1. MUHAMMAD HALEEM, J.-This appeal by special leave arises out of the judgment of the former High Court of West Pakistan, Peshawar Bench, dated 17th of December, 1968, by which L. P. A. No. 46 of 1968 was dismissed in limine.
2. The facts are that respondent No. 7, the widow of Major-General Sher Khan who was killed in an air accident was given an allowance of Rs. 200 p. m. In 1952 from the income of the evacuee lands of Hukam Chand but as one of his sons embraced Islam he was allowed to retain the lands and, thereafter, 13 kanals and 16 Marlas of land in village Jabba Daud Zai and 52 Kanals and 3 Marlas in village Qasim, Tehsil Nowshera, were allotted to her from Rabi 1953 for a period of three years for the education of her minor children by the Assistant Rehabilitation Commissioner by order dated 6 of October, 1952. There is no dispute as to the evacuee nature of the land. Before the expiry of this period she made an application for extending the period of allotment until her minor children attain majority and finish their education but this application was disposed of on the short ground that such request should be made before the end of Kharif 1957. Thereafter on the expiry of the period she made another application on the same ground and the period was extended for one year i. e. Till 1957. There was, however, no further extension of the period after 1957 but she continued to remain in possession.
3. The appellants who had their claims for the satisfaction of 327 and 756 P. I. Units respectively, applied for the allotment of this land and the Deputy Settlement Commissioner (Land) by order dated 29th of April, 1965, permanently allotted it to the appellants She, thereupon, filed an appeal against this order before the Additional Settlement and Rehabilitation Commissioner. It appearsth that by letter dated 29th of November, 1965, he sought clarification from the Chief Settlement and Rehabilitation Commis--sioner as to whether she was an Afghan refugee and if so whether she could retain the land on "political grounds". Reply to this query was sent by the Deputy Secretary (Rural) to the Chief Settlement and Rehabilitation Commis--sioner, West Pakistan, Lahore, by letter dated 8th of December, 1965, wherein his attention was invited to a decision of his predecessor-in office dated 19th of August, 1960, holding her allotment to be on political grounds and, accordingly, it wag stated that no further clarification was necessary. It was further stressed that pursuant to Memo No. 7003/62/7388-P(1), dated 22nd of November, 1962, it should not be disturbed till a final decision was taken by the Government.
4. By order dated 5th of March, 1966, the Additional Settlement and Rehabilitation Commissioner (Land), Peshawar set aside the order of the Deputy Settlement and Rehabilitation Commissioner on the ground that her allotment was cancelled without any notice to her and in disregard of the earlier order in her favour dated 19th of August, 1960. The appellants were, however, not a party in those proceedings but it was one Abdul Wahid who had challenged the allotment. Against this order the appellants went in revision to the Settlement and Rehabilitation Commissioner, Peshawar, but did not succeed as the revision was dismissed on 22nd of July, 1966.
5. The appellants next filed Writ Petition No. 187 of 1967 against the orders dated 5th of March, 1966, and 22nd of July, 1966, of the Settlement authorities, but the petition was dismissed in limine on 17th of June, 1968. It was contended before the learned Single Judge that in view of the provisions of the Displaced Persons (Land Settlement) Act, no allotment of land could be made to respondent No. 7 as she was not a claimant displaced person. But this contention was over ruled as the learned Single Judge held that the Central Government had the authority to allot the land on political grounds which allotment was upheld in the earlier proceedings by the Additional Settle--ment and Rehabilitation Commissioner by order dated 19th of August, 1960. Again such an allotment could not also be disturbed in view of Memo. No. 7003-62/7388-P(1) dated 22nd of November, 1962.
6. The appellants filed a Letters Patent Appeal that too was dismissed in limine on 17th of August, 1968.
7. It was contended before the Letters Patent Bench that the land was not given on political grounds but the learned Judges held that there was a clear recital to this effect in the order of the Additional Settlement and Rehabilitation Commissioner dated 19th of August, 1960, in an appeal filed by Abdul Wahid which conclusion was also supported by the material on record. It was next urged that no allotment of land having been made to respondent No. 7 after 1957, she was not entitled to hold it as such. This contention was repelled on the ground that the appellate order dated 19th of August, 1960, by itself created an allotment and therefore, no further order was necessary. The third contention that the allotment made to the appellants by the Deputy Settlement Commissioner (Land) by order dated 29th of April, 1965, could not have been cancelled by the Additional Settlement and Rehabilitation Commissioner in appeal, was also rejected on the ground that it was allotted to the appellants without any notice to her and that further in view of the earlier decision of the appellate authority it was not available for transfer and the Deputy Settlement Commissioner had, therefore, no jurisdiction to set aside that order. Lastly, it was contended that respondent No. 7, not being a displaced person, could not get the allotment of the land as there was no provision for it in the Displaced Persons (Land) Settlement Act. This contention was repelled on the ground that the language of section 12 (b) of the Act was wide enough to include a transfer of land to a person other than claimant displaced person.
8. Leave to appeal was granted to consider the following two legal questions:-
(a) Even if it were to be accepted that the land was initially allotted to respondent No. 7 on political ground, the permanent transfer of the land can only take place under the Displaced Persons (Land Settlement) Act, 1958, and
(b) as to whether the High Court, while dismissing the writ petition had correctly construed section 12(b) of the Act.
9. On behalf of the appellants Mr. Khalilur Rahman even challenged the legality of the allotment made in favour of respondent No. 7. His contention was that, she being a local, no allotment could be made in her favour on political or other ground under the Rehabilitation laws and as such it was void ab initio.
10. At the time when the disputed land was allotted to her, the Pakistan Rehabilitation Ordinance, 1948, as amended by the Pakistan Economic Rehabilitation (Amendment) Ordinance, 1949, held the field.
11. Section 7 of the Ordinance created no distinction in the matter of allotment between refugees and locals primarily for the reason to avoid dislocation in the social and economic life of Pakistan caused by the migration of evacuees. Consequently, if an allotment was made under this Ordinance in favour of a local, its legality was not exceptionable. Thereafter, this Ordinance was repealed by the Pakistan Rehabilitation Ordinance, 1956, and section 7 of the earlier Ordinance was re-enacted as section 6 of the repealing Ordinance without creating any distinction between a local and a refugee. This Ordinance was repealed by Pakistan Rehabilitation Act, 1956, and section 6 continued to remain therein in the same terms.: --.
12. By an order of the Central Government dated 24th of March, 1956, the Rehabilitation Commissioner, West Pakistan, was directed under section 6(1) of the Act to pool all evacuee land in West Pakistan and to allot the same to persons resident in Pakistan refugees or not. Thereupon, the Rehabilitation Commissioner prepared a scheme in 1956, known as Rehabilitation Settlement Scheme for carrying into effect the objects of the order. The proviso to the preamble of the Scheme recites: "Provided that an allotment made and action taken under previous schemes will not be dislocated or adversely affected in consequence of this scheme."
13. By the proviso, the allotment made to respondent No. 7 was kept intact as the order of the Central Government which is incorporated in the scheme created no distinction between refugees and displaced person. Therefore, the allotment continued to have legal force and was kept alive even after the period of allotment had expired in 1957. I may add that in the context of the object of this legislation and the absence of any distinction between refugees and locals, the ground namely, political or for the education of her minor children would hardly be of any relevance. Having held so the disputed land was not available for transfer and, therefore, it could not have been proposed to the appellants of 24th of April,, 1965, and confirmed on 29th of April, 1965.
14. Equally, for the reasons that on 19th of August, 1960, the Additional Settlement and Rehabilitation Commissioner upheld the allotment in proceedings between respondent No. 7 and one Abdul Wahid which order held the field and the Deputy Settlement Commissioner (Land) in ignorance of it proposed the disputed land to the appellants and later confirmed it when he could not do so. It is true that the appellants were not a party in those proceedings but that would not have made any difference as the disputed land could not have been proposed unless it was available for transfer.
15. Again, the Central Government by Memo. No. 7003-62/7388-P(1) dated 22nd of November, 1962, had ordered status quo till a final decision was taken which barred its disposal to any other person.
16. Therefore, the Deputy Settlement Commissioner (Land) was not competent to treat. It as available land for disposal.
17. Another off sheet of the contention raised by the learned counsel for the appellants was that respondent No. 7 could not have been granted maintenance allowance; and further that after its discontinuance she could nor have been allotted land in lieu of it. According to the learned counsel this allowance could only be given to a refugee and not to a local under section 16(c) of the Pakistan (Protection of Evacuee Property) Ordinance, 1958, and rule 22 of the Administration of Evacuee Property Rules, 1950. This argument will not advance the case of the appellants, for, even if the payment of maintenance allowance was not strictly legal still it would be of no consequence as the order of allotment dated 6th of October, 1952, does not recite that the allotment was made in lieu of discontinuance of the maintenance allowance which is the gravamen of the contention.
18. The learned counsel next relied on the supplementary Rural Scheme No. 1 prepared by the Rehabilitation Commissioner, West Pakistan, under sec--petition 6(1) of the Pakistan Rehabilitation Act, 1956, in pursuance of the order of the Government of Pakistan dated 14th of February, 1957, to contend that the appellants, being claimants from non-agreed area, were entitled to the allotment of the disputed land on the basis of their entitlements to the exclusion of a local who had no claim to retain the land. But this does not supercede the Rehabilitation Settlement Scheme earlier enforced and, therefore, the allotment made to a local is not affected. It only enables the appellants to seek allotment of land in lieu of their verified claims in the district of their choice according to the scale and subject to such terms and conditions as may be prescribed by the Rehabilitation Commissioner, West Pakistan, and in seeking allotment they have no choice of any particular land so as to defeat the allotment of the land held by respondent No. 7, particularly when the proposal and confirmation of the land made to the appellants created no right in the context of the allotment made to respondent No. 7 having been upheld the Additional Settlement Commissioner by order dated 19th of August, 1960, and the order of status quo conveyed by Memo No. 7003-62/7388-P(1) dated 22nd of November, 1962, which land, as observed earlier, was not available for transfer. Consequently, the appellants cannot take the advantage of sub-section (3) of section 15 of the Displaced Persons (Land Settlement) Act as they were not the allottees in possession of the land on which they could be permanently settled. All that can be said is that they could seek allot--ment of the land for the purpose of being permanently on it against their entitle- -ment under subsections (1) and (2) of section 15 and to this extent they have a general beneficial right in the pooled evacuee property but not a vested right to any particular property such as the disputed land.
19. The learned counsel for the appellants relied on Messrs Pakasia Paint Mills Ltd. v. Dr. Abdul Rauf and others (1970 SCMR 739) to finally urge that under the Displaced Persons (Land Settlement) Act, 1958, allotments were to be made to displaced persons under section 14 against their verified claims in respect of the properties in the compensation pool; and that the power of the Chief Settlement Commissioner under section 12 of the Act to dispose of properties in the compensation pool by sale or otherwise was again subject to the provisions of the Act and the rules framed thereunder and it appears to be restricted to disposals in favour of displaced persons. There can be no dispute with this proposition but the pivotal consideration is that even under the Act he has no vested right to claim permanent settlement on the disputed land as he was not an allottee in possession of it under any one of the Schemes. As such it was not open to the appellants to challenge the allotment of that land to respondent No. 7.
20. Further, consequent upon the repeal of the Displaced Persons (Land Settlement) Act, 1958, by the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, respondent No. 7 is entitled to the benefit of the proviso to section 3 of the Act by which the land shall be offered for sale to her as has been in occupation of it for more than four harvests immediately preceding Kharif 1973 It would be inequitable to deprive her of this benefit when the appellants have not been able to establish that they were legally entitled to be settled on the disputed land. It was stated at the Bar that land equivalent to 1,161 out of 1,364 produce index units has been allotted to the first appellant in addition to 114 produce index units which have been utilised against the allotment of a "Baghicha" leaving a balance of only 527 produce index units still to be satisfied. As for the second appellant she has only 229 produce index units which still remained to be satisfied at the time when the Deputy Settlement Commissioner had proposed the disputed land to them. It is not the case that no land was available in Tehsil Nowshera which could not be allotted against their unsatisfied produce index units. Therefore, there is no legal justification to insist on the allotment of the disputed land which was not available for transfer. Accordingly, the present case is distinguishable on facts, and the principle enunciated in the above cited case cannot be applied. Nor is it necessary to advert to the questions on which leave was granted as they do not arise for consideration in the present case on the view that I have taken.
21. I would, therefore, dismiss the appeal but with no order as to costs.
22. AWARUL HAQ, C. J.-I agree.
23. G. SAFDAR SHAH, J.-I agree.