P L D 1994 Azad J & K 90 (PLP)

(3) Destitutes; and (4) Old Tenants. EXPLANATION: (a) .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (b) .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (c) .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (d) `destitutes' would mean the persons who being cultivator either own no land at all or have not more than five Kanals per family and who have no other adequate source of income but would not include occupancy tenants. (e).‑‑‑‑‑‑‑‑‑‑ (2) (i) The scale of allotment in the case of Shaheeds and disabled persons would be the same as that provided for refugees but the area meant for each family should not exceed 30 Kanals including the land owned by the family. (ii) In the case of destitute, the maximum area to be allotted should not exceed 30 Kanals per family including their own. (3) While dealing with the cases of non‑refugees of the categories mentioned in para. 1, the Assistant Rehabilitation Commissioners should satisfy themselves about the genuineness of the claim of such persons and shall forward such cases to the Rehabilitation Commissioner through the concerned Deputy Rehabilitation Commissioner for sanction. (4) Non‑refugees other than mentioned in para. 1, who are in possession of evacuee land should be objected even though the same has been allotted to them by some Rehabilitation Authorities. (5) Whereas any allottee whether a refugee or non‑refugee of the category mentioned in para. 1 does not cultivate the land in his possession for the two consecutive harvests he would render his allotment liable to cancellation and should be objected under Rehabilitation Rules."

6. The sum total of the above Government order is, that the possession of the evacuee property is regulated under it. Its purpose is that the fruits of the allotment of the evacuee property must reach to the refugees, notwithstanding the possession of the allotted land being in the hands of others. However, if any person out of the category of the persons mentioned in the Government order is in possession of the land which is not allotted to any refugee, and the same does not exceed the limit provided by the Government order, the possession of the person shall not be disturbed. The express purpose of the Government order is to ensure possession for the refugee allottee if the evacuee property is in unauthorized possession of any other person and, to dispossess unauthorized occupant of evacuee land other than the destitute and those listed in the Government Order. The implied purpose of the Government order is that the evacuee land to the extent of prescribed limit can be allotted in favour of those persons as well, in view of paragraph 2 of the above referred Government Order. This implied purpose was given the legal touch vide AJ&K Rehabilitation (Amendment) Act, 1974 (hereinafter to be called as Amending Act), wherein section 6‑A is added in the Azad Jammu and Kashmir Rehabilitation Act, 1956 as applicable in Azad Kashmir. The amended section is as follows:‑‑‑ "Insertion of new section 6‑A.‑‑The Azad Jammu and Kashmir Rehabilitation Act, 1956: After section 6 of the Azad Jammu and Kashmir Rehabilitation Act, 1956, the following new section 6‑A shall be inserted, namely:‑‑ `6‑A. A Rehabilitation Authority may allot evacuee land to the persons other than refugees in the manner hereinafter provided:‑‑ (1) A person mentioned in clauses (b) or (c) and (d) of this Act shall be entitled to the allotment of 64 Kanals of evacuee land inclusive of holding.

4. All existing act, laws and rules relating to the evacuee property contravening this Act, shall hereby stand repealed."

7. Under the above‑referred section, the category of the persons listed in the Government Order 25/60 are for the first time expressly made entitled to the allotment of the evacuee land. The purpose visualized by the Government Order, though not mentioned in the Amending Act, but for giving a wider sense to the legislation may be read in the lines of law, as, while interpreting a statute such meanings are to be attributed and read out of it that extend the benefits and do not curtail the rights. The purpose of the legislation shall be defeated if it is given the restricted meaning or if sense conveyed by the Government Order is not kept in mind while interpreting the Amending Act.

8. It is admitted at bar that the petitioner as well as respondent No. 2 were not in possession of the land on the date when the allotment was made in favour of the petitioner. It is also admitted that respondent No. 2 on whose application the Custodian has cancelled the allotment of the petitioner is neither refugee nor does he claim the possession, allotment or his entitlement to the allotment in any capacity. The status of the petitioner as an allottee of the land is disputed and so held by the Custodian on the ground, that he is not a local destitute for the reasons, that he resides in village Serowa where he possesses only occupancy rights, and that he was not in possession of the land on the date of allotment. The respondent was not alleged nor is so held by the Custodian, that petitioner possesses any quantum of land exceeding 64 Kanals as provided by amending section 6‑A, so as to disentitle him from claiming the allotment as a local destitute.

9. The allotment of the petitioner is cancelled only on the grounds mentioned above. The land was unallotted and was not in possession of anybody. Neither the respondent nor is any other person having a better and more forceful claim for allotment; with this background, coupled with the fact, that the entitlement of the petitioner to the allotment is deemed invalid for the reason of his being out of possession and resident of village Serowa not Tareear where the disputed land is situated, it will be defeating the provisions of law and scheme of Rehabilitation laws to hold that the land in dispute was illegally allotted in his name. Residence in the village where the evacuee property is situated is not the condition, but, being a destitute State subject determines the entitlement for allotment. Similarly question of having occupancy rights only in a piece of land and not having any scale of holding in ownership, strengthens the claim of being destitute, unless other means of the claimant are such that he cannot be deemed as destitute. As for the possession is concerned, though it is alleged by the petitioner that he is in possession of the land in dispute, but from the record it is made out that he was not in possession on the date of allotment of the land. However, that factor cannot make the allotment in his name invalid, moreso, in the absence of a person having better claim to the allotment. Under the scheme of law as envisaged by Amending Act read with section 6 of Rehabilitation Act, 1956, the allotment in the name of .the petitioner cannot be held illegal for the sole reason that he was not in possession of the evacuee land. The embargo read out from the Government Order 25/60 and Amending Act, can apply where a destitute not in possession. of evacuee land seeks allotment of the land in possession of a person who is equally entitled to, qualified for and claiming the allotment of that land. In the absence of any such claim, the provisions of section 6 oft' Rehabilitation Act, 1956, and section 6‑A of Amending Act shall be read to mean that the categories of the persons mentioned in the Government Order 25/60 or the Amending Acts, have the similar right of allotment as a refugee has against a person, who has no such right or an inferior right. The scheme of law i.e. Rehabilitation of destitutes shall be defeated if vacant, unallotted and unclaimed evacuee land is not allotted to a destitute for the reason that he is not in possession thereof. The prior right of allotment of evacuee lands, no doubt, and of course, remains that of refugees. But once a person is found destitute and allotted the land under the above‑stated circumstances, he is entitled to possession, as a refugee is, under the Rehabilitation laws.

10. The learned counsel for the respondents has relied upon PLD 1982 SC (AJ&K) 107 and it is on the same authority that the Custodian is pleased to cancel the allotment of the petitioner. The facts and the circumstances on the basis of which the above referred judgment is delivered by Supreme Court were totally different from the case in hand. The relator in that case was a destitute and was in possession of the evacuee land and preferred a better claim for allotment against the person in whose favour the land was allotted on the ground of his being local destitute. The contender in that case, qualified the requirements of the rule and as stated earlier, was entitled to the protection of the possession and at the same time entitled for being considered for allotment. But in the case in hand, the respondent is a pro bono publico having no grievance of his own to redress, thus not being an aggrieved person, on whose application the Custodian could cancel the allotment made in favour of the petitioner.

11. The argument of the learned counsel for the respondent that Rehabilitation Commissioner had ordered the allotment of a particular number Khasra while a different number Khasra is allotted in favour of the petitioner, I have perused the record of the Rehabilitation Authorities on the basis of which .the allotment file of the petitioner is processed, the Rehabilitation Commissioner seems to have erred while issuing the sanction for allotment, as the same runs counter to the claim of the petitioner and recommendations made by the subordinate Rehabilitation Authorities. It, on the face of it, seem to be a clerical error. Moreover. the allotment order, which was placed for examination before me, is in consonance with the claim of the petitioner and in accordance with the recommendations of the subordinate Rehabilitation Agencies.

12. As for the argument that the petitioner was allotted only two number Khasras, while grouping one more number Khasra, the renumbered Khasra which include third number as well, is transferred m the name of the petitioner through Proprietary Rights Transfer Order, the argument is borne out from the record, as the renumbered Khasra 637 comprises 3 numbers, while allotment of the petitioner was for two numbers only. The learned counsel for the petitioner made an explanation that the total area of renumbered Khasra 637 is made out as 20 Kanals and 2 Marlas, while proprietary rights transfer order issued in favour of the petitioner is to the extent of 18 Kanals and 8 Marlas only out of the renumbered Khasra 637 which is marked as `MIN'. The argument of the learned counsel for the petitioner is that the area of land comprising No.863/779 is deleted while granting the Proprietary Rights Transfer Order. The explanation is borne out from the record as the Proprietary Rights Transfer Order is issued to the extent of 18 Kanals and 8 Marlas, while the grouped renumbered Khasra is measured as 20 Kanals and 2 Marlas. However, Rehabilitation or Settlement Authorities are at liberty to earmark the area falling in number Khasra 863/779 and same may be got deleted from the renumbered Khasra.

13. The result is that the writ petition is accepted, order of the Custodian dated 2‑3‑1992 is declared without lawful authority and is set aside. The parties shall bear their own costs. AA./45/H.CA. Petition accepted.