@JUDGMENTTAG-ORDER
Harbans Singh, J.@mdashThe facts giving rise to this writ petition briefly stated are as under. Shri Nanak Chand owned agricultural land in Bahawalpur State now in West Pakistan. He had also some property at Kot Kapura, tehsil Faridkot, now in district Bhatinda. This Nanak Chand had come to Bhatinda in due course of his business when he died there in the month of June (947 and was survived by his three sons, Om Parkash, Sat Narain and Ram Parshotam. Then followed the partition of the country as a result of which the land originally owned by Shri Nanak Chand and after his death by his sons in Bahawalpur State had to be abandoned. The three sons filed separate claims in accordance with law and obtained allotment of certain area in village Kot Kapura in lieu of the land abandoned in Pakistan. On a complaint being made by one Rur Singh the matter was gone into by the Rehabilitation authorities and ultimately Mr. Tandon, Chief Settlement Commissioner, Punjab, held that notwithstanding the fact that Nanak Chand had died long before the partition of the country he must be treated as the ''displaced landholder'' for the purpose of allotment of land in view of the fact that his name continued to be shown as the owner of the abandoned land in the Jamabandi. As a result of this finding a considerable area of land allotted to the petitioners was cancelled. It is against this order that this writ petition is directed.
2. In coming to the decision as stated above the Chief Settlement Commissioner placed reliance on paragraph 17, at page 180, of Tarlok Singh''s Land Resettlement Manual, 1952 Edition, which is to the following effect-
17. Even where a displaced landholder in whose name land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased. In the fard taqsim, therefore, the entry will be in the name of the deceased landholder. Possession is ordinarily given to the heirs but there must be regular mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs.
The contention on behalf of the petitioners is that this paragraph 17 really pertains to the persons who were owners of the land at the time of their migration and later on died before any allotment of land could be made in their favour while the learned Chief Settlement Commissioner has interpreted this paragraph to relate to all persons who continue to be shown as owners in the revenue record, irrespective of the fact whether they had died before or after migration. According to this argument even if a person had died before 1st of March, 1947, when the riots resulting in the partition of the country started, even then the dead person will be treated as a displaced landholder within the meaning of paragraph 17 if between his death and the partition of the country a mutation had not actually been sanctioned and the names of the heirs of the deceased substituted in place of the deceased as the owner. It was urged on behalf of the learned counsel for the petitioners that this interpretation put by the learned Chief Settlement Commissioner is not correct. The learned counsel took me through the various paragraphs of the Land Resettlement Manual and the legislation bearing on the resettlement of the landowners and urged that wherever the expression ''displaced person'' or its equal word ''refugee'' has been used the reference is only to a person who has migrated to India as a result of the disturbances, fear of disturbances or the partition of the country. He urged that if, in fact, a person had died before there were any disturbances or that person never migrated to India as a result of the disturbances etc. and died before such migration, then he could, under no circumstances, come within the meaning of ''displaced person'' and consequently when these words are used in paragraph 17 they are used in the sense of a person who had become a displaced person as a result of the partition of the country but, before he could get an allotment of land or even submit a claim for allotment, had died. The relevant date that was intended to be taken by the Department was the date of the migration.
3. In this connection, in the first instance he referred to paragraph 11 at page 5 where mention is made of the decision taken by the Government to introduce a new scheme of allotment to supersede the original scheme for temporary allotment. The relevant portion runs as follows:
From November, 1947, members of the Provincial Relief and Rehabilitation Board began to urge upon Government the necessity of early settlement on land on a permanent basis ****** Proglonged consideration of this question led to the announcement on the 7th February, 1948 of the decision to replace the temporary allotment of the evacuee lands by new system of quasi-permanent allotment which would take account of the holdings of displaced persons in West Punjab.
In order to determine what has been left by the "displaced persons" in West Punjab claims were invited and this was done under East Punjab Act No. XII of 1948 (East Punjab Refugees (Registration of Land Claims) Act, 1948). Clause (c) of Section 2 defined ''landholder'' as meaning an owner of land * * * and clause (d) defined ''refugee'' as follows :
''Refugee'' means a landholder in the territories now comprised in the Province of West Punjab, * * * * who has since the 1st day of March, 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances or the partition of the country.
Subsection (1) of section 4 stated-
(1) A refugee may submit to the Registering Officer * * * an application for registration of his claim in respect of his land abandoned by him, or which he has been made to abandon.
Reading these provisions together [particularly the words underlined (italicised-Editor) by me], it was urged by the learned counsel for the petitioners, it is clear that the Act dealt with a "refugee" and one of the conditions precedent for a -person to be categorised as a refugee was that he must have abandoned or been made to abandon the land owned by him in the territories now forming province of West Punjab, on account of civil disturbances or fear of such disturbances. So that if a person died before abandoning the land, comprised in the aforesaid territories, on account of "such disturbances he could, by no stretch of imagination, be treated a refugee within the meaning of the Act. In later legislation viz., the East Punjab Displaced Persons (Land Resettlement) Act, 1949, the word ''refugee'' was replaced by the words ''displaced person'' and these words have continued thereafter to be used for persons who have migrated from areas now in West Pakistan. Clause (c) of section 2 defines words ''displaced person'' exactly in the same words as the word ''refugee'' in the earlier Act. Same definition is assigned to these words in the notification issued on 8th July, 1949, under sub-section (2) of section 22 of the East Punjab Evacuees'' (Administration of Property) Act, 1947, whereby a provision was made for the transfer of the interest of the evacuee to the displaced person. All rules and directions in the matter must necessarily be treated to be in conformity with these legislative provisions and, therefore, it was urged that the words ''displaced person'' wherever used in the various paragraphs of the Manual must necessarily mean the person as defined in the Act.
4. According to the view taken by the Chief Settlement Commissioner entries in the Jamabandi are sacrosanct and if a person is shown in the Jamabandis as the owner he must be treated a ''displaced person'' even if it has been established as a fact that he had died before he had migrated from West Pakistan or before he abandoned any land there, as a result of the disturbances.
5. At page 34 of the Land Resettlement Manual under the heading of ''Verification of Land Claims'', second para of paragraph 11, deals with the various documents which could be taken into consideration in support of a claim. It is stated-
In support of a claim, proof was to be considered in the following order of precedence:
(1) entries in a Jamabandi or other revenue record;
(2) entries and references in any registered document;
(3) entries or references in other documents of unquestionable genuineness; and
(4) oral evidence of reliable persons present at the verification.
Thus entries in the Jamabandi or other revenue records were not the last Word and even if in the entries in the Jamabandi it was stated that a person continued to be the owner it could be shown that in fact he had died long long ago. Reference may also be made to sub-paragraph 2 of paragraph 24 at page 47 relating to ''Preliminary Scruitiny'' where the effect of mutations was discussed. The relevant portion is as follows:
Decided mutations were to be incorporated in the jamabandis prepared for exchange between East Punjab and West Punjab, but instances came to notice in which this had not been done and the omission had to be made good.
This show that entries in the Jamabandi had to be modified in accordance with the entries in the mutations which had been sanctioned. With regard to the mutations which had not been sanctioned or which had been decided after 15th of August, 1947, i.e. after the partition of the country, it was stated as under:
Mutations of transfer of land from non-Muslims to Muslims decided after the 5th of August, 1947, required special scrutiny. If they had been first entered before the 15th August, 1947 and were based on registered documents, effect was given to them in assessing the claim of the displaced non-Muslims. Mutations of transfer from Muslims in favour of non-Muslims based on registered documents, which were entered but not decided by the 15th August, 1947, were similarly taken into account and any subsequent orders of rejection were disregarded in assessing the claim. Mutations of transfer based on oral transactions were not considered, while mutations of inheritance were taken into account.
This would clearly show that even if there were certain mutations of transfer which had been entered but had not been sanctioned they were to be taken into consideration and would, to that extent, modify the entry in the Jamabandi provided such entries of mutation are based on a registered document. However, if a mutation of transfer is only entered but not sanctioned before 15th of August, 1947, on the basis of oral agreement then that was not to alter the entries in the Jamabandi. At the same time if a mutation has been entered in respect of inheritance then such a mutation was to be taken into account notwithstanding the fact that the same had not been sanctioned prior to 15th of August, 1947. Of course such a mutation by its very nature could not be based on registered documents. It, therefore, follows that even according to the clear instructions in the Land Resettlement Manual itself if a landholder had died before 15th of August, 1947, and the information had been given to such a demise by the heirs to the Revenue Authorities and they had been prompt enough to enter the mutation in the mutation register then in making the allotment of land the original deceased landholder is not to be treated as the ''displaced person'' but his heirs would be so treated. According to the arguments accepted by the learned Chief Settlement Commissioner a deceased person would be treated as a ''displaced person'' or otherwise depending on the fact whether information to the Revenue authorities has been given about his death and the Revenue authorities have been prompt enough or not in entering a mutation, i. however, find it difficult to give an interpretation to paragraph 17 which will lead to such absurd results. The instructions given in paragraph 24, at page 47, referred to above, and the provisions of the two statutes under which allotments were made, to my mind, leave no manner of doubt that a person can be treated as a ''displaced person'' entitled to register his claim and get the allotment of land only if he has migrated to India abandoning the land owned by him, as a result of the disturbances etc. The entries in Jamabandi or in the mutations are merely a matter of proof as to whether he has obandoned any land or not. No doubt an entry in the Jamabandi and the mutations would be a prima facie evidence of the fact that the person whose name is entered as the owner was holding the land in the territory now in West Pakistan and that it was he who had abandoned it as a result of the disturbances etc. However, where it can be established to the satisfaction of the Rehabilitation authorities that in fact the man whose name finds mention in the revenue record had died before that land was abandoned by him, such a person would not fall within the definition of the ''displaced person'' and immediately on his death his heirs will become the owners of the land and, therefore, landholders, and if they had migrated to the Indian Union abandoning the land as result of the civil disturbances, it would be such heirs who would fall within the definition of ''displaced person''.
6. In the light of the above I personally feel no difficulty in coming to the conclusion that the view taken by the Chief Settlement Commissioner is not correct. However, a learned Judge of this Court, in Jhanda Singh and others v. Chief Settlement Commissioner, Punjab ILR 1958 P&H. 1090, seems to have taken the view similar to the one taken by the Chief Settlement Commissioner. Consequently, I feel that it would be appropriate to have this matter decided by a larger Bench and I accordingly direct that this case be placed before my Lord the Chief Justice for necessary orders and further direct that the orders of my Lord the Chief Justice may be obtained and the case fixed at a very early date.
ORDER
Dua, J.
7. (13th September, 1963)-These two writ petitions (Civil Writ No. 841 of 1962 and Civil Writ No. 526 of 1962) have been heard together and indeed arguments have been addressed only in Civil Writ No. 841 of 1962, it being conceded that the other writ petition would stand or fall with this one. The facts out of which this writ petition has arisen have, so far as necessary for our purposes, been stated in the referring order of my learned brother and need only be briefly restated here.
Nanak Chand owned some agricultural land in Bahawalpur State now forming part of West Pakistan as a result of the partition of the country in 1947. He also owned some property at Kot Kapura, Tehsil Faridkot, which now forms part of District Bhatinda and is in India. Nanak Chand had in normal course of business come to Bhatinda where he died in June, 1947, leaving behind three sons by name, Om Parkash, Sat Narain and Ram Parshotam. After Nanak Chand''s demise the country was partitioned and as a result thereof his three sons had to abandon the land owned by their father in Bahawalpur State. The three sons filed separate claims in accordance with law and obtained allotment of certain Land in Kot Kapura village in lieu of the land abandoned by them in Pakistan. It appears that there was some complaint made by one Rur Singh against these three brothers which was inquired into by the Rehabilitation authorities and the Chief Settlement Commissioner, Punjab, Shri J.M. Tandon, on 8th of June, 1962, came to a finding that Nanak Chand, although he had died long before the partition of the country must be treated as a ''displaced landholder'' for the purpose of allotment of land on the ground that his name continued to be shown in the jamabandi as owner of the abandoned land in Pakistan. In consequence of this finding considerable area of land allotted to the three sons of Nanak Chand was cancelled. It is this order of cancellation which is being assailed by the three petitioners (sons of Nanak Chand deceased; in the present writ proceedings and the challenge is based on the argument that para. 17 of the Land Resettlement Manual by Tarlok Singh (hereinafter called the Manual) appearing at page 180 on the basis 01 which the order of cancellation had been passed has no authority of law and, therefore, could not legally form the basis of the order and that in any case para. 17 has been misconstrued and misinterpreted.
8. Before my learned brother Harbans Singh J., sitting, singly the respondents'' counsel relied on a decision by Chopra J. in Jhanda Singh v. Chief Settlement Commissioner, Punjab 1, in which para. 17 of the Manual was given effect to. This decision has also been relied upon before us on behalf of the respondents. It may here be stated that my learned brother entertained doubts about the correctness of the view expressed in this decision and it was for this reason that the matter has been placed before this Bench so that the correctness of the view expressed in Jhanda Singh''s case 1 may be reconsidered. But for this decision, my learned brother was inclined to allow the writ petition. The short question, therefore, that we have to determine is the scope and binding effect of para. 17 of the Manual appearing at page 180 in Chapter VIII.
9. This Manual is apparently published by the Punjab Government, but for this reason alone its contents do not acquire the authority or sanctity of law. it is not the Indian view of law that whatever is officially done is law; on the contrary the Indian Law is that what is done officially must be done in accordance with law. And then as stated in Foreword of the Manual by Shri P.N. Thapar this book contains the instructions and explanations for working out policy decisions arrived at in the course of the gigantic task of rehabilitating the persons displaced from what is now known as West Pakistan. It is true that in the appendices the relative legislative enactments and rules etc are also reproduced but in the case before us it is not their binding effect but the binding effect only of para. 17 at page 180 which has been canvassed. As observed by Jaggannadhadas J. in
10. It need hardly be emphasised that in Republican India executive instructions without statutory basis are not law; and no statutory basis for para 17 at page 180 of the Manual has been brought to our notice. In the circumstances the respondents'' contention that para 17 embodies a rule of law calling for strict obedience on the part of the Courts is thus unacceptable. Equally unacceptable is the contention that the petitioners challenge to the impugned order involves reviewing a question of fact and, therefore, this Court should decline in its discretion to go into it. The basic facts are not disputed and the only question canvassed is : Are the departmental authorities right in declining proper relief to the petitioners solely on the basis of para. 17 of Chapter VIII at page 180 of the Manual ? This brings me to the scope and effect of this para, for, if this para embodies a provision in conformity with the law and covers the present case, then this Court would not interfere.
11. Reference has been made at the Bar to the provisions of the East Punjab Refugees (Registration of Land Claims) Act XII of 1948 in which the word ''refugee'' has been defined in section 2(d) to mean a landholder in the territories now comprised in the Province of West Punjab, or who or whose ancestor migrated as a colonist from the Punjab since 1901 to the Province of North-West Frontier Province, Sind or Baluchistan or to any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1st day of March, 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances or the partition of the country, and the term ''landholder'' has been defined in section 2(c) to mean an owner of land or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 or a tenant as defined in section 3 of the Colonization of Government Lands Act, 1912, and such other holder or grantee of land as may be specified by the Provincial Government.
12. It has been contended for the petitioners that Nanak Chand deceased cannot be described to be a "refugee" as defined in the above Act, unless one can come to the conclusion that he had since 1st March, 1947, abandoned or been made to abandon his land in Bahawalpur as contemplated by section 2(d). It is stressed that there is nothing on the record to show that the deceased had so abandoned or been made to abandon his land in the erstwhile State of Bahawalpur on account of civil disturbances or the fear of such disturbances on the partition of the country. Section 4 providing for registration of land claims entitles a refugee to submit to the Registering Officer an application for registration of his claim in respect of his land abandoned by him or which he has been made to abandon. East Punjab Refugees (Registration of Land Claims) Rules, 1948, made u/s 10 of the Act provide, inter alia, that a claim application may be presented by the applicant either in person or through a recognised agent or be sent by registered post. These provisions, it is argued, also do not contemplate registration of claims by deceased persons like Nanak Chand.
13. The petitioners'' counsel has next referred us to the Statement of Conditions for granting allotment of land issued by the Custodian under the East Punjab Evacuees'' (Administration of Property) Act, 1947, and stress has again been laid on the definition of the expression "displaced person" in para 2(e) which is identical with the definition of the word "refugee" as contained in the Land Claims Act XII of 1948. Para 3 of this Statement of Conditions provides for allotment to be made in favour of displaced persons for the period for which the land remains vested in the Custodian subject to the provisions of the present Act. Our attention has then been drawn to the East Punjab Displaced Persons (Land Resettlement) Act 1949 (Act XXXVI of 1949) in which the expression ''displaced person'' has again been defined in section 2 (c) in terms similar to those contained in the Statement of Conditions mentioned above and the word ''allottee'' has been defined in section 2(b) to mean a displaced person to whom the land is allotted by the Custodian under the conditions mentioned above including his heirs, legal representatives and sublessees. Drawing further support from these statutory provisions the petitioners'' learned counsel has contended that what the law contemplates is that the displaced person entitled to an allotment must be one who has himself abandoned or been made to abandon his land in what is now known as Pakistan and that Nanak Chand deceased could by no stretch be considered to be such a displaced person. The contention indeed goes a step further and emphasises the absence of any finding by the departmental authorities that Nanak Chand was a displaced person as defined in the statutory provisions mentioned above.
14. Here it is appropriate to reproduce para 17 on which the department relies :
17. Even where a displaced landholder in whose name land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased. In the fard taqsim, therefore, the entry will be in the name of the deceased landholder. Possession is ordinarily given to the heirs but there must be regular mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs.
The department''s position is that the allotment has to be made in the name of the person who is shown in the record even though he had never himself become a refugee or a displaced landholder. The petitioners'' contention on the contrary is that this para has within its fold cases of persons who were landholders at the time of their becoming displaced persons or refugees and who died afterwards but before allotment could be made in their favour.
15. The petitioners'' next submission is that in any case the instructions contained in this para merely emphasise the importance of the entries in the revenue papers for convenient and practical working of the scheme and not as a rigid rule which must always be adhered to irrespective of the obvious justice of the claims of persons claiming title to the property as "refugees" or "displaced landholders".
16. For explaining the scope and effect of this para the counsel has taken us through some of the provisions in Chapter II of the Manual dealing with the subject of copies of jamabandis obtained from Pakistan and the preliminary scrutiny for the determination of rights contained in paras 23 and 24. Certain emphasis has in this connection been laid by the counsel on para 24 which envisages an inquiry about the transfer of land not incorporated in jamabandi. This, it is argued, shows that para 17 was never intended to be rigidly construed irrespective or regardless of the obvious justice of a displaced person''s claim. Some instances have in this connection also been cited at the bar in which even the department itself did not rigidly follow this para. The first instance relates to the case of Shri Sapuran Singh who was at one time Deputy High Commissioner for India at Lahore. Proof of his father''s death was admitted from some mutation in Amritsar district and the entries in the jamabandis which arrived from Pakistan were not strictly adhered to for the purpose of allotment. This instance relates to May, 1953. Another case of April, 1960 is of one Shri Ishar Singh of Faridkot in which the alleged sale of June, 1947 was recognised in spite of there being no entry in the jamabandi. In this case report relating to the sale had been entered in the roznamcha but mutation could not be sanctioned before partition. Bracketed with this case were three other cases similarly dealt with. The third case of 1961 is of Shri Jaimal Singh who had purchased land in Pakistan from Shri Hari Chand. In this case too mutation of sale had been entered but it could not be sanctioned before partition and in the jamabandi received from Pakistan the relevant entry continued to be in Hari Chand''s name. The precedent of Ishar Singh''s case was followed. The 4th case of 1953 relates to Kabul Singh and others where partnership was recognised on other evidence in spite of there being no entries regarding their shares in jamabandis.
17. As observed earlier para 17 has not been shown to have any statutory authority for its basis and, in my opinion, it merely embodies executive or administrative directions for general guidance. The language of this para also, considered in the light of the provisions of law noticed above, postulates a displaced landholder dying after having become a displaced person within the relevant legal provisions mentioned above. It does not apply to the case of a person who was not a displaced landholder at the time of his death. To accede to the department''s contention that whosoever is shown in the jamabandi received from Pakistan as owner-irrespective of the fact that at the time of his death he was not a displaced person-must, according to para 17, be treated as a displaced landholder would, in my opinion, tend to create unnecessary difficulties and complications for the displaced claimants which the legislative policy underlying the statutory provisions dealing with this subject does not contemplate. That it is so would also seem to have been realised by the departmental authorities who dealt with the four instances to which our attention has been drawn. I am, therefore, clearly of the opinion that para 17 neither constitutes or embodies a binding rule of law, nor does it cover cases where deceased landholders were not displaced persons at the time of their death; it only provides for cases where a landholder dies after having become a displaced person; in other words, cases where a displaced landholder dies and not where a landholder would have become a displaced landholder if alive at the time of the partition. The decision of the learned Single Judge in Jhanda Singh''s case is thus, with all respect, not in accord with the correct rule of law. On this view the petitioners'' grievance has merit and the impugned orders deserve to be quashed because Nanak Chand deceased could by no means be treated to be a displaced landholder at the time of his death; indeed the respondents learned counsel too has not attempted seriously to argue to the contrary. His only contention as mentioned earlier has been that the case is concluded by a finding of fact and that merely an erroneous construction of para 17 would not justify interference on the writ side. These contentions call for no further detailed comment and are obviously inadmissible in view of the foregoing discussion. If on the basis of erroneous view of the scope and meaning of para 17 an order is passed prejudicially affecting the petitioners'' right, it would, on the facts and circumstances of this case, be an error apparent on the face of the record justifying interference on the writ side.
18. In the result these petitions succeed and allowing the same I quash the impugned orders. In the circumstances, however, there would be no order as to costs.
Harbans Singh, J.
19. I agree.
