P L D 1970 Lahore 157 (PLP)

(Property situate in Chak No 127/G.B., Tehsil Jaranwala, District Lyallpur. Included in Municipal limits of Lyallpur District on 2‑7‑1957). versus (viii) Writ Petition No. 157‑R of 1969. Malik Abdus Sattar and 100 others. versus The Government of West Pakistan etc. (Property situate in Chak No. 219/R. E. Sher Singh Wala Kalan, Tehsil and District Lyallpu:. Included in Municipal limits in October 1956). (ix) Writ Petition No. 361‑R of 1968. Sabir Ali and 327 others versus The Government of West Pakistan etc. (Property situate in Chak No. 365/JB., Kacha Gojra, Tehsil Toba Tek Singh, District Lyallpur. Included in the extended limits of Lyallpur Municipality on 1‑10‑1956. The notification was subsequently withdrawn).

2. The properties in dispute are in possession of various persons. They comprise of evacuee building sites, residential buildings, commercial buildings etc, Some of them are pakka and the others are kacha pakka or kacha and in some cases these were building sites lying vacant in the rural areas upon which some of the petitioners have raised their own construction after Independence. Admittedly these properties were not within the limits of any urban area on the 14th of August 1947 but were subsequently included within the extended municipal limits of their respective municipalities by proper notifications issued by the Government from time to time.

3. The various categories of the petitioners in these cases include displaced persons from various parts of India who have been settled upon agricultural land in their respective villages according to the verification of their land as received from Central Record Room or as verified by the Claims Commissioner Pakistan. The remaining categories of the petitioners in possession of the properties are the following :‑ (1) Displaced persons who abandoned in India some property in rural areas of the value of less than Rs. 10,000, (2) those displaced persons who have neither abandoned any land nor any property in India, and (3) locals. The petitioners' case is that in response to the invitation made by the Chief Settlement Commissioner for the applications for transfer of rural buildings etc., they applied to the Settlement authorities of their respective areas for the transfer of the proper ties in their possession immediately after Settlement Scheme No. VII was introduced but the Settlement authorities instead of issuing them the requisite P. T. Os. and P. T. Ds. etc., have called upon them to pay the prices of the properties in their respective possession and these notices have been issued in the purported exercise of their power under Scheme No. VIII. The petitioners have been threatened by the Settlement authorities vide impugned notices that if the amount covered by the notices was not deposited within 30 days of the issuance thereof the petitioners would be liable to ejectment.

4. When the Act was enforced and the Settlement operations were commenced the extent of tile applicability of the Act was limited to the evacuee properties situated within the limits of Municipal Corporations, Municipal Committees etc., and to the industrial concerns Settlement Scheme Nos. 1 to VI were framed by the authorities providing various modes of disposal of such properties. There was, however, no scheme for the disposal of properties other than urban till the 1st of June 1961 when the Central Government made Scheme No. VII for the disposal of immovable evacuee properties (other than agricultural land) situated in rural areas. The Central Government's approval was communicated to the Chief Settlement Commissioner who ultimately issued the Scheme on the 7th of August 1961 (herein after called the Old Scheme), which remained in force till the 15th of April 1966 when the Government of West Pakistan, in exercise of its powers conferred on it by subsection (2) of section 10 of the Act read with Government of Pakistan, Ministry of Agriculture and Works, Notification No. F‑1(1)/65‑SP, dated the 17th of June 1965 which was enforced from the date of its publication in the official Gazette on the 16th of April 1966, amended and re constituted it for the purpose of disposal of the rural evacuee properties other than agricultural land (hereinafter referred to as the New Scheme).

5. The petitioners have questioned the vires of the powers of the Government of West Pakistan for framing the New Scheme upon various grounds, At the time of arguments they, however, conceded before me that their cases will be covered by the provisions of 'the Old Scheme and as such they would not like to question the vires of the new Scheme. The arguments were therefore, confined to the applicability of Old Scheme to their Cases as well as about the validity of certain provisions of the Old Scheme which the petitioners claimed to be ultra vires of the Act and the power of the scheme‑making authority.

6. In order to appreciate various contentions raised before me it will be necessary to quote with advantage certain provisions of the Act and the scheme relating to the disposal of evacuee properties and the following definitions :‑ "2(4) "house" means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises. (11) "rural" means other than urbans (12) "shop" means evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑houses, if any, attached or appurtenant to such premises,

7. From the definitions it is clear that properties in the rural areas were not to be disposed of under Schemes Nos. I to VI unless their value was of Rs. 10,000 or more.

8. The Act also defines "urban area" under section 2(13) to mean the area of the urban limits of a Municipal Corporation, Municipal Committee etc., as those limits existed on the 14th day of August 1947. The Act, therefore, laid down two essentials for the disposal of houses and shops under the Schemes, namely, that it should be a property within an urban area as it stood on the 14th of August 1947, and, secondly, that any property outside the limits of urban area must be of the value of Rs. 10,000 or more. It is, therefore, clear that all other properties were put outside the pale of operations of transfer till such time the Old Scheme was framed by the Central Government.

9. The salient features of Old Scheme are that for the purposes of disposal of rural buildings the areas in which such buildings were situated were classified into three categories. I have already dealt with the cases falling under second category and third category in Writ Petition No. 878‑R of 1967 etc., vide my order dated the 5th of February 1969 and may omit their reproduction at the present but will quote here only the first category as the case of all the petitioners is that their properties fall under the first category of para. 4, Chapter IV, sub‑clause (i), Classification of Areas. It reads as under :‑ "First Category.‑Areas of extension of urban limits since 14th August 1947 and towns declared to be urban subsequent to that date by the Government of West Pakistan or the Chief Settlement Commissioner."

10. Clause (i) of para. 5 of Chapter V provides manner of disposal of rural buildings situate in the first category areas to be transferred and disposed of as urban properties in the manner laid down in the Act and the Schemes made thereunder. These provisions, therefore, excluded the transfer of rural properties under the first category outside the scope of Old Scheme.

11. I have given the definition of the word "Urban" as given under the Act in order to show that the intention of the Legislature was to transfer the properties within the urban limits as they stood on the 14th of August 1947 as urban properties and to make similar provisions for the transfer of properties in rural areas of the value of Rs. 10,000 or more in the similar manner as the property within the urban area For the properties in the rural areas which fall under section 2(l l) of the Act no provisions were made in the beginning and the Old Scheme was introduced in 1961 for this purpose. By introducing the classification of areas in the first category of the Old Scheme the Central Government has included those rural areas within the definition of "urban" under the Act which were not within the urban limits on the 14th of August 1947 but became extension of urban limits after that date. This classification of first Catergory in the Old Scheme by the Central Government tantamounts to extend the definition of the word "urban" as given under the Act. The addition of classification "First Category", therefore, amounts to legislation on the part of the Central Government in the purported exercise of their power under the Act. If the Legislature intended that those properties which were within the rural areas at the time of Independence and had come within the fold of the extended urban limits after the 14th of August 1947 should be included for the purpose of transfer under the Act as "urban" then there would have been no difficulty for it to add the definition of first category as given under the Old Scheme into subsection (13) of section 2 of the Act. Since the extended limits after 14th of August 1947 were left outside the purview of word "urban" under the Act the Central Government in exercise of its delegated powers under section 10(b) of the Act could not include them within the "urban" properties on account of exten sion of urban limits which have taken place after the 14th of August 1947.

12. As regards clause (1), para. 5 of Chapter V of the Old Scheme is concerned, it may be pointed out that the manner of disposal of rural buildings provided by the Central Government is also in conflict with the provisions of the Act. This clause provides manner for the disposal of rural buildings both kacha and pakka situate in first category as urban properties under the Act, although the Act makes no such provision and on the other hand provides for the transfer of rural properties of the value of Rs. 10,000 or more. It will thus be clear that the Central B Government, under these provisions of the Old Scheme has authorised the Settlement authorities to treat the properties within the extended area as urban property and also has provided manner of disposal of those properties without any discrimination whether their price is of more than 10,000 rupees or less. No, such intention could be gathered on the part of the Legislature to authorise the Central Government to make provisions in exercise of its scheme‑making power in contradistinction to the provisions of the Act.

13. In order to appreciate that the Central Government cannot exercise its power beyond the scope of the Act it will be necessary at this stage to reproduce clause (b) of section 10 under which the Old Scheme was framed :‑ ""

10. Power to transfer property from the compensation pool.- Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑ (a) * * * * * * * * * * * * (b) in such other manner as may be approved by the Central Government." The above provisions make it abundantly clear that while approv ing a manner for the disposal of the property the Central Govern ment has only been authorised to provide a manner for the disposal of evacuee properties in accordance with the provisions of the Act but has no power to make a. scheme which can either add or detract from the provisions of the Act. By providing `First Category' upper the Old Scheme and manner of disposal discussed above the Central Government has not only extended the definition of words "urban" and "rural" in exercise of its scheme‑making power but has also amended the definition of "house" and "shop" as given under the Act. The definitions of the words "house" and "shop", "rural" and "urban" as given in the Act leaves no doubt in my mind that the intention of the Legislature was to provide a manner for the transfer of the properties within the urban area as it stood on the 14th of August 1947 as well as for the properties within the rural areas if their value was of Rs. 10,00;) or snore. By these provisions it was clearly intended not to treat any other property not so defined to be disposed of as "urban". There were no provisions under the Act that for the areas which were included in an "urban limit" after the 14th of August 1947, the Central Government, therefore, could make a scheme to include them within the urban limits. Thus the provisions of "First Category" of classification of areas under sub‑clause (i) of para. 4 of Chapter IV as well as the manner of disposal of these buildings under clause (1), pare. 5 of Chapter V are inconsistent with the various provisions of the Act as discussed above and as such are ultra vires of the Act.

14. It may also be pointed out that so far as definition of rural buildings is concerned, the latter part of this definition under the Old Scheme is also in conflict with the definition of words "rural" and "urban" as given under the Act. The rural buildings under the Scheme have been defined as follows :‑ " 'rural building' means an evacuee residential and or business premises of the value of less than ten thousand rupees, situated outside an urban limit as defined in subsection (13) of section 2 of the Act or as fixed by the Chief Settlement Commissioner from time to time." The words underlined by me once again are an introduction of new definition to the words "rural buildings" under the Act. No D such power has been given by the Act to the Central Government to define rural or urban areas contrary to the provisions of) section 2 (11) and (l3) of the Act. I, therefore, hold that these provisions are also ultra vires of the powers of the Central Government as conferred upon it by section 10 (b) of the l Act.

15. From the above it follows that the Central Government' had no power or authority to frame a Scheme for the disposal of rural properties below the value of Rs. 10,000 which fall under the extended limit of a Municipal Committee etc., after the 14th) of August 1947 and all such properties have to be treated as properties situate in the "rural area".

16. In the view which I have taken about the scheme making power of the Central Government that it cannot make provisions inconsistent with the provisions of the Act 1 am supported by a decision of their Lordships of the Supreme Court in Mahmooda Tahsin v. Ijaz Hussain Shah (P L D 1965 S C 618). The other authorities which can be mentioned in this connection that there was no intention on the part of the Legislature to give powers to the Central Government or to the Chief Settlement Commissioner to make provisions so as to override the express provisions of the Act or the rules, are Mst. Anwar Jehan Begum v. Chief Settlement Commissioner (P L D 1961 Kar. 694), Muhammad Rashid v. Chief Settlement and Rehabilitation Commissioner (P L D 1962 Lah. 217) and Dad Muhammad Khan v. Bassa (P L D 1965 Lah. 77). The scheme‑making powers of the Central Government: under the Act are analogous to the rule‑making powers of the authorities under any other law and I do not find that there is any distinction between them. The object of the rule‑making, powers under an Act is to authorise the authority to do certain acts within the four corners of a statute. To the similar effect are the provisions of scheme making power under this Act which have been delegated to the Central Government as well as to the' Chief Settlement Commissioner. These authorities, however, cannot make inconsistent provisions under the Scheme so as to clothe them with the powers which the statute itself does not give. On this interpretation of the power of the rule‑making authority I am fortified by a decision of their Lordships of the Supreme Court in Province of East Pakistan v. Nur Ahmad (P L D 1964 S C 451).

17. I now proceed to examine the case of the various petitioners in the light of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Schemes made thereunder, read with the remaining provisions of the Old Scheme.

18. Since all the properties were situated within the rural areas on the 14th of August 1947 it wilt present no difficulty in case of those properties the value of which is Rs. 10,000 or more. All such properties have to be transferred according to the definition of the property as given under the Act on evaluation basis under the provisions of the Settlement Scheme No. 1 and Old Scheme No. VII will have no application whatsoever. The Settlement authorities in each case have to give a determination of the value of the property and find out what is the price of each house or shop etc., and if it is of more than Rs. 10,000 pass an order for their transfer in accordance with law.

19. As regards the properties of the value of less than Rs. 10,000 for their transfer the formula laid down by the Central Government under the Old Scheme under para. 4 of Chapter IV and manner of disposal of rural buildings under para. 5 of Chapter V will have no application because I have already declared these provisions as ultra vires of the Act and these properties have, therefore, to be transferred in accordance with the rest of the provisions of the Old Scheme.

20. All the petitioners claim that they applied for the transfer of the properties in their respective possession immediately after the Old Scheme was enforced. I have already held in Writ Petition No. 878‑R of 1967 that the New Scheme which came into force on the 16th of April 1966 was prospective in its operation and the pending proceedings shall continue to be governed by the provisions of the Old Scheme. The petitioners will, therefore, have a right to get the determination of their title under those provisions of the Old Scheme which are intra vires of the Act.

21. Since in these cases a large number of displaced persons and locals are involved and there is nothing available on this record on the basis of which I can possibly determine the entitle ment of each one of them I deem it expedient in the interest of justice to remit all these cases to the Deputy Settlement Commis sioners of their respective areas. The notices issued by the Settlement authorities against the petitioners under Settlement Scheme No. VIII are hereby quashed and the properties cannot be resumed from the petitioners without determining their right under the remaining provisions of the Old Scheme.

22. The cases of those of the petitioners who are in possession of properties of the value of Rs. 10,000 or more will present no difficulty ''as such properties are governed by the provisions of the Act and the Schedule made thereunder. The Deputy Settlement Commissioner of the Area concerned, will. therefore, receive Forms C. H., C. S., N. C. H., and N C. S. etc., for such properties and order their transfer in accordance with Settlement Scheme No. I. As regards the petitioners who are in possession of the properties the value of which is less than Rs. 10,000 but they have not applied for them under the Old Scheme the Deputy Settlement Commissioner will receive their application and determine their entitlement according to the provisions of the New Scheme. In case any one of the petitioners feels aggrieved by the order of the Deputy Settlement Commis sioner concerned he may pursue his remedy under the Act by way of appeal and revision and then may approach the High Court, if so advised, after a final order has been passed in each individual case by the Settlement authorities.

23. So far as the persons falling under category (a) of clause (2) and others falling under clause (4) of Chapter V of the Old Scheme are concerned, they have become owners of the rural buildings in their possession and the Deputy Settlement Commis sioner should issue necessary documents of title in their favour after determining their entitlement.

24. Before parting with the case I would like to emphasise upon the Deputy Settlement Commissioners concerned, that the cases of these petitioners cannot be disposed of whole‑sale. Each one of their case has to be disposed of separately and separate orders have to be passed by the learned officer in accordance with the provisions of various Schemes whichever is applicable to their case.

25. All the writ petitions are, therefore, disposed of accord ingly but there will be no order as to costs. Petitions disposed of accordingly.