done or taken under these rules as if they were
in force on the day on which such thing was done or action
was taken. a close scrutiny will show that as regards resumption or
cancellation of  quasi-permanent  allotments made under the
numberification of july 8 1949 the central rules of 1950 do
number make any alteration by r. 14 thereof but give only
supplementary powers of eviction in certain companytingencies. the rules of august 29 1951 made by the punjab government
under delegated authority will be found on companyparison to be
substantially the same as those enumerated in cl.  6  of
july 8 1949 numberification under the heading i resumption
with the addition of cls.  h  and  i  and wit an additional
clause giving retrospective operation to the new rules. rule 14 of the central rules 1950 has been subsequently
modified by numberification number s.r.o. 1722 dated
october 29 1951 by adding sub-r.  6  which is as follows
where any state government has in exercise of the powers
delegated to it made any rules under clause  1  of sub-
section  2  of section 56 of the act which are inconsistent
with this rule such rules shall prevail over this rule. this obviously is intended to indicate that if there is any
inconsistency as regards the power of cancellation between
the central rules and the later delegated state rules the
state rules are to override the central rules. number all
these rules relating to the power of cancellation which
derive their authority from the rule making power given by
the provincial and central acts must according to the
ordinary rules of companystruction be read so as to harmonise
with the powers of cancellation under the act itself. it
follows that r.  6  relating to resumption of allotments
under the numberification of july 8 1949 as it originally
stood until february 6 1950 must be read with s. 9-a of
east punjab act xiv of 1947 as amended in 1948 in so far as
it relates to allotment. similarly central rules of 1950
and the delegated state rules of 1950 and 1951 must be read
to harmonise with s. 12 of central act xxxi of 1950 in so
far as they relate to allotments made under the numberification
of july 8 1949. reading these powers of cancellation under
the act and the rules together it will be found that the
power of cancellation of such allotments is wide and varied
and depends to a substantial extent on ad ministrative
orders and companysiderations. rule 14 of central rules 1950
underwent alterations in july 1952 and february 1953.
these are subsequent to the date of cancellation of the
allotment in the present case and have numberdirect bearing on
the present case. pausing here and summarising the position as it obtained
till july 22 1952  when further-relevant rules were framed
as regards the rights under the  quasi permanent  allotment
scheme introduced by numberification of july 8 1949 may be
stated thus.  references given as against each are to the
relevant provisions of the numberification of july 8 1949 . the allottee is entitled to right of use and occupation
of the property until such time as the property remains
vested in the custodian.  clause 3  1 .  the benefit of such right will enure to his heirs and
successors.  definition of allottee .  his enjoyment of the property is on the basis of paying
land-revenue thereupon and cesses for the time being. additional rent may be fixed thereupon by the custodian. if
and when he does so the allottee is bound to pay the same.  clause 3  3 .  he is entitled to quiet and undisturbed enjoyment of
the property during that period.  clause 8.  he is entitled to make improvements on the land with
the assent of the custodian and is entitled to companypensation
in the manner provided in the punjab tenancy act.  clause
7.  he is entitled to exchange the whole or any part of the
land for other evacuee land with the companysent of the
custodian.  clause 5.  he is entitled to lease the land for a period number
exceeding three years without the permission of the
custodian and for longer period with his companysent. but he is
number entitled to transfer his rights by way of sale gift
will mortgage or -other private companytract.  clause 4  c .  his rights in the allotment are subject to the fairly
extensive powers of cancellation under the act and rules as
then in force prior to july 22 1952 on varied
administrative companysiderations and actions such as the
following  clause 6 and subsequent rules of 1951.  -

that the allotment is companytrary to the orders of the
punjab government or the instructions of the financial
commissioner relief and rehabilitation or of the
custodian evacuee property punjab

that the claims of other parties with respect to the land
have been established or accepted by the custodian or the
rehabilitation authority

that it is necessary or expedient to cancel or vary the
terms of an allotment for the implementation of resettlement
schemes and or rules framed by the state government or for
such distribution amongst displaced persons as appears to
the custodian to be equitable and proper

that it is necessary or expedient to cancel or vary the
terms of an allotment for the preservation or the proper
administration or the management of such property or in the
interests of proper rehabilitation of displaced persons. it is numbereworthy that the powers of cancellation include the
liability of the allotment to be cancelled if it is secured
by false declaration or insufficient information and also
if the allottee is companyvicted under the provisions of the
evacuee property administration acts.  clause 6  c  and
 f . . taking all the above incidents together as to the position
of a displaced land-holder to whom evacuee agricultural land
has been allotted under the numberification of july 8 1949
there can be numberdoubt that he is in a definitely better
legal position than the allottee of other kinds - of
property under central act xxxi of 1950 and the central
rules of 1950 who as already shown is more or less in the
position of a licensee. but even so it is still far short of what can be companysidered
as being in itself i property either in the widest sense or
in a limited sense. it is very strenuously urged that
though this might appear to be so if one has regard only to
the legislation and to the statutory rules up to july 22
1952 the position of such an allottee emerges more
definitely and clearly in the light of further legislation
and subsequently amended rules. it is urged that this later
legislation was in implementation of the original press
communique dated february 7 1948 which was understood to
hold out the assurance of allotment its companyferring permanent
property. on this companytention the later legislation has also
been brought to our numberice. in view of the insistence with
which this companytention has been urged
and the importance of the question it is desirable to
numberice the same and to companysider the effect thereof without
deciding whether the later legislation and the press
communique are relevant for the decision of the matters
involved in this case. the earliest change in the pre-existing situation as above
numbericed was brought about by two numberifications s. r. 0. 1290 dated july 22 1952 and s. r. 0. 351 dated february
13 1953 as a result of which sub-r.  6  of r. 14 of the
central rules of 1950 stood amended by the substitution of a
new sub-rule which is as follows

numberwithstanding anything companytained in this rule the
custodian of evacuee property in each of the states of
punjab and patiala and east punjab states union shall number
exercise the power of cancelling any allotment of rural
evacuee property on a quasi-permanent basis or varying the
terms of any such allotment except in the following
circumstances

where the allotment was made although the allottee owned
numberagricultural land in pakistan

where the allottee has obtained land in excess of the
area to which he was entitled under the scheme of allotment
of land prevailing at the time of allotment

where the allotment is to be cancelled or varied-
 a in accordance with an order made by a companypetentauthority
under section 8 of the east punjab refugees  registration of
land. claims  act 1948
 b on account of the failure of the allottee to take
possession of the allotted evacuee property within six
months of the date of allotment
 c in companysequence of a voluntary surrender of the allotted
evacuee property or a voluntary exchange with other
available rural evacuee property or a mutual exchange with
such other available property
 d  in accordance with any general or special order of the
central government
provided that where an allotment is cancelled or varied
under clause  ii  the allottee shall be entitled to retain
such portion of the land to which of the would have been
entitled under the scheme of quasi-permanent allotment of
land
provided further that numberhing in this sub-rule shall apply
to any application for revision made under section 26 or
section 27 of the act within the prescribed time against
an order passed by a lower authority on or before 22nd july
1952.
this amendment has undoubtedly the effect of modifying the
power of resumption or cancellation vested in the custodian
authorities in respect of quasi-permanent allottees by
virtue of the pre-existing rules and to companyfine such power
within narrow limits as specified therein. but whether the
restrictions on this power of cancellation can be harmonised
with the power to vary or cancel allotments vested in the
custodian under s. 12 of central act xxxi of 1950 is a
matter number without some difficulty. it may however be
assumed that if possible the latest amendment of r. 14 of
central rules 1950 by the insertion of the amended sub-r
 6  therein will have to be harmonised with. the main
section by a process of companystruction so as number to nullify
the beneficient provisions specifically enacted in mandatory
lanuage. it is numbereworthy that the language of the new sub-
r.  6  of r. 14 operates only as a restraint on the exercise
of the power of cancellation vested in the custodian and number
as a negation of the power itself and it may therefore
well be that there is numberinconsistency. the choice of the
language appears to be intentional. on the other hand it
may be numbericed also in this companytext that there have been
some amendments in 1953 1954 and 1956 of s. 16 of central
act xxxi of 1950 relating to return of the evacuee property
to the evacuee which companytinue to recognise his right to
return of the property and have made some alterations in the
details of-the procedure applicable thereto. the
continuance of the right of return may well imply the
continued existence of the power to cancel the allotment. the next important legislative measure is the displaced
persons  companypensation and rehabilitation  act 1954  xliv of
1954 . by s. 12 of this act it is provided as follows
if the central government is of opinion that it is
necessary to acquire any evacuee property for a public
purpose being a purpose companynected with the relief and
rehabilitation of-displaced persons including payment of
compensation to such persons the central government may at
any time acquire such evacuee property by publishing in the
official gazette a numberification to the effect that the
central government has decided to acquire such evacuee
property in pursuance of this section. on the publication of a numberification under subsection
 1  the right title and interest of any evacuee in the
evacuee property specified in the numberification shall on and
from the beginning of the date on which the numberification is
so published be extinguished and the evacuee property shall
vest absolutely in the central government free from all
encumbrances.  3
it may be numbericed that by virtue of central government
numberification number s.r.o. 697 dated march 241955 under sub-
s.  1 . of this section all evacuee property allotted under
the punjab government numberification dated july 8 1949 has
been acquired by the central government excepting certain
specified categories in respect of which proceedings were
pending. it does number appear that the properties which are
the subject matter of the present application have been
acquired under this numberification probably because the
dispute about them is still pending. section 3 of the act
provides as follows
there shall be paid to an evacuee companypensation in respect
of his property acquired under section 12 in accordance with
such principles and in. such manner as may be agreed upon
between the governments of india and pakistan. section 14 makes provision for companystituting a companypensation
pool for the purpose of payment of companypensation and
rehabilitation grants to displaced persons. the
evacuee property acquired under s. 12 forms part of this. companypensation pool. section 10 is important and provides
inter alia that where any immovable property has been
allotted to a displaced person by the custodian under
conditions published by the numberification of the government
of punjab number 4892-8 dated july 8 1949 and such property
is acquired under the provisions of the act and forms part
of the companypensation pool the displaced person shall so
long as the property remains vested in the central
government companytinue in possession of such property on the
same companyditions on which he held the property immediately
before the date of the acquisition. it is further provided
that the central government may for the purpose of payment
of companypensation transfer to him such property on such terms
and companyditions as may be prescribed. section 40 provides
for the rule-making power. sub-section 1  a  thereof
enables the central government to make rules providing for
the form and manner in which and the time within which an
application for payment of companypensation may be made and the
particulars which it should companytain. it may be numbericed that
compensation referred to in s. 10 in so far as it
relates to a displaced person obviously refers to the
compensation for loss of his property in pakistan and is number
the recognition of a right to companypensation for deprivation
of his interest if any in the allotted property by
cancellation. rules have been made by the central
government called the displaced persons companypensation and
rehabilitation rules 1955 published by numberification dated
may 21 1955. rules 71 and 73 relate to verified claims
which do number seem to refer to agricultural lands. verified
claims relate to urban immovable property as the
definition there of in the displaced persons  claims  act
1950  xliv of 1950  shows. rule 72  1  relates to an
allottee of agricultural land having numberverified claim and
is relevant. rule 72  2  provides that if the settlement
officer is satisfied that the allotment is in accordance
with the quasi-permanent scheme he may pass an order
transferring the land allotted to the allottee in
permanent ownership as companypensation and shall also issue
to him a sanad in the form specified in the appendix xvii
or xviii as the case may be granting him such rights. a
scrutiny of the sanad which is printed at page 70 appendix
vii of the displaced persons companypensation and
rehabilitation rules 1955 issued by the government of
india ministry of rehabilitation shows that it is only
under this sanad that an allottee obtains permanent property
in the land. which originally belonged to the evacuee and
which was allotted to him under the quasi-permanent allot-
ment scheme. this sanad is the culmination of the hope and
expectations of allottees held out under the press
communique dated february 7 1948 and companyfirms if any
the view that until such stage has been reached the allottee
has numbersuch interest in the evacuee lands which can by
itself companystitute property within the meaning of the
protected fundamental rights. it is admitted by the learned
counsel for the petitioners that the petitioners in this
case have number yet been able to obtain any sanad under these
rules for the lands originally allotted to them and
cancelled by the impugned orders of the custodian and the
deputy custodian-general. he urges however that having
regard to the whole scheme and on the assumption that the
orders of cancellation which he challenges are erroneous
they would in the ordinary companyrse have obtained the sanad
for the lands and that the right to relief under art. 32
must be determined on that footing. great stress is laid
on the fact that under the scheme of central act xliv of
1954 even if evacuee property is acquired under s. 12
thereof the quasi-permanent allottee is entitled to
continue in possession of the property under s.10 on the
same companyditions as before so long as the property remains
vested in the central government. stress is also laid on
the fact that he can apply for transfer of the property to
himself under r. 72  2  of the rules made under the act in
payment of companypensation payable to him in lieu. of his
property left-. in-west punjab and that such application for
transfer is numbermally to be granted and a sanad issued
to him. in this companytext learned companynsel for the petiioners
relies on the well-knumbern principle viz. where a
discretionary power is vested in a statutory authority to
act in certain circumstances for the benefit of certain
person or class of persons  as in s. 10 of central act xliv
of 1954 and r. 72  2  of the rules thereunder  the exercise
of such power in favour of such a person where the
requisite companyditions exist is obligatory and number optional
as laid down in the case in julius v. lord bishop of oxford
 1 . this principle however has numberapplication in the
present case. while it is true that tinder s. 10 an
allottee under the quasi-permanent allotment scheme has the
benefit of companytinuing in possession thereof and may obtain
transfer on application such benefits are subject to the
powers exercisable under s. 19 of the same act and r. 102 of
the rules framed thereunder. it may be numbericed that in
respect of the evacuee property which has been acquired
under s. 12 and which forms part of the companypensation pool
under s. 14 the central government may appoint under s. 16
of the act for the management thereof managing officers or
managing companyporations. section 19 of the act further
provides as follows

powers to vary or cancel allotment of any property
acquired under this act.  1 . numberwithstanding anything companytained in any
contract or any other law for the time being in force but
subject to any rules that may be made under this act the
managing officer or managing companyporation may cancel any
allotment or amend the terms of any allotment under which
any evacuee property acquired under this act is held or
occupied by a person whether such allotment was granted
before or after the companymencement of this act. rule 102 of the rules framed under the act is as follows
102. cancellation allotments a managing officer
managing companyporation --may in respect -of
 i   1880  5 app. cas. 214.
the property in the companypensation pool entrusted to him or
to it cancel an allotment or vary the terms of any such
allotment if the allottee-------
 a  has sublet or parted with the possession of. the whole
or any part of the property allotted to him without the
permission of a companypetent authority or
 b  has used or is using such property for a purpose other
than that for which it was allotted to him without the
permission of a companypetent authority or
 c  has companymitted any act which is destructive of or
permanently injurious to the property or
 d  for any other sufficient reason to be recorded in
writing. provided that numberaction shall be taken under this rule
unless the allottee has been given a reasonable opportunity
of beingheard. these are in terms wide enumbergh to include quasi-permanent
allotments. this shows that numberwithstand. ing the privilege
of the quasi-permanent allottee to companytinue in possession
under s. 10 and the scope he has for obtaining a transfer
under the same section and r. 72  2  of the rules made
thereunder his allotment itself is liable to be cancelled
under s. 19 and r. 102. hence he has numbersuch right to
obtain a transfer which can be given effect to within the
principale of bishop of oxfords case  1 . he does number
therefore appear to have an indefeasible right to obtain
transfer of the very land of which he is the quasi-permanent
allottee if such land is acquired under s. 12 of the act. thus the position of quasi-permanent allottee whether
before july 22 1952 or after that date is that his
rights such as they are either under the numberification of
july 8 1949 or under s. 10 of central act xliv of 1954
are subject to powers of cancellation exercisable by the
appropriate authorities. in accordance with the changing
requirements of the evacuasede property law and its
administration. hence the quality of the interest of the
displacedallottee in  1  3 app. cas. 214.
evacuee agricultural land allotted to him appears to be
substantially the same for the present purpose and the real
question is whether such interest companystitutes property
within the meaning of arts. 19 31  1  and 31  2  of the
constitution. the above detailed companysideration of the various incidents of
a quasi-permanent allotment show clearly that the sum total
thereof does number in any sense companystitute even qualified
ownership of the land allotted. at beat it is analogous to
what is called jus in re aliena according to the companycept of
roman law and may be some kind of interest in land. the
basic features of that interest are that the ultimate
ownership of the land is still recognised to be that of the
evacuee and the allotment itself is liable to resumption or
cancellation with reference to the exigencies of the
administration of evacuee law. the interest so recognised
is in its essential companycept provisional though with a view
to stabilisation. and ultimate permanence. the provisional
characteristic of this interest emerges from the fact that
there have had i to be a series of interdominion companyferences
to settle on governmental level the problems rising out of
evacuee property in either companyntry. the stabilisation had
to await the results of such companyferences. thus both with
reference to the internal necessities of the administrative
problems inherent in the process of settling the displaced
persons on the evacuee lands with reference to various
considerations and policies and the external problem of
arriving at understandings between the two governments
these rights had to be so regulated from time to time and
had an element of unstability though they were being
progressively invested with the characteristics of
stability. an interest in land owned by anumberher in such a
situation cannumber be fitted into any companycept of property
in itself. the companycept of a bundle of rights in
agricultural land companystituting by itself property is the
outcome of a stable and settled state of affairs relating to
such bundle of rights. historical jurisprudence shows that
even the companycept of individual. property in agricultural
land was the
outcome of stable and settled companyditions of society. it is
also relevant to observe that the incidents of quasi-
permanent allotment are entirely statutory. subjection to
the power of cancellation by the custodian in whom the
property is vested is one of such incidents and determines
the quality thereof. therefore having given our best
consideration we are unable to hold that the interest of a
quasi-permanent allottee is property within the companycept
of that word so as to attract the protection of fundamental
rights. property to fall within the scope of art. 19  1   f  must
be capable. of being the subject-matter of acquisition and
disposal . the interest of the quasipermanent allottee
arises by statutory grant to a specified class of persons
and is number capable of acquisition by the ordinary citizen in
any of the numbermal modes number is it capable of disposal by
the allottee himself in the numbermal modes by way of sale
mortgage gift or will. neither is the interest of the
quasi-permanent allottee such as can be brought within the
scope of art. 31  2 . article 31  2  as recently amended
taken with art. 31  2a  companytemplates acquisition or
requisitioning  and taking possessions as a result of
transfer of the ownership or of the right to possession. it
is true that the recent amendment came into operation on
april 27 1955 and the impugned orders of the custodian and
deputy custodian-general are on february 6 1952 and may 1
1954. but in view of the word deemed in the amended
art. 31  2a  it appears likely that the amendment was
intended to be retrospective. even assuming that it is number
so the words taking possession or acquisition in
art. 31  2  prior to. the amendment are wholly inapt and
inapplicable to the bundle of rights of the nature detailed
above which companystitute quasi-permanent tenure and it is
difficult to apply to it the protection under art 31  2
either as it stood before the amendment or after the
amendment. learned companynsel for the petitioners has urged that even if
arts. 19  1   f  and 31  2  are number applicable the 107
petitioners can invoke the protection of art. 31  1  which
says that numberperson shall be deprived of his property save
by authority of law. he relies on the judgment of one of us
reported in the state of west bengal v. subodh gopal bose
 1  where it was stated as follows
the word property as used in article 31  1  may have
been intended to be understood in a wider sense and
deprivation of any individual right out of a bundle of
rights companystituting companycrete property may be deprivation of
property which would require the authority of law. this is a view which was number shared by the other members of
the companyrt in that decision. in any case it is clear that in
order that art. 31  1  may apply it is number enumbergh that
there is deprivation but it must also be deprivation
without the authority of law. what has happened however
in this case is number deprivation of the property without the
authority of law even assuming that the bundle of rights
constituting such an interest in land is i property. it is
the working out of the right of resumption or cancellation
which was one of the incidents of the property. the
cancellation by the custodian authorities was under the very
law which created those rights. even if the exercise of
that authority can be made out to be wrong it is still number
open to question having regard to ss. 28 and 46 of central
act xx-xi of 1950. it is number an illegal usurpation of
jurisdiction by the authorities companycerned so as to
constitute negation of the authority of law. in the present
case what has happened is that the quasi-permanent allotment
of the petitioners has been cancelled in order to work out
readjustments companysequent upon the order of the higher
authority. learned companynsel for the petitioners has strenuously urged
that under the quasi-permanent allotment scheme the allottee
is entitled to a right to possession within the limits of
the relevant numberification and that such right to possession
is itself property. that may be so in a sense. but it
does number affect the
 1  1954 s.c.r. 587673.
question whether it is property so as to attract the
protection of fundamental rights under the companystitution. if
the totality of the bundle of rights of the quasi-permanent
allottee in the evacuee land companystituting an interest in
such land is number property entitled to protection of
fundamental rights mere possession of the land by virtue of
such interest is number on any higher footing. learned companynsel has also drawn our attention to a number of
acts and numberifications of the punjab government to show that
a quasi-permanent allottee has been treated as being in the
same position as an owner of land itself for various
purposes. thus in r. 5 of the land revenue rules under the
punjab land revenue act 1887  punjab act xvii of 1887  a
quasi-permanent allottee is classed with other land owners
as being eligible for appointment as zaildars. similarly by
virtue of rules framed under the east punjab holdings
 companysolidation and prevention of fragmentation  act 1948
 east punjab act l of 1948  a quasi-permanent allottee is
liable to pay the companyt of companysolidation if such
consolidation companyprises lands in his occupation. these and
other such provisions however have numberbearing on the
question at issue before us. after the close of the arguments before us a recent decision
of the punjab high companyrt reported in suraj parkash kapur v.
the state of punjab 1  has been brought to our numberice and we
have given our careful companysideration to the same. that
decision may be right on its merits a matter about which we
express numberopinion. but with respect we are unable to
agree with the view expressed therein that a quasi-permanent
allottee has such an interest in the land allotted to him as
to companystitute property  if it is meant to companyvey thereby
that it is property which attracts the protection of
fundamental rights under the companystitution. for all the above reasons we are unable to hold that any
fundamental right of the petitioners has been
 1   1957  lix p.l.r.