Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 2628/R of 1962, decided on 23rd May 1963.
(Order made by Settlement Authority)‑Not appropriate for High Court to interfere with such order in exercise of writ jurisdiction‑Constitution of Pakistan (1956), Art. 170.
Fifth Sched. List II (Concurrent) Item 8‑"Evacuee property"‑Constitution of Pakistan (1956), Fifth Sched., List III (Provincial) Item 18‑"Agricultural land"‑"Agricultural land" which is "evacuee property" may be dealt with by Central laws‑"Evacuee" character of land overrides all other considerations.
S. 4 (3)‑Land acquired by Government under S. 4 (3)‑Continues, "for purposes of Act", to carry label of "evacuee property" after, as much as before, acquisition‑Order passed by Rehabilitation Authority in regard to such land not invalid‑[Abdus Salam v. Waheed‑ud‑Din S. A. O 166 of 1962 ref. and Writ Petition No. 424 of 1961 not correctly decided].
Muhammad Anwar Buttar for Petitioner.
Nemo for Respondent No. 1.
Abid Husain Minto for A.‑G., S. M. Zafar and Malik Muhammad Sharif for Respondent No. 2.
Dates of hearing : 19th and 20th February 1963.
A person to whom some agricultural land, out of land which had been acquired under section 4 of the Displaced Persons (Land Settlement) Act, 1958, was trans ferred on a provisional basis under the West Pakistan Rehabilitation Scheme, died before the transfer of the title in his favour could be placed on a permanent basis. On the death of the deceased the question of replacing his name in the revenue records by those of his successors arose. The names of the successors were entered, in the first instance, by an officer who was a Revenue Officer as well as a Rehabilitation Officer. An appeal was taken from the order of that officer which again was heard by an officer who was both a Revenue and a Rehabilitation Officer. From the appellate order a revision was taken. This revision, however, was not heard by an officer who had the powers of a Revenue Officer as well as these of a Rehabilitation Officer, but by an officer who was only a Rehabilitation Officer. It is the order passed in revision which is being challenged by one of the persons claiming to have a right in the succession, by this petition under Article 98 of the Constitution as being without lawful authority. The ground of the challenge is that a Rehabilitation Officer has no power to deal with revenue records relating to land which is not evacuee property, and in so far as the land in question was acquired by the Government it ceased to be evacuee property from the date of acquisition and for that reason the Rehabilitation Officer who heard the revision had no power to hear it and his order accordingly must be declared to be without lawful authority and without legal effect.
2. This petition came up before me in Single Bench. In view of the fact that in Writ Petition No. 424 of 1961, decided on the 22nd of November 1962, by a Division Bench of which I was a member, it had been held that once some property is acquired by the Government, the bar against the applicability of the laws other than the Revenue Laws is removed and the Revenue Authorities are competent to deal with such property, I thought it advisable to refer this question to a Division Bench. In my order I added the following:‑
"I have examined the acts in question and I find that the position is far from clear. It seems that both Revenue and Rehabilitation authorities have been dealing with properties of this category in, different cases. A declaration by this Court that either the one or the other did not have jurisdiction to deal with such properties, may invalidate many completed transactions. In view of the importance of the point, I would issue notice in this case to the Advocate‑General, in addition to the respondents in this petition. The learned Advocate-- General may consider the advisability of bringing this matter to the notice of Government for such action as it might consider proper."
3. At the hearing before the Division Bench, the learned counsel, for the petitioner sought permission to argue two other questions. These questions were disposed of by the following order before proceeding further with the hearing:‑
"The learned counsel for the petitioner seeks permission to argue a question other than the question on which this petition was admitted to a hearing. That point is this : He says that the order of remand was illegal and unwarranted for various reasons which he has explained and most of which are set out in his petition. We are of the opinion that even if it is assumed that his complaint is well‑founded (without deciding that it is so), since the error, if any, has not resulted in a final order but in an order of remand, it is not appropriate that we should interfere with that order in writ jurisdiction. Whatever objections to admissibility of documents the learned counsel might have, can be raised and decided during the proceedings in remand. It does not seem desirable that this Court should prevent a Department, with its own rules and laws and its own hierarchy of officers, from having a second look at a case if it so chooses, unless it has been prohibited from doing so. The learned counsel urges that in so far as the Authority that remanded the case took into account a document which, according to this contention, is inadmissible in evidence, the remanding Authority acted without lawful authority. We are unable to accept this contention. The jurisdiction to decide a matter includes the jurisdiction to decide it erroneously.
(2) The learned counsel also seeks permission to urge an entirely new point‑a point which is not even hinted at in his petition. He points out that we are dealing with "agricultural land," which is "evacuee property"; and that while "evacuee property" was on the concurrent list in the late Constitution, "agricultural land" was on the Provincial list. He contends that under the late Constitution, the exclusive jurisdiction of the Province ever "agricultural land" was so jealously guarded that even where a broad category was mentioned in either of the other two lists, by an appropriate reservation inserted into that entry it teas made clear that the Centre was precluded from dealing with "agricultural land" under that entry. The learned counsel contends that under the late Constitution any law dealing with agricultural land, in any aspect whatever, would be invalid, if passed by the Centre.
(3) We do not think any elaborate reasons are necessary for rejecting this argument. In the first place, there is no such reservation inserted against the entry "evacuee property", as there is in respect of some of the other entries to which the learned counsel has referred, and the very absence of such an insertion is a reason for supposing that no exclusion of any kind was intended in the case of this particular entry. In the second place, the provisions of the Constitution relating to property, make it clear that "evacuee property" was being treated as a category apart, with its own laws to which even some of the basic provisions of the Constitution did not apply, and it was the evacuee incident which overrode every other incident attached to that property. Had there been any substance in this argument, it would have been raised when the Government of India Act was in force (before the late Constitution came in) with much greater force, but in that Act itself adequate provision had been made to cover this position. After the late Constitution, the question just could not arise."
4. The point on which this petition was admitted and referred to a Division Bench was argued at length by the learned counsel for the petitioner. In order to appreciate the point fully it is necessary to reproduce the relevant portions of the provisions of law on which it is based. The first of these provisions is the Displaced Persons (Land Settlement) Act, 1958, the relevant portion of which is as follows : ‑
"Whereas it is expedient to provide for the permanent settlement of displaced persons on land in order to compensate them for the leases suffered by them on account of expropriation by the Government of India . . . . . and for matters incidental thereto or connected therewith ;
"It is hereby enacted as follows :‑
"Section 4.‑Power to acquire land.
Subsection (1)‑ . . . . . .
Subsection (2)‑As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the Official Gazette, acquire such land situated in the Province . . . . . as the Central Government may deem it necessary to acquire.
Subsection (3)‑On the publication of a notification under . . subsection (2) the right, title and interest of any evacuee (or persons claiming through him) in the land specified in the notification shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances . . . ."
"Land' means evacuee property consisting of land held for agricultural purposes . . . . . and includes all rights of evacuees in such land, . . . . [Definition‑section 2 (3)]."
"Section 5.‑Compensation pools.‑For the purpose of granting compensation to displaced persons . . . one or more compensation pools consisting of the following shall be constituted, that is to say,‑
(a) land which has been acquired under section 4, including the proceeds of sale by auction or otherwise of such land . . ."
"Section 14.‑Allotment and disposal of land.
(1) Subject to the provisions of this Act and the rules made there-under, 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 . . . . of land in the Compensation Pools constituted under section 5 . . . . . . ."
"Section 25.‑Bar of jurisdiction‑
Save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine . . . . . ."
5. The next provision with which we are concerned is the Pakistan (Administration of Evacuee Property) Act, 1957. "Evacuee Property" is defined by the 3rd subsection of section 2 of that Act as follows :‑
"Evacuee Property" means any property in which an evacuee has any right or interest . . "
By the 21st section of that Act it is provided:-
"Where . . . . . any application for mutation of names purports to create or transfer any right or interest in any property in contravention of (certain provisions of that Act) . . . . . no Revenue officer shall sanction any mutation of names in respect thereof, unless the party presenting the document or making the application produces a certificate from the Custodian (to a specified effect)."
6. The next provisions which concern us are con tained in Part II of the West Pakistan Rehabilitation Settlement Scheme. These are the provisions dealing with the inheritance of the refugee right‑holders in regard to agricultural property allotted to them under the Rehabilitation Settlement Scheme. Though these provisions deal with the rules to be followed when deciding the question that might arise in relation to inheritance, they apparently take for granted the fact that it is the Settlement and Rehabilitation Authorities who will be called upon to decide this question because Part II of the Scheme is expressly stated to be instructions for Rehabilitation Authorities.
7. Based on these provisions of law, the argument is that under the ordinary law it is for the Revenue Authorities to make entries in the revenue records. No one else has the authority to do so. The Rehabilitation laws clearly proceed on the assumption that the function of making entries in the revenue records continues to be the function of the Revenue Authorities notwith standing the fact that the property in relation to which the entries are to be made is "evacuee property" as is evidenced by the provision made by section 21 of the Pakistan (Administration of Evacuee Property) Act, 1957. It is only under the provision made by section 25 of the Displaced Persons (Land Settlement) Act, 1958, that the Revenue Courts are excluded from dealing with these matters with which the Settlement and Rehabilitation Officer maybe authorised to deal by or under that Act. That Act, however, deals with land which is "evacuee property". If the property ceases to be "evacuee property", the powers conferred by that Act to deal with land must be held to be inapplicable to such property. Since "evacuee property" by definition is that property in which an evacuee has a right or interest, it follows that it would cease to be "evacuee property" as soon as the right or interest of an evacuee in it is extinguished. Subsection (3) of section 4 of the Displaced Persons (Land Settlement) Act, 1958, expressly provides that with effect from the date of the notifica tion the right, title and interest of any evacuee shall be extinguished and the land shall vest wholly and absolutely in the Central Government. Based on these steps the argument reaches the conclusion that once the notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, is issued, the property ceases to be "evacuee property", and the authority, if any, of Rehabilitation Officers to deal with such property lapses and the Revenue Authorities alone are left to perform the function of making entries in the revenue records.
8. Stated thus the fallacy in the argument is obvious. The whole Scheme of the Settlement of Displaced Persons is based on the application that the land acquired by the Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958 forms the main bulk of the land to be distributed among them. The various functions contemplated by the Act to be performed by the officers appointed tinder the Act are in the main to be performed after the land has been acquired and made available to them for distribution. Any interpretation of these provisions which renders the purpose of the whole Act nugatory, obviously cannot represent the true intent of the law‑maker. The present ‑argument is being advanced only in relation to the making of entries in revenue: records. Making entries in revenue records, however, is only one of the functions‑and that too a minor function‑‑to be performed under that Act. If the argument is correct with regard to this function, it is clearly correct with regard to all other functions under the Act. To say, therefore, that once the notification is issued in respect of property, the Act cease to apply to it when the Act itself, in the main, can only begin to be effective after the notification has been issued will negative the whole scheme of the Act itself. It is clear to roe that when the phrase "evacuee property" is used in. the context of settlement of displaced persons, namely, in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Displaced Persons (Land Settlement) Act, 1958, it means property in which, but for the notification an evacuee would have a right or interest. Any other interpretation of the phrase "evacuee property" would completely defeat the manifest object of the law‑maker.
9. In a recent Full Bench decision in Abdus Salam v. Waheed -ud‑Din S. A. O. 166 of 1962 where the point taken was that once a notification under section 3 of the Displaced Persons " (Compensa tion and Rehabilitation) Act, 1958 (which in substance is a provision identical with the one with which we are dealing) has been issued, the property becomes the property of the Govern ment and is, therefore, exempt from the operation of certain laws which do not apply to Government properties, it was held that the important and controlling words in section 3 of the Displaced Persons (Compensation and Rehabilitation) Acts 1958, are the words "for any of the purposes of this Act". The purpose of the present Act is given in the Preamble. It is also clear from the provisions made by section 5. That purpose is to make property available in a pool out of which it may be distributed to displaced persons in compensation for their losses in. India. The purpose for which the property has been made to vest in the Government, in the context, clearly is to enable the Govern ment, to transfer a clear title to the new owners. That intention is made further clear by the emphasis placed on the words "free, from all encumbrances" occurring at the end of sub section (3). The vesting in the Government is not intended to attract any other incident of ownership. For the purpose of dealing with this property, it continues to carry the label "evacuee property" after acquisition as much as it did before the acquisition.
10. In Writ Petition No. 424 of 1961, this aspect has not been considered. In that ease the point raised was the exact reverse of the point raised here. The officer who had finally, dealt with the mutation in that case was a Revenue Officer and not a Rehabilitation Officer. The objection taken was that a Revenue Officer had no jurisdiction to deal with property which was "evacuee property". The decision was that there was no illegality in a Revenue Officer dealing with the property in question. That decision was based on the following reasoning :‑
"As the property to which the dispute relates had been acquired by the Central Government along before the death (of the deceased), it is obvious that it ceased to be evacuee property . . . . . When the property ceased to be evacuee property . . , and became the property of Central Govern ment of Pakistan, statutes and rules which were not applicable to the property, when it was evacuee property, ceased to be inapplicable to it."
It seems to me clear that though the conclusion arrived at in that case may be capable of being supported on certain other grounds, the reason on which that conclusion is based in that judgment is not correct.
11. The question whether Revenue Authorities are or are not competent to deal with property acquired by Government for the purposes of being included in the compensation pool is a matter which it is not necessary for the purposes of this case to decide. The learned Assistant Advocate‑General, who appeared in this case in answer to the notice, was not in a position to take up a clear stand on behalf of the Government in regard to this question. I think it is advisable not to attempt to answer that question here. It seems, however, necessary to say that the reasoning on which the conclusion in Writ Petition No. 424 of 1961 is based should be regarded as having, by implication, been put under serious cloud by the judgment of the Full Bench in Abdus Salam v. Waheed‑ud‑Din, and should no longer be regarded as good law. Since, however, it has not been expressly over ruled by any Bench of higher status and has only been dissented from by this Bench which is of equal status, the point it decided, as a conclusion, cannot be disregarded altogether.
12. For the reasons given above, this petition is dismissed with costs.
‑I agree.
A. H Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer