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Petitioner: Mst. SAFIA BEGUM and others VS Respondent: ADDITIONAL COMMISSIONER JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title:Mst. SAFIA BEGUM and others vs ADDITIONAL COMMISSIONER
JUDGMENT
Reported As: 1994 MLD 213 Result: Petition dismissed Judgment JUDGMENT ' Facts of the case out of which this Constitutional petition has arisen, as reflected in the pleadings of the parties and documents appended thereto, are that Late Sh. Rehmat Ullah predecessor-in- interest of Mst. Safia Begum and two other petitioners before this Court was allotted land measuring 40 Kanals bearing Khasra Nos. 114, 170, 171, 172 and 178 situated in Village Khokharki, Tchsil and District Gujranwala which is Agricultural Evacuee Trust Property situate within the limit of M.C. Gujranwala vide order, dated 12-1-1960 (Annexure 'A') passed by A.R.C.(L), Gujranwala, as J & K refugee, for maintenance purposes. On 20-3-1975 Sh. Rehmatullah now deceased submitted Form No, 40169 (Annexure 'D') to competent authorities for transfer of proprietary rights in his favour under the relevant scheme applicable to the J&K refugees. This, application was allowed by the Deputy irector, Government of Pakistan J&K Refugee Rehabilitation Organization but ultimately permission was not granted to deposit the transfer price as a stay order had been issued by the Federal Government against transfer of proprietary rights regarding Evacuee Trust Properties as is clear from the report submitted to A.C. Gujranwala by Assistant Administrator, Evacuee Trust Property, Gujranwala (Annexure E). The petitioners claim that they continued in possession of the land referred to above as heirs of Late Sh. Rehmat Ullah after his death, holding the land as temporary allottees. 2. Another relevant development which took place viz. That in 1962 Kamalia Textile Mills situate on evacuee land measuring 64 Acres and 17 Marlas (517 Kanals and 17 Marlas) situate in Chak No, 220- RB, District Faisalabad was sold to CEBEE Industries during liquidation proceedings and was ultimately acquired by Ch. Zahoor Elahi deceased predecessor-in-interest of the respondents No, 6
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to 14. At the time of taking of possession at site it transpired that an area measuring 30 Kanals, 8 Marlas is under graveyard, hence, was surrendered and vide communication dated 14-3-1963 request was made to the Chief Settlement Commissioner for compensation by giving of alternate land. Request was recommended to be granted by DRC(L) Faisalabad and it was suggested, provided that Killa No,5 of Square No,82 may be given as an alternate land Government agrees as the same has been exchanged with the State land and hence is no longer available with the Settlement Department. Later vide letter dated 11-2-1964 Settlement Authorities directed the petitioner for selection of some other alternate land. Matter remained pending. Ultimately Settlement Department vide letter, dated 18-41974 addressed to the Secretary (Colonies), Board of Revenue, Punjab, Lahore made the proposal that the Government may surrender some land within the limits of M.C., Faisalabad for being given to the applicants and that the Government shall be compensated by the Rehabilitation Department by giving some urban land in Toba Tek Singh. Ultimately with some recommendations a proposal in this behalf was made by the Board of Revenue and was placed before the Chief Minister, Punjab who did not approve of it vide his oral orders, dated 10-4-1976. This order was not conveyed to the applicants hence, Writ Petition No, 869-R of 1977 was filed to direct the Settlement Authorities, the Board of Revenue, Punjab and the Provincial Government to perform their obligations. It was disposed of vide order, dated 23-6-1977 with the observations for decision of the matter by the respondents of the petition. After waiting for some time again a representation was made on 31-10-1977 which was replied to by the Board of Revenue that vide letter, dated 3-4-1978, that request for exchange has been rejected. Order, dated 10-4-1977 passed by the Chief Minister and letter, dated 3-4-1978 were challenged by late Ch. Zahoor Elahi and others in Writ Petition No,566/R-78 which was accepted in a renowned judgment rendered by his Lordship Mr. Justice Mehboob Ahmad, J (presently Hon'ble Chief Justice of this Court) vide order, dated 15-10-1979 and the order passed by the Chief Minister as well the order of filing of representation were struck down. The operative part of the said judgment is reproduced as under:--- "In view of the above position, the order, dated 10-4-1976 conveyed to the petitioners by communication, dated 3-4-1978 is obviously liable to be set aside. The said decree is, therefore, declared as having been passed mala fide and thus without lawful authority and is accordingly quashed. As to the prayer of the petitioners to direct the respondents to perform their duty and discharge their obligations, the Settlement and Rehabilitation Department has itself shown its intention to act in accordance with law. They are accordingly directed to act in accordance with law and proceed with the matter as if the orders dated 10-4-1976 and 3-4-1978 are not in field. There will, however, be no order as to costs." ' Aggrieved of this order, the Chief Settlement Commissioner filed C.P. No, 399 of 1980 before the Hon'ble Supreme Court of Pakistan which was dismissed on 15-10-1980. Thereafter again on the move of Ch. Zahoor Elahi deceased and in compliance with the orders passed by this Court vide letter, dated 28-8-1982 Secretary (Rural), Board of Revenue, Punjab asked the A.C., Sadar Gujranwala to submit a report about the available land for allotment to the legal heirs of Ch. Zahoor Elahi deceased. A probe was initiated by the A.C. Gujranwala in January 1983 who ultimately submitted his inquiry report, dated 26-6-1983. In the report A.C. Gujranwala found that the land allotted to Sh. Rehmat Ullah deceased predecessor of the petitioners was agricultural urban evacuee trust property and was not allotable for allotment to him in lieu of maintenance and further that the original allotment did not exist in the Rehabilitation Record, hence, is bogus. The report submitted by the Asssistant Commissioner which is Annexure R-16 on record is reproduced as under:--- {{URDU TEXT}} {{URDU TEXT}}
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' On 21-7-1983 Secretary (Rural), Board of Revenue directed A.C. Gujranwala for correction of the Revenue Record for mutating the same in the name of State and to implement the 231order, dated 28-8-1982 passed by the Chief Settlement Commissioner, whereby it had been directed that the heirs of Ch. Zahoor Elahi deceased should be allotted alternate land. As per this order, allotment in the name of late Sh. Rehmat Ullah and his successors was shown to have been cancelled in report Roznamcha and the relevant record by the concerned Authorities. This order was challenged by Mst. Safia Begum and other petitioners on 13-12-1983 in Writ Petition No,348-R of 1983. This writ petition was dismissed as being premature. However, inquiry was directed to be conducted by District Collector. This order was challenged by the petitioners before Hon'ble Supreme Court of Pakistan in C.P.S.LA. No,268 of 1984, which was dismissed by the Hon'ble Supreme Court of Pakistan vide order, dated 5-5-1987. The petitioners filed review petition No,11 of 1987 before the Honourable Supreme Court but the same was dismissed vide order, dated 24-5-1987. Paras No, 4, 5 and 7 of the order passed in review petition are reproduced as under:- (4) The petitioners sought leave to appeal to challenge the order of the learned Single Judge. The leave was refused with the observation: "Petitioners' counsel has not been able to point out any flaw in the impugned order. Nor has he raised any question of law requiring decision by this Court. (5) While the petition for special leave to appeal was pending the Additional Commissioner concluded the inquiry and by his order, dated 30-10-1984 held that as the land in dispute was Evacuee Trust Property, Rehmatullah and, after his death, his successor-in-interest had no locus standi therein. (7) This review petition is clearly misconceived. In the earlier writ petition, the order of the Additional Commissioner did not come under consideration. Therefore, the refusal of this Court to grant leave to appeal from the order of the learned Single Judge would not preclude the petitioners from raising such legal objections as may be open to them while calling in question the legality of the order of the Additional Commissioner. With these observations, this petition is dismissed." ' During the pendency of proceedings before the Hon'ble Supreme Court, the inquiry had been transferred to Additional Commissioner respondent No,1 by the Commissioner, Gujranwala Division respondent No,2. Learned Additional Commissioner (C) submitted his report/recommendation dated 30-10-1984 to the Commissioner, Gujranwala Division respondent No,2. The operative part of the report/recommendation dated 30-10-1984 is reproduced as under:--- "Sh. Rehmat Ullah (deceased) temporary allottee of J&K has no locus standi on this land. As jurisdiction of any other Court for allotment, etc. Old Evacuee Trust Property is barred under the Evacuee Trust Properties (Management and Disposal) Act, 1975, it is suggested that the claim of Ch. Zahoor Elahi (deceased) and his legal heirs may be taken up by the Board of Revenue with the Chairman, Evacuee Trust Property Board, Lahore for transfer of land in question to the applicants. ' This report/recommendation dated 30-10-1984 submitted by respondent No,1 and the correction of the Revenue Record, incorporation of the entries in the Revenue Record reflecting the cancellation of allotment of Rehmat Ullah and the right of allotment of the land in question to the respondents No,6 to 14 have been challenged in this writ petition, which has been contested and separate written statements have been filed by the respondents Nos. 4, 5 and 6 to 14 respectively." 3. Syed Sharif Hussain Bukhari, Advocate has appeared on behalf of the petitioners. Ch. Fazal Hussain, Advocate has appeared on behalf of respondents Nos. 4 and 5. M/s. Syed Jamshed Ali, Mr. Ahmad Awais and Chaudhary Muhammad Abdullah, Advocates have appeared on behalf of respondents Nos. 6 to 14. None has appeared on behalf of respondents No,1 to 3. 4. Syed Sharif Hussain Bukhari, Advocate, learned counsel for the petitioners has raised the following contentions:
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(i) That after the repeal of the Evacuee Laws, the land in dispute which had been allotted to the predecessor-in-interest of the petitioners as J&K refugee for maintenance purposes could not have been cancelled by the respondents No,1 to 3 nor any proceedings culminating in the order of cancellation of their allotment could have been initiated by respondents No,1 to 3, therefore, the impugned order/cancellation is without lawful authority. (ii) That the dispute in this case could only have been determined by the Evacuee Trust Board, therefore, respondents No,1 to 3 had no jurisdiction to proceed in the matter. (iii) That the land in dispute is rural agricultural evacuee trust property and, therefore, could validly have been allotted for maintenance purposes and can now be sold in favour of the petitioners as per Government policy on the subject. (iv) That findings of fact rendered by the learned Additional Commissioner to the effect that the petitioners have no locus standi in the matter and no valid allotment exists in favour of the petitioners is erroneous in law and is based upon misreading of record and misunderstanding of correct factual and legal position. (v) That respondents No,6 to 14 are not entitled to the allotment of the land in question as it is evacuee trust property and hence, not available for allotment. 5. Elaborating his arguments, learned counsel for the petitioners has taken me through the record of this case. Referring to `Naqsha Tajweez Allotment' Annexure 'A', learned counsel pointed out that vide order, dated 22-1-1960 the land in dispute is proved to have been allotted to the predecessor- in-interest of the petitioners by the ACR(L) as J&K refugee. Learned counsel has further referred to form 19 maintained by the Evacuee Trust Board, Government of Pakistan, Annexure `A/I', a copy of mo. Annexure A/II, a copy of interim order passed by respondent No, 1 on 8-10-1984 Annexure `A/III', a copy of Jamabandi for the years 1962-63 Annexure a copy of the application submitted by Sh. Rehmatullah deceased for grant of proprietary rights Annexure 'D', a copy of the report, dated 6-12- 1982 Annexure 'C', a copy of the report Annexure `E', a copy of the order,' dated 13-8-1983 Annexure 'F" and has pointed out that in all these documents, Sh. Rehmatullah deceased is recorded as an allottee of the land in question as J&K refugee, therefore, the findings rendered by respondent No,1 to the effect that there is no allotment in favour of predecessor-in-interest of petitioners and hence the petitioners have no locus standi in the matter is illegal and is based upon misreading of the evidence and is not maintainable. Learned counsel has further contended that after repeal of the Evacuee Laws, respondents No,1 to 3 who are consolidation or Revenue Authorities had absolutely no jurisdiction to hold any inquiry into the matter with regard to the existence and validity of the allotment in favour of the predecessor of the petitioners and, therefore, the proceedings on the basis whereof of impugned order/recommendation has been passed are totally coram non judice, hence, a nullity in the eyes of law. Learned counsel has placed reliance on cases of Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner, Additional Settlement and Rehabilitation Commissioner, Lahore and N.M. Sana, Egerton Road, Lahore PLD 1966 SC 719 and Haji Dher Ali and 8 others v. Haji Ahmed Din and others 1986 SCMR 771. Learned counsel for the petitioners has further contended that after expiry of more than two decades w.e.f. The date of allotment, its existence and validity could not have been gone into by respondents No,1 to 3, therefore, the findings rendered by respondent No,1 against the petitioners are nullity in the eyes of law and are liable to be declared illegal and are without lawful authority. Reliance is placed on case of Iqbal Siddiqui v. Assistant Settlement Commissioner (Urban) PLD 1984 Lah. 291. Learned counsel has further contended that the dispute raised by the respondents No,6 to 14 can only be determined by the Chairman, Evacuee Trust Board and hence the impugned proceedings are absolutely coram non judice. According to the learned counsel the property in question is rural agricultural evacuee trust property and was included within municipal limits for the first time in August, 1959, hence, was available for allotment for maintenance purpose. He
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however has conceded that there is no cavil with this proposition that agricultural urban evacuee trust property land situate within a radius of five miles thereto could not have been allotted under any scheme. Learned counsel has argued that although factual aspect of the claim of respondents No,6 to 14 regarding surrender of land, their entitlement to get alternate land as per orders passed by the Settlement Authorities, the Member, Board of Revenue and observations made in writ petition referred to above cannot be controverted, yet they are not entitled even to be considered for disposal of the disputed land by the Evacuee Trust Board as against the claim of the petitioners who are holding the land in dispute as J&K refugees and hence the respondent No,1 could not have been suggested that the Board of Revenue should take up the matter of transfer of land in favour of the said respondents with the E.T.P.B. Hence, the impugned order/recommendation are illegal and without a lawful authority. ' After arguing the case at some length, learned counsel has finally conceded that he is not aggrieved of the findings rendered by respondent No,1 so far as it relates to the nature of the property in question and, therefore, the petitioners have no objection to this portion of the order/recommendation wherein it has been held that the property in question is agricultural urban evacuee trust property. However, the petitioners are aggrieved of that portion of the order/recommendation wherein it has been held that the petitioners are not valid and lawful allottees of the land in question and have no locus standi in the matter and suggestion to take up the matter with E.T.P.B. By the Board of Revenue and the consequential steps taken by the Revenue Authorities and which may further be taken by the respondents Nos.2 and 3 in presence of the order, dated 30-10-1984. Hence, according to the learned counsel the order, dated 30-10-1984 to the above extent and consequential steps taken and intended to be taken are illegal and without a lawful authority. ' As against the above arguments, addressed by the learned counsel for the petitioners, Ch. Fazal Hussain, Advocate learned counsel for the respondents No, 4 and 5 has argued that even as per record produced by the petitioners in this writ petition and ultimate concession made by the learned counsel for the petitioners it stands established that the property in question is agricultural urban evacuee trust property. It being situated within the Municipal limits could not have been allotted to the petitioners predecessor-ininterest, for maintenance purposes in the year 1960 inasmuch as it being a property vesting in public trust it was not available for allotment to the petitioners and that as per provisions of section 6 of the Ordinance 15 of 1949, section 7 of the Act 12 of 1975 and section 5 of the Displaced Persons (Land Settlement) Act, 1958, Evacuee Trust Property could not be allotted under any scheme either to J&K refugees or to any other displaced persons. Learned counsel further contends that even if it is presumed that the allotment was made to the predecessor-in-interest of the petitioners it being void ab initio was liable to be ignored. In support of his arguments, learned counsel has placed reliance on the cases of Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others PLD 1965 SC 356 and Chairman, Evacuee Trust Board, Government of West Pakistan Lahore and others decided on 29th of November, 1966 in re: Civil Appeal No,7 of 1966. Learned counsel has further contended that the allotment in favour of the petitioners being a nullity in the eyes of law did not exist and, therefore, has rightly been held as such and has been formally cancelled. Therefore, the impugned order/recommendation and the consequent orders have been passed with jurisdiction by the competent Authorities in discharge of their statutory duties. 6. Learned counsel has argued that Sh. Rehmat Ullah deceased was a rich person and was allotted land measuring 608 Kanals and hence was not entitled to allotment of any land for maintenance purposes and that the alleged allotment is bogus and forged, hence, the record has rightly been rectified by the Revenue Settlement Authorities and the petitioners have rightly been held as having no locus standi in the matter. According to the learned counsel the management and
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disposal of Evacuee Trust Property is the prerogative of the respondents No,4, 5 and, hence, petitioners cannot claim any right to be considered for disposal of the land in dispute and to get its proprietary rights and to challenge the claim of respondents No,6 to 14. 7. Syed Jamshed Ali, Advocate, learned counsel for respondents No,6 to 14 has argued that there is no record of allotment in the name of the petitioners as is clear from documents R-1 and R-16. In this behalf learned counsel has further contended that Annexure 'A' shows that verification by Girdawar was made on 31-1-1960 whereas the order of allotment is allegedly passed on 22-1-1960 which clearly proves that a fraud had been committed. According to the learned counsel the scheme of allotment of land to J&K refugees for maintenance purposes was not applicable to Sh. Rehmat Ullah as he was allottee of land measuring 608 Kanals against his verified claim as is clear from mark K-11 and therefore, no allotment could legally have been made in his favour. Learned counsel has further contended that the entry of the predecessor of the petitioners in Jamabandi for the years 1962-63 is that of tenant and, therefore, it cannot be said that the property in question was ever allotted to the predecessor-in-interest of the petitioners as J&K refugees. Learned counsel has further prayed that the written statement filed by the respondents may be considered as cross-objections and the order impugned in this writ petition may be modified to the extent wherein it has been held that the land in dispute was agricultural urban evacuee trust property. According to the learned counsel property in dispute is agricultural urban evacuee property and not urban evacuee trust property, therefore, the findings of the Additional Commissioner, respondent No,1 in this behalf is erroneous. In support of his arguments learned counsel has referred to documents Annexures R-4 to R-8', which are copies of the Jamabandis and has pointed out that ownership of the land is shown in the name of Central Government during the period 1966 to 1982. Therefore, as there is no entry of "{{URDU TEXT}}" in the Revenue Record as required by instructions, Annexure 'R-12 to R15', it shall be presumed that the property in question is not evacuee trust property. Learned counsel has argued that even otherwise mere entry in the Revenue Record that the property is evacuee trust property is not sufficient to prove the nature of the property as a public trust. In this behalf learned counsel has placed reliance on cases of Muhammad Naseeb v. Government of West Pakistan though Secretary, Government of West Pakistan and three others PLD 1973 Note 32 at p.41 and Divisional Evacuee Trust Committee, Karachi v. Abdullah and two others 1970 SCMR 503. According to the learned counsel as held in case of Sh. Abdul Majid and another v. Pakistan and others PLD 1967 Lahore 459, the property in question is only "Evacuee" and not Evacuee Trust Property and, therefore, to this extent the order passed by respondent No,1 is illegal and is liable to be modified. Learned counsel contends that the property in question being urban in character respondents are entitled to the transfer thereof against their available PI 401 units. 8. None has appeared on behalf of the respondents No,1 to 3. 9. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. As regard the status of the property in question learned counsel for the petitioners has conceded that it is Evacuee Trust Property. He has withdrawn his objection in relation to the order impugned in this writ petition, so far as it related to the nature of the property. Learned counsel for the respondents No,6 to 14 however, has tried to raise the objection regarding the status of the property in dispute as determined in the impugned order/report by making an oral request that the written statement filed in the writ petition may be treated as cross-objection. I am afraid the prayer is too late and cannot be granted having been made while arguing the Constitutional petition. Although there is no cavil with this proposition that the principle as contained in C.P.C. Are applicable to the writ petitions yet the provisions to file cross-objections being substantive in the nature of an appeal cannot be allowed to be used during the course of arguments for converting a written statement into cross-objections, therefore, respondents No,6 to 14 cannot be allowed to raise objection with regard to the status of the property as being
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agricultural urban evacuee trust property as determined by the Additional Commissioner respondent No,2. Argument of the learned counsel for the respondents No,6 to 14, therefore, with regard to the status of the property is repelled and cannot be allowed to be raised inasmuch as admittedly the impugned order has neither been challenged by the respondents No,6 to 14 nor any cross-objections were filed within limitation. Even otherwise there is overwhelming evidence on record to prove that the land in dispute is Evacuee Trust Property. Besides documents Annexures A to E, Annexure R-16 relied upon by the respondents proves beyond doubt that the property in dispute is agricultural Urban Evacuee Trust Property. In the Jamabandis for the years 1944-45 to 1962-63 the entry regarding land in dispute is as follows: "Widaya Sawami Atma Nand Basti situated at Gujranwala". ' Through the management of Trustain Anant Ram and others, merely because the Central Government is owner in the Revenue Record or he…
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