1975 PLP 495 (SCMR)

MUHAMNAD GUL, J. The petitioners herein are non‑claimant displaced persons from the occupied part of the former State of Jammu and Kashmir, belonging to six families. In 1953 they were allotted on a temporary basis, for their maintenance land measuring 1292 kanals 19 marlas situate in village Rajarian and 600 kanals in village Soma Kbaxgra in District Hazara. It appears that later, pursuant to a policy decision taken by the Government referred to in letter No. 116‑65/DRC dated 25th July 1963 by Deputy Rehabilitation Commissioner (L) Hazara, each of diced family from Jammu & Kashmir was to be allotted 32 kanals of land for its subsistence. Accordingly the D. R. C. (L) allowed the petitioners as members of six families to retain 192 kanals of land only and cancelled the remainder area in September 1963 and allotted the same to respondents 5 to 10 herein in mauza Rajarian and to respondents 24 to 33 in village Soma Khaggra in sati4action of their verified claims for land. Incidentally the respondents were also displaced persons from the former State of Jammu & Kashmir. Later the allotments were made permanent in their favour and they have sold the land to respondents 23 and 34 to 41, as the case may be. Some eight years after the cancellation of the land from their names the petitioners made an application purporting to be under sections 10 and 11 of Act XLVII of 1958 for the cancellation of the confirmed allotment in favour of respondents 5 to 10 and 24 to 33 herein on the ground of earlier temporary allotment which according to them was cancelled from their names without clue notice or inquiry. The matter was referred to the Tehsildar for enquiry and report. He reported back that the land in dispute has been cancelled from the names of the petitioners pursuant to the aforesaid policy decision by the Government. Accordingly the petitioners' application was dismissed by the Additional Settlement Com missioner (G) exercising the powers of the Chief Settlement Commissioner vide order dated 26‑6‑1974. This was followed by a writ petition before the Peshawar High Court which was dismissed vide order dated 9‑12‑1974 against which the petitioners now seek leave to appeal. Mr. Bashir Ahmad Ansari, learned counsel for the petitioners did not dispute the fact that initial allotment in favour of the petitioners was ad hoc and of temporary nature. He, however, relied on paragraph 4‑A, (ix) of the Rehabilitation Settlement Scheme which though originally framed under the Rehabilitation Act, 1956 was preserved in force by section 2(7) of the 1958 Act and which for the relevant purposes read; "The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the scheme :‑‑

(ix) land allotted on temporally basis to Jacnmu & Kashmir refugees." Learned counsel argued that this provision in the Settlement Scheme made the allotment though temporary and3ad hoc in inception perfectly sacrosanct. The argument was that this provision clearly gave what learned counsel described "as edge" to displaced persons from the occupied part of the former State of Jammu & Kashmir over all other displaced persons and, therefore, notwithstanding the policy decision purported to have been relied upon by the D. S. C., it was beyond his competence to cancel the allotment in favour of the petitioners. The argument proceeded further and even denied the very existence of any such policy decision by the Government pursuant to which the land in dispute was cancelled. Finally, that if at all, there was any such policy decision no notice having issued to the petitioners, the cancellation of allotment of the disputed land from their names was rendered invalid. In our opinion the whole argument is without substance. It is difficult to read into the above clause of paragraph 4‑A of the Schema, as precluding the Central Government to modify the existing Settlement Scheme for the rehabilitation or as the case may be or settlement of displaced persons a the exigencies of the situation may require from time to time. As recently pointed out by this Court in Refiuddin v. Chief Settlement Commissioner (P L D 1971 S C 252 ) the evacuee and rehabilitation legislation are of an extremely special charade, which are, from the very nature of case, to be constructed not so much on considerations that usually weigh with the Court hat on consider ation of policy. It was also pointed out in that case that the legislation on the subject was designed for meeting an extreme situation of a complex and confusing nature created by an influx of large number of displaced persons who had to be settled. It is also common knowledge. That with the passage of time since Independence, the number of displaced persons seeking refuge in Pakistan progressively increased resulting in mounting pressure on available land. Therefore, the Government have often been obliged t lay down the upper limits for allotments and thereby reduce the permissible limits for different categories of displaced persons or because of the quality B of lands in different localities or areas. Therefore, the policy decision referred to in the letter by the D. S. C. is relatable to the plenary power of the Government reserved under the Statute, as the situation subsisting at a particular time would warrant. As to the objection disputing the very existence of the Government decisions which the D. S. C. (L) apparently gave effect, all that needs to be said is that there is an initial presumption in favour of regularity of all official acts, (See section 114 of the Evidence Act, 1872). It is also note worthy that the Tehsildar Rehabilitation in his report also referred to the policy decision taken by the Government under which the land in dispute was cancelled from the names of the petitioners. Learned counsel finally relied upon Yusuf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) and Muhammad Tamil Asghar v. Improvement Trust Rawalpindi (P L D 1965 S C 698). in support of his argument that the fact whether the Government had taken policy decision which was in the nature of a jurisdictional fact which on the above authorities was for the respondents to prove. There is nothing in common between the instant case and the precedent cases which proceeded on the own peculiar facts. In the 1958 case, in so far as it could be relevant to the instant case, is was ruled that where the legislation clothes an order with finality "it always assumes that the order which it declares to be final is within the power of the authority making it. It is nobody's case that the D. S. C. (L) was not clothed with the authority to cancel the allotment of land. Similarly, the principal point decided in the 1965 case, was that Courts or Tribunals of special jurisdiction are not the final judges of the facts which determine their jurisdiction. On the facts of the case we are satisfied that the case was rightly decided by the Settlement Authorities and the High Court. The petition is accordingly dismissed. Petition accordingly.