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Civil Petition-for Special-Leave-to Appeal No. fi49 of 1979; decided on

23rd June, 1980.

(On appeal from the judgment and order of the- Lahore High Court, dated 9-7-1979, in W. P. No. 1421-R/75).

(a) Displaced Persons (LAW Settlement) Act (XLVII of 1958 S. 14(1-A) {as inserted by Displaced Persons (Land Settlement) (Amendment) Act (LV Of I973)l road with Displaced Persons (Land Settlement) (Amendment) Ordinance (VI of 1974), Displace Persons (Land Settlement) (Amendment) Act (XJCXVI of 1974) and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss. 2(2), (3) &s 3(1)-,- mukhbari proceedings Transfer of property-Right of occupant- Right to purchase conferred on occupant in S. 3 of Act XIV of 1975- Subject to result of proceedings pending under repealed laws, namely, proceedings initiated :-on information, of informers and their cons6quential rights to have )and subject-matter of mukhbari-Contention the petitioner having occupied land as tenant for four harvests under outgoing allottee and no order of ejectment having been passed against him in t oaf such land, land be first offered for sale to him as contemplated in first proviso to S. 3(1) of Act XIV of 1975, held, not tenable.

Shah Nawaz and others-v -Member Board of Revenue- P L D- 1978_ S C % 66 ref.

----- u. 74 (I-A). fall inserted by displaced Persons (Land Settlement)

(Amendment) Act fW of 19731) .read- with Displaced Persons (Land

Settlement) (Amendment) Ordinance (VI of 19'14), Displaced Persons (Land Settlement) (Amendment) Act (XXXVI of 1974) and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3 W--Mukhbari proceedings-Rights of informer and occupant-Mukhbarl proceedings, despite subsequent enactments and repeal of Displaced Persons laws, held, could continue and taken to their logical end in form of bestowing reward of his mukhbari on informant,

Nawab pin v. Member, Board of Revenue (Settlement and Rehabilitation), Punjab and others P L D 1979 S C 846 ref.

(e) Displaced Persons (Land Settlement) Act (XLVII of 1958)-- .

S. 14(1-A) and Displaced Persons Laws (Repeal) Act- (XIV of 1975), S.3(1)-Mukhbari proceedings-Occupant's right to purchase---Land subject-matter of fraudulent allotment--Held, can always be duly resumed, whether in occupation of defrauding allottee or in occupation of his tenants.

It was argued that the land may be resumed from the original fraudulent allottee or occupant, in case he was in occupation, but, confining to the facts of this case, it could pot be resumed from his tenant viz. the petitioner who was not a party to any fraudulent allotment of this land though his occupation -may bs erivative from his landlord. The contention has no force because the tenant here has no independent status inasmuch as he claims through the fraudulent landlord and not in any independent capacity of his own. Again his status is confined to that of a tenant whereas the resumption here is of rights of ownership, title or proprietary rights. The plea raised should not detract a Court of law from giving effect to the provisions of the relevant statutes as they presently stand, and according to which, the land which is the subject matter of a fraudulent allotment can always be duly resumed, whether it is in the occupation of the defrauding allottee or in the occupation of his tenants, though the manner and procedure of resumption may vary depending on the facts of each case.

Major Muhammad Ishaq, Advocate Supreme Court and lqbal Ahmal Qureshi, Advocate-on-Record for Petitioner.

Sh. Masud Akhtar, Advocate-on-Record for Respondeut.No. 4.

Date of hearing. :. 23rd .Tune, 1980.

ORDM

KARAM EL.AHEE CHAUHAN,. f.--The land in dispute (which is a garden) was allotted to one Sarwar Abdullah (not a party in this case). However, on 2-3-1974 Mst. Zuhra Jamal Noorunnisa Begum (respondent No. 4 herein) filed a Mukhbari application under section 10/11 of the Displaced Persons (Land Settlement) Act LXVII of 1958 wherein she asserted that Sarwar Abdullah had. got his entire claim adjusted in the. districts of Kohat and Peshawar and did not hold any claim for garden units and had also procured allotment to the tune of 273 P: I. Us. in excess of his entitlement. She prayed for cancellation of the allotment of the garden and its adjustment against her own outstanding claim.

2. The Mukhbari was found to be correct and the learned Settlement Commissioner (Land) by his order dated 3-12-1975 cancelled the allotment of Sarwar Abdullah and transferred the garden to her: It maybe pointed that Sarwar Abdullah duly appeared in those proceedings and surrendered the garden submitting as observed by High Court, that he was not interested in its allotment.

3. It may be stated that on, 'I1-6-1.975 i.e. during the pendency of the Mukhbari application of the respondent (which as stated above had been filed by her much earlier on .2-3-1974) the present petitioner moved a petition submitting that as the garden was "available" for transfer, therefore, the same may be given to him as he had been cultivating the same as a tenant for some relevant time, under Sarwar Abdullah the outgoing allottee.

4. This application 'of the petitioner brought no. fruit, therefore,he filed a constitutional petition being W. P. 1421-R of 1975 which was dismissed by the High Court on 9-7-1979 on the ground that the Mukhbari application being earlier in time, the present petitioner had no. preferential right of transfer against the Mukhbor who in this. context was a better claimant with a vested right of claiming transfer as a result of her Mukhbari. It was further held that in this-way the property was not "available" .for transfer to the petitioner.

The petitioner has come up in a petition for special leave to appeal. against the same to this Court.

6. Before proceeding further learned counsel for .the petitioner has referred to section 3 of the Evacuee Property Displaced Persons Laws (Repeal) Act XIV of 1975 which reads as follows s=

"Section 3.--(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may' be available for . disposal immediately before the repeal of the aforesaid Acts and Regulation, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation With the. Provincial Government, fox disposal

(a) in the case of urban properties, by the- Provincial Government under, a scheme to be prepared by it in this behalf ; and

(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf

Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land

Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding-within. the meaning of the land Reforms Regulation; 1972,

(2) ..

7. Learned counsel for 'the petitioner argued that as his client had occupied the land in dispute, continuously for four harvests preceding Kharif 1973 (as a tennat under, the outgoing allottee) therefore, it should first be offered for sale to him particularly as no order of ejectment has been passed against him in respect of his land, as contemplated in the first provisio to subsection (1) of section 3 above, though the landlord i.e, outgoing allottee has ultimately surrendered the land to the department/or new allottee. The contention has no merit and as held by this Court in Shah Nawaz and others v, Member, Board of Revenue ((1) P .L D 1978 S C 266) and as we shall further presently explain the right to purchase such land is not so wide and unconditional as is being suggested or advanced in his favour by the learned counsel.

8. It is well known that right of informers to receive land was introduced by section 14(1-A) of the Displaced Persons (Land Settlement) Act (XLVII of 1958) which was initially added by Act LV of 1973 (gazetted 30-7-1973), which reads as follows :- .

"(1-A) Where, on the information of a claimant about any bogus or fraudulent allotment of land, the information has been proved to be correct and the land so acquired has been cancelled and resumed by the competent authority, the resumed land shall be allotted to the informant to the extent of his claim pending for allotment in the same Province."

9. This section was recast by the Displaced Persons (Land Settlement) (Amendment) Ordinance VI of 1974 (gazetted 22-3-1974), and in its amended form it reads as follows :-

"(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act 1973 (LV of 1973) any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled

(a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment to the extent, of such other land available for allotment ins the same Province as he may choose ; and

(b) in any other case, to a cash award of such amount as the Child Settlement Commissioner may decide."

10. It was maintained more or less in the same form by the Displaced Persons (Land Settlement) .(Amendment) Act XXXVI of ' 1974 (gazetted L5-5-1974).

11. Later on the above law namely Displaced Persons (Land Settlement) Act XLVII of 1958 was repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 (gazetted 28-1-1975). Subsection (2) of section 2 of this Act then laid down that :--

2.(1) ..

(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.

(3) Any proceedings transferred or remanded to an-officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions oaf the Act or Regulation hereby repealed to which the proceedings relate."

12. If the case is examined in the light of that above legal provisions, it will be seen that the right to purchase conferred on an occupant in section 3 of Act XIV of 1975 is subject to the result of the proceedings pending under the repealed laws namely proceedings initiated on the information of the informants and their consequent rights to have the land which is subject matter of their mukhbari, in case the same succeeds. It was so held by this Court in the case of Shah Nawaz and others y. Member, Board of Revenue.

13. When confronted with this situation learned counsel submitted that in the precedent case the order hail been passed in favour of the informant concerned and land was resumed from the bogus allottee Oil 15-5-1974 prior to the enforcement of Act XIV of 1975 and hence the principle laid down in that case was not applicable to the present case. The distinction drawn, we must say, is immaterial, because, the position of the right of an informant according to us remains intact throughout, and does not undergo any change even after the repeal of the earlier law, in case, at the .time of repeal, proceedings of his case were pending, These proceedings, as he in the precedent case, could continue and taken to their ,logical end in the form of bestowing the reward of his mukhbari on him.

14. However, the learned counsel submitted that the right of an informant to have the land which was the subject matter of his mukhbari was dependent upon the condition that "such land has been or is resumed by competent authority upon cancellation of the allotment of such land",, as indicated in section 14 (1-A) itself. He argued that to enable an informant to have the land, first there should be cancellation of allotment from the. name of the bogus or fraudulent allottee and thereafter it must then be resumed. Unless actual resumption takes place the land cannot be bestowed upon the mukhbari because, in the eventuality of its non-resumption. it has according to the learned counsel instead tai be given on sale to its actual occupant. The contention has no ,force for various reasons both on factual. and legal planes. So far as the factual plane is concerned it bas already been mentioned that the land stands duly resumed from the outgoing allottee Sarwar Abdullah who voluntarily surrendered it, As. regards the legal plane it will be contradiction in terms to say that pending proceedings of a informant can continue and on his information land can be cancelled fror the names of the bogus and fraudulent allottees, but the consequent reward to the informant will not be given because saying .so in our opinion will tantamount to saying that a suit can be continued but a decree therein in favour of a plaintiff shall not be passed or even if passed he will not allowed to reap its fruit to execute it. This will destroy the very logic of allowing the pending proceedings to continue because if-this is going to be the position and an informant cannot get the land for which he has lodged the information, then why should be lead evidence, engage counsel, produce or cross-examine witnesses and incur all the relevant expenses in money labour, and time. In this context if this was to be the intention of the lawn then the Legislature would have rather laid down that such proceedings would abate forthwith. But as that was not done, the same result cannot be achieved by putting forward an argument of the kind which is being advanced before us. This will. show that the effect-. of allowing 'the old- law (as-contained in

section 14 (1-A) to continue for pending cases, as contemplated in sections 2(2) and 2(3) of Act XIV of 1975 is, to dispose of those cases under the repealed law, which in its own turn fully authorises the passing of a final order both for cancellation of allotment, resumption of land, and its consequent transfer to the informant. The said order will then be executed by the relevant Board of Revenue. To say therefore that continuation of pending proceedings will stop short at cancellation of allotment and will not go further to resumption and allotment of land does not fit in the relevant context.

15. Another thing to be noticed is, that if for instance, an allotment is ultimately found to be bogus and fraudulent, then if the interpretation put forward by the learned counsel is accepted, it will mean that despite a finding of fraud having been given against, if we can use this term, a fraudulent allottee, land cannot be resumed from him if he is in its occupation and that he can again claim the same by purchase. On this construction of the learned counsel, it will appear, the fraudulent allottee suffers no loss and he can get away with the land fraudulently obtained by him, this time by a sale to him on a meagre price generally assessed on the basis of produce index units. We do riot think that it was the intentions of the law under examination to clothe an allottee with a premium over his own fraud.

16. .At this place attention is also invited to sections 10 and 11 of the Displaced Persons (Land Settlement) Act XLVII. of 1958. They read as follows :

'Section 10. Power of Chief Settlement Commissioner to cancel -allotment.-If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fraud or false representation then without prejudice to any other penalty to which such person nay be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment or reducing the area of the land allotted or such other order an he may deem fit.

'Section l is Power of Chief , Settlement Commissioner to cancel or terminate allotment or 1a amend or vary terms of allotment.(1) Notwithstanding anything contained in any other law for the time being. in force or in any contract, but subject to the provisions of this. Act and the rules. made thereunder, the Chief Settlement Commissioner, may, for reasons tin be recorded in writing, cancel or terminate any allotment or lease made under a Scheme or under this Act, or amend or vary the terms of any .such allotment of lease

Provided that no order under this subsection shall be passed by the Chief Settlement Commissioner without giving the person affected thereby a reasonable opportunity- of being heard,

(2) If any allottee, lessee, holder or occupant-of any land acquired under this Act by ;reason of lack of a valid allotment order or lease or on account of an order made under .subsection (1) is not, or ceases to be, entitled to the possession of such land, he shall, when so requires by the Chief Settlement - Commissioner, surrender, the possession thereof to the Chief Settlement Commissioner in this behalf.

(3) If any person .required under subsection (2) to surrender possession of land, fails to do so, the Chief Settlement Commissioner, or any person authorised by the Chief Settlement Commissioner in this behalf may

notwithstanding anything .to the- contrary contained in any other law the land and may use or cause to be used such force as maybe necessary for the purpose."

17. A careful study of these sections will show that cancellation of allotment carries with it an incident of resuming the land from, as we have used this term, the fraudulent allottee or occupant. To say that proceedings under the aforesaid sections can continue despite their repeal, but at the same time to plead that resumption of land which is subject of fraudulent allotment or occupation cannot be made will not give true effect to the provisions of the above reproduced sections. If, the aforesaid sections are read along with Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation), Punjab and others (P LD 1979 SC 846) where the position has been explained by this Court in some detail, it will appear that the petitioner really has no case, and the various pleas advanced by him have no merit, After referring to Act XIV of 1975 the relevant passages in that judgment occur on pages 851-852 and read as follows :-

"After repealing the above laws then comes subsection (2) which has been reproduced above. The intention of that subsection (2) is to save "all proceedings" pending before the authority appointed there under, i. e. under the aforesaid Acts and Regulations which have been repealed. Now it is obvious that the repealed laws had conferred various substantive rights in favour of persons mentioned therein, and confining ourselves to the Displaced Persons (Land Settlement) Act, the said Act and the schemes framed thereunder or recognised or adopted by or under that Act bestowed a right on a claim holder to have allotment of erstwhile evacuee land in lieu of the land left by him in India both as a claimant in his own right and also an as informant. This is a valuable statutory right which the Courts in Pakistan have consistently been enforcing. The detailed procedure for enforcement of that right is contained in the relevant Act, and various schemes on the subject. It was under those scheme(s) and the Act that Rehmatullah a claimant displaced person formally applied in writing pointing out one evacuee character and for the transfer of the land in dispute, which at the relevant time, according to him was available for allotment under the aforesaid laws and was so held later .in Writ Petition No. 737-R of 1970 decided on 21-5-1975, The institution of an

application for allotment in the circumstances above mentioned was therefore institution of a legal proceeding in. which the entitlemet of the applicant or applicants and the suitability and availability 'Of the

land in dispute was to be examined and which later aspect was in fact judicially so examined by the High Court in the earlier writ petition, Then came the stage of .transferring the land, obviously of ter keeping

in view the claims and applications of rival contestants if any, Orders of making allotment or refusing allotment were, it is well known, appealable and revisable under Act XLVII of 1958 and at some earlier

stage revision petition could also be instituted in the High Court under section 21 of that Act against the same (though this provision was later on repealed). The Settlement authorities in this way acted in a quasi-

judicial manner and their proceedings dealt not only with valuable rights of claimants displaced persons but also with a very valuable kind of property which formed backbone of the country's economy and wealth. To call these proceedings merely of executive nature, in the very -context of law relevant on the subject, is. not justified in the present case. The affixation of word "all" before the word "proceedings" does not authorise exclusion of any type of proceedings from the ambit of that word by making a division of the kind of judicial proceedings and executive proceedings, so long as those were proceedings under that Act dealing with the settlement of land and deciding the eligibility of an applicant for its transfer. In Shah Nawaz and others v. Member, Board of Revenue P L D 1978 S C 266 though the connotation of the word "proceedings" was not expressly debated or argued but pendency of an application of an informant who wanted reward of his mukhbari was considered by this Court as "pending proceedings" which were held. to have preference over another new applicant whose turn, as in this case, under section 3 could come only if the land was not settled upon or given to an earlier applicant proceedings about whose entitlement were still pending immediately before the date of repeal of the previous relevant law."

In para. 15 of that judgment it was then held that :

"Examining the present case in the light of the law above explained and the entire context, it is evident, that Rehmatullah was enforcing his right to have transfer of an evacuee land in lieu of his duly verified claim for land left by him in India. As such a transfer could be claimed only under Act XLVII of 1958, therefore, his application for transfer was both from the point of view of an informant and on other merits under that Act. Rehmatullah fell within the category of "displaced person" as defined in its section 2(3) ; the authority whom he approached was "settlement authority" as defined in section 2(6) ; the "scheme" under which he claimed was a scheme under section 2(7) ; "settlement" which he wanted was a settlement under section 2(8) read with sections 12 and 15 of the Act ; "verified" claim which he wanted to be satisfied fell within the definition of word "satisfied" as contained in section 2(9)" . "How can the petitioner, in these circumstances state that the case of Rehmatullah was not a "proceeding" under Act XLVII of 1958,. or that it was not pending before the relevant date on the subject." "If in the interregnum the petitioner succeeded to get this land on tender basis from year to year (illegally under the Colonization Act from local Colonization Officers) and in this way created a blockade in the disposal of the much earlier instituted case of Rehmatullah, whom as High Court observed, he made to run from "pillar to post", he cannot plead that the case of Rehmatullah ceased to remain pending because he had been intervening in the same in various forms."... ..... "The High Court in the circumstances was fully justified in holding that the land in dispute was not "available land" within the contempla tion .of section 3 of Act XIV of 1975, inasmuch as the case of Rehmatullah and this land were still sub judict on or before the relevant date, and as such petitioner had no locus standi to claim. for its transfer. The petitioner, it appears neither in law nor in eqity has any right to have this land, as against Rehmatullah to whose successors-in-interest, after the. end of the relevant litigation in the High Court it was rightly ultimately allotted and transferred on 28-12-1978." The passages reproduced above supply a complete answer to the plea of the petitioner which is now being raised before us and which consequently has no merit.

Was then argued that the land may be resumed from the original fraudulent allotted or occupant, in case he was in occupation, but, confining to the facts of this case, it could not be resumed from his tenant, viz. th petitioner who according to the learned counsel was not a party to an fraudulent allotment of this land though his occupation may be derivative from his landlord. The contention has no force because the tenant here ha no independent status inasmuch as he claims through the fraudulent landlord and not in any independent capacity of his own. - Again his status is confined to that of a tenant whereas the resumption here is of rights of ownership, title or proprietary rights. In our opinion the plea raised should not detract a Court of law from giving effect to the provisions of the relevant statute as they presently stand, and according to which, the land which is the subject matter of a fraudulent allotment can always be duly resumed, whether it is in the occupation of the defrauding allottee or in the occupation of hi tenants, though the manner and procedure of resumption may vary depending on the facts of each case. We need not go into the same in detail though we may simply point out that law duly exists on the subject as to how possession of a land in occupation of tenants is given to the new owner/landlord.

19. The result is that this petition has no merit and is dismissed.

s. A. H. Petition dismissed.

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