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Petitioner: Nawab Syed RAUNAQ ALI ETC VS Respondent: CHIEF SETTLEMENT COMMISSIONER AND JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Salahuddin Ahmad, Hamoodur Rahman, Sajjad Ahmad Jan Title:Nawab Syed RAUNAQ ALI ETC vs CHIEF SETTLEMENT COMMISSIONER AND
JUDGMENT
Reported As: PLD 1973 Supreme Court 236 Result: Appeals accepted Judgment JUDGMENT HAMOODUR RAHMAN, C. J.-These fourteen appeals arise out of two judgments of the former High Court of West Pakistan. The first was delivered by a Division Bench at Lahore dismissing thirteen Writ Petitions and the other was delivered by a learned Single Judge at Karachi in Writ Petition No. 8 77/R of 1963 dismissing the writ petition in limine. These appeals which raise common questions of law and are based on more or loss similar facts were heard in three batches at Lahore and Karachi, as different sets of learned counsel appeared for the appellants in these appeals. As the questions of law raised are the same, these appeals will be disposed of by this judgment in which I propose first to deal with the common questions of law and then apply the conclusions reached by me on these common questions to the facts of each case. The appellants in all these cases were formerly residents of the State of Hyderabad (Deccan) but they migrated to Pakistan on different dates and filed claims here under the Registration of Claims (Displaced Persons) Act (III of 1956). The object of this Act was to provide for the registration and verification of claims of displaced persons in respect of the properties left behind by them in India. The Act, therefore, empowered the Central Government to appoint, by notification in the official
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Gazette, Claims Commissioners, Additional Claims Commissioners, Deputy Claims Commissioners and Claims Officers to act under the general superintendence and control of the Government and to discharge the duties imposed upon them by or under the Act (vide section 3). The scheme of this Act was that claims were to be first registered with a Registering officer appointed under the Act and then they were to be verified by holding an enquiry by a Claims Officer or a Deputy Claims Commissioner in the first instance. Thereafter an appeal was provided from an order of a Claims Officer to the Deputy Claims Commissioner and from the order of a Deputy Claims Commissioner to the Additional Claims Commissioner. Then a general power was given to the Claims Commissioner to suo motu call for the record of any case decided by a Claims Officer a Deputy Claim a Commissioner or an Additional Claims Commissioner, in order to satisfy himself as to the correctness, legality or propriety of the order, but he could not revise or modify the same without first giving an opportunity to the person affected of being heard. The Claims Commissioner and the Additional or the Deputy C13ims Commis--sioner were also given the power to review their own orders within the prescribed period after giving notice to the patties. Subject to these provisions, however, subsection (5) of section 7 of this Act gave finality to the orders of the Claims Commissioner, the Additional Claims Commissioner, the Deputy Claims Commis--sioner and the Claims Officer and granted them immunity from being called in question in any Court. By section 12, the jurisdiction of the civil Courts was also taken away with respect to any matter, with regard to which the Claims Commissioner or any of his subordinate officers was granted power to take action under the Act. In fact, all actions taken under the Act in good faith by any authority or any Government were saved by section 13 from any kind of challenge by any kind of suit, persecution or other legal proceeding. Under subsection (3) of section 2 of this Act, a "claim" was defined as "the assertion of a right to the ownership of, or to any interest in, property which has been treated as evacuee property or of which a displaced person has otherwise been deprived, under any law for the time being in force in India or in any area occupied by India, except Assam, West Bengal, Tripura and Manipur". By subsection (2) of this section, "property" was defined as follows :- "(2) "Property" means- (2) Any immovable property situated within the limits of a Corporation, a Municipal Committee, a Notified Area Committee, a Town Area Committee, a Small Town Committee, a Sanitary Committee and a Cantonment as those limits existed on the 15th August 1947; (b) Industrial concerns such as factories slid workshops outside the limits referred to in clause (a) above and sites there of; (c) Land situated outside the limits referred to in clause (a) above and occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture including- (i) The sites of buildings and other structures on such land; (ii) A share in the profits of an estate or holding; (iii) Any dues or any fixed percentage of land revenue payable by an inferior land-owner to a superior land-owner; (iv) A right to receive rent; and (v) Any right of occupancy; (d) Substantial houses, shops and godowns outside the limits referred to in clause (a) above, provided their present value in each case is not less than rupees ten thousand; and (e) Any other property or class of property which the Central Government may, by notification in the official Gazette, declare to be property for the purposes of this act." Under the rules framed under section 18 of this Act, Forms were provided for submission of claims, and these Forms were of five different kinds set out in five Schedules. The First Schedule related to properties in urban areas other than industrial Concerns, the Second related to properties in rural
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areas, the Third related to industrial concerns, the Fourth related to agricultural lands and gardens in urban areas, and the fifth related to agricultural properties in areas other than Punjab, Delhi, etc. All the appellants claimed inter alia to have left behind in, India Jagirs of various kinds comprising agricultural lands said to have been granted to them by the Nizam which, according to them, came within the definition of "property" given under the Act (III of 1956) and filed claims under Schedule V. The Claims Authorities were doubtful about the correctness of this contention. Hence, on the 7th of April 1958, a notification was issued adding a new Schedule V-A in the proviso to sup- rule (2) of the Registra--petition of Claims (Displaced Persons) Rules, 1955. This Schedule V-A was to the following effect :- "SCHEDULE V-A (For Jagirs/Fauji Jagirs with or without Muafi benefits or Jagirs and Muafees in the form of hereditary assignment of land revenue or rent and maintenance allowance payable by rte Ruling Princes or their Governments to their dependents). Situation- (a) Village. (b) Police Station. (c) Tehsil/Taluka. (d) District. (e) Province/State. Whether it was: (a) jagir with proprietary rights in land with or without Muafi benefits, or (b) Fauji Jagir consisting of land with or without Muafi benefits, or (c) Hereditary assignments of rent or land revenue, or Maintenance allowance payable by the Ruling Princes/ State Governments to their dependents." The appellants, who had already filed their claims, thereafter got their claims under Schedule V converted into claims under Schedule V-A and those who had not filed any claim under Schedule V filed their claims under Schedule V-A. Unfortunately, further complication was created a little later when Martial Law was imposed in the Country in October 1958. Soon after came provisions for land reforms in the shape of Martial Law Regula--petition No. 64 which was promulgated on the 7 of February 1959, and gazetted on the 3 of March 1959. By paragraph 21 of this Regulation, all Jagirs, of whatever kind and by whatever name described, subsisting immediately before the commencement of this Regulation, stood abolished and the right, interest or estate granted, assigned, released, created or affirmed by such Jagirs reverted to Government free from any encumbrance or charge. Sub-paragraph (6) of this paragraph also provided that no Jagir shall be created after the commencement of this Regula--petition. After the promulgation of Martial Law Regulation No. 64, the Claims Commissioner, it is said, issued a circular in May 1959, advising all Claim Officers to treat claims filed under Schedule V-A as claims under Schedule V and to verify the same, accordingly, although the last date for the filing of claims had expired, even according to the appellants, on the 30th of September 1958. The Government itself, on the 25 of September 1959, issued another Notification being S. R. O. 466 dated 25th of September 1959, which was gazetted on the 2nd of October 1959, rescinding the earlier Notification No. F. 2(12)/55 Clms. Dated 7 April 1958, whereby Schedule V.A had been added to Rule 3 of the Registration of Claims (Displaced Persons) Rules, 1955. But before this rescission was gazetted, the claims of the appellants were verified by the Deputy Claims Commissioners and entitlement certificates were issued to them. Then came Martial Law Regulation No. 84 of 1950 on the 28 of December 1960. Under this Regulation, all displaced persona, who had submitted a claim, were required to file a written statement relating to all the true facts of such claims and such statements were thereupon toth rd th th th
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replace their original claims. Further verification or re-verification of claims was stopped and the Chief Settlement Commissioner was to prepare a fresh scheme for verification or re verification of claims on the basis of the record, and on such re-verification, under this Scheme, fresh allotments would be made and earlier allotments were to stand cancelled or modified. Transfers made in respect of allotments already made were declared void to the extent of the area which, on verification or re-verification under the Scheme prepared under this Regulation, were found to be in excess of the entitlement of the person. This contemplated that records will be available from India for the purposes of verification, but unfortunately this did not happen A Scheme was, however, prepared by the Chief Settle--ment Commissioner which unfortunately did not contemplate compensating any displaced person in respect of jagirdari nights. The highest rights proposed to be compensated under Martial Law Regulation No. 84 were zamindari rights. As Records-of-Rights ultimately were not made available by India, Martial Law Regulation No. 84 was amended by Martial Law Regulation No. 89. The claims contemplated to be re-verified under both these Regulations were claims filed under Schedules IV and V under the Registration of Claims (Displaced Persons) Rules, 1955, and by this last Regula--petition a graduated scale of entitlement was laid down. In other words, all persons having claims of more than 1500 produce Index units were to receive only a portion of their claims ranging from 30% to 10% in accordance with the magnitude of the produce index units claimed. The higher the claim, the lower was the percentage of entitlement. Fresh entitlement certificates were to be issued on this new scale and fresh allotments were to be made on the basis thereof. Excess areas were to be surrendered, and to vest in the Government. This Regulation, however, did not, by reason of the provisions of paragraph 13 thereof, apply to claims in respect of the lands situated in the territories of the States of Jammu & Kashmir, Hyderabad, Junagarh, Manavadar, Mangrol, Sardargarh, Bantva and Sultanabad then in occupation of India. Lastly came Martial Law Regulation No. 91 on the 25 of September 1961, which further amended Martial Law Regula--tions Nos. 84 and 89. The amendments brought in by this Regulation are not relevant for the purpose of these appeals, as the exclusion of the provisions of the Regulation No. 89 for scaling, down were not applicable to the appellants who had filed claims in respect of lands situated In the territories of the State of Hyderabad. The original Martial Law Regulation No. 84 was applicable and they had all filed written statements in accordance with that Regulation. It was in this state of affairs that on various dates in 1963 the Officer on Special Duty, Central Record Office, Lahore, issued notices to each of the appellants to show cause as to "why the entitlement certificate issued in your favour be not cancelled". The ground given for the issuance of such notices was that the verification orders in these cases verifying the claims of the appellants under Schedule V were, according to Notification No. S. R. O. 466, dated 25-9-1959, without jurisdiction, as, after the cancellation of the Notification of the 7th of April 1958, the scope of the term "property" could not be extended to cover cases of Jagir and muafee lands. Most of the appellants showed cause in writing and maintain--ed that their claims related to interests in land which had been treated as evacuee property In the State of Hyderabad and, there--fore, they were entitled under the Registration of Claims (Dis--placed Persons) Act (III of 1956) to lodge such claims and to have the same verified in accordance with law. They called upon the Officer un Special Duty to withdraw the said notices, but as he failed to do no, they invoked the extraordinary jurisdiction of the High Court under Article 98 of the Constitution of 1962. The main contention put forward on their behalf was that, since their claims had been duly verified in accordance with the procedure laid down by the Registration of Claims (Displaced Persons) Act (III of 1950, entitlement certificates had been issued by the Central Record Office and allotments of land made on the basis of such certificates, the verifications had acquired a finality under theth
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provisions of the said statute and they could not now be reopened by anyone-certainly not by the Officer on Special Duty as he had no power to sit on appeal over the decisions of the Claims Authorities. They further maintained that, since their verifications had been completed before the rescission of the notification of the 7 of April 1958 by SRO-466 published is the Gazette, Extraordinary on the 2nd of October 1959--, the rights that had already vested in them could not be taken away retrospectively by another notification. According to them, the verifications were also in accordance with law, because, Jagirs, whatever their nature might be in other parts of the Indo-Pakistan Sub-Continent, were of such a nature in Hyderabad State that they certainly conferred very valuable interests in land which were also transferable as well as heritable subject only to the formal approval of the Nizam. On behalf of the Officer on Special Duty, on the other hand, --it was argued that he had every jurisdiction under paragraph 8 of the Supplementary Rural Scheme No. 1, framed under the Pakistan Rehabilitation Act (XLII of 1956), to verify and check entitlement certificates issued by the Central Record Office even after their issuance and to cancel the same if It is found that the certificates had not been lawfully issued. According to the Officer on Special Duty; the Claims Commissioner had no jurisdiction, after the promulgation of Martial Law Regulation No. 64, to direct that the claims filed under Schedule V-A should be treated as claims under Schedule V and verified accordingly. Such verification was, accordingly, a nullity in the eye of the law and he was entitled to ignore such verification and cancel all entitlement certificates issued on the basis of such an incompetent verification. It is furthermore contended on behalf of the Officer on Special Duty that it is manifest from the notification issued on the 7 of April 1958, that claims in respect of Jagirdari rights could not have been preferred under Schedule V. It is for this precise reason that Schedule V-A was added and, therefore, when Jagirs of all kinds, no matter how created or by what name described, were abolished by Martial Law Regulation No. 64, the Claims Commissioner had no jurisdiction at all to say that nevertheless jagirdari rights were rights or interests in the land which could be verified under Schedule V. The High Court entered upon an examination of the nature of Jagirdari rights in Hyderabad State and came to the conclusion that the rights conferred by the Nizam did not create any interest in the land itself. It was merely a grant of a personal right to receive certain profits from the laud and no more. They were not heritable, for, after the death of each grantee, the grant as resumed and a re-grant was made to one of the heirs, only if one was found to be worthy of holding the grant. The Jagir did not, however, descend according to the law of succession, for, it was open to the ruler not to renew the grant in favour of an heir who was not, according to the ruler, deserving of the grant. The High Court also upheld the contention of the Officer on Special Duty that the verifications were wholly without jurisdiction after the promulgation of Martial Law Regulation No. 64 on the 7th February 1959 and, therefore, a nullity in the eye of law. The Claims Commissioner was held not to be entitled to direct the verification of claims filed under Schedule V-A as claims under Schedule V. All the Writ Petitions were, accordingly, dismissed. Leave was granted in these cases to consider whether the High Court was right in taking the view that the orders passed by the Claims Commissioners' Organization verifying the claims of the appellants were a nullity in law, or could be said to have been made without jurisdiction, in view of the findings of the Claims Commissioners' Organization that the Jagirs, in respect of which claims were filed, came within the extended definition of "proper--ty" under the Notification of the 7th of April 1958. Learned counsel appearing on behalf of the appellants have contended that Martial Law Regulation No. 64 only abolished Jagirs situated in Pakistan but did not, and. Could not, have theth th
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effect of abolishing Jagirs left behind in India. The appellants were not given Jagir rights in Pakistan in lieu of Jagirs left behind in Hyderabad but were allotted lands like other displaced persons coming over from India. Martial Law Regulation No. 64 would not, therefore, have the effect of automatically cancelling the Notification of the 7th of April 1958, which was issued in exercise of the powers conferred by sub-clause (e) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956, and read as follows :- "No. F. 2(12)/55-Clms., 7th April 1958 (Gazette Extra-ordinary, 9th April 1958).-In exercise of the powers conferred by sub-clause (e) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1 956 (III of 1956), the Central Government is pleased to declare the following classes of property to be property for the purpose of the said Act, namely :- (1) Jagirs consisting of proprietary rights in land with or without muafi benefits. (2) Fauji Jagirs consisting of land with or without muafi benefits. (3) Jagirs and Muafees in the form of hereditary assignments of rent or land revenue granted by the Government. (4) Assignments of rent or land revenue. (5) Maintenance allowances payable by the Ruling Princes or their Governments to their dependents." This clause (e), quoted earlier, gave power to the Central Government to enlarge the definition of "property" given in the above-mentioned Act by declaring under a notification in the official Gazette "any other property or class of property" which should be dealt with as "property" for the purposes of this Act. Martial Law Regulation No. 64 did not say that Jagirs left behind In India were not to be treated as property in Pakistan. Again the Notification No. SRO-466, although dated the 25 of September 1954, was not published in the Gazette till the 2 of October 1959, and, therefore, carne into effect from that date It could not possibly cancel the Notification of the 7 of April 1958, with retrospective effect and, therefore, all verifications made before that date acquired finality by reason of the provisions of section 7 of the Act of 1956 and could only be revised, altered, modified or cancelled thereafter by a Claims Commissioner under tile provisions of subsection (3) of section 7 of the said Act. In the present cases, the verification orders were made by a Deputy Claims Commissioner. An appeal lay from this order to an Additional Claims Commissioner, but no such appeal was taken. Entitlement certificates, according to the verification orders, were issued and in some case even allotments were made before the cancellation of the Notification published on the 2 of Octo--ber 1959. If any doubt was felt even thereafter with regard to the validity of these verification orders, revisions could have been taken before the Claims Commissioner and mistakes, if any, corrected; but the Officer on Special Duty, it is contended, could not sit on appeal over the Claims Authorities. The Officer on Special Duty is not an officer specified either tinder the Pakistan Rehabilitation Act (XLII of 1956) or the Registration of Claims (Displaced Persons) Act, 1956 or the Rehabilitation Settlement Schemes framed under the Pakistan Rehabilitation Act, 1956. His name appears for the first time in the Supplementary Rural Scheme No. 1 in 1957 when allotments were decided to be made to displaced persons in lieu of claims verified under Schedule V of the Registration of Claims (Displaced Persons) Act, 1956. The procedure adopted then was that the Rehabilitation Commissioner, West Pakistan would first invite applications within a specified period for allotment of lend under this scheme in Form QPR-1 from claimants whose claims had been verified. The claimants were required to attach a certified copy of the order of verification passed by an officer of the Claims Organization along with their applications for allotment. On receipt of such applications, they were to be sorted out district --wise and linked with the relevant Interim Relief Scheme Entitle--ment slips in Form IR-IV and then entered in the Entitlement Register in Form QPR- 1V. Thereafter, a third "checking of the details" mentioned in the applications and the relevantth nd th nd
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verification orders wall to be made, and only after that Entitlement Certificates In Form QPR-V were to be issued In triplicate. In cases where the verification order was silent about the nature of any of the rights of the claimant over any land, the details furnished in the application of the claimant in that behalf were to be accepted. Then, if the verified claim was in excess of 20,000 produce index units, it was to be reduced by 50 percent and in no case was any allotment to be made in excess of 36,000 produce index units. Now, in this connection, paragraph 8 of Part 11 of the Supplementary Scheme No. 1 provided that the Form QPR-V was to be signed by an officer not below the rank of Tehsildar and the Officer on Special Duty (Central Record Office) was to check some of these certificates "before or after issue" and initial the office copy of the same in token of his having done so. Then followed instructions for determining the scales of allotment in respect of different kinds of rights, the method for determining the produce index units per acre of soil left in India, the classification of the soil, the conversion of the verified area abandoned into standard acres in accordance with the procedure prescribed by the Rehabilitation Commissioner and then conver-- sion of the standard acreage according to the classification of the soil into produce index units in accordance with the tables laid down and the entering thereof in Form QPR-V after taking into, consideration the maximum scale of allotment prescribed. If any claimant was dissatisfied with the area given to him in the QPR-V Form, he was given the right, by paragraph 15-A, to file an objection along with the Entitlement Certificate issued in his favour to the Officer on Special Duty for re-verification. In this connection, the provisions of paragraph 17 of the Supplementary Rural Scheme No. 1 are significant. This paragraph reads as follows: -- "In the case of a claim under Schedule V of the Registration of Claims (Displaced Persons) Act, 1956, which is totally reject--ed, or where the area verified is less than 25 percent of the area claimed, the Claims Commissioner shall be required to forward to the Officer on Special 'Duty (Central Record Office) a certified copy of the order within 15 days of the passing thereof. This order will be entered in register in Form QPR-VII and will be linked up with the relevant entry in the register in Form IR-III. The Officer on Special Duty (Central Record Office) will take im--mediate action to get IR-IV back from the local authorities of the…
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