P L D 1977 Lahore 735 (PLP)

It has been argued by the learned counsel appearing on behalf of the respondents that if the land transferred on permanent basis is not covered by the relevant provisions of the Act of 1972 then there was no need to provide for the cancellation of allotments and transfers of evacuee lands as well as for compensation thereof in section 4 of the Act. It has also been argued that since the evacuee land has been defined in section 2(d) of the Act as any land, building or vacant site abandoned by an evacuee, therefore, any definition of the same given in any other law cannot be relied upon. According to the learned counsel for the respondents, any land, whether permanently transferred or not, abandoned by an evacuee would be covered by the definition as given in the Act of 19 ,

12. A careful ,examination of the relevant provisions of the Act would show that stress has been laid upon the character of the land being evacuee, after having been shown such land within inverted commas.

12. As mentioned above, it is not denied that the land in ques tion has been permanently transferred to the petitioner under the relevant provisions of the Land Settlement Act of 1958. Section 4 of the Land Settlement Act provides for power to acquire land. Subsec tion (2) thereof authorises the Provincial Government to acquire any land in any Province for any of the purposes of the Act. Subsection (3) further provides that on the publication of the notification under sub. section (1) or subsection (2) of section 4, right, title and interest of any evacuee or persons claiming through him in the land specified in the notifica tion shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government or, as the case may be, the Provincial Government free from all encumb rances. After the acquisition of such land abandoned by an evacuee under section 4 of the Land Settlement Act it would cease to be evacuee property as any right, title and interest of an evacuee therein would stand extinguished. It has been held to be so in Rahim Baksh v. Ahmad Bakhsh PLC 1964 S C 189, Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi P L D 1965 S C 356, A. R. Niazi, Advocate and 2 others v. Pakistan through Secretary, Settlement and Rehabilitation Department, Rawalpindi P L D 1968 S C 119 and Mehra v. Zahur Ahmad P L D 1971 Lah. 834.

13. Section 14 of the Land Settlement Act provides for allotment and disposal of land acquired under section 4 of the Act after having ceased to be evacuee property. Section 15 provides for permanent settlement of such land on such displaced persons whom any land has been allotted by a Rehabilitation Authority before the commencement of the Act under a claim as defined in clause (7) of section 2 or by a Settlement Authority under subsection ( 1) in such manner and on payment of such fees as may be prescribed by the Central Government. Section 16 of the said Act provides that notwith standing anything contained in any law for the time being in force the land on which a displaced person is permanently settled under the Land Settlement Act shall vest absolutely in such person. It has been held in Muhammad Sadiq v. Chief Settlement and Rehabilitation Commissioner 1970 S C M R 366 that land permanently transferred to a claimant vests in him absolutely and its sale thereafter by the Settlement Authority as evacuee property is illegal. In that case land bearing Khasra No. 271, which had been transferred permanently to the appellants in that case was disposed of by the, Settlement Authority as evacuee property. It was held that its sale as such could not be maintained in law, because it had already been transferred permanently to the appellants who thus became its owner in absolute rights.

14. It is admitted in the present case that the land in question subject- matter of both the notifications was permanently transferred to the petitioner. in lieu of his verified claims. While discussing the effect of permanent settlement of evacuee land under section 15(3) of the Land Settlement Act, it has been held in Saee Muhammad and another v. Talib Hussain Shah 1970 S C M R 641 that such land is not immune from pre-emption. The plea raised before their Lordships of the Supreme Court that the land sold by the vendor in favour of the appellants in that case was still included in the compensation pool and as such under section 6 of the Land Settlement Act was immune from being proceeded against for any claim in any manner, whatsoever, in execution of any decree or order by any process of Court or other authority, was repelled by holding that the same was not good.

15. It may be mentioned here that necessary rules were framed in, 1959 under section 15(3) of the Land Settlement Act which are as follows : 7 .. (1) After the acquisition of the land under section 4 and the constitution of the Compensation Pool under section 5, the Assistant Settlement Commissioner of the area concerned, shall, except in the case of categories of land specified in proviso to subsection (3) of section 15,- (a) cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the , Central Government shall be substituted for the evacuee holders of rights in the estate; and (b) then cause separate mutations, to be entered incorporating the conferment of permanent rights on each person holding an allotment on the basis of the entries in register R. L. II, and mutation of inheritance or transfer connected therewith, if any, and pass any order giving the details of the area with the particulars of the person concerned." In the present case, it is not denied that after the permanent settlement o the land on the petitioner necessary action in compliance with the said rules was taken by the competent Revenue authorities and the land a such thereafter, permanently vested in him. The view taken in 19 Y 0 S C M R has been confirmed by their Lordships of the Supreme Court in Haji Sultan Ahmad and another v. Muhammad Siddiq P L D 1973 S C

347. The matter to be decided in that case west as to whether the sale by vendors of their rights and interests in evacuee lands held by them as temporary allottees, confirmed allottees or permanent transferees of land was immune from pre-emption or not. It has been held that as the permanent transferees. of land are conferred full ownership rights under the Land Settlement Act, therefore. The sales made by them are subject to the right of pre-emption being sales of agriculture land, as described in section 4 of the Pre-emption Act. After referring to the provisions as contained in section 16 of the Land Settlement Act it has been held that full proprietary rights are conferred upon the displaced persons in the lands permanently settled in their favour under this provision of law. It has also been observed that after the acquisition of the land under section 4 of the Land Settlement Act and the constitution of the Compensation Pool under section 5 thereof the Assistant Settlement Commissioner of the area concerned has to cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government has to be substituted for the evacuee right holders in the estate and thereafter separate mutations have to be entered in favour of the permanent allottees in attestation of the conferment of permanent rights upon them and a detailed attestation order to that effect has to be made showing the name of permanent transferee, the area conferred upon him, including any mutation of inheritance or transfer that may have been effected concerning the land in question. It has been held in that authority that it was obvious that the object of setting up of the Compensation Pool under section 5 of the Land Settlement Act was to bring about the extinction of the evacuee character of the land and to confer the same on the confirmed allottees on the basis of their respective entries in R. L. II.

16. At this stage it may be mentioned that it has been held in Shaukat Hussain Rizvi v. Yar Muhammad etc. P L D 1964 Lah. 469 that even a displaced person using and occupying urban land allotted to him on temporary basis has the right to retain such land and adjust it against his claim, as contemplated by sections 15 and 16 of the Land Settlement Act, 1958. The respondent in that case was a temporary allottee since 1949. It was held that he could not be disturbed as he could retain the land which could be adjusted against his claim and he could thus be permanently settled on that.

17. The above discussion would show that after the acquisition of evacuee land under section 4 of the Land Settlement Act it ceased to be an evacuee property and all interests and rights of evacuees held therein were extinguished. The character of such property cannot, therefore, be evacuee, as to all intents and purposes it vests fin the person whom it has been permanently transferred. As held by the Supreme Court in the authorities referred to above, it cannot be treated as evacuee property and question of calling and terming it as such in any future legislation would not arise.

18. If the intention of the Legislature had been to cover all properties, which had ceased to be evacuee at the time of the enforcement of the Katchi Abadi Act of 1972, then there was nothing to prevent it from mentioning this fact in clear terms in the relevant provisions thereof. Even in the preamble of the Act as well as of the Ordinance of 1972 it has been clearly mentioned that the said enactments aimed at providing transfer o certain evacuee land to the occupants thereof. In the Scheme, which was framed in compliance with Martial Law Order No. 251, referred to above, for disposal of evacuee land in Katchi Abadis, para. 3 thereof clearly provides that the Deputy Settlement Commissioner concerned after making personal survey and such other inquiry, as he may deem appropriate, recommend to the Chief Settlement Commissioner to declare any locality consisting of fifty or more tenements existing on an evacuee land, not already declared as building site under sub-clause (b) of clause (3) of section 2 of the Land Settlement Act, as Katchi Abadi.

19. It means the intention was to transfer such property under the. Act of 1972, which was still evacuee or at the most still in the Compensation Pool and had not been disposed of permanently at the time of the enforcement of the Act; otherwise there was no need to term the property as "evacuee property" in the preamble of the Act and provide in para. 3 of the Scheme for exclusion of such land from the operation of the Act which had been declared as building site. It is significant to notice that even the title of the Legislation, whether in the form of Martial Law Order, Ordinance XX of 1972 or Katchi Abadi Act of 1972, shows the evacuee land to be transferred.

20. There is no doubt that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the Statute, where it is expressed in clear unambiguous language, but where such position does not exist in a particular Statute like the present one, preamble of the Act sheds useful light as to what a Statute is intended to F achieve. In many judicial authorities preamble has been referred to with advantage as an aid to the construction of the main provisions of the Statute. It is accepted as legitimate aid to construction. It is key to a Statute and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. Reliance in this respect can be placed upon Syed Ikhlaque Hussain v. Habib Ismail Bajwa and another P L D 1969 Lah.

563. Hassan and others v. Fancy Foundation P L D 1975 S C 1 and The Murree Brewery Co. Ltd. v. Pakistan though the Secretary to Government of Pakistan, Works Divisions and 2 others P L D 1972 S C

279. In the last cited case the appellant before the Supreme Court felt aggrieved by the acquisition of certain properties belonging to it at Rawalpindi under the Capital Development Ordinance, 1960. It was argued on behalf of the Capital Development Authority, Islamabad, the respondent in that case, that the acquisition as such was within the framework as well as according to the aims and purposes set out in the C. D. A. Ordinance. While referring to the preamble of the Ordinance, their Lordships of the Supreme Court observed that the purpose as set out in tire preamble itself was for making of arrangement for planning and development of Islamabed within the framework of a regional development plan. It was observed that the preamble was legitimate aid in discovering the purpose of a Statute. It was found that the main purpose of the Ordinance was to plan and develop Islamabad in a suitable manner, where according to the 1962 Constitution the Capital of Pakistan was to be located. In the Master Plan, the site where the disputed property was situated had been shown as earmarked for "open space". It was held that acquiring the disputed property "for providing suitable accommodation for the more ,efficient functioning of the President's Secretariat" was not only outside the purposes of the Ordinance and the function of the C. D. A. but was also not covered by any Scheme framed under the Ordinance. It was further observed that mere putting a label on the acquisition that this was for construction of the Capital at Islamabad would not automatically make it an acquisition for the purpose of the Ordinance. It was held that any acquisition within the area so specified must have a reasonable reverence to the purpose of the Ordinance and must be carried out strictly in accordance with its provisions.

21. In the light of the authorities as referred to above it is to be seen! as to what is the purpose of Katchi Abadi Act, 1972. A careful scrutiny of the relevant provisions thereof would show that it aims at transferring certain evacuee land to the occupants thereof; meaning thereby that if it,, certain piece of evacuee land is occupied by certain persons who have raised Katcha construction thereon then under the relevant provisions of law such persons can be allotted respective portions of land. not exceeding five marlas each, and given permanent rights therein. It does not mean by any stretch of imagination that any land which contains pucca construction and has otherwise been permanently disposed of can be treated as Katchi Abadi under the relevant law.

22. Much stress has been laid upon the words "allotments and transfers" of evacuee lands to be cancelled from the appointed day as provided in section 4 of the Act of 1972 by the learned counsel for the respondents. According to them if a property permanently transferred is not covered by the Act of 1972 then there was no need to provide for cancellation of allotments and transfers of such property. I am afraid, the provision as contained in section 4 cannot be read in isolation of the other provisions, particularly the preamble. Since the' words "evacuee land" have been used mechanically in all the provisions,' therefore, the words "allotments and transfers" have to be read in contest thereof. It has not been made clear in the Katchi Abadi Act that it would also cover such properties as have been permanently transferred, In the absence thereof we have to depend upon the purpose as set out in the preamble itself, which, as mentioned above only aims at transferring' certain evacuee lands to the occupants thereof. It may be argued that even after the disposal of the property under the relevant statute; whether Displaced Persons (Compensation and Rehabili tation) Act, 1958, or Displaced Persons (Land Settlement) Act. 1958; or even Pakistan (Administration of Evacuee Property) Act, 1957, the property would still be called evacuee property for the purpose of distinguishing the same from other properties. It may be so, so far as the disposal of the evacuee property under the statutes as referred to above is concerned, but such property after having been permanently disposed of and the evacuee interest having been abolished to all intents and purposes cannot be described as evacuee property in any other statute not meant for the purpose of disposing of evacuee property. Further, there is nothing on record to show that such and such pati o, the property, which has been notified as Katchi Abadi, is covered by cluster of Katcha houses as provided in Para. 3 of the Scheme. According to that provision there must be, at least, fifty or more tenements existing on an evacuee land which cap be declared as Katchi Abadi. It means that if on a particular piece of land there are Katcha tenements less in number, or situated at considerable distance from one another, then such piece of land cannot be declared as Katchi Abadi.

23. Since the relevant law aims at taking away certain rights of allottees or transferees of evacuee lands. therefore, the relevant provisions of the Act have to be construed. I have gone through the relevant file' maintained by the Deputy Settlement Commissioner. Multan, in order' to find out as to whether any details, as discussed above, were given in the respective notes put up by him or by the Addl. Settlement Commissioner; before the property in question was notified as Katchi Abadi. I have, not been able to find out any such detail. In the absence thereof. I arrl afraid, no recommendation, whatsoever, if any, could he made for declaring the property in question as Katchi Abadi.

24. It has been, again and again, asserted in various paras. of both the writ petitions that such and such parts of the land are covered by pucca buildings, streets etc. with all other amenities of life which have been provided therein. In reply thereto, there has been mere denial of such assertion without giving any particulars that such and such parts are actually covered by the Katcha tenements, as provided in Pars. 3 of the Scheme. Further, it appears from the record that so far as the land measuring 77 kanals 8 marlas, subject-matter of notification dated 29-9-1972, is concerned. its declaration as Katchi Abadi was not made by the Deputy Settlement Commissioner, but by the Addl. Settlement Commissioner who was otherwise' not authorised to do so under the relevant law. It also appears that the: property in question was declared as Katchi Abadi at the instance of the then Rehabilitation Minister without application of mind quite independents by the competent Rehabilitation/Settlement Authority. If it is accepted for argument's sake that it is ultimately the Chief Settlement Commissioner who is to declare a particular property as Katchi Abadi after satisfying himself with regard to the factual position, the record does not show that any independent or impartial inquiry was ever held by him : as to whether' the property in question could ever be declared as Katchi Abadi.--

25. Para. 8 of Writ Petition No. 18/R-73 states that the Deputy Settlement Commissioner, Multan, in his recommendation, as contained in the letter dated 18-3-1972, did not include the property situated at Chah Thalaywala for being notified as Katchi Abadi. Para. 9 states, as admitted by the respondents in their parawise comments, that thereafter the then Rehabilitation Minister visited the property in question on 16-7-1972 and openly asked the Deputy Settlement Commissioner as well as other officials of the Department to recommend the property in question to be declared as Katchi Abadi. The averments a9 made in para. 9 of the writ petition have been admitted to be correct in the parawise comments. Paras. 10 and 11 of the writ petition, which have been otherwise admitted to be correct as there is no unequivocal denial by the answering respondents thereto, show that subsequent proceedings for the declaration of the property in question as Katchi Abadi were held at the instance and under the influence of the then Rehabilitation Minister; otherwise the property may not have been declared as such as the record shows that the Deputy Settlement Commissioner had not recommended the same to be notified as Katchi Abadi in his previous letter. As admitted by the respondents in the parawise comments such recommendation was made by the Addl Settlement Commissioner, Multan, who otherwise was not competent under the Scheme to make such recommendation.

26. According to law, a statutory functionary while exercising his powers must conform to the steps and methods prescribed in the Act. otherwise the decision taken by him would be ineffective and inoperative. Reliance in this respect can be placed upon Farid Sons Ltd. v. Government of Pakistan P L D 1961 S C 537 and Chairman, Evacuee Trust Property, West Pakistan, Lahore, v. Muhammad Din and another P L D 1971 Lah.

217. Further, when a Statute limits a thing to be done in a particular form it necessarily includes in itself the negative i.e. that the thing shall not be done otherwise. The Scheme for disposal of evacuee land in Katchi Abadi being part of the relevant enactment clearly envisages that it would be the' Deputy Settlement Commissioner alone who would make recommendation, for declaring a particular property as Katchi Abadi after making personae survey and such other inquiry as he may deem appropriate. Even otherwise the recommendation as such having been made under Ministerial influence cannot be sustained in law.

27. According to "Judicial Review of Administrative Actions (Third Edition) by S. A. de Smith, under heading "Failure to Exercise a Discretion", sub-head "Acting under Dictation" at page 237, an authority entrusted with the discretion must not is the purported exercise of the discretion ac under the dictation of another body or person. A decision which is required to be taken by exercise of independent judgment if taken at the dictation of another cannot be maintained. Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct Tribunals are usually entitled to and are often obliged to take into account con siderations of public policy, and in some contexts the policy of a Minister or of the Government as a whole may be a relevant factor in weighing those considerations; but this will not absolve them from their duty to exercise_ their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior, or (possibly) unless the cumulative effect of the subject-matter and their: hierarchical subordination make it clear that it is constitutionally proper for them to receive and obey instructions conveyed in the proper manner and form.

28. In the present case; no statutory provision, whatsoever, of- the relevant law shows that any instructions in this behalf can be issued to Deputy Settlement Commissioner, not to speak of the Chief Settlement Commissioner who is the ultimate authority to decide the matter. It is the! Deputy Settlement Commissioner alone who is to make recommendation; to the Chief Settlement Commissioner for the declaration of a particular property as Katchi Abadi. Such recommendation is to be based upon his personal survey and inquiry and judgment and in the absence thereof it cannot be given any legal weight

29. Since the property in question, subject-matter of both the writ petitions, has been declared as Katchi Abadi in violation of the relevant P provision of law, as discussed above, and without applying mind independently by the competent authority, therefore, the notifications issued in this behalf, as referred to above, have no legal effect. The impugned orders passed by the Chief Settlement Commissioner in this behalf are hereby set aside being illegal and without lawful authority. Both the writ petitions are hereby accepted without any order as to costs. S. A. H. Petition accepted.