P L D 1991 Supreme Court 391 (PLP)

NASIM HASAN SHAH, J.‑‑‑ These appeals, by leave of this Court, are directed against the dismissal by the Lahore High Court of appellants' writ petitions. As the appeals are directed against a consolidated order dismissing the two writ petitions filed by the respective appellants herein, in the High Court at Lahore, they can be conveniently disposed of together. Briefly, the relevant facts are that Ghulani Muhammad appellant (in Civil Appeal No.274 of 1978) is the son while Budha appellant (in Civil Appeal No.275 of 1978) is his father (now dead and represented by his legal representatives). Evacuee land measuring 47 Kanals 10 Marlas and 67 Kanals 14 Marlas situated in Chak Uggo, Tehsil Daska, District Sialkot, were temporarily allotted to Ghulam Muhammad and his father Budha respectively as Jammu and Kashmir refugees. But on the 15th February, 1974, Ahmad Khan respondent riled separate applications against them under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. It was contended that the two appellants were not Jammu and Kashmir refugees and belonged to village Chaprar, Tehsil and District Sialkot. As such, they were the local residents of Pakistan not eligible for the allotment of the evacuee lands to them. After the necessary enquiry on the 20th of November, 1975, respondent No.2, the Additional Deputy Commissioner (C), Assistant Settlement Commissioner (Land) with delegated powers of the Chief Settlement Commissioner by his consolidated order accepted the two petitions before him and cancelled the allotments of the lands in dispute held by the respective appellants. He was, inter alia, impressed by the fact that in a copy of the relevant Jamabandi for the year 1944‑45 relating to the estate of Chaprar, Tehsil and District Sialkot, Budha appellant was entered as a mortgagee in cultivating possession of some lands. Moreover, according to the copies of the extracts from the birth registers Imam Din father of Budha appellant and Ghulani Muhammad appellant son of Budha son of Imam Din were born in village Chaprar. In rebuttal, the two appellants pleaded that they had migrated to Jammu and Kashmir State about 10 years before the Independence and had started living there permanently and thereafter came back to Pakistan only as refugees in the disturbances attendant on the partition of the Sub‑continent. But they failed to substantiate this plea to the satisfaction of respondent No.2. In these circumstances, the two appellants riled their separate writ petitions challenging the validity of the respective orders passed by respondent No.2 cancelling the lands in dispute from their names. But a learned Judge of the Lahore High Court at Lahore on the 24th March, 1976 dismissed the writ petitions in limine by a single order. He refused to interfere in writ jurisdiction with the findings of fact recorded by respondent No.2 on the evidence before him. Hence these appeals. The learned counsel for the appellants in support of these appeals has contended before us that in terms of Para. 4‑A, Part I of the Rehabilitation Scheme, the lands in dispute allotted temporarily to the appellants as Jammu and Kashmir refugees were expressly excluded from the operation of that Scheme. He further submits that the lands in dispute were allotted to the respective appellants on purely temporary basis for maintenance only and not in lieu of any claim verified under the law. As such, there was no 'allotment' of these lands within the contemplation of the definition of the term contained in section 2(1 ) of the Displaced Persons (Land Settlement) Act, 1958. This being the case, therefore, the provisions of sections 10 and 11 were not attracted to the facts and circumstances of the case. In brief his submission is that the delegate of the Chief Settlement Commissioner did not have the jurisdiction to entertain the petition for cancellation of the land held by the Jammu and Kashmir refugees for maintenance only. Hence, the impugned orders passed by the Settlement Authorities cancelling the land in dispute are without lawful authority and of no legal effect. The learned counsel for the contesting respondents Ch. Muhammad Abdullah, on the other hand, has submitted that the Chief Settlement Commissioner had the powers under section 11 of the Displaced' Persons (Land Settlement) Act to cancel and resume the land of those who were not allottees but occupying the land in an unauthorised manner and, in this connection, he relied on a judgment of the Lahore High Court in the case of Pakistan Tanneries Ltd. v. Hidayat Ullah P L D 1972 Lah.

880. For a proper appreciation of the contentions of the two parties it should be borne in mind that 'in the matter of allotment to refugees from Jammu and Kashmir the approach followed was not the same as adopted in making allotments to refugees from other parts of India. Here the families migrating from Jammu and Kashmir were, in the first instance, gives free ration on ratio, cards issued to them as the expectation was that occupied Jammu and Kashmir would soon be liberated and these refugees would be returning to their home land as soon as the situation normalised. However as this expectation was not 'being fulfilled it was decided to make temporary allotments of land to them towards subsistence (Guzara) in lieu of the free rations being drawn by them. With the passage of time and the prospect of Jammu and Kashmir refugees returning to their homeland becoming more and more remote, the land temporarily allotted to the ration card holder was sold by the Chief Settlement Commissioner to the Ministry of Kashmir Affairs for utilisation and satisfaction of the claims of Jammu and Kashmir refugees, who had abandoned their land in the occupied territories. In the meanwhile, para.4‑A was inserted in the Rehabilitation Settlement Scheme (Part 1) clause (ix) whereof providing that the land allotted on temporary basis to Jammu and Kashmir refugees was not allotable under the Rehabilitation and Settlement Scheme but was to remain excluded from the said Scheme [clause (ix) of Para.4‑Al. It is on the basis of this provision that the learned counsel for the appellants has contended that the land in dispute not being allotable was not subject to sections 10 and 11 of the Act, which was attracted for cancellation of allotments' alone. It may here also be pointed out that the term 'allotment' is defined in subsection (1) of section 2 of the Displaced Persons (Land Settlement) Act , 1958 as follows:‑‑

"Allotment means an allotment of agricultural land made to a displaced person under this Act or under any Scheme, in lieu of any claim registered and verified...? This shows that only such allotments which have been made, in lieu of any claim registered and verified come within the purview of the definition of allotment under subsection (1) of section 2. ???????? Now section 10 of the Land Settlement Act provides:‑‑-- "If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fraud or false representation then without prejudice to any other penalty to which such person may be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment, or reducing the area of the land allotted or such other order as he may deem fit." Thus, it is only where any person who has obtained allotment by means of fraud and false representation that such an allotment becomes liable to cancellation under section

10. Obviously where the land granted to any person is not in the nature of an allotment as the said term is understood in the Displaced Persons (Land Settlement) Act, the provisions of section 10 would not be attracted. Coming to section 11 oil which the 1earned counsel for respondents has mostly relied, it lays down:‑‑ (1) Notwithstanding any thing contained in any other law for the time being in force or in any contract, but subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, may, for reasons to be recorded in writing, cancel or terminate any allotment or lease made under a Scheme or under this Act, or amend or vary the terms of any such allotment or lease ....... (2) If any allottee, lessee, holder or occupant of any land acquired under this Act by reason of lack of a valid allotment order or lease or on account of an order made under subsection (1) is not, or ceases to be, entitled to the possession of such land, he shall, when so required by the Chief Settlement Commissioner, surrender, the possession thereof to the Chief Settlement Commissioner in this behalf." According to the learned counsel for the, respondents subsection. (2) has much wider scope than section 10 because herein where any allottee, lessee, holder or occupant of any land acquired under this Act is found to be disentitled to the possession of such land occupied by him, such land can be resumed by the Chief Settlement Commissioner, In support of this submission reliance is placed on the observations occurring in the judgment of the Lahore High Court in Pakistan Tanneries Ltd. v. Sardar Hidayat Ullah Mokal and others P L D 1972 Lah. 880 where subsection (2) of section 11 has been found to be wider in scope than subsection (1) of section 11 and held also to cover the cases of 'unauthorised occupants'. The contention is that as the appellants Were found not to be refugees from Jammu and Kashmir they were neither entitled to free rations nor to be given temporary allotment of land towards subsistence and, therefore, the allotment made to them under the temporary permit issued in their favour on 17‑9‑1951 could be resumed under subsection (2) of section

11. An examination of the judgment in the case of Pakistan Tanneries Ltd. PLD 1972 Lah. 880 does not appear to be apposite in the circumstances of the case in hand because it does not deal with the question of land given under temporary permits to persons claiming to be refugees from Jammu and Kashmir, but to land held by some different category of persons. Be that as it may, the matter is put beyond dispute by the provisions of subsection (1‑A) to section 14 introduced by the Displaced Persons (Land Settlement) (Amendment) Ordinance 1974 (Ordinance VI of 1974) which provides:‑‑

(2) for subsection (1‑A) the following shall be substituted, namely:‑‑ (1‑A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act , 1973 (LV of 1973) any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled‑‑ (a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of such other land available for allotment in the same Province as he may choose; and (b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide." In this case, the respondents submitted their petition under sections 10 and 11 on 15‑2‑1974 and this petition fell to be decided in accordance with the provisions of subsection (1‑A) of section 14, aforementioned. Under the aforesaid provisions it is only where any person has furnished information about the bogus and fraudulent allotment of land, that such land can be resumed. Accordingly, where the land has not been allotted under the Act or any Rehabilitation Scheme the question of resumption of the land granted to persons exgratia would not arise. This Court is Muhammad Din and others v. Allah Lok and others 1989 SCMR 323. has also held that the land temporarily transferred to Jammu and Kashmir refugees for purpose of their maintenance cannot be cancelled by the Chief Settlement Commissioner because it had, in fact, become the property of the Ministry of Kashmir Affairs in 1960 and was excluded from the compensation pool. Hence neither the Chief Settlement Commissioner nor his delegate had any jurisdiction to cancel the same and allot it to the informant. The upshot is that these appeals have force and must be accepted. The order dated 29‑11‑1975 passed by the delegate of the Chief Settlement Commissioner cancelling the allotment vide allotment permit dated 17‑9‑1951 made mi favour of the appellants is declared to be without lawful authority and of no legal effect and the impugned judgment of the High Court dated 24‑3‑1976 upholding the said order is also found unsustainable in law and, is therefore, also liable to be set aside. In the result, the appeal is allowed but the parties are left to bear their own costs. M.B.A./G‑32i/S M.B.A /G-324/S????????????????????????????????????????????????????????? Appeal allowed