GHAZANFAR ALI GONDAL, J.-The facts of the case are that Nanak, predecessor of the petitioners being a J & K refugee was given, on 5-6-1959,, temporary allotment of 118 karals and 13 marlas of land in village Panj Garaien, Tehsil Narowal, District Sialkot for maintenance purposes. He was given possession of the same on 28-6-1959. In April, 1974 respondents No. 2 to 8 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, for cancellation of sail temporary allotment on the ground that said Nanak had obtained permanent allotment, according to his entitlement in the villages Dhingran--wali, Hinjranwala, Kharlanwala, Kassoki and Mangat Uncha of Tehsil Hafizabad, District Gujranwala in the year 1962 and consequently he was not entitled to retain the land of his said temporary allotment, Petitioners did not controvert the above factual allegation and on the other hand raised the question that 110 or 210 P. I. Units from verified claim of Nanak were still pending and the said land of temporary allotment of Nanak was liable to be . Adjusted against said pending units and could not be cancelled. However, in spite of number of opportunities having been granted, petitioners did not produce the necessary evidence to establish that any units of Nanak were still left unsatisfied. On the basis of Khatas of register R. L.11 of said villages in Teh: Hafizabad, District Gujranwala, the A. D. C. (C), Sialkot/Additional Settlement Commissioner C. S. C. Came to the conclusion that land confirmed to the name of Napak in said villages of Tehsil Hafizabad was of the value of 1425 P. I. Units while entitlement of Nanak according to his verified claim was of 1420 units and as such claim of Nanak having been fully satisfied in District Gujranwala, the said area of temporary allotment of Nanak in District Sialkot was liable to be cancelled under para. 23-A of instructions ,issued under West Pakistan Rehabilitation Settlement Scheme, 1957 and petitioners had no right to retain the same. Accordingly, he, by his order dated 3C-9-1976, cancelled the said temporary allotment of Nanak and allotted and confirmed the same in the name of respondents 2 to 8. This writ petition is directed against said order of A. D. C. (C), Sialkot exercising powers of Chief Settlement Commissioner.
2. Learned counsel appearing on behalf of the petitioners in support of this writ petition has raised the following points :-
(i) That Nanak father of the petitioners, had not obtained allotments in said five villages of district Gujranwala and the said allotments were bogus and entitlement of Nanak could not be affected by the said bogus allotments.
(ii) That under clause 3(ii) of Permanent Allotment Jammu & Kashmir) Scheme promulgated on 23-12-1961, it was obligatory on Settlement authorities to make permanent, the temporary allotment already made to Nanak. Therefore, the temporary allotment obtained by Nanak could not be cancelled from his name, nor could it be allotted to respondents 2 to 8.
(iii) That temporary allotment in the name of Nanak, petitioners' father, a J & K refugee which had been made in lieu of maintenance could not have been cancelled as laid down in clause 4-A (ix) of West Pakistan Rehabilitation Settlement Scheme and the same could not have been allotted to anyone in satisfaction of a claim.
(iv) That all land of temporary allotment made in favour of 1 & K refugees in lieu of free rations or for the purpose of maintenance had been sold to the Ministry, of J & K affairs, Government of Pakistan in 1960 and stood excluded from compensation pool and A. D. C. (C)/Chief Settlement Commissioner had no jurisdiction under sections 10 and 11 of the Act to cancel the said land on the basis of para. 23-A of instructions issued under clause 23 of West Pakistan Rehabilitation Settlement Scheme, 1959 and allot it to respondents 2 to 8.
3. I have considered the above contentions in the light of arguments addressed by the counsel for the parties. So far as the first contention is concerned it was never raised before A. D. C. (C), Sialkot/Chief Settlement Commissioner and is a wholly new plea. It needs factual enquiry and cannot be allowed to be raised for the first time in the High Court. `' Furthermore before the A. D. C.
(C)/Chief Settlement Commissioner peti--tioners had not disowned the said permanent allotments in said five villages of Tebsil Hafizabad, District Gujranwala. They had never pleaded there that these allotments were bogus and had not been obtained by Nanak, their father.
According to A. D. C. (C)/Chief Settlement Commis--sioner the petitioners had not, in reply, controverted the allegation that their father Nanak had got permanent allotments in said five villages of Tehsil Hafizabad. As given in para. 4 of his judgment, their claim there was that Nanak, their father had still outstanding units which were yet to be sati4fied and, the temporary allotment in village Punj Garaien made ill his favour in lieu of maintenance was liable to be adjusted in satisfaction of the said outstanding - units. The learned counsel for the petitioners has neither urged in the writ petition or in his arguments nor placed any material on the record of this writ petition to show that this description by the A. D. C. (C)/Chief Settlement Commissioner in his said order is wrong and that petitioners had raised the question there that allotments in said villages had not been obtained by Nanak.
Therefore, the said description of facts in the judgment of A. D. C. (B)/Sialkot/Chief Settlement Commissioner has to be taken to be correct. On the basis of said facts it is clear that by failing to raise the point in question before A. D. C. (C)/ Chief Settlement Commissioner and by raising on the other hand the point that some units out of the verified claim of Nanak were still unsatisfied and land of temporary allotment of Nanak was liable to be adjusted against said pending units, petitioners had impliedly accepted before A. D. C. (C) Chief Settlement Commissioner that permanent allotments had been obtained by Nanak in said five villages. Having done so before A.
D. C. (C)/Chief Settlement Commissioner, the petitioners are barred by estoppel to raise this point here in the High Court as they cannot be e allowed to reprobate what they had approbated before A. D. C. (C) Chief Settlement Commissioner. The contention of the learned counsel is without substance and the same is, therefore, repelled.
4. As for the second contention, it is no doubt true that clause 3(ii) of the Permanent Allotment (Jammu and Kashmir) Scheme promulgated on 23-12-1961 seems to show that the Settlement authorities are under a C obligation to make permanent, the temporary allotments made to Jammu Kashmir refugees but obligation is only in respect of temporary allotment already made under two schemes mentioned in the preamble. These two schemes Nos. 3 and 4 prepared by Chief Settlement Commissioner under section 14 of Displaced Persons (Land Settlement) Act, 1958 in respect of land acquired by Central Government under section 4 of said Act for purposes of said Act, first one was for urban land and the second one for rural land abandoned in India with claims for the same duly verified respectively under Schedules IV and V of the. Registration of Claims (Displaced Persons) Act, 1956. These schemes entail the condition of allot--ments under them to be purely temporary with no right to alienate the land. None of the two opposing counsel nor the counsel for Settlement Department has stated that temporary allotment dated 5-6-1959 was the allotment under the said Scheme No. 4 which is relevant to the case in hand. The said allotment does not appear to be an allotment even under the earlier scheme framed by Rehabilitation Commissioner in respect .Of rural evacuee land, as that also, contemplated making of such temporary allotment to J & K refugees holding verified claims under Schedule V of said Act. As a matter of fact it is clear from certified copy of Fard Taqsim produced as Annex. `A' that said allotment. Was not an allotment under any of said schemes but was a temporary allotment in lieu of free rations or for purposes of maintenance irrespective of the circumstance whether Nanak had a claim or was holding a verified claim under said Schedule V or not. This is made clear by the fact that the said allotment is not on form prescribed for Register R. L. II and furthermore it gives permit number of Nanak and states that number of ration card issued to Nanak was not available. In this view of the .Matter, I do not think that Settlement authorities were under any legal obligation on the basis of said clause 3tii) of the said scheme alone to adjust the land of said temporary allotment of Nanak at the time of making any permanent allotment in lieu of the verified claim of Nanak. It is no doubt true that under clause 5 of Permanent Allotment (Jammu & Kashmir) Scheme, provisions of Scheme No. 4 framed by Chief Settlement Commissioner for temporary allotment of rural agricultural land to Jammu & Kashmir displaced persons with verified claim in said Schedule V were made applicable and clause 6 of said later scheme in its own turn made applicable provisions made in Supplementary Rural Scheme to West Pakistan Rehabilitation Settlement Scheme and clauses 3 & 18 of said Supplementary Rural Scheme made applicable the provision of West Pakistan Rehabilitation Settlement Scheme and as such para. 14 of interactions issued under clause 23 of West Pakistan Rehabilitation Settlement Scheme applied to the Permanent Allotment (J & K) Scheme and said para 14 also provided for adjustment of temporary allotment against verified claim at the time of permanent allotment but it is significant that actual words in the said instructions are that whale making permanent allotment, no refugee is to be displaced against his will from land regularly allotted to him by a competent authority. The Khatas of Register R. L. II of said five villages of Tehsil Hafizabad, District Gujranwala (photostat copies placed on record on my direction) on which said permanent allotments were made do not show that any objection was raised by general attorney of Nanak who appeared before Settlement authority on behalf of Nanak to get land confirmed that land of Nanak's temporary allotment in District Sialkot should first be confirmed and that Nanak should not be displaced from his temporary allotment against his will.
Even otherwise a party for whose benefit a provision is made in some law, can waive it even if it is mandatory. Reference in this! Connection is made to law laid down by this Court in case of Masood Hussain v. Muhammad Saeed Khan PLD 1965 Lah. 11It is clear that Nanak had by getting permanent allotment in said five villages of Tebsil Hafizabad, District Gujranwala waived his right to have the land of his temporary allotment in village Punj Garaien, Tehsil Narowal, District Sialkot made permanent for his benefit. He voluntarily gave up his said rights in the said temporary allotment. This point -too has, therefore, no force.
5. So far as the-third contention is concerned, there is no doubt that under clause 4-A (ix) of West Pakistan Rehabilitation Settlement Scheme, 1957, the land allotted on temporary basis to Jammu and Kashmir refugees is not to be allotted under the West Pakistan Rehabilitation Settlement Scheme and is to remain excluded from the Scheme but the effect of exclusion of such land from allotment operations under West Pakistan Rehabilitation Settlement Scheme is confined only to putting an embargo on the power of Settlement authorities to allot such land to displaced persons from prescribed area in India. This is made clear by reading clause 2 of West Pakistan Rehabilitation Settlement Scheme with clause 1 (4) thereof. According to clause 2, all displaced persons who abandoned land in prescribed area are to be allotted land under the. West Pakistan Rehabilitation Settlement Scheme and according to clause 101) prescribed area is Punjab (India)
States. Delhi Province and States of Alwar, Baharatpur and Bikaneer and any other area which the Central Government may declare to be prescribed area. It is not the case of any of the parties that occupied State of 1 & K was declared to be a prescribed area. The said land, therefore, continued to remain available for permanent allotment to Displaced Persons froth non-prescribed areas including those from State of Jammu and Kashmir, inasmuch as, though excluded from operations under West Pakistan Rehabilitation Settlement Scheme, the said land (unless found to have been sold) was a part of Rehabilitation Pool constituted under 6(1) of Pakistan Rehabilitation Act, 1956 and after acquisition by Government of all land under section 4 of Displaced Persons (Land Settlement) Act, 1958 by a notification dated 8th of June, 1960 was a part of compensation pool.
Under section 14(1) of Displaced Persons (Land Settlement) Act, 1958, Permanent Allotment (Jammu and Kashmir) Scheme was promulgated on 23-12-1961. There is no doubt that clause 5 of this scheme says that provisions of Scheme No. 4 for allotment of land to Jammu and Kashmir refugees in lieu of their verified claim under Schedule V of Registration of Claims (Displaced Persons) Act, 1956 shall apply in all matters relating to completion of allotments and matters incidental thereto and clause 6 of the said Scheme No. IV also applies provisions of Supplementary rural scheme to the West Pakistan Rehabilitation Settlement Scheme and clause 3 of said Supplementary scheme makes applicable the provisions of West Pakistan Rehabilitation Settlement Scheme but these do not, in my opinion, incorporate the provision made in clause 4-A
(ix) ante in the Permanent Allotment (J & K) Scheme. The reason for this is that provision made in clause 4-A (ix) is exclusive to West Pakistan Rehabilitation Settlement Scheme and excludes land allotted temporarily to Jammu & Kashmir refugees from operation under Rehabilitation Settle-- ment Scheme alone and does not by itself exclude said land from operations under any other scheme. It cannot, therefore, be imported into Permanent Allotment (Jammu & Kashmir) Scheme.
In Supplementary Rural Scheme to which said clause 4-A (ix) of West Pakistan Rehabilitation Settlement Scheme applies by virtue of clause 3 of said Scheme, express provision was made in clause (1) as amended by correction slip No. 3-SRS dated 22-5-1959, that land under the said Scheme (Supplementary Rural Scheme) was to be allotted to claimants with verified claim under said Schedule V from non-prescribed areas except occupied part of Jammu & Kashmir State. The effect of inclusion of clause 4-A (ix) in Supplementary Rural Scheme was also confined to excluding the temporary allotments made to Jammu & Kashmir refugees from permanent allotment to displaced persons from non-prescribed area other than displaced persons from occupied part of Jammu and Kashmir State and did not by itself exclude said land from operations under other schemes. For this reason too, clause 4-A (ix) of West Pakistan Rehabilitation Settlement Scheme cannot be deemed to have been incorporated in the Permanent Allotment (Jammu and Kashmir) Scheme. Furthermore clause 4-A (ix) is inapplicable to Permanent Allot--ment (Jammu and Kashmir) Scheme for the additional reason that para. 14 of instructions issued under West Pakistan Rehabilitation Settlement Scheme which as shown above is applicable makes it incumbent upon Settlement .Authorities to allot and confirm to a Jammu and Kashmir claimant, first the land of temporary allotment of Jammu and Kashmir refugee if said refugee so wants it.
This clearly negates the applicability of clause 4-A (ix) of West Pakistan Rehabilitation Settlement Scheme to the Permanent Allotment (Jammu and Kashmir) Scheme. Furthermore all the provisions which finally make the provisions of West Pakistan Rehabilitation Settle--ment Scheme applicable to allotments under Permanent Allotment (Jammu and Kashmir) Scheme are subject to the condition that provisions made in West Pakistan Rehabilitation Settlement Scheme will apply mutatis mutandis i.e. With necessary changes. Therefore, all the provisions made in West Pakistan Rehabilitation Settlement Scheme are not to be considered to have been incorporated in Permanent Allotment (Jammu and Kashmir) Scheme irrespective of necessity of any change therein. Permanent Allot--ment (Jammu & Kashmir) Scheme was promulgated for permanent allot--ment to said displaced persons of agricultural land in lieu of their verified claim. It visualized that the displaced persons from Jammu and Kashmir will not be displaced from the land regularly allotted to them by a competent authority against their will. It is clear, therefore, that prohibition of allotting land which originally stood temporarily allotted to Jammu and Kashmir refugees was not liable to be applied in this context. Moreover, so far as the parent act namely Displaced Persons (Land Settlement) Act, 1958 is concerned there is no embargo placed in it on the power of Settlement authorities to make permanent allotment of such land to a Jammu and Kashmir refugee. As long as land of temporary allotment remained in compensation pool power under sections 10 and 11 of said Act could, clearly be exercised to cancel said temporary allotments which were not liable to be maintained any moreso as to make available land for allotment to Jammu and Kashmir refugees in lieu of their verified claims as contemplated by the said scheme. Since the respondents informers were Jammu and Kashmir refugees it cannot be said on the basis of availability in West Pakistan Rehabilitation Settlement Scheme of said provision alone that the A. D.
C. (C)/Chief Settlement Commissioner had no jurisdiction to cancel the land of temporary allotment of the petitioner who was a Jammu and Kashmir refugees. This objection has also, therefore, no merit and is overruled.
6. Learned counsel for the petitioner is, however, on a stronger footing when he urges that the land of temporary allotment given to Jammu and Kashmir refugee in lieu of free rations stood sold to the Ministry of Kashmir !'airs in 1960 and was no more in the compensation pool. Similar point was raised in Sakina Bibi and another v. Moamla and 2 others PLD 1977 Lair. 202wherein -my learned brother Gul Muhammad Khan, J. After thorough examination of the different letters from the Government of Pakistan came to the conclusion that all the temporary allotments made in favour of Jammu and Kashmir refugees for the purposes of their. Maintenance had been sold out to the Ministry of Kashmir Affairs, Government of Pakistan and stood excluded from compensation pool.
The view taken by my learned brother is based upon valid material obtained from the Government record. Nothing substantial has been brought to my notice militating against the correctness of the said view. 1, therefore, respectfully follow the said view and come to the conclusion that all lands in the temporary allotment of Jammu and Kashmir which had been allotted to them in lieu of main-- tenance had been sold by Chief Settlement Commissioner to Ministry of Kashmir Affairs, Government of Pakistan and the same had gone out of the compensation pool.
7. The -letters quoted in the said judgment of -my learned brother show that said sale had already taken place, in 1960. On consequence which naturally flows out of this circumstance is that the Settlement authorities and the Chief Settlement Commissioner lost siezen over the said land in 1960 and had no jurisdiction left thereafter to cancel it consequent on permanent allotments. Made in favour of Nanak in five villages of Tehsil Hafizabad in the year 1962 either at the time of said confirmations in exercise of their normal powers or subsequently in exercise of Chief Settlement Commissioner's special powers under section 10/11 of the Act.
8. The learned counsel for the respondents 2 to 8 contends that para. 23-A of instructions issued under clause 23 of West Pakistan Rehabilitation Settlement Scheme applies to operations under Permanent Allotment (Jammu & Kashmir) Scheme dated 23-12-1961 under which allotment in lieu of verified claim of Nanak had been made and said para made it incumbent upon Settlement authorities to cancel the land of temporary allotment of a claimant as soon as permanent allotment is made to him at another place. For this, he relies on clause 5 of Permanent Allotment (Jammu & Kashmir) Scheme dated 23-12-1.961 read with clause 6 of said Scheme No. 4 and clauses 3 and 18 of Supplementary Rural Scheme which make applicable West Pakistan Rehabilitation Settlement Scheme and ins--tructions issued thereunder to Permanent Allotment (Jammu & Kashmir) Scheme. In my opinion, however, on the basis of the same provisions, clause 22 of Supplementary Rural Scheme which is similar to said para. 23-A of said instructions stood incorporated in the Permanent Allotment (Jammu & Kashmir) Scheme. That clause also provides for cancellation of temporary allotment of a claimant as soon as permanent allotment is made to him at a place other than the one where he, holds temporary allotment.
9. However, the question of application of said provision by a Settle--ment authority could have arisen only if the land of said temporary allotment had continued to remain in the compensation pool. Rut as held earlier, the land of said temporary allotment of Nanak had gone out of . The compensation pool and, therefore, neither said clause 22 of Supplementary Rural Scheme could be invoked and applied nor the Settlement authorities had any jurisdiction left to cancel the said temporary allotment under section 10/11 of Displaced Persons (Land Settlement) Act, 1958 and allot it --.o respondents 2 to 8. The petitioners are, therefore, entitled to hold tire land in question unless the same is required by the Ministry of Kashmir Affairs, Government of Pakistan, who is its absolute owner. The said. Ministry alone could take away the said land from petitioners.
10. The upshot of the above discussion is that by virtue of the sale made by the Chief Settlement Commissioner under section 12 of the Land Settlement Act of all the land temporarily allotted to Jammu and Kashmir refugees for the purpose of their maintenance, the said land of temporary allotment of Nanak had become the property of Ministry of Kashmir Affairs, Government of Pakistan in the year 1960 and, therefore, had been excluded from the compensation pool and the Chief Settlement Commissioner or the respondent delegatee of the Chief Settlement Commissioner had no jurisdiction left to cancel the same and allot it to respondents Nos. 2 to 8. In this view of the matter, this writ petition is allowed and the order of the A. D. C. (C)/Chief Settlement Commissioner is declared to be of no legal effect a having been passed without lawful authority and direction is issued that said land be restored to petitioners. However, in view of the difficult questions of law involved, the, parties are left to bear their own costs.