P L D 1963 (W (PLP)

(b) where the period of mortgage has expired the mortgage money shall be paid to the mortgagee within a period of 8 months from the (7th of June 1962). (2) The Settlement Authority may declare that the land which is subject to a mortgage shall remain subject to a charge until the mortgage is redeemed, and any such charge shall be deemed to be a charge created by the Custodian under sub section (4) of section 4. (3) . ."

7. Interpreting the effect of this Ordinance in Writ Petition No. 1303/11 of 1962, a learned Single Judge of this Court held‑ " ... an allotment carries with it the right of possession and the prayer that the petitioners be allowed to remain in possession until the mortgage is redeemed) if allowed, shall run counter to the said Ordinance (No. LXVI)" On the same point, in Writ Petition No. 197/11 of 1962, another learned Judge in Single Bench held‑ " . . . the Ordinance (Ordinance No. LXIV of 1962) validates the existing allotments and declares the mortgage money to be a charge on such lands. In view of the judgment of the Supreme Court, the petitioners shall not be disturbed without payment of the mortgage money . . . . ." Similar conflict of opinion was reflected in judgments of other learned Judges. It is to resolve this conflict of opinion that this reference has been made.

8. The point may be broken down into two component parts:‑ (1) If, land which was subject to a mortgage created by an evacuee, and which in pursuance of that mortgage was in the possession of the mortgagee, is allotted under any scheme prepared under section 14 of the Act, is that allotment valid? (2) Even if the allotment is valid, can the mortgagee be dis possessed before the mortgage money has been paid?

9. The first part is expressly answered by this statute when it says, "where a person has been allotted any land which was subject to a mortgage created by an evacuee the allotment shall be deemed valid.

10. The difference of opinion among the Single Benches t arises with reference to the second of the two component parts into which the main point has been broken down.

11. One, of the two views taken in the High Court is that the new section only declares the validity of certain transactions. It does not concern itself with the question whether the allottee under the allotment declared by that provision to be valid, is to be put into possession forthwith without payment of the mortgage debt or only after the mortgage debt has been paid. According to this view, the Supreme Court declared the law to be that unless the mortgaged paid, the mortgagee is entitled to retain possession of the land under mortgage. It is said that since the Ordinance does not set out to alter this position the dec laration by the Supreme Court in this behalf is unaffected by it. It is pointed out in support of this view that in the period prior to 1958, when evacuee property was being used mainly for the purposes of rehabilitating those who needed to be rehabilitated, there was an express provision made in each one of the various schemes that mortgagees with possession were not to be evicted from the land in their possession. It is urged that in the context of "rehabilitation" it is very important that the person to be rehabilitated be put in immediate possession of that which is given to him in order to rehabilitate him. In the context of "compensation"‑which is the object and purpose of the Settle ment operations‑immediate possession is not so necessary. It is asked whether it is conceivable that the possession that remained sacrosanct during the period of "rehabilitation" should be intended to be summarily violated in relation to the schemes of "Compensation". It is further pointed out in support of this view that it should not be lightly assumed that it was intended that an allottee of evacuee property should have the right to do that which the evacuee himself could not have done while in enjoyment of his property. The evacuee could not have re-occupied the mortgaged property without paying the mortgage debt. It is said, "how can anyone to whom an evacuee interest is allotted have more than the entitlement of the evacuee". It is further pointed out that on principle there could be no justifi cation for making a provision that a person who was being made the owner of a valuable property must start deriving benefit from it even before he has paid up what is due in respect of that property. It is said that the requirements of a compensation scheme would be fulfilled just as well by providing that the mortgage money be paid to the mortgagee before he is ousted from his possession. It is said further that if for some reason it has been decided that the new owners should not be burdened with the mortgage money, there is nothing to prevent the Government from discharging the obligation to the mortgagee before depriving him of his possession. These considerations of principle are sought to be fortified with reference to the pro tection given to the possession of lessees and tenants‑at‑will. It is asked whether it could be really contemplated that if the land of an evacuee owner was in the possession of a tenant‑at‑will, the possession of the tenant‑at‑will be protected against the new owner, but if the evacuee had mortgaged his land the possession of the mortgagee be not protected against the new owner. It is pointed out that a mortgagee with possession ought to be in a securer position than a tenant‑at‑will.

12. The other point of view is that if the interpretation of the validating Ordinance be that the new owner can only get possession of the allotted land after the mortgage money has been paid, it would, in effect, amount to no more than a declaration that an allotment of the equity of redemption is valid. It is pointed out that that is precisely what the judgment of the Supreme Court in fact means. It is then asked whether it is reasonable to assume that the law‑maker took the trouble of bringing in a law to declare that something was valid, the validity of which had not been questioned by the Supreme Court; and in bringing in that law took care to insert that the validity was being conferred, "notwithstanding any judgment of any Court". It is said that the very fact that the law‑maker set out to validate something shows the intent of reversing that which had previously been done. From this it is inferred that the purport of the validating Ordinance must be to validate that which the Supreme Court had held to be invalid.

13. The difficulty in choosing between these two opposite points of view has arisen mainly because on principles of justice, equity and good conscience there is a great deal to be said for the first point of view and very little for the second, while the conclusion that the law‑maker's conscious intention was to reverse that which he understood the judgment of the Supreme Court to be, seems irresistible from the considerations mentioned in support of the second point of view.

14. It seems evident that the new provision (section 14‑A) was drafted in a hurry. The 7th of June was the last day of legislation without recourse to the National or a Provincial Assembly. Apparently a very large number of legislative measures proposed by different departments were adopted on that day. There are many instances of confusion in the new provision, probably on account of the inadequate consideration that must have been bestowed upon it due to hurry. By proviso (a) to the first subsection the mortgage money is declared to be a charge on the land in all cases. By the second subsection the settlement authority is given the power to declare that the land shall remain subject to a charge until the mortgage is redeemed. In other words, that which by operation of law is declared to be an incident attaching to the land in all cases by one part of the provision, is declared b other part of the provision to be an incident which may a attached to the land in a particular case by the Settlement Authority, necessarily implying thereby that it does not attach automatically in all cases. The concluding part of the second subsection provides that any charge so declared by the Settlement Authority shall be deemed to be a charge created by the Custodian under subsection (4) of section 4 of the Act of 1958. A reference to that subsection reveals that as a matter of fact the Custodian does not create any charge under that subsection. It is not easy in a provision of this kind to discover exactly what the intention of the law maker was on the question of the dispossession of the mortgagee when no express mention is made in the provision, on that point.

15. The main provision only declares the allotment to be valid without saying anything on the question of possession. In the second proviso to the first subsection it is enacted that where the "period of mortgage" has expired, the mortgaged money shall be paid to the mortgagee within a period of eighteen months from the 7th of June 1962. The reference to the "period of ‑mortgage‑Indicates that this provision is intended to apply to mortgages which by express stipulation could not have been redeemed before a certain period had expired. This is a fairly common type of mortgage. The object in such a mortgage is to guarantee to the mortgagee the enjoyment of the usufruct of the land for a specified period. By making the provision that where the period of mortgage has expired, the mortgage money is to be paid on or before the 6th of December 1963, an anomalous situation has arisen. There is no provision in regard to those where the period of mortgage had not expired on the day on which the new provision was made. There may be cases in which there may be several years before that period is due to expire. What did the law‑maker intend with reference to these cases? Did the law‑maker intend to put the mortgagees whose period of mortgage had expired in a position of greater advantage than the mortgagees in whose case the period of mortgage had not yet expired. On the provision as it stands, it does not seem possible to answer these questions.

16. It was easy enough for the law‑maker expressly to say that mortgagees in possession may be dispossessed even before the mortgage money has been paid, if that is what the law‑maker intended. Since no reference to dispossession of the mortgagees is expressly made, it seems steer to assume tat the law‑makers intention was the one which is more in consonance with equity, justice anti good conscience and that it was not intended that a mortgagee in possession should be dispossessed as a result of the new provision without the mortgage money being paid to him but that the intention was to guard against any possible interpretation of the judgment of the Supreme Court casting reflection upon the validity of the allotment itself.

17. We come to the conclusion, therefore, that the effect of the Displaced Persons (Land Settlement) (Second Amendment) Ordinance, 1962 (LXIV of 1962) is that the allotment of evacuee lands which are mortgaged with possession to non‑evacuee is valid, but the mortgagees in possession can be dispossessed only after paying the mortgage money to them.

18. The cases will now go back for determination by the Bench or Benches which would, in the ordinary course, be dealing with them. (Announced by Bashiruddin Ahmad, J.) A. H. Reference answered.