Order
1. This appeal is against the judgment of the High Court dated 17-9-1996.
2. Briefly stated, the facts are as follows:
The land in question was acquired as far back as 1956 by the Government for the purposes of putting up brick kilns to supply bricks for construction of the Bhakra Canal. After the canal was constructed, the land was no longer required by the Government. The Government has framed Standing Order 28. The relevant portion of which reads as under:
“When agricultural or pastoral land has been permanently acquired for public purposes by any department of the Government and is no longer required for such purposes, the disposal of it shall be guided by the general consideration mentioned in paragraphs 493-95 of the Land Administration Manual which are reproduced below:
Paragraph 493
Disposal of land no longer required, where land in the permanent occupation of any department of the Punjab Government is no longer required, it should be handed over to the Deputy Commissioner of the district, who becomes responsible for the disposal of it under the orders of the Commissioner.
‘It may not, however, be permanently alienated without the previous sanction of the Government.’ There is no legal bar to its being put up to auction. But as a matter of grace, the Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less the 15% granted for compulsory acquisition. The price may be lowered if necessary on account of deterioration, or enhanced in the rare case of land having been improved by the use to which the Government had put it. The improvement must be one affecting the quality of the land. The fact that the land which was unirrigated at the time of acquisition can when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of the land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders and where the circumstances of the case are at all out of the common, when for example no price, or merely a nominal price, was paid to the owner in the first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for orders so that the Government may have sufficient material before it to decide whether to offer any special terms to the heirs of the persons from whom that land was acquired.”
3. The respondents filed a suit claiming that the land should be restored to them under the Standing Order because the purposes for which the land was acquired was fulfilled and the land was now not required by the Government and was being leased out by the Government. It was also pointed out that the Government had released lands of other similarly situated persons.
4. This suit was decreed on 28-7-1993 on the basis of Standing Order 28 and also on the ground that the Government could not discriminate between one owner and another. The appeal filed by the State was allowed on 20-5-1995 on the ground that the Standing Order did not confer any right on a party to claim back possession. So far as discrimination was concerned, the appellate court held as follows:
“If the plaintiffs want some relief on the ground of discrimination they should have moved the Hon'ble High Court in writ jurisdiction and not before the civil court which can grant a decree only if the civil rights of a person are infringed.”
The High Court set aside the judgment of the appellate court and restored the decree of the trial court by the impugned judgment.
5. Pending this appeal, Respondent 5 expired. Application to bring on record legal representatives of Respondent 5 has been dismissed in view of the delay of 2058 days in filing that application.
6. On behalf of the respondents it is submitted that the appeal has abated as against Respondent 5 and consequently it also stands abated against all the other respondents. The question whether on the death of one of the parties, the entire appeal abates, is the subject-matter of a number of decisions. This question came for consideration before the Constitution Bench of this Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272. In that case, large tracts of land were acquired for the purposes of development of Delhi. A number of claims were filed and a number of parties sought reference. The Reference Court delivered a common judgment against which one appeal was filed in the High Court. During the pendency of that appeal, some of the claimants died. Their heirs were not brought on record. The High Court held that appeal as a whole abated. The Constitution Bench of this Court set aside the judgment of the High Court. It was held that the question of abatement depends on facts and circumstances of each case, the nature of the right asserted and the relief which had been sought. It was held that if the claims were different and distinct even though they may be sought to be vindicated in one proceeding then the appeal would not abate as a whole. Thus facts and circumstances of each case have to be looked. Amongst other things, if the claim is as heirs of somebody else, then so long as even one representative is on record, the proceedings would not abate as a whole.
7. In this case, the suit had been filed on the footing that Respondents 1 and 2 were the heirs of one Puran Singh who had a half-share in the land and that Respondents 3, 4, 5 and 6 were heirs of one Jagir Singh who had the other half-share. The claim was based on paragraph 493 reproduced hereinabove wherein it is mentioned that the land is to be returned either to the original owners or to their heirs. Therefore, the claim on the basis of these respondents being the heirs of the original owners, namely, Puran Singh and Jagir Singh. The estate of Puran Singh continues to be represented through his sons i.e Respondents 1 and 2. The estate of Jagir Singh still continues to be represented by Respondents 3, 4 and 6. Therefore, in our view, the appeal has not abated.
8. That brings us to the challenge against the decision of the High Court. It has been submitted that Standing Order 28 and paragraph 493 do not create any right in favour of any person to get back possession of the land. There can be no dispute with that proposition. However, at the same time, it is clear that the Government, having taken a policy decision, must implement that policy decision fairly and uniformly. It is not open to the Government to discriminate between persons similarly situated. In this case it has been shown that the Government has acted on the policy decision and released land in favour of other persons. Nothing has been brought on record to show why the policy should not be applied in favour of the respondents. It is admitted that the land is no longer required by the Government. Thus, even though there may be no right in the respondents to claim back possession, we still do not think it fit to interfere as it has been clearly shown that the Government is acting discriminately. The appeal, therefore, stands dismissed. There will be no order as to costs.