' SARMAD JALAL OSMANY, J.--- These appeals arise out of a consolidated judgment of the learned Lahore High Court in Writ Petitions Nos.129-R of 1992, 165-R of 1992, 106-R of 1992, 93-R of 1995 and 241-R of 1995 and hence are being disposed of together.
2. To say the least, these appeals have a chequered history. It appears that appellants-Tufail Muhammad and Muhammad Ibrahim (in Civil Appeal No,625 of 2003) (now represented by their legal heirs) claimed land admeasuring 90 Kanals in Square No,38 of Chak No,224/R.B., District Faisalabad, which was evacuee property, as temporary allottees on the basis of their claim under the Rehabilitation Scheme in 1947. However, the Provincial Government acquired the said land by exchange for the purpose of extension of Faisalabad City Limits and as a result thereof the same ceased to be a part of the compensation pool and hence not confirmed. The appellants (in Civil Appeal No,625 of 2003) challenged this action of the Provincial Government by filing Writ Petition No,1743 of 1966 in the West Pakistan High Court impleading the Federal Government, West Pakistan Government, Custodian of Evacuee Property West Pakistan and Chief Settlement Commissioner West Pakistan etc. Vide order, dated 12-6-1970, the matter was referred to the Chief Settlement Commissioner for resolution. As the land was not confirmed in favour of the appellants by the Revenue Authorities they again filed Writ Petition No,716-R of 1981 before the learned Lahore High Court when on 19-11-1985 it was ordered on the report of the concerned Patwari that the appellants are entitled to the confirmation of the land allotted to them under the Rehabilitation Scheme except Killa No,11, which was reportedly a graveyard. However, since the directions contained in the such judgment, dated 19-11-1985 were not complied with by the Government, the appellants again filed Writ Petition No,27-R of 1990 before the learned Lahore High Court, which was taken up on 6-2- 1991 when in the presence of the learned Assistant Advocate-General and concerned Tehsildar again a direction was issued for the implementation of the aforesaid judgment, dated 19-11-1985.
The appeal filed by the Government against the said judgment i,e, Civil Appeal No,25 of 1988 before this Court also failed, as it was dismissed on 29-6-1991.
3. In the meantime while the aforementioned litigation was going on between the appellants and the Government Authorities, respondent No,1 (in Civil Appeals Nos.625 and 627 of 2003) i,e, Messrs Siddique Textile Mills Ltd. Was also allotted the land in question by the Provincial Government on 25-4-1962, subject to the payment of price to be fixed by the Board of Revenue. The matter remained pending with the Government when vide memo. Dated 28-6-1975 it offered to sell 1 Acre and 5 Marlas land (as against 11 Acres and 5 Marlas) on payment of Rs,48,000 per Acre with 10% surcharge. This reduction in land was attributed to the fact that only 1 Acre and 5 Marlas was being used for the purpose of running a factory, for which the land was allotted to the Mills. Thus, the remaining land was ordered to be put on sale through auction and accordingly resumed by the Assistant Collector on 4-6-1976.
' A representation was moved by the Mills for sale of the entire piece of land, which was rejected by the Board of Revenue on the ground of a ban imposed by the Martial Law Authorities and so also a show-cause notice was issued as to why even this remaining piece of land viz. 1 Acre and 5 Marlas should also not be resumed since the Mills had failed to deposit the requisite price with the Government. This notice was challenged by the Mills through Writ Petition No,2445 of 1977 before the learned Lahore High Court, which came to be dismissed on 18-12-1977 and the I.C.A. Bearing No,11 of 1978 filed against such dismissal was in turn dismissed on 12-3-1978. In turn this order was challenged by the Mills in Civil Appeal No,75 of 1983 before this Court, which was allowed vide judgment, dated 6-7-1983 and all the departmental orders as well as the judgment of the learned Lahore High Court were set aside and a direction was issued that the Mills should be heard before resuming any part of the land. Finally a review petition was filed in Civil Appeal No,25 of 1988 where all the parties were present and it was disposed of in the following manner:--- "It is manifest, however, that in the presence of the orders made by this Court on 6-7-1983 (while disposing of Civil Appeal No,75 of 1983 (Messrs Siddique Textile Mills Ltd. v. Board of Revenue, Punjab and others) the orders that have been passed on dates subsequent thereto in relation to allotment or otherwise of any part of the land comprised in the aforesaid piece of land measuring 11 Acres 5 Marlas could not have been passed until the Board of Revenue, after hearing Messrs Siddique Textile Mills Ltd., had finally determined whether it could retain the said land or any portion of it.
' In the result, we consider that the judgment of this Court in Civil Appeal No,25 of 1988, dated 29-6- 1991, which was passed in ignorance of its earlier judgment passed in Civil Appeal No,75 of 1983 dated 6-7-1983 must be recalled. We further direct that the Board of Revenue shall proceed to dispose of the matter remanded to it (vide this Court's above-mentioned judgment, dated 6-7- 1983) with utmost expedition, no longer than four months from today. It is clarified that the parties before us, in all these four matters, shall have a right to appear before the Board of Revenue and to be heard and permitted to raise all relevant pleas in support of their cases. The Board of Revenue, therefore, shall dispose of the matter by a speaking order, dealing with all questions arising in the case."
4. In consequence of the aforementioned remand order by this Court all the parties appeared before the Board of Revenue, a learned Member of which after having heard them at length ordered on 16-4-1992 that only the claim of the appellants Tufail Muhammad and Muhammad Ibrahim were proper and in accordance with law and hence the mutation of land in their favour required no interference whereas the claim of the Mills and appellants Safdar Hussain and Abdul Razzaq (in Civil Appeals Nos.628 and 629 of 2003), who were residents of the Katchi Abadi, could not be entertained. Consequently, excess area left over after deduction of the area in which the mosque and graveyard were located was to be disposed of by the Deputy Settlement Commissioner (Lands), Faisalabad in accordance with the policy under the rules. The decision of the Member, Board of Revenue was challenged before the learned High Court in Writ Petitions Nos.129-R of 1992 etc., which were disposed of vide order, dated 11-2-2002 by directing that the Board of Revenue shall after hearing the Mills, who had filed Writ Petition No,129 of 1992, fix the price of the land in question in accordance with applicable laws. The petitions filed by appellants Safdar Hussain and Abdul Razzaq (Writ Petition No,106-R of 1992 and Writ Petition No,241-R of 1992) were dismissed along with the claims of Tufail Muhammad and Muhammad Ibrahim. The present appellants have challenged the decision of the learned Lahore High Court, through these appeals.
5. In support of Civil Appeal No,625 of 2003 filed by Tufail Muhammad and Muhammad Ibrahim (through their legal heirs), Mr. S.M. Naseem, learned Senior Advocate Supreme Court has firstly submitted that vide the impugned judgment, the learned High Court has erred while holding that the judgment in favour of the Mills in Civil Appeal No,75 of 1983 still holds the field as vide remand order passed in Civil Appeal No,25 of 1988 dated 4-12-1991, the entire case was open before the Board of Revenue. Consequently, all the parties had participated in the hearing before the Member, Board of Revenue, who had after hearing them, decided the matter in accordance with the facts and law. Accordingly learned Senior Advocate Supreme Court has fully supported the order passed by the learned Member, dated 16-4-1992. In this regard he has impressed upon us the fact that how could any judgment passed by this Court hold the field when the appellants were not a party i,e, passed in Civil Appeal No,75 of 1983 in favour of the respondent-Mills.
6. On the merits of the case, learned Senior Advocate Supreme Court submitted that per paras.14 and 17 of the Rehabilitation Scheme, a prior right has been allocated to the appellants as temporary allottees of the land in question and hence the same could not be resumed after such allocation. Accordingly this allotment was finalized in Writ Petition No,716 of 1981. In support of this contention he relied upon Abdul Hafiz v. Rehabilitation Commissioner, West Pakistan PLD 1966 SC 483 and Rehmatullah v. Deputy Settlement Commissioner PLD 1963 SC 633. Secondly, learned Senior Advocate Supreme Court has submitted that the respondent-Mills was never given any lease over the land in question and in fact to date they have never even paid a single penny towards the cost of the land as a consequence of which all the land was resumed except 1 Acre and 5 Marlas over which buildings of the Mills were standing. Consequently, no exception can be taken to the order in remand passed by Board of Revenue dated 28-4-1992. Finally, per learned Senior Advocate Supreme Court, the learned High Court vide impugned judgment could not substitute its own findings for those of the learned Member, which are based on facts and the record.
7. Syed Kaleem A. Khurshid, learned Advocate Supreme Court appearing for the appellants in Civil Appeals Nos.628 and 629 of 2003 (Kachi Abadi) has firstly submitted that the appellants are the residents of a Kachi Abadi and in occupation of land measuring about 22 Kanals and are aggrieved both from the order of the learned Member, Board of Revenue as well as the judgment of the learned High Court. According to the learned Advocate Supreme Court, both the learned Member as well as the learned High Court failed to appreciate that the Kachi Abadi had existed in the disputed land since 1980 as admitted by the Government itself in various litigations. According to him the matter could not be finalized by the Government as one Rehmatullah (to whom the land had been sold by the respondent.Mills) had succeeded in obtaining a stay against the proceedings from the learned Lahore High Court. Learned Advocate Supreme Court has further submitted that neither appellants Tufail Muhammad and Muhammad Ibrahim nor the respondent-Mills are the lawful allottees of the land in question and hence the Punjab Government still being the owner can dispose of the same in accordance with law. It was finally submitted that this Court can still refuse relief to both these parties if it causes unnecessary hardship to either of the parties or to a third party. He relied upon Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472.
8. Khawaja Saeed-uz-Zafar, learned Advocate Supreme Court for the respondent-Mills (in Civil Appeals Nos.625 and 627 of 2003) has fully supported the impugned judgment and particularly laid stress on that portion of the judgment in review dated 14-12-1991 passed in Civil Appeal No,25 of 1988 wherein the earlier order in favour of Tufail Muhammad and others passed in Civil Appeal No,25 of 1988 was recalled and the matter remanded to the Board of Revenue in the light of judgment passed in Civil Appeal No,75 of 1983 dated 6-7-1983 in favour of the respondent-Mills.
According to learned Advocate Supreme Court, the case of the respondent-Mills is that the Board of Revenue is to determine the price of land given to them which has not been done since 1962.
Hence, it is naive to argue that the price has not been paid. He has further submitted that vide order, dated 14-12-1981 passed in Civil Appeal No,25 of 1988 four orders of the departmental authorities were set aside viz. Dated 28-6-1975, 3-6-1977, 8-8-1977 and 31-8-1977. Hence, the learned Member, should not have considered these orders while passing the order in remand.
Learned Advocate Supreme Court has referred to section 53-A of the Transfer of Property Act for the proposition that once possession is delivered, vested rights are created in favour of the transferee, which cannot be snatched away arbitrarily. In support he referred to Taj Muhammad v.
Yar Muhammad Khan 1992 SCM R 1265. Additionally he has submitted that appellants Tufail Muhammad and Muhammad Ibrahim being temporary allottees, their case was not covered under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as no proceedings were pending and hence they could not be allotted the land in question after the repeal of the Evacuee and Displaced Persons Laws. Finally per learned Advocate Supreme Court once the land has gone out of the compensation pool i,e, by exchange in 1958, it could never be allotted to these appellants on the basis of their claim. In support of this proposition he has relied upon Ali Muhammad v. Chief Settlement Commissioner 2001 SCM R 1822.
9. Ms. Afshan Ghazanfar, learned Assistant Advocate-General, Punjab appearing for the Punjab Government in Civil Appeal No,627 of 2003 has supported Khawaja Saeed-uz-Zafar, learned Advocate Supreme Court to the extent that after repeal of the evacuee laws no land can be given to anyone in accordance with the same. Moreso, since the land in question had been resumed by the Provincial Government in exchange. Insofar as the respondent-Mills' case is concerned, she has fully supported the orders of the learned Member, Board of Revenue as to date not even a penny has been paid by the Mills towards the transfer price of the land in question. Finally, according to her insofar as concessions made by the Law Officers are concerned in favour of appellants Tufail Muhammad and others in various litigations, this cannot be upheld since this Court has in Faisalabad Development Authority v. Jahangir Nasir 2004 SCM R 1247 clearly laid down that any such concession should be made on the basis of written instructions by an Officer of the Government of at least Grade-17.
10. We have heard all the three learned Advocates Supreme Court as well as the learned A.A.-G.
Punjab. We have also perused the record with their assistance. It would be seen that although the order in review in Civil Appeal No,25 of 1988 does not particularly recall the earlier order passed in Civil Appeal No,75 of 1983 dated 6-7-1983, nevertheless, there is no dispute as to the fact that the matter was remanded back to the Board of Revenue with the right given to all the parties to appear before the same and raise relevant pleas in support of their respective cases and thereafter, the matter would be disposed of through a speaking order while dealing with all the questions arising out of the case. Hence, it is clear that any previous order passed by this Court in favour of any particular party to the dispute could never hold the field. Having observed as much, it would be seen that insofar as the case of appellants Tufail Muhammad and Muhammad Ibrahim is concerned, admittedly their temporary allotment of the land in question was not confirmed in their favour by the Settlement Authorities, as a result of which they were constrained to file Writ Petition No,1743 of 1966 as well as Writ Petition No,716-R of 1991 and Writ Petition No,27-R of 1990. In the last mentioned such case vide order, dated 6-2-1991, the learned Lahore High Court directed in the presence of Advocate-General, Punjab and the concerned Tehsildar that the previous orders should be implemented in letter and spirit and finally land admeasuring 68 Kanals and 5 Marlas was mutated vide Entry No,59124, dated 28-2-1991 in their favour. In this regard, it would be noted that vide Notification dated 3-1-1958 issued by Government of Pakistan, Ministry of Rehabilitation under section 24(2)(c) of the Pakistan (Administration of Evacuee Property) Act, 1957, land in or around the city of Faisalabad (Municipal Committee) measuring 5235 Acres was exchanged with 7150 Acres of the State land and hence former went out of the compensation pool. The above notification came up for consideration in Ali Muhammad v. Chief Settlement Commissioner 2001 SCM R 1822 and was upheld. Additionally, it was also observed that vide Notification No,1697- 73/1567-R(L), dated 16-5-1973 issued by the Chief Settlement and Rehabilitation Commissioner, Punjab under section 2 of the Displaced Persons (Land Settlement) Act, 1958 all available evacuee land, including one not yet confirmed to any person against his units or evacuee land, which may become available in future in. All Revenue Estates situated within Urban Limits of a Municipal Corporation, Municipal Committee, Small Town Committee, a Sanitary Committee or Cantonment throughout the Province of Punjab was declared as building sites for disposal under section 13 of the said Act. Such notification was again upheld in the instant case and so also in Bashir Ahmed v.
Punjab University Academic Staff Association 1991 SCM R 377, Saifullah v. Board of Revenue, Balochistan 1991 SCM R 1255 and Member, Board of Revenue v. Muhammad Mustafa 1993 SCM R 732.
In view of the aforementioned case this Court in Ali Muhammad v. Chief Settlement Commissioner (supra) came to the conclusion that once the land in question had gone out of the compensation pool earlier in 1958 and in 1973, all the urban land in the Province of Punjab had been declared to be building sites that no person having a claim under the evacuee laws, which had not been confirmed can be compensated thereafter by adjustment of their claim in the Province of Punjab.
Similarly, it was held that in view of the ruling in the case of Muhammad Ramzan v. Member (Revenue)/C.S.S. And others 1997 SCM R 1635 after the repeal of the evacuee laws vide Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 the cases of those persons whose claims had not been confirmed (temporary claimants) cannot be termed as "pending cases" in terms of section 2(2) of the aforementioned Act. Finally it was also laid down that a Law Officer could not concede to an unlawful concession before a Court of law. We are afraid that the case of appellants Tufail Muhammad and Muhammad Ibrahim is fully covered in terms of the law laid down by this Court in Ali Muhammad v. Chief Settlement Commissioner and Muhammad Ramzan v. Member (Revenue)/C.S.S. (supra), since admittedly their claim was only confirmed in the year 1991 while the land in question had gone out of the compensation pool in 1958 and also for the reason that vide notification issued in the year 1973 all urban areas of Punjab had been declared as building sites.
So also their claim cannot be considered as a pending case within the meaning of such term per section 2(2) of the said Act. At the most, therefore, they can approach the Government Authorities for compensation or any other relief as against their claim. The land mutated in the names of these allottees shall revert back to the Punjab Government.
11. Insofar as the case of the respondent-Mills is concerned, it would be seen that the handing over of the land to it has been approved by this Court vide order, dated 6-7-1983 passed in Civil Appeal No,755 of 1983 pending fixation of price and hence the matter was remanded back to the Government only for this purpose so as to enable the Mills to demonstrate that it was using the entire area of 11 Acres and 5 Marlas for the purpose of the factory or a portion of it. Regarding this issue a factual enquiry has been carried out by the learned Member, Board of Revenue, who has come to the conclusion that only an area of 1 Acre and 5 Marlas was delivered to the Mills as the remaining area was in the physical possession of appellants Tufail Muhammad and Muhammad Ibrahim. In fact such observation was made by this Court also in Civil Appeal No,75 of 1983.
Secondly, the learned Member had also come to the conclusion that even this area of 1 Acre and 5 Marlas was leased out to one Rehmatullah without the permission of the Government way back in 1975 for valuable consideration. Finally it may also be seen that order, dated 18-12-1977 passed in Writ Petition No,2445 of 1977 filed by the Mills challenging the action of the Revenue Authorities, it had expressed its willingness to accept an area of 1 Acre and 5 Marlas only against its claim over the entire piece of land. Similarly, such offer was extended by the Government in I.C.A. No,11 of 1978 but ultimately turned down by the Mills. In view of the foregoing discussion, at the most, the Mills are only entitled to 1 Acre and 5 Marlas of land over which it has constructed some buildings etc. And is in its possession.
' Although it had leased this land to another person, however, this alone should not detract from its entitlement, since the factum of possession has been upheld by this Court. Accordingly such area shall be mutated in their name after payment of the price thereof to the Punjab Government in accordance with applicable rules. Insofar as the applicability of section 53-A of the Transfer of Property Act in favour of the Mills is concerned, suffice it to say that the same encompasses the equitable doctrine of part performance, which protects a buyer of immovable property in possession from claims put forward by a transferee and any person claiming under him irrespective of the fact that the instrument of transfer has not been registered or that the transfer itself has not been completed in the manner prescribed by law. Admittedly the Mills were never put in possession of the entire area of 11 Acres, 5 Marlas but only an area of 1 Acre and 5 Marlas was handed over to them. Hence at the most, this doctrine is of assistance to the respondent Mills to the extent of such area which we have already held to be their entitlement.
12. Finally coming to the claims of appellants Safdar Hussain and Abdul Razzaq and others in Civil Appeals Nos.628 and 629 of 2003, admittedly mere occupation of any piece of land as Kachi Abadi does not give any title to such occupants. For whatever reason, the claim of these appellants could not be finalized before the relevant quarters. Hence, they are directed to approach the same vis-a- vis such regularization.
13. In view of the aforementioned discussion Civil Appeals Nos.625 of 2003, 628 of 2003 and 629 of 2003 filed by appellants Tufail Muhammad and Muhammad Ibrahim, Safdar Hussain and others and Abdul Razzaq and others respectively are dismissed. Civil Appeal No,627 of 2003 filed by the Member Board of Revenue is disposed of in terms of this judgment.