Hakim Syed Muhammad Warsi Vs. Government of Pakistan

IN THE FEDERAL SHARIAT COURT

( ORIGINAL JURISDICTION)

PRESENT::

Mr. Justice (Rtd) Salahuddin Ahmad Ohairman Mr, Justice Agha Ali Ryder Member Mr. Justice Aftab Hussain Member Mr. Justice Zaka Ullah Lodi Member Mr: Justice- Karimullah Durani "Member .

' SHARIAT` PETITION NO`,1(38 of 1979 Hakim Syed Muhammad Warsi Petitioner Versus

Government of Pakistan Respondent and others

For. the Fetitoter In person For the Respondent Mr, AbduI Aziez- Urfi Advocate"r for the Federal Government

Mt, Abdus Sattar ...'

Sheikh Addl,A.G.Ail , Sind, • , And Mk, Abbas Farooqi Advocate for the i Sind Govt..

Oate.of hearing 1.7.12.1980 .

AFTAB HUSSAIN, MEMBER

The Petitioner has challenged the vires of Martial Law Regulations 84, 89 and 91 issued during the Martial Law regime of Field Martial Ayub Than in regard to the scrutiny of claims of displaced. persons migrating from areas other than 'prescribed areas' in India. He has also challenged the vires of the evacuee property and Displaced Persons (Laws Repeal) Act of 1975 by which interalia Martial Law Regulation No.91 was repealed except to the extent of caSes pending before the settlement authorities, High Court or the Supreme Court.

It will be necessary to give a brief historical perspective of these laws in order to appreciate the points raised by the petitioner.

After the mass migration of Hindus and Sikhs from the territories which were designated as Pakistan by the Independence Act of 1947, the properties abandoned by them had to be looked after. In order to achieve this objective evacuee property laws were enforced - the last law in this series being the Administration of Evacuee Property Act, 1957 -to provide for appointment of custodian of Evacuee Property, for vesting such properties in him

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to enable him to manage them. Rehabilitation laws were enforced 4100 to empower the Rehabilitation Department to accommodate the large uko number of displaced persons from India 1,44c.k had to migrate to Pakistan on account •of riots and fear of riots in that country.

Considering it necessary to compensate the displaced persons for the loss of the properties they had incurred by their mass migration to Pakistan, the Government devised a scheme firstly to assess the loss suffered by each displaced person and secondly to make good that loss as far as possible from the evacuee property in Pakistan. Two types of laws were therefore, enforced at differents stages. Since the displaced persons of the prescribed areas which are defined in the West Pakistan Rehabilitation Settlement Scheme as areas of Punjab (India) States, Delhi Province and States of Alwar, Bharatpur and Bikaner.had suffered much more than displaced persons from other parts of Pakistan and agreement had been reached

• between India. and Pakistan for mutual exchange of records of AV nytel.

evacuee properties/, a law was enforced in the early fifties for inviting their claims of rural agricultural lands abandoned by them in India.

In the years: 1955 the Claim Registration (Displaced Persons) Ordinance was issued in order to invite claims of all, displaced persons without any distinction in regard to urban properties (claims unders schedules I, II and III) and urban agricultural land (Claim under Schedule IV) and to invite claims in regard to. agricultural rural land from displaced persons from areas other than the prescribed areas. This Ordinance was later substituted by the Claim Registration (Displaced Persons) Act of 1956 which was identical.

The claims submitted by the displaced persons under these laws were verified by the officers named therein. Since the present Petition pertains to the scrutiny of claims in regard to agricultural land it may be clarified that the rural claims of displaced persons from the prescribed areas' were veri- fied on the basis of the revenue record received from India in terms of area of land while the claims under Schedule V of other displaced persons were verified in terms of money value on the basis of other evidence led before the officers appointed under the Act of 1956.

In order to settle the claimants from the prescribed areas on agricultural land a scheme known as the Punjab Rehabi- litation Scheme was enforced in 1952. It was later substituted by the West Pakistan Rehabilitation Scheme 1956. One important aspect of the settlement was that subject to a maximum of 36 thousands produce index unit the entire claim of a refugetfrom the prescribed area had to be settled by allotment of land equal in produce index value to the land abandoned by him.

In order to settle the Displaced Persons from not- prescribed areas Supplimentary Rural Scheme No.1 was enforced under which claimants whose claims under Schedule V had been

verified under the Claims Registration Act were required to submit applications on forms QPRI for issuance of entitlement certificates which were directed to be issued on form QPRV. Since most of such claims had been verified in terms of cash, provision was made for conversion of theeamounts into produce Index Units at the rate of Rs. 20/- per produce Index Units. It was provided in para 18 that the method of allotment of rural land will follow mutatis mutandis the general principle set up in part II Chapter. II of the West Pakistan Rehabilitation Settlement Scheme. Similar provisions mere made in Supplementary Scheme No.II in regard to land abandoned in urban areas of India. It was extended to all displaced ...persons whether hailing from a prescribed area or not . The claims of urban agricultural land were to be verified on form URV, Two legislations were enforced later for final settlement of.all categories of Displaced Persons.

One was known as. the Displaced Persons (Land Settlement) Act, 1958 and the other was called., the Displaced Persons (Compensation and Rehabilitation Act): 1958. These Acts provided for vesting of the evacuee'properties in the Central Government for purposes of compensating and rehabilitating the displaced persons.

In- the year 1960 the Government considered it necessary to scrutinize claims already. verified on form QPRV and URV of displaced persons from non prescribed areas on the basis of records which were likely to be received from.India..Martial Law Regulation No.84 known as scrutiny of claims (Evacuee Property): se Regulation of., '1960 was issued for_inviting fresh claims and for their Scrutiny.. These claims .were required to be submitted on forms M:R.I and were directed to be verified on Form M.R.V.:

Martial Law Regulation No. 84 was reconstituted in 1961 as Martial Law Regulation 89, since the Scheme of verification of such claims on the basis of Indian Revenue Records had to be abandoned. This Regulation reduced the ceiling of allotment from 36,000 produce Index Units in respect of claims of displaced persons from non prescribed areas of India other than Hyderabad. and Junagarh.

The following scales were fixed:

Where previous allotment does not full entitlement exceed 1500 P I U Where previous entitlement exceeds 1500 P I U plus 1500 P I U but does not exceed 307 of the excess

3000 P I U

Where previous allotment exceeds 1950 P I U plus 3000 P I U 20% of the entitlement in . excess of 3000 units.

Where previous allotment exceeds 2150 P I U,10% of 4,000 P I U the entitlgment in excess of 4000 Units.

It was provided thanerson holding area, under permaneusi.

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allotment in excess of this scale would surrender the same.

.Martial Law Regulation 89 was later amended by Martial Law: egulation 91. The allotees who had to surrender the excess areas were given an option to purchase the same at the rate of Rs. 10/- per Produce Index Unit choice for which was to be exer- cised within the period to be fixed in the Scheme. The other surren- dered areas were vested in the Provincial Government to be utilized as it liked, no doubt subject. to the rights of the sitting tenants to opt for. purchasing it at the same rates. The time fixed for kr...L.:7, surrender of excess area and exercise of option to purchase the same given., to the allotee, has long elapsed with the result that all cases of surrender and purchase have already become final.

All the laws about evacuee properties were repealed by the Evacuee Properties and Displaced Person (Laws Repeal) Act of 1975. The only cases that were saved and to which the repealed laws remained operative are cases which were pending decision before the Settlement Authorities or Courts.

From the above history it will be clear that MLR 84 had already ceased to exist after it was reconstituted as MLR 89. MLR 91 only incorporated certain ammendments in MLR 89 and was thus not .an independent Regulation. The only Regulation that remained in operation was MIR 89 as amended by MLR 91 which was also repealed by Act of 1975. That law being no longer in

force it cannot be declared as being repugnant to the'Holy Quran and Sunnah. The jurisdiction of this Court extends only to existing laws as distinguished from 'laws'. .which have become nonexistent...This petition is liable to be dismissed for this reason alone.

It has been noticed that there are saving clauses in the repealing Act but those clauses will not apply now since the.policy of reduction in the ceiling of verification of claims and the consequent surrender of land which are the subject of challenge had already become effective in the early, sixties.

The question of inequality of treatment making one class eligible to allotment upto 36000 produce index units and reducing the scale of allotment, in respect of other is eminently a matter pertaining to violation, if any, of fundamental rights for which this Court does not provide the proper forum.

In Hafiz Muhammad Ameen Versus Islamic Republic of Pakistan (S.P. 2 of 1979 Lahore) decided, an the 13th of December, 1980 this Court has already dealt with the Muslim states extensive power of legislation in regard to land. No evacuee land can be said to have vested in the displaced persons coming from India even on the principles of strict Shiria./knd abandoned by:the non-mumslim evacuees, could vest in the Government only. It was within the pleasure of, the Government to frame scheme if any for grant of such laud and to divide it among displaced persons in accordance with the dictates of public policy and public good. Reference has been made in the above judgment to the verying manners, in which land was distributed by the Holy Prophet amongst his companions. These incidents showed that the mode of distribution pursued by the holy Prophet was also not uniform. Thus the lands of Banu Nadhir were distributed mostly among Mohajirin to the exclusion of all Ansars except two. The ground was that Ansars were well off while the Mohajirin had little to support them. Hazrex Timer declined to distribute the land of Iraq among the Muslim. The land being vested in the Government and the displaced Ni

• persons beingonly grantees

no: right eXcept as.provided in the law or Scheme relating to grantoosuld:be Claimed by ' .any one as a matter of right. 11±. Refiuddin*V, Chief Settle- ment Cathmisaioner/PLD 1964 Lahore 539 (DB)cAbdul Rashid V- Pakistan, PLD:1962 Lahore 92, For these reasons the petition fails on merit also. It is Accordingly dismissed.

Member II

Chairman eqvi/LetL-

Member

hember III

Member

Carer