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Writ Petition No. 802/R of 1965, decided on 4th April 1966.

Ss. 4, 11 & 14 read with Punjab Rehabilitation Settlement Scheme, 1952, Chap. II, Part I, para. 8‑Evacuee land allotted to mort gagors under para. 8 of Scheme‑Ceased to be evacuee property after. same was acquired under S. 4 and vested wholly in Central Government‑Chief Settlement Commissioner competent to prepare a Scheme under S. 14 in respect of such land and pass any order under S. 11 to amend or vary terms and conditions of allotment made under Rehabilitation Laws ‑ Pakistan Rehabilitation Ordinance (XIX of 1948), S. 7‑Pakistan Rehabilitation Act (XLII of 1956), S. 6 (1)‑West Pakistan Rehabilitation Settlement Scheme, 1956, Chap. II, Part I, para. 8.

--------Ss. 4 & 14 read wish Punjab Rehabilitation Settlement Scheme, 1952, Chap. II, Part I, paras. 8 & 8‑A‑Allotment of land to mort gagor displaced person under para. 8 of Scheme subject to payment of mortgage money "which may subsequently be determined"‑Mort gage money, however, remaining undetermined until land acquired under S. 4‑Basis for such determination of mortgage money can be fixed only by a scheme made by Chief Settlement Commissioner under S. 14‑Making of a provision like para. 8‑A of Rehabilitation Settlement Scheme within lawful authority of Chief Settlement Com missioner‑No valid exception can be taken to exercise of that power‑‑Pakistan Rehabilitation Ordinance (XIX of 1948), S. 7 Pakistan Rehabilitation Act (XL1I of 1958), S. 6 (1) read with West Pakistan Rehabilitation Settlement Scheme, 1956, Chap. II, Part I, paras. 8 & 8‑A.

Ss. 14, 15 & 16 read with West Pakistan Rehabilitation Settlement Scheme, Chap. Il, Part I, paras. 8, 8‑A & 14‑Allotment of evacuee land under Rehabilitation Settlement Scheme‑Not in consideration of land abandoned by a displaced person in India but was gratis and only a "grant"‑Land allotted to mortgagor displaced person under para. 8 of Scheme subject to express condition that he will pay mort gage money‑Does not vest in such allottee unless he pays mortgage money in terms of para. 8‑A of Scheme.

Where it was argued that the mortgagors, who had been allotted and confirmed 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 legisla tive provision.

Held, that 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.

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 Commissioner under section 14 of the Displaced Persons (Land Settlement) Act, 1958. It is, however, clearly provided that no such rights can be conferred on a mortgagor or a 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 alienate 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 paragraph 8 subject to an express condition that they have to pay the mortgage amount. There is. no substance in the argument 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.

The allottee of the land in lieu of rights as mortgagor cannot alienate the property till such time as he fulfils the conditions 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 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 Rehabilitation Commissioner.

Abdur Rashid v. Pakistan P L D 1962 S C 42 and Umar Draz Ali v. Khurshid Ali P L D 1960 Lah. 834 ref.

Chap. II, Part I, paras. 8‑A & 14‑Scope of para. 8‑A‑Provision prospective in application‑Does not apply to cases where mortgagor allottee has satisfied condition of allotment by making payment under the then existing law‑ Allottee not making payment in terms of para. 8‑A‑Barred under para. 14 to make sale, exchange or gift etc.‑Such allottee not entitled to acquire proprietary rights in allotted land.

A. G. Chaudhry for Petitioner.

Major Ishaq Muhammad Khan for Respondent.

Dates of hearing: 22nd, 23rd, 24th and 26th July 1965.

The petitioner filed a claim for the land which he abandoned in India. On the receipt of the special Jamabandi, it was found that he owned two plots of land in village Pir Ahmad Khan Wala (i) measuring 162 kanals and (ii) measuring 300 kanals and 5 marlas. The land was shown to be under a mortgage. The mortgage amount was not specified. In consideration of the land so abandoned, the petitioner was proposed and confirmed 5542 units in villages Shahpur and Kanduwala, Tehsil Depalpur, Dis trict Montgomery. This allotment was made under paragraph 8 of Chapter II, Part I of the Punjab Rehabilitation Settlement Scheme of 1952, which provided:‑

"A Muslim mortgagor of both Muslim and non‑Muslim mortgagee of land in the prescribed area will be allotted the 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."

On the 14th of January 1960, paragraph 8‑A in Chapter II of Part I of the Scheme was added. According to this para., the mortgagors were to submit declarations as to the mortgage amount due from them to the Officer on Special Duty, Central Record Office, who on receipt of the declarations was to determine' with the help of the Special Jamabandi or the relevant mutations received from India the amount of mortgage money as it existed on the 14th day of August 1947. Where, however, if necessary material was not available in the Central Record Office, the amount could be determined on the basis of such documentary or other dependable evidence as might have been led during the course of the enquiry. The orders of the Officer on Special Duty passed in such cases were to be final. On the determination of the mortgage money, the Officer on Special Duty, Central Record Office, was to convey his decision to the Deputy Settlement and Rehabilitation Commissioner in whose jurisdiction the mortgagor held allotments.

After the determination of the mortgage money, the mort gagor was to make payment of the amount in lump sum or in four half‑yearly instalments along with revenue of each harvest, and, in the alternative, to accept a cut in the area allotted to the extent of the entire or part of the unpaid amount at the rate of Rs. 20.00 per produce index unit. Within one month of the deter mination of the mortgage amount, the mortgagor was to indicate in writing to the Assistant Settlement and Rehabilitation Commis sioner of the area concerned his option in respect of the modes of payment. After the payment or imposition of the cut, as the case might have been, a mutation of redemption or/and resumption of land was to be incorporated in the revenue records.

2. The petitioner put in his declaration form in M. G. R. I on the 8th of February 1960. He was given a notice on the 21^st of April 1961 to appear on the 13th of May 1961. According to the petitioner, he appeared before the Naib Tehsildar, Central Record Office on the said day and also produced Zulfiqar Khan, one of the mortgagees to prove the mortgage amount; but he did not announce his decision. The respondent, Chief Settlement Commissioner, admits that the petitioner appeared on the 13th of May 1961, and also that enquiry was held on that day but states that his claim was dismissed as barred by time.

3. Subsequently the Chief Settlement Commissioner, on the 14th of August 1964 substituted paragraph 8‑A of Chapter II, Part I of the Scheme by another para. Under this provision, the mortgagor is made liable to pay mortgage money in respect of the land allotted to him in lieu of land under mortgage at the rate of Rs. 5.00 per produce index unit. The amount can be paid either in twenty half‑yearly equal instalments or in lump sum. The first instalment was payable on the 30th of June 1965. If the mort gagor fails to pay two successive instalments, the Deputy Settlement Commissioner is authorised to cancel the area allotted and can forfeit the whole or part of the money already paid subject to such directions as may be given by the Chief Settlement Commissioner. Only such mortgagors can avail of this substituted paragraph 8‑A, whose allotments against mortgagee rights stood intact on the day of the issue of the said paragraph. Accordingly, guestionair was issued on the 13th of November 1964, by the Chief Settlement Commissioner notifying the gist of the substituted paragraph 8‑A.

4. The petitioner has filed this petition under Article 98 of the Constitution with a prayer that it be declared that the notifica tion issued by the Chief Settlement Commissioner, dated the 13^th of November 1964, was without lawful authority and of no legal effect and that the demand made. by him from the petitioner to pay Rs. 5.00 per unit as. mortgage money was without jurisdiction. It was further prayed that the Chief Settlement Commissioner be directed to recover only the actual mortgage amount due from the petitioner and nothing more.

5. It is alleged in the petition that the petitioner had by a registered deed dated the 5th of January 1935 mortgaged with one Allah Dad Khan land measuring 162 kanals in consideration of Rs. 1,100.00 and by another registered deed dated the 10th of May 1944 mortgaged qn consideration of Rs. 890.00 land measuring 300 kanals and 5 marlas with one Zulfiqar Khan. His case is that he was liable only to pay this amount. The petitioner relied on the original paragraph 8‑A of the Scheme as was added on the 14th of January 1960.

6. It was contended by the learned counsel for the petitioner that the Chief Settlement Commissioner substituted paragraph 8‑A by his order dated the 14th of August 1964, and he was not com petent to do so because he was not empowered in this behalf by the Central Government as contemplated in section 14 (1) and (3) of the Displaced Persons (Land Settlement) Act, 1958, which runs as under:

"14. Allotment and disposal of land.-(1) Subject to the provisions of the Act and the rules made thereunder, the Chief Settlement Commissioner, or any other officer specially empowered by the Central Government in 'this behalf, shall prepare one or more Schemes for allotment to displaced persons against their verified claims of land in the Compensation Pools constituted under section 5.

(2) The Chief Settlement Commissioner, or any other officer specially empowered by the Central Government in this behalf, shall prepare one or more Schemes for the disposal of land attached to charitable, religious or educational trust or institu tions, referred to in the proviso to section 5, and notwithstand ing anything to the contrary contained in any law for the time being in force, or in any instrument of trust or other document, such Schemes may provide

(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,

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