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Civil Petition for Special Leave to Appeal Nos. 575 and 586 of 1976, decided on 13th November 1977. .
(On appeal from judgment and order of Lahore High. Court dated 24th March 1976, in Writ Petitions Nos. 1409/R of 1975 and 1410/R of 1976).
-Sr. 2(1), 10 & 11 read with Rehabilitation Scheme, Part 1, para. 4‑A‑Objection raised .for first time in High Court but never before Settlement authorities‑Objection also not seeming to have been pressed at hearing of case before High Court although allegedly advanced in arguments‑Objection going to very jurisdiction of Settlement authority to entertain petition and plea requiring further consideration‑Leave to appeal granted.‑[Leave to appeal].
S. M. Tayyab, Advocate Supreme Court instructed by Kh. Wali Muhammad, Advocate‑on‑Record for Petitioners.
Ch. Muhammad Abdullah, Advocate Supreme Court instructed by Wajid Hussain, Advocate‑on‑Record for Respondent No. 1.
Nemo for the Remaining Respondents (in both the Petitions).
Dates of hearing :12th and 13th November 1977.
‑These petitions are directed against a consoli dated order dismissing the two writ petitions filed by the respective petitioners herein in the High Court at Lahore and can be conveniently disposed of together.
Briefly, the relevant facts are that Ghulam Muhammad petitioner (in C. P. S. L. A. ‑No. 585 of 1976) is the son while Budha petitioner (in C. P. S. L.' A. No. 586 of 1976) is his father. Evacuee land measuring 47' kanals 10 marlas and 67 kanals 14 marlas situated in Chak Uggo, Tehsil Daska, District Sialkot, were temporarily allotted to Ghulam Muhammad and his father Budha respectively as Jammu & Kashmir refugees. But on the 15th of October 1974, Ahmad Khan respondent filed separate applications against them under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. It was contended that the two petitioners were not Jammu & Kashmir refugees and belonged to village Chaprar, Tehsil and District Sialkot. As such they were the local residents of Pakistan not eligible for the allotment of the evacuee lands to them.
After the necessary enquiry on the 20th of November 1975, respondent No.2, the Additional Deputy Commissioner (C), Assistant Settlement Commissioner (Land) with delegated powers of the Chief Settlement Commis sioner by his consolidated order accepted the two petitions before him and cancelled the allotments of the lands in dispute held by the respective petitioners. He was, inter alia, impressed by the fact that in a copy of the relevant Jamabandi for the year 1944‑45 relating to the estate of Chaprar, Tehsil and District Sialkot, Bttdha petitioner was. entered as in cultivating possession of some lands as a mortgagee. Moreover, according to the copies of the extracts from the birth registers Imam Din father of Budha petitioner and: Ghulam Muhammad petitioner son of Budha son of Imam Din were born in village Chaprar. In rebuttal the two petitioners pleaded that they bad migrated to Jammu & Kashmir State about 10 years before the Independence and had started living there permanently and thereafter came back to Pakistan only as refugees in the wake of the Partition of the Sub‑Continent. But they failed to substantiate this plea to the satisfaction of respondent No. 2.
In these circumstances the two petitioners filed their separate writ petitions challenging the validity of the respective orders passed by respondent No. 2 cancelling the lands in dispute from their names, But a learned Judge of the Lahore High Court at Lahore on, the 24th of March 1976 dismissed the writ petitions in limine by a single order. He refused to interfere in writ jurisdiction with the findings of fact recorded by respondent No. 2 on the evidence before him.
We have heard the learned counsel for the petitioners in these two petitions for special leave from the judgment of the High Court. It was vehemently contended before us that in terms of para. 4‑A, Part of the Rehabilitation Scheme, the lands in dispute allotted temporarily to the petitioners as Jammu & Kashmir refugees were expressly excluded from the operation of that Scheme. He further maintains that the lands in dispute were allotted to the respective petitioners on purely temporary basis for maintenance. only and not in lieu, of any claim verified under the law. As such, there was ' no "allotment" ‑ of 'these lands within the contemplation of the definition of the term contained in section 2(I) of the Displaced Persons (Land Settlement) Act, 1958. This being the case there fore, the provisions of sections 10 and 11 were not attracted to the facts and circumstances of the case. We find that this precise objection was for the first time raised by the petitioners in para. 7 (d) of their writ petitions in the High Court and never before respondent No. 2 during the course of the proceedings before him for the cancellation of the lands in dispute. Even before the High Court the precise objection does not seem to have been pressed at the hearing, although, according to the learned counsel, arguments in this connection were actually advanced at the hearing but had escaped the notice of the Court at the time of the judgment. At any rate this objection goes to ‑very jurisdiction of respondent No. 2 to entertain the petition for the cancellation of the land held by the Jammu & Kashmir refugees for maintenance only. The plea requires further consideration. We, therefore, grant leave to appeal to the petitioner in each case, Security Rs. 10,000 in each case. Status quo to continue.
Leave granted.
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