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. 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 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 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 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 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 cases. Admittedly, the land of Harbanspura is declared building site which was not available for any allotment whereas the Notified Officer went beyond his jurisdiction in making allotment of urban evacuee land against the unadjusted PIU rather same can only be disposed of through unrestricted open auction, as such, the order passed by the Notified Officer in favour of Nawabzada Walayat Ali Khan dated 30.05.1992 and mutation No.10445 dated 24.06.1993 are illegal and void ab initio, as such, the same are not sustainable in the eye of law consequently subsequent orders of the Notified Officer dated 18.06.2016 as well as order of ADCG dated 22.08.2016 have no substratum to stand, as such, same are set aside accordingly.
8. The next point for adjudication and determination before this Court is that;-
(2) whether the Member (Residual Proper ties) has the jurisdiction to order the sale of urban evacuee / state land to the encroachers, illegal occupants who took possession of the state land since 1995?
Admittedly , land measuring 253-Kanals 04-Marlas comprising Khasra Nos.142 to 1431, 1435-1477 to 1485 and 1488 to 1517 situated in Mauza Harbanspura was an evacuee land which was transferred to the TDCP vide Colony Department Memo No.360-56 1/805 dated 16.03.1986 for the establishment of tourist village but due to deficiency of the funds the said project could not be accomplished and Managing Director , T.D.C.P . vide Memo No.TDCP/ DM(P&D)/93/1 17 dated 27.05.1993 intim ated the Member , Board of Revenue for surrender of 203-Kanals land which was in possession of illegal occupants. Rafaqat Ali and 28 others, the occu pants in possession of the land filed application under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 for the purchase of land under their possession which application was dismissed. They filed a Writ Petition No.103-R/1995 which was allowed by this Court vide order dated 11.07.1995 thereafter the said Rafaqat Ali alienated his possessory right to respondents No.1 to 8 sitting occupants (the petitioners of Writ Petition No.39990/2016).
Against the above order of this Court, the Chief Settlement Commissioner filed Civil Appeal No.969/1996 which was allowed by the Hon?ble Supreme Court vide judgment dated 22.04.1998 (reported as 1998 SCMR 2596 ) holding therein that Rafaqat Ali etc. were not eligible to purchase the said land and also directed the Member / Administrator (Residual Properties) to dispose of said evacuee urban land as per the Scheme for the Management and Disposal of Available Urban Properties, 1977.
After having lost the cause upto the Supreme Court of Pakistan Rafaqat Ali and others again filed application on 07.12.2007 whereas the subsequent vendees respondents No.1 to 8 "the occupants" filed application on 20.11.2009 for the purchase of said land through private treaty on the prevailing market price which request was accepted by the Member (Residual Properties) vide order dated 09.07.2010 holding that the land be sold to the sitting occupants at the market price plus 50% penalty which order was assailed by the occupants through W.P.
No.206-R/2010 and learned Single Judge in Chamber partially allowed the said writ petition and set aside the imposition of 50% penalty. Feeling dis-satisfied by the above order, Senior Member, Board of Revenue filed captioned Intra Court Appeal No.638/2011, whereas legal heirs of Nawabzada Walayat Ali Khan respondent No.10(i) to (vi) "the allottees" of said land also filed writ petition No.176056/2018 challenging the order of Notified Officer dated 09.07.2010 with the assertion that the land has already been allotted to them vide order dated 30.05.1992 and mutation No.10444 dated 24.06.1993 whereof has already been attested in their favour , as such, said land was not available for any transfer through private treaty and the same is liable to be set aside.
9. Admittedly, the land in question has already been declared as building site vide notification dated 16.05.1973 issued under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which notification has been validated by the Hon?ble Supreme Court of Pakistan. All the evacuee laws stood repeal through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 w.e.f. Ist July 1974 and under Section 3 of the Act ibid. all the evacuee properties both urban or rural including agricultural land stood transferred to the province and the Provincial Government has been empowered to dispose of the same through respective urban and rural scheme visualized under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 which section is reproduced as under:- "3. Transfer of Property.-(1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un-occupied, 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 Under Section 3(1)(a) read with Section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Government framed Scheme for the Management and Disposal of Available Urban Properties situated in the Province of the Punjab in 1977 called as "Scheme for the Management and Disposal of Urban Properties 1977". In the said Scheme the Definition of "Building Site" is mentioned in para 1(d) which is as under:- "1. In this scheme, unless the context otherwise requires:--
(d) "Building Site" means any vacant plot of land which is not within a well defined compound of a permanent building and includes:--
(i) A site on which the permanent construction, if any , does not exceed in area by 1/8th of the site;
(ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity."
Similarly according to claim of possessory right, possession is a determining factor and only those occupants would be considered eligible to apply for such allotment who retain possession on the terminus date i.e. on 01.01.1976 and word possession has also been defined in para 1(i) of Scheme supra as under:- "1. In this scheme, unless the context otherwise requires:--
(i) "Possession" means possession obtained on or before the first day of January , 1976 by any person and includes his successors-in-interest and assignee;"
Whereas the parameters for the disposal of available properties are defined in para Nos.6, 11, 12 and 30 of the Scheme for the Management and Disposal of Urban Properties, 1977 which are as under:- "6. Transfer of houses, shop and building site having construction. --(1) Subject to the provisions of this Scheme, an available house or shop of any value in possession of a person may, if he applies in this behalf, be transferred to him on transfer price or on such price as may be fixed by the Administrator (Residual Properties) of the area concerned: Provided that where a house or a shop is applied for by more than one person in possession, it may be transferred to them jointly .
(2) An available building site on which a person in possession has raised a permanent construction and applies for its transfer , it may be transferred to him on the transfer price: Provided that in addition to the construction area, only such portion of the available open space may be transferred to the applicant which may not exceed three times the constructed area.
(3) Where any person having made a permanent construction on a building site does not apply for its transfer , it shall be disposed of through unrestricted public auction alongwith the construction. The value of such construction shall be determined by the Deputy Administrator (Residual Properties) of the area concerned and paid to such a person out of the auction proceeds by such authority as may be specified.
11. Sale by auction. -- A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be disposed of un-restricted public auction.
12. Disposal of houses, shops or a building sites by negotiation. -- If a house, a shop or a building site having been put to auction twice fetches no bid or fetches a bid short of the reserve price it shall be disposed of by negotiation by inviting sealed tenders which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenders. If the highest offer made for such a house, a shop or a building site is equal to or exceeds 75% of its reserve price, it may be accepted by the Deputy Administrator (Residual Properties) and where the highest offer made is below 75% of the reserve price but not less than 50% it may be accepted by the Administrator (Residual Properties), of the area or where the highest offer made is below 50% it may be accepted by the Member , Board of Revenue (Residual Properties).
30. Power to transfer properties.--(1) The Member, Board of Revenue (Residual Properties), may transfer , in public interest any available property in such manner and on such price as he may deem proper .
(2) Where a property is partly available property and partly owned by any person the Member Board of Revenue (Residual Properties) may transfer the available property on application to such person on payment of transfer price."
10. From the perusal of para No.4 of the Writ Petition No.206-R/2010, the respondents stated that they purchased land from one Rafaqat Ali in 1995 and constructed their houses on the said land. It is interesting that Rafaqat Ali earlier filed application to purchase the evacuee land measuring 80-Kanals comprising Khasra Nos.1488, 1493, 1494, 1499, 1500, 1504, 1505, 1506 and 1511 situated in Harbanspura, Tehsil Cantt., District Lahore under his possession but his request was finally stood rejected through Civil Appeal No.969/1996 vide order dated 22.04.1998 by the Hon?ble Supreme Court of Pakistan which decision is reported as Member , Board of Revenue, Punjab, Lahore Vs. Rafaqat Ali (1998 SCMR 2596 ), declaring wherein that after notification dated 16.05.1973 every agricultural urban land which had not been adjusted, allotted, or utilized against verified claim uptill the issuance of above notification shall cease to be available for any kind of adjustment or allotment etc. qua such claim. It is further held that the Act XIV of 1975 became effective from the Ist day of July 1974, therefore, the status of evacuee property as exist on such date could not be changed or converted subsequent to the promulgation of said enactment and further held as under:- "4. We have heard the learned counsel for the parties at some length, the material available on record and have also gone through the judgment render ed by this Court in the case of Muhammad Ramzan (supra). It is an admitted fact that the Chief Settlement and Rehabilitation Commissioner , Punjab exercising powers under clause
(b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, has vide Notification dated 16-5-1973 , declared all the available evacuee urban land including such areas which had not yet been confirmed to any person against verified Produce index Units, located within urban limits of Municipal Corporation, Municipal Committee, Town Area Committee, Small Town Committee, Sanitary Committee or Cantonment throughout the Province of Punjab as "building sites". It is also an admitted fact that when the evacuee laws were repealed by the Repeal Ordinance, I974 followed by Act XIV of l975, the evacuee Urban land in all the revenue estates situate within the urban limits of Municipal Corporation in the Province of Punjab were declared "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958. Thus, visualized, upon repeal of the evacuee laws, only pending proceedings or those cases decided by the High Court or Supreme Court, after such repeal, which had been remanded to any such Authority , in the absence of such repeal, were to be remanded to the Notified Officer concerned and requir ed to be disposed of in accordance with section 2 and subsection (3) of section 2 of Act XIV of 1975.
5. Section 3 of Act XIV of 1975 provides that all properties both the urban and rural including agricultural land than other those properties attached to charitable, religious or educational institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the laws or which may become available for disposal after such repeal, as a result of final order passed under subsection (3) of section 2 stood transferred to the Provincial Government on payment of price and in case of urban property , a Scheme of their disposal was to be prepared by the Provincial Government and rural properties were to be disposed of by the Board of Revenue under a Scheme to be prepared by the Provincia l Government. It is further provided therein 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 respec t of the land but only that much land shall be offered to such person as does not together with the land already held by him, exceeds a subsistence holding within the meaning of Land Reforms Regulation, 1972. The other provisions relating to allotment to a displaced person from Jammu and Kashmir State are not relevant for deciding the controversy in hand.
6. Reference may also made to (PLD 1977 Punjab Statute page 62) to show that the Government of Punjab prepared a prescribed scheme for the Management and Disposal of Available Urban Properties. Reference may also be made to PLD 1985 Punjab Statutes page 6, which shows that certain provisions of the scheme were amended in 1984. Chapter 4 of the Scheme relates to Disposal of Available Proper ties. Paragraph 6 of the Scheme deals with transfer of house, shop and building site having construction. The term "available property" is defined vide paragraph 1 (C) as under:- "Available Properties" mean houses, shops building sites, hotels, Industrial concerns and cinema house (whether allotted by the Industries Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may thereafter become available for disposa l but do not include properties attached to charitable, religious or educational trusts or institutions."
The term "Building Site" is defined in paragraph 1 (d) which reads thus: Building Site means any vacant plot of land which is not within a well-defined compound of a permanent building and includes:
(1) a site on which the permanent construction, if any , does not exceed an area by 1/8th of the site;
(ii) any site on which any building existe d but was completely demolished by floods, fire, incendiary or by any natural calamity ."
In the case of Muhammad Ramzan (supra) this Court exhaustively discussed the scope of the Notification dated 16-5 1973 and declared that on the promulgation of the Notification, dated 16th, May 1973, no agricultural urban land existed or was available for Disposal and that when the Act XIV, 1975 became operative there was no land available for adjustment against Produce Index Units. Mere fact that some matters regarding adjustment of specified land, were under consideration or had not been carried out, would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands again unadjusted verified units. In the case of Muhammad Ramzan (supra) the dicta laid down in the cases of Bashir Ahmed v. Punjab University Academic Staff Association (1991 SCMR 377), Syed Saifullah v. Board of Revenue, Balochistan through Member (RJT) (1991 SCMR 1255) and Member Board of Revenue, Punjab (Settlement and Rehabilitation Wing) Chief Settlement Commissioner, Punjab, Lahore v.
Muhammad Mustafa (1993 SCMR 732), were reiterated that the Chief Settlement Commissioner was competent to issue notification for converting agricultural land into building sites and consequently, Notification dated 16-5- 1973 was valid, therefore, on the issuance of said Notification every agricultural land which had not been adjusted, allotted, or utilized till then against verified claim ceases to be available for such claim. It is further held that the Act XIV of 1975 became effective from the first day of July, 1974, therefore, the status of evacuee property as existed on such date could not be changed or converted subsequent to promulgation of said enactment. It was further held that the Notification dated 16-5-1973 was executory in nature and became operative immediately on its issuance and this had the effect of converting unutilized agricultural urban in entire Punjab to be building site.
7. As to the contention that the property in dispute was rural agricultural land, suffice it to say that, there is nothing on record to show that the property in dispute located in Harbanspura, Lahore, was not a part of urban agricultural land to answer description of "available property". In any event, this disputed question of fact cannot be raised for the first time in these proceedings. Clearly, with the repeal of evacuee laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it, therefore, its disposal had to take place according to the relevant Scheme framed by the Provincial Government in the year, 1977, as amended in 1985. We are fortified in taking this view which is in accord with the dicta laid down in the case of Syed Saifullah (supra)."
Further the respondents occupants themselves asserted in para Nos.3 and 4 of their application moved before the Chief Settlement Commissioner in CSC Case No.887 of 2009 that:- "3. That the land being evacuee was allotted against urban claim in the year 1989 in the name of Mukaram Ali Khan, the grandson of Nawabzada Liaqat Ali Khan, the first Prime Minister of Pakistan. Rafaqat Ali, being in possession of the land agitated against the allotment and got the mutation in the name of the allottee cancelled.
Thereafter, Rafaqat Ali applied for purchase of the land under section 3 of the Evacuee Property and Displaced Persons Laws(Repeal) Act XIV of 1975. The sale was refused, whereupon he filed writ petition No.103-R/1995 in the Lahore High Court, Lahore. The writ petition was allowed , vide order, dated 11.07.1995 by a learned Single Judge of Lahore High Court. After the judgment in his favour Rafaqat Ali passed on possession of the land to the applicants and others who are in possession of houses constructed by them.
Application for issue of certified copies of order of the High Court and the writ petition has been submitted. Certified copies will be filed in this Court as and when received by the respondent/applicant.
4. That the Chief Settlement aggrieved of the order of the High Court dated 11.07.1995 filed Civil Appeal No.969 of 1996 which was allowed by the Supreme Court of Pakistan, vide judgment, dated 22.04.1998. The order of the High Court was set aside and it was held that the land being building site is available for disposal under the provisions of the Scheme For The Disposal of Available Urban Properties, 1977. The judgment is reported as 1998 SCMR 2596 ."
Admittedly , the respondents (occupants) are purchasers of possession from said Rafaqat Ali whose claim over the very suit land has already been rejected by the Hon'ble Supreme Court of Pakistan declaring said Rafaqat Ali disentitled to purchase the suit land then subsequent vendees from him cannot be considered eligible to purchase the evacuee land measuring 64-Kanals 03-Marlas rather their claim if any has to sail and sink with their vendor's right as they have no independent status. Moreover , the learned Single Judge-in- Chamber has conclusively held that the above illegal occupants drive no right in any respect from the said Rafaqat Ali which in entirety dis- associate them for the right of their prede cessor and said findings have not been challenged any further which lead to conveniently observe that respondents occupants are even precluded to claim the right of possession from their vendor's possessory right since 01.01.1976 whereas they took the possession of the respective land in 1995 much subsequent to terminus date of possession i.e. 01.01.1976, as such, they are not entitled to purchase the land as laid down in the supra judgment passed in Rafaqat Ali case, therefore, the order of the Member (Residual Properties), Board of Revenue dated 09.07.2010 for sale of property at market price plus 50% penalty as well as the order passed by this Court in a Writ Petition No.206-R/2010 dated 30.09.201 1 maintaining the sale of evacuee urban land at market price are contrary to the dictum laid down by Hon'ble Supreme Court of Pakistan whereas under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the orders of Hon'ble Apex Court are binding upon all the organs of the state. It is settled law that when law does not permit to achieve a thing directly , the same could not be allowed to be obtained indirectly . Reliance can be placed on Bank of Punjab and another Vs. Haris Steel Industries (Pvt.) Ltd. and others (PLD 2010 SC 1109). The Hon'ble Apex Court in the said judgment held as under:- "If the interpretation canvassed by Mr. Irfan Qadir, ASC was to be accepted then the same would not only defeat the clear object of the provision in question but would also lead to a blatant absurdity. It would be preposterous and irrational to declare that once an incumbent of the office of the Prosecutor General had completed his term of three years then no one had the competence to extend or enlarge the said term even by one day but the same competent authority could instead, grant him three years by appointing him afresh to the same office. In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden V. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly. And the said principle has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The cases of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (Supra ) are evidence to the said effect."
Reliance can also be placed on a judgment of this Court reported as Muhammad Sajjad Husain Vs. Government of Punjab through Secretary Establishment, Lahore and 19 others (2013 PLC (C.S) 1). Moreover, regarding the similar character of land in Mauza Harbanspura Lahore, Punjab the Hon?ble Supreme Court of Pakistan in American International School System Vs. Mian Muhammad Ramzan and others (2015 SCMR 1449), after discussing in detail the provisions of the policy has conclusively held that the subject evacuee land could only be disposed of through unrestricted open auction in terms of paras 6 (3), 11, 12 and 30 of the Scheme 1977.
11. Furthermore, from the perusal of Section 3(1)(a) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the definitions of building site as well as the determination of any possessory rights and parameters for the disposal of the available properties are elaborately mentioned in para Nos.1(d) and 1(i) read with paras 6, 11, 12 and 30 of the Schem e for the Management and Disposal of Urban Properties, 1977. Keeping in view the binding effect of notification dated 16.05.1973 whereby all the evacuee properties have already been declared building site and under para 1(i) of policy scheme 1977 only those occupants who have possession on or before 01.01.1976 are only considered eligible to purchase the evacuee land or apply for the grant of proprietary rights whereas the respondents occupants themselves admitted in their petition of having possession in the year 1995 much after the determined terminus date which dismantle their claim. Moreover, respondents No.1 to 8 the occupants neither mentioned in their writ petition nor before this Court that they were in possession of land before the 1 day of January 1976. Admittedly, they got possession in 1995 from said Rafaqat Ali whose rights after proper adjudication has been extinguished infinitum, as such, the subsequent vendees in possession have no independent right or entitlement to purchase the land under para No.6 of the Scheme rather conjunctive reading of para 6(3), 11 and 30 of Scheme 1977 furnishes accumulative affect to dispose of the evacuee properties through unrestricted open auction as settled by the Hon'ble Supreme Court of Pakistan in American International School System case (supra), as such, the order dated 09.07.2010 passed by the Member (Residual Properties), Board of Revenue for the sale of evacuee land to subsequent occupants is against the policy as well as against parameters settled by the Hon'ble Supreme Court of Pakistan in case reported as Member , Board of Revenue, Punjab, Lahore Vs. Rafaqat Ali (1998 SCMR 2596 ). Furthermore, the Hon?ble Supreme Court of Pakistan in a C.P. No.709-L/2009 titled as "Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner , Punjab & 2 Others Vs. Sagheer Muhammad Khan & Others" settled that after repeal of Act all such property shall have to be disposed of through unrestricted open auction so that assets vested in Province which ultimately belongs to the people of the province shall be duly protected and safeguarded. The relevant portion whereof 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 Muhammadst 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." (Underline to place emphasis)
Whereas the above legal and factual aspect perhaps have not been debated before the learned Single Judge in Chamber and significant facts escaped from his judicial consideration as such the impugned order dated 30.09.201 1 passed in writ petition main taining the sale of the land at market price as well as order dated 09.07.2010 of Chief Settlement Commissioner are not inconsonance with law and policy as Notified Officer was not competent to allot land to illegal occupants, encroachers who were not in possession of evacuee land on 01.01.1976 rather he also adopted modus operandi which is not warranted by any law policy or any instruction which is farcical order in nature and can be termed as void ab-initio and not sustainable in the eyes of law which shall be considered to have been set aside.
12. In view of the above the impugned order passed by learned Single Judge-in-Chamber dated 30.09.201 1 as well as order of the Notified Officer dated 09.07.2010 are not sustainable which are hereby set aside. Resultantly , the application for the purchase of the land is considered to have been rejected accordingly . Member / Administrator (Residual Properties) is directed to expeditiously retrieve the possession from the illegal occupants as per law .
13. As discussed above, the captioned Intra Court Appeal as well as both the writ petitions are disposed of accordingly .