Rehabilitation Settlement Scheme

Petitioner as tenant under Temporary Cultivation Scheme claimed that such land belonging to Provincial Government and not being available with Notified Officer for allotment could not be allotted to respondent under Rehabilitation Settlement Scheme

Validity

Such land initially belonging to Central Government had been purchased by Provincial Government, when same was allotted to respondent in satisfaction of his pending units

Evacuee claim of respondent had not been challenged

Allotment of evacuee land made prior to 27-2-1965 was not liable to be cancelled in terms of para 4, Rehabilitation and Settlement Scheme under the directive of Chief Settlement Commissioner dated 27-2-1965

Rights of allottees of the land prior to 27-2-1965 were protected and conclusively determined.

Declaration Form submitted by executor under provisions of Land Reforms Regulation: 1972 was scrutinized by Deputy Land Commissioner and found the gift valid, but Land Commissioner declared the gift void on the basis of para. 7(1)(b), Expln.11 of Land Reforms Regulation, 1972 and said order passed by Land Commissioner was upheld up to Chairman, Federal Land Commission

Tribunals below had found the gift in favour of petitioners void on ground that parties were governed by custom before 1947 and land could only be inherited by male heirs and not by the petitioners who were females

Validity

Land Reforms Authorities had misconstrued paras. 46 & 46-A of Rehabilitation and Settlement Scheme which had clearly provided that case of inheritance of deceased right-holder would be governed by Shariat Law

Chairman. Federal Land Commission had simply countersigned the orders of his subordinates without applying his independent mind

Order passed by Federal Land Commissioner was not sustainable in eyes of law

High Court in exercise of Constitutional jurisdiction set aside the impugned orders and remanded case to be decided afresh in accordance with law after scrutiny of material available on record.

Notified Officer, under the provisions of para. 24 of Rehabilitation Supplementary Scheme No.2 read with para. 20 of Rehabilitation Settlement Scheme; had cancelled the allotment made in favour of the predecessor-in-interest of the respondents and confirmed the temporary allotment made earlier in favour of the appellant

Such order passed by Notified Officer was reversed by the High Court

Validity

Order passed by the Notified Officer could not have been reversed by High Court in exercise of Constitutional jurisdiction

Notified Officer had rightly confirmed the temporary allotment

Order passed by the Notified Officer had no jurisdictional defect or any other legal flaw which could make the order unlawful or illegal

Order passed by High Court was set aside and that of the Notified Officer was restored by the Supreme Court.

Plea was that as the property was purchased from income of limited estate, the widow was not the exclusive owner of the same

Validity

Where the land in question was allotted/purchased by the widow against mortgagee rights of her deceased husband and the amount for such allotment/purchase was made out of income received from the limited estate, widow would not become trustee for the reversioners and she would acquire the land as her own exclusive property r, r not forming part of the estate.

Dismissal of suit on both legal issues of bar of limitation and bar of jurisdiction was perfectly in accordance with evidence on record calling for no interference in exercise of revisional jurisdiction.

Respondent allottee's relationship holding allotment in particular area stood established from the pedigree table produced in previous petition filed by the petitioner himself as also from the pedigree table annexed with the present petition wherein he was shown to be allottee's brother's son

Respondent whether to be treated as a sitting allottee under para. 7(5), Rehabilitation Settlement Scheme.

Chief Settlement Commissioner had power to direct exclusion of land from allotment where same was required for a public purpose

While so excluding land in question, by his directive dated 27-2-1965, Chief Settlement Commissioner was acting within his lawful authority

Allotments finalized before 27-2-1965 would thus hold good

Allotments made after 27-2-1965 were in violation of prohibitory order of Chief Settlement Commissioner and could not thus be sustained.

Benefit of being a temporary allottee could not be extended to a person on the basis of allotment of his/her brother and father.

Leave to appeal was granted to consider the following contentions:

Allottee who had admittedly obtained allotment of land for more than 2000 P.I.Us. in different villages in adjustment of his verified claim, was not entitled to allotment of land against his mortgage rights at the relevant time under para. 7 of the Scheme

Land allotted against mortgagee rights was rightly cancelled by Settlement Commissioner exercising powers of Chief Settlement Commissioner.

Para. 15-Provisions of para.15, Rehabilitation Settlement Scheme would apply where there was no Hissadari Qabza and it did not contemplate prior notice to land owners

Passing an order, in writing by Rehabilitation Authority, however, was an essential requirement, as also sending copy thereof, through registered post to other recorded co-sharers and arranging publication of the same in a befitting manner

Prior notice before effecting 'partition to co-sharers was thus not the requirement of Rehabilitation Settlement Scheme

Partition of Khata jointly owned by local and non-Muslim evacuee, thus, could not be set aside because of non-service of notice on co-sharers, before partition was effected

Partition based on Hissadari Qabza was not in contradiction of any law

Partition of Khata was thus correctly effected and same could not be agitated after lapse of years.

Rehabilitation Commissioner's order, whereby allotments, in specified areas were cancelled by a General order and direction as issued to make allotments afresh, keeping in view guidelines suggested by him in his order, was operative and effective

High Court giving effect to that order in all cases except the one wherein order had successfully been challenged in Constitutional jurisdiction of High Court.

Constitution of Pakistan, 1973). Art 185(3) - Leave to appeal granted to consider whetherer, inter alia, case of petitioners was fully covered by para. 7 of Chap. 1, Part 11 of Rehabilitation and Settlement Scheme and that High Court did not advert to this legal aspect.

Entitlement to inherit on death of propositus viz. grandfather-Contention that predeceased son having died in 1950, Family Laws Ordinance promulgated in 1961, could not by virtue of S.4 thereof, be of assistance to his children

Leave to appeal granted to examine the questions whether the property, being evacuee, petitioners would not be entitled to the relief claimed, by virtue of para.46 of Rehabilitation Scheme and whether Family Laws Ordinance, 1961 read with other connected laws would not be given such effect so as to entitle petitioners to inherit the estate left by their grandfather; question of retrospectivity of Ordinance, 1961 would also need re-examination.

Total area and classification of land left by claimant in India, has to be ascertained on basis of entries of special Jamabandi

Produce Index Units of such land could be calculated on basis of `Kacha Bighas' and `Pacca Bighas'-Settlement Commissioner is calculating Produce Index Units of land left by claimant in India on basis of `Kacha Bighas', had not overstepped his jurisdiction as in so doing there was no question of interpreting special Jamabandi, but matter was merely of determination of Produce Index Units for land verified by Central Record Room.

Petitioners being Jammu and Kashmir refugees and holding valid permits entitling them to get evacuee land for maintenance, were allotted land in consolidation in lieu of land which they held prior to consolidation of holdings

Additional Settlement Commissioner who allotted land to petitioners, recorded finding that land allotted to petitioners as Jammu and Kashmir refugees, having been excluded from Scheme, same could not be confirmed in the name of respondent

Order of Settlement Commissioner cancelling allotment of petitioners without taking into consideration both points, considered by Additional Settlement Commissioner viz. existence of valid permits in name of petitioners/allottees and provisions of law according to which land allotted to Jammu and Kashmir refugees excluded from Scheme, held, could not be sustained.

Claimant, predecessor of appellants, dying after filing and verification of his claim but before securing any actual allotment

Normal rule of succession laid down by Shariat Law, held, was to be applied to such case in its entirety without any deviation

Deviations provided for in paras. 46 & 46-A of the Scheme, namely, the inheritance of the sons of predeceased son or daughter, would not, therefore, apply

Rehabilitation Authorities, till confirmation of land and payment of Rehabilitation fee, would be competent to sanction mutations of inheritance but they would follow Shariat law without deviation where death had taken place after filing the claim form

Decision of High Court being well founded and having followed the law laid down by Supreme Court, appeal found to be without any merit and dismissed.

Civil Court, held, was not divested of power to deal with succession of deceased-transferee relating to land obtained by him under Settlement Laws.

Evidence on record showing that the land in dispute had been permanently dedicated for a charitable purpose to a Takia in India and the dedicator and his progeny had assumed management of said property on behalf of Takia but they were not owners thereof

Chief Administrator, Auqaf, had rightly and validly assumed the administration, control, management and maintenance of property allotted to predecessor of appellants in lieu of Waqf land in question left in India

Sale of a part of such property would be void and ineffective.

[Words and phrases].

Area of petitioners' entitlement reduced by Additional Settlement Commissioner/ notified officer by imposing a cut of 4/5th without taking into consideration provisions of para. 37(2) of Rehabilitation Settlement Scheme-Additional Settlement Commissioner proceeding on discrepant material and leaving' matters undecided without visible effort on his part to objectively ascertaining facts and applying his conscious mind to decide case in light of correct law

Counsel appearing in case agreeing that orders passed by Additional Settlement Commissioner left a lot to be desired

Case remanded for decision afresh in accordance with law.

Allottee-alienor, if subsequently found to have obtained allotment of land by fraud or misrepresentation, alienation would be deemed to be void.

Such contention neither raised before High Court though petitioner had enough opportunity nor material placed to prove that said authority was incorrect-Question being of fact, Supreme Court declined to interfere at leave granting stage

Leave to appeal refused.

Part II, para. 16, Introduction, para. 6-Rehabilitation Settlement Scheme, Part I, paras. 4(e) & 23-Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 11(2)-Memorandum of Chief Settlement Commissioner dated 17th May, 1960- Classification and computation of produce index units of land described as Chahi Jhalari-Classification not found in official booklet-Appellant having obtained excess allotment on account of wrong application of Scheme-Issuance of memorandum by Chief Settlement Commissioner subsequently-Right of appellant over allotment of excess land-Nature - Principle enunciated in memorandum of Chief Settlement Commissioner merely a reiteration of principle stated in para. 6(a) of introduction to Scheme-Instructions could be issued consistent with Scheme with regard to details which had not been so far catered for in existing instructions with a view to securing proper implementation of Scheme-

Being valid and in defeasible entitlement, held, could not be interfered with at belated stage of leave granting be-Fore Supreme Court.

Impugned order not suffering from any legal defect warranting interference, leave to appeal refused.

Governed under paras. 46 & 46-A of Scheme.

Temporary allotment of land cancelled by Border Allotment Committee on wrong assumption of fact that allottee had obtained double allotment

Temporary allotment ordered to be restored to such allottee by High Court in 1975 under constitutional jurisdiction

Order of High Court, having attained finality as regards status and validity of such temporary allotment, therefore, could not be taken exception to in new round of litigation under constitutional jurisdiction

Petition being without merits, dismissed in circumstances.

Invalid allotment- -Allottee neither in possession of disputed property at time of allotment, nor put in possession of same immediately after allotment, conditions laid down in para. 12-Rehabilitation Settlement Scheme remaining unfulfilled, allotment of such property could not be held as valid allotment.

Paras. 46 & 46-A-Custom (Ambala District)-Question whether widow was "maintenance bolder" or "limited owner of customary life estate"-Relevant Jamabandi entries to be followed for purpose of settlement under scheme-Appellant failing to show any factual basis for plea regarding maintenance-Question as to what was custom amongst Rajputs (tribe of parties) in Ambala District, requiring further enquiry not embarked at appellate stage by Supreme Court.-[Custom (Punjab);

Art. 185 Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 10 read with Rehabilitation Settlement Scheme, Part II, paras. 64 & 68-Allotment of land-Area proposed to be allotted to one party-Held, cannot be proposed in favour of another unless earlier proposal is withdrawn for some reason-View of High Court that in presence of a subsisting order proposing allotment of land in dispute in favour of respondent, allotment of some land in favour of appellant was not in accordance' with law-Held, unexceptionable.

Leave to appeal granted to determine true scope and intendment of para.68 of Scheme being a question of general public importance.

Paras. 3, 11 & 23 -Allotment of land situated in close proximity of town,-Uniform treatment given to all claimants by Rehabilitation authorities with a view to accommodate as many claimants as possible upon valuable land in dispute-Held, does not suffer from any illegality-Application of principle of first come first served wholly irrelevant in such case.

Para. 11-Rateable distribution of land at discretion of Settlement Commissioner to accommodate maximum deserving candidate-Authority concerned to take all relevant facts into consideration Provision of para. 11 of Scheme construed and applied rightly Order passed, held, not suffering from any error of law.

Paras. 6 & 24, second proviso read with Rehabilitation Settlement Scheme, para. 7(5) - Word "allottee" and requirements of second proviso to para. 24, Supplementary Scheme - Held, confined to allotment of urban land to actual allottee-Para. 7(5) of Rehabilitation Settlement Scheme applies to claim of deceased right-holder in respect of rural land but cannot be applied to an allotment made under Supplementary Scheme No. Ii-View of High Court that temporary allotment of urban land in favour of appellant could not' notionally be held to mean for benefit of his minor brothers and sisters upheld.

Para. 4 (a) (ix) read with Constitution of Pakistan (1973), Art. 185 (3)-Leave to appeal-Area allotted to Jammu & Kashmir refugees for their maintenance, held, cannot be allotted to other displaced persons in lieu of their verified claims without notice to original Jammu & Kashmir allottee and without cancelling such allotment.

Art. 185 (3)-Rehabilitation and Settlement Scheme, para. 11-Leave to appeal granted to consider question whether circumstances of case were such wherein it could be held that condition precedent for invoking provisions of para. 11 of Scheme in relation to fixing maximum area for allotment of land to various claimants were met-Parties given liberty to add further documents if any and interim order of status quo already passed ordered to continue.

Arts. 185(3) & 199 read with Displaced Persons (Land Settlement) Act (XLVI1 of 1958) and Rehabilitation Settlement Scheme (Part II), para. 20

Transfer of land-Safeguard of interest of refugees pending verification of their claims-Leave to appeal-Granted to consider whether High Court, in setting aside order of Additional Settlement Commissioner, ignored provision of para. 20 of Settlement Scheme (Part II).

Ss. 2 & 3 read with Rehabilitation Settlement Scheme "Pending proceedings"-Proposal for allotment of land made to allottee/available duly accepted by him before lst July, 1974, held, a pending , proceeding under Rehabilitation and Settlement Scheme which had to be decided by competent .authority in accordance with law under S. 2 of Act - Constitution of Pakistan (1973), Art. 199.

Se. 10 & 11 and Rehabilitation Settlement Scheme, para. 31Petitioners vendees from bogus/unauthorised allottee whose allotment cancelled and land re-allotted to entitled allottee;-Order of cancellation spearing order and passed by officer duly authorised to do so-No exception, held, can be taken to such order.

S. 13, Rehabilitation Settlement Scheme, para. 67 and Constitution of Pakistan (1973), Art. 185(3)-Mutation attested and question of inheritance of deceased refugee right-holder decided by competent Rehabilitation Authority-Such matter, held, could not be challenged before Revenue Court and also of no legal effect.

S. 107 read with Rehabilitation and Settlement Scheme, para. 8Remand-Inquiry-Contents of orders impugned before High Court being kept in view, question as to whether appellant was or was not a sitting allottee could be resolved only through a proper inquiry and by affording opportunity of hearing to both parties

Case not one where assertion regarding appellant being a sitting allottee either undisputed or substantiated by admitted facts-Controversy, held, could best be resolved in accordance with procedure adopted by High Court.[Remand of case].

Art. 98 read with Rehabilitation Settlement Scheme, Part 1, Chapter 11, para. 4-Chief Settlement Commissioner directing allotments already made to petitioners not to be reviewed and to apply procedure adopted for claimants of non-agreed area under Scrutiny of Claims (Evacuee Property) Regulation (M,L.R.) No. 89-Petitioners producing an uncertified copy of a judgment in a writ petition wherein same question considered and allotment in favour of petitioner restored-Suo motu scrutiny by Central Record Office giving rise to Robkar for cancellation of allotment thereon and order of Additional Settlement Commissioner being unlawful, set aside, in circum= stances.

Settlement fee not paid-Allotted property still in compensation pool-Transactions relating to such property. held, void and to be ignored-Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 6.

Ss. 2(3), 15 & 16 read with Rehabilitation Settlement Scheme, para. 29-Property used as agricultural land in 1946-Held, to be treated "land" as defined in S. 2(3)-Allotment of such land as agricultural land valid in law and not suffering from any disqualifications under S. 15-Persons in whose favour allotment of such land confirmed, held; owners thereof for all intents and purposes and alienees under such allottees get full rights in property in dispute.

S. 59 (before amendment)-Occupancy tenancy-Occupancy tenant dying issueless and succession devolving upon his widow under S. 59(1) (b) of Act with extremely restricted right of alienation for a term not exceeding one year-Held, such widow succeeded to suit land on usual life tenure as a conduit pipe to pass it on to heirs of her deceased husband on termination of her limited interest.

-Para. 20-Allotment of land cancelled without notice to respondents and their objection to rejection of their claim pending with Central Record Office-Such land, held, was not available for transfer and 75 % of such land should have been reserved instead of allotting to petitioners-Order of cancellation passed by Rehabilitation Commissioner, held further, unexceptionable in circumstances.

S. 7 and Pakistan Rehabilitation Act (II of 1956), S. 6 read with Rehabilitation Settlement Scheme, 1956, preamble, proviso-Allotment of evacuee property-No distinction existed between refugees and locals-Allotment of evacuee land to local expiring in 1957Held, kept alive-Such land not available for transfer to any other person.

Cancellation of allotment-.Land allotted to Jammu & Kashmir refugees on temporary basis-To remain excluded from Scheme and not to be allotted to persons not displaced from Jammu & Kashmir State against their verified claims.

Part I, para. 23 & Part II, para- 7-Person neither an allowance holder nor a temporary allottee in estate in question nor his claim pending in estate on prescribed date-Held, not entitled to any allotment in chak in dispute.