1. JUDGMENTS HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against the judgment of a Division Bench of the former High Court of West Pakistan, Lahore seat, in a Letters Patent Appeal.
2. This appeal arose in the following circumstances :- The appellant, who is a displaced person from India, filed three claim forms being Nos. 2807, 2809 and 2810 in respect of proprietary lands left behind by him in India. These were verified for 1543 units and lands to the extent of 185 kanals and 5 marlas were allotted in lieu thereof in village Koth Mughlan, Gujranwala. There is no dispute with regard to this allotment.
3. He also filed another claim form No. 2608 regarding certain mortgagee I4ghts held by him in respect of some lands in India. These were at first verified for 736 produce index units but later enhanced by another 165 produce index units. In the Fard-i-Haqiyat issued in respect of this claim from the Central Record Office, however, two categories of lands were separately shown, namely ;
(1) Malkiyat 103 kanals, 3 marlas and (2) Murthani 2 kanals 6 marlas, and on the basis of this Fard-i- Haqiyat he obtained allotments in Gujranwala Zarai in respect of both categories on the 28th of November 1952, to the extent of 87 kanals and 14 marlas.
4. These lands were in due course confirmed in November 1952, in his favour ; but on the 21st of October 1957, the respondent Rehmat A.I laid an information with the Settlement Authorities to the effect that the appel--lant had obtained illegal allotments of land in Gujranwala Zarai, in contravention of the provisions of Paragraph 7 of the Rehabilitation Settlement Scheme, Part I.
5. This paragraph reads as follows :--- "A Muslim mortgagee of both Muslim and non-Muslim mortgagor of land in the prescribed area will not be eligible for an allotment of land under the Scheme but he may be allotted land on such terms and conditions as the Rehabilitation Commissioner, West Pakistan may prescribe according to the area held by him under the mortgage subject to a maximum of 1,000 produce index units. In case any land is allotted to such a mortgagee on the basis of an independent right under the Scheme the land so allotted shall be taken into account for the maximum limit specified above.
6. Similarly a mortgagee of occupancy or other specified rights will also be treated as an ordinary mortgagee, for the purposes of the Rehabilitation and Settlement Scheme."
7. Since the appellant had already obtained allotments in respect of 1543 units which were over 1,000 units, the Rehabilitation Commissioner on 1st September 1959, cancelled the confirmation of the lands allotted in lieu of the mortgagee rights. The appellant went up in revision, but the same was dismissed even though he prayed that he may be allowed to retain the said lands in lieu of a similar area to be taken away from his allotments in Kotli Mughlan. He then came up to the High Court in writ jurisdiction, but his writ petition was dismissed by a learned Single Judge with costs and the order was upheld in appeal by a Letters Patent Bench. The Letters Patent appeal too was dismissed in limine.
8. Before this Court at the leave granting stage, it was contended that Paragraph 7 was introduced in 1956 and, therefore, the cancellation of the allotments confirmed in 1952 was illegal and, in any event, contrary to the Department instructions contained in Memorandum No. 69-LHR-61/ 1651-R(P) dated 22nd May 1961.
9. So far as the first contention is concerned, there is no substance at all in it, because, the Rehabilitation Settlement Scheme was first framed under the Pakistan Rehabilitation Ordinance No. XIX of 1948 and it came into force on the 2nd of November 1951, before the impugned confirmation.
10. The Rehabilitation & Settlement Authorities were, therefore, fully justified in applying the provisions of Paragraph 7 of the said Scheme to the case of the appellant.
11. Learned counsel appearing in support of this appeal has not been able to controvert this except to point out that, since the mistake of splitting up the mortgagee rights into two parts, namely, Malklyat and Murthuni, was not committed by him but by the Central Record Office, he should not be penalised but should be allowed to retain these lands by surrendering an equivalent area from the lands allotted to him in Kotli Mughlan in respect of his claim for proprietary lands, particularly, since such a principle has, in fact, been accepted subsequently by policy decisions contained in the memorandum of the 22nd of May 1961. This memorandum reads as follow :- "The Chief Settlement and Rehabilitation Commissioner West Pakistan is pleased to decide that the land allotted to the claimants in lieu of their abandoned mortgagee rights which is now to be withdrawn in accordance with paragraph 19 of the Scheme regarding the final disposal of allotment of Evacuee land made to Muslim Mortgagee --claimants of both Muslim and non- Muslim mortgagors may be allowed to be adjusted against their claims for proprietary land if so desired and instead, the area allotted against their claims for pro--prietary land should be reduced in term of produce index units to that extent according to the choice of the claimants concerned, provided the land withdrawn remains in a compact block."
12. Paragraph 19 is a misprint in this memorandum, because no such paragraph) is traceable in the Scheme itself. In any event, this memorandum can only apply to allotments lawfully made and not to allotments illegally obtained. The appellant is not entitled to take advantage of any illegal allotment which had been made contrary to the provisions of the Scheme, nor can he take 4 advantage of subsequent changes in policy. The illegal confirmation having been made in 1952, changes in policy introduced in 1961 and later cannot be availed of by the appellant to legalise the same. The cancellation was, therefore, fully justified.
13. Learned counsel for the appellant has next contended that he should be allowed to retain these lands on payment of the market value on grounds of equity and justice, as he had already spent a large sum of money in the development of those lands. If he has any such right, or if it is still possible to retain these lands by paying the market value, he may approach the Settlement Authorities in that behalf. It is not for this Court to express any opinion on this aspect of the matter.
14. The appeal is without any merits and is, accordingly, dismissed with costs.