1975 PLP 524 (SCMR)

ANWARUL HAQ, J.‑.The appellant, who is a displaced person from Betala in the district of Gurdaspur, now in India, submitted a claim for the grant of land to him in village Adamke C heema in the district of Sialkot on the basis that he held mortgagee rights for a period of twenty years commencing from 1945 in respect of certain lands in the district of Gurdaspur. His claim was verified and he was granted an area of 48 kanals and 13 marlas on a quasi‑permanent basis. In the year 1.957, however, one Muhammad Nawaz Khan filed a complaint before the Officer, on Special Duty, Central Record Room, Lahore, alleging that the appellant was not entitled to the grant above mentioned. On the basis of this complaint, without issuing any show‑cause notice to the appellant, his claim form and Fard‑e‑Haqiat were recalled by the Central Record Room. The appellant thereupon filed an appeal before the Settlement and Rehabilitation Commissioner and the latter on the 27th of December, 1959, held that the lands were to continue to be held by the appellant till the end of the year 1965, when the period of the mortgage was to expire. Thereafter, on the 18th of May, 1962, the Government in supersession of its previous policy decided that in the case of lands held by mortgagees in the rural area under paragraph 7, Chapter II, Part I of the West Pakistan Rehabilitation Settlement Scheme "the mortgagee shall have the option to purchase the land held by him". This option shall be exercised and conveyed in writing to the Deputy Commissioner (Deputy Settlement Commissioner, Land) of the district concerned by the 31st of August, 1962 (vide Memorandum No. 2195 62/3798‑8 (L), dated the 18th of May 1962). Taking advantage of this change of policy‑ the appellant on the 4th of August 1962 exercised his option and conveyed the same in writing to the Deputy Commissioner, Sialkot. The value payable by him was then assessed and he deposited the first installment on the 29th of December, 1962, and claims that he had thereafter deposited another seven installments. But in 1964 the Tehsildar of Daska declined to implement the policy. The petitioner moved the Rehabilitation Authorities, the Chief Settlement Commissioner and higher authorities right up to the Rehabilitation Minister but ultimately he was informed on the 27th of July 1965 that the Central Government could not interfere in the matter. Subsequently, upon his enquiries he came to learn that on the 6th of November 1963, the Chief Settlement Commissioner had, without giving him any opportunity of being heard, decided that claims of the mortgagees in respect of areas held by them as Rehn Meadi were to be ignored. This decision had been made on a reference of his case by the Deputy Settlement Commissioner. Being aggrieved by this ex parte decision the appellant invoked the writ jurisdiction of the High Court, but a learned Single Judge in Chambers dismissed the same in limine holding that the allotment of land to the appellant in lieu of his mortgagee rights under paragraph 7, Chapter 11 of Part I of the Rehabilitation Settlement Scheme being in the nature of a grant it could be withdrawn at any time and the appellant had no vested right to claim its transfer. This decision was also upheld by a Letters Patent Bench. Leave to appeal was granted in this case to consider the contention that the High Court had failed to take into account that under the provision of Memorandum No. 2195‑62/3798‑R (L), dated the 18th of May 1962, the Central Government had given to the mortgagees the right to purchase the land held by them under quasi permanent allotment; and that even though the quasi permanent allotment was, under Memorandum No. 3675‑R (L) dated the 20th of July 1949, in the nature of a grant and such Muslim mortgagees were not eligible for the benefits under the provisional permanent Settlement Scheme a right was conferred on them by the subsequent policy decision of the 18th of May 1962. In order to fully appreciate the contentions raised on behalf of the appellant, it is necessary to examine the various decisions and instructions, issued from time to time, on the question of the allotment of land to Muslim mortgagees of land abandoned in India. It may be stated that the case before us is of a Muslim mortgagee who had obtained land on mortgage for a fixed period of twenty years from Muslim mortgagors, who have also migrated to Pakistan. Paragraph 7 of Chapter II of Part I of the Rehabilitation Settlement Scheme, framed, under section 6 (1) of the Pakistan Rehabilitation Act, 1956, provided that:‑ "

7. A Muslim mortgagee of both Muslim and non‑Muslim mortgagor of land is the prescribed area will not be eligible for an allotment of land under the Scheme but he may be allotted land on such terms and conditions as the Rehabilitation Commissioner, West Pakistan may prescribe according to the area held by him under the mortgage subject to a maximum of 1003 produce index units. In case any land is allotted to such a mortgagee on the basis of an independent right under the Scheme the land so allotted shall be taken into account for the maximum limit specified above. Similarly a mortgagee of occupancy or other specified rights will also be treated as an ordinary mortgagee for the purposes of the Rehabilitation Settlement Scheme." It will be seen that the Scheme itself treats Muslim mortgagees of both Muslim and non‑Muslim mortgagors of land as being ineligible for allotment of land under the Scheme, but leaves it to the Rehabilitation Commissioner to make allotments in their favour on such terms and conditions as he may prescribe. In a memorandum issued on the 20th of July 1949, it was laid down that Muslim mortgagees of Muslim mortgagors in the prescribed territory would not be eligible for benefits under the provisional permanent Scheme, except that they may be given a grant of land according to the area held by them under the mortgage subject to a maximum of 121 acres. This allotment was clearly to be in the nature of a temporary allotment, which could be adjusted against the mortgagee's claim for permanent allotment under the other provisions of the Scheme. Fresh instructions were then issued on the 9th of August 1951 specially declaring that mortgagees, in respect of areas held by them by way of Rehn Meadi should also be treated as ordinary mortgagees for the purposes of Rehabilitation Settlement according to the instructions contained in the Punjab Government circular memorandum of the 20th of July 1949. From this memorandum, it appears that, according to the Punjab Government, the earlier instructions issued on the 20th of July 1949 did not apply to persons holding mortgages for fixed periods, as is the case with the present appellant. However, under the fresh instructions mortgagees of the category of the appellant became eligible for allotment of land. This position underwent a change with the issuance of Memorandum No. 603‑R (L) dated the 25th of January 1952, in which it was laid down that "after re‑consideration the Rehabilitation Commissioner (Land) has decided that mortgages, in respect of areas held by them as Rehn Meadi should be ignored altogether in the Rehabilitation Settlement Scheme. The orders conveyed in Punjab Government Memorandum No. 6367‑R (L) dated the 9th of August 1951, should, therefore, be considered as cancelled." the contents of this memorandum were incorporated as paragraph 51 in Part II of the Rehabilitation Settlement Scheme. These were the instructions In force when the learned Settlement and Rehabilitation Commissioner, West Pakistan, passed his order dated the 27th of December 1959 allowing the appellant to keep the land in dispute for twenty years, i. e., until 1965, in accordance with the terms of his mortgage. This Officer made it clear that after the expiry of the period of twenty years the appellant would have no right over this land. On the 28th of December 1959, further instructions were issued on the' subject of allotment of land against mortgagee rights under paragraph 7 oil Chapter II of Part I of the Scheme. It was laid down that the allotments A held by the mortgagees of Muslim mortgagors were to be withdrawn and such mortgagees were to be transplanted on the land held by the Muslim mortgagors, whereas the mortgagees of non‑Muslim mortgagors were to be paid the amount of mortgage money from the compensation pool. The effect of these fresh instructions was that even mortgagees, other than those holding Rehn Mead, were to be deprived of the allotments which had been previously made in their favour, and they were only to be given a lion oar the lands held by their Muslim mortgagors. If, therefore, the appellant had not already obtained an order, in appeal, from the learned settlement Commissioner on the 27th of December 1959, for the retention of the disputed land until, 1965, he would have been hit by the general instructions contained in the memorandum of the 28th of December 1959. Fresh instructions were then issued on the 11th of April 1962, directing that the allotments still held by the Muslim mortgagees may not disturbed until further orders, as the question of the disposal of the land to be withdrawn from these mortgagees was under re‑examination. These instructions read with the instructions embodied in the previous memoranda, particularly those embodied to paragraph 5 of Part II of the Rehabilitation Settlement Scheme, leave no doubt that they were attended to deal with mortgages other than those which fell under the category of Rehn Meadi. This particular category of mortgage had been specifically excluded from the purview of the benefits of the Rehabilitation Settlement Scheme by paragraph 51 of the Scheme, which was based on the memorandum of the 5th of January 1952. The relevant memorandum as well as paragraph 51 have not been withdrawn so far. The final instructions on the subject are contained in Memorandum No. 2195‑62/3798‑R (L) dated the 18th of May 1962, issued by the Chief Settlement and Rehabilitation Commissioner, West Pakistan. It contemp lates that in partial supersession of the terms and conditions prescribed in the memoranda dated the 28th of December 1959 and the 11th of April 1962, the mortgagees would be given the option to purchase the land held by them under paragraph 7, Chapter II of Part I of the West Pakistan Rehabilitation Settlement Scheme. This memorandum also contemplates that this concession shall be extended only to such of the mortgagees who had not yet surrendered the land held by them, nor had the land been withdrawn from them before the 11th of April 1962. A p4:rusal of the terms of this memorandum leaves no doubt in our mind that it catered for only those cases which had been previously dealt with in the two memoranda referred to therein, namely, those issued on the 28th of C December 1959 and the 11th of April 1962. We have already expressed the view that these two memoranda did not apply to Behn Meadi, which category had teen specifically dealt with in paragraph 51 of Part It of the Scheme, which provision had remained intact in spite of the issuance of subsequent instructions regarding other forms .of mortgage. On this view of the matter, the concession contemplated by this memorandum of the 18th of May 1962 was not available to the appellant. Relying on the authority of Abdul Hafiz v. Rehabilitation Commissioner (P L D 1966 S C 483) and paragraph 23 of Part I of the Scheme, it was contended by the learned counsel for the appellant that the Rehabilitation Commissioner had the power to modify or cancel his previous instructions, and accordingly the latest memorandum of the 18th of May 1962 should be construed as having superseded paragraph 51 of Part II of the Scheme. The argument is misconceived, for the reason that the memorandum of the 18th of May 1962 does not at all refer to the memorandum of the 25th of January 1952 by which the concession of allotment of land was specifically withdrawn from mortgagees holding Rehn Meadt, and paragraph 51 was embodied in Part II of the Scheme accordingly. There is no doubt that the Rehabilitation Commissioner could modify his previous instructions, as he has in act done so in regard to mortgagee rights, bat the latest memorandum does not deal with the category of the appellant at all, with the result that the previous instructions issued on 25‑1‑52 remained unchanged. It was next contended by Mr. Amjad Khan that as the appellant was holding the land on the 11th of April 1962, as a mortgagee he would fall within the ambit of the memorandum dated the 18th of May 1962. This argument is again untenable for the reason that the land was being held by the appellant not in terms of the general instructions embodied in the previous memoranda, but under a specific order passed in his individual case on the 27th of December 1959, and therefore, his tenure would be governed by the terms of this order, and not by any general instruction. The benefit conferred by the memorandum of the 18th of May 1962 was of a general nature, available to those whose cases had been previously dealt with in the instructions issued by the Rehabilitation Commissioner on the 28th of December 1959 and the 11th of April 1962, which instructions did not apply to the appellant. On a thorough consideration of all the instructions issued by the Rehabilitation Commissioner from time to time in terms of the power given to him under paragraph 7 of Chapter II of Part I of the Scheme, we are satisfied that the appellant had not acquired any right to purchase the land in dispute in terms of the memorandum of the 18th of May 1962. Accordingly, no justification is made out for our interference in the matter. The appeal, therefore, fails and is hereby dismissed. As, however, no one has appeared to contest the appeal, we make no order as to costs. Appeal dismissed