P L D 1969 Lahore 743 (PLP)

(iii) Locals.

3. The properties in dispute in all the cases, are situated in the "rural areas". It comprises of residential houses commercial premises etc., under the occupation of all the petitioners. The various villages mentioned above, in which the disputed properties are located were admittedly not within any municipal limits as it existed on the 14th of August 1947 and all these villages have been included within the extended limits of their respective municipalities after Independence.

4. Although the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was enacted sometimes early in 1958 and Settlement Scheme Nos. I to VI were issued by the end of 1959, there was, however, no- Settlement Scheme for the disposal of Immovable Evacuee Property (other than agricultural land situated in Rural Areas till the middle of 1961. It was for the first time on the 7th of August 1961 that Settlement Scheme No. VII for the disposal of immovable evacuee property other than agricultural land situate in rural areas, was issued. According to this. Scheme the Central Government, in exercise of its powers under clause (b) of section 10 of the Act, as it stood at the relevant time, Was pleased to approve the manner for dis posal of buildings in rural areas which were below Rs. 10,0001, in value.

5. The salient features of this scheme are that for the purposes of disposal of rural buildings the areas in which, such buildings were situated were classified into the following three categories vide clause (4), Chapter IV:‑ (i) Fist Category . . . . . . (ii) Second Category.‑Towns (not declared urban and villages the population of which is 3,000 or more according:: to the census of 1951 and other towns, villages or areas. urban or rural) included in this category by the Chief Settle ment Commissioner from time to time. (iii) Third Category.‑The remaining areas.

6. Clause (3) of Chapter V, lays down the manner of disposal of rural buildings in occupation of more than one person etc., but it is not necessary to advert to these provisions because this is neither relevant nor material at this stage for the disposal of the points involved in these writ petitions.

7. Although the villages in which the disputed properties are situated fall within the first category as they fall within the extension of urban limits made after the 14th of August: 1947 but it was conceded by the learned counsel for both sides that the villages in which the disputed properties are situated are those towns and villages or areas which have been included by the Chief Settlement Commissioner in the second category in exercise of his power conferred upon him by second part of the language of second category reproduced above and the name of all these villages appear in the instruc tions issued by the Chief Settlement Commissioner vide Appendix II under the List of Areas for Rural Properties of Second Category. It was, therefore, urged on behalf of the petitioners that it will not be necessary in these petitions to decide about the vires of the first category of old Settlement Scheme No. VII and the petitioners' cases can be disposed of without adverting to this aspect of the scheme.

8. Mr. A. G. Chaudhry, learned counsel for Umar Din and others in Writ Petition No. 878‑R of 1967, who has argued the case at some length and with whom all other learned counsel have joined, urged that after the introduction of Scheme No. VII, which came into force on the 7th of August 1961, all such displaced persons who were allottees of the agricultural land in their respective villages became owners of the rural buildings in their occupation by operation of clause (2)(a) of Chapter V of the Scheme as no applications were required to be filed on their behalf. In case of others he maintained that those who were covered by sub‑clause (b) of clause (2) of Chapter V and had filed their affidavits before the Settlement authorities that they had left a house or a shop of the value of less than Rs. 10,000 in a rural area in India and at the same time had applied to the Settlement authorities concerned that their respective tenements be transferred in their favour, it was obligatory upon the Settlement authorities to transfer those properties in their names free of charge. In this connection he also pointed out that in some of the cases proper orders under Settlement Scheme No. VII (Old) had peen duly passed by the Settlement authorities, transferring these properties on the basis of the affidavits and applications but subsequently those cases have been illegally re‑opened and the petitioners have been called upon to pay the price under the reconstituted Scheme No. VII.

9. Similarly, it was argued that those petitioners whose, cases fall under sub‑clause (c) of clause (2) had also made applications for the transfer of the premises in their occupation or possession, in law had to be transferred such properties on payment of the price determined according to the assess ment formula as laid down by the Chief Settlement Commissioner in Appendix II to the old Scheme. As regards other Kacha rural buildings in the second category area and all rural buildings in the third category area were concerned, it was argued that under clause 4 of Chapter V they all shall he deemed to have been transferred to their occupants free of charge.

10. It may be pointed out that the Settlement authorities have issued notices under Scheme No. VIII invariably against all the petitioners whether they were allottees of the agricul tural land or displaced persons having left the property of less than Rs. 10,000 for the rural area or other displaced persons etc., and their orders have now been challenged on the ground that the properties have vested in the petitioners by operation of Settlement Scheme No. VII and the Settlement authorities are acting illegally in the exercise of their power under reconstituted Scheme No. VII which is not retrospective in its operation.

11. In order to appreciate the relevant provisions of the Settlement Scheme No. VII as it operated between the 7th of August 1961 and 16th of April 1966 it will be necessary to examine the manner which is provided by the Central Government under Chapter V for the disposal of Immovable Evacuee Property other than agricultural land situated in the rural area. Since in the present case r will be dealing with the cases of the petitioners whose properties admittedly fall under the second category according to the orders of the Chief Settlement Commissioner, as shown in Appendix II of the instructions, the relevant terms and conditions prescribed for the disposal of these properties may be reproduced here with advantage :‑ "CHAPTER V‑MANNER OF DISPOSAL OF RURAL BUILDINGS 5. (1) Rural buildings (2) Subject to the conditions prescribed below and the instructions issued by the Chief Settlement Commissioner from time to time rural buildings in the second category areas shall be disposed of in the following manner :‑ (a) A pakka rural building which has been in the occupation of an allottee of agricultural land in the same estate since before 1st January 1961 shall be deemed to have been transferred to such person free of charge with effect from that date. (b) A pakka rural building which has been in occupation of a displaced person (other than allottee of agricultural and) since before 1st January 1961, and such displaced arson has left a house or a shop of the value 3f less than Rs. 10,000 in a rural area now forming part of or occupied by India and gives an affidavit to this effect, shall, in case he applied in that behalf, be transferred to him free of charge. (c) A pakka rural building other than that specified under (a) and (6) above which has been in the occupation of a displaced person or a local since before 1st January 1961, in case he applies in that behalf, be transferred to such displaced person or local on payment of the price deter mined according to the assessment formula. (d) (e) . ..

12. The above provisions of Old Settlement Scheme No. VII land enough support to the argument of the learned counsel for the petitioners that the Settlement authorities have no right or jurisdiction to issue notices to the petitioners A under Settlement Scheme No. VIII. According to the instruc tions issued as Appendix 11, by the Chief Settlement Commissioner there is no doubt in my mind that although all these villages were included in the extension of urban limits after 14th of August 1947 but the Chief Settlement Commissioner, in exercise of his power given to him by second part of the second category of Chapter IV had included them in the second category and, their disposal had to be done under various sub‑clauses of clause (2) of Chapter V reproduced above. The Chief Settlement Com missioner did not only possess this power under second part of para. 4 of Chapter IV, reproduced above, but he also has been authorised by the Central Government to include any area within the definitive clause of Chapter 1(4) where under a "rural building" has been defined as a residential and o 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 Chief Settlement Commissioner had, therefore, in exercise of both these powers included these villages in the second category of classification of area and the over Settlement authorities have illegally disregarded his instructions in not transferring the properties in dispute to the petitioners in accordance with their entitlement and have wrongly issued notices under Scheme No. VIII, because reconstituted Scheme No. VII is not attracted to anyone of these cases.

13. The reconstituted Settlement Scheme No. VII came into force vide Gazette Notification of 26th of March 1966 as printed in the Gazette of West Pakistan, dated the 16th of April 1966. Sub‑clause f2) of clause (2) of the Scheme provides that the Scheme as reconstituted shall come into force on the date of its publication in the official Gazette, but pending proceedings under the original scheme shall continue to be' governed by provisions of that Scheme. From this provision of the Scheme it is manifestly clear that not only the Scheme is prospective in its operation 'out pending proceedings have also been saved and have to be decided according to the original Scheme it was issued by the Chief Settlement Commissioner under the authority of Central Government on the 7th of August 1961. In this view of the matter it is not necessary for me to examine the vires of reconsti tuted Scheme No. VII.

14. Sub‑clause (2) of clause (2) of the reconstituted Settle ment Scheme No. VII will be attracted to the cases of all such petitioners who are in occupation of rural buildings and who have made their respective applications before coming into force of the new Scheme. So far as the refugee allottees of the agricultural land are concerned, or the buildings which tail under clause (4) of Chapter V no order of transfer was at all necessary under the Old Scheme and according to the provisions of these two paras. all such buildings shall be deemed to have been transferred to the occupants free of share with effect from the 1st of January 1961.

15. In these cases a large number of displaced persons and locals who are in occupation of various types of rural buildings are involved but there is neither any material nor any document available before me to determine the entitlement of each one of the petitioners in accordance with the pro visions of Old Settlement Scheme No. VII. This is a matter which requires further probe and investigation at the hands of the Settlement authorities. The cases of the persons fall ing under category (b) and (e) of clause (2) of Chapter V have to be decided on the basis of the affidavits and the applications of the petitioners. It has also to be ascertained by the Settlement authorities concerned who are the persons who are allottees of the land in the villages and which type of buildings fall under clause (4) Chapter V. In these circum stances the learned counsel for both the parties have agreed that these are fit cases which should be remitted back to the Deputy Settlement Commissioner concerned who will examine the respective merits of each individual case separately and pass separate orders in exercise of his powers under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, read with Old Settlement Scheme No. VII. I accordingly remit all these cases to the Deputy Settlement Commissioner concerned with a direction that the learned officer will examine each individual case separately and find out who are the persons who have become owners by operation of clause 2(a) and clause (4) of Chapter V. At the same time the learned officer will examine the cases of those petitioners who fall under category (b) and (c) of Chapter V and shall give a finding in each case whether the petitioners have filed their respective affidavits and applications as was required by Old Settlement Scheme No. VII. In case of the persons who have not applied under the Old Scheme the Deputy Settlement Commissioner will examine their cases under the reconstituted scheme and determine their entitlement accordingly. In case any one of the petitioners feels aggrieved of the order of the Deputy Settlement Commissioner he may seek his redress under the Act by filing an appeal and revision and subsequently may approach the High Court as and when a final order has been passed against him by the Settlement Courts, if so advised.

16. Before parting with the case I would like to emphasize upon the Deputy Settlement Commissioner concerned that the cases of the petitioners cannot be dealt by him wholesale. Each one of them has to be decided separately and individual orders have to be passed by him in accordance with the provisions of the schemes old or new whichever is applicable.

17. So far as the persons falling under category (a) of clause (2) and others falling under clause (4) of Chapter V are concerned, they have become owners of the rural buildings in their possession and necessary documents may be issued in their favour in accordance with law, after determining their entitlement. The writ petitions are, therefore, disposed of accordingly but there will be no order as to costs. K. B. A. Order accordingly.