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Petitioner: ABDUR RASHID (DECEASED) VS Respondent: Mst. SULTANA BEGUMHonorable Justice Ch. Muhammad IqbalA.K. Dogar and Muhammad Hanif Niazi,S.M. Naseem and Malik Asif Javed
2019 C L C Note 18 [Lahore] Before Amin-ud-Din Khan and Ch. Muhammad Iqbal, JJ ABDUR RASHID (DECEASED) through LRs and others---Appellants Versus Mst. SULTANA BEGUM and others---Respondents I.C.A. No. 811 of 2015, decided on 12th November, 2018.
(a) Scheme for Management and Disposal of Available Urban Properties, 1977---
----Paras. 1(d), 11, 12 & 30---Urban agricultural evacuee land---Disposal---Procedure---Such land can only be disposed of through unrestricted public auction and any slightest deviation from law renders such act as illegal and void.
Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another 2008 SCMR 1148 rel.
(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---
----S. 3---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11---Scheme for Management and Disposal of Available Urban Properties, 1977, Paras. 1, 6, 11, 12 & 30---Transfer of Property Act (IV of 1882), S. 41---Evacuee property---Allotment, cancellation of---Urban limits---Fraudulent transactions---Allottees of evacuee land were aggrieved of order passed by Notified Officer whereby allotment in their favor was cancelled and land was resumed in favour of the State and validated allotment in favour of appellants---Single Judge of High Court, in exercise of Constitutional jurisdiction, set aside order passed by Notified Officer---Validity---Allotment in favor of predecessor-in-interest of appellants was result of blatant fraud and was void ab initio---Such allotment did not confer any right or title upon fraudulent allottee or any subsequent purchaser from said allottee---Subsequent vendee had to sail and sink with title of their vendor and they were debarred to claim any better title than that of their vendors---Stance of appellants as bona fide purchaser was initially turned down by the Chief Settlement Commissioner which had never been challenged by appellants and attained finality---Appellants themselves had moved application for purchase of said land under S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as well as Scheme for Management and Disposal of Available Urban Properties, 1977, meaning thereby that they themselves abandoned or waived claim of bona fide purchasers--- Appellants were precluded to reassert pleas of bona fide purchaser as such protection of S. 41 of Transfer of Property Act, 1882 was not available to the subsequent purchaser---Land in question fell within urban limits of Municipal Committee vide notification dated 12-5-1961 and under notification dated 16-5-1973 as well as S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and Paras. 1(d), 11, 12 and 30 of Scheme for Management and Disposal of Available Urban Properties, 1977, thus same could not be allotted against any agricultural claim---Division Bench of High Court set aside findings of the Single Judge of High Court to such extent as same were not in consonance with law on the subject and remaining judgment was maintained---Intra-court appeal was dismissed in accordingly.
American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1; Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab and 2 others v. Sagheer Muhammad Khan and others C.P. No.709-L of 2009; Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Khair Din v. Mst. Salman and others PLD 2002 SC 677; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097; Abdul Ghani v. Noor Muhammad and others 1984 SCMR 1192 and Mst. Irshad Begum and 2 others v. Muhammad Arshad and 62 others PLD 2005 SC 347 ref.
(c) Evacuee Property and Displaced Persons Laws (Repeal) Ac, (XIV of 1975)---
----S. 3--- Double allotment--- Preference--- Ancient allotment prevails over subsequent allotment until first one is nullified by competent authority.
A.K. Dogar and Muhammad Hanif Niazi for Appellants.
Mushtaq Mehdi Akhtar for Appellant No.16.
S.M. Naseem and Malik Asif Javed for Respondents Nos. 11 to 14.
Abdul Qayyum Raja for Respondents Nos. 16 to 33.
Mian Tahir Maqsood for Respondents Nos. 15(i) and (ii).
Date of hearing: 27th September, 2018.
JUDGMENT
CH. MUHAMMAD IQBAL, J.---Through this appeal, the appellants have challenged the validity of judgment dated 22.05.2015 whereby the learned Single Judge-in-Chambers allowed Writ Petition No.5-R/1986 filed by respondents Nos.1 to 14 while setting aside order dated 19.12.1985 passed by respondent No.36/Additional Commissioner (R)/S.C. (l)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala who cancelled the allotment of Atta Muhammad, resumed the same in favour of the state and also validated the allotment of the said land in favour of Mst. Sultana Begum etc.
2. Brief facts of the appeal are that some evacuee land situated in Qila Deedar Singh, Tehsil and District Gujranwala was allegedly allotted to the following persons;
Name of the Allottee
Land Allotted
Khata No.
Date of allotment
Date of cancellation
Ashraf Ali Zaida
97-K, 17-M
123 RL.II
01.09.1965
31.1.1972
-do-
20-K, 0-M
158 RL.II
6.6.1966
-do-
Atta Mohammad
342-K, 15-M
168 RL.II
6.6.1966
19.12.1985
Payaray Khan etc.
552-K,
131 to 136 RL.II
1.9.1965
18.12.1969
Allah Wasaya
129-K, 6-M
162 RL.II
1966
18.12.1969
The alleged allotment of Ashraf Ali Zaidi was cancelled on 31.01.1972 by the Settlement Commissioner. Ch. Muhammad Ismail (vendee of the land from the allottee) challenged the said cancellation through Writ Petition No.273-R/1972 but he died during the pendency of the said writ petition, subsequently, the said writ petition was dismissed in default vide order dated 13.02.1980. Application for restoration filed by his legal heirs was also dismissed on 26.06.1983. The petition for leave to appeal was also dismissed by the Hon'ble Supreme Court of Pakistan. The legal heirs of Ch. Muhammad Ismail filed Writ Petition No.33-R/1990 which was dismissed as withdrawn. One Mst. Hajan Sunnat Bibi (vendee) filed application under section 12(2), C.P.C. to set aside the withdrawal order which was allowed vide order dated 08.11.2000. The said order was assailed before Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court remanded the case for decision afresh.
The allotment of Payaray Khan etc. at Khata Nos.131-136 which was cancelled on 19.10.1966 by the competent authority and the said cancellation order remained intact upto Hon'ble Supreme Court of Pakistan. The land allotted to Allah Wasaya was also resumed in favour of the state on 18.12.1969 which resumption order was also upheld upto the Hon'ble Supreme Court of Pakistan.
3. Mst. Sultana Begum and others were allegedly allotted some evacuee land in Qila Deedar Singh detail where of is as under:-
Name of Allottee
Land Allottee
Khata No.
Date of allotment
1. Sultana Begum
1575/K-16/M
191 RLII
19.05.1968
2. Raj son of Ranjha
51/K-19/M
192 RLII
19.05.1968
3. Nazar son of Wallayat
114/K-14/M
193 RLII
19.05.1968
4. Mst. Shah Bibi
685/K-15/M
144/RLII
19.05.1968
She was allotted land measuring 1575 Kanals 16 Marlas against her alleged evacuee claim at Khata 191 RL-II vide allotment order dated 19.05.1968 by making amendment of Khatta RL-II 168 in record of Settlement Department. The above allotment of Sultana Begum was challenged by the vendee from Atta Muhammad etc. before the Settlement Authorities for removal of the anomaly of duel allotment of one and same land to two different claimants. The allotment of subsequent allottee Sultana Begum was cancelled on 11.02.1975. Feeling aggrieved whereof she assailed the cancellation order through filing writ petitions which was accepted and the case was remanded for fresh decision vide order dated 27.02.1976. One Khuda Bakhsh vendee from Peyary Khan also filed application under sections 10 and 11 of the Land Settlement Act, 1958 for the cancellation of allotment of Mst. Sultana Begum, which application was dismissed by the Settlement Commissioner vide order dated 20.04.1977. Against the above order he filed Writ Petitions Nos.925/R and 1446/R of 1977 which were accepted by this Court vide order dated 03.03.1980. Against the above order Mst. Sultana Begum filed Civil Petition No.645 of 1980 in the Hon'ble Supreme Court which was converted into appeal bearing C.A. No.653/1984 vide order dated 05.05.1984. Simultaneously Khuda Bakhsh also assailed the order dated 03.03.1980 by filing C.P. No.1429/1980 in which leave was also granted on 5.5.1984 and petition was converted into Civil Appeal No.655/1984. Both the above appeals were disposed of by Hon'ble Supreme Court of Pakistan as the same have become infructuous vide order dated 30.05.1991, as the matter of allotment of Atta Muhammad at Khata No.168 of RL-II was still pending adjudication before the Settlement Authorities. The Additional Settlement Commissioner vide order dated 19.12.1985 declared the allotment of said Atta Muhammad as illegal and cancelled the same, however, he allowed the subsequent vendees from first allottee to purchase the said land under their possession @ Rs.100/- PIUs. Against the above orders two writ petitions 5-R/1986, W.P. No.345/R of 1984 were filed by Mst. Fatima Bibi and one Writ Petition No.33-R/1990 was filed by one Shahid Ismail etc. This Court vide order dated 08.11.2000 declared the allotment of Atta Muhammad as illegal and the subsequent vendee from him have no legal right to retain possession of the cancelled land. Against the said order, two civil petitions were filed before the Hon'ble Supreme Court of Pakistan wherein leave was granted and the said petitions were converted into Civil Appeal (i.e. Appeals Nos.2731 to 2733 of 2001) which were allowed and case was remanded to this Court vide order dated 05.05.2008 for fresh decision. A Review petition was filed against the above order which was also dismissed as withdrawn vide order dated 17.02.2010. In the post remand proceedings of Writ Petitions Nos.5-R/1986, 345-R/1984 and 33-R/1990, the learned Single Judge-in-Chambers vide judgment dated 22.05.2015 accepted Writ Petition No.5-R/1986 and set aside the order dated 19.12.1985 passed by the Additional Commissioner (R)/S.C. (I)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala and validated the allotment dated 19.05.1968 of subsequent alleged allottee Mst. Sultana Begum. Hence, this Intra Court Appeal.
4. Learned counsel for the appellants submits that under section 3 of the Repeal Act, 1975, the Additional Settlement Commissioner rightly passed order by allowing the subsequent purchaser from the original allottee to purchase the evacuee land @ Rs.100 PIUs; that the appellants firstly purchased land from Atta Muhammad etc., but his allotment was cancelled as the same was a double allotment, later on, the Additional Settlement Commissioner gave opportunity to the occupant to purchase the land in their possession under section 3(1)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975 and the appellants purchased the land in their respective possession; that the learned Single Judge-in-Chambers misconstrued the provision of section 3 of the Repeal Act, 1975 and illegally set aside the order for sale of the land to the appellant; that allotment dated 19.05.1968 in favour of Mst. Sultana Begum, Raj, Nazar and Mst. Shah Bibi were also double allotments of the land which was not available for any allotment as the allotment of Atta Muhammad and other was still intact as the same was not yet cancelled by the competent authority at the time of its allotment to subsequent allottee whereas without lawful resumption of the said land, the same could not be re-allotted any further as such the subsequent allotment in favour Sultana Begum etc. is liable to be cancelled being bogus in nature.
5. Learned counsel appearing on behalf of the respondents states that very allotment of Atta Muhammad etc., was obtained by practicing fraud which allotment was void ab initio and same was liable to be ignored; that the order of allotment of Mst. Sultana Begum etc., was rightly passed by the competent authority against the genuine verified claim; further submits that the appellants purchased the land from the fraudulent allottees, as such the possession of the appellant over the land is that of an illegal occupant, and they are not entitled to get relief as embodied in Section 3 of the Repeal Act, 1975. Further asserted that land was not available to be sold out to the appellants as the same has already been allotted to Mst. Sultana Begum on 19.05.1968, as such, learned Single Judge-in-Chambers rightly passed judgment and has committed no illegality.
6. We have heard the arguments of the learned counsel for both the parties at full length and gone through the record with their able assistance.
7. Admittedly the impugned land comprising of Khata RL-II Nos.123, 131 to 136, 158, 162, 168 as well as Khata RL-II Nos. 144, 191 to 193 situated in Qila Didar Singh District Gujranwala was an evacuee land. The pictorial map of Qila Didar Singh is scanned herein below:-
As per official record Qila Didar Singh was a Town Committee before partition of India as evinces from the letter of the Deputy Commissioner, Gujranwala dated 25.01.1935. Scanned copy of the said letter is reproduced as under:-
Similarly the status of Town Committee of Qila Didar Singh was further upgraded as Municipal Committee vide official Gazette Notification dated 12.05.1961, scanned copy whereof is as under:-
From perusal of above letter of the Deputy Commissioner as well as the Notification dated 12.05.1961 it can conveniently be said that the land comprising of the above said Khatta RL-II Numbers do fall within the limits of Town and Municipal Committee, Qila Didar Singh.
Before dealing with the respective assertions and contentions of the parties as well as the legal and factual issues involved in the lis, it is appropriate to shed light on the plain provisions of law as well as the case law on the subject. For Settlement and Rehabilitation of the Evacuees, the Govt. of Pakistan issued many policies, guidelines and finally legislature enacted the Displaced Persons (Land Settlement) Act, 1958 to streamline, legalize the efforts and process of the Rehabilitation of the Evacuee claimants. Before and after the above enactment majority of the evacuees were settled during the process of rehabilitation. Under the guise of being evacuees certain ingenuine claimants fraudulently got allotted evacuee land. To eradicate such grotesque practice of fraudulent allotments Sections 10 and 11 of the Act ibid furnishes procedure to cater the situation. There was another aspect of the allotments of the evacuee lands that the claims of rural/agricultural PIUs were being adjusted against the urban properties beyond the entitlement of claimants and in order to curb such practice the Chief Settlement Commissioner finally issued Notification on 16.05.1973 declaring all the evacuee agricultural land situated in urban limits of Municipal Corporation Notified Area Committee, Municipal Committee and Tehsil Committee etc., in the entire province of Punjab to be building site and since the issuance of said notification all such agricultural land situated within urban limits was excluded from any allotment against the agricultural rural unit. The said notification is reproduced as under:-
"In exercise of powers conferred upon me under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, IO, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates 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 Punjab, as building sites, for disposal under section 13 of the said Act."
Ultimately the evacuee laws on the subject were also repealed through Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975 giving retrospective effect from 1st of July, 1974, whereafter the further allotment of the evacuee land was restricted with the exception that only the actively pending proceedings before the Chief Settlement Commissioner or the matter remanded by the Supreme Court or the High Court were to be decided by the Notified Officer as prescribed in section 2 of the Repealing Act, 1975. Whereas section 3 of the Repealed Act, 1975 prescribed the criteria for the Management and Disposal of Urban Evacuee Land. For ready reference, section 3 is reproduced as under:-
"3. Transfer of property. (1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal:-
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf:
Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land:
Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972."
Under the above provision of law all the evacuee properties/land against the paid consideration were transferred to the Provincial Government which was mandated to visualize the policies for disposal of the urban evacuee land. The Provincial Government under section 3(1)(a) of the Act ibid prepared a scheme for the transfer of the urban land named as "Scheme For the Management and Disposal of Available Urban Properties" promulgated on 13th of January 1977. An elaborate procedure is provided in paras 1, 6, 11, 12 and 30 of the above policy for the disposal of urban land. The vires of the above policy came under judicial scrutiny and Hon'ble Supreme Court of Pakistan in a case reported as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449) conclusively held that all the urban properties are to be disposed of through unrestricted public auction. Relevant paras are reproduced as under:-
"In the instant cases, as record shows that on mere desire of the ten Chief Minister of Punjab, the Member (Colonies) BOR, Punjab doled out valuable "residual evacuee property" at a throw away price to the petitioner-School, knowing fully well that the subject property is not the State land and that the subject evacuee land could only be disposed off through open auction in terms of the Scheme, 1977 and otherwise, he was not at all competent to undertake such exercise, which authority under the Scheme, 1977 vested in the Member, Board of Revenue (Residual Properties)."
Further there is no provision in the Evacuee Repeal Laws that the Evacuee land can be disposed of through any private treaty and a glorified modus oprandi for disposal of the evacuee land through unrestricted public auction has finally been selected as suitable for the best interest of the state as discussed in the case of Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1) as well as in C.P. No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab and 2 others v. Sagheer Muhammad Khan and others, where the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 has settled that after the Repeal Act 1975, the urban evacuee property can only be disposed of through open auction, relevant portion thereof is reproduced as under:-
"7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms."
Moreover after issuance of notification dated 16.05.1973 by the Chief Settlement and Rehabilitation Commissioner, Punjab, no allotment can be made on the basis of any claim or unadjusted unit of the evacuee claimant. The Hon'ble Supreme Court of Pakistan in a reported case Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822) has discussed in detail the vires of notification dated 16.05.1973 and declared that after issuance of the above notification no urban evacuee land can be allotted on the basis of any evacuee claim or unsatisfied or unadjusted PIUs. As per the above notification, the evacuee agricultural land (urban) was declared building site and same has gone out of the rural agricultural compensation pool, whereafter the said evacuee land neither can be allotted against any claim nor sold to any sitting occupants through any private treaty. Reliance is placed on the cases of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Khair Din v. Mst. Salaman and others (PLD 2002 SC 677), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Khadim Hussain v. Abid Hussain and others (PLD 2009 SC 419) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). Further, it is made obligatory upon the state functionaries that any disposal of evacuee urban land as well as its letting or leasing out shall be made through transparent, unrestricted public auction to safeguard the sacred interest of the public as laid down in a recent judgment reported as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449), wherein the Hon'ble Supreme Court of Pakistan has held that under Paragraphs 1(d), 11, 12 and 30 of the Scheme for Management and Disposal of Available Urban Properties, 1977, the evacuee urban properties shall be disposed of (if needed) through unrestricted public auction. As discussed above it has abundantly been clear and conclusively settled that urban agricultural evacuee land could only be disposed of through unrestricted public auction and any slightest deviation from the law rendered such act as illegal and void as it is well settled law that when law requires a thing to be done in a particular manner, the same should be done in that very particular manner, otherwise not. Reliance is placed on "Government of the Punjab, Food Department through…
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