P L D 1968 Lahore 495 (PLP)

MUHAMMAD AKRAM, J.‑

Muhammad Ayub appellant is a displaced person from Tehsil Fateh Abad, District Hissar, India, and after migration he has settled in village Faridpur, Tehsil and District Multan in West Pakistan. In lieu of the land; abandoned by him in India, he was confirmed lands in Multan and Muzaffargarh districts after verification of his claim. In verifying his claim the authorities computed the produce value of the "sailab" land left by him in Tehsil Fateh Abad, District Hissar in India at the rate of 40 Produce Index Units per acre. Afterwards one Qazi Amir Muhammad made an application against him to the Assistant Rehabilitation Commissioner to the effect that the appellant was holding the land, allotted to him, in excess of his entitlement. As a result of the enquiry made against him, the respondent, Mr. Muhammad Yar Khan, Addi tional Rehabilitation Commissioner (Touring and Inspection), West Pakistan, Lahore, eventually found that the appellant was holding the land in excess of his entitlement which should have been calculated at the rate of 22, and not 40 Produce Index Units per acre, as originally verified, for the "sailab" land left by him in India. This order was passed by the respondent on 6‑10‑1959, on the report submitted to him by the Tehsildar (Inspection) and after hearing the appellant and his learned counsel in the Matter. Dissatisfied with the decision, the appel lant filed the Writ Petition No. 94‑R of 1960 against it, which was dismissed by a learned Single Judge of this Court on 19‑12‑1960, holding that the value of the "sailab" land abandoned by the appellant in India was correctly worked out at the rate of 22 Produce Index Units per acre in accordance with the instructions contained in para. 16(3), Part II of the West Pakistan Rehabilitation Settlement Scheme. This is the Letters Patent Appeal by Muhammad Ayub Khan against the judgment dated 19‑12‑1960, passed by the learned Single Judge of this Court dismissing his writ petition.

2. In the West Pakistan Rehabilitation Settlement Scheme (hereinafter referred to as the Scheme) an attempt is made to com pensate a displaced person, as far as possible, for the losses suffered by him in respect of the lands left by him in India, with the lands settled on him in West Pakistan of an equivalent produce value. For this purpose, in order to determine his entitlement the value, of the different kinds and qualities of land in the various assessment circles in all the districts and states of East Punjab, Delhi Province, State of Alwar, Bharatpur and Bekaner and the districts of the former Punjab (Pakistan), has been worked out in terms of produce index units and given in the form of the Produce Index Booklets published for the purposes.

3. In the instant case in copy of the fard haqiat issued to the appellant, he is shown to have abandoned the "sailab" land in Tehsil Fateh Abad, District Hissar, India. The relevant entries in the Produce Indices Booklet, page 51, for Hissar District, Tehsil Fateh Abad, Assessment Circle "Rangoi," applicable to this case, are reproduced below:‑ Assessment circle Soil. Produce Index Units Rangoi. Irrigated. 40 Unirrigated. 22 This shows that the lands in the relevant Assessment Circle are divided into the two broad classes and their value is fixed for the "irrigated" land at the rate of 40 and for the "unirrigated". land at the rate of 22 Produce Index Units per acre. But the corresponding value of the "sailab" land, as such, is not given in the relevant circle. The question, therefore, naturally arose as to how the value of the "sailab" land left by the appellant was to be assessed in terms of the Produce Index Units, under the law, in this case.

4. At first the Rehabilitation authorities had calculated the value of the "sailab" land, left by the appellant in India, at the rate of 40 Produce Index Units per acre. But this was after ward reduced to 22 per acre under the order dated 6‑10‑1959, passed by respondent No. 2, challenged in the writ petition. On 16‑12‑1965, this Court sent for a copy of the note of the Tehsildar (Inspection) dated 23‑8‑1959; on which respondent No. 2 had based his order. But from the reply received by this Court from the office of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, it appears that the relevant file pertaining to the case has been misplaced and could not be traced. Therefore, the detailed reasons, for the order passed by respondent No. 2, are not before us. However, according to the learned Single Judge in Chamber, the case of the appellant was covered be clause 3 and not clause 4 of para. 16 of the West Pakistan Rehabilitation Settlement Scheme and the entitlement of the appellant was correctly worked out by respondent No. 2 at the rate of 22 Produce Index Units per acre of the "sailab" land abandoned by him in India and consequently his writ petition was ordered to be dismissed.

5. The two relevant clauses (3) and (4) of para. 16 of the Scheme are reproduced below:‑‑ "(3) If on verification of a claim classification of soil in respect of irrigated and unirrigated land is‑ shown in the naqal ford haqiat but it is not given (against the Assessment Circle concerned) in the Produce Index Booklet, the produce index of highest class of each kind of land (irrigated or un irrigated) as the case may be, shall be taken for calculating the produce value of the abandoned land." "(4) If land has been shown in the fard haqiat to be of a particular type of soil whereas no mention is made of this type of soil in the assessment circle in which the land is situated in the prescribed territory of India and ‑consequently no provision has been made for this kind of soil in the produce index booklet, nor, in some cases, have separate indices been given to irrigated or un irrigated‑land as then case may be in that particular assessment circle, the Rehabilitation Authority in order to cope with such cases will adopt the highest produce index units of the same kind of soil in any of the adjoining assessment circles for the purpose of calculating the produce value of the abandoned land referred to above instead of returning the fard haqiat to the, Central Record Office for further scrutiny and instructions in the matter." In my opinion in interpreting these two clauses a distinction has to ‑be borne in mind between the class or kind of land and the classification or type of soil. The land has been divided into the two broad classes, "irrigated" and "unirrigated" but the classi fication of soil has reference to the innate quality of the soil, such as banjar qadim, banjar jadid, ghair mumkin, barani; sailab, etc., etc. I am also of the opinion that the two clauses, reproduced above from para. 16 of the Scheme, are designed to cover the lacuna if found, in the Produce Index Booklet in calculating the value of the land. Clause (4) appears to supplement clause (3) and the two must be read together. If on verification of a claim it is found that the classification of the soil for the land left in India is correctly given in the copy of the fard haqlat, but its produce value has not been specified in relevant entries in the Produce Index Booklet against the Assessment Circle concerned, as in the instant case, then the value of the land has got to be cal culated by reference to these two clauses of para. 16 of the Scheme, according as the case falls under the one or the other clause. Clause (3) will be applicable, in case in the Produce Index Booklet against the entries in the assessment circle concerned, the value for the two main classes of land "irrigated" and "unirrigated" has been specified in terms of the produce index units; then the produce value of the abandoned land shall be calculated at the rate prescribed for that class of the land, irrigated or unirrigated according as the case may be, within that assessment circle. In case, however, in the corresponding entries, in the Produce Index Booklet, for the particular assessment circle, no separate indices are given for the "irrigated" and "unirrigated" land, clause (3) shall cease to be applicable and the case will fall under clause (4) and then in order to cope with the situation the rehabilitation authority is to adopt the highest produce index units of the same kind of soil prescribed in any of the adjoining assessment circle in ascertaining the produce value of the land.

6. This interpretation is in harmony with the above two clauses under discussion and avoids any conflict between them. It is also in keeping the language used therein. Clause (3) says that if on verification of a claim, classification of soil, "in respect of (no into) "irrigated and unirrigated land" is shown in the ford haqiat but it is not given in the Produce Index Booklet against the assessment circle concerned, the produce index of the highest class of each kind of land, irrigated or unirrigated, as the case may be, shall be taken for calculating. the produce value of the abandoned land. If, however, neither there is any classification of soil nor "separate indices have been given to the irrigated or unirrigated land as the case may be in that particular assessment circle", the Rehabilitation Authority may adopt the highest produce index units of the same kind of soil in any of adjoining assessment circle for the purpose of calculating the produce value of the abandoned land, as laid down in clause (4).

7. Now coming to the facts of this case before us, this evidently falls under clause (3) of para. 16 of the Scheme. In the copy of the fard haqiat issued to the appellant the land abandoned by him in India is specified as "sailab". But, as we have seen, the produce index for this type of soil is not given in the corresponding entries in the Produce Index Booklet against "Rangoi" Assessment Circle concerned. According to the B relevant entries, in this assessment circle, the land is simply divided into the two main classes, "irrigated" and "unirrigated", with their value fixed at 40 and 22 produce index units per acre, respectively. The "sailab" land falls into the category of "un irrigated" land, as it has no apparent means of irrigation attached to it. Therefore in accordance with the provisions contained in Para. 16 (3), the produce value of the "sailab" land abandoned by the appellant was rightly calculated at the 22 index units per acre by respondent No. 2, in his order dated 6‑10‑1959 upheld in the writ petition. On a true interpretation of Para. 16 (4) of the Scheme it had no application to the facts of this case.

8. For the first time during the course of the arguments addressed to us, the learned counsel for the appellant has raised the objection that the respondent, Mr. Muhammad Yar Khand, Additional Rehabilitation Commissioner (Training and Inspection), West Pakistan, Lahore, was not at all competent to cancel the land after the promulgation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The appellant did not raise this objection, in this form, at any time before respondent No. 2, or the learned Single Judge, and in the grounds of appeal before us. He cannot, therefore, be permitted to raise this objection now at this late stage. Even, otherwise there does not appear C to be any force in this objection. Respondent No. 2 as the rehabilitation authority had merely determined the entitlement of the appellant under the Scheme.

9. It was next contended before us by the learned counsel for the appellant that the Additional Rehabilitation Commissioner was not competent to suo motu pass the impugned order dated 6th October 1959, on the basis of an office note put up by the Tehsildar (Inspection). This objection too was not raised by the appellant before respondent No. 2 at the time. Therefore, he could not be allowed to raise it for the first time in the writ petition. Nevertheless, the learned Single Judge rejected this objection on the ground that the impugned order was not passed by the Additional Rehabilitation Commissioner suo motu. Qazi Amir Muhammad had filed an application before the Assistant Rehabilitation Commissioner complaining against the appellant about his entitlement. After the enquiry on this application the papers were forwarded by the Assistant Rehabilitation Com missioner to the Additional Rehabilitation Commissioner who passed the impugned order dated 6th October 1959, after hearing the appellant and his counsel. Therefore, in the opinion of the learned Single Judge, this order had been passed by the respon dent in the exercise of its powers on the revisional side on the application filed by Qazi Amir Ahmad. We have no reason to come to a different conclusion on these facts.

10. For the reasons discussed above this appeal is bound to fail and is dismissed with costs. K.B.A. Appeal dismissed.