The petitioners are five brothers who are displaced persons from non-agreed area (Allahabad)
India (now Bharat). They filed a joint claim form bearing No, 1759/T under the Registration of Claims (Displaced Persons) Act III of 1956, for an area of 60 Bighas and 9 Bighas of allegedly Chahi Agricultural land left by them in village Rasoolpur Soni in Tehsil Manjanpur District Allahabad. The claim form was verified by Mr. S. Saghir-ulHassan Claims Officer, Rawalpindi on 6-10-1959, fixing one-fifth as the share of the each petitioner.
2. For the purposes of allotment, these:claims were to be dealt with under the Scheme known as "Supplementary Rural Scheme to the West Pakistan Rehabilitation Settlement Scheme", which is printed on page 201 of the book entitled: "The Displaced Persons (Land Settlement) Act (XLVII of 1958)" by M. A. Latif (1958 Edition) (hereinafter called the Book of Latif or Latif's Book). According to Para. 4 of Chapter I, Part II of this Scheme, Rehabilitation Commissioner, West Pakistan Lahore, was to issue a Press note inviting application within specified period for allotment of land under the Scheme in Form QPR-I from claimants whose claims under Schedule V of the Registration of Claims (Displaced Persons) Act III of 1956, had been verified. The claimant was required to attach a certified copy of the order of verification along with his application. The last date for filing form QPR-I was 31-5-1960. Five applications in the form of QPR-I were filed in this case by the petitioners on the 2nd of January 1960, and after the usual checking five respective certificates of entitlement in form QPR-V were issued to them. According to these certificates, each petitioner was entitled to land equivalent to 177 P. I. Units. The total entitlement of the family in this way was 885 P. I. Units.
After verification, the certificates of entitlement (Q. P. R. Vs.,) were sent to D. R. C., Bahawalpur by the Central Record Office. From the D. R. C., Bahawalpur the petitioners on the 11th of February 1960, received notices to intimate the place or places where they wished to obtain land. No choice for any place in District Bahawalpur was given by the petitioners and they rather applied for the transfer of certificates of entitlement (Q. P. R. Vs.,) to Shandra, District Sheikhupura. It is claimed that consequent to this request, the Q. P. R. Vs., of the petitioners reached Tehsildar, Shandra on the 22nd of September 1960, who issued notices to the petitioners to appear and persue their cases before him. On the choice of the petitioners, land in Village Khori was proposed to them on 1-11- 1960. Petitioner No, 1 was proposed land at Khata No, 227; Petitioner No, 2 at Khata No, 228; Petitioner No, 3 at Khata No, 230; Petitioner No, 4 at Khata No, 231 and Petitioner No, 5 at Khata No, 229. The case of the petitioners is that the Tehsildar/A. R. C. did the preliminary checking and issued unsigned Khatonis to them on the basis of which the petitioners are alleged to have obtained possession on 2-11-1960. The land which was thus taken possession of by the petitioners, comprised of 179 kanals and 6 marlas (Barani); 10 kanals (Ghair Mumkin), 62 kanals and 12 marlas (Banjar Qadeem) and 8 kanals (Banjar Jadeed); total being 259 kanals and 18 marlas. The petitioners state that after obtaining possession of the land, they spent a huge amount in levelling the same and cultivating the crop of Kharif 1960 etc.
4. On the 2nd of January 1961, was promulgated Martial Law Regulation No, 84, which was recast with retrospective effect by Martial Law Regulation No, 89 (which appeared in the Gazette dated' 1- 9-1961). Martial Law Regulation No, 84 in its original form is printed at page 311 of Latif's Book.
According to Para. 3 of the Regulation, every claimant was required to submit a written-statement in Form M. R. I which was to replace the original claim. If the written-statement was not filed, then the claim was to stand as cancelled. After the filing of the written-statement, a fresh verification was to be done under a Scheme prepared under Paragraph 5 of the Regulation. The Scheme is printed at page 314 of the Book hereinbefore mentioned. After the routine verification, an entitlement certificate was to be issued in the form of M. R. V. If a person was found not eligible to any land, he was to be issued a Nil Certificate. The entitlement certificate was to be sent to the field, where the allotment, if already obtained, was to be adjusted and the excess land, if any, was to be surrendered. Paragraph 10-A of Martial Law Regulation No, 84 provided that if any person had any grievance against the entitlement certificate, he could file objections and persue the same. The written-statement, hereinbefore mentioned, was to be accompanied by the previous certificate known as Q. P. R. V. (which may have been issued earlier to any claimant under Supplementary Rural Scheme), reference to which has already been made in Paragraph No, 2 of this judgment.
This was the procedure prescribed under Martial Law Regulation No, 84 as originally promulgated.
5. With the reconstitution of the said Regulation in the form of Martial Law Regulation No, 89, the Entitlement Certificates in the form of Q. P. R., Vs.," issued under the Supplementary Rural Scheme were to stand cancelled automatically and claims were to be revivified in accordance with the scale laid down in the form of a system in Paragraph No, 5 of the Martial Law Regulation No, 89.
6. After the promulgation of Martial Law Regulation No, 84, the case of the petitioners is that they filed written-statements in the form M. R. I. on the 18th of February 1961, for which they were given receipts in the usual pro forma M. R. III. When Martial Law Regulation No, 84 was reconstituted on 1- 9-1961, no new declaration or written-statement was filed by the petitioners, because according to them, no such declaration or statement was needed, especially, when they had earlier filed written-statements in the form of M. R. I. under the original Martial Law Regulation. In this state of affairs, five entitlement certificates in form M. R. V. were issued to the petitioners, the chief characteristic being that in them the entitlement was reduced to and fixed at 91 Produce Index Unit (instead of 177 fixed earlier in the Q. P. R. Vs. The particulars of these certificates are as follows : -- 1 2 3 Name Certificate Entitlement S. Shakir Hus - sain Pet. No, 1.Entitlement Certificate dated 21-10-1961.No, 91 P. K Units 131/F S. Mumtaz Hus - sain Pet. No, 2.Entitlement Certificate 132/F dated 21-10- 1961.No. do.
S. Mushtaq Hus sain Pet.
3. Entitlement Certificate 133/F dated 23-10- 1961.No. do.
S. Anwar Hus - sain Pet. No,
4. Entitlement Certificate 135/F dated 21-10- 1961.No. do.
S. Ashfaq Hus - sain Pet. 5.Entitlement Certificate 134/F dated 21-10- 1961.No. do.
The version of the petitioners is, that in the case of petitioner No,3 M. R. V. was sent by the Central Record Office to D. C., Sheik hupura on the 30th of October 1961, and the remaining M. R. Vs , were sent to Bahawalpur by mistake. On the pointing out of the concerned petitioners, the remaining entitlement certificates in the form M. R. V., were also received in Sheikhupura on 20-11-1961.
7. A little earlier, on the 15th of October 1931, Khatas of the petitioners had been cancelled (ex parte) by the A. R. C., apparently, under Para. 7(1) of Martial Law Regulation No, 89, which inter alia stated that, "all certificates in Form Q. P. R. V. and U. R. V. and certificates showing title to land under the original Regulation and any allotment of land made on the basis of any such certificate, shall stand cancelled and shall be deemed never to have been issued or made." Thereafter the land in dispute was proposed in favour of Mst. Hussaini Begum respondent No, 4 on 30-1-1962 and preliminary Khatoonis were issued in her name on 1-3-1962 and her allotment was later on confirmed on 3-8- 1962.
8. Against the last mentioned order, dated 3-8-1962, the petitioners filed an appeal which was rejected by the Deputy Settlement and Rehabilitation Commissioner on 19-10-1962 (Annex. "F") holding that the land in dispute had rightly been cancelled from the names of the petitioners and that they should be accommodated on some other land if available in the village.
9. The petitioners filed a revision which was decided by Mr. Muqarrab Khan, Addl. Settlement and Rehabilitation Commissioner by means of his order, dated 22-12-1962 (Annex. "G") whereby he remanded the case to the Court below after framing certain issues.
10.The petitioners then filed a second revision which was rejected by Mr. Ijaz Hussain Shah Settlement and Rehabilitation Commissioner on 27-4-1963 (Annex. "H") on the ground that no second revision was maintainable before him. The petitioners have come up in writ petition against the aforesaid orders of the Settlement and Rehabilitation authorities. The Writ Petition was filed on 14-5-1963.
11.It may be mentioned that while ordering a remand as mentioned in Para. 9 of this judgment, Mr. Mug arrab Khan, learned Addl. Settlement and Rehabilitation Commissioner, had framed the following issues :- (1)Whether the petitioners were temporary allottees of the land and the land was in their rightful possession at the time of the allotment of the respondent ?
(2)Whether the petitioners went in appeal against the order of the Assistant Rehabilitation Commissioner (Land), dated 15-10-1961 before the land was allotted to the respondents ?
(3)Whether between the date of the first proposal and the date of cancellation of the Khatas of the petitioners, they made any effort to get the land confirmed, if so, the relevant record should be examined ?
This learned Deputy Settlement and Rehabilitation Commissioner, by his order, dated 5-6-1963 (Annex. "R/1") decided all these issues against the petitioners. When the writ petition was filed, it is obvious that this order did not exist in the field.
The case of the petitioners is that they did not submit to the jurisdiction of the learned Deputy Settlement Commissioner in remand proceedings and when the 'said officer passed an order against them, taking it to be an off-shoot of the orders which have been challenged in this writ petition, they filed a Civil Miscellaneous Application bearing No, 4568 of 1968 for raising objections with regard to the order passed in remand. Notice of this application was directed to be issued on the 21st of October 1968, to the learned counsel for the respondents so that they may be prepared on the points which were sought to be raised therein. The question as to whether the said points would be allowed to be raised was left open to be decided at the time of the hearing of the writ petition.
12.The foremost question which arises in the context of the events hereinbefore mentioned is, as to whether the Settlement and Rehabilitation Commissioner was justified in throwing out the petitioners' revision petition on the ground that he had no jurisdiction to deal with the same. If the answer is in the negative, then his order will have to be set aside on account of his having failed to exercise jurisdiction vested in him by law and the case shall have to be sent back to him to decide the revision petition. The question depended upon the proper construction of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ; the Martial Law Regulations noted earlier and other allied law or laws. Since the question was of first inception and was quite difficult and was likely to had to far-reaching consequences, I desired to have the departmental view of the Chief Settlement Commissoner as also of the Central Government. I asked Sardar Hidayat Ullah Khan Mokal, learned Settlement Commissioner (Legal) and Mr. M. B. Zaman, learned Advocate-General to have the said views in black and white so that I may have the benefit of departmental construction. Sufficient and long adjournments were given for this purpose, but I must regret that the said view was not placed before me. In the last resort Mr. M, B. Zaman felt that having asked for time on various occasions for this purpose, he could not venture to suggest indefinite prolongation of this case in this manner any further and submitted that he would present his own point of view on the subject and could not be a party in the delaying of the hearing of the case. He argued well and I must acknowledge the effort he put in this behalf.
13.The claims of the kind were initially registered under the Registration of Claims (Displaced Persons) Act III of 1956 and were verified under its section 6 read with the Registration of Claims (Displaced Persons) Rules, 1955, and the circulars and the directions of the Central Government and other competent authorities issued thereunder from time to time. We need not go into the details of that procedure as the same is not so much relevant in this case. After the claim was verified, an entitlement certificate was issued to a claimant on the basis of which he became eligible to obtain allotment of land (so far as the facts of this case are concerned), as contemplated in (a). The Rehabilitation Settlement Scheme ; (b) read with Supplementary Rural Scheme to the West Pakistan Rehabilitation Settlement Scheme. The sanction for making allotment in pursuance of these Schemes was contained in the Pakistan Rehabilitation Act XLII of 1956. On 23- 9-1958 was promulgated the Displaced Persons (Land Settlement) Act (XLV1I of 1958), which aimed at providing on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property. In India or in any area occupied by India and for matters incidental thereto or connected therewith. Section 4 of the Act authorises inter alia the Central or Provincial Government to acquire evacuee land for any of the purposes of the said Act. In pursuance of this law, there were issued two notifications ; one bearing No, 1676- RR/4R-59, dated 15.4-1959 and the other bearing No, R.5/1-60 (1462), dated 8-6-60. There is no indication in the notification, dated 8-6-1960, whether it is in supersession or in modification of the earlier notification, dated 15-4-1959. The later notification, obviously, refers to the land which was not covered by the earlier notification of the Central Government, dated 15-4-1959. By the earlier Notification, all lands, which were under allotment had been acquired. The notification, dated 8-6- 1960 applies to evacuee agricultural lands other than those which were under allotment and an exception was created in respect of the land with regard to which any proceedings were pending on the date of that notification under the Pakistan Administration of Evacuee Property Act XII of 1957. The effect of the two notifications, when read together, is that all the evacuee agricultural land, which had been validly allotted prior to the 15th of April 1959, ceased to be evacuee property after the notification of the said date even if a proceeding (other than the proceeding for a declaration that it was not evacuee property), was pending in respect of any such land under the Administration of Evacuee Property Act, 1957. The rest of the evacuee agricultural land remained vested in the Custodian till the 8th of June 1960, when the same, except the land about which any proceedings including those for the confirmation of the transactions were pending under the Pakistan Administration of Evacuee Property Act of 1957, were acquired under section 4 of the Displaced Persons Land Settlement Act 1958 (See Ghulam Muhammad v. The Custodian, Evacuee Property ). Land so acquired fell into what is known as the "Compensation Pool" under section 5 of the Displaced Persons (Land Settlement Act XLVII of 1958), for the purpose of granting compensation to displaced persons whose claims have been verified. Section 7 states that "For the effective utilisation of the "Compensation Pools" and "Trust Pool", in pursuance of the provisions of this Act, or the rules made thereunder or for the administration of any property in the pools, the Central Government may take such steps for the custody, management and disposal of the pools as it considers necessary". Subsection (2) of this section lays down that, "subject to such orders as the Central Government may make under subsection (1), the Chief Settlement Commissioner may take such measures as it considers necessary or expedient for the purpose of securing, administering, preserving or managing any property in the pools and may for any such purpose as aforesaid, do all acts, and incur all expenses necessary or incidental thereto and may, in suitable cases, create a charge on any such property." Section 9 provides that, "the Central Government may, by Notification in the official Gazette, appoint a Chief Settlement Commissioner and such number of Settlement Commissioner ; Additional Settlement Commissioner; Deputy Settlement Commissioners and Assistant Settlement Commissioners, as may be necessary for the performance of duties and functions assigned to them by or under this Act and may by general or special order, provide for the distribution or allocation of work to be performed by them." At this stage, may be noted the definitions of certain relevant words as given in the said Act. Section 2(1) defines, "allotment" so as to mean, "an allotment of agricultural land made to a Displaced Person under this Act, or under any scheme in lieu of any claim registered and verified or deemed to have been registered and verified, under any of the (enactments mentioned therein which include the Registration of Claims (Displaced Persons) Act III of 1956). Section 2(7) defines a "scheme" so as to mean, "a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956, or section 7 of the Baluchistan Rehabilitation Regulation, 1950.
Section 2(8) defines "Settlement" so as to mean, conferment on a Displaced Person of any permanent right in or title to, any land under this Act, whether such right or title be proprietary,1 occupancy, tenancy or of any other kind." Section 2(9) defines, "verified" so as to mean, "as respects claims registered under the Registration of Claims (Displaced Persons) Act, 1956 verified under that Act, and as respects claims registered under any of the enactments mentioned in clause (1) verified in accordance with the provisions of that enactment." In subsection (10) of section 2, it is laid down that "all other words and expressions used but not defined in this Act and defined in the Registration of Claims (Displaced Persons) Act, 1956, the Pakistan Rehabilitation Act, 1956 the Pakistan Administration of Evacuee Property Act, 1957, or the Displaced Persons (Compensation and Rehabilitation) Act, 1958, shall have the same meaning as assigned to them in those Acts."
Section 10 authorises the Chief Settlement Commissioner to cancel any allotment obtained by fraud and misrepresentation. Section 11 authorises him even otherwise to cancel or terminate any allotment or to amend or vary the terms of any allotment. Section 14 authorised the Chief Settlement Commissioner to prepare one or more Scheme for allotment to displaced persons against their verified claims of land in the "Compensation Pools" constituted under section 5.
Section 15 states that Settlement Authority, especially, empowered by the Chief Settlement Commissioner in this behalf shall in respect of such verified claims, against which no allotment has been made, before the commencement of this Act, proceed to make an allotment to the displaced person concerned in accordance with the Schemes executed under section 14. Its subsection (2) lays down that subject to the provision of subsection (1) of section 11, an allotment to a displaced person under subsection (I) shall be made on the basis of his entitlement as determined under this Act, or the rules made thereunder. In subsection (3), it is written that a displaced person to whom any land has been allotted by a Rehabilitation Authority, before the commencement of this Act, under a Scheme, as defined in clause (7) of section 2 or by 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 or review before the 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. Sections 18 and 19 authorised filing of appeals and revisions against orders and in cases and proceedings under this Act. I have mentioned all these provisions in detail to show that allotment and permanent Settlement of land in compensation Pool, on displaced persons is the prominent function of the Settelment Authorities under Act XLVII of 1958.
14. In the instant case, the allotment which was made to the petitioners in November 1960 was under Supplementary Rural Scheme (to the West Pakistan Rehabilitation Settlement Scheme). This allotment was, obviously, covered by the definition of this word, as given in section 2(1) of the Displaced Persons Land Settlement Act (XLVII of 1958). This definition has been reproduced above, but I would like to say a few words about its proper scope and construction. In section 2 of the Act, it is written that the definition given therein are subject to any repugnancy in the subject or context.
This means that the definition of the word "allotment" (like definitions of other words), is not at all exhaustive, but is to be assessed with regard to the subject and context of each case. This definition contemplates that- (i)allotments can be made under this Act ; or (ii)under any Scheme ; (iii)in lieu of any claim registered and verified under any of the enactments mentioned therein (as for example the Registration of Claims (Displaced Persons) Act III of 1956; or (iv)deemed to have been registered and verified under any of the said enactments.
The words "any Scheme" again are very important. Though the word "Scheme" is itself defined in section 2(7), but in my view in section 2(1), its scope is very wide and it is not confined only to that Scheme which is defined in section 2(7). Reasons for this may be numerous. Firstly, because section 14 of the Act itself contemplates making of Schemes for allotment of lands against verified claims from "Compensation Pools" and as such such Schemes would also be Schemes and there is no justification to exclude them from the scope of section 2(1) i,e,, allotment about making and cancellation of which power is given in various subsequent sections of the Act. Secondly, the prefix of the word "any" before the word "Scheme" in section 2(1) suggests that the intention is not to confine this word to its technical definition as given in section 2(7) but to enlarge it. Proceeding in this way, once it is held, that the scope of word "Scheme" in section 2(1) is wider, then a Scheme for allotment may be contained in any enactment or rule or regulation different from the Displaced Persons (Land Settlement) Act of 1958. Though these legal instruments may be given any nomenclature, it is their substance and not label which is important to be kept always in mind. If they contain any Scheme or Policy for allotment in lieu of any claims registered or verified or deemed to have been registered or verified, under the enactments mentioned in section 2(1), then the allotments thereunder can be called as allotments within the meaning of section 2(1) of the Act. Proceeding however on the assumption that sanction for allotment in hand was contained in Martial Law Regulations No, 84/89 that fact simpliciter will not make any difference because these Regulations, as will be demonstrated later, simply deal with verification matters and leave the principles of allotment and settlement to be gathered from the provisions of the Displaced Persons (Land Settlement) Act of 1958 and other Schemes relevant to the subject, with a further guarantee that previously allotted land was to be preserved as far as possible. (See section 7 of the Martial Law Regulation No, 89). When, therefore, a Settlement Authority, makes an order with regard to the matter of allotment as distinct from the matter of verification of a claim, then that order can be said to be an order about an allotment as defined in section 2(1) of the Act for the purposes of compensating a displaced person ; and as such will be subject to the incidents of appeal and revision under that Act.
15. The next point to be examined is as to whether a claim after scrutiny etc., under Martial Law Regulations Nos, 84 and 89 ceases to be or can be called "a claim registered or verified or deemed to have been registered and verified under the Registration of Claims (Displaced Persons) Act III of 1956", as contemplated in definition of word "allotment" in section 2(1) so that allotment in pursuance of that claim is also an allotment of that type amenable to the incidents of the Displaced Persons (Land Settlement) Act (XLVII of 1958). In my opinion, the answer to this question would also be in the affirmative. Registration of Claims (Displaced Persons) Act III of 1956, contemplated filing and verification of a claim regarding agricultural land of the present type and so far as the present case is concerned it is a common ground that such claim was filed by the petitioners which was duly verified under that Act. All that the Martial Law Regulations No, 84/89 have done is that they have provided a further scrutiny of that claim. The claim, as filed, was not wiped off altogether. "Claim" in section 2(3) of the Registration of Claims (Displaced Persons) Act III of 1956 was defined so as to mean, the assertion of a right to the ownership of, or to any interest in property which has been treated as evacuee property or of which a Displaced Person has otherwise been deprived under any law for the time being in force in India or in any area occupied by India, except Asam, West Bengal, Tripura and Manipur, but excludes the assertion of any such right or interest in any land as defined in sub-clause (c) of clause (2) and situated within East Punjab, Himachal Pradesh and Delhi, the Patiala and East Punjab States Union and the States of Alwar, Bharatpur and Bikaner. This will show that under Act III of 1956, a claim is merely an assertion of a right to the ownership of or to any interest in property which a Displaced Person has otherwise been deprived of under any law in force in India. To constitute a claim, therefore, within the meaning of this Act, it is sufficient that a Displaced Person should merely assert that he has a right to the ownership of or to some other interest in a property in India, which has been treated as an evacuee property or of which he has been deprived of by some law in India, and it is this claim which he submits for registration. See Syed Abdur Rashid v. Pakistan through the Secretary Ministry of Refugees and Rehabilitation, Karachi and four others . Once such an assertion of a right has been made and that is verified then the said verification can be said to be of a claim as defined in section 2(3) of Act III of 1956. The process of verification may continue throughout under the said Act III of 1956 or may be carried-forward from any particular stage to and before some other machinery. Part verification or scrutiny in this way, under any law, other than Act III of 1956, is also quite within the scope of section 5 of that Act, which contemplates that on receipt of a claim, the Registering Officer shall register and forward the relevant paper to such Authority as the Central Government may prescribe in this behalf. Martial Law Regulation No, 84/89 having been issued by the Government of the day, i,e,, the Chief Martial Law Administrator, did not take the case out of the scope of Act III of 1956 in this respect. It will be seen that all that the Martial Law Regulations Nos, 84 and 89 did was that they provided a machinery for scrutiny and verification of the said claims onward from the stage, to the extent, and on the manner, indicated therein. Though not stated either in Martial Law Regulations Nos, 84 and 89 or in the Registration of Claims (Displaced Persons)
Act III of 1956, a verification under Martial Law Regulations Nos, 84 and 89, can be deemed for the purposes of the question in hand to be a verification under the Parent Act III of 1956 under which the claim was filed because the process employed is one of the continuation of verification and nothing else, as is also borne out from a letter of the authorities reproduced as "second letter" in para. 17 of this judgment. This is further clear from section 6(5) of Martial Law Regulation No, 89 which lays down that for the purpose of calculating the entitlement of a claimant so as to issue any entitlement certificate, the entitlement in respect of Schedules IV and V to the Registration of Claims (Displaced Persons) Act, 1956, shall be added together for the slab fixed in the Martial Law Regulation. This shows that the verification of claim in respect of Schedules IV and V is to stand in tact and is to be allowed. The collective figure on verification, therefore, will embrace also in part the verification made under Act III of 1956. The claim on the whole in these circumstances, will be a claim which will be verified also under the said Act. Allotment or permanent settlement on the basis of such claim or so verified a claim, will be quite within the scope and competence of the Displaced Persons (Land Settlement) Act, 1958 and when the Settlement Authorities passed orders in that respect, vis-a-vis the property in "Compensation Pool", they will be appealable and revisable under that Act. However, to save scrutiny and verification under Martial Law Regulations Nos, 84 and 89 from the incidents of appeal and revision envisaged under the Registration of Claims (Displaced Persons) Act III of 1956, it was specifically provided that this could not be done, obviously, became of the very nature ; scope and the manner of working of those Regulations. But for this special feature, in other ways, the scrutiny and verification under Martial Law Regulations remains a verification of a claim under Act III of 1956 and any allotment in pursuance thereof will be an allotment as hereinbefore referred to which if made by the Settlement Authorities will be subject to an appeal and revision under the Displaced Persons (Land Settlement) Act (XLVII of 1958).
16.Another reason for taking this view is that in Paragraph 3 of the Scheme prepared by the Chief Settlement Commissioner under Paragraph 5 of the scrutiny of Claims (Evacuee Property)
Regulation (Martial Law Regulation No, 84 of 1960), it is laid down that, "subject to the provisions of Regulation and the Scheme, all other matters, including the scale and manner for determining the entitlement shall mutatis mutandis be governed by the West Pakistan Rehabilitation Settlement Scheme the Supplementary Rural Scheme and the Supplementary Scheme No, 2 to the West Pakistan Rehabilitation Settlement Scheme, as the case may be."
17.This shows that in the matter of allotment as distinct from the matter of verification, the Schemes hereinbefore mentioned applied which the Settlement Authorities have jurisdiction to execute under the Displaced Persons (Land Settlement) Act (XLVII of 1958) and when they pass any2 orders in that behalf, the same can be called as orders under the said Act and will be appealable and revisable under sections 18 and 19 thereof. It is to be noticed that in the matter of allotment, the Martial Law Regulations Nos, 84 and 89 do not contemplate (so far as the facts of the present case are concerned) any agency other than the Settlement Authority, (which includes all Officers appointed under the Displaced Persons (Land Settlement) Act, namely, Assistant Settlement Commissioners, Deputy Settlement Commissioners, Additional Settlement Commissioners, Settlement Com-missioners and the Chief Settlement Commissioner). Again in the said Act, since the Settlement Authority is concerned with allotting and settling lands on refugees in lieu of their claims, when the said Authority allots or settles land for this purpose its orders are under that Act in this respect and would be appealable and revisable thereunder. For the view which I have taken, my research has enabled me to lay hand at certain letters of the Chief Settlement Commissioner which are printed at pages 360 and 374 of the Displaced Persons (Land Settlement) Act (X LVII of 1958) 1970 (Revised and enlarged Edition) by M. A. Latif. The first letter reads as follows :- "Effect of Pending Appeals and Revisions under M. L. R.
84. No, 2699-62/1235-R(L) Office of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore Dated the 23rd February 1963.
It has been reported that there had been some litigation amongst displaced persons from the Agreed and Non-Agreed areas over the allotment of the certain pieces of agricultural land. The claimants from the Non-Agreed areas were required to surrender such of the areas which were found to be in excess of their revised entitlement under Martial Law Regulation Nos, 89/91 and on surrender such lands were to vest in the Provincial Government. As a result of Martial Law Regulation No, 84, all appeals filed by the claimants of Non-Agreed areas had abated but there were certain appeals filed by the claimants from the agreed areas against the claimant from the Non-Agreed areas before the promulgation of Martial Law Regulation No,
84. Some of these Non- Agreed area displaced persons have since surrendered such disputed area under Martial Law Regulation No, 89, although their right to hold the allotment was disputed in appeals. The matter was referred to the Central Government and it has been clarified that in the case cited as the basis of the issue raised above, the allotment of land in possession of the displaced persons from Non- Agreed Area would stand altered in appeal or revision. If the fact of surrender accrued before that order was upset in appeal or revision the surrender would be valid and the surrendered land would vest in the Provincial Government. In other cases, that is, when the land was not surrendered before the order originally allotting the land was upset in appeal or revision, the land would not vest in the Provincial Government but revert to the pool."
"It is requested that necessary action may be taken accordingly in such cases. Deputy Secretary (Rural) to the Chief Settlement and Rehabilitation Commissioner, W. Pakistan."
The second letter at page 374 reads as follows :- "The purpose of Martial Law Regulations 84/89". "The promulgation of Martial Law Regulations 84/89/91 was only for the purpose of determining the entitlement of the claimants of agricultural property. At first all the claimants were Shakir called upon to get their claims verified under Martial Law Hussain Regulation 84. But later on, the Government very graciously issued Martial Law Regulation 89, under the Regulation the & Martial Law authorities directed that all the claims which have been verified under the Registration of Claims Act III of 1956 should be accepted as good ; and, on that basis the entitlement of the claimants may be fixed. Under para. 5 of this Regulation a slab system was introduced and the entitlement of the claimants was to be calculated on the scale laid therein.
Martial Law Regulation 89 has nothing to do with the temporary allotments or permanent allotments made by the Settlement Authorities under the provisions of Displaced Persons (Land Settlement) Act of 1958. Similarly M. L. R. 89/91 has nothing to do with the other dispute of the parties namely, whether the allotment of a particular land should have been made to one or the other of the contesting parties. Its scope is very limited i,e,, determination of entitlement only."
18. Observation to somewhat similar strain existed in Yasin Khan and another v. Settlement and Rehabilitation Commissioner, Karachi and others where Waheed-ud-Din, J., (as then his Lordship was) held that, "Martial Law Regulation No, 89 has nothing to do with temporary allotments or permanent allotments made by Settlement Authorities under the Displaced Persons (Land Settlement) Act, 1958." That the ouster of jurisdiction is not complete and does not extend to all matters is clear from Syed Abdul Rehman and others v. Settlement, Rehabilitation and Claims Commissioner, Karachi and another where Fazle-Akbar, J. (with whom the other learned Judges agreed), held that there was no ouster of jurisdiction in the case mentioned therein. Though the facts of that case were different, but I have cited It simply for a general proposition to show that the provisions of Martial Law Regulations No, 84/89 were not so embracing as to cover matters and incidents of all kinds. Another reason which compels me to take the view which I have taken in this case is that whereas orderi of allotments and permanent settlement are otherwise appealable and revisable, there is no justification to hold that when made with reference to the claims of the kind in hand, they should not be so subject, and to me, there appears to be no good reason to so hold, especially, when the agency passing such orders and the principles to be followed are the same.
Any interpretation to the contrary will lead to unjust and inequitable results and will violate the principles of equality before law or equal treatment before law. It is difficult for me to impute any such intention on the part of the Legislature in this respect.
19. As against what has been said above, the argument of Mr. M. B. Zaman learned Advocate- General was four-fold. Firstly, he referred to the provisions of sections 18 and 19 of the Displaced Persons (Land Settlement) Act, 1958 and laying emphasis on their wording argued that it were only orders passed and proceedings taken under this Act which were appealable and revisable.
According to Mr. M. B. Zaman, orders of allotment and permanent Settlement of lands with respect to claims, scrutinised under Martial Law Regulations Nos, 84 and 89 were not orders and proceedings under this Act, and therefore, were not appealable or revisable thereunder I have held already to the contrary in the earlier part of this judgment and need not re-examine this point any more. The Second argument of Mr. M. B. Zaman was that the Settlement authorities which make allotments and settlements in respect of claims under discussion function as persona designata and not as officers empowered under the Displaced Persons (Land Settlement) Act, 1958. I am not prepared to accept this contention as there is nothing of the kind in the said Regulation. Section 2 of Martial Law Regulation No, 89 contains definitions of the words (a) Act, (b) Allotment, (c), Chief Settlement Commissioner; (d) Claim, (e) Claimant; ( f ) Entitlement Certificate; (g) Form and (h) original Regulation and lays down that all other words and expressions defined in the Registration of Claims (Displaced Persons) Act, 1956, shall have the same meaning as assigned to them in that Act. All these definitions suggest that the various officers mentioned therein are not to act as persona designata but with the same definitions, incidents, qualifications and jurisdiction as are mentioned in their respectives laws. The third argument of Mr. M. B. Zaman was with reference to para. 15 of the Martial Law Regulation No, 89 which reads as follows :- "15. Bar to jurisdiction of Courts, etc.--No provision of this Regulation or any order made or any Scheme prepared thereunder shall be called in question in any Court including the High Court and the Supreme Court and no such Court or any other authority shall have jurisdiction in respect3 4 of any matter for the determination of which provisions has been made by or under this Regulation."
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or order of any other kind whatever in relation to any proceeding under this Regulation or any order or Scheme made thereunder or in relation to any thing done or intended to be done by any officer exercising any power or discharging any function under this Regulation."
Mr. M. B. Zaman argued that an order of allotment and permanent settlement being an order under this Regulation (at least in the instant case) it could not be questioned in any Court, nor in appeal or revision under the Displaced Persons (Land Settlement) Act (XLVII of 1958). The contention cannot be accepted. Allotment and permanent Settlement in the instant case was not being done under the Martial Law Regulation but under the Displaced Persons (Land Settlement) Act (XLVII of 1958), and as such the Revisional Jurisdiction of the Settlement Commissioner cannot be ousted on such a ground. Again the key to the interpretation of this section can be gathered from the sentence :- "No such Court or authority as aforesaid shall be competent to grant any injunction or order of any other kind whatever in relation to any proceeding under this Regulation or any order or Scheme made thereunder or in relation to anything done or intended to be done by any officer exercising any power Or discharging any function under this Regulation."
20. A perusal of the whole Regulation will show that for preferential claims of allottees inter se, no provision has been made by or under the Regulation. For that we have the Displaced Persons (Land Settlement) Act which adopts the various Schemes for this purpose. As for example on questions like (i) which type of land is to be allotted ? (ii) what are rights and liabilities of incoming and outgoing allottees ? (iii) what is the ceiling in any particular district? (iv) what are local scales of produce index units ? (v) how rights of allottees and non-allottees are to be fixed (vii) what are principles of allotment.or joint-allotment if warranted in any case ; (viii) what is the rule for the determination of the area for allotment? (ix) or for reservation of the areas how far homogeneous bodies of settlors are to be preserved; shares in wells ; (xii) allotment of gardens; (xiii) cases of inheritance ; (xiv) drawing up of proposals and their confirmations in R. L. II's; (xiv) intactness of Killas ; (xv) buildings and trees on allotted land etc. I have enumerated some of the matters which came up for adjudication while making allotments or permanent settlements. There is no provision in the Martial Law Regulation about any of these topics or other similar matters which means that all these are to be adjudicated upon by the Settlement authorities under the Displaced Persons (Land Settlement) Act and connected Schemes and, as such, their orders will be subject to the appellate and revisional jurisdiction under that Act. The last argument of Mr. M. B. Zaman was that Martial Law Regulations Nos, 84/89 are a complete Code by themselves which do not stand in need of any aid of Displaced Persons (Land Settlement) Act or Schemes referred to therein. This again is not correct ; as I have demonstrated earlier that these Regulations are not complete Codes by themselves, especially, in the matters under discussion.
21. Before parting with this case. I would like to enter a caveat and that is that under the Displaced Persons (Land Settlement) Act, Settlement authorities can deal with such land so far as relevant for the purposes of this case, which is in the "Compensation Pool." If any land goes out of the "Compensation Pool." then the same will be beyond the jurisdiction of the Settlement authorities.
In this way, excess land surrendered under paras. 8 and 9 of the Martial Law Regulation No, 89 vests in the Provincial Government and can be dealt with in such manner as it thinks fit. Orders with regard to such a land not being orders under the Displaced Persons (Land Settlement) Act (XLVII of 1958), which deals with pool properties only, will not be subject to appeal or revision under the said Act. This is further clear from the fact that with regard to such surrendered land, the Martial Law Regulation has laid down a different Scheme and appointed a different agency to deal with the same. This aspect, though in one way supports the caveat which I have entered, from another point of view, it supports the result which I have arrived at in this case, namely, that land which remains in the "Compensation Pool" is to be dealt with and disposed of under the Displaced Persons (Land Settlement) Act by the officers appointed thereunder will be appealable and revisable as stated therein.
22. It was argued by Mr. Gul Muhammad Khan learned counsel for respondent No, 4 that it is possible that the Settlement and Rehabilitation Commissioner treated the revision as having been filed before him under the Pakistan Rehabilitation Act XLVII of 1956 and since no two revisions under that Act are maintainable, therefore, he was justified in dismissing the same on that ground.
If this is so then it is all the more reason to quash his order because it shows that he did not properly comprehend his jurisdiction. As indicated earlier, all evacuee land went into the,"Con3pensation Pool" whereafter Rehabilitation Authorities retained no jurisdiction to deal with the same and the orders which were passed in the matter of allotment were essentially of the Settlement Authorities. There should have been no misunderstanding in this respect on the part of the learned Settlement Commissioner because the Memorandums of revision Annex. "G/1" and Annex. H/1, quoted that they were being filed under the Displaced Persons (Land Settlement) Act, 1958. Strangely enough, after so noticing the learned Settlement Commissioner passed the following order in Annex. "H".
"In the Court of S. Ijaz Hussain Shah, C. S. P., Settlement and Rehabilitation Commissioner, Lahore Division, Lahore.
R. P. No, 198 Syed Shakir Hussain etc. v. Mst. Hussain Begum Reg :--Village Khori, Teh. Ferozewala, District Sheikhupura.
Both the parties are present with their learned counsel. This revision is against the revisional power exercised by the learned Additional Settlement Commissioner. The Act of 1956 does not provide second revision. The petition is not maintainable and is therefore, rejected.
Announced 27-12-1963 (Sd.) S. Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner, Lahore Division, Lahore."
Having found that the revision was against the order of the Additional Settlement Commissioner, who is an officer under the Displaced Persons(Land Settlement) Act, 1958, he dismissed it holding that it was not maintainable under Act of 1956. Which Act of 1956, he meant to refer in his order is not clear and if he meant (as suggested by Mr. Gul Muhammad Khan), the Pakistan Rehabilitation Act XLVII of 1956, then the revisions Annexs. "G/1" and "H/1" had not been filed thereunder, nor it otherwise had any application to the property in hand. The view which I have taken is supported from the earlier Memo. of appeal Annex. "F/1" which too was under the Displaced Persons (Land Settlement) Act of 1958.
23.When confronted with all that has been written above, learned counsel for the respondent No, 4 submitted that mere proposal of land on 1st November 1960 and confirmation of preliminary checking or issuance of unsigned khatunis or delivery of possession, did not amount to an allotment in the eye of law in favour of the petitioners and their entire case which was based on these factors had no substance. On the other hand, learned counsel for the petitioners, with reference to decision of this Court in (i) W. P. No, 2286-R-62, dated 28th June 1963 (ii) its decision in L. P. A. No, 236 of 1963, dated 3rd June 1964; (iii) decision of the Supreme Court in Civil Petition for Special Leave to Appeal No, 239/64, dated 3rd December 1964 ; (iv) decision of this Court in W. P.
No, 691/R-61, dated 28th April 1964 and (v) its decision in L. P. A. No, 224/64 dated 21st May 1964, argtied that such orders in the circumstances of the case do amount to allotment orders. Since I am sending the case to the learned Settlement Commissioner, he can attend to this and all such other matters which the parties may raise before him, both on legal and factual plan. Learned counsel for respondent No, 4 argued that he joins issues with the petitioners on various factual matters as well. He will be at liberty to present his point of view to the learned Settlement Commissioner.
24.The upshot of the above discussion is that against the order, dated 22nd December 1962 of the Additional Settlement Commissioner, a revision was well-maintainable on the subject under discussion before the learned Settlement Commissioner under section 19 of the Displaced Persons (Land Settlement) Act, 1958 and he failed to exercise jurisdiction while holding that he did not possess it. His order in this respect is without lawful authority and is hereby so declared and quashed the case is remanded to him for fresh decision on the point of allotment as distinct from verification of claims under Martial Law Regulations Nos, 84 and 89. The petitioners shall have their costs. PLD 1966 Lah. 953 PLD 1962 SC 42 PLD 1967 Kar. 295 PLD 1966 SC 362