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Petitioner: Member Residual Properties, Board of Revenue, Punjab, Lahore VS Respondent: Muhammad Arshad Chaudhary etc
Court Name: Lahore High Court Judge(s): Amin-Ud-Din Khan, Ch. Muhammad Iqbal Title:Member Residual Properties, Board of Revenue, Punjab, Lahore vs
Muhammad Arshad Chaudhary etc Case No.: (1) I.C.A. No.638/2011 (2) WP No.39990/2016 (3) WP No.176056/2018 Date of Judgment:2018-03-20 Reported As: 2019 [M] C.L.R. 170, KLR 2018 Revenue Cases 94, 2018 LHC 985 Result: petition disposed of Judgment CH. MUHAMMAD IQBAL, J:- Through this single judgment, we intend to decide titled I.C.A. as well as Writ Petitions No.39990/2016 and 176056/2018 as common question of law and facts are involved and subject matter of suit property is also same. I.C.A. No.638/201 1 2. Through this ICA, the appellant has challenged the judgment dated 30.09.201 1 passed in Writ Petition No.206- R/2010 whereby learned Single Judge-in-Chamber accepted the said writ petition filed by respondents No.1 to 8 to the extent of penalty (50%). Writ Petition No.176056/2018 Through this writ petition, Nawabzada Walayat Ali Khan etc. / petitioners challenged the order dated 09.07.2010 passed by the Chief Settlement Commissioner / Member (Judicial-V) / Member (Residual Properties), Board of Revenue / Notified Officer, Punjab, Lahore whereby the Notified Officer accepted the applications of Rafaqat Ali etc. (respon dents No.2 to 10) and allowed the sale of evacuee land situated in Harbanspura to them on the market price plus 50% penalty . Writ Petition No.39990/2016 Through this writ petition, the petitioners Ch. Ayyaz Imran and other subsequent vendees have challenged the order dated 03.05.1992 and order dated 24.06.1993 whereby the Settlement Commissioner (Lands), Punjab, Lahore / Notified Officer allotted land measuring 25-Kanals 06-Marlas situated in Mauza Harbanspura, Lahore to respondents No.5 to 10; order dated 18.06.2016 whereby the Additional District Collector , Lahore accepted the application of respondents No.5 to 10 and restored the mutation No.10445 vide order dated 22.08.2016. 3. As this consolidated judgment shall dispose of the instant ICA as well as the connected writ petitions, as such, the parties to the lis will be referred according to memo of parties appended with instant Intra Court Appeal, Ch.
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Ayyaz Imran etc. Respondent No.1 to 8 in the instant appeal who are also petitioners of Writ Petition No.39990/2016 shall be referred hereinafter as "respondents / occupants" whereas legal heirs of Nawabzada Walayat Ali Khan / respondents No.10(i) to 10(vi) in instant appeal who are also petitioners of Writ Petition No.176056/2018 shall be referred hereinafter as "respondents / allottees". Brief consolidated facts of the above Intra Court Appeal as well as both the writ petitions are that evacuee land measuring 253- Kanals 04-Marlas comprising Khasra Nos.1425 to 1431-1435, 1477 to 1485 and 1488 to 1517 situated in Mauza Harbanspura, District Lahore was transferred to Services Gene ral Administration & Information Department (Information, Culture & Tourism) for the construction of tourist village within 5 years vide Memorandum No.360-86-1/805-CS dated 16.03.1986. After expiry of said five years, Managing Director , TDCP , intimated, officer on special duty BOR vide TDCP/DM(P&D )/93/1 17 dated 27.05.1993 that the earm arked land is no more required as the tourist village has already been established within Jallo Park. Nawabzada Walayat Ali Khan obtained allotment of land measuring 25-Kanals 06-Marlas comprising Khasra Nos.1488, 1493 and 1494 situated in Mauza Harbanspura against his unadjusted urban claim of 258 PIUs vide order dated 03.05.1992 and mutation No.10445 was sanctioned in favour of allottee on 24.06.1993 which allotment was challenged by one Rafaqat Ali through Writ Petition No.45-R/1995 which petition stood dismissed by this Court, whereas Assistant Commissioner , Tehsil Lahore Cantt. Initiated review proceeding and finally cancelled the above mutation on 21.03.1995. The aggrieved allottee challenged the said order of Assistant Commissioner before Notified Officer on 19.03.2003 which met with dismissal on 24.02.2016. The allottee filed application before Commissioner for restoration of said mutation which was accepted by ADCG Cantt. vide order dated 18.06.2016 and order of Assistant Commissioner dated 21.03.1995 was set aside and mutation No.10445 was restored on 22.08.2016 in the revenue record. Contemporaneously Rafaqat Ali being in possession of land filed application for the allotment of land measuring 84- Kanals including the land bearing Khasra No.1488, 1493 and 1494 already allotted to the respondent allottee, which application was dismissed by the Notified Officer. Feeling aggrieved, he filed Writ Petition No.103-R/1995 which was accepted by this Court vide order dated 11.07.1995. After acceptance of the writ petition, said Rafaqat Ali sold out the possessory right of the land in large number of pieces to different persons. The Chief Settlement Commissioner challenged the order of this Court through filing Civil Appeal No.969/1996 which was accepted by the August Supreme Court vide judgment dated 22.04.1998 (reported as 1998 SCMR 2596 ) holding that the land be disposed of under the Scheme for the Management & Disposal of Available Urban Properties, 1977. Rafaqat Ali & 28 others again filed applications on 07.12.2007 to the Senior Member , Board of Revenue for the purchase of the evacuee land under the Scheme 1977, whereas the Managing Director , TDCP , Punjab vide letter No.PS/MD/TDCP/09/170 dated 06.06.2009 reported that 203-Kanals land has been occupied by encroachers. On the said information, the Chief Settlement Commissioner floated advertisement in newspapers requiring all the illegal occupants to appear before him on 20.11.2009. Only, Ch. Ayyaz Imran & 8 others appeared and asserted that they are subsequent vendees from said Rafaqat Ali since 1995 and have raised Pacca construction over the said land. They filed application on 20.11.2009 for the purchase of the land in their possession through private treaty at market price. The Chief Settlement Commissioner / Administrator (Residual Properties) allowed the sale of said land already allotted to respondent No.10 (the allottee) to the illegal occupant at the market price plus + 50% penalty vide order dated 09.07.2010. The subsequent sitting occupant filed Writ Petition No.206/2010 which was allowed by this Court vide order dated 30.09.2011 and imposition of penalty of 50% was set aside. Hence, the captioned ICA as well as Writ Petitions. 4. Mr.Mahmood A. Sheikh,Advocate submitted that order of the learned Single Judge in Chamber dated 30.09.201 1 is illegal and not sustainable in the eye of law. He further submits that after Repeal Act, 1975, the Notified Officer was not competent to allot the urban land, building site, land against the unadjusted PIU Units and verbally prayed for reversal of order dated 03.05.1992 and 24.06.1993 of the Notified Of ficer. Mr. Muhammad Shahzad Shaukat, Advocate appearing on behalf of respondents occupants submits that after the Repeal of Evacuee Laws, land could not be allotted against any pending claims of unadjusted unsatisfied PIUs, within the urban limits of District Lahore; that all the available evacuee land can only be disposed of through the
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Scheme for the Management & Disposal of Available Urban Properties, 1977; that the Notified Officer / Member (Residual Properties), Board of Revenue, Punjab, Lahore in contravention of the Scheme mentioned hereinabove has illegally and unlawfully allotted the urban evacuee land to "allottee" respondent No.10, as such, orders dated 03.05.1992, 4.06.1993, 18.06.2010 and 22.08.2016 are liable to be set aside being illegal and passed without lawful authority. Mr. Aamir Zahoor Chohan, Advocate/learned counsel appearing on behalf of the legal heirs of Nawabzada Walayat Ali Khan, respondents No.10(i) to 10(vi) "allottee" submits that the Chief Settlement Commissioner vide order dated 24.06.1993 allotted urban agricultural land measuring 25-Kanals 06-Marlas in Harbanspura, Lahore to the allottees (respondent No.10 (i) to 10(vi)) against 228 PI Units, which order is still in field; further submits that the order dated 09.07.2010 in favour of Ch. Ayyaz Imran etc. "occupants" is illegal as said occupant claimed to be purchasers of the land measuring 64-Kanals 03-Marlas from Rafaqat Ali in 1995 whereas the said vendor has lost his claim upto the Hon?ble Supreme Court of Pakistan and they are not entitled to purchase the said land; learned Member (Residual Properties) / Notified Officer was not competent to sell the land to the illegal occupants as per Scheme 1977; further submits that property has already been allotted to claimant allottee and was not available in pool for disposal of land since 1992; further submitted that neither allottees were arrayed as party in the proceeding before the Member nor they were heard before passing the order of sale to the sitting occupants and allottee has been condemned unheard; and finally prayed for dismissal of Writ Petition No.39990/2016 and setting aside order dated 09.07.2010 passed by the Chief Settlement Commissioner . 5. We have heard the arguments of learn ed counsels for the parties and gone through the record with their able assistance. 6. As the main controversy in the instant matter is centered around the allotment as well as sale of the evacuee properties situated in Mauza Harbanspura within the urban limits of District Lahore. The pivotal points for determination before this Court are as under:- (1) whether after issue of Notification dated 16.05.1973 by Chief Settlement Commissioner declaring all the property (including urban agricultural land) as building site and with promulgatio n of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Notified Officer was competent to make fresh allotment against unsatisfied urban units; (2) whether the Member (Residual Prope rties) has the jurisdiction to order for the sale of urban evacuee / state land to the encroachers, illegal occupants who were not in possession of evacuee state land on 01.01.1976? Now dilating upon the first point, it is quite appropriate to briefly recapitulate the legal scheme of rehabilitation of the evacuee. Admittedly , after partition of India in 1947 for the rehabilitation of the migrants the allotments of evacuee land were being made to the evacuee claimant against their claim under different schemes and notification on the subject as well as under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Numerous complaint regarding the bogus claims and fake allotment received to the Chief Settlement Commissioner who in order to curb fraudulent allotment issued a notification dated 16.05.1973 declaring all the evacuee urban lands situated within the urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment, throughout the Province of the Punjab, as building sites and a complete ban was imposed on the allotment of such lands. The above notification was ultimately validated by the Hon?ble Supreme Court of Pakistan in the case reported as Muhammad Ramzan & Others Vs. Member (Rev.)/CSS & Others (1997 SCMR 1635 ). Further , all the evacuee laws were also repealed through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 with effect from Ist July 1974 and further allotment of evacuee lands against any claim were banned and a limited jurisdiction was conferred upon the notified officer under Section 2 (2) of the Repealing Act, 1975 to dispose of only the active pending proceedings or the matters remanded by the High Court or by the Supreme Court of Pakistan. For ready reference Section 2 (2) of the Act ibid. is reproduced as under:- "2. Repeal of certain Laws.-(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette
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and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the, of ficers notified as aforesaid." The pending proceedings means only those proceedings which were immediatel y pending before 01.07.1974 or the cases decided by the Hon'ble Supreme Court or High Court. The Hon'ble Supre me of Pakistan in respect of the same preposition has laid down in the case reported as Chief Settlement Commissioner / Member , Board of Revenue (S&R W ing), Punjab, Lahore Vs. Akhtar Munir & 6 Others (PLD 2003 SC 603 ) as under:- "The facts leading to the filing of Writ Petition No.52-R of 1984 were that claim of the respondents were duly verified in District Rawalpindi but instead of getting the same settled in District Rawalpindi the respondents sought their transfer to Lahore on the ground that they had shifted to Lahore. The verified claims were allegedly misplaced either in the office of the Deputy Commissioner , Rawalpindi or Lahore in transit. The respondents have not cared to contest the appeal and it appears from the record that they had for the first time moved an application on 26-2- 1976 with regard to the whereabouts of their claims as a result of which a duplicate entitlement certificate was issued on 22-11-1976. The case thus cannot be said to be actively pending consideration before the authorities concerned for final disposal within the contemplation of the principle enunciated in Zafar Ali Khan v. Chief Settlement Commissioner (1999 SCMR 1719 ). The conceding statement of the learned counsel for the department can have no bearing on the case in view of the observations made in Muhammad Ramzan v. Member (Revenue)/CSS (1997 SCMR 1635 ) that disposal of constitutional petition by the High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice and as such has no binding effect. The judgment dated 4-12-1991 vis- -vis this petition thus suffers from a jurisdictional defect and there is force in the contention that it is void ab initio being coram non judice." Further , the Hon'ble Supreme Court of Pakistan has defined pending proceedings in a case reported as Government of Punjab, Colonies Department, Lahore & Others Vs. Muhammad Yaqoob (PLD 2002 SC 5) which is as under:- "The term "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases. Mere possession of any evacuee land as claimed by the respondent in Chak No.223/RB in the writ petition would not make his case, a case of pending proceedings within the contemplation of provisions of sections 2 and 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, the direction issued by the learned Judge of the High Court for allotment of the said land under the settlement laws to the respondent was violative of law which could not have been given, for under Article 199 of the Constitution, the High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law requires him to do whereas the direction issued in this case was to the contrary i.e., what law did not require him to do, he was ordered to do." Furthermore, the Hon'ble Supreme Court of Pakistan in another case reported as Nawabzada Zafar Ali Khan and Others Vs. Chief Settlement Commissioner/Member , Board of Revenue, Punjab, Lahore and Others (1999 SCMR 1719 ) decided that the matters which were either actively pending consideration before the Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers" and held as under:- "30. Bare perusal of above provisions would disclose that only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officer". The Settlement or Rehabilitation Authoritie s by express positive assertion have no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning agricultural property left over by Nawab Faiz Ali Khan in Patiala State was neither remanded by this Court in the above judgment, dated 19 July, 1962, nor any such directions were made by theth
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High Court while dismissing the Petition No.121-R of 1989 on 11-2-1990, whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation filed by the petitioners with regard to matter which otherwise legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of The Repealing Act?. Therefore, proceedings drawn by Settlement Commissioner which culminated in passing of order , dated 26-2-1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground." Reliance is also placed on the case reported as Ali Muhammad through LRs & Others Vs. Chief Settlement Commissioner & Others (2001 SCMR 1822 ). "41. In view of the aforesaid discussion we are persuaded to hold that the cases of the private parties are not covered by the expression "pending proceedings" in terms of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, they have no legitimate cause for transfer of the agricultural land situated around Faisalabad. Moreover, no land was available for transfer being evacuee agricultural land in view of the Notifications, dated 3rd January, 1958 and 16th May, 1973 issued by the Chief Settlement Commissioner respectively. The Chief Settlement Commissioner/Notified Authority had no jurisdiction/lawful authority to make the allotments in favour of private parties treating their cases to be pending. Similarly respondent Muhammad Waris and other whose case was discussed at length was not entitled for transfer of the property in his favour because admittedly their claim was allegedly verified on 26th January, 1991 much after repeal of evacuee laws/regulations by Act of 1975. As far as intervenors are concerned they may approach the concerned department in view of the observations of the High Court in Civil Revision No.1062- D of 1987, decided on 18-6-1990 and Writ Petitions Nos.2-R of 1989 and others decided on 20th June, 1990 for redressal of their grievance. As a result of above conclusion Civil Appeals Nos.170 to 176, 185 and 1561 to 1566 of 1999 are dismissed with costs. Whereas Civil Appeals Nos.177 to 184 of 1999 are allowed with costs, as a consequence whereof the impugned orders operating against the appellants passed by High Court and Chief Settlement Commissioner / Notified Authority are declared as of no legal ef fect." Even otherwise, the Hon'ble Supreme Court of Pakistan in the latest judgment reported as Member Board of Revenue/Chief Settlement Commissioner , Punjab, Lahore Vs. Abdul Majeed & Another (PLD 2015 SC 166) has conclusively held that the Chief Settleme nt Commissioner / Notified Officer is not competent to make any fresh or any alternate allotment of land to person in lieu of any belated claim. It was finally observed that only the actively pending matter shall be treated as pending proceedings or the matter which are recommended by High Court and Supreme Court cases within the ambit of the pending proceeding. Moreover , after promulgation of Repeal Act, 1975, all the evacuee properties, both urban or rural, including agricultural stood transferred to the Province against the paid consideration and the Provinci al Government has been empowered to dispose of the same through respective urban and rural schemes. Whereas, from the plain reading of the above provision of law, it evinces that Notified Officer was empowered only to dispose of pending proceeding or the matter remanded back by this Court or the Hon'ble Supreme Court. 7. Now coming to the instant lis relating to Writ Petition No.39990/2016, where the allotment of Nawabzada Walayat Ali Khan / respondent No.1 (allottee) has been challenged. Admittedly he obtained allotment of urban agricultural land measuring 28 Kanals 08-Marlas in District Gujranwala against his urban verified claim No.9211 for 258 PIUs but said allotment was challenged in Writ Petition No.667-R/1969 which allotment was set aside by this Court vide judgment dated 14.03.1974. Feeling aggrieved by order of this Court, he challenged the same through Civil Appeal No.215/1976 and the Hon?ble Supreme Court of Pakistan dismissed the said appeal vide judgment dated 07.09.1987. After having lost the cause, respondent No.1?s allottee / claimant filed application for the allotment of alternate evacuee land against 258 PIU urban agricultural units. The then Secretary (Revenue)/Settlement Commissioner (Land)/Notified Officer, Punjab vide order dated 30.05.1992 declared his claim as pending proceeding under Section 2 (2) of the Act 1975 and allotted urban agricultural land measuring 25-Kanals 06-Marlas bearing Khasra Nos.1488, 1493 and 1494 in Mauza Harbanspura, Tehsil Cantt., District
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Lahore to respondent No. 10, which allotment was implemented in the revenue record through registered mutation No.10445 on 24.06.1993 and same was sanctioned 05.07.1993. It is quiet pertinent to mention here that since the allotment of the land on 30.05.1992 neither the respondent allottee obtained the possession till date nor moved any application in this regard. Moreover, Assistant Commissioner initiated proceeding of review and finally cancelled the mutation No.10445 vide order dated 31.05.1995 and land was restored in the name of provincial government whereas the said land remained under the possession of the illegal encroacher who succeeded in obtain order dated 09.07.2010 for the purchase of said land through private treaty at market rate. Admittedly, the evacuee laws were repealed w.e.f. 01.07.1974 and the Chief Settlement Commissioner vide Notification dated 16.05.1973 declared the land in question as building site which could not be allotted against PIUs after repealed laws and notified officer was vested with no jurisdiction to allot or transfer land or grant alternate land after repealed evacuee laws. Reliance is placed on the cases reported as Muhammad Ramzan & Others Vs. Member (Revenue) Chief Settlement Commissioner & Others (1997 SCMR 1635) and Ali Muhammad through LRs & Others Vs. Chief Settlement Commissioner & Others (2001 SCMR 1822). Further reliance is also placed on the case of Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore Vs. Abdul Majeed & Another (PLD 2015 SC 166) wherein it has been held that the Chief Settlement Commissioner/Notified Officer is not competent to make any fresh or alternate allotment of land. Furthermore, after the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the land was vested in the Provincial Government against the paid price and disposal of such land has to take place according to scheme framed by Provincial Government whereas the Notified Officer has no authority to allot the land after repealed laws as the land was not available for any allotment. Reliance is placed on the cases of Syed Saifullah Vs. Board of Revenue, Balochistan through its Member (RJT) & 4 Others (1991 SCMR 1255) and Mirza Zafar Ali & Others Vs. Lahore Cantonment Cooperative Housing Society Limited (2005 SCMR 985) whereas the Chief Settlement Commissioner (Lands), Punjab, Lahore on 30.05.1992 and 24.06.1993 passed orders of allotment of land measuring 25-Kanals 06-Marlas in Harbanspura Cantt., Lahore qua the unsatisfied 258 PIUs urban in favour of respondent No.10 (allottee) in contravention of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as well as the Scheme for the Management and Disposal of Available Urban Properties, 1977 and also against the dictum laid down in Ramzan's as well as Ali Muhammad and Rafaqat Ali's…
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