P L D 1966 (W (PLP)

(a) for the' appointment of new trustees on fresh terms and conditions, if necessary; or (b) for the transfer of such land to suitable institution; or (c) for the transfer to Government or to any local authority of such land for any charitable, religious or educational purpose. (3) Any scheme prepared under subsection (I) or subsection (2) shall be subject to approval in writing of the Central Government, and if such approval is neither refused nor communicated to the Chief Settlement Commissioner within two months of the receipt of the Scheme by the Central Government, it shall be presumed to have been duly communicated. (4) On the approval of Central Government being communicated or presumed to have been communicated under subsection (3), the Scheme shall be executed by the Chief Settlement Commissioner. Under the said paragraph, it is not necessary to empower the Chief Settlement Commissioner to make any Scheme. The Chief Settle ment Commissioner has an authority under section 14 itself to make a Scheme without being further empowered by the Govern ment. It is only in a case where the Government may wish a person other than the Chief Settlement Commissioner to frame a Scheme that he may be specifically empowered in this behalf. All that is necessary is that in order that the Scheme made by the Chief Settlement Commissioner should become operative, it has to be approved under cause (3) of section 14 by the Government. The Scheme made by the Chief Settlement Commissioner on the 14th of August 1964, and notified in the Press on the 13th of November 1964 has been duly approved by the Central Government.

7. It was next contended that the allotment was made in favour of the petitioner under paragraph 8 of the Rehabilitation Settlement Scheme of 1952 which Scheme was made under section 7 (1) of the Rehabilitation Ordinance 1948 and 'that the. Chief Settlement Commissioner had no authority in law to make a Scheme under section 14 in respect of allotments which had already been made in favour of the petitioner. Para. graph 8 reads as :‑ "Muslim mortgagor of both Muslim and non‑Muslim mort gagee of land in the prescribed area will be allotted land on the same scale as if there was no mortgage, on the express condition that this allotment will be subject to the payment of the mortgage money which may subsequently be determined." The argument was that the Chief Settlement Commissioner, under section 14 of the Act, can make Schemes only in respect of future allotments and not to effect the allotments which had already been made under the Rehabilitation Settlement Scheme. The argument is untenable. On the publication of a notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, the right, title and interest of any evacuee or persons claiming through him, in the lands so acquired, or extinguished with effect from the date of such publication and the land vests wholly in the Central Government free from all encumbrances. Such land, therefore, ceases to be evacuee property and it becomes a part of the com pensation pool for the purposes of granting compensation to displaced persons. The Punjab Rehabilitation Scheme was made by the Rehabilitation Commissioner under section 7 of Ordi nance XIX of 1948, and the West Pakistan Rehabilitation Settle ment Scheme 1956, was made by him in the exercise of his powers under section 6 (1) of the Rehabilitation Act of 1956. He could make Schemes only in respect of evacuee properties. The Rehabi litation Commissioner could not make any Scheme or add to or amend or alter that Scheme after the property ceased to be evacuee. It was for this reason that power was given to the Chief Settlement Commissioner to make Schemes for the allotment of the land in compensation pool. The evacuee land allotted to the mortgagors under paragraph 8 of the Rehabilitation Settlement Scheme ceased to be evacuee property, after the same was acquired under section 4 and it vested wholly in the Central Government for the purposes of compensation to the displaced persons. The Chief Settlement Commissioner was, therefore, competent to prepare a Scheme under section 14 in respect of such land. The: power which was once exercised by the Rehabilitation Com missioner is now exercisable by the Chief Settlement Commissioner who cannot only make a Scheme under section 14 but cant also pass any order under section 11. and to amend or vary the terms and conditions of any allotment which had been made under the Rehabilitation Laws.

8. There is another way of looking at the same question. The mortgagors were allotted the land under paragraph 8 with the express condition that it is subject to the payment of the mortgage money which may be determined. It means that the allotment to the mortgagor itself was provisional and it could become com plete only after the mortgagor had paid the mortgage amount. Since, however, no provision was made under the Punjab Rehabili tation Settlement Scheme 1952, or the West Pakistan Rehabilita tion Scheme 196, for the determination of the mortgage amount or its payment thereof, the allotment to the mortgagor remained only conditional. Until the condition was satisfied by the payment of the mortgage amount, the mortgagor could not be deemed to be an allottee for the purposes of acquiring quasi‑permanent right under the Rehabilitation Settlement Scheme, and for that reason he could not be permanently settled in the land under the Dis placed Persons (Land) Settlement Act. The mortgagor, however, could not make the payment of the mortgage amount unless it was determined. The basis for such determination after the land had been acquired under the Displaced Persons (Land) Settlement Act, could be fixed only by a Scheme made by the Chief Settle ment Commissioner under, section 14 of the Act. It is within the lawful authority of the Chief Settlement Commissioner to make a provision like para. 8‑A of the Scheme, and no valid exception can be taken to the exercise of this power. The argument of the learned counsel for the petitioner also is fallacious for another reason. The petitioner bases his case on paragraph 8‑A as was made by the Chief Settlement Commissioner on the 14th of January 1960. This was in the exercise of the powers vested in him under section 14 of the Act. If he could validly make paragraph 8‑A on the 14th of January 1960 there can be no valid objection to the exercise of the same power for the same purpose on the 14th of August 1964.

9. It was next contended that the petitioner had acquired a right in the land by virtue of the fact that it had been confirmed in his name as far back as 1953 and that paragraph 8‑A, as was substituted in 1964, impinged upon his rights and it was, therefore, beyond the power of the Chief Settlement Commissioner to pass any order in that behalf. The argument was that the mortgagors, who bad been allotted and confirmed the lands under paragraph 8 of Chapter II, Part I of the Rehabilitation Settlement Scheme, had acquired right in that land and the same could be taken away only by a legislative provision. To deal with this argument it is necessary to consider the basis on which the petitioner claims the right. The petitioner had abandoned land in India for which he submitted the claim in Pakistan. The allotment of the land in Pakistan is, of course, not in consideration of the land abandoned by a displaced person in India. If this had been the case, an allotment would have created a vested right. The fact of the matter, however, is that the allotment made to the displaced persons was gratis and under law it is a grant only. It was observed in Abdur Rashid v. Pakistan (P L D 1962 S C 42) as: "Nevertheless,. since the allotment is expressly stated to be a `grant' and such grants can be made by the grantor upon such terms and conditions as may be specified by a person duly authorised in that behalf, namely, the Rehabilitation Commis sioner, it would have been open to the Rehabilitation Commis sioner, to lay down, if he so ‑thought fit, as a condition of the grant that if the property is not transferred by sale, exchange, gift or will, it should devolve in a particular manner which may well be inconsistent with the personal law of the allottee or even the Muslim Law of succession * *." The allotment is thus only a grant, and .the grantee could enjoy the same subject to the terms and conditions under which it was made. As to what is the nature of the allotment of land made under the Displaced Persons (Land Settlement) Act, it came up for adjudication before 'the Full Bench in Umar Draz Ali v. Khurshid Ali (P L D 1960 Lah, 834) and Mr. Justice Muhammad Yaqub Ali held as:‑ "As to the validity of the provisions of paragraphs 46 and 46‑A and their application to cases in which inheritance opened out before the formulation of the Resettlement Scheme, it is clear that an allotment is a grant and no refugee has a vested right to obtain it. Under the law, the Government has power to make such provisions as it deems fit to rehabilitate refugees and to apply such rule of inheritance as it considers expedient for determining how much land may be allotted to the heirs of a deceased right‑holder. The argument that on the demise of the right‑holder his heirs, whether under custom or Personal Law, became vested with the estate and, therefore, were entitled to allotment of property in Pakistan in their own right and not as heirs has similarly no force." There thus remains no doubt as to the actual position of the allottees under the Rehabilitation Act and the Schemes made thereunder. Relying on the observations in Abdur Rashid v. Pakistan, viz. : "having regard to the rights expressly conferred upon by the Scheme itself, an allottee, in whose favour an allot ment has been confirmed acquires a right, which is in every sense of the term a real property in its true juristic concept an interest in the land and, therefore, succession to him was to be governed by the ordinary law of inheritance ", the learned counsel, however, argued that by the allotment a person did acquire some right in the real property. The observation has to be understood in the context in which it was made, and can indeed apply to a case of the same nature, and in similar circumstances. The observa tion relates to the scope and application of clause 14 of Chapter II, Part I of the Scheme whereby the allottees were given rights to transfer the allotted land by sale or exchange etc. No such power of alienation was, given to the persons who had been allotted land in consideration of their rights to equity of redemption in India. Clause 14 of Chapter II, Part I of the Scheme provides as:‑ "

14. The allottees concerned may transfer by sale, exchange gift, will, mortgage or other private contract their rights or interest in the land allotted to them under the Rehabilitation Settlement Scheme except where:‑ (a) The allottee concerned has not made full and final settle ment of any Government dues, including the Rehabilitation (b) the land held by the allottee concerned is the subject- matter of an appeal, revision or review before a Rehabilitation Authority; (c) the land has been allotted in lieu of right as mortgagor or mortgagee till such time as the allottee concerned has fulfilled the terms and conditions contemplated to be prescribed in regard to such cases; (d) the land has been allotted provisionally on the basis of a certificate issued by the Central Record Office in accordance with Paragraph 19, Chapter I, Part II of the Rehabilitation Settle ment Scheme. Provided further that if the allottee‑alienor is subsequently found to have obtained the allotment of land by fraud or by mis-representation the alienation will be deemed to be void. (2) Such alienation will only be entered in the cultivation column‑of the revenue records, the implication being that the land will continue to be evacuee property even after alienation."

10. It is thus clear that the allottee of the land in lieu of rights as mortgagor cannot alienate the property till such time as he fulfils the condition of allotment. The mortgagor is allotted the land under paragraph 8 subject to payment of the mortgage amount as may be determined. Paragraph 8‑A as added on the 14th of August provides the basis of mortgage amount, and unless it is so paid, the allotment remains conditional and the allottee acquires no right in the land. The allotment in favour of the mortgagors, therefore, remains to be a grant and it remains subject to such terms and conditions as may be specified by the Rehabili tation Commissioner.

11. With the completion of the operations under the Rehabi litation Settlement Scheme, another phase of legislation came into play. It became necessary to liquidate the evacuee property and to create a permanent interest in its allottees. The Displaced Persons (Land Settlement) Act (Act 47) of 1958, came into force on the 23rd of‑September 1958. The purpose of the Statute is to provide for the permanent settlement of Displaced Persons on land in order to compensate them for the losses suffered by them on account of ex‑appropriation by the Government of India of their rights in the property in India. In section 15 (3) it is provided that:‑ "(3) A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently or that land in such manner and payment of such fees as may be prescribed by the Central Government. Provided that no order of permanent settlement shall be passed in cases where‑ (a) the land held by the allottee concerned is the subject. matter of an appeal, revision or review before a Rehabilitation Authority; or (b) the land has been allotted in lieu of rights as a mortgagor or mortgagee and the allottee has not fulfilled the prescribed terms and conditions." A displaced person, therefore, can be given a permanent right in the land only if he is the allottee of the land either under the Scheme which is defined to mean as a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956, or that he has been allotted the land in pursuance of a Scheme prepared by the Chief Settlement Commis sioner under section

14. It is, however, clearly provided that no such rights can be conferred on a mortgagor or mortgagee unless he fulfils the prescribed terms and conditions. Once, a person is permanently settled under section 15, he becomes entitled under section 16 to hold and enjoy the right and title conferred on him and to transfer or elienate the same. By the permanent ‑settlement of the land in a person, it becomes vested in him and it ceases to be a grant. In this view of the matter, the allotment to the mortgagors is a pure and simple grant and is, therefore, subject to the terms and conditions as may be specified by the Settlement; Commissioner. He also cannot be permanently settled on the land unless he first of all fulfils the terms and conditions. So far as the mortgagors are concerned, they were allotted the land under para, graph 8 subject to an express condition that they have to pay the mortgage amount. There is no substance in the argument of the learned counsel that the petitioner‑mortgagors had vested rights in the land allotted to them and that being so, they could not be deprived of the same unless by a legislative provision.

12. The next question is as to what is the precise scope of para. 8‑A (as was added on the 14th of August 1964) of the Rehabilitation Settlement Scheme. The paragraph, in the absence of any provision providing for its retrospective operation, has to be prospective in application. It will not apply to the cases where the mortgagor‑allottee satisfied the condition of allotment by making the payment under the then existing law before para. 8‑A was added. In all other cases unless the mortgagors paid the amount in terms of para. 8‑A as was added on the 14th of August 1964, the allotment in their favour will remain conditional, and bar contemplated in paragraph 14 of the Scheme as to sale, exchange or gift etc., will operate against them, and they will also not be entitled to the acquisition of the proprietary rights.

13. The petition has no merit. It is accordingly dismissed. There shall, however, be no order as to costs. S. Q. Petition dismissed,