P L D 1977 Lahore 202 (PLP)

2. On 28th of June, 1974 the respondents Nos. I and 4 filed a comp laint alleging that as petitioners had got married, the devolution of the land temporarily allotted to their father as a Jammu & Kashmir refugee, was unlawful. It was further submitted that actually the benefit of the land was being claimed by persons other than the petitioners. The address of the respondents as given in that application was of the village Veroke where the land is situated. It is contended on behalf of the petitioners that the Additional Settlement Commissioner who passed the impugned order did not issue any notice to them and that the ex parte order was considered justified on the basis of proclamation cited in a newspaper. It is further pleaded that as the contesting respondents had admitted that the petitioners lived in Kotli Loharan and not in the village where for notices were issued, the impugned order was liable to be set aside. He however, admitted that the land in dispute was being cultivated by the petitioners and not the tenants. In this view of the matter the objection of the petitioners that they should have been served at their Kotli Loharan address does not have much merit.

3. On merit, the learned counsel relied on para. 4‑A (ix) of the Reha bilitation Settlement Scheme to say that as the land in question stood temporarily allotted in the name of the petitioners, it was not available for further allotment under the Rehabilitation Settlement Scheme. He relied on Dost Muhammad etc. v. Mst. Badal Jan etc. 1976 S C M R 112 and the judgment in Letters Patent Appeal No. 852 of 1966 in this regard to support his plea. The learned counsel for the contesting respondents referred to a judgment of this Court in Writ Petition No. 613‑R of 1971. decided on 3rd of December, 1974 where it was held that as the entire evacuee land including the land allotted to J & K refugees had been acquired free from encumbrances under the Displaced Persons (Land Settlement) Act, the same became available for permanent allotment against the available claims. His Lordship compared the provisions of the Land Settlement Act to that of the Displaced persons (Compensation and Rehabilitation) Act, wherein the Legislature did provide S. 16‑a to safeguard the rights of the J & K refugees.

4. It will be seen that whereas the Legislature provided for framing a Scheme under S. 16‑B of the Displaced Persons (Compensation & Rehabili tion) Act for the temporary rehabilitation of persons displaced from such parts of the State of Jammu & Kashmir, as is under the occupation of India and are residing in Pakistan, no such parallel provision has been made in the Displaced Persons (Land Settlement) ‑Act. It is on the basis of this omission that judgment in Writ Petition No. 613/11 of 1971 was given. Apparently, an important aspect of the case was not brought to his Lord ship's notice. Section 12 of Displaced Persons (Land Settlement) Act, empowers the Chief Settlement Commissioner to transfer or dispose of any land or other property out of the compensation pool by sale whether by means of auction or otherwise. This provision seems to have been acted upon to exclude the land temporarily allotted to Jammu & Kashmir refu gees from further allotment to other claimants. In D. O. letter No. Reh. 1 (1)163 dated the 4th of May, 1968, from the Government of Pakistan, Rehabilitation and Works Division J & K refugee Rehabilitation Organiza tion to the Rehabilitation Commissioner of Sialkot, it was stated as follows:‑ "It has come to our notice that in some cases where the verified claim of a J & K allottee is less than the area of his allotment the local revenue officers, alter adjusting the claim, have cancelled the remaining area of his temporary allotment from the name of the J & K refugee allottees. This is direct contravention of the orders of the Chief Settlement Commissioner referred to above, and I request that you may kindly take such action as you deem fit to ensure that the Revenue Officers strictly observe the provisions of the law and the above‑mentioned orders of the Chief Settlement Commissioner. In this connection, I enclose for your information a copy of the Govern ment of Pakistan (Ministry of Rehabilitation) letter No. F. 4 (10)/ 59 S‑II. dated 5‑3‑60 (Annexure B') and the Chief Settlement Com missioner's letter No. 4575‑60‑R (GI, dated 12‑2‑1961 (Annexure `F') from which it will be seen that the lands temporarily allotted to free rations drawing J & K refugees are sold to Ministry of Kashmir Affairs." It to thus quite clear that the lands in the temporary allotment of Jammu & Kashmir refugees had already been sold by the Chief Settlement Com missioner and they no longer formed part of the compensation pool. The allotment of such lands therefore, could not be cancelled and those could not be allotted to any other displaced person against his claim. The above letter further went on to say that if any land temporarily allotted to J & K refugee became available, it would go to the Central Government and not to the compensation pool. A portion of letter dated the 5th of March, 1960 may also be reproduced with advantage:‑ "The price of land allotted to Jammu & Kashmir Displaced families drawing free ration is to be recovered from the Ministry of Kashmir Affairs. 1n other words such lands are to be sold to the Ministry of Kashmir Affairs and not utilized for satisfaction of claims under the Rehabilitation Settlement Scheme." The latest decision with regard to such properties contained in the letter No. F. 2 (1)/74‑J & K dated the 23rd July, 1974, is as follows :‑ "Temporary allottees from Jammu & Kashmir who are not in cultiva ting possession of the allotted land should be given the option to become full owners by paying Rs. 10 per produce index unit subject to the condition that in the event of their repatriation to the occupied Jammu & Kashmir State. they or their successors‑in‑interest will have to pay the Central Government the price of the land as ascer tained by the Collector of the District or a person authorised by him."

5. The case can be looked at from another angle also. If the land had been acquired under section 4 of the Displaced Persons (Land Settle ment) Act, it was subject to its disposal under S. 12 read with S.

14. Under section 12 it could be sold off as held above. It could also be allotted under a Scheme prepared under S. 14 in the alternative. The. Chief Settlement Commissioner had adopted the Rehabilitation Settlement Scheme para. 4‑A(ix) of that Scheme excludes from allotment such lands as had been allotted to J & K refugees. The land in dispute could not be allotted to the respondents even on that score.

6. The Supreme Court judgment referred to in para. 3 above upheld an order of the High Court, whereby the cancellation of land inherited 1y the heirs of a Jammu & Kashmir refugee was set aside on the ground that no notice prior to cancellation was given and that land allotted to a Jammu & Kashmir refugee was not available for allotment to other claimants because of the bar as contained in para. 4‑A (ix), Part I of the Rehabilitation Settlement Scheme. The question before their Lordships of the High Court was whether the heirs of a Jammu & Kashmir refugee are entitled to inherit the land allotted to the deceased head of the family. Their Lordships expressed the view that they would be entitled to as no prohibition existed in the law. The situation in the case in hand is quite similar. Here too land in question after having been cancelled from the name of the heirs of a Jammu & Kashmir refugee has been allotted to a claimant from agreed areas.

7. Another judgment of the Supreme Court in Civil Appeal No. 2 of 1976 (Mumtaz Begum and others v. Abdul Latif and others was relied on by the respondents. In that case the contest was between a claimant Jammu & Kashmir displaced person and a non‑claimant Jammu & Kashmir refugee. There were also disputed questions of fact involved and the respon dents had conceded the case of the claimant appellant. The question whe ther a Jammu & Kashmir refugee holding temporary allotment against free ration could be deprived of the same as against a claimant Jammu & Kash mir refugee was not discussed.

8. The outcome of the above discussion is that the land temporarily allotted to Jammu & Kashmir refugees had been sold to the Ministry of Kashmir Affairs. In the alternative it was not available for allotment to A other as the Rehabilitation Settlement Scheme was adopted under section 14 of the Displaced persons (Land Settlement) Act and its para. 4‑A (ix) in Part I excluded such land from allotment to others. For the reasons given above, I am of the view that the land temporarily allotted to Jammu & Kashmir refugees excluded from allotment to others as it is sold out to the Ministry of Kashmir Affairs and also it stands excluded under para. 4‑A (ix), Part I of the Rehabilitation Settlement Scheme. There fore, it could not have been allotted to the respondents. The impugned order, in this view of the case, is declared to be without any lawful; authority and of no legal effect. As the question involved was not so simple, the parties are left to bear their own costs. S. Q. Order accordingly.