Ihata No. 167/1 was allotted to respondent No. 4. He gave it on rent in 1970 to the four petitioners who were Jammu and Kashmir refugees who raised pacca construction thereon to live and they have been living there. The respondent filed an application for ejectment of the petitioners and the latter applied for allotment of the 1hata to them. The respondent's application was accepted by the Collector on 24th August, 1974 but on petitioners' appeal the learned Additional Commissioner (C) remanded the case with the following observations :- "The point whether or not the appellants with four families have been residing in a house constructed by themselves after spending quite a good deal on such construction, without any objection from Nawab respondent, has not been dealt with in the impugned order. It appears that if it is a fact that the appellants have been occupying this place, for such a long time and the respondent has kept silent, such fact might change the complexion of the case. In any case this point requires to be considered. I, therefore, remand this case to the learned. Collector to hear the parties and then decide the case afresh dealing with the above point."
This is vide order dated 27th November, 1974.
On remand, the learned Collector reiterated his previous order on 7th January, 1976. Petitioners' appeal was dismissed by -the learned Additional Commissioner (C) on 7th April, 1976 and their revision petition. By the Member (Colonies), Board of Revenue on 22nd May, 1976. Hence, this Constitutional petition.
2. Learned counsel for the petitioners has contended that according to Government instructions, the petitioners being refugees bud in possession of the Ihata were entitled to retain the same. He has referred to them decisions of the Board of Revenue .Reported in Chakmal v. Suleman (PLD 1972 Rev. 123) and Abdul Karim v. Mehar Din and another (PLD 1976 Rev. 63). He has also referred to section 3 of the Punjab Act, 5 of 1975 in which it is laid down that ----village Shamlat land, or land in abadi deh whereupon a non-proprietor family has built a house on or before 20th December, 1973 with a view to taking up permanent residence, may after acquisition be granted free of cost to the said family irrespective of the limit of five marlas. He has, then, contended that section 32 of the Colonization of Government Lands(Punjab) Act, 1912 under which the respondent had applied for ejectment of the petitioners was not applicable because that only concerns the right of the State to eject trespassers. The petitioners were neither trespassers, nor the State had wanted to take possession of the Ihata. He placed reliance on PLD 1964 Lah., 224. Lastly, the learned counsel .For the petitioners submitted that the respondent No. 4 Nawab Khan has already an 1hata in the village and had no right to oust the petitioners from their residence in which they `have been living for more than a decade for tethering his cattles as he wanted.
4. Learned counsel for respondent No. 4 Nawab Khan has submitted that the petitioners have no right to file this Constitutional petition as they had get the 1hata in dispute from respondent No. 4 on rent and instructions were not applicable as the petitioners were not in possession for ten years when the dispute arose.
5. After bearing the learned counsel for the parties it is quite clear that the order of the learned Additional Commissioner (C) dated 27th November, 1974 was just order and on remand the learned Collector did not get the spirit of the order, nor, did he take into account instructions of the Government on the point. The case of the petitioners was that they had been in possession for more than ten years. It was supported by affidavit. No written statement has been filed in denial of the fact. The two decisions of the Board of Revenue referred to by the learned counsel for the petitioners expressly contain the instructions ofthe Government which provide that a person who is a refugee and has been in continuous possession of an Ihata for ten years should not be disturbed.
The petitioners were also entitled to relief under section 3 of Punjab Act, V of 1973. Moreover, the respondent No. 4 Nawab Khan has already got an lhata in the village and the 1hata is question asked for tethering the cattle can hardly be got vacated when that is occupied by four families who are refugees and have constructed their houses thereon and are living for more than a decade.
6. In view of what has been stated above, the impugned orders are without lawful authority and of no legal effect. These are so declared. The respondent No. 5 is directed to regularize the possession of the petitioners. In the circumstances of the case, the parties shall beat their own costs.