P L D 1966 (W (PLP)

4. Muhammad Ibrahim respondent went in revision and the matter came up before the Settlement and Rehabilitation Commis sioner, Rawalpindi camp at Lahore, on 25th of September 1961. The learned Settlement Commissioner, while accepting the revision observed as follows:‑ "It has been shown to me by the learned counsel for the petitioner that this building was assessed to tax by the Excise and Taxation Department as also by the Corporation of the City of Lahore. This distinctly proves that this is to be treated as residential property as distinct from forming part of the urban agricultural land."

5. When this petition came up for hearing on 8th of Novem ber 1965, respondent Muhammad Ibrahim was not present in spite of service and since the questions raised in the petition were likely to affect the right of the said respondent, I considered it expedient to issue another notice to him for an actual date but he has not turned up in spite of service. I, therefore, proceeded to hear the petition ex parte against him.

6. Note, explaining the facts of the case, and parawise comments have been filed on behalf of respondent No. 1 under the signature of Mr. Muhammad Nawaz Cheema, Additional Deputy Rehabilitation Commissioner, Lahore, and Major Ishaq Muhammad Khan, appearing on behalf of respondent N4. 1 informs that this officer enjoys the powers of the Settlement Commissioner (Land), and this statement of facts has not been controverted on behalf of the petitioner. According to this Note, it is clear that classi fication of Khasra No.4405/1549‑1554 was recorded as sakni in the Revenue Record of the year 1947. The same classification existed in the jamabandi of the years 1944‑45 and 1951‑

52. It is pointed out by the Additional Deputy Commissioner, that the classification of these Khasra numbers was wrongly recorded as harani and chahi in the janzabandl for the year 1960‑

61. Similarly 2 kanals of this Khasra number were wrongly shown as under culti vation in the Khasra Girdawari for the year 1960‑61 and kharif 1962. 1 called upon the learned counsel for the petitioner to show if there was any Khasra girdawari in his possession to prove that the land allotted to his client, from the year 1947 has ever been used for agricultural purposes but the learned counsel has nothing to rely upon except parchi taqseem khatoni which was issued to his client on 29th of February 1960, by Additional Rehabilitation Commis sioner (Land), Lahore. He has not been able to show the original temporary allotment order by which the land under dispute was allotted in favour of his client as culturable land. Mr. Ishaq Muhammad Khan has argued that the entire land allotted to the petitioner is situated in a densely populated urban area of Rajgarh and, in fact, this land could not have been allotted as agricultural land under the Displaced Persons (Land Settlement) Act, 1958 as B it was a "sakni land" according to the Revenue Records and does not fall under the definition of 1 and within the meaning of the said Act. The non‑production of original allotment order and the khasra girdawari from 1947 up to this time on the part of the petitioner creates a reasonable doubt about the genuineness of entries in parchi taqseem khatoni (Annexure "A") and keeping in view the explanatory Note of facts and parawise comments submitted on behalf of respondent No. 1 it can safely be inferred that petitioner was able to get the classification of land changed in the jamabandi of 1960‑61 with an object to get the allotment of this land in his favour as an urban agricultural land.

7. The petitioner invokes in his aid paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme of 1957. This para graph was introduced in the "Rehabilitation Resettlement Scheme Punjab" on the 25th of June 1951, and if the building in question formed part and parcel of the petitioner's tenement it seems difficult to understand as to why did he not take any effective steps to take its possession from 1947 to 1960. To my mind it is clear that the petitioner was successful in obtaining the classification of land as barani chahi against the existing entries in 1960 and it was after this change that he filed an appeal against the order of the transfer made by the Deputy Rehabilitation Commissioner, Lahore. According to parawise comments submitted by the Department, it is explained that Khasra No. 4405/1549‑1552 contains an old bungalow and its two doors on Northern side open towards Sanda Road. There is one marla only between the doors on the Sanda Road and the rest is built up area. Major Ishaq Muhammad Khan has pointed out that according to parawise report, at present 17 families are putting up in this building and respondent No. 2 has also cons tructed about 7 or 8 rooms there. In para. 3 of the parawise comments it is pointed out that Khasra numbers in dispute were temporarily allotted to petitioner in 1947 when their classification was sakni and Major Ishaq Muhammad Khan has correctly observed that there were no provisions for the temporary allotment of "sakni land" in urban area and the temporary allotment made in favour of the petitioner was not legal. There is a compound wall of 7/8 feet height in the building in dispute, and, I have no manner of doubt, that the classification given in parchi taqseem khatoni (Annexure "A") for this khasra number measuring 2 kanals 3 marlas and 117 sq. feet, as barani chahi, is not correct and has C been incorporated with fraudulent object to give the petitioner a right to claim the said building as an urban agricultural lane. It was contended by the learned counsel for respondent No. 1 that no allotment, whether temporary, provisional or permanent was envisaged of the sakni land by the West Pakistan Rehabilitation Settlement Scheme, therefore, the temporary allotment made in favour of the petitioner in 1947, and, as well as the permanent allotment, made on 29th of February 1960, on the basis of parchi taqseem khatoni, in favour of the petitioner, was a nullity and Paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme is of no avail to the petitioner. The argument of the learned counsel for the respondent No. 1 has great force. According to the Rehabilitation Re‑settlement Scheme (Punjab), prepared in 1951, the Central Government authorised the Rehabilitation Com missioner (Land) Punjab, to pool and allot land as defined under section 4 (1) of the Punjab Tenancy Act. XVI of 1887, which reads as follows:‑ "Land means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agricul ture, or for the pasture, and other structures on such land."

8. From this definition it is clear that the land in dispute which is shown as "sakni" from 1944 according to jamabandi could not be allotted temporarily to the petitioner under the said scheme. According to West Pakistan Rehabilitation Settlement Scheme the definition of land is:‑ "Land means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture . . . . . " and the Rehabilitation Commissioner, West Pakistan was authorised to pool and allot on permanent basis that land only which fell under this definition of the Scheme. Major Ishaq Muhammad Khan has urged that the entire allotment in favour of the petitioner for the total area of 12 kanals 11 marlas and 17 sq. feet is a nullity, because it is not a land. In these proceedings, I am not concerned with the legality of the rest of the area allotted in favour of the petitioner and will deal with the allotment of the residential bungalow in favour of respondent No. 2 only, therefore, I decline to give any finding on this contention.

9. Learned counsel for the petitioner has urged that his client was a temporary allottee of the land arid it has been rightly con firmed in his favour under supplementary Scheme No. 2 of the West Pakistan Rehabilitation Settlement Scheme. In that context he has drawn my attention to paragraph 6 of the Supplementary Scheme No. 2 wherein it is laid down that "unless specifically provided to the contrary in this Scheme, the provisions of the West Pakistan Rehabilitation Settlement Scheme shall apply mutatis mutandis to all allotments made under the provisions of this Scheme", and with this provision he relies on paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme, claiming the transfer of the building and structure in favour of his client. But, as pointed out earlier, it teas to be established that the allotment in favour of the petitioner was land as defined under the Dis placed Persons (Land Settlement) Act of 1958, and Schemes made there under, otherwise the petitioner cannot be considered to be eligible for the transfer of superstructure as an agricultural land. It will be of advantage to reproduce the various definitions given under the Supplementary Scheme No.

2. Paragraphs 3 and 5 are as follows:‑ "(3) Rural agricultural land, hereinafter called, rural land shall mean such land as is defined in clause (i), Part I, Chapter I of the West Pakistan Rehabilitation Settlement Scheme, situate outside the limits of a Corporation, Municipal Committee.. .as these limits existed on the 14th August 1947." "(5) Urban agricultural land means land other than rural agricultural land as defined in clause (iii) of this section." For the purpose of allowing the petitioner to take the advantage of paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme of 1957, it should first be treated urban agricultural land as defined above because urban land has been excluded from allotment under para. 4, Chapter II of Supplementary Scheme No.

2. In para. 5 (c) of the same Scheme it is laid down "land which constitutes potential building sites or may be declared as building site under section 2 (3) of the Dis placed Persons (Land Settlement) Act of 1958 or such other land that has been reserved for expansion or treated as built up area" shall be specifically excluded from allotment. In this case it is obvious that 2 kanals 3 marlas and 117 sq. feet of land is not only a potential building site but, in fact, has a building which is inhabited by 17 families and surrounded by a wall of 7/8 feet height. Even assuming that it is land as defined in Punjab Tenancy Act, XVI of 1887 (which argument is not correct) it is otherwise specifically excluded from the operation of the Schemes made for the allotment of land under the Displaced Persons (Land Settlement) Act of 1958. There is nothing in the Supplementary Schemes No: 2 to support the contention of the learned counsel that his client should be deemed to have been transferred the super structures on the land by virtue of para. 6 of the Supplementary Scheme No. 2 read with paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme of 1957.

10. Learned counsel for the petitioner has drawn my atten tion to para. 29 of the West Pakistan Rehabilitation Settlement Scheme of 1957, and it is contended that according to his parchi taqseem khatoni, the classification of the land was shown as barani chahi, therefore, it could not have been changed without the permission of the Settlement Commissioner under section 2 (3) (b) of the Displaced Persons (Land Settlement) Act of 1958. Para graph 29 of the West Pakistan Rehabilitation Settlement Scheme is not applicable to the petitioner's case, because according to this paragraph, classification of evacuee land has to be taken in account according to the entritys in the special jamabandi prepared for exchange with India and subsequent variations of soil has to be ignored. No special jamabandi of 1946 has been placed on record to show that the land in dispute was shown as barani chahi on the 14th August 1947, and the question of changing its classification does not arise in this case. The departmental report and parawise comments show that the land was "Sakni" right from 1944 and the change in its classification as "barani chahi" in 1960 without the permission of the Settlement Commissioner is a nullity. This argument is, therefore, of no avail and goes against the petitioner.

11. Under section 2 (4) of the Displaced Persons (Compen sation arid Rehabilitation) Act of 1958, house has been defined "as an evacuee residential premises of any value in an urban area or of the value of Rs. 10,000,00 or more in a rural area . . . . . . " The house in dispute has been transferred in favour of respondent No. 2 for a sum of Rs. 22,000 00 on evaluation basis and as such it is house within the meaning of Displaced Persons (Compensation and Rehabilitation) Act of 1958, being a house in urban area of Rajgarh, Lahore. Even houses beyond the urban limit carrying a value of more than Rs. 10,000'00 are transferable under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and Scheme No. VII has been made for regulating such transfer. By no stretch of imagination the bungalow in question, which i s assessed to tax both by Municipal Corporation and Excise and Taxation Department, can be termed or can be called "urban agricultural land".

12. The learned counsel for the petitioner has urged that since it was an incomplete bungalow, therefore, it could not be allotted under Scheme No. I, made under this Displaced Persons (Compensation and Rehabilitation) Act of 1958, and has drawn my attention to para. 21 of Scheme No. I which reads as follows.‑ "If the building of a house or a shop was incomplete and un‑inhabitable on 14th August 1947, or was rendered uninhabit able on account of natural calamity, incendiarism or decay, sub sequent to that date, it shall be transferred under this Scheme even though it may have been completed or repaired subsequently." But the house in question although may be incomplete is not un‑inhabitable and, in fact, rights from independence, 17 families are living in it, therefore, para. 21 of Scheme No. 1 is not appli cable to the petitioner's case, even if this para. applies, the petitioner has no locus standi to challenge its transfer in favour of respondent Muhammad Ibrahim, In fact, the claim of the petitioner is based on paragraph 42 of the West Pakistan Rehabilitation Settlement Scheme of 1957. He is neither allottee of the house nor in its occupation, while the respondent No. 2 fulfils all these qualifications and the house has rightly been transferred in his favour. With these observations I dismiss the petition with no order as to costs. A. H. Petition dismissed.