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1971 Writ Petition No. 992 of 1964, decided on 13th January

para. 7-- Person not entitled to get land against his mortgaged Units where proprietary Units given to him exceed one thousand Units‑Power of allotment carries with it power to cancel same‑Allottee granted land in excess of what actually was due to him‑Assistant Settlement and Rehabilitation Commissioner competent to cancel excess allotment‑Discretionary power under Art. 98, Constitution of Pakistan (1962), not exercised to interfere with order of cancel lation on mere contention that after promulgation of Displaced Persons (Land Settlement) Act, 1958 only Chief Settlement Commissioner or his delegatee could cancel or vary allotment Constitution of Pakistan (1962), Art. 98‑Displaced Persons (Land Settlement) Act (XGVII of 1958), Ss. 10 & 11.

Mahmood Ahmad Qureshi for Petitioner.

Masood Zakriya for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 13th January 1971.

On the 14th of January 1954, allotment of land worth 1090 Units was confirmed in favour of the petitioner by A. R. C. Jarranwala, in mauza 240‑G. B., District Lyallpur, as per details given in para. 2 of the writ petition which are to the following effect:‑

(a) land worth 621 Units in lieu of proprietary land left in India;

(6) land worth 386 Units in lieu of land inherited by petitioner from one Bagi in India; and

(c) land worth 83 Units against the mortgagee rights held by the petitioner in India.

According to para. 7 of Part I of the West Pakistan Rehabi litation Settlement Scheme, where a person is eligible to get land both against his proprietary Units as well as Mortgagee Units, then he is not to be given land for mortgagee Units, if his proprietary Units exceed one thousand. Since the allotment in favour of the petitioner was in violation of the aforesaid paragraph, therefore, the Assistant Settlement and Rehabilitation Commissioner by means of his order, dated 28‑12‑1961, withdrew the land which had been allotted against the mortgagee rights, namely, land worth 83 Units. The petitioner tiled an appeal which was rejected on 2‑2‑1962. He filed a revision which also met the same fate and was rejected on 24‑8‑1962. The petitioner then filed the present writ petition in this Court on 11‑6‑64 against the aforesaid orders of the Settlement and Rehabilitation authorities.

2. So far as the entitlement of the petitioner is concerned, it has been conceded that under paragraph 7 of Part I of the West Pakistan Rehabilitation Settlement Scheme, in a case of the present kind, a person is not entitled to get land against his mortgagee Units where his proprietary claim exceeds one thousand Units. This shows that so far as the merits of the case are concerned, the petitioner has been given land up to the extent he was eligible to get according to law and from that point of view, the orders of the Settlement and Rehabilitation Authorities do not suffer from any defect. The learned counsel, however, argued that the power to cancel or vary the terms of any allotment after the promulgation of the Displaced Persons Land Settlement Act (XLVII of 1958) (hereinafter called the Act), vested under sections 10 and 11 of the aforesaid Act, only in the Chief Settlement Commissioner and since in the instant case, the order was neither passed by the Chief Settlement Commissioner nor by any of his delegatee in that capacity, therefore, the cancellation of the excess area from the name of the petitioner was not just. The contention has no force. Land under the Act is to be settled upon a person in accordance with the West Pakistan Rehabilitation Settlement Schemes as laid down in subsection (3) A of section 15 of the Act. In para. 4 of Part I of the Scheme itself, it is laid down that if an allottee is at any time found to have been allotted land fn excess of what may actually be due to him, the allotment of the excess area shall be cancelled. . The power of allotment, it will thus appear, carried with it the power to cancel that allotment as well. Be that as it may since on the factual plane, the petitioner is not entitled to the land in question, I do not want to exercise my discretionary jurisdiction under Article 98 of the Constitution in a case of the present type where the affect of issuing any mandamus in this respect will be to grant such land to the petitioner to which he is not otherwise eligible.

3. The next point argued was that if not under para, 7 of Part I of the Scheme, then at least under para. 16 of Part 11 of the Scheme, the petitioner was eligible to get 10 % Beshi keeping in view the quality of the land left in India and the one allotted to him in Pakistan. If the case had been examined keeping in view the aforesaid paragraph, it is argued by the learned counsel, then the land in dispute could not have been withdrawn. This plea cannot be accepted, firstly, because the excess land was not bestowed on the petitioner under para graph 16 and he, therefore, cannot take shelter of the same. Secondly, this paragraph cannot be utilised to override the provisions of paragraph No. 7 of Part I of the Scheme. It is to be pointed out that the Scheme is divided into two parts. Part I consists of paragraphs 1 to 23 and constitutes the "main Scheme". Part II, wherein paragraph 16 occurs, are merely instructions for the implementation of the Scheme. The instructions, it is laid down, in paragraph 23 of Part I of the Scheme are to remain consistent with the Scheme and cannot be allowed to override the same. If the contention of the learned counsel for the petitioner is accepted then it will tentamount to doing that indirectly which paragraph 7 of Part I of the Scheme prohibited to be done, directly. It is thus clear that even by taking resort to paragraph 16(5) of Part 11 of the Scheme, the land must remain within the ceiling of one thousand Units contemplated in paragraph 7, Part I of the Scheme.

4. No other point was argued before me.

5. The result is that this writ petition has no force and is dismissed with costs.

K. B. A. Petition dismissed.

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