1. GHULAM SAFDAR SHAH, C. J.-This letters patent appeal is directed against the order of a learned Single Judge of this Court dated 7-5-68, by which the writ petition filed by respondent Abdul Qayyum Khan against the order of Settlement and Rehabilitation Commissioner (Land) dated 19- 7-66 was accepted and in consequence he was held to be entitled to retain 8 kanals of land against his claim as displaced person from Jammu & Kashmir.
2. The relevant facts of the case are that appellant, who is also a claimant displaced person, was allotted on 4-3-59 by the Rehabilitation Authorities 18 kanals and 1 marla of land situated in Mahal Tehrai Tehsil Peshawar on temporary basis, that after this allotment the Chief Settlement and Rehabilita--petition Commissioner, West Pakistan, vide Memo. No. 2550-59/2017-R(P) dated May 14, 1959, decided as a matter of policy that the minimum unit of allotment of evacuee agricultural land in the districts comprising N.-W. F. P. Would, under the Rehabilitation Settlement Scheme, be fixed at 4 acres, that notwithstanding this policy the Authorities permanently settled on the appellant 4 kanals of land and the balance was taken from him out of which 8 kanals of land was permanently settled on respondent Abdul Q4yyum Khan. The appellant who felt aggrieved of this order went in appeal before Additional Settlement Commissioner (Land) but his appeal was dismissed by him on 3-9-64 as barred by time. Against this order the appellant went in revision before the Settlement and Rehabilitation Commis--sioner (Land) who allowed the same and in consequence remanded the case to Additional Settlement and Rehabilitation Commissioner for decision on merits in view of the Policy-decision of Chief Settlement and Rehabilitation Commissioner, West Pakistan dated May 14, 1959. In consequence of the remand order the learned Additional Settlement and Rehabilitation Commis--sioner heard the parties but dismissed the appeal of appellant holding that the said instructions of Chief Settlement and Rehabilitation Commissioner were ultra vires the Land Settlement Act, 1958 and the Rules made thereunder, and thus would not sustain the claim of appellant. Against this order the appellant filed a revision application before the Settlement and Rehabilitation Commissioner, Peshawar, which was allowed and in consequence he (appellant) was held to be entitled to retain 18 kanals and 1 marla of land in view of the above Policy-decision of Chief Settlement and Rehabilitation Commissioner which he found to be entirely valid. Faced with this situation, respondent Abdul Qayyum Khan came to this Court in its constitutional jurisdiction and he succeeded before the learned Single Judge, in whose opinion the Policy-decision of Chief Settlement and Rehabilitation Commissioner dated May 14, 1959, was ultra vires the Land Settlement Act and the rules made thereunder.
3. The only question argued before us by the learned counsel for parties was as regards the vires of Policy-decision of the Chief Settlement and Rehabilitation Commissioner contained in Memo. No. 2550-59/2017-R(P) dated May 14, 1959 which may, in order to appreciate their contentions, be reproduced:- "The Chief Settlement and Rehabilitation Commissioner, West Pakistan, has ordered that the minimum unit of allotment of evacuee agricultural land under the Rehabilitation Settlement Scheme in the districts comprising the former North-West Frontier Province should be fixed at four acres. Allotment may be made to the extent of a claimant's verified entitlement and the remaining area up to the minimum unit be permitted to be retained on temporary basis for the present. Such a claimant will have an option to purchase the excess area at such rates and in accordance with such terms and conditions as may be prescribed later on. Till full proprietary rights of the excess area are conferred, the allottee should be considered as a tenant on payment of such rent as may be fixed from time to time by the Chief Settlement and Rehabilitation Commissioner, West Pakistan."
4. The learned Single Judge, before whom the same question was argued in great detail, found the memorandum in question to be ultra vines the Land Settlement Act (hereinafter called the Act), the Rules made thereunder and the Scheme. And his order would show that his Lordship, in support of his conclusion, relied on subsection (1) of section 14, subsections (1) and (2) of section 15 of the Act, clause (v) of rule 7 of the Rules made thereunder and paragraphs 4 and 23 of Settlement Scheme.
5. Now a perusal of subsection (1) of section 14 of the Act would show that under it the Chief Settlement Commissioner was, subject to the pro--visions of the Act and the Rules made thereunder, required to prepare one or more Schemes for allotment to displaced persons against their verified claims of land in the compensation pool constituted under section 5 thereof. And when we proceed to examine subsections (1) and (2) of section 15 of the Act, all that has been laid down therein is that a Settlement Authority specially empowered by Chief Settlement Commissioner in that behalf shall, in respect of such verified claim against which no allotment has been made before the commencement of the Act, proceed to make allotment to the displaced persons in accordance with any of the Schemes prepared under section 14, provided that the allotment in question would be subject to the provision of subsection (1) of section 11 of the Act, namely:- "(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, but subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, may, for reasons to be recorded in writing, cancel or terminate any allotment or lease made under a Scheme or under this Act, or amend or vary the terms of any such allotment.
6. And further that it shall be made on the basis of entitlement as determined under the Act or the Rules made thereunder.
7. The learned Single Judge, by construing these provisions, was of the opinion that since allotment to the appellant was not made under any Scheme prepared thereunder nor indeed was his entitlement so determined he would have no case. And consequently the memorandum of Chief Settlement Commissioner dated 14-5-59, by which his allotment was sought to be validated would be ultra vires the said provision of the Act, for in-there --(Memorandum) the method of allotment was entirely different.
8. We regret to be unable to agree with this conclusion, for by the perusal of the various sections of the Act, his Lordship does not seem to have bees properly assisted by the learned counsel for parties. And in the result, quite a few important sections seem to have escaped his notice.
9. Subsection (1) of section 2 of the Act, to which the attention of his Lordship was not invited, defines the allotment 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 following enactments, namely:-
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) The North-West Frontier Province Refugees (Registration of Land Claims) Act No. 14 of 1949.
(iv) to (vii) . . . . . . . . . . . . . . . . . . .
(viii) The Registration of Claims (Displaced Persons) Act, 1956 (111 of 1956)."
10. And when we proceed to examine subsection (7) of that section, Scheme has been defined in it to mean:- "Scheme means a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) or section 7 of the Baluchistan (Rehabilitation)
11. Regula--petition, 1950 (II of 1950)."
12. Now by reading these two provisions together, it would be obvious that the Settlement Scheme, prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956(XLII of 1956), has been made a part of the Act itself and the allotment made thereunder given due recognition even after the enforcement of the Act on 23rd September 1958. Therefore, had these two provisions been brought to the notice of his Lordship, he would) have had no difficulty in construing the provisions of sections 11, 14 and 15 of the Act differently, for the operation of sections 11(1) and 14 has bee subjected to the provisions of the Act (of which Settlement Scheme, prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956, is ant inseparable part) whereas section 15, which even otherwise would apply only to those cases in which the Chief Settlement Commissioner has specially empowered a Settlement Authority Would have no application to the facts of this case, as no Scheme has ever been prepared under section 14---a position which the learned counsel for respondent has admitted, To put it differently, section 15 of the Act would come into operation only if a Scheme/Schemes have been prepared under the warrant of section 14. But since no such Scheme has been prepared, section 15 would have no application, and reliance upon it by the learned Single Judge would, with respect, be' misconceived.
13. Perhaps, it might be argued although it was not the case of respondent, that after the coming into force of the Act, the Chief Settlement Commis--sioner would have no option but to prepare Scheme/Schemes sander section 14 thereof and then to re-examine all previous allotments. But this will not be the case. We have already pointed that this section has been subjected to the "Provisions of the Act", and considering that according to sub--section (7) of section 2 thereof the Settlement Scheme, prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956, has been made a part of the Act and the allotment of land thereunder duly recognized by subsection (1) of that section, it would be obvious that the learned Chief Settlement Commissioner could as well disregard preparing any Scheme/ Schemes under section 14, for the said scheme was comprehensive enough to deal with every facet of the resettlement operation.
14. The learned Single Judge also relied on clause (c) of Paragraph 4 of Settlement Scheme. But with respect, we have not been able to agree with his Lordship. The language in which this clause has been worded, is that:---- "(c) if an allottee is at any subsequent time found to have been allotted land in excess of what may actually be due to him, the allotment of the excess area shall be cancelled and, if necessary, he will be dispossessed thereof:"
15. But his Lordship seems to have disregarded the provision of paragraph 3 thereof which reads as follows:-- "The Rehabilitation Commissioner, West Pakistan may prescribe scales of allotment in keeping with local conditions."
16. Had the attention of his Lordship been invited to this paragraph, he would have seen that the impugned memorandum of Chief Settlement Commissioner dated 14th May 1959 was obviously issued thereunder and thus no exception could be taken to its validity. It is common ground between the parties that the entire land in this case is covered by the scale prescribed in the said memorandum. And consequently, the allotment of it to appellant could not be cancelled under clause (c) of paragraph 4 on which the learned Sine Judge has relied.
17. We are also with respect, unable to agree with the learned Single Judge that the impugned memorandum of Chief Settlement Commissioner dated 14th May 1959 would be inconsistent with paragraph 23 of Settlement Scheme which reads as under: "23. The Rehabilitation Commissioner, West Pakistan, may at any time pass such order consistent with this Scheme and issue such instructions concerning details, etc., as may be found necessary with a view to securing the proper implementation of the Scheme."
18. The learned Judge was of the view that since the impugned memorandum of Chief Settlement Commissioner would be inconsistent with the provision of clause (c) of paragraph 4 of Settlement Scheme (ibid), he must be deemed to have transgressed the limits of his jurisdiction mentioned in paragraph 23 thereof, and consequently the memorandum in question would be without jurisdiction. In reaching this conclusion, however, it seems to have escaped the notice of his Lordship that the scheme was made a part of the Act itself, that tinder paragraph 3 of it the Chief Settlement Commissioner was empowered to issue the type of impugned memorandum prescribing therein the scales of allotment in keeping with local conditions, and consequently his instructions contained therein would be well within the confines of paragraph 23 and clause (c) of paragraph 4 of Settlement Scheme, particularly when the land in this case is agreed to be covered by the prescribed scale, and thus the question of its cancellation would not arise under the latter provision.
19. Clause (v) of rule 7 of the Rules framed under the Act had obviously no relevancy to the facts of this case, for it is worded thus: "(v) If the laud settled permanently is subsequently found to have been obtained by fraud, misrepresentation or in excess of the entitlement of the displaced person to whom an allotment of the same had been made, the land so settled shall without prejudice to any other penalty to which such person may be liable, be liable to be withdrawn and the displaced person concerned or his successor-in-interest shall be liable to pay the entire profits received or accrued in respect of the land se withdrawn from the date of allotment till such withdrawal."
20. It is no body's case that the appellant had obtained the allotment of land on account of fraud or misrepresentation, nor indeed can it be said that the allotment made to him was in excess of his entitlement. For it is conceded that the entire land in this case was well within the prescribed scales mentioned in the impugned memorandum of Chief Settlement Commissioner dated 14 May 1959.th We have already observed that the learned Chief Settlement Commissioner was, in view of paragraph 3 of Settlement Scheme, empowers to issue the said memorandum, and thus there would be no question that the appellant had been allotted land in excess of his entitlement.
21. S. A. H.