MUHAMMAD SHARIF Versus BORDR AREA COMMITTEE

FALAK SHER, J. ‑‑This I.‑C.A. has emanated out of the judgment of a learned Single Judge, delivered on 12‑3‑1984 in Writ Petition No. 273‑R of 1980, whereby order of the Border Area Allotment Committee dated 22‑3‑1980 cancelling appellant's allotment of land was upheld.

2. Relevant facts giving rise to the present controversy are that the appellant in the year 1960 as a serving officer of the Pakistan Army was allotted a piece of land measuring 392 kanals 5 marlas in the revenue estate of Tehsil Narowal District Sialkot (hereinafter referred to as the land under the Border Area Regulation 1959 (M.L.R. 9 of 1959) (hereinafter referred to as the Regulation). Subsequently in view of the instructions embodied in the Chief Settlement and Rehabilitation Commissioner's Letter No. 1354‑61/150‑R (C) dated 20‑4‑1961 issued under the Regulation, upon payment of price, proprietary rights were conferred on him and mutation No.5201 dated 19‑9‑1962 was accordingly sanctioned. It is relevant to mention that for the purposes of management of the land, appellant has constituted Muhammad Sarfraz Khan, Subedar Major (Retd.) as his general attorney (vide general power of attorney executed on 30‑7‑1971) and after retirement from service, with prior permission of the General Headquarters, Pakistan Army (permitting him to reside and settle down abroad) left for Australia in the year 1975. Thereafter, at the initiation of respondent No.2 Border Area Allotment Committee (hereinafter referred to as the Committee) commenced proceedings, in the purported exercise of power conferred under the Regulation for cancelling appellant's allotment of land. The afore‑referred general attorney participated in the proceedings which ended up in the cancellation order dated 22‑3‑1980, (hereinafter referred to as the order) for having breached condition of allotment; viz not residing within the estate. This order was unsuccessfully assailed by means of a constitutional petition. Hence this appeal.

3. Learned counsel for the appellant has raised three‑fold contentions. Firstly, the order is violative of Schedule III of the Regulation, for the reasons that:‑

(a) requisite condition to reside within the estate is only attracted at the time of allotment and after conferment of proprietary rights it becomes an alien notion,

(b) in the alternative it is submitted that assuming for the sake of argument that this condition continues to apply even subsequently, then upon grant of permission, by the General Headquarters, to reside and settle down abroad, question of its violation becomes abortive,

(c) the order has been passed in exercise of powers, contemplated by condition 10 of Schedule III of the Regulation, which perceives cancellation only in the event of breach of conditions 5, 6 and 9 thereof. In this regard it is submitted that the learned Single Judge was influenced by the provisions of condition 11 of Schedule III which was introduced by West Pakistan Border Area Allotment Regulation 1959 (Punjab Amendment) Ordinance 1981 (Ordinance III of 1981) which is designed to be prospective in operation and could not have been pressed into service retrospectively.

The second contention is that after conferment of proprietary rights the land ceased to be evacuee thus it fell out of the domain of the Committee; resultantly ‑the cancellation order is coram non judice. Thirdly, it is contended that the order has been passed on incorrect factual premises, in that it has been erroneously assumed that the appellant has acquired Australian nationality, while as a matter of fact he still continues to hold Pakistani nationality (in support whereof he has referred to Passport No.67988 which was effective at the relevant time).

4. On the other hand, learned counsel for the Committee, in support of the order, submits that the appellant has violated condition 2 of Schedule III of the Regulation, since he has ceased to reside in the estate; secondly, the juridical status of land remained unaffected by the conferment of proprietary rights, thus it continued to be evacuee land for the purposes of jurisdiction of the Committee.

5. Whereas learned counsel appearing on behalf of respondent No.2, in addition to the arguments advanced by the learned counsel for the Committee submits that the appellant is precluded from raising objection as to the jurisdiction of the Committee, for the first time at the appellate stage, and has placed reliance on the case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan) Lahore, etc. (P L D 1964 SC 829) and Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and another (1974 SCMR 371). He further submits that the Regulation by itself does not contemplate grant of proprietary rights, this has been introduced by virtue of condition 9 of Schedule III of the Regulation, which being a subordinate legislation, is ultra vires; therefore, it does not affect the jurisdiction of the Committee in passing the impugned order. Lastly, it is stated that appellant was considered eligible for grant of land in view of para 6 of Schedule I, to provide leadership, which has been nullified on account of his having settled down in Australia, thus justified the order.

6. Before adverting to the merits of the case, the jurisdictional question may be disposed of first. Generally speaking it is true that jurisdictional question should not be allowed to be argued at the appellate stage for the first time; however, that objection is not tenable in the instant proceedings because Intra‑Court Appeal in fact is an appeal within the Court, therefore, we are not precluded from examining the jurisdiction of the Committee.

7. The second preliminary objection to the validity of conferment of proprietary rights, though on the face of it seems alluring, but unfortunately upon closer examination it loses its charm. Power to confer proprietary rights is stipulated in condition No. 9 of the Schedule to the Regulation, which is not a piece of subordinate legislation, because Schedules have not been framed in exercise of rule making powers under the Regulation, as it is evident from its bare perusal but are integral part of the Regulation itself framed by the parent law giver; therefore, the argument that a delegated legislation is ultra vires, on account of its having travelled beyond the scope of the principal enactment, is not attracted to the case. Consequently, condition 9 of Schedule III of the Regulation does not suffer from any legal infirmity, on this Count.

8. The next question warranting consideration is the judicial classification of the land in question. It was admittedly evacuee at the time of allotment to the appellant, however, with the sanction of mutation No.5201 dated 19‑9‑1962, that status was shed off. Assuming if any doubt remained in somebody's mind in this behalf, that wasl finally settled with the promulgation of Evacuee Laws (Repeal) Act, 1975 (Act XIV of 1975), where under all the evacuee laws were repealed and exclusive jurisdiction has been conferred on notified officers for the purposes of disposal of pending matters only and no other authority has the competency or jurisdiction to look into such matters any more including the Committee. Thus, the land ceased to be evacuee undoubtedly, Reliance in this regard is placed on the cases of Muhammad Rafiq and 2 others v. Border Area Committee and C another 1982 C L C 1196) and Abdul Kareem v. The Border Area Committee District Kasur (1980 C L C 670). However, we may hasten to add that this has not robbed off the Committee of its power under the Regulation and Schedule thereof seemingly in the national interest and from defence point of view so as to keep border belt under control. This is self‑demonstrated from perusal of the text of paras. 5, 6(a), (i), (ii), 7, 8(b), (c), (i), (ii) and Regulations which for the sake of convenience of reference is set out hereinbelow:

"5. (a) If a committee, after such inquiry as it thinks fit and after giving the person affected an opportunity of being heard, is of the opinion that any person residing, carrying on business or other occupation, or having property, in a border area, is or has been engaged in smuggling or in any other activity prejudicial to the economy or security of Pakistan, it may, with the previous approval in writing of the . Deputy Commissioner of the district concerned, declare, by order in writing, such person to be an undesirable person and direct him to submit, within such time as may be specified in the order, a statement giving full particulars of all immovable property within a border area of which he is the owner, or has, in any other capacity, possession or control.

(b) If a person in respect of whom an order under sub‑paragraph (a) has been made has no immovable property within a border area, he shall, within seven days of the receipt of the order, remove himself and shall not enter into, or stay in, any border area without the permission in writing of the Deputy Commissioner of the district concerned.

6. (a) A Committee may, by order in writing, direct an undesirable person to surrender, within which such time as may be specified in the order, all immovable property, within a border area of which he is the owner, or has, in any other capacity possession or control‑

(i) if such property is not evacuee property, to the Deputy Commissioner of the district within such property is situated and

(ii) if property is evacuee property, to the Deputy Rehabilitation Commissioner within whose jurisdiction such property is situated.

8. (b) In respect of agricultural land, every owner and every occupancy tenant and every allottee.... shall be provided with such land in any area .as determined in the case of property other than evacuee property by the Deputy Commissioner, and in the case of evacuee property, by the Deputy Rehabilitation Commissioner Productive capacity of the land surrendered.

(c) Any person aggrieved by the decision of the Committee regarding compensation may appeal .......

(i) in the case of property other than evacuee property, to the Deputy Commissioner, and

(ii) in the case of evacuee property, to the Deputy Rehabilitation Commissioner."

Para 5 deals with eviction of undesirable persons living or carrying on business in the border area, without making any distinction between evacuee or other category of land; and para 6 (a) (i) deals with non‑evacuee property, while 6 (a) (ii) deals with evacuee property, similarly para 8 (b) distinctly deals with both evacuee as well as non‑evacuee property, further para 8 (c) (i) caters for property other than evacuee whereas 8 (c) (ii) pertains to evacuee property.

Therefore, we have no hesitation in arriving at the conclusion that the tentacles of the Committee's jurisdiction squarely embrace within its active ambit both evacuee as well as non‑evacuee property.

9. The above view is further fortified by the provisions enshrined in the instructions granting proprietary rights where‑under the Committee's jurisdiction extends even to subsequent transfers, and relevant text of para 6 (b) and (f) of the instructions, is set out herein below: ‑

"6(b) Not alienate the land by sale, gift, exchange mortgage after acquiring the proprietary rights except for the objects specified in clause (a) above, or otherwise without the prior permission of the Deputy Commissioner concerned who, before passing any order in this respect, shall satisfy himself that the alienee is a suitable person for settlement in the border area. In case of the Military allottee the Deputy Commissioner concerned shall obtain approval from the General Headquarters before passing final order for alienation of the land .....

(f) not be permitted to sell the land for the first five years' after obtaining the proprietorship."

10. Now the pivotal question around which the whole controversy revolves is Schedule III of the Regulation which incorporates conditions of allotment. The relevant conditions are:‑

"(2)(a)Where the allottee is a serving officer, his personal residence in the estate may be dispensed with, during the period of his service under the Government provided .....

(b) Where the allottee is a serviceman other than an officer his personal. residence in the estate will be dipensed with .....

(3) Allottee or his representative must cultivate the land himself.

(8) If the allottee fails to acquire a house in the village abadi, he should build one within a year of the allotment of a plot of land for the purpose.

9. The allotment will be subject to payment of such price, terms and conditions as may be determined by the Central Government in this respect."

Condition No.2 is of predominant significance viz. it requires of an allottee to reside within the estate in which he holds allotment, however it postulates two exceptions:‑

First exception conceived by condition 2 (a) deals with serving officers, wherein discretion has been vested in the Government to grant exemption deploying the expression 'may'. However, this' exemption can only be availed of by allottee during the period he remains in service under the Government, meaning thereby that upon; retirement of an allottee, even the exemption granting authority is divested of the power to grant such an exception.

Whereas clause (b) of condition 2 caters for cases of servicemen, whereby exemption is operative per se, since the words used by the draftsman are "will be dispensed with" which means that it has to be automatic and the exemption granting authority is left with no discretion. This distinction is clearly demonstrated by a bare reading of the two provisions in juxtaposition. Words used in clause (a) are "may be dispensed with" whereas in clause (b) the words used are 'will be dispensed with'."

11. The appellant's case, falls within the ambit of condition 2 (a) ibid, and it is understandable that probably the requirement to reside within the estate was dispensed with, during the period he remained in service and, this exemption, assuming it was granted automatically ceased to exist upon his retirement. Because the way the statutory language has been couched, in unambiguous terms it leaves no discretion with the competent authority to grant such an exemption, even if it is so minded to do after retirement of an allottee,

12. Now coming to the crucial question as to what does the expression 'reside' mean in this context. If it is to be interpreted to mean that an allottee's mobility is to be confined and localised within territorial periphery of the estate in which land has been allotted, then such rigid construction would lead to a practical impossibility and in all probabilities, such an intent does not seem to be the legislature's objective. The other construction to which this word, possibly may be amenable, both on account of logical as well as on functional rule of interpretation, is that an allottee may be maintaining a place of abode within the estate, and is living in another town, but is a frequent visitor, e.g. weekly, fortnightly, monthly, etc. thus retaining his personal contacts with the area and the people, thus answers the requisite of the expression "reside within the estate" on its broader connotation. However, we are of the opinion that how so loosely this word may be interpreted, it certainly floes not cater for the appellant's case, who from his own showing (inter alia the permission granting certificate by the General Headquarter (R/1) had settled abroad.

13. The next submission of the learned counsel for the appellant E was that he had left the country with the permission of the General Headquarters of the Pakistan Army, therefore, even if the requirement of residing within the estate is attracted to the appellant, that stood exempted. For this he has referred to Annexure 'R/I' granting him permission to reside and settle down abroad. This document does not reveal as to what was the tenor of the application on the basis of which the permission of the General Headquarters was sought for. However, the language of the permission granting certificate does create an impression that save for the purposes of certain gains it almost amounts to severing the ties, and means abandoning the stay in the country. No strings have been attached by the permission granting authority, thus the purpose of expression to reside stands defeated. There is yet another way of looking at the proposition. It is quite possible that the permission referred to above has been granted for a wholly different purpose, viz., a retired officer is supposed to get such like permission, while travelling beyond the frontiers of the country, for the purposes of reservists lists. Even otherwise this is only permission and not exemption as contemplated by condition 2 supra, which is to be granted by the Committee. Therefore, we hold the view that the permission envisaged in R/1 is not exemption within the contemplation of condition 2 of Schedule III of the Regulation and none can be granted after retirement.

14. In this regard we may also add that the very basis on which the appellant was considered eligible for allotment of land, has been defeated. The eligibility conditions read as under:‑

"Following categories of persons will be eligible for allotment;

(i) Claimants who had registered in or got their claim forms transferred to any particular estate in the border be it before the 24th December, 1952.

(ii) Pre‑Independence tenants of evacuee land who hold temporary allotment under a valid permit issued by a proper Rehabilitation Authority who cultivate land themselves and reside in the village.

(iii) Refugees whose unit of allotment is less than 12‑1/2 acres and who have already been allotted land under the border scheme may continue to hold such allotments provided they fulfils all other conditions applicable under the Border Scheme.

(iv) Service and ex‑Servicemen recommended by General Headquarters.

(v) Service and ex‑Servicemen already resettled under the scheme subject to the scrutiny of their bona fides.

(vi) Officers approved and recommended by General Headquarters for providing leadership.

(vii) Jammu and Kashmir civilian refugees be considered for allotment of land in the border area of the District Sialkot only on the scale prescribed in sub‑clause (3) of Schedule II.

(viii) Jammu and Kashmir refugees (already settled under the Border Scheme) subject to the scrutiny of their bona fides.

A perusal of the above shows that appellant was only eligible for allotment by virtue of para (vi) ibid, viz, to provide leadership, which obviously has ceased to be available in this remote control satellite style arrangement. His only interest seems to be that of an absentee landlord, who is primarily concerned with the yield of the land. It is like having a villa in Switzerland or Spain and managing it through the offices of Estate agents as an intermediary.

15. Coming to the contention of the learned counsel for appellant that the requirement of residing within the estate is only relevant at the time of allotment, which ceased to have its efficacy with the conferment of proprietary rights, it may be observed that we are not inclined to agree with such a hypothesis which is refuted by the very text of the statute. The exception created by para 2 (a) of Schedule III only caters for the duration for which an officer remains in service, thereafter even the competent authority has no jurisdiction to grant the exemption, assuming it so chooses.

16. Now adverting to the question of retrospectivity, it may be mentioned that the Regulation was amended by Ordinance III of 1981, whereby condition 10 was substituted. For the sake of reference, both the original as well as the substituted version of condition 10 is set out hereinafter:‑

"10. The allotment shall be liable to be cancelled for breach of any of the conditions contained in paragraphs 5, 6 and 9 above provided no allottee will be finally dispossessed of the allotment till he has been given a fair chance to explain such conduct in the manner as follows:‑

Condition No.10 of Schedule III was substituted which reads as under:‑

"10. The allotment shall be liable to be cancelled for breach of any of the conditions mentioned in this Schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled."

A comparison of the original and substituted condition 10 shows that under original condition 10 power of cancellation. of allotment was available on account of breach of only specified conditions i.e. 5,6 and 9, whereas by virtue of the substituted condition 10, a wider power of cancellation has been conferred on the Committee. It contemplates cancellation of allotment on violation or breach of any of the conditions set out in Schedule III. This amending Ordinance was introduced on 1‑2‑1981 and was operative prospectively. Its biting sting cannot be stretched to embrace retrospective operation. Therefore, the wider power of cancellation conferred on the Committee by virtue of condition 10 could not be invoked for cancelling the allotment of the appellant. If it merited to be cancelled then it could have been cancelled only in exercise of .the powers bestowed on the Committee under the original condition 10 of the Schedule III of, the Regulation, i.e., for violation of conditions 5,6 and 9...

17. In the instant case, cancellation has occasioned on account of breach of condition 2 of Schedule III to the Regulation, which is outside the scope of condition 10 of the' Schedule III of the Regulation at the relevant point of time.

18. In view of the above discussion, we are of the opinion that the requirement "to reside within the estate" as postulated by condition 2 of Schedule III to the Regulation has been breached and violated by the appellant but that did not empower the Committee to cancel the allotment in exercise of its powers conferred upon it under the then prevalent condition 10 of Schedule III, which is ultra vires.. With due respect, we may say that it seems that the learned Single Judge has placed reliance on the substituted condition 10; introduced, by virtue of Ordinance III of 1981. but it is clear to us that this provision of law is not designed to have retrospective operation. The judgment, therefore, is set aside on the ground that the Impugned order of cancellation suffers from jurisdictional defect as the committee had no power to cancel the allotment by invoking condition 2 of Schedule III. However, before parting we may observe that this judgment shall not be a bar for the Committee to commence fresh proceedings against the appellant in accordance with law.

H.B.T./M‑665/L Appeal allowed.