1. The dispute in this petition under Articles 226 and 277 of the Constitution of India is concerned with House No. 262 in Malot Mandi in Ferozepur district. The house in its entirely has been transferred to the 4th respondent Kaura Mal under rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, by order of the Settlement Commissioner passed on 18th of November, 1961, and of the Displaced Persons (Compensation and Rehabilitation) Act on 8th of February, 1962.
(2) It is not disputed that house No. 262 in Malot Mandi was allotted to the petitioner, the fourth respondent and 5 other persons. Later on, Ram Singh, one of the allottees, left the portion which had been allotted to him, and he is no longer interested in the transfer of the portion which had been in his occupation. When the question for permanent transfer of house No. 262 was taken up for consideration after the acquisition of all evacuee properties by the Central Government, it was first transferred to the fourth respondent by the Assistant Settlement Officer, Ludhiana, on 29th of September, 1959. From this order, five appeals were preferred, one by other petitioner and the other by four other occupants, on the ground that the property being divisible should have been allotted to all the occupants. This contention found favour with the Assistant Settlement Commissioner, Ludhiana, who on 26th of November, 1959, remanded the proceedings with a direction that the question of divisibility should be considered and allotment made accordingly.
The property was held to be divisible by the Assistant Settlement Officer on remand and the fourth respondent still feeling aggrieved field an appeal before by Settlement Commissioner. In the order passed by the Settlement Commissioner, which is sought to be impugned in these proceedings, of 18th of November, 1961, the view was taken that as the property was in occupation of only six out of the seven original allottees, it could not be dealt with under the provisions of rule 30. On this short ground the petition was allowed and the order for transfer in favour of the 4th respondent was passed.
(3) At this stage, it would be useful to set out the provisions of rule 30 which it may be observed parenthetically has now been deleted altogether:
''30. If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allotable property, the property shall be offered to the person whose gross compensation is the highest and other persons may be allotted such other acquired evacuee property which is allotable as may be available.'
(4) The rule has been construed to mean that the property, if it is found to be divisible, ought to be allotted to the occupants in occupation of it and if not to the person whose gross compensation is the highest. Once the property is found to be divisible,, it has to be allotted amongst the occupants. The view taken by the Settlement Commissioner is in direct conflict with the one which has been adopted by a Division Bench of Chief Justice Falshaw and Tek C hand I, in Ranjit Singh v. Union of India, 1962-64 Pun L R 44, where it was held that the language of Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, is not meant to be applied too rigidly and where there are three occupants of portions of a prosperity which can only be conveniently sub divided into two portion, the claims of two occupants can be met. The ruling of this decision supports the petitioner's contention. Ram Singh who has abandoned his claim to the portion which was allotted to him is no longer in the picture, and it cannot be said that if all the original allottees are not in occupation, the property, ceases to be divisible amongst the allottees who are still in occupation.
In Ranjit Singh's case, 1962-64 Pun L R 44, as the property was found to be divisible into two portions, it was held that the claims of at least two out of the three allottees could be met. The principle is not different in the present case. The learned Settlement Commissioner was influenced boy a Single Bench Judgment of Grover J. in Diwan Chand v. Union of India, 1960-62 Pun L R 604: (AIR 1961 Punj 449) where it was held that if the property can be allotted to each occupant, it will not be offered to the person whose compensation is nearest to the value of the property, but if it cannot be partitioned or divided properly in the aforesaid manner, then it must be offered to that person whose compensation is nearest to the value of the property. This authority cannot be construed to mean to that where one out of the seven allottees has disappeared from the scene the properly has ceased to be divisible. In any event, such a view is directly opposed to the ratio of the Division Bench authority in Ranjit Singh's case 1962-64 Pun L R 44.
(5) Mr. Sibal, the counsel for the fourth respondent, submits that the petitioner not being a verified claimant, the right of the 4th respondent who is a claimant, should be preferred. Now, in the explanation to oral 30, it is clearly provided that the principle is applicable to a property which is partly held by a verified claimant and partly by a person not holding such a claim. Apart from the plain language of the explanation it is also ruled by Division Bench of Chief Justice Falshaw and Harbans Singh J. In Kewal Krishna V. Government of India, 1963-65 Pun L R 288: (AIR 1963 Punj 246), that ' it is not correct to say that rule 30 of Displaced Persons (Compensation and Rehabilitation) Rules does not apply where there is contest between a single claimant and a single-non-claimant. The rule does govern cases where the contest is between a claimant and a non-clamaint.'' The contest between a claimant and a non-claimant when they are both in occupation would be determined boy the question of divisibility and divisibility alone. Such is the plain meaning of rule 30, read with the explanation.
(6) In my view, the learned Settlement Commissioner has not taken the right view in following the decision of the Single bench in 1960-62 Pun LR 604: (AIR 1961 Punj 449) which is in conflict with a later Division Bench authority of this Court. The order impugned, therefore, must be quashed and set aside. The appropriate authorities will now proceed with the matter in accordance with law.
(7) In the circumstances, I would make no order as to costs.
(8) Order accordingly.