The petitioners are the heirs of Ch. Shahabbuddin (heareinafter referred to as the deceased) who is a claimant displaced person from Amritsar, an agreed area. The deceased was allotted land comprising of survey Nos. 319, :520, 328, 329, 331, 332 and 334, measuring 42 4 acres situated on Deh Sarhari, taluka Shahdadpur, district Sanghar, on 4th October, 1957, as per Khatoni No. 28 issued against his verified claim. After the payment of Rehabilitation Fees, the land stood permanently transferred to the deceased under the provisions of Rehabilitation Act and the West Pakistan Rehabilitation Settlement Scheme, 1956.
2 Ch. Muhammad Ashraf, the son of the deceased, was called upon by a notice dated 17th October, 1964, by the respondent No. 3 to show cause as to why he should not be ejected from survey Nos.
320 and 332, which were stated to have been allotted to the respondent No. 4. Ch. Muhammad Ashraf replied to the said Show Cause Notice while the deceased himself filed an appeal against the same Before the respondent No. 2. The respondent No. 2, dismissed the appeal on 28th June, 19 66 and instead of confining himself to the disputed trio survey numbers he also cancelled the allotment of the deceased in respect of the remaining survey numbers, which hitherto had remained undisturbed. The remain--ing survey numbers were then allotted to respondent No. 5 on 29th July, 1966. The revision application of the deceased was dismissed by the learned 1st respondent by a short order dated 24th June, 1967. This petition is directed against the Show- Cause Notice dated -12th October, 1964 and the orders of the respondents Nos. 1 and 2 passed respectively on 24th June, 1967 and 28th June, 1966.
Mr. Ismail Munshi, learned counsel for the petitioner, contended that the deceased had been permanently settled on the disputed land under the provisions of Pakistan Rehabilitation Act, 1956 and the West Pakistan Rehabilitation Settlement Scheme, framed thereunder, and as such the transfer of the land could not be cancelled except in the exercise of powers under sections 10 and 11 of the Displaced Persons (Land Settle--ment) Act, 1958 by the Chief Settlement Commissioner or his delegates. Admittedly in the instant case the orders of cancellation of transfer of the land to the deceased were not passed under sections 10 and 11 of the Act. The learned counsel further contended that in so far as the allot--ment of two survey numbers to the respondent No. 4 was concerned, the same was void ab initio as no allotment could be made without the cancellation of a subsisting prior allotment. The order of the 2nd respon--dent was also challenged on the ground that he had exceeded his jurisdiction by cancelling the allotment of remaining Survey numbers without any Show-cause Notice to the deceased while the appeal was confined to only two survey numbers.
4. In so far as the allotment of survey numbers 320 and 332 is concerned, the question poses no difficulty in view of the judgment of the Supreme Court in the case of Muhammad Bashir v.
Muhammad Khan and others (1975 SCMR 173) which lays down that no fresh allotment could be made A without cancellation of a previous order of allotment. The allotment of the two survey numbers to the 4th respondent was thus patently, without jurisdiction.
5. The next question which requires consideration is with regard to the jurisdiction of the Settlement Authorities for the cancellation of permanent transfers which stood finalized under the provisions of the Pakistan Rehabilitation Act, 1956, and the Scheme framed thereunder.
6. The West Pakistan Rehabilitation Settlement Scheme was framed under section 6 (i) of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) and Section '7 (1) of the Baluchistan Rehabilitation Regulation, 1950 (11 of 1950). Although the Displaced Persons (Land Settlement) Act, was passed subsequently in 1958 and section 14 thereof provided that the Chief Settlement Commissioner shall prepare one or more Schemes for allotment of land to displaced persons against their verified claims out of the compensation pool constitute under section 5 of Act, the Chief Settlement Commissioner did trot frame any Scheme thereunder. In the Act Scheme has been defined in clause 7 of section 2 and means a Rehabili--tation Settlement Scheme prepared under the Pakistan Rehabilitation Act, 1956 and Baluchistan Regulation 1950, thus adopting the West Pakistan Rehabilitation Settlement Scheme for the purpose of permanent transfer of lands to the displaced persons against their verified claims.
7. The provision with regard to permanent Settlement is contained in section 15 of the Act, subsection (l) of the said section authorises the Settlement Authorities to allot land to the displaced persons in accordance with any of the Schemes executed under section 14. As already noticed, no Scheme was framed under section 14 of the Act and allotments continued to be made under the provisions of the West Pakistan Rehabilitation Act, 1956 and the Scheme framed thereunder, subsection (3) of section 15, which is relevant, is as under :- Section 15 (3).-A displaced person to whom any land has been allotted by a Rehabilitation authority before the commencement of this
(7) a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government. Provided that no order of Permanent Settlement shall be passed in cases where-
(a) the land held by the allottee concerned is the subject-matter of an appeal, revision or reviews before a Rehabilitation authority or
(b) the land has been allotted in lieu of rights as a mortgagor or mortgagee and the allottee has not fulfilled the prescribed terms and conditions ; or
(c) the land has been allotted provisionally on the basis of inconclusive data.
It would appear from the above section that, except for the limitations laid down in the Proviso a displaced person to whom land was allotted by a Rehabilitation Authority under the provisions of the Rehabilitation Settlement Scheme, 1956, was entitled to be settled permanently on the land on payment of fee later prescribed and termed as `Rehabilitation Fee' The next section 16 of the Act is as under :- Section 16.-Notwithstanding anything contained in any other law for the time being in force, the land, on which a displaced person in permanently settled under this Act, shall vest absolutely to such person."
The effect of subsection (3) of section 15 read with section 16 of the Act, therefore, is that a displaced person to whom land is transferred under the scheme acquires full ownership right in the transferred land. However, such transfers are open to cancellation by the Chief Settlement Commissioner under Sections 10 and I t of the Act. Section 10 can be invoked only where allotment of land was obtained by means of fraud or false representation while section authorises the Chief Settlement Commissioner, notwithstanding anything contained m any other law for the time being in force, but subject the provisions of the Act and Rules made there under, to cancel or terminate any allotment or lease under the Act or amend or vary the terms of any such allotment or lease.
The Chief Settlement Commissioner had at the relevant time delegated his authority under sections 10 and 1 l of the Act by name to Sardar Hidayatullah Khan, Deputy Settlement Commissioner Headquarters, by a Notification No. 103 (DSC)j7883-I-Admn.jReh/65 dated 12th January, 1966.
From the above discussion it is clear that the respondents Nos. 1 and 2 had no jurisdiction under sections 10 and 11 of the Act and on the face of it they had not exercised any authority under the said sections. As L, such the action of the respondents Nos. 1 and 2 respectively, in cancelling, and confirming the cancellation, of finalized transfer of land to the decea--sed claimant was without any jurisdiction.
8. The upshot of the above discussion is that the orders passed by respondents Nos. 1, 2 and 3 dated 12th October, 1964, 28th July, 1966 and` 24th June, 1967 are declared to have been passed without lawful authority and are quashed and the petition is allowed with costs.
M. Y. H Petition allotted.