1986 PLP 433 (MLD)

Ch. Muhammad Nazir Ahmad for Respondents Nos. 8 and

9. Date of hearing: 3rd April 1986. This writ petition by Syed Ata Hussain Shah, who is now dead and has consequently been substituted by his legal representatives, was filed to assail the validity of an order passed on 14th of December, 1976 by the Assistant Commissioner with powers of Collector and Additional Commissioner with powers of Collector and Additional Settlement Commissioner (Land), Shakargarh, whereby his application was allowed to the extent that he was declared to be 'entitled to receive a sum of Rs.300 as mortgage money but dismissed in respect of his prayer that he be compensated for the improvements made by him in the land and allowed to remain in possession of the land till the payment of the mortgage money and reimbursement of expenditure incurred by him on the improvements.

2. Agricultural land measuring 23 Kanals and 7 Marlas situate in village Dudho Chak, Tehsil Shakargarh, District Sialkot was owned by evacuees namely Sansar Singh, Jagtoo and Boru who mortgaged the same to Nathe Shah, father of the petitioner, on 7th of April, 1941 for Rs.300 by a registered mortgage deed which inter alia authorised the mortgagee to effect improvements in the land and claim compensation therefor at the time of redemption of the mortgage. The land was, however, treated as evacuee and allotted to respondents Nos.1 to

4. On 10th of May, 1971 the petitioner who had meanwhile succeeded to, the original mortgagee filed an application before A . C . / A . S .C.(L) , Shakargarh under section 14‑A of the Displaced Persons (Land Settlement) Act, 1958 praying that he should not be dispossessed from the land without paying him the mortgage money amounting to Rs.300 and also the value of the improvements made by him in the land. The Assistant Commissioner in his impugned order observed that under the law the petitioner being a mortgagee of the evacuee land had ceased to .be entitled to remain in possession thereof and, therefore, issued a warrant for his dispossession. As regards his claim for the mortgage money and compensation for the improvements, he held that the petitioner was entitled to receive the mortgage money amounting to Rs.300 but disallowed his claim for compensation on the ground that he had not sought a declaration in respect thereof from the Custodian under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957. The petitioner, feels aggrieved by this order.

3. I have heard learned counsel for the parties. Learned counsel for the petitioner has frankly conceded that in view of the amendment in the Displaced Persons (Land Settlement) Act, 1958 by way of addition of section 14‑A which was made on 7th of June, 1962, the allotment of the mortgaged land to respondents Nos.1 to 4 became valid and the petitioner ceased to be entitled to remain in possession thereof. This contention is in accordance with law as interpreted in Muhammad Nawaz Khan and others v. Muhammad Amin and others P L D 1969 Lah. 622, Sardar Muhammad Tufail v. The Chief Settlement Commissioner and others 1970 S C M R 73 and Muhammad Din and another v. Government of Pakistan and 9 others 1970 S C M R

94. He has, however, contended that the observation of the Assistant Commissioner in his impugned order that the petitioner was not entitled to claim compensation for the improvements made by him in the land as he had not obtained a declaration in respect thereof from the Custodian, is not tenable. In this connection he has relied on Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1962 S C 284 in which it was held as under:

‑ "A declaration granted by the Custodian under section 22, Pakistan (Administration of Evacuee Property) Act, 1957 would only recognise an existing mortgage but could not be said to have created a new charge. The Custodian is authorised under section 25 of Act XII of 1957, to create a charge on evacuee property. That Act itself distinguishes between the creation of such a charge and the declaration of an existing charge or mortgage under section 22 thereof."

4. The above authority supports the contention of the learned counsel. However, subsequent to the above authority which was decided on 26th of April, 1962 section 14‑A was added in the Displaced Persons (Land Settlement) Act, 1958 which declared that mortgage money due to the mortgagee would be a charge on the mortgaged land. It further declared that such charge would be deemed to be a charge created by the Custodian under section 4(4) ibid. It also authorised the Collector to assess the amount of such charge. In pursuance of this amendment and the Satisfaction of Charges (Land Settlement) Rules, 1962 Government issued a Press Note on 6th December, 1962 inviting applications by 31st of January, 1963 from the mortgagees of evacuee land allotted to displaced persons for payment of mortgage charge money. The term "mortgage money" by its definition given in section 58 of the Transfer of Property Act, 1882 includes payment for the value of the improvements made by a mortgagee in the mortgaged land with the concurrence of the mortgagor. In view of this definition, the petitioner could legitimately claim compensation for the improvements. However, admittedly, he did not apply to the Collector for the compensation by the due date. He submitted his application on 10th of May, 1971. On account of the unexplained gross delay in the submission of the application, the writ as prayed for by the petitioner, cannot be issued.

5. For the foregoing reasons this writ petition is dismissed. The parties are left to bear their own costs. A . A . Petition dismissed.