SHAFIUR RAHMAN, J.---Leave to appeal was granted to the appellants, the purchasers of land from the claimant Mst. Quresha Khatoon, to examine whether the High Court had correctly by its judgment dated 3-2-1980 denied the relief in the matter of restoration of allotment to her on the mere suspicion that her verified claim was not genuine when on merits it was held that the Border Area Committee which had cancelled allotment from her name had no jurisdiction over the land.
2. The facts of the case disclosed that Mst. Quresha Khatoon (now deceased) was a refugee from India. Her claim was verified for 2084 Produce Index Units. Urban land measuring 250 kanals 18 marlas equivalent to 2094 Produce Index Units was allotted and confirmed to her on 10-8-1964 by the Deputy Settlement Commissioner (Lands) Kasur. The appellants purchased part of this land from Sohan Din who had purchased it from respondents Nos.3 to 9, the successors-in-interest of Mst. Quresha Khatoon. The Border Area Allotment Committee after issuing notice to respondents Nos.3 to 9, the successors-ininterest of the claimant Mst. Quresha Khatoon, cancelled the allotment of entire urban agricultural land under paragraph 10 of Martial Law Regulation No,9. The appellants challenged this cancellation by a Constitution Petition (No,553 of 1971) which was accepted on the ground that no hearing had been afforded to the appellants. The Border Area Committee took up the matter once again and after notice to the appellants cancelled it once more on 27th of March, 1972. Again the appellants filed a Constitution Petition (No,711-R of 1972) challenging the jurisdiction of the Border Area Committee to interfere with the allotment.
3. The learned Judge in Chamber after examining the judgments in some other matters (Writ Petitions No,636-R of 1971 and W.P.398-R of 1964 decided on 29-11-1972 and 6-3-1975 respectively) held as hereunder:- "As eg a r ds the legal objection of the learned counsel for the petitioners that the Border Area Committee did not have jurisdiction over the land in dispute because the same was situated within the urban limits of Kasur and the Border Area Committee exercised jurisdiction under para.55-A, promulgated in pursuance of Martial Law Regulation No,9 of the Rehabilitation and Settlement Scheme and that para 4 of the said Scheme excluded, under, sub para (1), Urban Land, the submission was given consideration in Writ Petition No,636-R of 1971, but the petition itself was disposed of on another ground. However, the plea was accepted in the second case viz. Writ Petition No,398-R of 1964 decided on 6-3-1975. No doubt the Border Area Committee was not represented in the last mentioned case but it was a party to the proceedings and a copy of the judgment was sent to it by office in routine on 6-3-1975. If the Border Area Committee had chosen not to be represented when the judgment was delivered, it could have asked for its review or challenge the same in appeal. Having not done so, the Border Area Committee would be bound by the law declared in the said judgment that it did not have jurisdiction over the urban land."
Notwithstanding this finding recorded by the learned Judge in very positive terms, the learned Judge denied the relief against the cancellation of the allotment in the following words:- "The allotment was made in favour of their ultimate predecessor-ininterest on 10-8-1964 of an area measuring 250 kanals 18 marlas situated within the urban limits of Kasur. The area comes to over 21 acres of land i,e. More than 5 square and 6 acres. The allotment of such a big chunk of urban land has not been made in any urban area. The allotment in urban area extended from few kanals to a few acres. The heirs of the ultimate predecessor-in-interest of the petitioners were cited as respondents Nos.2 to 9. They have not filed any written statement asserting their claim to the original allotment. Only a part of the same had been sold to the petitioners and still for the rest of the land the said respondents have not chosen to come forward to claim. Syed Inayat Hussain Shah, Advocate appeared on their behalf but he stated that he had no instructions in the matter.
The claim of the predecessor in interest of the petitioners Mst. Quresha Khatoon was filed from Haiderabad and according to the endorsement on the back of the RL-II No,100 apparently it was not sent there. In these circumstances it does not appear that the genuine claim has been settled in the allotment aforementioned and in any case, the allotment does not appear to be valid for such an extensive area as 250 kanals 18 marlas in the urban area of Kasur. As regards affording a hearing to the petitioners by the Border Area Committee is concerned, the petitioners themselves appeared to be at fault, it was their previous writ petition which was allowed and case remanded on 28-2-1972. Besides that they should have followed the case, they were issued notices and proclamation was made in the estate as would appear from the file produced by the learned counsel for the Border Area Committee and the petitioner No,1 who has been prosecuting the case at all stages on behalf of all the petitioners appeared before the Border Area Committee on 21-3- 1972 and made an application in which it was ordered that the same should come up with the main case on 24-3-1972. It was for him that he should have appeared on that date when he was called but neither he nor anybody else appeared on that date and ex parte proceedings were rightly taken."
4. Sheikh Masud Akhtar, Advocate, the learned counsel for the appellants has taken us through the reasons reproduced above for denying the relief and contends that it was conjectural and not raised by any one and could not justify the denial of relief after the High Court had held that the intervention of Border Area Committee was completely without jurisdiction.
5. We find that in recording the finding that the Border Area Committee had no jurisdiction, the learned Judge did not examine the law and its application to the facts of the case but followed a decision earlier given ex-parte against the Border Area Committee which too was without reference to the specific provisions of the law on the question of jurisdiction of the Border Area Committee. In order to deal with the subject matter on which leave to appeal was granted we had of necessity to examine the very first assumption or basis of the impugned judgment that the Border Area Committee had no jurisdiction over the urban agricultural land.
6. Land as originally defined in the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act) and the Rehabilitation Settlement Scheme, 1956 (hereinafter referred to as the Rehabilitation Scheme) included the urban agricultural land as well. The definition of "land" in clause (3) of section 2 of the Act is as hereunder:- "Land" means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land, but does not include:-
(a) Property. As defined in sub-clause (b) of Clause (2) of Section 2 of the Registration of claims (Displaced Persons) Act, 1956 (III of 1956), or in Sub-Clause (d) thereof; or
(b) Such evacuee land as may be declared by the Chief Settlement Commissioner as a building site."
In the Rehabilitation Scheme "Land" was defined as here under:- "'Land' means all evacuee land held for agricultural purposes or for purposes subservient to agriculture or for pasture, including unsurveyed land, trees or buildings and other structures standing on it and which the Rehabilitation Commissioner, West Pakistan, has been authorized to pool and allot under section 6(1) of the Pakistan Rehabilitation Act, 1956 and Section 7(1) of the Balochistan Rehabilitation Regulation."
7. The notification of acquisition under section 4 subsection (2) of the Act related to acquisition of all land as defined in clause (3) of Section 2 and included in the West Pakistan Rehabilitation Scheme prepared by the Rehabilitation Commissioner, West Pakistan, under section 6 of the Pakistan Rehabilitation Act, 1956. In the year 1952 Border Area Scheme was prepared by the Rehabilitation Commissioner and engrafted in the Rehabilitation Scheme Part-II. Paragraph 55 introduced in 1952 provided that claimants other than those eligible for allotment of land under the Border Scheme prescribed in Paragraph 55-A will be allotted land under the Rehabilitation Settlement Scheme on the basis of their verified claim in the Border Area provided that they had registered their claim for this area. None of the provisions of the Border Scheme was to apply in such cases and no increase over the actual claim under the Rehabilitation Settlement Scheme was to be allowed.
8. Paragraph 55-A related to allotment of evacuee land without making any distinction between urban or rural for that purpose. It was paragraph 4-A of the Rehabilitation Scheme which excluded urban agricultural land from the purview of the Rehabilitation Scheme. Martial Law Regulation 9, which was enforced on the 20th of March, 1959 conferred a new jurisdiction and incorporated a part of the Rehabilitation Scheme for the exercise of that jurisdiction in the following words of paragraph 10:- "10.(a) The committee shall scrutinize all allotments of evacuee property within any border area and may, if after such scrutiny it is satisfied that any allotment was made to a person not eligible for allotment under the West Pakistan Rehabilitation Settlement Scheme including the Border Scheme, cancel the allotment and direct the allottee to surrender forthwith the property to the Deputy Rehabilitation Commissioner within whose jurisdiction the property is situated and the decision of the committee in this regard shall be final.
(b) When any allotment has been cancelled and direction issued under subparagraph (a) the allottee or the person in possession of such property shall surrender the property accordingly, failing which the Deputy Rehabilitation Commissioner concerned or the committee may take possession of the property by evicting any person in possession thereof with such force as may be necessary for the purpose."
9. In terms of this paragraph the jurisdiction of the Border Area Committee extended on all evacuee property within any border area, and the provisions of the Rehabilitation Scheme including the Border Area Scheme were to be applied for the purposes of such a scrutiny to all evacuee property within the border belt. By such incorporation of the Border Area Scheme the provisions of the Rehabilitation Scheme notwithstanding paragraph 4-A stood incorporated on the strength of Martial Law Regulation No,9 conferring a jurisdiction and also a test for all allotments made. The limitations and inhibitions contained in the Rehabilitation Scheme itself could not control the provisions of Martial Law Regulation No,9. On the contrary, the provisions of Martial Law Regulation No,9 subordinated the provisions of the Rehabilitation Scheme by its incorporation in Martial Law Regulation No,9. On this view of the matter it is clear that the Border Area Committee had the jurisdiction and it is not the case of the appellants that the requirements of the Border Area Scheme were satisfied when the allotment was made in favour of Mst. Quresha Khatoon. On the legal jurisdictional plane the finding of the High Court having been reversed, the relief sought by the appellants on the strength of the leave granting order cannot be granted.
10. The appeal is dismissed. No order is made as to costs.