P L D 1966 (W (PLP)

According to the interpretation of the learned counsel for the appellant this section conferred retrospectivity on the investment of absolute rights of displaced persons in lands on which they were permanently settled under the Displaced Persons (Land Settlement) Act, 1958 which came into force on 23rd September 1958, in site of the fact that all such lands had vested in the Government prior to the promulgation of the amending Ordinance. On the point of pre‑emptibility it was argued that even prior to the amendment of the Displaced Persons (Land Settlement) Act, the sale of evacuee lands though vested in the Government were pre‑emptible, and although there were conflicting authorities on the point, the correct view was the one taken by Kaikaus, J. in Nur Ahmad v. Muhammad Ibrahim (P L D 1954 Lah. 240). The argument advanced was that in the Punjab Pre‑emption Act of 1913 the expression "agricultural land" occurring in its section 3(I) was synonymously used with the expression "land", as it occurred in Punjab Alienation of Lands Act of 1909 amended by Act VII of 1936. In other words, the definition of the word "land" as given in section 2(3) of the latter Act was adopted, Part (b) of which included "a share in the profits of an estate or holding and a right to receive rent." As against the above contentions, the learned counsel for the respondents argued that section 3 of the amending Ordinance 13 of 1964, gave validity with retrospective effect only to actions taken by the Settlement Authorities and did not refer to the conferment of absolute rights on the permanent settlers to the lands on which they are settled. In support of this argument, attention was drawn to the use of the words and expressions "shall be deemed always to have been so substituted" in sections 3 and 5 of the amending Ordinance, seeking to amend sections 7 and 14‑A respectively of the earlier Act of 1958. It was contended that since no such expression was used in section 7 which substituted the new section 16, the omission was deliberate and was intended to make the provisions prospective and not retrospective in effect. It was further argued that the change in law did not make any difference in so far as non‑pre‑emptibility of sales of evacuee lands was concerned, as the powers to cancel the allotments under section 10 of the original Act of 1958, were kept in tact and had not been touched, with the result that the Chief Settlement Commissioner was even now competent to cancel the confirmed allotment of a person, permanently settled on land in cases of fraud, excess of entitlement etc. This clearly indicated that in spite of the grant of absolute rights under the substituted section 16, pre‑emptibility was excluded and the land still retained its evacuee character as was held by their Lordships of the Supreme Court in Abdur Rashid v. Pakistan (P L D 1962 S C 42) Reliance was also placed on Ramzan v. Rehabilitation Commissioner (P L D 1963 Lah. 461) wherein, it was held that in spite of their acquisition by the Government for permanent settlement of the displaced persons, the sales of such lands were not pre‑emptible. It was lastly argued that under section 3 (5a) of the Punjab Pre‑emption Act sale in execution of a decree for money or of an order of civil, criminal or a revenue Court, or of a revenue officer, was not pre‑emptible, and since in this case, a decree had been passed in respect of the sale by a civil Court, the transaction was excluded from the scope of pre‑emptibility. I now proceed to consider these points, one by one.

6. For the determination of the first point, it may be borne in mind that the trial Court decided the case in the first instance on 13th June 1964, whereas the amending Ordinance 13 of 1964 came into force on 24th of December 1964. The learned counsel for the appellant tried to place reliance on section 3 of the Ordinance which has been reproduced in the earlier part of the judgment and deals with the validation of actions taken and orders passed under the Acts sought to be amended and purports to give retrospectivity to all such actions and orders etc. Although, in the instant case we are concerned with the amendments to the Displaced Persons (Land Settlement) Act of 1958, the amending Ordinance besides this, also seeks amendments of the Registration of Claims (Displaced Persons) Act and the Displaced Persons (Compensation and Rehabilitation) Act. Closely studied the amendments are of two kinds, those which merely seek to insert or substitute a new subsection or a clause or a sub-clause without giving any indication of retrospectivity, and those which by the use of expression "shall be deemed always to have been so substituted or inserted", make it abundantly clear that the amendment is sought to operate with retrospective effect. In the registration of Claims Displaced Persons Act, all the omissions or substitutions containing the additional expressions are purported to qualify the amendments for retrospective effect. On the other hand, the other two Acts i.e. the Compensation and Rehabilitation Act and the Land Settlement Act contain both kinds of amendments sought to operate prospectively as well as retrospecti vely. In the amendments to the Displaced Persons (Land Settlement) Act, as stated earlier, sections 1, 2, 4, 6, 7, 8, 9 and 10 deal with simple omissions or substitutions which are obviously prospective in their operation. On the contrary, sections 3 and 5 clearly indicate the retrospective nature of the amendments. Thus, if section 3 of the amending Ordinance XIII of 1964 were in the nature of an all‑embracing and omnibus provision, conferring retrospectivity on all amended provisions, the use of expression "shall be deemed always to have been so substituted" in respect of some amendments would become simply, redundant. Even otherwise, it is absurd to conceive retrospectivity of some altogether new provisions with patent futurity of operation. Furthermore, the language of the section itself clearly shows that it deals with the validation of any thing done, action taken, order passed etc., under the un-amended Acts by competent authorities, and does not confer retrospectivity on the operation of section 7 of the Displaced Persons (Land Settlement) Act, 1958, as amended substituting a new section 16 whereby the land on which a displaced person is permanently settled is made to vest absolutely in him. The result is that even if lands on which the displaced persons are settled under the Act are held to be susceptible to pre‑emption. On the basis of this amendment, it can be of no avail to the appellant whose case was decided before the Displaced Persons (Laws Amendments) Ordinance came into force. The argument, therefore, stands repelled.

7. Before coming to the main question of the pre‑emptibility or otherwise, of sales of properties .originally evacuee in nature, but vesting absolutely in Displaced Persons permanently settled under section 7 of the amending Ordinance XIII of 1964, I would like to dispose of the other point raised by the learned counsel for the defendant‑respondent that the transaction was not of sale being in execution of a decree of a civil Court within the meaning of section 3 (5) (a) of the Punjab Pre‑emption Act, 1913. The argument is patently devoid of force as the decree did not precede but follow the transaction of an oral sale, when a declaratory suit affirming the transaction was decreed. Obviously, therefore, the case is not hit by the aforesaid definition of "sale" which does not include a sale in execution of a decree of a Court. 8, Coming now to the main question one has to keep in mind the relevant rehabilitation laws enacted from time to time, along with amendments and the sequence thereof. In the first instance lands were provisionally allotted to refugees with a view to rehabilitate them, though they were allowed to file claims for verification of the properties abandoned by them in territories now forming part of India. Arrangements were made for the verification of these claims of refugees by mutual agreement between the two dominions and a Rehabilitation Re‑settlement Scheme was sanctioned under section? (PLD 1962 S C 42) of Pakistan Rehabilita tion Ordinance, 1948. On the basis of experience, the scheme was both modified and amplified from time to time. Refugees were classified into various categories in order of preference regarding their eligibility to allotments. Schemes were prepared and the final scheme in this regard was framed under section 6 of the Pakistan Rehabilitation Act, 1956, in which the mode of inheritance was also prescribed vide paragraph 46 and 46 (a). The displaced Persons (Land Settlement) Act 1958 came into force on the 23rd September 1958, and provided "for the permanent settlement of displaced persons on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in properties in India or in any area occupied by India, and for matters incidental thereto or connected there with." The refugees settled on lands had no vested rights and the allotments made in their favour were simply in the nature of grants. On confirma tion the allotments gave rise to certain rights and interests in the lands to the allottees, and the same could be transferred by sale, exchange, gift will, mortgage or other private contract in accord ance with clause 14 of Chapter 2 part I of the Scheme. Under clauses IS and 16, these allotments were to be maintained in proper condition of cultivation and could be resumed on breach of conditions of allotment. Nature of the allottee's rights in the lands so allotted was examined by their Lordships of the Supreme Court in Syed Abdul Rashid v. Pakistan etc. (1). It was observed as follows "These conditions of allotment are in the nature of restrictive covenants running with the land but subject to these covenants and the right of resumption or re‑entry reserved under the Scheme the allottee becomes clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus he may, subject to those conditions or covenants, deal with the same as and other such tenant would have been entitled and may even dispose of them or alienate them either by an instrument inter vives or by will. I: is difficult in the circumstances, to imagine how it can be said that the interest acquired by the allottee in the property is merely a personal interest which cannot be inherited. Having regard to the rights expressly conferred upon him by the Scheme itself an allottee, in whose favour an allotment has been confirmed, acquires a right which is in every sense of the term a "real property" in its true juristic concept‑an interest in land." Section 4 of the Displaced Persons (Land Settlement) Act, 1958, which is more relevant for the purposes of the instant case, empowers the Central Government to acquire lands for the purposes of this Act. Section 5 provides for the constitution of compensation pools. Section 10 authorises the Chief Settlement Commissioner to cancel allotments if obtained by fraud or false representation. Section 14 provides for the allotment of lands to displaced persons against their verified claims, section 15 provided for the permanent settlement of Displaced Persons on lands. Lastly, section 16 confered on the displaced persons so settled the right to transfer and alienate the land on which he is settled. It was as follows: "Every person who is permanently settled on any land under this Act, shall, subject to the general laws applicable to the area in which the land is situate be entitled to hold and enjoy the rights and title conferred on him and the transferee could alienate the same." As stated earlier, this section 16 was substituted by a new section 16 vide section 7 of the Displaced Persons (Land Settle ment) Act 1958, as amended by the Displaced Persons (Laws Amendments) Ordinance, 1964. It would be advantageous to reproduce it for comparison "Section

16. Title of displaced person on lands.‑Notwith standing anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person. It is thus clear that allotment which was in the nature of grant to start with was gradually allowed to mature into absolute ownership, subject of course, to the restriction that the Chief Settlement Commissioner could cancel it if he was satisfied that it was obtained by fraud or misrepresentation and could also reduce it if found in excess of entitlement.

9. While deciding a regular second appeal arising out of a suit for pre‑emption in Nur Ahmad and others v. Muhammad Ibrahim (P L D 1954 Lah. 240), and discussing the scope of section 12 of the Pakistan Administration of Evacuee Property Ordinance 1949, Kaikaus, J. who delivered the Division Bench judgment in this case mach the following observation giving rise to the impression that sales of evacuee properties were susceptible to pre emption. "It is difficult to imagine that the intention was not only to exempt evacuee property from legal process but even to prevent Courts from passing any kind of orders with respect to it. Let us take the case of a suit of pre‑emption where an evacuee had purchased certain property of which he is now the owner and another person wants to pre‑empt the sale. Can the Court not pass a decree for pre‑emption at all." A different view was, however, taken by a D. B. of this Court consisting of my learned brothers Muhammad Yaqub Ali and S. A. Mahmud, JJ. who dismissed a Regular Second Appeal No. 94 of 1960 in an unreported brief order which reads as follows "Learned counsel relies on some observation in P L D 1954 Lah. 240 but with utmost respect we find ourselves unable to adopt the view that sale of right of allotment in evacuee agricultural land is pre‑emptible. Firstly allotment is no more than a licence and transfer of such a right though with the consent of the owner is per se not pre‑emptible. Secondly section 12 of the Act XII of 1957 is a complete bar to passing of any order in respect of evacuee property not to speak of transferring the right of allotment from one person to another under the decree of a civil Court. The appeal is, therefore, liable to be dismissed on the grounds (1) that the transfer in question is not pre‑emptible and (2) that the land involved in the suit is evacuee. Dismissed." This view was re‑armed and relied upon by Anwarul Haq, J. in deciding R. S. A. 25 of 1962. In paragraph 3, it was observed by his Lordship as follows "3.‑Now, it appears to me that although the intention of the Displaced Persons (Land Settlement) Act of 1958 is to settle displaced persons permanently on the land allotted to them, this permanent settlement falls short of acquiring a proprietary title, such as would be susceptible to pre‑emption. Section 15 of the Act in question contemplates that the permanent settle ment on the land shall be subject to such terms and conditions as may be prescribed by the Central Government. Section 16 of the Act permits the person permanently settled on the land to hold and enjoy the rights conferred on him and to transfer or alienate the same. Under clauses (v) and (vi) of rule 7 of the Rules framed under the Act, the permanent allotment of land remains subject to cancellation on grounds of fraud, misrepresentation or as being in excess of the entitlement of the displaced person concerned and in the event of such cancellation the displaced person is liable to pay the entire profits received or accrued in respect of the land so withdrawn, and further any transfers by sale, exchange, gift, will or mortgage, etc. effected by him shall be deemed to be void in such an eventuality. The combined effect of these legal provisions appears to me to be that the displaced person who is permanently settled on evacuee land under the provisions of the Displaced Persons (Land Settlement) Act of 1958 only enjoys certain rights and interests in the land, and any transfer by him of these rights and interests does not amount to a transfer of the land itself, which continues to be held by the Central Government as owner." This order was passed on 12th of March 1962 under the un-amended section 16 of the Displaced Persons (Land Settlement). Act, which has now been substituted by the aforesaid new section, conferring rights of absolute ownership on the Displaced Persons permanently settled on lands. The whole complexion has, therefore, completely changed and the restrictions and impediments referred to by my learned brother in has judgment have all vanished. The only question that remains to be considered now is the effect of retention of powers by the Chief Settlement Commissioner of the cancellation of the land under section 10 of the‑Act. The reservation in section 10 of the Displaced Persons (Land Settlement) Act, 1958, at best has the effect of "conveat emptor" as even otherwise any transaction based on fraud or misrepresentation is liable to be set aside under the ordinary law. This in my opinion cannot stand in the way of, or operate as a bar to pre‑emptibility which otherwise seems to be deducible as an essential incident of sale, particularly when all other barriers have completely evaporated. By the change in law introduced by the Amending Ordinance XIII of 1964, the land which is permanently settled under the Displaced Persons (Land Settlement) Act 1958 vests absolutely in the transferees, and the displaced person on whom it is settled becomes an absolute owner of the same. If a sale is made of any such property, it cannot be said that it was of a property of which he was not the owner. Under section 4 of the Pre‑emption Act, the right of pre‑emption arises in respect of an agricultural land only in case of sales, and under section 6 of the Act it exists "in respect of agricultural land and village immovable property, but every such right is subject to all the provisions and limitations in this Act contained. It is not provided in the Pre‑emption Act that the sale of such land is not pre‑emptible. The Provincial Government has also not excluded it under section 8 from the incident of pre‑emption. The bar imposed on the Courts to pass any order in respect of evacuee property also ceased to operate after the property stood absolutely vested in the persons who are permanently settled on it. In this view of the matter a sale of the land made after the 24th of December 1964, the date of the enforcement of the Amending Ordinance XIII of 1964, is pre‑emptible under the Punjab Pre‑emption Act.

10. For reasons stated earlier, since the sale in question in e the instant case took place before the change in the law, it will remain unpre‑emptible and the legal position as enunciated by me is no longer applicable to this transaction. The result is that the appeal is dismissed. The parties are, however, left to bear their own costs. S. Q. Appeal dismissed.