1992 PLP 827 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑The three petitions for leave to appeal have been filed against the consolidated judgment of the Lahore High Court dated 22‑12‑1980 whereby the Constitutional petitions filed by the petitioners were dismissed.

2. The petitioners are refugees from the Jammu and Kashmir. They were settled on agricultural land in Pindigheb District Attock (Campbellpur) in the year 1953 or near about. The land so allotted to them has been held to be urban agricultural land. On the enforcement of Supplementary Scheme No.2 the land held by them was allotted against the verified urban claims of Muhammad Akbar Ali Khan and Abu Ahmad Khan in the year 1960. The Settlement Authorities cancelled their allotment in June, 1962 restoring that of the petitioners. The allottees Akbar Khan and Abu Ahmad Khan challenged the cancellation of their allotment. In the year 1970 the land in the allotment of the petitioners was proposed to Mst. Raziqa Khatoon and Hasan Muhammad and ultimately confirmed in their favour in December, 1976. In the meantime the petitioners. had paid in cash the price of the land to the Federal Government. In this background of competing interests, the petitioners' case in the High Court was that the land allotted to them was not in fact urban agricultural land but rural agricultural land. Even if it were urban agricultural land the allotment to them was protected under para. 4‑A of the Rehabilitation Settlement Scheme which should be read into Supplementary Scheme No.2 on the strength of its para. No.6. It was also contended that as on the date the evacuee laws were repealed the land had not been confirmed to the respondents it could be treated as available land under section 3(2) of Act, XIV of 1975. They having paid the price had become the owner of the land.

3. The learned Judge of the High Court held as a fact that the land allotted to the petitioners was urban agricultural land and not rural agricultural land. It was also held that the land allotted to them was not available property for the purposes of Act XIV of 1975 so as to entitle them to its purchase. It was also held that their allotment was not protected allotment in terms of para. 4‑A of the Rehabilitation Settlement Scheme which was found inapplicable to urban agricultural land. Hence their petitions were dismissed.

4. The learned counsel for the petitioners has reiterated all his submissions taken note of and decided by the learned Judge of the High Court. The findings of fact have not, however, been seriously pressed.

5. The Rehabilitation Settlement Scheme which dealt with rural agricultural land excluded by para. 4‑A, clause (ix) "land allotted on temporary basis of Jammu and Kashmir refugees" from settlement. Supplementary Scheme No.2 which deals with all agricultural land, rural as well as urban, provided for its allotment to claimants on the basis of claims verified in Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956. Its para. 5 contained the categories of land excluded from the Scheme. It did not exclude the land allotted to Jammu and Kashmir refugees. Para. 6, however, provided that "unless specifically provided to the contrary in this scheme the provisions of the West Pakistan Rehabilitation Settlement Scheme shall apply mutatis mutandis to all allotments made under the provisions of this scheme". The learned counsel suggests that in spite of there being a separate list of excluded category, the list as contained in para. 4‑A, should also be held incorporated into this scheme. This is an untenable proposition. There is a specific provision made in Supplementary Scheme No.2 and to that extent a different provision made in para. 4‑A, of the Rehabilitation Settlement Scheme shall stand superseded on the strength of the very opening words of para. 6, namely, "unless specifically provided to the contrary in this Scheme". Besides, a reference to para. 4‑A of Rehabilitation Settlement Scheme will make it clear that only rural evacuee agricultural land in six border districts could be reserved and utilized for temporary allotment to Jammu and Kashmir Refugees and it was such land which stood excluded from settlement. It is clear, therefore, that urban agricultural land could not be allotted by way of maintenance to Jammu and Kashmir Refugees and if so allotted it could not remain protected or excluded from Settlement Scheme No. 2.

6. The question‑ whether at the time of repeal of the Evacuee Laws by Act XIV of 1975 the land in the temporary allotment of the petitioners could be said to be available has been examined by the learned Judge in the High Court with reference to the, proceedings taken and the pendency of the litigation over it. A conclusion has been drawn that it could not be treated as available property. This finding is not shown to be incorrect. Hence no entitlement was created in favour of the petitioners by the repeal of the Evacuee Laws so as to entitle them under section 3(2) to purchase it.

7. We find no merit in these petitions and the leave to appeal a refused. AA./A‑874/S?????????????????????????????????????????????????????????????????????????? Leave refused.