P L D 1969 Lahore 622 (PLP)

NASIM HASAN SHAH, J.‑The petitioners are local Muslims, 'an whose favour non‑Muslim owners had before the Independence mortgaged their lands, by way of usufructuary mortgages. The said mortgages had not redeemed when the said non‑Muslim owners became evacuees in consequence of the partition of the country with the result that the petitioners are still in possession of the lands mortgaged to them. The respondents are displaced persons from India who have since been allotted the said lands. The common question arising in these cases is whether the Settlement Authorities possess the power to put the allottees in possession of the areas allotted to them by dispossessing the local Muslim mortgagees from the lands in their possession before payment of the mortgage‑money due to them.

2. A brief recapitulation of the background to this question may usefully be made. Under section 7 of Ordinance XIX or 1948, the Central Government authorised the Rehabilitation. Commissioner (Lands) Punjab, to frame a scheme pooling all. evacuee land, for alloting the same to persons resident in Pakistan whether refugees or not. Under this scheme lands mortgaged with possession by evacuees with Muslim mortgagees were, however, excluded from its operation "for the present." (clause (g), Para. 4, Part I vide Memo. No. 5688‑R (L) dated 27th July 1953). This position was continued in operation even in the Scheme framed after the establishment of the Province of West Pakistan: by the Rehabilitation Commissioner, West Pakistan, under section 6 (1) of the Pakistan Rehabilitation Act, 1956. The relevant provision was set forth in Para. 4‑A of Part I thereof which laid down: "4‑A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain, excluded from the Scheme. (i) . . . . . . . . . . (ii) land mortgaged with possession by evacuees in favour of Muslim mortgagees." On 23rd September 1958, the Displaced Persons (Land: Settlement) Act, 1958 (hereinafter referred to as the `Act') was, promulgated. This enabled acquisition of all evacuee lands by the Central Government in order to permanently settle displaced persons on land. As already noted lands mortgaged with possession in favour of Pakistani Muslim mortgagees (hereinafter described as local mortgagees) by the evacuees were still excluded from allotment. However, by correction slip No. 8‑Rss, dated 5th March 1959, issued by the Chief Settlement Commissioner, the provision bearing on this exemption was substituted and it was decided that land mortgaged with possession by evacuees in. favour of Muslim mortgagees could now be allotted to a claimant in the case the said claimant was prepared to secure the allotment (of such land) in its encumbered state, without demanding any additional compensation on account of such am encumbrance. On 15th April 1959, a Notification (No. 1376‑RR/4R‑59) was issued under section 4 (2) of Act acquiring for the purposes of' the Act all agricultural land as defined in clause (3) of section 2 thereof, situated in West Pakistan (except the Federal Capital), and already allotted under the Rehabilitation Scheme. A question, arose about the disposal of land mortgaged with possession bye evacuees in favour of Muslim mortgagees in Pakistan. This question was considered in a Chief Settlement and Rehabilitation Commissioner's Memo. No. 2516‑59/2129‑R(P) dated: 21st May 1959, as follows: "Under the provisions of clause 4‑A (ii) of Chapter II. Part I, of the West Pakistan Rehabilitation Settlement Scheme; land mortgaged with possession by evacuees in favour of Muslim mortgagees is at present ordinarily excluded from allotment to entitled claimants. A question has arisen how such lands should be disposed of under the Displaced Persons (Land Settlement) Act of 1958. (2) Under section 17 ibid no person who is permanently settled on any land shall be liable to pay any debt or dues outstanding against the evacuee owner of the land. An encumbrance in the form of mortgage being a debt the necessary relief to the mortgagees is provided under section 4 (4) ibid which lays down that the Central Govern ment shall prescribe the cases or class of cases in which and the period within which any charge created by the Custodian on any land acquired under subsection (1) of section 2 there of or any decree granted by a Civil or Revenue Court against such land, shall be satisfied. The permissible course to the mortgagees, therefore, was to approach the Custodian to get charge created even though the possession of the evacuee property was with them. But there may still be some creditors of this class who may have failed to avail themselves of this provision. (3) It has, therefore, been decided, with the approval of the Central Government, that such persons should be permitted to get the charge created within a period of three months which would be paid out of the compensatin pool." By a further Notification No. R‑5/1‑60(1462) under section 4 (2) of the Act on 8th June 1960, all the remaining lands (as defined subsection (3) of section 2 of the Act) situated within the Province of West Pakistan (except the Federal Capital and the Special Areas) was also acquired, with immediate effect. On the publication of this Notification, it was inferred that not only the right, title or interest of the evacuees in the land specified in the Notification stood extinguished but so also the mortgagees standing on such land. This assumption was based on the words in subsection (3) of section 4 of the Act to the effect that "the land would vest wholly and absolutely in the Central Government free from all encumbrances", including mortgages. It also appears to have been further assumed that lands subject to a mortgage, having been acquired free from all encumbrances could henceforth be allotted unencumbered. Accordingly, a fresh, correction slip was issued on 17th February 1961, on the subject of the disposal of this category of land whereby clause (ii) in Para. 4‑A of Scheme as substituted on 5th March 1959, was deleted altogether; and by Memorandum No. 8260/59/3/39‑R(P) issued on the same day by the Chief Settlement and Rehabilita tion Commissioner, it was declared, inter alia, that "the evacuee agricultural land mortgaged with non‑evacuee should be allotted to displaced persons, free from all encumbrances in lieu of their verified claims". As a consequence of the issuance of this Memorandum and the deletion of clause (ii) in Para. 4‑A of the Scheme the allottees commenced steps to eject the local mortgagees from lands in their possession. To safeguard their rights some of them moved the High Court for a declaration to the effect that despite the Notification of Acquisition the rights of mortgagees in possession remained unaffected and that, in fact, the allotment by the Rehabilitation Authorities of such lands was incompetent. This plea was rejected by this Court and the view was expressed that the effect of the Notification of Acquisition' was that all mortgages stood extinguished and the property vested in the Central Government free from all encumbrances. On appeal to the Supreme Court, this view was reversed vide Muhammad Khan etc. v. Chief Settlement and Rehabilitation Commissioner (P L D 1962 S C 284). So deeply have the findings of the Supreme Court influenced the subsequent proceedings that it is appropriate to state them at some length. The first question considered by their Lordships in Muhammad Khan's case was as to the legal effect of the Notification issued under section 4 of the Act. In this connection it was observed that under the Notification of Acquisition "land" had been acquired as under stood in the sense of the definition of the term contained in clause (3) of section 2 of the Act. Under that clause "land" means evacuee property and that as the Pakistani mortgagees' right with possession in the property is not "evacuee property" the right, title and interest of the mortgagees cannot be acquired by a Notification issued under section 4 of the Act, unless the mortgage is redeemed either by Government or by the allottees. The other contention raised before their Lordships that it was incumbent upon local mortgagees, to obtain a declaration from the Custodian under section 22 of the Administration of Evacuee Pro perty Act, 1957, in respect of their rights, which declaration would be equivalent to the creation of a charge by the Custodian, within the meaning of subsection (4) of section 4 of the Act was also repelled. It was held that a declaration granted by the Custodian under section 22 of Act XII of 1957 would only recognise an existing charge but could not create a new charge. With regard to the argument that such a declaration would be equivalent to the creation of a charge by the Custodian, within the meaning of subsection (4) of section 4, the Supreme Court observed that he Satisfaction of Charges (Land Settlement) Rules, 1962, made provision for compensation for the benefit of "charge‑holders" only. A "charge", in these rules, it was explained, is by defini tion limited to such categories as are mentioned in subsection (4) of section 4 of the Act and that under this provision the mortgagees are not included as persons entitled to compensation. In the end result the Settlement Authorities were restrained from dispossessing the appellants until the mortgage in their favour was redeemed by due process of law. The main findings of the Supreme Court can therefore be summarised thus: (a) The interests of Pakistani mortgagee, being non‑evacuee, could not be acquired until the mortgage in their favour is redeemed by due process of law. The necessary corollary of this finding being that the assumption that an allot ment of land mortgaged to a local Muslim can be made free from all encumbrances is untenable. (b) There is distinction between creation of a charge and declaration of an existing charge or mortgage and the declaration of the Custodian as to the existence of a mortgage is not equivalent to the creation of a charge by him, and (c) That in the categories of charges mentioned in sub section (4) of section 4 of the Act, the rights of mortgagees in possession are not included.

3. To overcome the situation arising by the exposition of the law made by the Supreme Court on this matter an Ordinance called the Displaced Persons (Land Settlement) (Second Amend ment) Ordinance, 1962 (LXIV of 1962), was promulgated. This Ordinance inserted into the Act of 1958 a new section as section 14‑A. The effect of this Ordinance came up for inter pretation before Full Bench of this Court in Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner (P L D 1963 Lah. 590) which was constituted to resolve the conflict of opinion existing between different Benches as to its true scope, namely, whether or not its terms empowered the dispossession of the local mortgagees before the payment of the mortgage money. Their Lordships, after noticing the contentions of both sides, reached the conclusion that the new provision of section 14‑A was drafted in a hurry and in support of this view cited various instances of confusion in the said provision. The conclusion was expressed that it being difficult to discover the intention of the law‑maker on the question of the dispossession of the mortgagees from the provisions of section 14‑A, in the absence of any express mention being made on that point, the effect of Ordinance XLIV of 1962, should be held confined to the extent that it validated the allotments of lands subject to a mortgage but did not authorise the dispossession of mortgagees in possession until the mortgage money is paid to them.

4. Shortly after the delivery of the judgment aforementioned a further amendment was introduced in the Displaced Persons (Land Settlement) Act, 1958, by the Displaced Persons (Laws Amendment) Ordinance, 1964 (Ordinance XIII of 1964). By this amendment provisos (a) and (b) to subsection (1) of section 14‑A were omitted and substituted by a new proviso. However, notwithstanding this further amendment, the conflict of opinion on this question continued to subsist. In Muhammad Ilyas v. Chief Settlement and Rehabilitation Commis sioner Writ Petition No. 575/R‑1961 decided after the introduc tion of substituted proviso to section 14‑A (1) by Ordinance XIII of 1964 it was observed by a learned Judge: "A further question as to whether these charge‑holders can retain possession of land till such time the charge is satis fied has also been debated before me. Much can be said for the contentions of either side but as I feel bound by . . . Full Bench decision Muhammad Yusuf's case, I hold that the allotment made in favour of the various allottees of lands under mortgage are valid and the mortgagees in possession can be dispossessed only after the satisfaction of the charge . . . . ." While in Ramzan v. Chief Settlement and Rehabilitation Commis sioner Writ Petition No. 1209/R of 1965 (P L D 1968 Lah. 258) another learned Judge held: "The Legislature must be presumed to be fully aware of the law enunciated by the Full Bench and therefore amended the law to remove the anomaly and to convert the mortgagee rights in all relevant cases to those of mere charge‑holders which as explained above do not include right of possession, or else the amendment of the provision will be entirely in vain which could not possibly have been the legislative intent." However, some other learned Judges even while following the view in the case of Ramzan, just mentioned, expressed doubts as to its correctness with the result that against such decisions Letters Patent Appeals were admitted to regular hearing in order to consider the matter still further. On the other hand, another Letter's Patent Bench affirmed the view taken by the learned Single Judge in above‑cited case of Ramzan, holding: "that after the amendment made in section 14‑A of the Act which omitted proviso (b), the position that emerges out is that the right of mortgagees to remain in possession of the lands mortgaged with them can no longer be claimed and it is open to the Settlement Authorities to evict them from the lands in their possession and to hand them over to the persons whom the lands have validly been transferred under the relevant provisions of law. (Muhammad Ali v. Chief Settle ment and Rehabilitation Commissioner P L D 1968 Lah. :(339." This Full Bench has been constituted to resolve the conflict of opinion that still persists. All the learned counsels, who wished to be heard for one side or for the other in all the 113 cases placed before us, have been heard in support of their respective points of view.

5. The learned counsel for the petitioners have contended before us that the charge‑holder of the land subject to the mortgage is entitled to retain its possession, if he be in possession thereof, until the charge is satisfied ; and that the principle enunciated in the decision of the Full Bench in Muhammad Yousaf's case namely, that the usufructuary mortgages are entitled to remain in possession until the mortgage money is paid, continues to govern the situation despite the amendment made in section 14‑A of the Act by Ordinance XIII 1964. It has also been argued by one learned counsel that if section 14‑A purports to extinguish without payment of mortgage‑money, the mortgagee rights of local mortgagees in the lands owned by evacuees the said provision is discriminatory because no such provision exists in regard to mortgagees with possession of lands owned by local Muslims. The respondents, on the other hand, have contended that the intention underlying the insertion of section 14‑A in the Act was to extinguish the possessory rights of the usufructuary mortgagees and that this intention has been manifested beyond doubt by the further amendment introduced in section 14‑A by Ordinance XIII of 1964. It is further submitted that the intend ment of the legislation is clearly to enable the allottees to be put into possession of lands allotted to them, over which lands they are now to be permanently settled under the Act of 1958. The acceptance of the petitioners' contentions, it is argued, would frustrate the legislative intent. It is also denied that the provision in question is discriminatory or in contravention of any fundamental rights.

6. In the light of the background of events cited above there is little doubt, that section 14‑A was inserted into the Act of 1958, by Ordinance XLIV of 1962 with the object of bringing the law into conformity with how its provisions were being understood, in the relevant regard, by the Departmental Autho rities and as evidenced by the interpretative memoranda issued by the Chief Settlement Commissioner mentioned already. The Supreme Court not having accepted the interpretation placed on the relevant provisions by the said authorities (in the case of Muhammad Khan, the new section 14‑A was inserted into the Act which was to take effect "notwithstanding any judgment of any Court" obviously in an attempt to overcome the deficiencies pointed out in law. The terms of subsection (1) of section 14‑A provided: "Section 14‑A. Allotment of certain lands under mortgage etc ‑(1) Notwithstanding anything contained in any law for the time being in force in any judgment of any Court, where a person has been allotted under any Scheme prepared under section 14, any land which was at any time before the commencement of this Act, subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid: Provided that‑ (a) the mortgage money due to the mortgagee, shall be a charge on such land; and (b) where the period of mortgage has expired the mortgage money shall be paid to the mortgagee within a period of eighteen months from the commencement of the Displaced Persons (Land Settlement) (Second Amendment) Ordinance, 1962." By the above provision all doubt regarding the validity of allotments made of lands mortgaged with possession were removed as it was expressly stated in subsection (1) "where a person has been allotted any land which was subject to a mortgage created .by an evacuee the allotment shall be deemed valid". The question, however, now is whether the provisions made in the new section 14‑A have authorised dispossession of the mortgagees in possession without prior payment of the mortgage‑money ? The decision by the Full Bench in Muhammad Yousaf's case was that it does not. On 28th December 1964, the above provision was further amended by the Displaced Persons (Laws Amendment) Ordinance, 1964 (Ordinance XIII of 1964), which inter alia omitted provisos (a) and (b) to the subsection quoted above and substituted them by a new proviso which reads thus: "Provided that the mortgage‑money due to the mortgagee shall be a charge on such land."

7. Mr. Rafiq Ahmad Bangash, has argued that although by the terms of the law the mortgage money due to the mortgagee shall constitute now only a charge on the land, this will not alter the position in the material aspect because a charge‑holder in possession of the property, which is the subject‑matter of the charge, can refuse to deliver possession of it till his charge is, paid. In support of this contention learned counsel has relied upon Gurditta Mal and others v. Muhammad and others (A I R 1947 Lah. 278). We have perused the above authority and observe that it does not lay down the proposition being canvassed for. In that case the defendants had mortgaged with possession a certain area of land with the plaintiffs by means of four mortgages created before 1901. In the year 1921 the mortgagors borrowed an additional sum of Rs. 2,025 from the mortgagees and executed a registered mortgage on 30‑11‑1921. The deed, inter alia, contained the following express stipulation: "So long as we do not pay the present additional amount,, the mortgaged land shall not be released from mortgage." It was because of the existence of this express covenant, namely,, that the possession will remain with the mortgagee till the second mortgage or charge is paid that the Court found that the possession cannot be handed over by the Collector, under the Restitution of Mortgaged Lands Act, 1938, to the mortgagor without payment of the additional charge even though it may be open to the Collector to declare that the mortgagees entered: into before 8‑6‑1901 to which that Act applied) have been extinguished. It is plain from a perusal of this ruling that it has not been laid down as a principle that a charge‑holder carp hold on to the property in his possession until his charge is satisfied but that possession was allowed to remain with the mortgagee because of the express agreement of the parties in this behalf. This is manifest from the following passage extracted, from the judgment: "As mentioned already, it is definitely stated in the mortgage deed dated 30‑11‑1921 that so long as the mortgagors do not pay the additional sum of Rs. 2,025, the mortgaged land shall not be released from mortgage. A new and specific contract came into being. on 30‑11‑1921, and the appellants cannot be prevented from enforcing this term of the contract by recourse to the Restitu tion of Mortgaged Lands Act as this transaction does not fall within the purview of that Act." In this connection reliance was also placed upon Kishan Lal v. Ganga Ram (I L R 13 All. 28). This ruling does not appear to be at all relevant except for the following obiter dictum: "A `charge' in strictness not only empowers its possessor in many cases to hold the property charged if in his possession, but also gives the right to come into Court and sue actively for the satisfaction of his claim." The "many cases" mentioned in the above quotation are not alluded to in the body of the judgment, but one such case may be where an express agreement exists that the charge‑holder will if in possession, retain possession until his charge is paid (vide Gurditta Mal) but no general principle, as is being contended for can be inferred from the afore‑cited decision. A charge, as is well known does not create any right in the property but only creates a right of payment out of the property specified. It is a jus ad rem, right to a right, as distinguished from jus in rem, a right in respect of the thing itself. Salmond‑Jurisprudence, 11th Edition, pages 277, 278). The distinction between a mortgage and a charge is brought out thus in Altaf Begum v. Bhij Narain (A I R 1929 All. 281) whereas a mortgage, it is observed, is a transfer of an interest in immovable property as a security for the loan, a charge is not a transfer of any interest in the property, though it is nonetheless a security for payment of the amount. The right to recover the amount in question is not itself, immovable property. The right to have possession of the property can arise only if a specified interest is actually trans ferred which can be done by way of mortgage, whereas no such interest is transferred in favour of the charge‑holder. The law on the subject has been felicitously stated in the case of Ramzan by Muhammad Gul, J., as follows: "It is a well‑established proposition that a mere charge does not create any right in the property but creates a right of payment out of the property specified: it is more than a mere personal obligation, for it is a jug ad rem and closely resembles a simple mortgage which gives the mortgagee a mere right of sale in the case of default by the mortgagor but not a right of possession. A mortgage on the other hand is jug in rem and in essence is a transfer of an interest in specific immovable property depending upon its terms which might include right of possession by the mortgagee." The conclusion therefore, is irresistible that the effect of the proviso subsection (1) of section 14‑A is to efface the mortgagee rights held by the petitioners in the lands in question and in their stead to create a mere charge on the land to the extent of the mortgage sum. The mortgagees can no longer claim the right to remain in possession and they have, in the words e of subsection (2) of section 11 of the Act, "ceased to be entitled to the possession of such land". Accordingly, they can under the said provision of law be required to surrender the possession to the Chief Settlement Commissioner, or to any person authorised by him in this behalf. We hold that the relevant Settle ment Authorities can evict them from the lands in their possession.

8. This finding follows from the Scheme of the Act of 1958 itself. Mr. Ishaque Muhammad Khan, learned counsel for the Department drew our attention to the relevant provisions of the Act to show that the interpretation put forth by the petitioners that possessory rights of the local mortgagees in these lands can continue to subsist after the promulgation of the Act of 1958, as finally amended, is not tenable. The object of the Act, as given in its preamble, is "for the permanent settlement of displaced persons on land in order to compensate them for the losses suffered by them". The first step to be taken in this behalf is the making of "allotment" of agricultural land to the displaced person. Allotment signifies the issuance of a written permit to the allottee, and putting him in possession, if he is not already in possession of the area allotted (vide Para. 12, Rehabilitation Settlement Scheme‑Part I). Allotments under Scheme prepared under section 14 of the Act are to be confined to displaced persons against their verified claims (whereas in the earlier Rehabilitation Settlement Scheme land could be, allotted to all persons resident in Pakistan whether refugees or not). The displaced person allottees are, by section 14 of the Act, to be settled permanently on the land and the land on which a displaced person is permanently settled is to vest absolutely in him (vide section 16) and no such person shall be liable to pay any debt or dues outstanding against the evacuee owner of the land section

17. Reading these provisions together the intention of the Legislature becomes quite clear and unambiguous, namely, that persons in whose favour allot ments have been made of lands mortgaged with possession should be put in possession thereof in order to be settled absolutely and permanently on such lands. It is also quite clear that the deficiencies existing in the law noticed by the Supreme Court (in the case of Muhammad Khan) while attempting to achieve this object have been removed by the insertion of the new section 14‑A into the Act. This provision by subsection (1) of section 14‑A validates not only all previous allotments of lands of category but also empowers the making of future allotments, in pursuance of the Scheme framed under section

14. The terms of the proviso, to the aforesaid subsection makes the mortgage money due to the mortgagee a charge on such land implying thereby that although mortgagees shall not lose their right to receive mortgage money the mortgage shall not stand extinguished because the mortgage money due will become a charge on the land. By this provision the principal objection to the disposses sion of the mortgagees in possession without payment of the mortgage money stands removed and the interests of Pakistani mortgagees are fully safeguarded. By subsection (2) of section 14‑A the Settlement Authority shall be the authority to declare the charge, whose quantum will be assessed by the Collectors of the districts in which the land is situate. The above arrangement is devised obviously to meet the objection of the Supreme Court, in the case aforementioned, that any declaration by the Custodian under section 22 of the Administration of Evacuee Act, 1957, was not equivalent to the creation of a charge by him. The Settlement Authority now is, by express provision of law, empowered to create a charge over the land to the extent of the mortgage sum which shall continue to subsist until the mortgage is redeemed. The further lacuna in the law pointed out by the Supreme Court, that in the category of charges mentioned in subsection (4) of section 4 of the Act, the rights of mortgagees in possession are not included is overcome by providing that "any such charge shall be deemed to be a charge created by the Custodian under subsection (4) of section 4". A reference to that subsection no doubt reveals that tire Custodian does not create any charge under that sub section but there is no doubt that the words "under subsection (4) of section 4" are used in the sense "for the purposes of sub section (4) of section 4". The intention of the law‑makers, as is evident from the detailed analysis made above manifestly, was to make the new charge‑holders eligible for compensation under the provisions of subsection (4) of section 4 of the Act. It is an accepted principle of interpretation of statutes that the Court may modify the language of a statute to give effect to the manifest and undoubted intention of the Legislature. In Maxwell's Interpretation of Statutes the rule is thus stated on page 221 (11th Edn., 1961): "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradic tion of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence." In Salmon v. Duncombe and others (11 A C 634) their Lordships of the Privy Council observed: "It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilful-ness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language, used." Our own Supreme Court in Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119) upheld this principle, observing: "That we can modify the language of any Act to give effect to the manifest and undoubted intention of the Legislature is a proposition which is well supported by authority and well justified in reason. We consider, therefore, that the concluding portion of sub‑section (2) of section 14‑A is sufficient warrant for inclining us to hold that the charge declared by the Settlement Authority can be satisfied under the provisions of subsection (4) of section 4 of the Act.

9. The argument raised by Mr. Rafiq Ahmad Bangash that in so far as Para. 7 (c) of the Displaced Persons (Land Settlement) Rules, 1959, lays down that permanent settlement of lands has to be made only to the extent of the right or interest abandoned by an evacuee therein and the allottees have not been allotted anything beyond the equity of redemption cannot avail in the face of the statutory provisions adverted to already, more parti cularly after the amendments introduced in the Act of 1958, by Ordinance XIII of 1964. Reference in this connection may advantageously be made inter alia to the provisions of section 16 substituting the original provisions of section 16 and now providing: "Notwithstanding 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."

10. In view of the foregoing discussion we are unable to accept the other contention raised by the learned counsel appearing for the petitioners that despite the further amendment of section 14‑A by Ordinance XIII of 1964 the principle enunciated in the decision of the Full Bench in Muhammad Yusuf's case is still applicable and governs the situation. As observed earlier, the view expressed ‑n the aforementioned decision was based upon the anamolous situations appearing in certain circumstances noticed by the Court. The absurd consequences resulting from the application of the second proviso to subsection (1) of section 14‑A were particularly exposed. However, these anamolies have been eliminated by deleting both the proviso's to subsection (1) and substituting them with a fresh proviso, through Ordinance XIII of 1964. The other provision criticised in the said decision as not being intelligible viz., the concluding part of subsection (2) of Section 14‑A has already been examined by us and we have found that the said provision becomes wholly intelligible if the words "under subsection (4) of section 4" are read as "for the purposes of subsection (4) of section 4" a construction, according to us to be necessary, for giving effect to the scheme and purposes of the Act,

11. The last contention raised, namely that if the true effect of section 14‑A of the Act is to extinguish the mortgagee rights of local mortgagees in the lands owned by evacuees without prior payment of the mortgage‑money, the said pro vision is discriminatory because no such provision exists in regard to mortgagees with possession of lands owned by local Muslims may now be considered. In this connection our attention is invited to Right No. 15 contained in Chapter I, Part 11 of the Constitution which provides: "All citizens are equal before law and are entitled to equal protection of law." We do not find any force in this argument. In the first place, Night No. 15 stands suspended by an order of the President made (vide Notification No. F. 24 (I)/65‑Pub. dated 16th September 1965) whereby the President declared under clause (9) of Article 30 of the Constitution that the right to move a High Court for the enforcement of the fundamental right provided in paragraph 15 of the Fundamental Rights in Chapter I of Part II of the Constitution shall remain suspended for the period during which the proclamation of emergency is in force In the second place, the equality clause does not forbid reasonable classification for the purposes of legislation. There is no doubt that all persons, such as the petitioners, form a special class of persons viz., local Muslims in possession of lands, owned by non‑Muslims who have abandoned them, after mortgaging and making over possession of the said lands in their favour. A law dealing with such a special category of persons cannot be objected to if this law in its operation does not discriminate between the persons covered by it. This not being the objection here, the law in question cannot be held as unconstitutional.

12. Apart from the common‑question of law arising in these petitions, the learned counsel for the Department has pointed out that the petitioners are not truly interested in getting the mortgage‑money but their real desire is to retain possession of the lands under mortgage at all costs. It is submitted that in some cases the petitioners have been enjoying the usufruct of the land for decades and by the rents and profits that have accrued to them during this long period during which they enjoyed possession of the land, the mortgage money has already been paid of. In other cases cheques for mortgage sums have been prepared by the respondents but no steps are taken for collecting them, and the alleged non‑payment is being made an excuse for continuing in possession of the land. We agree that where the writ petitioners are guilty of such conduct their petitions are liable to dismissal on such a ground alone. In the present case, learned counsel for the respondent informed us, a statement not controverted by the learned counsel for the petitioner, that a cheque for the mortgage‑sum has been prepared and is read for delivery but that the petitioner has not cared to collect it. The present petition is, therefore, liable to dismissal on this ground alone.

13. Our conclusions therefore are that: (a) The relevant Settlement Authorities can, in order to put the allottees in possession of the land allotted to them dispossess Pakistani mortgagees from the lands in their posses sion before payment of the mortgage‑money. (b) The mortgage‑money due to the mortgagees shall, F however, be a charge on such land and the land which is subject to the mortgage shall remain subject to the mortgage shall remain subject to a charge until the mortgage is redeemed, i. e. until the charge is satisfied.

14. As a result of the foregoing, this writ petition is dismissed. There shall, however, be no order as to costs. Petition dismissed.