D.K. Mahajan, J.
1. Two points have been raised in this petition under Art. 226 of the Constitution of India,
1. that though according to the books of the Department the evacuee property was allottable it has ceased to be allottable because its value at the auction was more than Rs. 10,000/- and
2. that the person who has been put in possession of the evacuee property by the requisitioning authority and has continued in its possession after requisition had come to an end is to be treated as an allottee of that property for the purposes of Rule 26 of the Displaced Persons (Compensation & Rehabilitation) rules.
(2) On the second point, there is a conflict of judicial opinion in this Court. Gurnam Singh J. in Nand Lal v. Regional Settlement Commr. Civil Writ No. 1135 of 1957 D/- 9-5-1958(Punj) held that such a person is to be treated as an allottee and if he satisfies the other requirements as an allottee and if he satisfies the other requirements of rule 26--he is entitled to the transfer of that property under the Displaced Persons (Compensation and Rehabilitation) Act. Grover J., on the other had in Jaswant Singh v, Regional Settlement Commr. Civil Writ No. 1076 of 1958 D/- 18-5-1959(Punj) has taken a contrary view. In this view of the matter it is proper that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench to decide this case.
ORDER OF THE DIVISION BENCH
(3) This writ petition has been placed before us in pursuance of an order of reference passed by my learned brother Mahajan J. inter alia on account of Single Bench decisions which were considered not to be reconcilable; those decision being in Civil Writ No. 1135 of 1957 decided by Gurnam Singh Jon 9-5-1958(Punj) and Civil Writ No. 1076 of 1958 decided by Grover J on 18-5-1959(Punj). The other point necessitating reference has however not been pressed.
(4) The facts giving rise to the present proceedings as stated in writ petition are that an evacuee property No. BII/236 at Ludhiana under the Punjab Requisition and Acquisition Act and was allotted by the District Magistrate to Kesho Nath Raheja respondent No. 3 in this Court who was at the time in the Government service and posted at Ludhiana. Later he was transferred to Simla and thereafter at Chandigrarh. According to the averments in the written petition he was no longer in occupation of the above property after his transfer for Ludhiana. On acquisition of the said property by the Central Government under S. 12 of the Displaced Person (Compensation and Rehabilitation) Act 1954 the question of disposal of the property arose before the Rehabilitation authorities. As this property did not stand allotted in favor of anyone it was auctioned and the petitioner gave a bid of Rs. 12,000/- which being the highest bid was accepted. On behalf of respondent No. 3 his son gave a bid for Rs. 11,500/-. The sale in favour of the petitioner was duly confirmed the letter of confirmation having been received by the petitioner on 7th March 1958.
Respondent No. 3 preferred an appeal against the order the District Rent and Managing Officer accepting the petitioner's bid and it was urged that the property in question should not have been sold by auction. It was rejected by the Assistant Settlement Commissioner but on revision the Chief Settlement Commissioner reversed the order. A further revision by the petitioner to the Central Government under S. 33 of the Act was rejected. It is in these circumstances that the matter has come before us and the only ground on which the impugned order has been assailed is that respondent No. 3 could not be considered to be in sole occupation of the house in question so as to attract Rule 25 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955. In the written statement by respondent No. 3 it has been asserted that after his transfer to Simla his family and children who were studying at Ludhiana remained in this house with the result that the house remained in the occupation of the answering respondent. Indeed the department has also admitted his occupation by charging rent from him up to 30th September, 1955. According to this written statement the District Rent and Managing Officer had illegally and improperly auctioned the house and the said auction has been rightly set aside by respondent No. 3
(5) The petitioner's learned counsel has submitted that this case is covered by the decision of Grover J. in Civil Writ No. 1076 of 1958 D/- 18-5-1959(Punj) In that case Jaswant Singh had in June 1948 been allotted a house at Hoshiarpur as a displaced person on payment of a rent of Rs. 6/- per mensem. Since he was serving as a gain teacher in a Government School on his transfer to Ludhiana he was allotted the disputed house by the District Magistrate in July, 1957, of which he had been paying rent. It is the house which he wanted to be allotted to him under Rules 25 and 26 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955. The respondents in that case urged that Jaswant Singh Gyani had been allotted a house as a displaced person at Hoshiarpur and that the house at Ludhiana which had been originally requisitioned by the District Magistrate had been allotted to T. N. Kapoor of the Civil Supplies Department and on his transfer it was allotted to Jaswant Singh. On its acquisition by the Central Government under section 12 of the Displaced Persons as such was not considered by the Bench for the decision of the controversy but rule 26 was held not to confer any right on the petitioner to claim the transfer of the house in question.
(6) The order of Gurnam Singh J. in Civil Writ No. 1135 of 1957 D/- 9-5-1958(Punj) has no the other had been relied upon by the respondents. In that case a house at Ludhiana belonging to a Muslim evacuee had been requisitioned by the District Magistrate for Nand Lal's residence. Subsequently this property vested in the Custodian who allotted the house to Nand Lal on a monthly rent of Rs. 12/- from 15 the of September, 1947. The petitioner regularly paid the rent till 23rd November, 1956. Thereafter it was acquired by the Central Government and by it was acquired by the Central Government and by a letter the district rent and Managing Officer offered the same as allottable acquired property in petitioner's occupation for transfer to him under the Displaced Persons (compensation and Rehabilitation) Act 1954. Suddenly the District rent and Managing Officer wrote to the petitioner to appear before him on 28th August, 1957 in connection with the transfer of the property on which date he did appear and produced the original allotment order. He heard nothing thereafter till November, 1957, when he received a communication intimating that the property had been requisitioned by the District Magistrate and therefore the offer to him and been cancelled. The petitioner then wrote to the Regional Settlement Commissioner pointing out that the property stood de-requisitioned and was allotted to displaced occupants. Nothing was heard in reply to his representation. In December, 1957, the property was ordered to be requisitioned which necessitated writ proceedings in this Court. Gurnam Singh J. set aside the order of auction observing that if the property was in the sole occupation of a displaced person and it was allottable property. then he is entitled to have it transferred to him and it is wholly unnecessary that it should originally had been allotted to the occupier by the department.
(7) After hearing the learned Counsel for the parties in our opinion this writ petition must fail. It is agreed at the bar that the present case is covered by rule 26 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955 according to which where an applicant for payment of compensation is in sole occupation of a acquired property may be transferred to him in lieu of the compensation payable him under the Act. Reference at the bar has been made to the Bench decision of this Court is Sodhi Harbakhsh Singh v. Central Govt. 64 Punj L R 629; (AIR 1964 Punj 137) where Rules 25 and 26 came up for consideration. Dulat J., who prepared the main judgment of the Bench after reproducing Rule 26 observed that it was somewhat doubtful whether the petitioner before the Bench could legitimately be called a displaced person not holding verified claim but without pursuing the matter further and treating the petitioner there to be anon-claimant the question was whether rule 26 case any obligation on the authorities to transfer allottable property to a non-claimant in whose occupation such property may happen to be or whether the rule merely vests a power in the authority concerned to make the transfer or not according to the circumstances.
The counsel for the petitioner s canvassed in favour of the word 'may' occurring in Rule 26 being treated was place don toe unreported decision of this court one by Shamsher Bahadur J. in Ramji Dass v. The Ministry of Rehabilitation got of India Civil Writ No. 40 of 1960(Punj) and another by Mehar Singh J in S. Karam Singh v, Chief Settlement Commr. Civil Writ No. 685 of 1960(Punj) in which the earlier Single Bench decision was followed. The unreported decision were however concerned with the construction of Rule 25 and Dulat J. felt that the construction of Rule 25 which deals with another category of person and where the context is substantially different. The word 'may' according toe Dulat J ordinarily conveys an ideal of the exercise of discretion and in the context of Rule 26 there appeared to the leaned the word 'may' as suggested. Reading rules 25 and 26 together it was expressly observed that the expression 'may' used in Rule 26 could not be taken as 'must'
The decision of Gurnam Singh j. in Nand Lal's case Civil Writ No. 1135 of 1957, C/- 9-5-1958(Punj) is in my opinion no authority on the directory or mandatory nature of Rule 26, for it neither contains any illumination g discussion nor any helpful reasoning to usefully aid us in the interpretation of Rule 28. It may be remembered that the decision of Grover J. in Jaswant Singh's case Civil Writ No. 1076 of 1953, C/- 18-5-1959(Punj) was unsuccessfully assailed on Letters Patent Appeal in Jaswant Singh v. Regional Settlement Commr. Letters Patent Appeal No, 168 of 1959(Punj) and the Bench took the view that Rule 26 does not confer any right on the claimant and it is open to the authorities whether or not to transfer the property to the occupant.
(8) In view of what has been stated above it is clear that the decision of Gurnam Singh J. on Nand Lal's case Civil Writ No. 1135 of 1957 D/- 9-5-1958(Punj) is no authority for the proposition that Rule 28 is mandatory. In case however that judgment is open to be so constructed then in our opinion it does not lay down a correct rule of law.
(9) The result therefore is that this writ petition fails an is hereby dismissed but without costs.
(10) Petition dismissed.