P L D 1968 Lahore 1171 (PLP)

Muhammad Hanif Awan for Petitioners. Qazi Muhammad Ashraf for Respondent. Date of hearing : 20th March 1968. Sultan Ali sold the interest in the land, which had once been allotted to him, to Sher Muhammad and Dost 'Muhammad by a registered sale‑deed dated the 6th of March 1961, at a time when the evacuee land had already been acquired on the 15th of April 1959, by the Central Government under sec tion 4 (2) of the Displaced Persons (Land Settlement) Act (XLVII of 1958). Azmat Ali filed a suit to pre‑empt the sale. The defendant‑vendee objected to the competence of the suit. By his order dated the 19th of June 1962, the learned Civil Judge held that the suit was competent. The vendee has filed this revision petition.

2. Learned counsel for the petitioners contends that the sale was not pre‑emptible. The contention is devoid of force. The right and interest of a confirmed allottee in the land allotted to him is heritable as held in Abdur Rashid v. Pakistan (P L D 1962 S C 42), and it has been held by the Full Bench in Ali Muhammad v. Mahmoodul Hassan (P L D 1968 Lah. 329) that the interest which a confirmed allottee gets in the land is an immovable property and, therefore, pre‑emptible under sections 4 and 6 of the Punjab Pre‑emption Act (I of 1913), but the property being evacuee in that case, suit was held to be barred under section 16 of the Pakistan (Adminis tration of Evacuee Property) Act (XII of 1957).

3. It was next contended that even if the sale was pre emptible, the suit was barred under section 16 of Act XII of 1957. Under the directions issued by the Central Government in pursuance of subsection (2) of section 4 of Act XLVII of 1958, the Government of West Pakistan in exercise of the power con ferred on it by the said subsection acquired all the agricultural land which had been allotted under the West Pakistan Rehabilita tion Settlement Scheme. Under subsection (3) of section 4, on the publication of a notification, "the right, title and interest of" the evacuee is extinguished "with effect from the date of such publication" and the land vests "wholly and absolutely in the Central Government free from all encumbrances." The notifica tion was issued on the 15th of April 1959, and, therefore, the interest of the evacuee in the land which was allotted to Sultan Ali became extinguished as from that date and the land vested wholly and absolutely in the Central Government. Learned counsel contended that notwithstanding the notification the land remained to be an evacuee property. He relied on Muhammad Hassan v. Mumtaz Hussain (P L D 1965 Lah. 35) where it was held by S. Anwarul Haq, J., relying on Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another (P L D 1963 Lah. 461) decided by Manzur Qadir, C. J. and Shakirullah Jan, J., that the land acquired by the Government under section 4 (3) of the Displaced Persons (Land Settlement) Act "continues for the purposes of the Act to carry the label of `evacuee property' even after acquisition, as much as it did before the acquisition, with the result that it would continue to be immune from the jurisdiction of the civil Courts in view of provisions contained in section 41 of the Pakistan (Administra tion of Evacuee Property) Act, 1957." By relying on Muhammad Hassan v. Mumtaz Hussain, it was held in Sugaran v. Rehmat Ali (P L D 1965 Lah. 580) that the "fact that the land has been so acquired, does not change the character of the property, and it does not cease to be an evacuee property." The view taken in these judgments is no longer a good law in view of the decision of the Supreme Court in A. R. Niazi v. Pakistan (P L D 1968 S C 119) where it was held that "the property, after acquisition by the Central Government by notifi cation under section 3 of the Act, had vested in it for all purposes and all evacuee interests in it had been extinguished, by operation of law, with effect from the date of that notification." Their Lordships of the Supreme Court were dealing with a case under the Displaced Persons (Compensation and Rehabilitation) Act. Section 3 of that Act contains provisions analogous to those which are contained in section 4 of the Displaced Persons (Land Settlement) Act. The decision of the Supreme Court on the question though under section 3 of the Displaced Persons (Com pensation and Rehabilitation) Act, is applicable equally to the effect of the notification issued under section 4 of Displaced Persons (Land Settlement) Act. Again in Devached Muljimol v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and six others (PLD1965SC356) it was observed by their Lordships that "even otherwise as soon as property is acquired by notification under section 3 of the Act of 1958 it ceased to be evacuee and the Custodian has, thereafter, no further jurisdiction with regard to it." The Supreme Court had also earlier in Rahim Bakhsh v. Ahmad Bakhsh (P LD1964SC189) held : "prima facie, the property having gone into the pool for distribution under the Act, the acquisition notification has extinguished whatever right or interest the evacuees might have possessed in the property. This is expressly provided for in subsection (3) of section 3 of the Act. A reference to the Custodian therefore, in these circumstances, would be inapt." Though their Lordships of the Supreme Court have used the words "prima facie," but this position admits of no doubt in view of the later pronouncements. Thus the land which was allotted to Sultan Ali ceased to be an evacuee property on the publication of the notification dated the 15th of April 1959, as from that date and, therefore, section 16 of Act XII of 1957, is not applicable.

4. The learned counsel for the petitioners next relied on section 6 of the Displaced Persons (Land Settlement) Act to contend that the property so acquired constituted a part of the compensation pool and no decree or order in respect of the same could be made. It has been held by the Full Bench in All Muhammad v. Mahmoodul Hassan that there are three stages in the allotment; temporary allotment, quasi‑permanent allotment and the settlement of the land on the allottee under the Dis placed Persons (Land Settlement) Act. The temporary allotment does not create any right and, therefore, an interest of the temporary allottee is not an immovable property and hence not pre‑emptible. The interest of a confirmed allottee in the evacuee land has been held to be an immovable property and, therefore, pre‑emptible under sections 4 and 6 of the Pre‑emption Act. The property, however, being an evacuee property, the suit was held to be barred under section 16 of Act XII of 1957. Alter the allotted land was acquired under section 4 (2) of the Dis placed Persons (Land Settlement) Act, it ceased to be an evacuee property and became a part of the compensation pool. The property remains in the compensation pool till such time as it is settled on the attottee under section 15 of the Displaced Persons (Land Settlement) Act, and it vests absolutely in him under section 16 of the said Act. The land is settled on the allottee only after the procedure provided in rule 7 of the Displaced Persons (Land Settlement) Rules, 1959 (printed at page 310 of the Central Statutes in P L D 1959) is complied with and the competent authority causes a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government is substituted for the evacuee holders of rights in the estate; and then causes separate mutations to be entered incorporating the conferment of permanent rights on each person holding an allotment on the basis of the entries in register R. L. If, and mutation, of Inheri tance or transfer connected therewith, if any, and passes an order giving the detail: of the area and the particulars of the person concerned. The sale of the land after it is permanently settled on the allottee under section 15 is pre‑emptible as held in Taza Gul v. Said Ghulam (P L D 1967 Pesh. 157) and the suit to pre‑empt the sale is competent.

5. The only question which remains to be examined is whether a suit to pre‑empt the sale of land when it is still in compensation pool is competent. Under section 6, the pro perty which is to the compensation pool cannot be proceeded against in execution of any decree or order by any process of Court or other authority. It reads : "Nothing which forms part of any of the compensation pools constituted under section 5 shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order by any process of Court or other authority." The intention behind the provision appears to be that the compensation pool should be rendered immune from all legal processes including the execution of a decree or an order. The evacuee property which is acquired under section 4 of the Act constitutes the compensation pool. The pool is meant for the specific purpose of the Act and it is with a view to achieving the object that is was considered necessary to provide against a situation which may adversely affect the pool or to diminish it. A person may have an enforce able claim against a person having a legal right in the property in the compensation pool, but he cannot, due to the bar created in section 16, enforce his claim against the said property section 16, however, does not prohibit a suit to be filed in respect of any right which a person may claim in the said property. In case a dispute arises between the parties as to their respective rights in the property, the dispute can certainly be resolved in a civil Court because in such a case it will not be the property which is proceeded against for any claim, but it will be only an adjudication as to the rights of the parties in respect of the property. The adjudication of such rights will in no way affect the compensation pool. It is competent for the allottee of the land which is in the compensation pool, to transfer it. Notwithstanding such transfer, the property continues to remain in the compensation pool. The pre‑emptor when he files the suit to pre‑empt, he is in no way proceeding against the land in the compensation pool for any claim, but only wants to be substituted in place of the vendee. Section 6, therefore, is no bar to the institution of such a suit.

6. Section 25 provides "Save as otherwise provided in the Act no Civil or Revenue Court shall have jurisdiction in respect of any matter which the Central Government or any officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other Authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." Under the Displaced Persons (Land Settlement) Act, the Central Government or the Settlement Authorities appointed under the Act have been invested with certain powers to determine certain questions. They have been given exclusive jurisdiction by the said provision to decide and determine those questions. The jurisdiction of the Civil and Revenue Courts for the determination of such questions is completely barred. It is not the case of the petitioners that the Central Government or the Settlement Authorities are competent to hear, determine and decide any question under the Pre‑emption Act. The Civil Courts by entertaining such a suit will not be doing anything which it is competent for such authorities to do under the Dis placed Persons (Land Settlement) Act. The Civil Courts., moreover, shall not in such a case pass any order in respect of an action taken or to be taken in exercise of any power conferred by or under the said Act. Sections 6 and 25, therefore, do not constitute a bar to the institution of a suit for pre‑emption in respect of a sale of a property which is in the compensation pool. If it had been the intention of the Legislature to bar all suits or actions or other processes in respect of the properties in the compensation pool, it would have enacted in the Act a provision like section 16 of Act XII of 1957, which, by the time the Dis placed Persons (Land Settlement) Act was enacted, had received the authoritative pronouncements of its efficacy.

7. The revision petition is consequently dismissed. There shall be no order as to costs. A.E. Petition dismissed.