P L D (PLP)

4. Mr. Akram, the learned Advocate for the petitioner, stated that if his client is given the standing crop he would not further like to contest this petition. It has been agreed by the learned Advocates of the parties that if the crop has not already been removed by the lessee it may be taken away by the petitioner who is cultivating the land through Haris. It was stated by Mr. Saeed on behalf of the intervenor that his client has already removed the crop. On the other hand, Mr. Akram has submitted that it has not been removed. This settlement between the parties is sufficient to dispose of this petition. I have however heard the learned Advocates on the application of section 24 of Act XII of 1957 and the point involved is also of some importance I would like to express my views on this question.

5. In order to appreciate the contention of the learned Advocates for the parties it would be useful to reproduce section 24 of Act XII of 1957. It reads as under "

24. No order made by the Custodian under the provisions of subsection (3) of section 22 or of clause (a) of sub section (2) of section 23 in respect of property which is subject to an allotment under the Pakistan Rehabilitation Act, 1956, shall affect any allotment order to which the property is so subject."

6. Under subsection (3) of section 22 the Custodian can on an application by the evacuee hold that the property treated by the Custodian or Rehabilitation Authority as evacuee property is not an evacuee property. Under clause (a) of subsection (2) of section 23 of Act XII of 1957 the Custodian may restore evacuee property to an evacuee after an order from the Central Government. Under section 24, reproduced above, it would appear that the allotment is protected, in either of the two cases namely where the property is declared to be non‑evacuee property and where the evacuee property under the orders of the Central Government is to be restored to an evacuee by the Custodian. In the present case clause (a) of subsection (2) of section 23 of Act XII of 1957 has no application. The property is not being restored under the orders of the Central Government. In this case the property has been declared to be non‑evacuee within the meaning of subsection (3) of section 22 of Act XII of 1957. The question, therefore, is whether the order of restoration by the Rehabilitation Department after the cancellation of the allotment order is legal in view of section 24 of the Act. I have come to the conclusion that in the circumstances of the present case the) order of restoration passed by the Assistant Rehabilitation Mukhtiarkar dated the 20th December 1961 is a legal one. ,

7. A perusal of section 24 of the Act would show' that in order to apply subsection (3) of section 22 two things are necessary namely (1) that the property must be subject to an allotment order; and (2) that the allotment order must be under the Pakistan Rehabilitation Act, 1956. In the present case the petitioner has produced before me at the time of argument a form, the heading of which is "Allotment for Individual Fami lies". It is signed by a Welfare Officer and also, either by the Mukhtiarkar or the Deputy Collector which is not clear. It has been conceded by Mr. Akram, the learned Advocate for the petitioner, that this allotment dated the 8th October 1949, was extended up to 1955 under a general circular. There is nothing before me on the record to show that it had been extended thereafter. It would, therefore, follow that it cannot be said that the disputed land in possession of the petitioner was subject to an allotment within the meaning of section 24 of Act XII of 1957.

8. In the second place, as I have already stated, it is not only necessary that the allotment should subsist, but it is also necessary that it should be under the Pakistan Rehabilitation Act, 1956. There is a distinction between the allotment made under the Administration of Evacuee Property Act, 1957 and the Pakistan Rehabilitation Act (XLII of 1956). Under section 18 of Act XII of 1957 a Rehabilitation Authority may for the purposes of the rehabilitation of displaced persons or social or economic rehabilitation in Pakistan allot to any person any evacuee property or property of which the Custodian has taken possession under section

13. While under section 6 of Act XLII of 1956 the Central Government may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified, and to allot the same to persons resident in Pakistan, whether refugees or not, and upon such order being made, the Commissioner shall have all such powers, not inconsistent with the provisions of this Ordinance, as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid. The object of the two Acts is somewhat different. Under Act XII of 1957 the under lying object is administration of evacuee property in Pakistan, while the object of Act XLII of 1956 is orderly settlement of persons who have taken refuge in Pakistan. Under subsection (2) of section 18 of Act XII of 1957 every allotment of evacuee property made between the first day of March 1947, and the commencement of this Act, shall be deemed to have been made under subsection (1) of section

18. The allotment in favour of the petitioner therefore at best can be taken to have been made under Act XII of 1957 and not under Act XLII of 1956. Subsection (1) of section 4 of Act XLII of 1956 requires notice. It reads as under "The provisions of this Act and the rules made thereunder shall be in addition to and not in derogation of the provisions of the Pakistan (Administration of Evacuee Property) Act, 1957, and the rules made thereunder, and shall have effect notwith standing anything inconsistent therewith contained in any other enactment or in any instrument having effect by virtue of such enactment." Though the provisions of section 4 of Act XLII of 1956 are in addition to the provisions of the Pakistan (Administration of Evacuee Property) Act 1957 it does not mean that the allotment made under Act XII of 1957 should be taken to have been made under Act XLII of 1956. An allotment under section 6 of Act XLII of 1956 is made after the Central Government has ordered a Rehabilitation Commissioner to pool evacuee property, while under section 18 of Act XII of 1957 no such order is necessary and any evacuee property can be allotted. The under lying object under section 24 of Act XII of 1957 appears to be to give protection only to that allotment which has been, made of property, which has under the orders of the Central Government, been pooled by the Rehabilitation Commissioner.

9. Another very important question is whether a Rehabili tation Authority can eject the holder of an allotment order, even though it may be under Act XLII of 1956. In this connection subsection (2) (a) and (b) of section 7 requires consideration. They read as under "(2) In particular and without prejudice to the generality of the powers conferred by the preceding subsection but subject to the provisions of this Ordinance, a Rehabilitation Authority may‑ (a) Subject to the provisions of Chapters It and III and sections 22 and 24 of the Pakistan (Administration of Evacuee Property) Act, 1957 take over and assume control of any abandoned lands, buildings, business and undertakings ; (b) eject summarily with the use of such force as may be necessary any person in possession of any abandoned land, building, business or undertaking whose possession thereof has not been authorised by the Rehabilitation Authority, or, to whom such land, building, business or undertaking has been allotted (whether the stock‑in‑trade or machinery involved in the business or undertaking has been sold to him or not) but who has failed to observe any of the conditions of the allotment, or who has subsequently been found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property so allotted, or any person in possession of any property, which, after it has been allotted to him as evacuee property, has lost the character of being such property either by a declaration or by the operation of any other law for the time being in force." A clear distinction exists between subsection (2) (a) and (b) of section 7 of Act XLII of 1956. Under subsection (2) (a) the Rehabilitation Authority cannot take over and assume control of any abandoned land, buildings, business and undertakings which is subject to an allotment order. Taking over and assuming control is quite distinguishable from ejectment. In fact sub section (2) (b) itself provides that a Rehabilitation Authority may eject summarily any person in possession of any property which after it has been allotted to him as evacuee property has lost the character of being such property either by declaration or by operation of any other law for the time being in force. Section 24 of Act XII of 1957 does not afford any protection against a Rehabilitation Authority proceeding to eject summarily a person in possession of property which has been declared to be non‑evacuee. All that section 24 of Act XII of 1957 lays down is that the mere declaration that a person's property is not an b evacuee property will not affect an allotment order. It does not however bar the power of the Rehabilitation Authority under subsection (2) (b) of section 7 of Act XLII of 1956 to summarily eject a person in possession of property under an allotment order.

10. For the reasons given above, I would dismiss the petition but would make no order as to costs. K . B. A. Petition dismissed.