1983 PLP 1158 (SCMR)

NASIM HASAN SHAH, J.‑This judgment will dispose of Civil Appeal No. K‑66 of 1975 and' Civil Appeal No. K‑67 of 1975, as a common question of law arises in both the said appeals. The respondents in both the cases are evacuee displaced persons, who were fortunate to secure the allotment of considerable areas of land in District Tharparkar, in the Province of Sind. On the promulgation of Martial Law Regulation 84 of 1961 entitled Scrutiny of Claims (Evacuee Property) Regulation, and more particularly after its reconstitution by Martial Law Regulation No. 89 (and amendment by M. L. R. 91), they were required to surrender large portions of land earlier allotted to them, being in excess of their actual entitlement. However, as a measure of kindness to them they could purchase the land held by them in excess of their entitlement in case they exercised an option in this behalf. Originally in the Scheme framed under Martial Law Regulation No. 89 (as amended by Martial Law Regulation No. 91 which was promulgated, on 28‑12‑1961), the person surrendering land and opting to purchase the excess land was required to deposit immediately 25 per cent of the price of the land and the remaining 75 per cent. was to be paid by him within a period of 6 years in twelve equal six‑monthly instalments. However, to favour the displaced persons still further another concession was allowed to them by amending the relevant paragraph of the Scheme by issuance of a correction slip, dated 1st February, 1962 making the purchase price recoverable in twenty equal half‑yearly instalments. The respondents, in both the appeals, who were desirous of purchasing the excess land, therefore, sought permission to exercise options for purchasing it. Accordingly, Mst. Humid Jehan Begum (respondent in Civil Appeal No. K‑66 of 1975) was permitted to purchase the excess land by an order, dated 22‑5‑1962, while the option of Mst. Ismat Ara Begum (respondent in Civil Appeal No. K‑67 of 1975) in this regard was accepted on 23‑6‑1962. It appears that a further concession in the matter of payment of the price of the excess land was given by the authorities by issuing a memorandum, dated 31‑1‑1963, whereby the Governor of the West Pakistan was pleased to order "that the purchase price of the land surrendered under Martial Law Regulation No. 89/91 should be recovered in thirty equal six monthly instalments instead of twenty half‑yearly instalments as envisaged in paragraph 8(i) of the Scheme for the disposal of surrendered land". This order, however, stood amended by the issuance of another correction slip on 6‑4‑1965, whereby the provisions inserted by the correction slip dated 1‑2‑1962 (amended above) were deleted and substituted by a longish provision, wherein it was, inter alia, provided that although the price of the surrendered land may still be paid in 30 half‑yearly equal instalments but in case of default, the purchaser shall have to pay interest at the rate of 6 per cent per annum on the total unpaid amount and also to pay the penal interest at the rate of 3 per cent per annum on the defaulted instalments. The respondents in both the cases felt aggrieved on account of being dealt with under the amendment introduced on 6‑4‑1965 and in this connection moved the High Court of Sind and Baluchistan at Karachi in its writ jurisdiction; in fact, Mst. Humid Jehan Begum (respondent in Civil Appeal No. K‑66 of 1975) moved it more than once. However, the petition, from which the Civil Appeal No. K‑66 of 1975 arises, was Constitutional Petition No. 1188 of 1973, while the petition of Mst. Ismat Ara Begum (respondent in Civil Appeal No. K‑67 of 1975) was Petition No. 25 of 1973. Agha Ali Hyder, J. (as he then was) while accepting Constitutional Petition No. 1188 of 1973 came to the conclusion that Mst. Humid Jehan Begum was liable to be dealt with by the authorities concerned under the Scheme, dated 28‑12‑1961 as amended on 1st February, 1962 and 31st January, 1963 ; while Mushtaq Ali Kazi, J. (as he then was), who dealt with petition of Mst. Ismat Ara Begum (respondent in Civil Appeal No. K‑67 of 1975), held that the amount due from her should be recalculated after taking into consideration the memorandum, dated 31st January, 1963. Feeling aggrieved with these orders, the Chief Settlement Commissioner moved this Court against them and leave to appeal was granted to consider the question, namely, that while recovering the balance of the sale price from the respondents if they were to be exempted from the operation of the amendment made in 1965 whether they could in such an event claim the benefit of the concession given to them by the amendment made in 1963, which amendment was not in existence when they exercised the option to repurchase the surrendered land ? We have heard Mr. Abdul Sattar Sheikh, Additional Advocate‑General Sind, in support of both the appeals and Mr. S. M. Abbas, Advocate‑on Record on behalf of Mst. Ismat Ara Begum (respondent in Civil Appeal No. K‑67 of 1975). However, no one appeared on behalf of Mst. Hamtd Jehan Begum (respondent in Civil Appeal No. K‑66 of 1975) and she has, accordingly, been proceeded ex parte. On examining the record, we find that the case of the respondents ha been that they should be dealt with by the Scheme as in force at the point of time when they exercised their option to repurchase the excess land. The Scheme then in operation was in the form as it stood as amended by the correction slip, dated 1‑2‑1962. The error that the learned Judge of the High Court appeared to have committed in both the cases is to have allowed the benefit of the amendment, dated 31‑1‑1963 i.e. one of the amendments that was made on a date after both of them had exercised the option to repurchase the excess land. It is hardly open to doubt that in case the amendment made in 1963 was invoked by the respondents in their favour which came into existence after they had exercised their option to repurchase the excess land, the subsequent amendment made on 6‑4‑1965 would also have to be taken into account ; hence if they desired to take advantage of the amendment made on 31‑1‑1963 they could not escape from the obligations imposed by the further amendment made on 6‑4‑1965. But we find that the respondents were really desirous of being dealt with under the Scheme, as amended up to 1‑2‑1962 i.e. Scheme as it stood before they exercised their option to repurchase the excess land. In fact, Mst. Hamid Jehan Begum (respondent in Civil Appeal No. K‑66 of 1975) had filed her first Writ Petition (W. P. No. 90 of 1968), to establish that she would be governed by the Scheme as amended by the correction slip dated 1‑2‑1962 and not the correction slip, dated 6‑4‑1965 and this plea was accepted by the High Court of West Pakistan, Karachi Bench, Karachi. Hence the learned Judges of the High Court of Sind & Baluchistan, who passed the impugned judgment bad erred in extending the further concession granted to the purchasers by the memorandum. dated 31‑1‑1963 in favour of the respondents. The result, therefore, is that the judgments of the High Court of Sind & Baluchistan in both the cases, which have been impugned before us, must be set aside and we hold that the sale price from the respondents is recoverable in accordance with the Scheme, as amended upto 1‑2‑1962. In case, any of the respondents, in the two cases, has not paid the full price of the excess land, further proceedings by the Settlement authorities can be taken against them only under the relevant Scheme, as revised upto 1‑2‑1962. These appeals are allowed in the above terms, with no order as to costs. S. Q. Appeals allowed.