CH. MUHAMMAD IQBAL, J:- Through this writ petition, the petitioners challenged the order dated 11.06.2010 passed by the Member (Judicial-V)/Chief Settlement Commissioner/Notified Officer, Punjab whereby the request of the petitioners was turned down and an offer is made to them to apply for the purchase of land on payment of current market price to be assessed by the District Price Assessm ent Committee subject to the final approval by the Chief Settlement Commissioner, Punjab.
2. Brief facts of the case are that the petitioners are in possession of land measuring 28-Kanals 15- Marlas comprising Khasra Nos.449, 450, 451, 452, 453 & 454 situated in Mauza Badokey, Tehsil Lahore Cantt. Ichhar Masih the petitioners' predecessor claimed to be the purchaser of the above said land vide letter dated 16.09.1984 issued by the then Deputy Commissioner/Collector, Lahore, wherein he was informed to submit his application showing his interest/willingness to purchase the land under his illegal possession along with the challan of deposit of 1/4th of the total amount into the government treasury on 23.05.1991. Ichhar Masih, predecessor-in-interest of the petitioners make efforts for the deposit of remaining balance consideration but remained unsuccessful. He then filed a civil suit for perpetual injunction with mandatory injunction against the Province of Punjab through the Secretary, Colonies Lahore through Collector, Lahore which was ex-parte decreed on 26.07.1989. He deposited remaining balance consideration Rs.104,907/- in the government treasury under the command of the decree on 23.04.1991. Meanwhile, the Deputy Settlement Commissioner-II, Lahore on 06.06.1991 allotted land measuring 156-Kanals 07-Marlas including the land of Ichhra Masih to Khadim Hussain and Ghulam Abbas. Against the above allotment Ichhar Masih filed Writ Petition No.114-R/1992 in this Court which was accepted vide order dated 28.10.1998 and the order of allotment dated 06.06.1991 was declared without lawful authority and case was remanded to the Chief Settlement Commissioner to probe into the matter and decide it afresh. Mst. Rashida Begum and others successor of Khadim Hussain etc has challenged this remand order through CPs No.225-L to 230-L of 1999 before the Hon'ble Supreme Court of Pakistan, the said petitions were dismissed vide order dated 19.04.1999 with the direction to the Chief Settlement Commissioner to decide the matter.
In the post remand proceedings, the Chief Settlement Commissioner on 16.04.2007 rejected the application of Ichhar Masih as he was not entitled to purchase the land under Section 3 (1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975. Present petitioners and others filed Writ Petitions No.124-R/2007 and 109-R/2007 before this Court. Writ Petition No.109- R/2007 filed by Mst. Rashida Begum was disposed of with the direction to the Chief Settlement Commissioner to commence proceedings in compliance with the direction contained in Para 10 of the judgment dated 28.10.1998 passed in Writ Petition No.114-R/1992. Petitioners' Writ Petition No.124- R/2007 was accepted and the case was remanded for fresh decision to the Chief Settlement Commissioner, Punjab who on 11.06.2010 turned down their request and gave them incentive to purchase the land in question on the payment of market price to be assessed by the District Price Assessm ent Committee. Hence, this writ petition.
3. Learned counsel for the petitioners submits that the petitioners' predecessor namely Ichhar Masih in compliance of notice dated 16.09.1984 issued by the then Deputy Commissioner, Lahore purchased the suit land and deposited 1/4th amount of the land in question and according to the judgment & decree dated 26.07.1989 passed by the Civil Court he deposited the remaining balance consideration amount in the government treasury; that even otherwise, Ichhar Masih was fully entitled to purchase land in question because he is in possession of the same and in this regard, Khasra Girdawari appended with this writ petition which proves the possession of the predecessor- in-interest of the petitioners and stated that the competent authority i.e. The then Deputy Commissioner, Lahore vide order dated 16.09.1984 sold the land to the petitioners' predecessor; that the impugned order is illegal and not sustainable in the eye of law after payment of total amount as assessed by the then Deputy Commissioner, Lahore, the petitioners' predecessor became the absolute owner of the suit land.
4. Learned counsel appearing on behalf of the respondents submits that the Deputy Commissioner has no jurisdiction to allot, sell the evacuee land; that the Administrator/Residual Properties has the jurisdiction to dispose of the evacuee property under the Repeal Act; that the land admittedly is an urban property and it can only be disposed of under the Scheme 1977; further submits that the agriculture evacuee land should be disposed of through scheme/policy 1974 which requires a party to be in possession of land continuously for four harvests immediately preceding Kharif 1973 whereas the document/Khasra Girdawari appended with this writ petition start from 1976-77 which is not consistent with the said condition; further submits that under notification dated 16.05.1973, the present property declared as building site and it cannot be allotted to any person rather it can only be disposed of through unrestricted public auction by the Member (Residual Properties); further submits that under Section 3 of the Repeal Act, 1975, the evacuee land was transferred to the Provincial Government whereas the then Deputy Commissioner, Lahore in the notice dated 16.09.1984 himself written that the property belongs to the Central Government; that the land is urban situated within the territorial jurisdiction of municipal limits of Lahore and it can be disposed of under Scheme 1977 as settled in the case reported as Muhammad Ramzan & Others Vs. Member (Rev.)/CSS & Others (1997 SCM R 1635).
5. Heard. Record perused.
6. The petitioners presume that the alleged notice issued by the then Deputy Commissioner/Collector, Lahore dated 16.09.1984 is an allotment letter. For ready reference of the same is reproduced as under:- {{ URDU TEXT }} From the perusal of the above notice, it shows that the then Deputy Commissioner has presumed that the land in question is owned by the Central Government whereas the ownership of urban as well as agricultural evacuee land has already been transferred to the Provincial Government under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975. Deputy Commissioner intimated through letter dated 16.09.1984 to the predecessor-in-interest of the petitioners that if he wants to purchase suit land in his possession, he should inform in writing about his willingness till 23.09.1984 alongwith amount deposit of 1/4th of the total amount in the government treasury, so that his willingness/acceptance to purchase the land be transmitted to the authority for approval. The alleged contents of application dated 22.09.1984 show that the predecessor-in-interest of the petitioners wanted only get permission to deposit the 1/4th amount in the government treasury but there is no permission on record given by the then Deputy Commissioner allowing him to deposit the amount whereas the deposit challan form appended with his petition is dated 13.05.1991 and no written acceptance was submitted by the predecessor- in-interest of the petitioners well within time. Furthermore, it is mentioned in the said notice that rest of the amount will be deposited in the government treasury within 15 days after confirmation but there is no confirmation order for allotment in favour of petitioner and there is no application or written request is available on record made by the predecessor-in-interest of the petitioners to the then Deputy Commissioner in this regard. It is important to mention here that Ichhar Masih filed a suit on 22.06.1987 titled "Ichhar Masih Vs. The Province of Punjab etc." for perpetual injunction with mandatory injunction he asserted that the land in question is an evacuee agriculture land and respondent be restrained to interfere in his possession and also to receive the remaining balance consideration amount of the land but in said suit the Notified Officer/Chief Settlement Commissioner was not made party. In Para No.2 of the judgment dated 26.07.1989 of the said suit it is mentioned that the predecessor-in-interest of the petitioners deposited an amount of Rs.34,968/75 on 24.09.1984 which is not born out from the record, as per the copies of challan form appended with this petition only two amounts have been deposit through challan dated 13.05.1991 & 23.04.1991 which are much after the cut of date i.e. 24.09.1984. In the said suit, as per the judgment of civil court dated 26.07.1989, it is mentioned that "the occupant of such land were allowed to purchase their respective area after making payment in four installments" but neither this fact is mentioned in the alleged notice dated 16.09.1984 nor any document in support of this contention is appended with this writ petition.
Even otherwise, under Section 25 of the Displaced Persons (Land Settlement) Act, 1958, it is unambiguously mentioned that the Civil Court has no jurisdiction to adjudicate the matter in respect of evacuee agriculture land. The challan form amounting to Rs.104,907/- dated 23.04.1991 is appended with this Writ Petition shows that the 3/4th amount was deposited on 23.04.1991 under the command of decree of Civil Court. It is strange to note that the first deposit challan of 1/4th amount has been deposited even after the amount deposited under the decree which shows that the very application dated 22.09.1984 is anti-dated whereas no such application was ever filed within stipulated period rather it is a concocted story created by the petitioners after the exparte decree of the Civil Court. Furthermore, no policy/order or allotment issued by the competent authority mentioned in the notice on the basis which the said notice was issued. Even otherwise, the Deputy Commissioner is not competent to allot the evacuee land in favour of the predecessor- in-interest of the petitioners. Under the Scheme for Disposal of Un-allotted, Unoccupied, Occupied Evacuee Agricultural Land, Lahore, the occupant shall submit his option within stipulated period for purchase of land to the Assistant Commissioner concerned who shall transmit the same to the Member (S&R), Board of Revenue. The Deputy Commissioner does not stand as a authority anywhere in the policy, as such, the Deputy Commissioner is not competent even to issue such notice even if it was issued the same would be considered without lawful authority. Reliance is placed on the cases reported as Khuda Bakhsh Vs. Khushi Muhammad and 3 others (PLD 1976 SC 208), Bashir Ahmad Vs. Meer Aslam Jan (2007 CLC 1544) and Messrs East-West Insurance Company Ltd. Vs. Messrs Muhammad Shafi & Company (2009 CLD 960).
7. The predecessor-in-interest of the petitioners himself admitted that the land in question is an evacuee agricultural land as mentioned in para No.2 of the judgment dated 26.07.1989 passed by the Civil Court. Then under Scheme for Disposal of Unallotted, Unoccupied, Occupied Evacuee Agricultural Land, Lahore, it was the duty of the occupant to file application for the purchase of land to the Assistant Commissioner concerned within period stipulated by the Member (S&R), Board of Revenue but there is no application is on record which was submitted by the petitioner or his predecessor before 30.06.1974. The application appended with this writ petition is dated 15.12.2004.
According to the version of the petitioners that they are in possession of the suit property since partition of the sub-continent which is not supported by any document. The petitioners annexed copy of khasra Girdawari for the year 1976-77 with this petition, the only document which shows their possession is not in consonance with the Repeal Act, 1975. It was their duty to file application alongwith Khasra Girdawari and other relevant necessary documents within stipulated period i.e. Before 30.06.1974 but they failed to file application which shows that they were not in possession of the suit land as there is no previous revenue record showing their possession over the land. If it is presumed that the land is an agriculture land, then under Section 3 (1) (b) of Repeal Act, 1975 and under the Scheme for Disposal of Un-allotted, Unoccupied and Occupied Agricultural Evacuee Land, Lahore, the agriculture land should be disposed of provided that the possession of the person is continuously for four harvests immediately preceding Kharif 1973 whereas the Khasra Girdawari appended with this writ petition shows that the petitioner is in possession since 1976-77.
Furthermore, no document or Khasra Girdawari appended with this writ petition which shows that the petitioner was in continuous possession for four harvests immediately preceding Kharif 1973, as such, the petitioner is not entitled for the purchase of suit land under Scheme for Disposal of Un- allotted, Un-occupied and Occupied Agricultural Evacuee Land, Lahore. It is pertinent to mention here that the Performa (Annexure K) which was filled by the District Revenue Officer shows that the predecessor-in-interest of the petitioners is in possession since Kharif 1976 till 29.12.2004. There is no where mentioned that the predecessor-in-interest of the petitioners was in possession of land prior to Kharif 1973, as such, the petitioners are not entitled to get benefit of Scheme for Disposal of Un-allotted, Unoccupied, Occupied Evacuee Agricultural Land, Lahore.
In the post-remand proceedings, the Notified Officer directed to the Deputy District Officer (Revenue), Cantt. To visit the site and submit his report about possession of the illegal occupants who submitted the report dated 25.05.2007 which is reproduced as under:- "DDO (R): As per the directions of the honourable Court, the undersigned has personally visited the site. The applicant is illegal occupant on the Provincial Government land. They have constructed a Boundary Wall and three rooms and the place is being used for the storage purposes. The same is not used for the agricultural purpose and is on the Main Ferozpur Road. The land is within the urban limits of Lahore."
From the perusal of above said report submitted by the DDO (R), it transpires that the land in question is an urban property situated within the municipal limits of Lahore, therefore, the land is an evacuee urban property which can only be disposed of under Section 3 (1) (a) of the Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975. Section 3 of Ibid. Act 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 sub-section (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."
Furthermore, the urban property has already been declared as building site vide notification dated 16.05.1973 and the urban evacuee property should be disposed of under the Scheme for Management and Disposal of Available Urban Properties, 1977 as settled by the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Ramzan & Others Vs. Member (Rev.)/CSS & Others (1997 SCM R 1635).
Even otherwise, in a recent judgment reported as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCM R 1449), 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 should be disposed of through unrestricted public auction.
In C.P. No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab & 2 Others Vs. Sagheer Muhammad Khan & Others, the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after the Repeal Act, the property be disposed of through open auction, the 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."
8. Learned counsel for the petitioners has not produced any allotment order and also has not pointed out any illegality or irregularity in the impugned order calling for interference by this Court.
9. In view of above, this writ petition is dismissed being mis-conceived.