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Sadhu Singh and ors. Vs. the Financial Commissioner Relief and Rehabilitation (Custodian) Punjab, Simla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberWrit Appln. No. 128 of 1952
Judge
Reported inAIR1954P& H241
ActsEast Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948 - Sections 2; East Punjab Requisitioning of Immovable Property (Temporary Powers) (Amendment) Act, 1951; Administration of Evacuee Property Act, 1950 - Sections 4, 8(4), 12, 16, 40 and 52; Constitution of India - Article 254(1)
AppellantSadhu Singh and ors.
RespondentThe Financial Commissioner Relief and Rehabilitation (Custodian) Punjab, Simla and ors.
Appellant Advocate H.S. Doabia, Adv.
Respondent Advocate S.M. Sikri, Adv. General and; N.L. Salooja, Adv.
Cases ReferredKutner v. Phillips
Excerpt:
.....is now submitted, is an order which is 'ultra vires' because it contravenes the provisions of the evacuee property act. in the first place, these f proceedings are of a date after the date of tha order of requisition which is complained against, and secondly a contravention of this resolution is not a breach of a statute or a statutory rule in regard to which in our supervisory jurisdiction we can give any relief, but i have nodoubt that if the intention* of the governmentwas to allay the fears of evacuees from pakistanwho are allottes of lands in these various villagesand to see that their rehabilitation is not interfered with, the government will, if proper representation is made to them, give such relief aswas the intention of these proceedings which ihave mentioned above, but they..........that the order which has been passed should be set aside because by the requisitioning of land provisions of the evacuee property act are contravened. reference has been made to several sections of the evacuee property act.by section 4 of the act it is provided that that act overrides other laws but it cannot be said that merely because of that the laws relating to acnuisition and requisition of property, which falls under item 36 of the second list (state list) in the constitution of india, are affected thereby. reliance was then placed on section 7 of the evacuee property act which provides for the notification of evacuee property. section 8 of that act vests in the custodian for the state the property which has been declared to be evacuee property. sub-section (4) of this.....
Judgment:

Harnam Singh, J.

1. In Civil Writs Nos. 128, 138 and 233 of 1952 it is said that the provisions of Section 2 of the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948, as amended by East Punjab Act 1 of 1951, hereinafter referred to as the Requisitioning Act, in so far as they permit the requisition of property falling within Section 2(f) of the Administration of Evacuee Property Act, 1950. hereinafter referred to as the Act, are void.

2. Briefly summarised the facts so far as material are these. By order made on 25-3-1952, Additional Deputy Commissioner, Capital Chandigarh, requisitioned 113.59 acres of land with structures thereon, In village Gidarpur, tahsil Kharar. Sadhu Singh, Sarwan Singh, Sajjan Singh, Sohan Singh, Kuldip Singh, applicants, in Civil Writ No. 128 of 1953 being displaced persons, were allotted land in village Gidarpur tahsil Kharar and by the order of requisition the land allotted to them was also requisitioned.

3. By order made on 29-4-1952, Additional Deputy Commissioner Capital Chandigarh, requisitioned 98 acres of land with structures thereon In village Pan Majra, tahsil Kharar. By that order 58 standard acres of land allotted to Kesra Singh applicant in Civil Writ No. 138 of 1952 was also requisitioned.

4. By order made on 26-5-1952, Additional Deputy Commissioner, Capital Chandigarh, requisitioned 68.28 acres of land with structures thereon in village Barwala, tahsil Kharar. By that order 52 standard acres of land allotted to Karora Singh applicant in Civil Writ No. 233 of 1952 was also requisitioned,

5. On 18-5-1952, Capital Oustees Board decided that allottees of less than 50 standard acres in tahsil Kharar should not be ousted for the resettlement of Capital oustees.

6. In exercise of the powers vested in the Union Legislature by entry No. 41 of the Concurrent List, Constitution of India, the Union Parliament passed the Act for the custody, management and disposal of property, (including agricultural land declared by law to be evacuee property). Prior to that the Legislature for the Province of the East Punjab had passed the Requisitioning Act by virtue of the powers vested in that Legislature by entry No. 9 of the Provincial Legislative List. 7th Schedule. Government of India Act, 1935. On 15-9-1951. Fast Punjab Act No. 11 of 1951 was passed to provide for the validation of requisition and acquisition of certain Immovable property under the Requisitioning Act.

7. Article 254(1) Of the Constitution of India provides inter alia that if any provision of a law made by the Legislature of a State is repugnant to any provision Of law which Parliament is competent to enact, then the law made by Parliament, whether passed before or after the law made by the Legislature of such State, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Article 254(1) of the Constitution corresponds to Section 107(1) of the Government of India Act, 1935.

8. Section 4 of the Act provides that the provisions of the Act and of the rules and orders made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

9. That being the position of law, the Question that arises for decision is whether the provisions of Section 2 of the Requisitioning Act as amended by East Punjab Act 11 of 1951 are inconsistent with the provisions of the Act.

10. Now, it is settled law that the conditions required for a repeal by implication are stringent. Indeed, unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time or unless there is a necessary inconsistency in the two Acts standing together a repeal will not be Implied. For authority on this point - 'Kutner v. Phillips', (1891) 2 QB 267 CA), may be seen.

11. In approaching the matter I have, therefore, to see whether the provisions of the Requisitioning Act are so inconsistent with the provisions of the Act that the two cannot stand together.

12. In arguments it is said that the provisions of Section 2 of the Requisitioning Act are in-consistent with the provisions of Sections 8(4), 12, 16, 40 and 52 of the Act. For the reasons appearing hereinafter I do not accept the argument.

13. Section 8(4) of the Act provides that where after any evacuee property has vested in. the Custodian, any person is in possession thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession to the Custodian, or to any other person duly authorised by him in this behalf. On the requisition of evacuee property the Custodian can authorise the State Government to obtain possession of the property requisitioned from the person in possession of that property. If so, Section 3 of the Requisitioning Act does not conflict with the provisions of Section 8(4) of the Act.

14. Section 12(1) of the Act provides Inter alia that notwithstanding anything contained in any other law for the time being in force the Custodian may cancel any allotment made under the Act. By the requisition of evacuee property under Section 2 of the Requisitioning Act the allotment made to a displaced person is not automatically cancelled. On the requisition of evacuee property it will be for the Custodian to cancel the allotment within Section 12 of the Act. Clearly, Section 2 of the Requisitioning Act does not conflict with Section 12 of the Act.

15. Basing himself on Section 16 of the Act counsel appearing for the applicants urges that when evacuee property is requisitioned under Section 2 of the Requisitioning Act the Custodian would not be in a position to restore property requisitioned to the evacuee or any person claiming to-be an heir of an evacuee.

16. Section 16(1) of the Act reads:

'The Custodian may, on application made to him in this behalf In writing by an evacuee or any person claiming to be the heir of art evacuee, restore, subject to such terms and conditions as he may think fit on Impose, the evacuee property to which the evacuee or person would have been entitled if this Act were not in force.'

17. In my opinion, Section 16 of the Act provides for the restoration of evacuee property to an evacuee or his heir if in the circumstances of the case the Custodian is in a position to restore that property. Section 10(2)(O) of the Act gives power to the Custodian to transfer in any manner whatsoever any evacuee property notwithstanding anything to the contrary contained in any law or agreement relating thereto. In case evacuee property is transferred by sale, the Custodian would not be in a position to restore evacuee property to the evacuee or his heir. Section 2 of the Requisitioning Act does not conflict with the provisions of Section 16 of the Act.

18. Then it is said that Section 2 of the Requisitioning Act conflicts with the provisions of Section 17 of the Act. In plain English Section 17 of the Act provides that evacuee property which has vested in the Custodian under the provisions of the Act shall not be liable to be proceeded against in any manner in execution of any decree or order of any Court or other authority. In argument it is said that proceedings taken by the State Government under Section 2 of the Requisitioning Act come within the mischief of Section 17(1) of the Act.

Prom the language used in Section 17 of the Act it is clear that the section provides for exemption of evacuee property from the processes of Courts or authorities in execution proceedings. That this is so is clear from the provisions of Section 17(1) of the Act which provides that attachments or injunctions or orders for the appointment of receivers in respect of evacuee property subsisting on the commencement of the Act shall be deemed to be void. Plainly. Section 17 deals with exemption of evacuee property from processes issued by Courts or authorities in execution proceedings.

19. Mr. Harbans Singh Doabia argues that Section 2 of the Requisitioning Act conflicts with Section 40 of the Act. Prom a perusal of that section it is plain that that section provides for restriction On transfer by evacuees or by agents of these evacuees. In proceedings under Section 3 Of the Requisitioning Act no transfer is made by or on behalf of any persons whose property is notified and declared to be evacuee property.

20. Mr. Harbans Singh Doabia points out that the Central Government by notification in the Official Gazette has not exempted the property requisitioned from the operation of all or any of the provisions of the Act. Finding that there is no provision in the Act prohibiting the requisition of evacuee property I think that it was not necessary for the Central Government by notification in the official Gazette to exempt the property requisitioned from any provisions of the Act.

21. In arguments it was conceded that Section 2 of the Requisitioning Act does not conflict with any other provision of the Act.

22. For the reasons given above, I find that I evacuee property can be requisitioned within Section 2 of the Requisitioning Act.

23. Mr. Harbans Singh Doabia argues that orders of requisition contravene the undertaking given by the State Government that allottees of less than 50 standard acres would not be ousted for the resettlement of capital oustees. Karora Singh appellant in Civil Writ No. 232 of 1952 is an allottee of 52 standard acres in village Bar-wala. Kesra Singh applicant in Civil Writ No. 138 Of 1952 is an allottee of 56 standard acres in village Ban Majra while the applicants in CivilWrit No. 128 of 1953 have each been allotted land measuring less than 50 standard acres. Orders of requisition which are attacked in Civil Writ No. 128 of 1952 were passed on the 25th of March 1952, while orders of requisition in Civil Writ No. 138 of 1952 were passed on the 10th of May, 1952. That being so, the undertaking given on the 18th of May, 1952, does not affect the requisitions made in Civil Writs Nos. 128 and 138 Of 1952.

24. In Civil Writ No. 233 of 1952 the order of requisition passed on the 26th of May, 1952, is attacked. In my judgment, this Court in exercise Of its supervisory jurisdiction does not possess powers to compel the State Government to observe the conditions of the resolution passed by the Capital Oustees Board on the 18th of May, 1952.

25. No other point arises in these proceedings.

26. In the result, I would dismiss Civil Writs Nos. 128 138 and 233 of 1952.

27. Parties are left to bear their own costs.

Kapur, J.

28. These are three rules which were obtained by Sadhu Singh, Kesra Singh and Karora Singh directed against the Financial Commissioner (Re-habilitat DID and others to show cause why the orders of acquisition made by the respondents be not set aside and why they be not prohibited from dispossessing the petitioners.

29. The petitioners in these three cases have been allotted land on a quasi permanent basis in throe different villages and complained that by an order dated the 24th of March, 1952, made by the Additional Deputy Commissioner, Chandigarh, fheir lands have been ordered to be requisitioned which, it is now submitted, is an order which is 'ultra vires' because it contravenes the provisions of the Evacuee Property Act. In other words, the provisions of the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act --8 of 1948. as amended by Act 11 of 1951 cannot be used for the purpose of requisitioning or acquiring properties which fall within the purview of the Evacuee Property Act.

30. In lieu of lands which were owned by the petitioners in West Pakistan the petitioners were allotted land in several villages round about the Chandigarh Project area on a 'quasi' permanent basis by various orders which were passed under the law relating to allotment of lands. It is submitted that the order which has been passed should be set aside because by the requisitioning of land provisions of the Evacuee Property Act are contravened. Reference has been made to several Sections of the Evacuee Property Act.

By Section 4 of the Act it is provided that that Act overrides other laws but it cannot be said that merely because of that the laws relating to acnuisition and requisition of property, which falls under item 36 of the Second List (State List) in the Constitution of India, are affected thereby. Reliance was then placed on Section 7 of the Evacuee Property Act which provides for the notification of Evacuee Property. Section 8 of that Act vests in the Custodian for the State the property which has been declared to be evacuee property. Sub-Section (4) of this section provides as follows:

'Where after any evacuee property has vested in the Custodian any person is in possession thereof he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf.'

Section 10 prescrihes the powers and duties of the Custodian generally, and Clause (O) of Sub-Section(2) of Section 10 gives to the Custodian the powerto transfer any evacuee property notwithstandinganything contained in any other law to the contrary. Section 12 gives to the Custodian the powerto vary or cancel leases or allotments of evacueeproperty. Section 16 gives the power to restoreevacuee property to the evacuee on his return incertain circumstances. Section 17 exempts evacuee property from processes of Court. Section 40prohioits the transfer by or on behalf of the evacuee of property which has become evacuee property, and Section 52 gives the power to theCentral Government to exempt any property fromthe operation of this Act.But none of these sections indicates that theacquisition ing or requisitioning laws passed by theState conflict with the different sections that Ihave given above. Neither notification of evacueeproperty nor the power of vesting nor the powerof the Custodian to transfer or to restore theproperty to the original evacuee or the prohibition against transfer by the evacuee or the powerof the Central Government to exempt propertiesfrom evacuee laws is interfered with by the provisions of the Acquisition ing and Requisitioning Act.

31. The Advocate-General submitted that thepetitioners' interest in the property is one of useand occupation which may not be disturbedexcept in accordance with certain conditions.Reference was here made to Section 2(f) whichgives the definition of 'evacuee property' asfollows:

' 'evacuee property means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in an'y other capacity), and includes any property-

(1) which has been obtained by any person from an evacuee after the 14th day of August 1947. by any mode of transfer, unless such transfer has been confirmed by the Custodian, or

(2) belonging to any person who, after the 18th day of October, 1949 has done or does any of the acts specified in Clause (e) of Section 2, or in which any such person has any right or interest, to the extent of such right or interest, but does not include-

(I) any ornament and any wearing apparel, cooking vessels or other household effects in the Immediate possession of an evacuee;

(II) any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August, 1947, in anv place now forming part of Pakistan and continues to be so situated after the said date.' As the interest of the petitioners is not in my opinion evacuee property and as none of the sections of the Evacuee Property Law are interfered with or contravened by the provisions of the East Punjab Acquisition ing and Requisitioning Act, there is no case made out for the exercise of the supervisory jurisdiction of this Court on this score.

32. It was then submitted that the Government have given a promise that no land of an evacuee which is less than flfty standard acres In Kharar Tahsil would be acquired for the purpose of allotment to 'Capital oustees'. In support of this the proceedings of the Capital Oustees Board held on the I8th May. 1952, and forwarded to the Additional Deputy Commissioner, Capital, have been placed on the record. In the first place, these f proceedings are of a date after the date of tha order of requisition which Is complained against, and secondly a contravention of this resolution Is not a breach of a statute or a statutory rule In regard to which in our supervisory jurisdiction we can give any relief, but I have nodoubt that if the intention* of the Governmentwas to allay the fears of evacuees from Pakistanwho are allottes of lands in these various villagesand to see that their rehabilitation is not interfered with, the Government will, if proper representation is made to them, give such relief aswas the intention of these proceedings which Ihave mentioned above, but they cannot be enforced by a petition for a writ under Article 226. Iwould therefore discharge these rules but leavethe parties to bear their own costs.


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