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Petitioner: Syed SHAKIR HUSSAIN AND 4 OTHERS VS Respondent: CHIEF SETTLEMENT AND JUDGMENT
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title:Syed SHAKIR HUSSAIN AND 4 OTHERS vs CHIEF SETTLEMENT AND
JUDGMENT
Reported As: PLD 1971 Lahore 578 Result: Petition accepted Judgment JUDGMENT The petitioners are five brothers who are displaced persons from non-agreed area (Allahabad) India (now Bharat). They filed a joint claim form bearing No, 1759/T under the Registration of Claims (Displaced Persons) Act III of 1956, for an area of 60 Bighas and 9 Bighas of allegedly Chahi Agricultural land left by them in village Rasoolpur Soni in Tehsil Manjanpur District Allahabad. The claim form was verified by Mr. S. Saghir-ulHassan Claims Officer, Rawalpindi on 6-10-1959, fixing one-fifth as the share of the each petitioner. 2. For the purposes of allotment, these:claims were to be dealt with under the Scheme known as "Supplementary Rural Scheme to the West Pakistan Rehabilitation Settlement Scheme", which is printed on page 201 of the book entitled: "The Displaced Persons (Land Settlement) Act (XLVII of 1958)" by M. A. Latif (1958 Edition) (hereinafter called the Book of Latif or Latif's Book). According to Para. 4 of Chapter I, Part II of this Scheme, Rehabilitation Commissioner, West Pakistan Lahore, was to issue a Press note inviting application within specified period for allotment of land under the Scheme in Form QPR-I from claimants whose claims under Schedule V of the Registration of Claims (Displaced Persons) Act III of 1956, had been verified. The claimant was required to attach a certified copy of the order of verification along with his application. The last date for filing form QPR-I was 31-5-1960. Five applications in the form of QPR-I were filed in this case by the petitioners on the 2nd of January 1960, and after the usual checking five respective certificates of entitlement in form QPR-V were issued to them. According to these certificates, each petitioner was entitled to land equivalent to 177 P. I. Units. The total entitlement of the family in this way was 885 P. I. Units. After verification, the certificates of entitlement (Q. P. R. Vs.,) were sent to D. R. C., Bahawalpur by the
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Central Record Office. From the D. R. C., Bahawalpur the petitioners on the 11th of February 1960, received notices to intimate the place or places where they wished to obtain land. No choice for any place in District Bahawalpur was given by the petitioners and they rather applied for the transfer of certificates of entitlement (Q. P. R. Vs.,) to Shandra, District Sheikhupura. It is claimed that consequent to this request, the Q. P. R. Vs., of the petitioners reached Tehsildar, Shandra on the 22nd of September 1960, who issued notices to the petitioners to appear and persue their cases before him. On the choice of the petitioners, land in Village Khori was proposed to them on 1-11- 1960. Petitioner No, 1 was proposed land at Khata No, 227; Petitioner No, 2 at Khata No, 228; Petitioner No, 3 at Khata No, 230; Petitioner No, 4 at Khata No, 231 and Petitioner No, 5 at Khata No, 229. The case of the petitioners is that the Tehsildar/A. R. C. did the preliminary checking and issued unsigned Khatonis to them on the basis of which the petitioners are alleged to have obtained possession on 2-11-1960. The land which was thus taken possession of by the petitioners, comprised of 179 kanals and 6 marlas (Barani); 10 kanals (Ghair Mumkin), 62 kanals and 12 marlas (Banjar Qadeem) and 8 kanals (Banjar Jadeed); total being 259 kanals and 18 marlas. The petitioners state that after obtaining possession of the land, they spent a huge amount in levelling the same and cultivating the crop of Kharif 1960 etc. 4. On the 2nd of January 1961, was promulgated Martial Law Regulation No, 84, which was recast with retrospective effect by Martial Law Regulation No, 89 (which appeared in the Gazette dated' 1- 9-1961). Martial Law Regulation No, 84 in its original form is printed at page 311 of Latif's Book. According to Para. 3 of the Regulation, every claimant was required to submit a written-statement in Form M. R. I which was to replace the original claim. If the written-statement was not filed, then the claim was to stand as cancelled. After the filing of the written-statement, a fresh verification was to be done under a Scheme prepared under Paragraph 5 of the Regulation. The Scheme is printed at page 314 of the Book hereinbefore mentioned. After the routine verification, an entitlement certificate was to be issued in the form of M. R. V. If a person was found not eligible to any land, he was to be issued a Nil Certificate. The entitlement certificate was to be sent to the field, where the allotment, if already obtained, was to be adjusted and the excess land, if any, was to be surrendered. Paragraph 10-A of Martial Law Regulation No, 84 provided that if any person had any grievance against the entitlement certificate, he could file objections and persue the same. The written-statement, hereinbefore mentioned, was to be accompanied by the previous certificate known as Q. P. R. V. (which may have been issued earlier to any claimant under Supplementary Rural Scheme), reference to which has already been made in Paragraph No, 2 of this judgment. This was the procedure prescribed under Martial Law Regulation No, 84 as originally promulgated. 5. With the reconstitution of the said Regulation in the form of Martial Law Regulation No, 89, the Entitlement Certificates in the form of Q. P. R., Vs.," issued under the Supplementary Rural Scheme were to stand cancelled automatically and claims were to be revivified in accordance with the scale laid down in the form of a system in Paragraph No, 5 of the Martial Law Regulation No, 89. 6. After the promulgation of Martial Law Regulation No, 84, the case of the petitioners is that they filed written-statements in the form M. R. I. on the 18th of February 1961, for which they were given receipts in the usual pro forma M. R. III. When Martial Law Regulation No, 84 was reconstituted on 1- 9-1961, no new declaration or written-statement was filed by the petitioners, because according to them, no such declaration or statement was needed, especially, when they had earlier filed written-statements in the form of M. R. I. under the original Martial Law Regulation. In this state of affairs, five entitlement certificates in form M. R. V. were issued to the petitioners, the chief characteristic being that in them the entitlement was reduced to and fixed at 91 Produce Index Unit (instead of 177 fixed earlier in the Q. P. R. Vs. The particulars of these certificates are as follows : -- 1 2 3
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Name Certificate Entitlement S. Shakir Hus - sain Pet. No, 1.Entitlement Certificate dated 21-10-1961.No, 91 P. K Units 131/F S. Mumtaz Hus - sain Pet. No, 2.Entitlement Certificate 132/F dated 21-10- 1961.No. do. S. Mushtaq Hus sain Pet. 3. Entitlement Certificate 133/F dated 23-10- 1961.No. do. S. Anwar Hus - sain Pet. No, 4. Entitlement Certificate 135/F dated 21-10- 1961.No. do. S. Ashfaq Hus - sain Pet. 5.Entitlement Certificate 134/F dated 21-10- 1961.No. do. The version of the petitioners is, that in the case of petitioner No,3 M. R. V. was sent by the Central Record Office to D. C., Sheik hupura on the 30th of October 1961, and the remaining M. R. Vs , were sent to Bahawalpur by mistake. On the pointing out of the concerned petitioners, the remaining entitlement certificates in the form M. R. V., were also received in Sheikhupura on 20-11-1961. 7. A little earlier, on the 15th of October 1931, Khatas of the petitioners had been cancelled (ex parte) by the A. R. C., apparently, under Para. 7(1) of Martial Law Regulation No, 89, which inter alia stated that, "all certificates in Form Q. P. R. V. and U. R. V. and certificates showing title to land under the original Regulation and any allotment of land made on the basis of any such certificate, shall stand cancelled and shall be deemed never to have been issued or made." Thereafter the land in dispute was proposed in favour of Mst. Hussaini Begum respondent No, 4 on 30-1-1962 and preliminary Khatoonis were issued in her name on 1-3-1962 and her allotment was later on confirmed on 3-8- 1962. 8. Against the last mentioned order, dated 3-8-1962, the petitioners filed an appeal which was rejected by the Deputy Settlement and Rehabilitation Commissioner on 19-10-1962 (Annex. "F") holding that the land in dispute had rightly been cancelled from the names of the petitioners and that they should be accommodated on some other land if available in the village. 9. The petitioners filed a revision which was decided by Mr. Muqarrab Khan, Addl. Settlement and Rehabilitation Commissioner by means of his order, dated 22-12-1962 (Annex. "G") whereby he remanded the case to the Court below after framing certain issues. 10.The petitioners then filed a second revision which was rejected by Mr. Ijaz Hussain Shah Settlement and Rehabilitation Commissioner on 27-4-1963 (Annex. "H") on the ground that no second revision was maintainable before him. The petitioners have come up in writ petition against the aforesaid orders of the Settlement and Rehabilitation authorities. The Writ Petition was filed on 14-5-1963. 11.It may be mentioned that while ordering a remand as mentioned in Para. 9 of this judgment, Mr. Mug arrab Khan, learned Addl. Settlement and Rehabilitation Commissioner, had framed the following issues :-
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(1)Whether the petitioners were temporary allottees of the land and the land was in their rightful possession at the time of the allotment of the respondent ? (2)Whether the petitioners went in appeal against the order of the Assistant Rehabilitation Commissioner (Land), dated 15-10-1961 before the land was allotted to the respondents ? (3)Whether between the date of the first proposal and the date of cancellation of the Khatas of the petitioners, they made any effort to get the land confirmed, if so, the relevant record should be examined ? This learned Deputy Settlement and Rehabilitation Commissioner, by his order, dated 5-6-1963 (Annex. "R/1") decided all these issues against the petitioners. When the writ petition was filed, it is obvious that this order did not exist in the field. The case of the petitioners is that they did not submit to the jurisdiction of the learned Deputy Settlement Commissioner in remand proceedings and when the 'said officer passed an order against them, taking it to be an off-shoot of the orders which have been challenged in this writ petition, they filed a Civil Miscellaneous Application bearing No, 4568 of 1968 for raising objections with regard to the order passed in remand. Notice of this application was directed to be issued on the 21st of October 1968, to the learned counsel for the respondents so that they may be prepared on the points which were sought to be raised therein. The question as to whether the said points would be allowed to be raised was left open to be decided at the time of the hearing of the writ petition. 12.The foremost question which arises in the context of the events hereinbefore mentioned is, as to whether the Settlement and Rehabilitation Commissioner was justified in throwing out the petitioners' revision petition on the ground that he had no jurisdiction to deal with the same. If the answer is in the negative, then his order will have to be set aside on account of his having failed to exercise jurisdiction vested in him by law and the case shall have to be sent back to him to decide the revision petition. The question depended upon the proper construction of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ; the Martial Law Regulations noted earlier and other allied law or laws. Since the question was of first inception and was quite difficult and was likely to had to far-reaching consequences, I desired to have the departmental view of the Chief Settlement Commissoner as also of the Central Government. I asked Sardar Hidayat Ullah Khan Mokal, learned Settlement Commissioner (Legal) and Mr. M. B. Zaman, learned Advocate-General to have the said views in black and white so that I may have the benefit of departmental construction. Sufficient and long adjournments were given for this purpose, but I must regret that the said view was not placed before me. In the last resort Mr. M, B. Zaman felt that having asked for time on various occasions for this purpose, he could not venture to suggest indefinite prolongation of this case in this manner any further and submitted that he would present his own point of view on the subject and could not be a party in the delaying of the hearing of the case. He argued well and I must acknowledge the effort he put in this behalf. 13.The claims of the kind were initially registered under the Registration of Claims (Displaced Persons) Act III of 1956 and were verified under its section 6 read with the Registration of Claims (Displaced Persons) Rules, 1955, and the circulars and the directions of the Central Government and other competent authorities issued thereunder from time to time. We need not go into the details of that procedure as the same is not so much relevant in this case. After the claim was verified, an entitlement certificate was issued to a claimant on the basis of which he became eligible to obtain allotment of land (so far as the facts of this case are concerned), as contemplated in (a). The Rehabilitation Settlement Scheme ; (b) read with Supplementary Rural Scheme to the West Pakistan Rehabilitation Settlement Scheme. The sanction for making allotment in pursuance of these Schemes was contained in the Pakistan Rehabilitation Act XLII of 1956. On 23- 9-1958 was promulgated the Displaced Persons (Land Settlement) Act (XLV1I of 1958), which aimed
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at providing on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property. In India or in any area occupied by India and for matters incidental thereto or connected therewith. Section 4 of the Act authorises inter alia the Central or Provincial Government to acquire evacuee land for any of the purposes of the said Act. In pursuance of this law, there were issued two notifications ; one bearing No, 1676- RR/4R-59, dated 15.4-1959 and the other bearing No, R.5/1-60 (1462), dated 8-6-60. There is no indication in the notification, dated 8-6-1960, whether it is in supersession or in modification of the earlier notification, dated 15-4-1959. The later notification, obviously, refers to the land which was not covered by the earlier notification of the Central Government, dated 15-4-1959. By the earlier Notification, all lands, which were under allotment had been acquired. The notification, dated 8-6- 1960 applies to evacuee agricultural lands other than those which were under allotment and an exception was created in respect of the land with regard to which any proceedings were pending on the date of that notification under the Pakistan Administration of Evacuee Property Act XII of 1957. The effect of the two notifications, when read together, is that all the evacuee agricultural land, which had been validly allotted prior to the 15th of April 1959, ceased to be evacuee property after the notification of the said date even if a proceeding (other than the proceeding for a declaration that it was not evacuee property), was pending in respect of any such land under the Administration of Evacuee Property Act, 1957. The rest of the evacuee agricultural land remained vested in the Custodian till the 8th of June 1960, when the same, except the land about which any proceedings including those for the confirmation of the transactions were pending under the Pakistan Administration of Evacuee Property Act of 1957, were acquired under section 4 of the Displaced Persons Land Settlement Act 1958 (See Ghulam Muhammad v. The Custodian, Evacuee Property ). Land so acquired fell into what is known as the "Compensation Pool" under section 5 of the Displaced Persons (Land Settlement Act XLVII of 1958), for the purpose of granting compensation to displaced persons whose claims have been verified. Section 7 states that "For the effective utilisation of the "Compensation Pools" and "Trust Pool", in pursuance of the provisions of this Act, or the rules made thereunder or for the administration of any property in the pools, the Central Government may take such steps for the custody, management and disposal of the pools as it considers necessary". Subsection (2) of this section lays down that, "subject to such orders as the Central Government may make under subsection (1), the Chief Settlement Commissioner may take such measures as it considers necessary or expedient for the purpose of securing, administering, preserving or managing any property in the pools and may for any such purpose as aforesaid, do all acts, and incur all expenses necessary or incidental thereto and may, in suitable cases, create a charge on any such property." Section 9 provides that, "the Central Government may, by Notification in the official Gazette, appoint a Chief Settlement Commissioner and such number of Settlement Commissioner ; Additional Settlement Commissioner; Deputy Settlement Commissioners and Assistant Settlement Commissioners, as may be necessary for the performance of duties and functions assigned to them by or under this Act and may by general or special order, provide for the distribution or allocation of work to be performed by them." At this stage, may be noted the definitions of certain relevant words as given in the said Act. Section 2(1) defines, "allotment" so as to mean, "an allotment of agricultural land made to a Displaced Person under this Act, or under any scheme in lieu of any claim registered and verified or deemed to have been registered and verified, under any of the (enactments mentioned therein which include the Registration of Claims (Displaced Persons) Act III of 1956). Section 2(7) defines a "scheme" so as to mean, "a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956, or section 7 of the Baluchistan Rehabilitation Regulation, 1950. Section 2(8) defines "Settlement" so as to mean, conferment on a Displaced Person of any permanent right in or title to, any land under this Act, whether such right or title be proprietary,1
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occupancy, tenancy or of any other kind." Section 2(9) defines, "verified" so as to mean, "as respects claims registered under the Registration of Claims (Displaced Persons) Act, 1956 verified under that Act, and as respects claims registered under any of the enactments mentioned in clause (1) verified in accordance with the provisions of that enactment." In subsection (10) of section 2, it is laid down that "all other words and expressions used but not defined in this Act and defined in the Registration of Claims (Displaced Persons) Act, 1956, the Pakistan Rehabilitation Act, 1956 the Pakistan Administration of Evacuee Property Act, 1957, or the Displaced Persons (Compensation and Rehabilitation) Act, 1958, shall have the same meaning as assigned to them in those Acts." Section 10 authorises the Chief Settlement Commissioner to cancel any allotment obtained by fraud and misrepresentation. Section 11 authorises him even otherwise to cancel or terminate any allotment or to amend or vary the terms of any allotment. Section 14 authorised the Chief Settlement Commissioner to prepare one or more Scheme for allotment to displaced persons against their verified claims of land in the "Compensation Pools" constituted under section 5. Section 15 states that Settlement Authority, especially, empowered by the Chief Settlement Commissioner in this behalf shall in respect of such verified claims, against which no allotment has been made, before the commencement of this Act, proceed to make an allotment to the displaced person concerned in accordance with the Schemes executed under section 14. Its subsection (2) lays down that subject to the provision of subsection (1) of section 11, an allotment to a displaced person under subsection (I) shall be made on the basis of his entitlement as determined under this Act, or the rules made thereunder. In subsection (3), it is written that a displaced person to whom any land has been allotted by a Rehabilitation Authority, before the commencement of this Act, under a Scheme, as defined in clause (7) of section 2 or by a Settlement Authority under subsection (1) shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government ; provided that no order of permanent settlement shall be passed in cases where, (a) the land held by the allottee concerned is the subject-matter of an appeal or review before the Rehabilitation Authority ; or (b) the land has been allotted in lieu of rights as a mortgagor or mortgagee and the allottee has not fulfilled the prescribed terms and conditions or (c) the land has been allotted provisionally on the basis of inconclusive data. Sections 18 and 19 authorised filing of appeals and revisions against orders and in cases and proceedings under this Act. I have mentioned all these provisions in detail to show that allotment and permanent Settlement of land in compensation Pool, on displaced persons is the prominent function of the Settelment Authorities under Act XLVII of 1958. 14. In the instant case, the allotment which was made to the petitioners in November 1960 was under Supplementary Rural Scheme (to the West Pakistan Rehabilitation Settlement Scheme). This allotment was, obviously, covered by the definition of this word, as given in section 2(1) of the Displaced Persons Land Settlement Act (XLVII of 1958). This definition has been reproduced above, but I would like to say a few words about its proper scope and construction. In section 2 of the Act, it is written that the definition given therein are subject to any repugnancy in the subject or context. This means that the definition of the word "allotment" (like definitions of other words), is not at all exhaustive, but is to be assessed with regard to the subject and context of each case. This definition contemplates that- (i)allotments can be made under this Act ; or (ii)under any Scheme ; (iii)in lieu of any claim registered and verified under any of the enactments mentioned therein (as for example the Registration of Claims (Displaced Persons) Act III of 1956; or (iv)deemed to have been registered and verified under any of the said enactments. The words "any Scheme" again are very important. Though the word "Scheme" is itself defined in section 2(7), but in my view in section 2(1), its scope is very wide and it is not confined only to that
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Scheme which is defined in section 2(7). Reasons for this may be numerous. Firstly, because section 14 of the Act itself contemplates making of Schemes for allotment of lands against verified claims from "Compensation Pools" and as such such Schemes would also be Schemes and there is no justification to exclude them from the scope of section 2(1) i,e,, allotment about making and cancellation of which power is given in various subsequent sections of the Act. Secondly, the prefix of the word "any" before the word "Scheme" in section 2(1) suggests that the intention is not to confine this word to its technical definition as given in section 2(7) but to enlarge it. Proceeding in this way, once it is held, that the scope of word "Scheme" in section 2(1) is wider, then a Scheme for allotment may be contained in any enactment or rule or regulation different from the Displaced Persons (Land Settlement) Act of 1958. Though these legal instruments may be given any nomenclature, it is their substance and not label which is important to be kept always in mind. If they contain any Scheme or Policy for allotment in lieu of any claims registered or verified or deemed to have been registered or verified, under the enactments mentioned in section 2(1), then the allotments thereunder can be called as allotments within the meaning of section 2(1) of the Act. Proceeding however on the assumption that sanction for allotment in hand was contained in Martial Law Regulations No, 84/89 that fact simpliciter will not make any difference because these Regulations, as will be demonstrated later, simply deal with verification matters and leave the principles of allotment and settlement to be gathered from the provisions of the Displaced Persons (Land Settlement) Act of 1958 and other Schemes relevant to the subject, with a further guarantee that previously allotted land was to be preserved as far as possible. (See section 7 of the Martial Law Regulation No, 89). When, therefore, a Settlement Authority, makes an order with regard to the matter of allotment as distinct from the matter of…
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