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Civil Appeal No. 19‑P of 1975, decided on 20th May, 1985.

(On appeal from judgment of Peshawar High Court, dated 4‑12‑1972 in Writ Petition No. 582 of 1966).

‑‑‑Arts. 185(3) & 199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 2(3) & 20(iii)‑‑Leave to appeal granted to examine contentions that High Court erred in law in reversing consistent findings of Settlement and Rehabilitation Authorities that house in question did not fall within definition of "land" being a part of village Abadi besides being admittedly valued at more than Rs.10,000 and as such could not be transferred to a person against his claim for agricultural land and whether High Court was justified in substituting his own judgment in exercise of writ jurisdiction.

‑‑‑Ss. 2(3) & 20 (iii)‑‑Constitution of Pakistan (1973), Art. 199‑ Agricultural land‑‑Respondent conceding before Additional Settlement Commissioner that value of house in question was more than Rs.10,000 and praying that it might be transferred to him at that price‑‑Conduct of respondent showed that, he gave up his claim that house in dispute formed part and parcel of agriculture land allotted in his favour‑ Respondent, therefore, was estopped from urging that order of Deputy Settlement Commissioner treating house as an independent house to be disposed of through auction under relevant Scheme or provisions of Act was illegal and passed without jurisdiction‑‑High Court, held, could not interfere in its constitutional jurisdiction with order passed by relevant authorities in exercise of their statutory jurisdiction‑‑Relevant Settlement Authorities including Settlement Commissioner, as a result of proper inquiry and after hearing respondent coming to findings that disputed house could not be treated as a part and parcel of land allotted to respondent‑‑Such findings maintained.

‑‑‑S. 2(3)‑‑"Land"‑‑Definition‑‑Land as defined under S. 2(3) of Act must be held for agriculture purposes or purposes subservient to agriculture before any building or structure standing thereon could, by extension of definition, be included within meaning of term "land".

‑‑‑S.-2(3)---Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction‑‑Land‑‑Definition‑‑Relevant departmental authorities in its well‑considered and reasoned orders coming to conclusion that house in dispute was not situated on land held for agriculture or purposes subservient to agriculture‑High Court, in its constitutional jurisdiction, held, was not entitled to reopen such finding in a constitutional petition as if it was an appeal.

‑‑‑S. 2(4)‑‑Settlement Scheme No. VII‑‑'House'‑‑Word 'house' as defined in Act includes a house of value of Rs.10,000 or more in a rural area and such property could be disposed of under Scheme No. VII‑‑Fact that disputed house was not situated in urban area, held, would not by itself be conclusive as to applicability of provisions of Act.

M. Sardar Khan, Advocate Supreme Court for Appellant.

Respondents Nos. 1 and 2: Ex parte.

S.M. Zaffar, Senior Advocate Supreme Court and Abdul Samad Khan, Advocate‑on‑Record for Respondent No. 3.

Date of hearing: 20th May, 1985.

The dispute in this appeal relates to a House No. C‑35, bearing Khasra No. 873/63, measuring 4 Kanals in village Dewala, Tehsil and District D.I. Khan. In 1959, Noor Muhammad, respondent No. 3, obtained allotment of agricultural land in the village and according to the appellant fraudulently got the house property in dispute also entered in his R.L.II although the appellant was in possession thereof since 1950. The appellant, therefore, made an application and the disputed house was deleted from the R.L.II of Noor Muhammad respondent by order of the Assistant Rehabilitation Commissioner. Aggrieved by this order Noor Muhammad filed an appeal which was rejected by the Additional Settlement and Rehabilitation Commissioner, D.I. Khan, by order, dated 17th February, 1965. It was held, inter alia, that "as the site of the disputed house was neither used for agricultural purposes nor for purposes subservient to agriculture, it does not come within the definition of "Land" as defined in para. 2(3) of the Displaced Persons Rehabilitation Act, 1958, and cannot be allotted against a claim for agricultural land".

2. On a revision filed by Noor Muhammad, the Settlement and Rehabilitation Commissioner, D. I. Khan, remanded the case by his order, dated 19th July, 1965, to the Additional Settlement and Rehabilitation Commissioner, for a fresh decision in order to determine the question whether the house in dispute was "a tenant hutment built for the advancement of agricultural lands or was a part and parcel of the village Abadi or not".

3. On remand the learned Additional Settlement and Rehabilitation Commissioner, heard the parties and inspected the site on 7th September, 1965 and recorded his observations that the property in dispute was a big house containing man), rooms and surrounded by a verandah, that the construction material is very superior, that the house was situated in a corner of the village and that the approximate value of the house appeared to be not less than Rs.10,000. He, therefore, by his order, dated 7th September, 1965, appointed a commission to assess the exact value of the house.

4. On 21st September, 1965, Noor Muhammad made an application before the Additional Settlement and Rehabilitation Commissioner in which he conceded that the value of the house was more than Rs.10,000 and expressed his willingness to pay Rs.10,200 if the house is to be excluded from his allotment. Finally by order, dated 27th September, 1965, the learned Additional Settlement and Rehabilitation Commissioner, held that the property in dispute was a residential house adjacent to the village abadi and a part and parcel thereof, not being used for any purposes Subservient to agricultural land. He, however, came to the conclusion that the property could not be transferred to either of the contesting parties and hence directed its disposal by public auction.

5. Being aggrieved by the rejection of his entitlement by the aforesaid order, the appellant filed a revision before the Settlement and Rehabilitation Commissioner (Land), D.I. Khan, who also inspected the plot and agreed with the view of the Additional Settlement and Rehabilitation Commissioner, that the house be disposed of by open public auction. He, therefore, dismissed the appellant's revision by his order, dated 12th March, 1966.

6. The appellant then challenged the orders passed by the Additional Settlement and Rehabilitation Commissioner and the Settlement and Rehabilitation Commissioner, in a Constitutional Petition No. 300/66. Noor Muhammad also filed a Constitutional Petition bearing No. 582 of 1966, challenging the entire proceedings taken against him by the functionaries of the department including the final order passed by the Settlement and Rehabilitation Commissioner.

7. The learned Chief Justice, of the Peshawar High Court who heard both the constitutional petitions together held that the original order of the Deputy Rehabilitation Commissioner cancelling the disputed house from the R.L.II of Noor Muhammad was passed without jurisdiction as the said Deputy Rehabilitation Commissioner, exercising the powers as a Settlement Officer was not competent to review his own or his Predecessor's order, under section 20(ii)(b) of the Displaced Persons Land Settlement) Act, 1958. unless he first obtained permission of the Additional Settlement Commissioner, and also after hearing the party affected thereby. Both these conditions were not fulfilled according to the learned Judge. Having thus come to the conclusion that the basic order passed by the Deputy Rehabilitation Commissioner being wholly void and illegal, all the subsequent orders passed by the higher authorities of the Settlement Department were likewise vitiated. It was further held by the Chief Justice that under the Displaced Persons (Land Settlement) Act, the buildings and other structures standing on agricultural land are to be deemed part of the land itself, without any qualification as to its monetary value. Consequently in the opinion of the learned Chief Justice the allotment of the disputed property in favour of Noor Muhammad was not liable to be cancelled as it was part of the agricultural land transferred to him as claimant. By judgment, dated 4th December, 1972, the learned Chief Justice accepted the constitutional petition of Noor Muhammad and dismissed that of the appellant.

8. Leave was granted by this Court to examine the contention that the learned Chief Justice of the High Court had erred in law in reversing the consistent findings of the Settlement and Rehabilitation Authorities, that the house in question did not fall within the definition of "land" as contained in section 2(3) of the Displaced Persons (Land Settlement)1 Act, 1958, being a party of the village abadi besides being admittedly valued at more than Rs.10,000 and as such could not be transferred to Noor Muhammad. The further question for consideration was whether the learned Chief Justice was justified in substituting his own judgment in exercise of writ jurisdiction.

9. We have heard the learned counsel appearing for the appellant and respondent No. 3, and have perused the record.

10. It will be observed that the fundamental point on which the impugned judgment of the High Court turns is the effect of the legal provisions contained in section 20(iii) of the Displaced Persons (Land Settlement) Act, 1958, which placed an embargo on the exercise of review powers by the Deputy Settlement Commissioner without first obtaining the sanction of the Additional Settlement Commissioner for the purpose. In this behalf the learned Chief Justice made the following observations in his judgment:‑

"It is not disputed, that the present case is covered by the Land Settlement Act, and according to sub-clause (ii)(b) of section 20 of this Act, a Deputy Settlement Commissioner (which in the present case is designated as Deputy Rehabilitation Commissioner) is debarred from reviewing his own or the order of his predecessor, unless he first obtains permission of the Additional Settlement Commissioner, and that too, after giving notice to the parties and hearing them. It is not denied before me, and, indeed, in its written statement, the Department has admitted, that neither the requisite prior permission of the Additional Rehabilitation Commissioner had been obtained by the Deputy Rehabilitation Commissioner in this case, nor had he issued any notice to the parties to appear before him, when he passed the initial order on the review application of Muhammad Ramzan against Noor Muhammad. In this view, the contention raised by the learned counsel seems to have force, and, consequently, not only the order of the Deputy Rehabilitation Commissioner but the subsequent orders passed on its basis by the functionaries for the Department, including the order of the Settlement and Rehabilitation Commissioner, would stand vitiated."

We, however, regret to find that certain important facts having a bearing on this aspect of the matter were not brought to the notice of the learned Judge. From the narration of facts it will be perused that after failing to obtain reversal of the order passed by the Deputy Rehabilitation Commissioner, dated 27th December, 1963, in his appeal and revision, which was decided by the Settlement Commissioner by his order, dated 19th July, 1965, remanding the case to the Additional Rehabilitation Commissioner in order to determine the question whether the house in dispute was meant for purposes subservient to agriculture, respondent No. 3 appeared before the Additional Rehabilitation Commissioner and admitted that the value of the house was more than Rs.10,000 and prayed that it may be transferred to him as a house. This application was made by him on 21st September 1965 and read as under:‑

Petitioner submits as follows:‑

(1) That the above noted case has been remanded by Settlement and Rehabilitation Commissioner, D.I. Khan, and your honour has inspected the spot and the building in Khasra No. 873/63 of village Diwala.

(2) That your honour has appointed Commissioner to assess the price of building perhaps for the reason whether the value of the building is less than Rs.10,000 for attracting the provisions of Settlement Scheme No. 7'.

(3) That the price of the building is more than Rs.10,000 and petitioner is willing to pay Rs.10,000 in case its allotment is cancelled from the petitioner.

(4) Under the circumstances it is submitted that Commission to assess its value be cancelled."

This is an admitted position and is reflected in the order of Additional Settlement Commissioner, dated 27th September, 1965. In this order the learned officer observed:‑

"I had appointed overseer as a Commission to find out the present market value of the house but the appellant himself submitted application, dated 21st September, 1965, Exh. C.B. that the value of the house is more than Rs.10,000 and he was prepared to pay Rs.10,200 for this house."

In view of this conduct on the part of respondent No. 3 it was clear that he gave up his claim that the house in dispute formed part and parcel of the allotment of agricultural land made in his favour. Clearly, therefore, respondent No. 3 was estopped from urging that the order of the Deputy Rehabilitation Commissioner treating the property as an independent house to be disposed of under the relevant scheme or the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was illegal and passed without jurisdiction. Even otherwise there is nothing on the record showing that in his appeal before the Additional Settlement Commissioner or in his revision before the Settlement Commissioner, respondent No. 3 raised the question that the Deputy Settlement Commissioner was not entitled to have recourse to the review powers for want of prior permission from the Additional Settlement Commissioner. Thus, it was not open to him to have urged this point for the first time in support of his constitutional petition in the High Court. The main basis of the judgment of the High Court having thus disappeared, there remains no other substantial ground on which the High Court could have interfered in its constitutional jurisdiction with the orders Rassed by the relevant authorities in exercise of their statutory jurisdiction.

11. It appears that the High Court was also greatly influenced by the argument that buildings standing on agricultural land are included within the meaning of the word "land" as defined in section 2(3) of the Displaced Persons (Land Settlement) Act, 1958. There is no doubt that land as defined in this provision of law means "evacuee property consisting of land held for agriculture purposes or for purposes subservient to agriculture or pasture including gardens, unserveyed land and trees and buildings and other structure standing thereon." But the emphasis seems to be that the land must be held for agriculture purposes or for purposes subservient to agriculture, before any building or structures standing thereon could by extension of the definition be included within the meaning of the terms "land". In the present case the relevant departmental authorities, on what appear to be well -considered and reasoned orders, came to the conclusion that the house in question was not situated on land held for agriculture purposes or purposes subservient to agriculture. The High Court in its constitutional jurisdiction was not entitled to reopen this finding in a constitutional petition, as if it was an appeal. Be that as it may, as already pointed out, respondent No. 3 had given up the issue by admitting and conceding to the status of the disputed property to be a house disposable under' the Displaced Persons (Compensation and Rehabilitation) Act 1958. There was, therefore, no occasion for the High Court to enter into this question. It may be stated that the word "house" as defined in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, includes a house of the value of Rs. 10,000 or more in a rural area, and Settlement Scheme No. VII was issued for disposal of such properties situated in rural areas. Therefore, the fact that the disputed house was not situated in the urban area was not by itself conclusive as to the applicability of the provisions of Displaced Persons (Land Settlement) Act, 1958. As on a proper inquiry and after hearing respondent No. 3 the relevant authorities including the Settlement Commissioner came to the conclusion that the disputed house cannot be treated as a part and parcel of the land allotted to respondent No. 3, we have come to the conclusion that the impugned order of the Settlement Commissioner, dated 12th March, 1966, cannot be upset and must be maintained.

12. It is, however, submitted on behalf of the appellant that in view of his long and settled possession of the house in dispute, he has a claim to its transfer either under Settlement Scheme No. VII or VIII, which has not been properly determined. While, therefore, allowing the appeal and restoring the aforesaid order of the Settlement Commissioner for open auction of the property, it is directed that the entitlement of the appellant shall first be examined and determined after notice to respondent No. 3. The appeal is allowed in these terms with no order as to costs.

M. Y. H. Appeal allowed.

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