1. MUHAMMAD HALEEM, ACTG. C. J.-This order will govern Civil Appeals Nos. 134 and 156 of 1974 which arise out of the common order of the Lahore High Court, Bahawalpur Circuit, dated 25th of May, 1973, by which Writ Petitions. Nos. 45-R/69-BWP and 1-R/70-BWP were allowed and the orders of the Chairman, Allotment Committee dated 16th of September, 1966, and the Additional Settlement.
2. Commissioner dated 29th of August, 1967, were restored. These petitions were filed to challenge the order of the Settlement and Rehabilitation Commissioner, Bahawalpur, dated 10th of September, 1969, while allowing the three revision petitions of the appellants, held that the other heirs of Ghulam Muhammad could benefit from the temporary allotment of urban land in favour of Hakim A.I under the Settlement Scheme as at the time of the temporary allotment Hakim A.I was the only major son while the others were minor males and females and, accordingly, their names were not "somehow" entered in the R. L. II.
3. Leave to appeal was granted to consider whether the High Court could substitute its own finding on the question of fact in preference to that of the Settlement Commissioner holding that appellant's 2 to 6 were equally entitled to the benefit of the allotment in the name of their father, Ghulam Muhammad, in the exercise of writ jurisdiction. Leave was, however, refused to A.I Muhammad and his Civil Petition No. 242 of 1974, was, accordingly, dismissed.
4. The appellants are refugees from village Mahandpur, Kapurthala State while A.I Muhammad belonged to village Daranwan, District Jullundhar. On migration to Pakistan, the appellants and A.I Muhammad settled in Chak No. 62/Fateb, Tehsil Hasilpur, District Bahawalpur.
5. The predecessor-in-interest of appellants 1 to 6, namely, Ghulam Muhammad, was killed during the riots in 1947, while migrating to Pakistan. These appellants jointly filed claim Form No. 117951.
6. Similarly, A.I Muhammad filed claim Form No. 1179.43 for the land abandoned by him. These forms were duly verified by the Central Record Office in respect of their rural claim to the extent of 52 Bighas and 18 Biswa s and 46 Bighas and 14 Biswas respectively. Thereafter, 92 Kanals and 16 Marlas of urban land, situate in the same Chak was temporarily allotted to the appellants. A.I Muhammad was also allotted temporarily urban land to the extent of 95 Kanals and 4 Marlas. The Assistant Rehabilitation Commissioner (Land) confirmed the temporary allotment of land on 21st of June, 1957, in favour of the appellants as entry in the R. L. II and similarly A.I Muhammad's temporary allotment of urban land was confirmed in his favour on 18th of July, 1957. However, in 1959, another Assistant Rehabilitation Commissioner (Land) submitted a report to the Deputy Rehabilitation Commissioner (Land) stating that the alloment made in favour of the appellants was liable to be cancelled as the allotment of urban land could not be made against their claim for rural land. The Deputy Rehabilitation Commissioner (Land), by order dated 19th of September, 1959, granted permission for a review of an earlier order of confirmation of land and, thereupon, the Assistant Rehabilitation Commissioner (Land) reviewed the order of his predecessor and cancelled the allotments of the appellants on 9th of February, 1960, as it violated Para. 4-A of the Rehabilitation Settlement Scheme.
7. On 20th of February; 196,0, clause 24 of the Supplementary Scheme No. II was amended as follows:- "Provided further that the Central Government may permit any `person who is in continuous possession of land or garden in urban area for not less than 5 years to retain an area of land of the value of 2200 produce index units in the urban area against his verified claim for urban or rural land by suitable adjustment irrespective of the maximum units fixed by the Chief Settlement---s Rehabilitation Commissioner under clause 8 above."
8. Thereafter there was another amendment the second proviso to para. 24 of the Supplementary Scheme No. II by Memorandum No. 2586; 6342/48-R(L) dated 26th of June, 1963, which reads as under:--- "In super session of the provisions contained in 2nd proviso to Para. 24 of the Supplementary Scheme No. II; the Central Government has decided as a matter of general policy, that the displaced persons who qualify under the provisions contained in the second proviso to clause 24 of Supplementary Scheme No. II circulated by this office endorsement No. 975-60-1 R(P) dated 10th February, 1960, may be permitted to retain their temporary urban, allotments of urban agricultural land against their verified entitlement for rural land or for urban and rural land combined, not exceeding the area held by them in temporary allotment or the maximum scale of allotment fixed by the Chief Settlement Commissioner under paragraph 8 of the for, the first round of urban allotments, whichever is less subject to title. It has also been decided by the Central Government allotments already made in excess of this prescribed scale with permission of the Central Government under the previous provision should not be disturbed. These cases should therefore be checked and allotments made accordingly,"
9. And lastly, by Memorandum No. 2773-64/2335-R(L) dated 1st of July, 1964, the Central Government decided as under:- "The Central Government has further decided that the urban agricultural land held for not less than 5 years by temporary allottees having verified rural land claims but allotted to the claimants under the Supplementary Scheme No. II on the date prior to 8th December, 1960 (being the date of general stay order) should not be withdrawn from the claimants referred to above.
10. The concession extended to rural area claimants for allotment of urban land against rural claims as contemplated in this office circular memorandum under reference, can be availed of by these rural area claimants only whose temporary, urban area allotments were intact on or before the 8th December, 1960, - and had not been disposed of or allotted. To any other claimant under Supplementary Scheme NO. II."
11. 'However, out of the land cancelled from 'the allotment in favour of the appellants, 36 Kanals were allotted to respondent No. 1, Shamshad A.I, who sold it to respondent No. 2, Mst. Rasheeda Akhtar.
12. The appellants and A.I Muhammad filed appeals before the Additional Settlement Commissioner
(Land) to challenge the allotment made in favour of Shamshad A.I who allowed the appeals add remanded the case to the Chairman, Allotment Committee, for working out the entitlement of the appellants and A.I Muhammad in accordance with the amended clause 24 of Supplementary Scheme No. II. The allotment Committee found that appellant No. 1 alone was entitled to retain 17 Kanals of land and rejected the claims of appellants 2 to 6 on the finding that they were not the temporary allottees of the land. In so far as A.I Muhammad was concerned, he was allowed to retain 36 Kanals of land.
13. Against this decision two appeals were filed by appellants 1 to 6 and one by A.I Muhammad before the Additional Settlement Commissioner (Land) who upheld the order of the Chairman, Allotment Committee, dated 19th of September, 1966, on the ground that minor brothers and sisters of appellant No. 1 were not the temporary allottees of urban agricultural land against their verified entitlement of rural land in accordance with Memorandum No. 2586-6343/8-R (L) dated 16th of June, 1963, therefore, they were not entitled to claim the urban land surrendered by Hakim A.I. As for A.I Muhammad, it was further held that he was given the opportunity to exercise the choice of land, and accordingly, his appeal had no merit. Against this order dated 29th of August, 1967, the appellants and A.I Muhammad preferred revisions before the Settlement Commissioner who allowed them by order dated 10th of September, 1969, and remanded the case to the Assistant Rehabilitation Commissioner for a fresh decision on the basis of .His finding as under:- "The petitioners had a rural claim but had urban land temporarily allotted in their names, and since they had been in possession of the land for over 5 years, therefore, they were entitled to get' the land confirmed against their rural claim. Ghulam Muhammad, father of Hakim A.I, petitioner, was the original claimant, who was temporary allottee of urban land against his rural claim, and on the basis of the same, as laid down in the Settlement Scheme the near relations of this Ghulam Muhammad could benefit from his being a temporary allottee. At the time Ghulam Muhammad died, only Hakim A.I, petitioner was major, and the other heirs of Ghulam Muhammad deceased were either minors or females and, therefore, somehow their names were not entered in the R. L. II. It is not possible for illiterate persons to know about such details, or to direct such omissions made by the Settlement staff. The other heirs of Ghulam Muhammad had inherited a share in his claim, and there was thus no reason why they should have been deprived from benefiting from his temporary allotment."
14. A.I Muhammad's plea that he was not given the right of choice was also accepted and his case too was remanded for that purpose.
15. Respondents Nos. 1 and 2 in C. A. 156/74 challenged the order of the Settlement Commissioner in writ jurisdiction through Writ Petition No. 45--R/69-BWP. Similarly, in C. A. 134/74 respondents Fazal Din and Fazal Haq, who were the confirmed allottees of the land surrendered by the appellants challenged the decision of the Settlement Commissioner through Writ Petition No. 1-R/70-BWP. The High Court quashed the order of the Settlement Commissioner holding as under :- "The revision petitions of the other respondents were accepted on the ground that Ghulam Muhammad was a temporary allottee of this urban land and the respondents (his heirs) could benefit from this temporary allotment. This finding is apparently based on misreading of the record. Annexure `A', clearly shows that Hakim A.I was the temporary allottee and not Ghulam Muhammad or his other heirs. During the arguments, the learned counsel for respondents Nos. 1 to 7 conceded that respondents Nos. 3 to 7 were not shown as family members of Hakim A.I. It cannot, therefore, be said that the temporary allotment was obtained by Hakim A.I for their benefit. The other respondents had, therefore, no right to claim allotment of urban land as they were not temporary allottees of this urban land. By allowing them to secure the allotment of this land the Settlement Commissioner has clearly exceeded his authority."
16. On behalf of the appellants, it was contended that the original claim--holder was deceased Ghulam Muhammad, the father of Hakim A.I. Therefore, on the basis of his rural claim, temporary allotment of 92 kanals and 16 marlas urban land was made in favour of his heirs. It was . Next contended that as deceased Ghulam Muhammad died in 1947, Hakim A.I was his only major son while the others were minors and it was, therefore, that their names were omitted for being shown as heirs in "R. L. II. No. 3". Subsequently inheritance mutation was sanctioned on 21st June, 1957, as a result of which the names of all the heirs of the deceased right-holders were entered in R. L. It as confirmed allottees. Accordingly, on the basis of para. 6 of the Supplementary Scheme No. 2, which, according to the learned counsel, had the legal effect. Of incorporating para. 7(5) the Rehabilitation Settlement Scheme therein the other heirs were also the beneficiaries of the temporary allo6acnt of 92 Kanals and 16 Marlas of urban land held by Hakim A.I.
17. It is not disputed that joint claim of deceased Ghulam Muhammad was verified for rural land and that it was Hakim A.I who was, originally allotted urban land against this claim under the Rehabilitation Act which was cancelled by the Assistant Rehabilitation Commissioner (Land) on 9th of February, 1960, on the ground that under Para. 4-A of the Rehabilitation Settlement Scheme; no urban land could be. Allotted against a claim for rural land. The second proviso was added thereafter to clause 24 of Settlement Scheme No. 2, which provision, for the first time, entitled Hakim A.I, the temporary allottee of urban land, to claim its retention provided -he had been in continuous possession of such land for' not less than 5 years. It was on this basis that the' Allotment Committee found Hakim A.I alone entitled to retain 17 Kanals of land- as his share and rejected the claim of appellants 2 to 6 as they were not the temporary allottees of the land. The Settlement Commissioner, while allowing revisions, gave the benefit of para. 7(5I of the Rehabilitation Settlement Scheme to the other heirs as in his opinion they were also entitled to benefit from the singular allotment of urban land made in favour of Hakim A.I on the basis of the deceased right- holder's claim. In holding so, the Settlement Commis--sioner failed to notice that the allotment of urban land was made under Supplementary Scheme. No. II in which an allottee is defined to mean " displaced person, using or occupying urban land on temporary basis under valid permit issued by the Rehabilitation authority ; and. As Hakim A.I held a claim for rural land, he was allotted urban land tough he had entitlement for it. Therefore, the other heirs could not satisfy the definition of the word "allotted" and for that matter even the deceased right holder, which when read with the second proviso to clause 24 of Supplementary Scheme No. II for the first time gave Hakim A.I the right to retain the urban land provided he had fulfilled its requirements. In this context, the other heirs nor for argument sake the deceased right-holder, could fall within its ambit. It was, therefore, that while working out the share of Hakim A.I in the joint claim, the Allotment Committee allowed him to retain 17 Kanals of land as his share as be not only satisfied the defini--petition of an allotted but also fulfilled the requirements of amended clause 24 of Supplementary Scheme No. II.
18. Supplementary Scheme No. II clearly refers to the urban land and was applicable to claimants holding entitlement for such land. The word allottee and the requirements of the amended clause 24 of the Scheme are confined to allotment of land to --the actual allotted :and to 'no other whereas para. 7(5) occurs in Rehabilitation and Settlement Scheme and is applicable to the claim of deceased right-holder in respect of rural land. In para 6 of Supplementary Scheme No. 11, the expression unless specifically provided to the contrary in this Scheme clearly singles out the nature of the Allotment and the actual allotted .Of urban land. Therefore, it is not possible to apply para. 7(5) of the Rehabilitation Settle--ment Scheme to an allotment made under Supplementary Scheme No. II. In particular the. Word "allotted" and the ,imperative conditions laid down in the second proviso to clause 24, as amended; are consequential and cannot be overridden. It was, therefore, that the High Court took the view that the temporary allotment of urban land in favour of Hakim AM could not notionally be held to mean for the benefit of his minor brothers and sisters.
19. As for the question posed for consideration, it did not arise as the decision of this case turned on the interpretation of the provisions of the Schemes and on. The finding of. Fact allegedly reached by the Settlement Commissioner.
20. Accordingly, there is no force in these appeals which are dismissed with costs.