' Brief facts of the case are that an area measuring 199 kanals 17 marks in village Bell, Tehsil and District Sialkot, was temporarily allotted as maintenance allowance to the contesting repondent No, 3, as a Jammu & Kashmir displaced person on Permit No, 21827 dated 7th May 1959 (written as '1954' by typographical mistake as stated by the learned counsel for the respondent). 1-le was given possession per parch( taqseem which is also shown in the khasra girdawari for Kharlf 1962 to Rabi 1963, where the area is recorded as bunjar qadeem. The of the respondent No, 3 also appears in the Jamabandi for the year 1959-60. The aforesaid area, along with some other, was allotted on 5th September 1963, at Khan No, 16/13 to the petitioner, and was confirmed to him on 16th November 1963.
2. The respondent filed an appeal on 3rd October 1969, which was accepted on the ground that the allotment in favour of the petitioner was void ab initio, as the area in dispute was in the allotment of the respondent for maintenance purposes as a Jammu & Kashmir refugee, and as such, was excluded from Rehabilitation and Settlement Scheme under para. 4-A(ix) of the Scheme. It was held that in the circumstances, question of limitation will also not arise. This is vide order of the Additional Settlement Commissioner dated 16th April 1970. The petitioner's revision failed on the same grounds vide Settlement Commissioner's order dated 14th July 1971.
3. The petitioner has come to this Court under Article 98 of the late Constitution of Islamic Republic of Pakistan, 1962 for a declaration that the aforesaid orders of the Additional and Settlement Commissioners dated 16-4-1970 and 14-7-197: respectively have been passed without lawful authority and are of no legal effect.
4. Learned counsel for the petitioner has argued that after the allotment in favour of the respondent, the latter did not take actual possession thereof, nor, ever cultivated the same. When the petitioner was allotted the land in 196 he brought this bunjar qadeem land under plough. But the respondent did not challenge the petitioner's allotment, while, the petitioner was sweating to bring the land under cultivation until 6 years later in 1969, when the land had become culturable.
Further, it is contended on behalf of the petitioner that the land temporarily allotted to the respondent for maintenance purposes was not to remain perpetually with him and excluded from the allotment in lieu of verified claims, especially of the displaced persons from Jammu & Kashmir, as the petitioner was.
' The learned counsel for the respondent has reiterated the arguments which found favour with the respondent settlement authorities. He has also relied upon Mohammad Shaft and 4 others v.
Munshl and 2 others (1).
' Prior to West Pakistan Rehabilitation Settlement Scheme, 1956, land temporarily allotted to Jammu & Kashmir refugees, in lieu of maintenance, was not excluded from allotment under the then Punjab Rehabilitation Settlement Scheme of 1952, as found by a Division Bench of this Court consisting of his Lordship Mr. Justice Sardar Muhammad Iqbal (as his Lordship, the Chief Justice, then was) and Mr. Justice Muhammad Siddique, in Allah Ditta and another v. Raja Saeed Akhtar (2).
Under the West Pakistan Rehabilitation and Settlement Scheme, 1956, it was provided in para. 4-A that "the following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme land allotted on temporary basis to Jammu and Kashmir refugees."
5 On 8th June 1958, all evacuee lands were acquired under section 4(2) of the Displaced Persons (Land Settlement) Act, 1958, free from all encumbrances, for constituting Compensation Pools under section 5 of the Act for the purposes of granting compensation to displaced persons whose claims were verified. Thus, it would appear that all lands had been acquired free from all encumbrances and for purposes of granting compensation to displaced persons. Any embargo on the allotment of any land to a claimant displaced person, after its acquisition under the Act, will no more be operative as against the provisions of the Act. The same shall be deemed to have been repealed pro tanto. In the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as amended by Act 10 of 1963, section 30(5) had provided that "Except for the purpose of implementing any scheme prepared under section 16-B houses and shops in possession of persons displaced from such part of Jammu & Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under the provision of this Act and the possession of such parsons shall not be disturbed till repatriation to that State.. . ." In the case of Shaukat All v.
Settlement and Rehabilitation Commissioner (3), it was contended on behalf of one Mr. Durrani that the latter, being a displaced person from the occupied territories of the State of Jammu & Kashmir residing in Pakistan, the house in his possession could not be transferred under the provisions of the Act and his possession is not liable to be disturbed. Besides finding that Mr. Durrani was not in possession and so the provision in section 30(5) of the Act was not applicable, it was, further, held by the Division Bench of this Court consisting of Mr. Justice S. A. Mahmood and Mr. Justice Mohammad Akram, that "by virtue of section 2 of the Displaced Persons Laws (Amendment) Ordinance (XIII of 1964), section 30(5) has been altogether omitted with retrospective effect as if it has never been on the Statute Book. No reliance can, therefore, be placed on this provision. The learned counsel, however, maintains that notwithstanding this amendment the position has not changed to any appreciable extent because of a corresponding provision in para. 19 of the Settlement Scheme No, IV which imposes a similar bar on the disposal of
(1) PLD 1973 Note 66 at p. 89 (2) PLD 1973 Lah. 215
(3) PLD 1965 Lab. 445 houses and shops in possession of Displaced Persons from Indian occupied territories of Jammu & Kashmir State to any person who is not a displaced person from these territories. In our opinion by virtue of the aforesaid amendment in the Act, the co-responding provision in para. 19 of the Scheme also stands repealed by implication. At any rate, they have ceased to exist because of their inherent inconsistency with the Act as finally amended. Now the properties in the possession of displaced persons from Jammu & Kashmir are free to he dealt with in accordance with the Schedule and the Act." In passing, it may be pointed out that the judgment in the case had been upheld by the Supreme Court of Pakistan in Agha Shaukat All v. The Settlement and Rehabilitation Commissioner and another (1). I have quoted the aforesaid judgment of the learned Division Bench of the High Court to demonstrate that there was a bar originally in the Displaced Persons (Compensation and Rehablitation) Act, 1958, against transfer of a house from the territories of Jammu & Kashmir State in the occupation of India, or shop in possession of a displaced person but, that bar was dropped by amendment of the Act vide Ordinance XIII of 1964, and, also that corresponding provision in para. 19 of the Settlement Scheme No, IV was held to be repealed by implication and, at any rate that ceased to exist because of their inherent inconsistency with the Act as finally amended. In the present case there was never a bar provided in the Displaced Persons (Land Settlement) Act, nor, there is any such bar in the Scheme for permanent allotment of land to claimants from Jammu & Kashmir State as framed by the Chief Settlement Commissioner with the previous approval of the Central Government on 23rd December 1961. The exclusion of land from allotment under the West Pakistan Rehabilitation and Settlement Scheme, 19i6, framed under section 6(1) of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) has no application to allotments made under the Displaced Persons (Land Settlement) Act, 1958, and the Schemes made thereunder. There being no bar in the Act, and, on the other hand, there being a Scheme for Permanent Allotment of land to claimants from Jammu & Kashmir State framed by the Chief Settlement Commissioner with the approval of the Central Government on 23rd December 1961, it was perfectly permissible for the allotting authority to allot the area in question to the petitioner who himself is a claimant displaced person from Jammu & Kashmir State, as against the respondent who has no verified claim in his favour, and, in whose favour the allotment was initially made temporarily for maintenance purposes only, and, who never cultivated the same.
6. The contention of the learned counsel for the respondent that para. (5) of the Scheme for Permanent Allotment to claimants from Jammu & Kashmir lays down that "except as otherwise provided in this Scheme the provisions of the two Schemes in the preamble shall rrutatis mutandis, apply in all matters relating to the completion of allotment and matters incidental thereto," it needs only to be pointed that the para. Starts with "Except as otherwise provided in the Scheme" and para. (3) of the Scheme lays down that "fresh allotments if and when necessary will be made under this Scheme in accordance with the entitlement that accrues to a claimant under the law for the time being in force". Moreover, the referred to two Schemes do not include West Pakistan Rehabilitation Settlement Scheme of 1956. Further, application of mutates mutandts principle carries with itself the application with due alteration of details and if the new provision does not provide for a bar in the new scheme of things, the bar will not operate
(1) PLD 1973 SC 124 in the new arrangements. It may be mentioned that temporary allotments -for maintenance purposes were initially made to enable the incoming refugees to have substance and get going.
Those who had abandoned land behind were subsequently compensated thereof by means of quasi or permanent allotment to the extent of the land left behind. In the same way the respondent had been temporarily allotted land for maintenance purposes, but, when the Scheme for Permanent Allotment of land to claimants from Jammu & Kashmir State was enforced, only the persons who had left land behind, and, whose claim were verified by the relevant authorities, were to be made permanent allotment. This is what has happened in this case that the petitioner, who is a claimant displaced person, was allotted the land in dispute, and, the earlier temporary allotment to the respondent for maintenance purposes came to an end, like those of all the refugees who had been made temporary allotment for maintenance purposes in the first ins' an ce.
7. It needs only to be added that the allotment and confirmation made in favour of the petitioner on 5th September 1963 and 15th November 1963, respectively, was not objected to or challenged by the respondent until 3rd October 1969, nearly for six years. As the dispute related to the land earlier allotted to the respondent for maintenance, it cannot easily be accepted that he did not know that the land given to him for maintenance had been given away to the petitioner for the last six years.
If that be so, it would only show that the respondent did not need it for maintenance purposes.
Moreover, under the Displaced Persons (Land Settlement) Act, 1958, there is no provision conferring jurisdiction on the Settlement Authorities to condone delay, and, even if the orders were to be disregarded for being void ab intik). Or, ex parte, still the respondent had to show that he had come to the Court to challenge the same within reasonable time of his knowledge. No such explanation was offered, nor, taken notice of in the impugned orders.
8. The petitioner, who is a displaced person from Jammu & Kashmir State, like the respondent, had got the allotment of banger qadeem area as far back as 1963 in lieu of his verified claim, has brought the same under plough which cannot but be by sewat and labour, it would be unjust to deprive him thereof after more than a decade. I do not find that the learned Additional and Settlement Commissioner acted legally and justly in depriving the petitioner of his allotment in their impugned orders dated 16-4-1970 and 14-7-1971 respectively.
9. For the foregoing reasons, I accept this petition and declare the impugned orders of the Additional and Settlement Commissioner dated 16.4-1970 and 14-7-191i respectively to have been passed without lawful authority and of no legal effect. In the circumstances of the case, the parties are left to bear their own costs.