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Petitioner: AHMAD ZAMAN KHAN VS Respondent: THE GOVERNMENT OF PAKISTAN AND 13 OTHERS
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title: AHMAD ZAMAN KHAN vs THE GOVERNMENT OF PAKISTAN AND 13 OTHERS Case No.: Writ Petition No, 18-R of 1973 Date of Judgment:1976-10-14 Reported As: PLD 1977 Lahore 735 Result: Petition accepted
JUDGMENT
JUDGMENT ' This judgment will also dispose of Writ Petition No, 827/R.73, as similar points of law and facts are involved in both the cases. 2. The dispute relates to property bearing Khasras Nos. 117, 119, 120, 130, 132 to 139, 245 min, 246, 248, 122, 123 and 123, situated at Chah Thalaywala, Village Qutabpur, Tehsil and District Multan. The Chief Settlement Commissioner, vide his impugned orders, has declared the inhabited area of the land, comprising said Khasra numbers, as Katchi Abadi under section 2(1)(f) of the Transfer of Evacuee Land (Katchi Abadi) Ordinance, 1972 (No, XX of 1972) as well as the provisions of sub-clause (2) of clause 3 of the Scheme for Disposal of Evacuee Land in Katchi Ahadis, framed under the Ordinance. 3. The petitioner, Ahmad Zaman Khan, a lawyer by profession, has challenged the validity of the said orders being mala fide and passed under duress; and further that the property in question is not covered by the relevant provisions of the Ordinance (which was later on approved by the National Assembly in the form of Act XIII of 1972). ' The Governor of Punjab, Martial Law Administrator, Zone 'C', promulgated Martial Law Order No, 251 on 18-3-1972 authorising the Chief Settlement Commissioner to declare any locality existing on any evacuee land as Katchi Abadi. "Evacuee land" in this Order has been defined as any land, plot or vacant site, abandoned by an evacuee as defined in the Pakistan (Administration of Evacuee Property) Act, 1957, while "Katchi Abadi" as any locality existing on any evacuee land declared to be as such by the Chief Settlement Commissioner. The Order further provides that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled and the allottees or transferees of such land shall be paid such compensation as may be determined by the Government
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4. The necessary Scheme for the disposal of evacuee land in Katchi Abadis was framed under paragraph 7 of the Martial Law, as referred to above, 20.4-1972. It authorised the Deputy Settlement Commissioner concerned, after making personal survey and such other inquiry as be may deem appropriate, to recommend to the Chief Settlement Commissioner to declare any locality consisting of fifty or more tenements existing on an evacuee land not already declared as building site under sub-clause (b) of clause (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1955, as Katchi Abadi. The Chief Settlement Commissioner, if satisfied, was authorised by the Scheme to accept the recommendation of the Deputy Settlement Commissioner made in this behalf. 5. Ordinance XX of 1972 (Transfer of Evacuee Land (Katchi Abadi) Ordinance, was issued on 28-5- 1972 by the President of Pakistan. So far as the definition of "evacuee land", and "Katchi Abadi" and cancellation of allotments and transfers of evacuee land are concerned, the relevant provisions as incorporated in the previous legislation, referred to above, were included in the Ordinance. The said Ordinance was later on implemented as Act XIII of 1972, Transfer of Evacuee Land (Katchi Abadi) Act, 1972). More or less the same provisions as contained in the Ordinance, were incorporated in the Act and as such their details need not be given again. 6. The property in question was permanently transferred to the petitioner after fulfilling all the formalities required by law. It is admitted on record that the Deputy Settlement Commissioner, Multan, submitted a statement containing list of all the Abadis, which should be declared Katchi Abadis under the relevant provisions of law, on 8-6-1971 The property situated at Chah Thalaywala was not included in the said list for the purpose of being notified as Katchi Abadi. According to para. 9 of Writ Petition No, 18/R-73, Mr. Mukhtar Ahmad Awan, the then Rehabilitation Minister, Punjab visited Chah Thalaywala on 16-6-1972 alongwith the Deputy Settlement Commissioner and other Officers of the Department and asked them to include the land situated at Chah Thalaywala in the list of Katchi Abadis. In spite of that, according to the petitioner, the Deputy Settlement Commissioner did not include the said property in the list of Katchi Abadis. Thereafter the Addl. Settlement Commissioner was asked by the Settlement Commissioner (Implementation), Punjab, to do the needful in this behalf; and further observing in his letter addressed to the Addl. Settlement Commissioner that by not recammending the property in question as Katchi Abadi, the Deputy Settlement Commissioner had not behaved properly and he should beware of the consequences of his conduct. The Deputy Settlement Commissioner, according to the petitioner, then recommended the property in question to be notified as Katchi Abadi, under duress, which was notified as such by the Chief Settlement Commissioner on 19-9-1972. The notification issued in this behalf did not include the porperty subject-matter of Writ Petition No, 827/R-73, but pertained to area measuring 77 kanals 8 marlas, comprising Khasra Nos. 116, 117, 119, 120, 130, 132 to 139, 211, 212 and 241 to 244. Later on by another notification, published in the Punjab Gazette on 27-9-1973, 27 kanals of land belonging to the petitioner, comprising Khasra Nos. 245-min, 246, 248, 122, 123 and 127, situated at Chah Thalaywala, Village Qutubpur, Tehsil and District Multan, was also declared as Katchi Abadi. 7. According to the petitioner, as averred in both the writ petitions, most of the land, permanently transferred to him, is covered by Pucca houses, Pucca bungalows, Pucca shops, offices etc. Situated on the land abutting the Main Shuja Abad Road, with all facilities like the drainage, electricity etc. According to him, some portions of his land are not covered by any building or "Abadi" whatsoever and as such cannot be declared to be Katchi Abadi under the relevant provisions of law. ' In the parawise comments submitted by respondents 1 to 3, it has been admitted that so far as Khasra Nos. 117, 119, 120, 130 and 132 to 139 are concerned, they have been confirmed in favour of the petitioner since long under the relevant entries of R. L. II 60 and 64 of Village Qutabpur, Tebsil and
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District Multan. According to the comments, area measuring 77 kanals 8 marlas was surveyed and it was found that occupants thereof had constructed houses thereon. It has been admitted therein that it was not the Deputy Settlement Commissioner rather the Addl. Settlement Commissioner who recommended the said area of 77 kanals 8 marlas to be declared as Katchi Abadi. Later on the residents of the Abadi, Chah Thalaywala, situated on the other side of the road, subject-matter of Writ Petition 827/R-73 approached the Settlement Authority concerned for declaration of the land occupied by them as Katchi Abadi. According to the comments, the Deputy Settlement Commissioner made the recommendation in this behalf after having surveyed the locality. According to the comments, the total area belonging to the petitioner, so far declared as Katchi Abadi, measures 104 kanals 8 marlas. The averments as made in paras. 8 to 10 of the petition have been admitted in the comments submitted by the respondents. The averments as made in para. 11 of the writ petition have been answered vaguely and it has not been denied unequivocally that the learned Settlement Commissioner (Implementation). Punjab, did not send any letter to the learned Addl. Settlement Commissioner, Melton with regard to "Disposal of Evacuee Land, Katchi Abadis, Multan District" and he did -not express any surprise over the Deputy Settlement Commissioner's conduct in not recommending the land at Chah Thalaywala as Katchi Abadi. 8. It may be mentioned here that Mr. Maqbool Elahi Malik, learned standing counsel for the Rehabilitation/Settlement authorities, has conceded during the arguments that property bearing Khasra Nos. 137, 138 and 139, measuring in all 6 kanals 4 marks, is covered by bungalows. This fact is also admitted in the letter dated 26.9-1972, addressed by the Deputy Settlement Commissioner, Multan to the Deputy Settlement Commissioner (Pol.), Egerton Road, Lahore, available at page 27 of the file maintained by the Deputy Settlement Commissioner, Multan, that majority of the said Khasra numbers, about five kanals in area are covered by bungalows. This very fact has also been admitted in the letter dated 1-8-1972 by the Deputy Settlement Commissioner, Multan, addressed to the Addl. Settlement Commissioner, Multan, available at page 13 of his file. It has also been admitted by Mr. Maqbool Elahi Malik that the property covered by the said three Khasra Nos. Is not a Katchi Abadi as it does not fall under the definition as provided by the relevant provisions of the Act. As such, it is hereby declared that the said three Khasra numbers are not covered by the relevant notifications issued by the Chief Settlement Commissioner declaring the property at Chah Thalaywala as Katchi Abadi. 9. The learned counsel appearing on behalf of the petitioner has contended that since the property belonging to his client was transferred to him on permanent basis in 1963-64 by the competent Rehabilitation Settlement authorities, therefore, the same being not evacuee property cannot be declared as Katchi Abadi. According to him, it is not covered, as such, by any provision of the Act. According to the learned counsel, the land measuring 77 kanals, declared as Katchi Abadi wide Notification dated 19-9-1972, was recommended to be declared as such by the Addl. Settlement Commissioner and not by the Deputy Settlement Commissioner, admitted by the respondents in their parawise comments. According to him, since the relevant provisions of the Act require the Deputy Settlement Commissioner concerned to apply his mind independently under the relevant provision of law in recommending; as to whether a particular property can be declared as Katchi Abadi or not, therefore, the property having not been recommended for such purposes by the Deputy Settlement Commissioner cannot be declared as such. It is contended that the declaration of the property as Katchi Abadi through the relevant notification is, therefore, void and has no legal force. ' It is submitted by the learned counsel that so far as the other property, measuring 27 kanals, situated at Chah Thalaywala is concerned, it was notified as Katchi Abadi by the Chief Settlement Commissioner on 27-9-1973. The Deputy Settlement Commissioner was forced to recommend it as such under the direction of the Rehabilitation Minister of the Government of Punjab. According to
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the learned counsel, it was, therefore, not proper and lawful exercise of the discretion in recommending the said property to be declared as Katchi Abadi, and as such the relevant notification issued in this behalf cannot have any legal force. 10. It has been further argued that many portions of the property declared as Katchi Abadi contain big buildings with all amenities of a good locality available to the residents of that locality. It has also been submitted that many portions of the property, which are not inhabited by any person, have also been declared as Katchi Abadi, though according to the relevant provision of law only that locality can be declared as such which is inhabited. 11. The first question which arises for consideration is : as to whether the land which has been transferred permanently, after having been confirmed, in favour of the petitioner can be treated as evacuee land in terms of the relevant provisions of Katchi Abadi Act of 1972. The preamble of the Act refers to evacuee land in occupation of certain persons. Section 2(f ) of the Act defines "Katchi Abadi" as such area of evacuee land which is otherwise inhabited and declared by the Settlement Commissioner to be Katchi Abadi. Section 4 of the Act provides that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled as from the appointed day and such allottees and transferees would be paid compensation to be determined by the Government. ' It has been argued by the learned counsel appearing on behalf of the respondents that if the land transferred on permanent basis is not covered by the relevant provisions of the Act of 1972 then there was no need to provide for the cancellation of allotments and transfers of evacuee lands as well as for compensation thereof in section 4 of the Act. It has also been argued that since the evacuee land has been defined in section 2(d) of the Act as any land, building or vacant site abandoned by an evacuee, therefore, any definition of the same given in any other law cannot be relied upon. According to the learned counsel for the respondents, any land, whether permanently transferred or not, abandoned by an evacuee would be covered by the definition as given in the Act of 1972. A careful examination of the relevant provisions of the Act would show that stress has been laid upon the character of the land being evacuee, after having been shown such land within inverted commas. 12. As mentioned above, it is not denied that the land in question has been permanently transferred to the petitioner under the relevant provisions of the Land Settlement Act of 1958. Section 4 of the Land Settlement Act provides for power to acquire land. Subsection (2) thereof authorises the Provincial Government to acquire any land in any Province for any of the purposes of the Act. Subsection (3) further provides that on the publication of the notification under subsection (1) or subsection (2) of section 4, 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 or, as the case may be, the Provincial Government free from all encumbrances. After the acquisition of such land abandoned by an evacuee under section 4 of the Land Settlement Act it would cease to be evacuee property as any right, title and interest of an evacuee therein would stand extinguished. It has been held to be so in Rahim Baksh v. Ahmad Bakhsh (1), Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi (2), A. R. Niazi, Advocate and 2 others v. Pakistan through Secretary, Settlement and Rehabilitation Department, Rawalpindi (3) and Mehra v. Zahur Ahmad (4). 13. Section 14 of the Land Settlement Act provides for allotment and disposal of land acquired under section 4 of the Act after having ceased to be evacuee property. Section 15 provides for permanent settlement of such land on such displaced persons whom any land has been allotted by a Rehabilitation Authority before the commencement of the Act under a claim as defined in clause (7) of section 2 or by a Settlement Authority under subsection (1) in such manner and on payment of such fees as may be prescribed by the Central Government. Section 16 of the said Act provides
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that notwithstanding anything contained in any law for the time being in force the land on which a displaced person is permanently settled under the Land Settlement Act shall vest absolutely in such person. ' It has been held in Muhammad Sadiq v. Chief Settlement and Rehabilitation Commissioner (5) that land permanently transferred to a claimant vests in him absolutely and its sale thereafter by the Settlement Authority as evacuee property is illegal. In that case land bearing Khasra No, 271, whim had been transferred permanently to the appellants in that case was disposed of by the Settlement Authority as evacuee property. It was held that its (1) PLC 1964 SC 189 (2) PLD 1965 SC 356 (3) PLD 1968 SC 119 (4) PLD 1971 Lah. 834 (5) 1970 SCMR 366 ' sale as such could not be maintained in law, because it had already been transferred permanently to the appellants who thus became its owner in absolute rights. 14. It is admitted in the present case that the land in question subject-matter of both the notifications was permanently transferred to the petitioner in lieu of his verified claims. While discussing the effect of permanent settlement of evacuee land under section 15(3) of the Land Settlement Act,i it has been held in Saee Muhammad and another v. Talib Hussain Shah (1) that such land is not immune from pre-emption. The plea raised before their Lordships of the Supreme Court that the land sold by the vendor in favour of the appellants in that case was still included in the compensation pool and as such under section 6 of the Land Settlement Act was immune from being proceeded against for any claim in any manner, whatsoever, in execution of any decree or order by any process of Court or other authority, was repelled by holding that the same was not good. 15. It may be mentioned here that necessary rules were framed in 1959 under section 15(3) of the Land Settlement Act which are as follows. (1) After the acquisition of the land under section 4 and the constitution of the Compensation Pool under section 5, the Assistant Settlement Commissioner of the area concerned, shall, except in the case of categories of land specified in proviso to subsection (3) of section 15,- (a) cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government shall be substituted for the evacuee holders of rights in the estate; and (b) then cause separate mutations, to be entered incorporating the conferment of permanent rights on each person holding an allotment on the basis of the entries in register R. L. II, and mutation of inheritence or transfer connected therewith, if any, and pass any order giving the details of the area with the particulars of the person concerned," In the present case, it is not denied that after the permanent settlement of the land on the petitioner necessary action in compliance with the said rules was taken by the competent Revenue authorities and the land as such thereafter, permanently vested in him. The view taken in 1970 SCMR has been confirmed by their Lordships of the Supreme Court in Haji Sultan Ahmad and another v. Muhammad Siddiq (2). The matter to be decided in that case was: as to whether the sale by vendors of their rights and interests in evacuee lands held by them as temporary allottees., confirmed allottees or permanent transferees of land was immune from pre-emption or not. It has been held that as the permanent transferees of land are conferred full onwership rights under the Land Settlement Act, therefore, the sales made by them are subject to the right of pre-emption being sales of agriculture land, as described in section 4 of the Pre-emption Act. After referring to the provisions as contained in section 16 of the Land Settlement Act it has been held that full proprietary rights are conferred upon the displaced persons in the lands permanently settled in their favour under this provision of law. It has also been observed that after
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(1) 1970 SCMR 641 (2) PLD 1973 SC 347 ' the acquisition of the land under section 4 of the Land Settlement Act and the constitution of the Compensation Pool under section 5 thereof the Assistant Settlement Commissioner of the area concerned has to cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government has to be substituted for the evacuee right holders in the estate and thereafter separate mutations have to be entered in favour of the permanent allottees in attestation of the conferment of permanent rights upon them and a detailed attestation order to that effect has to be made showing the name of permanent transferee, the area conferred upon him, including any mutation of inheritance or transfer that may have been effected concerning the land in question. It has been held in that authority that it was obvious that the object of setting up of the Compensation Pool under section 5 of the Land Settlement Act was to bring about the extinction of the evacuee character of the land and to confer the same on the confirmed allottees on the basis of their respective entries in R. L. II. 16. At this stage it may be mentioned that it has been held in Shaukat Hussain RIzvi v. Yar Muhammad etc. (1) that even a displaced person using and occupying urban land allotted to him on temporary basis has the right to retain such land and adjust it against his claim, as contemplated by sections 15 and 16 of the Land Settlement Act, 1958. The respondent in that case was a temporary allottee since 1949. It was held that he could not be disturbed as he could retain the land which could be adjusted against his claim and he could thus be permanently settled on that. 17. The above discussion would show that after the acquisition of evacuee land under section 4 of the Land Settlement Act it ceased to be an evacuee property and all interests and rights of evacuees held therein were extinguished. The character of such property cannot, therefore, be evacuee, as to all intents and purposes it vests in the person whom it has been permanently transferred. As held by the Supreme Court in the authorities referred to above, it cannot be treated as evacuee property and question of calling and terming it as such in any future legislation would not arise. 18. If the intention of the Legislature had been to cover all properties, which had ceased to be evacuee at the time of the enforcement of the Katchi Abadi Act of 1972, then there was nothing to prevent it from mentioning this fact in clear terms in the relevant provisions thereof. Even in the preamble of the Act as well as of the Ordinance of 1972 it has been clearly mentioned that the said enactments aimed at providing transfer of certain evacuee land to the occupants thereof. In the Scheme, which was framed in compliance with Martial Law Order No, 251, referred to above, for disposal of evacuee land in Katchi Abadis, para. 3 thereof clearly provides that the Deputy Settlement Commissioner concerned after making personal survey and such other inquiry, as he may deem appropriate, recommend to the Chief Settlement Commissioner to declare any locality consisting of fifty or more tenements existing on an evacuee land, not already declared as building site under sub clause (b) of clause (3) of section 2 of the Land Settlement Act, as Katchi Abadi. 19. It means the intention was to transfer such property under the Act of 1972, which was still evacuee or at the most still in the Compensation E Pool and had not been disposed of permanently at the time of the enforcement of the Act; otherwise there was no need to term the property as "evacuee (1) PLD 1964 Lab. 469 ' property" in the preamble of the Act and provide in para. 3 of the Scheme' for exclusion of such land from the operation of the Act which had been declared as building site. It is significant to notice that even the title of the Legislation, whether in the form of Martial Law Order, Ordinance XX of 1972 or Katchi Abadi Act of 1972, shows the evacuee land to be transferred.
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20. There is no doubt that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the Statute, where it is expressed in clear unambiguous language, but where such position does not exist in a particular Statute like the present one, preamble of the Act sheds useful light as to what a Statute is intended to achieve. In many judicial authorities preamble has been referred to with advantage as an aid to the construction of the main provisions of the Statute. It is accepted as legitimate aid to construction. It is key to a Statute and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. Reliance in this respect can be placed upon Syed Ikhlaque Hussain v. Habib Ismail Bajwa and another (1), Hassan and others v. Fancy Foundation (2) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Gavernment of Pakistan, Works Divisions and 2 others (3). ' In the last cited case the appellant before the Supreme Court felt aggrieved by the acquisition of certain properties belonging to it at Rawalpindi under the Capital Development Ordinance, 1960. It was argued on behalf of the Capital Development Authority, Islamabad, the respondent in that case, that the acquisition as such was within the framework as well as according to the aims and purposes set out in the C. D. A. Ordinance. While referring to the preamble of the Ordinance, their Lordships of the…
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