1. ' These are 14 Writ Petitions detailed below: Writ Petition Nos. 641, 793, 794, 795, 796 and 797 of 1979, W. P. Nos. 659, 670, 685 and 69 of 1980. W. P. Nos. 83, 84 and 196 of 1981 and W. P. No, 85 of 1982.
2. Under Article 199 of the Constitution of Islamic Republic of the Pakistan/under Article. 9 of the Provisional Constitution Order, 1981, whereby the petitioner/petitioners want this Court to declare the order dated 12th December. 1978 of the Assistant Commissioner/Collector/Additional Settlement and Rehabilitation Commissioner, Vehari, Respondent No, 1, passed by him on remand by the Supreme Court's order dated 22nd May, 1978, to be without lawful authority and of no legal effect. Since all the 14 Writ Petitions arise out of same impugned order, I propose to dispose of them by a single judgment.
2. The petitioners claim to be the member of the Criminal Tribes under the provisions of the Criminal Tribes Act. As observed in the remand order of the Supreme Court :- "that seems to be considerable confusion about the true state of affairs in these cases and even the learned. Judges of the Division Bench have also alluded to it."
3. ' It would be convenient to set out at some length the statement of facts and law about the true state of affairs in these cases. The petitioners claim disputed land as member of the Criminal Tribes under the Scheme promulgated for settlement of Criminal Tribes. I would, therefore, like to give a brief history of the same. There were Criminal Tribes in India. In the year 1911, the Criminal Tribes Act was promulgated to control the activities of these Tribes. In 1918, Restriction of Habitual Offenders Act was also promulgated. According to the provisions of these Acts, the members of the Criminal Tribes declared under the Act, who were convicted twice were placed in reservation and for creating the reservations several chaks were allocated. Chak No, 109 of Montgomery (Sahiwal), Chak No, 19/WB, Chak No, 21/WB and Chak No, 23/WB, Tehsil Vehari and Chak No, 19/9-R Tehsil Khanewal were allocated for that purpose. It is to be noted that Chak No, 31/WB Vehari was the training centre. After probation period the criminals were settled in these Chaks. These Chaks, in fact, were open jails and the settlers could not leave the Chak without the sanction of the Probation Officer. A Senior Officer i,e, Deputy Commissioner, Criminal Tribes was the incharge of all the settlements. The grantees were not given heritable rights. Under section 10 of the Colonization of (Punjab) Government Lands Act read with section 16 of the Criminal Tribes Act, 1911, a statement of conditions was published through Notification No, 11429, dated 28th April, 1929 which was subsequently corrected by Correction Slip No, 23/CM, dated 18th September, 1936. According to the provisions of section 4 of the Colonization of Government Lands Act, the provisions of sections 20, 21, 22 and 24 of Act, 1912, were not applicable to these Tribes. Some of the important conditions are as follows :- Condition No, 5.-A member of the Criminal Tribes shall be eligible to the grant of land under these conditions if for a period of 10 consecutive years in the case of settled, and 5 years in the case of wandering Criminal Tribes, he has not been convicted.
4. Condition No, 6. -The members of the Criminal Tribes who were eligble in accordance with the Condition No, 5, shall be selected as tenants by a Special Officer and if no such officer is appointed by the District Magistrate concerned.
5. Condition No, 7.-Tenant receiving grant of land under Condition No, 6 shall cultivate the land subject to the control of the Officer Incharge of the settlement in which he is placed.
6. Condition No, 8.-Where a person is granted a tenancy under these conditions in respect of the land which has already been subjected to tenancy subsequent tenant shall not enjoy the period of remission in addition to that enjoyed by the original tenant.
7. Condition No, 9.-If tenant is transferred from one agricultural settlement to other (reservation) the tenant shall surrender his tenancy on condition that he was granted an equivalent area plus the compensation for improvements.
8. ' These were the basic conditions under which the members of the Criminal Tribes were settled in these Chaks.
9. Condition No, 14.-Power to resume-the tenant shall at times on the receipt of requisition in writing signed by the Collector permit said Collector to resume the land.
10. Condition No, 18.-Tenant shall render all assistance in the discovery and prevention of the crime and shall be responsible in the same manner as a watchman and headman.
11. Condition No, 19.-The tenant shall pay when due in respect of the said land or in part thereof, land revenue assessm ent, occupier rate and other charges imposed by competent authorities Condition No, 20.-The tenant shall permanently settle in an estate in which the said land is situated within six months of the date on which the Collector directs that he be put in possession of the specified area of the land, Condition No, 24.-The tenant shall not without the permission of Special Officer recorded in writing cultivate the said land or any part thereof by means of any person other than himself of his descendants.
12. Condition No, 25.-Relates to the disclosure of previous conviction of the grantee.
13. Condition No, 26.-Relates to the resumption of the land on the conviction of the grantee.
14. Condition No, 27.-Relates to the grant of occupancy rights.
15. ' On or after the expiry of 15 years from the date of the commencement of tenancy the tenant having duly paid all sums due to Government under the above-mentioned conditions and having duly observed all the stipulations shall be entitled at any time to receive from the Government a certificate {{URDU TEXT}} giving him the occupancy rights under the Punjab Tenancy Act provided that during these 15 years he has not been reasonably suspected of committing of non-bailable offence. Furthermore, the Superintendent of Police, District Magistrate and Special Officer were satisfied that he had completely reformed himself.
16. ' The statement of conditions detailed above would make crystal clear that the grantees had no vested right whatsoever, the grant was purely conditional and for 15 years he was subject to various tests and had to fulfill certain conditions and then the occupancy rights were to be given to him through a certificate {{URDU TEXT}}. It is further clear that documentary evidence is always available to the grantee to prove the grant by producing allotment order, order of the Deputy Commissioner directing him to be put in possession, receipt of the payment of the dues, occupier rates and other charges imposed by competent authorities and the orders of transfer from one settlement to the other, certificate from Superintendent of Police, District Magistrate and Special Officer that they were satisfied that the grantee had completely reformed himself and lastly a certificate which is undoubtedly, a conclusive proof of the grant of occupancy rights to the grantees.
3. Now, I come to the legal aspect of the matter. Since the Evacuee Rehabilitation Legislation is of extremely special character and was designed for meeting extraordinary situations, it went legislative changes from time to time and the relevant law was ultimately repealed on 1st July, 1974.
17. It may be desirable to re-produce the relevant legislative changes.
18. Law in the year 1949: In the year, 1949 Ordinance 15, i,e, Administration of Evacuee Property in Pakistan was promulgated. Subsection (3) of section 2, defines Evacuee Property :- "means any property in which an evacuee has any right or interest or which is held by or for him in trust, and includes :-
(a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or property obtained from an evacuee after the twenty-eighth day of February, 1947 until confirmed by the Custodian.
19. ' The term property has been defined :- "means property of any kind and includes any right or interest in such property and any debt or actionable claim but does not include a mere right to sue or a cash deposit in the bank."
20. Section 4 : "The provisions of this Ordinance, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law.
21. Section 7 : (1) "Every person who is, or has at any time after the twenty-eighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian."
(2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, intimate to the Custodian in writing his willingness to surrender such property to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid.
(3) The provisions of subsection (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority."
22. Section 18 : Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee _property may prefer claim to the Custodian on the ground that :-
(a) the property is not evacuee properly, or
(b) his interest in the property has not been affected by the provisions of this Ordinance.
23. ' Law in 1956 : Ordinance, 15/1949 was repealed and re-enacted as Ordinance No, 18 of 1956 i. e.
24. Pakistan (Administration of Evacuee Property) Ordinance, 1956. The definition of the Evacuee Property remained the same.
25. Section 7: Of this Ordinance was a new provision which lays down :- "Where the ancestral right of an evacuee in any land or his right for a fixed term of years therein has vested in the Custodian or where the Custodian has taken possession of such land notwithstanding any other law for the time being in force, shall operate to extinguish such right against the evacuee. Neither the evacuee nor the Custodian shall be liable to be ejected from such land by reason only on any default of the Custodian."
26. ' It is to be noted that section 7 of the Ordinance, 15 of 1949 was maintained as section 8. In the year 1956 Ordinance 20 of 1956 was also enforced. Its section 3 reads as follows :- "Notwithstanding anything contained in this Ordinance no person or property not treated as evacuee or evacuee property immediately before the first day of January, 1957 shall be treated as evacuee or as the case may be, evacuee property, on or after the said date.
27. Law in the year 1957: In the year 1957, Act No, XII of 1957 i. e. Pakistan (Administration of Evacuee Property) Act, 1957 was promulgated.
28. ' Some important amendments were introduced in section 3 whereby two exceptions were added :-
(b) To any property which is occupied, supervised or managed by a person whose authority or right to do after 28th February, 1947 has not been accepted or approved by the Custodian: Section 5 : Lays down that provisions of this Act and any rule or order made therein shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effected by virtue of any such law ; Section 7 : All evacuee property shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947.
29. Section 8: Where the rights of an evacuee in any land or in any house or other buildings consist or consisted of occupancy or tenancy rights or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights, on the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property, and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of :-
(a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee, or,
(b) where any person acquires or has acquired any right in possession of that property whether in pursuance of a grant, lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property.
30. ' This enactment appears to have been made to safeguard the evacuee's interest in the property.
31. Law in 1958.-In the year 1958, Displaced Persons (Land Settlement) Act (XLVII of 1958) was enforced: Section 3 reads as follows :- "As soon as may be, after the commencement of this Act, but not later than 90 days therefrom, every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to the Rehabilitation Authority, of the area concerned full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or management thereof.
(2) Any such property as is referred to in subsection (i) shall, notwithstanding the provisions of section 3 of the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 be tread as Evacuee Property and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act.
32. Section 4 deals with the power of the Central Government to acquire land.
(1) ... ...
(2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by Notification in the Official Gazette acquire such land situated in the Province (excluding the Karachi Division) as the Central Government may deem it necessary to acquire. .
(3) On the publication of a Notification under subsection (1), or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the Notification shall, with effect from the date of such Publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances.
33. ' On 3rd November, 1959, a letter was issued by the Board of Revenue to the effect that the land abandoned by the non-Muslim members of the Criminal Tribes in which they had occupancy rights should be treated as Evacuee Property and be allotted to the refugees/claimants. In the year 1975, Act No, XIV of 1975 1. e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was published for general information wherein' it was stated that it shall come into force at once and shall be deemed to have taken effect on the first day of July, 1974. Under section 2 of this Ad, the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) and the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958 and Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) were repealed. In subsection (2) of this Act it was stated :- "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 have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
34. ' It is worth notice that the Assistant Commissioner/Collector/Additional . Settlement Commissioner-respondent No, 1 has been notified by the Provincial Government as such Officer mentioned in subsection (2) of section 2 of the Act. The above statement of law indicates that a property in which the non-Muslims evacuee had any interest or right such as that of a grantee, allotee, lessee, was an evacuee property and the same vested in the Custodian from 1st March, 1947. And, in case, the property was in the occupation of any person whether as a grantee or not that person was bound to give information to the Custodian or any person authorised on that behalf and on his failure to do so, that property could be treated as an evacuee property even after 1st January, 1957.
35. ' At this stage, it would not be out of place to attend to the most crucial point involved in this petition i. e. Whether the disputed land left by non-Muslim members of the Criminal Tribes, which is now in possession of the petitioner/petitioners was an evacuee property and the same was actually treated as such or not.
36. ' After going through the material available before me, and the judgments of Custodian, High Court and Supreme Court shown to me, I find :
(i) that disputed land was allotted to non-Muslim members of Criminal Tribes under the conditions mentioned in the early part of the judgment and before they could get they migrated to India. The land abandoned by them is now in the possession of the petitioner/petitioners, under Evacuee Laws mentioned above, this property wherein the non-Muslim members of the Criminal Tribes had right or interest is undoubtedly, an evacuee property which was vested in the Custodian since 1st March, 1947. The next question which arises for consideration is whether this properly has been treated as an evacuee property before 1st January, 1957 and if not, whether the same now can be treated as an evacuee property. I have considered this question with care. I find that through memorandum No, 523 dated 4th July, 1952 from the Additional Secretary to the Government of the Punjab, Settlement and Colonies Department to Deputy Commissioner, Lyallpur (Faisalabad) copy of which was sent to all the Commissioners and Deputy Commissioners in the Punjab, it was stated :- "In continuation of Punjab Government memo. No, 5021-C, dated 12th November, 1951 and Punjab Government memorandum No, 1231-C, dated 4th March, 1952, the Governor of the Punjab is pleased to order that all grants irrespective of whether payment has been made or not for acquiring of proprietary or occupancy rights, be treated as evacuee property for the purpose of Rehabilitation Settlement Scheme." This would show that the disputed property was treated as an evacuee property for the purpose of Rehabilitation and Settlement Scheme. In the instant case, I further find (as admitted by the parties) that the occupants petitioner/petitioners had not given any information to the authorities concerned with regard to the disputed property and as such I am of the considered view that this property could be treated as an evacuee property even after 1st January, 1951. On this view I am fortified by the judgment of the. Custodian dated 26th December, 1962 wherein the Custodian in an identical case i. e. Abdul Ghani v. State held that :- "the land occupied by the non-Muslims members of the Criminal Tribes under the Criminal Tribes Act (in other districts) before partition and left by them in 1947 was an evacuee property for Rehabilitation and Settlement purposes."
37. ' This judgment of the Custodian was challenged before the High Court in Writ Petition No, 37 of 1964, wherein, the decision of the Custodian was upheld by the Division Bench of the Lahore High Court on 20th November, 1969. Feeling aggrieved, Abdul Ghani filed a petition for Special Leave to Appeal which was dismissed on 22nd June, 1971. I further find that this property was actually allotted to claimants displaced persons in the year 1962.
38. It is noteworthy that the petitioners never preferred any claim that their interest in displaced land has not been affected by the Provisions o the Ordinance as contemplated by section 18 of Ordinance 15 of 1949 as such their requests to occupy the land which was certainly an evacuee property were never accepted or approved under section 3-B of Act, XII o 1957.
39. ' For all these reasons, my considered view is that the disputed land in the possession of the petitioner/petitioners not only vested in the Custodian but the same has actually been treated as an evacuee property and rightly so.
4. Since the case was remanded to respondent No, 1 by the Supreme Court. It would be proper if the relevant portions of the judgment are produced in order to assess the lawful authority of the respondent No, 1 to pass the impugned order.
40. ' The Supreme Court in its judgment dated 22nd May, 1978 while remanding the case to respondent No, 1 observed : - "the initial onus, therefore, rested on the writ petitioners to affirmatively prove that they were the lawful allottees of these lands in dispute. No presumption could have been raised in their favour in this behalf. In this respect the learned Judges of the High Court were therefore, not justified in placing the onus of proof on respondents before them. Indeed according to the appellants, except for respondents Nos. 41 to 50 in Civil Appeal No, 187/70, the remaining private respondents in these appeals were originally granted some other lands as members of the Criminal Tribes but after the non-Muslim members of the Criminal Tribes had abandoned the lands now in dispute situated in Chak No, 19/WA and Chak No, 23/WB Tehsil Vehari, the respondents had in an unauthorised manner occupied them without any lawful authority. It was denied before us that in about the year 1948-49, the lands originally held by these respondents were ever resumed by the authorities and in lieu thereof the lands in dispute were lawfully allotted to them by any of the authorities under the Criminal Tribes Act, 1911, or the Colonization of Government Lands (Punjab) Act, 1912. It appears that in about the year 1949, the Criminal Tribes Department of the. Punjab Government was abolished and the administrative control of the lands reserved for the settlement of members belonging to the Criminal Tribes, was also made over to the authorities vested with the powers under the Colonization of Government Lands (Punjab) Act, 1912."
41. ' It was further observed "We find that at the hearing before the High Court, the respondents largely relied On 4 report made by the Colony Assistant, Multan, on the 30th of January, 1959 giving details of the Individual holdings previously held by the, respondents and other members of the Criminal Tribes and the new allotments allegedly made to them either by the Deputy Commissioner of the Criminal Tribes or by the Colony Assistant, Colonization Officer, Nili Bar Colony. But, as the impugned judgment of the High Court itself shows this report was not available on the relevant files of the department.
42. However, the learned counsel for the contesting respondents was able to show to the Court that this report existed on one of the files in possession of the appellants brought in Court. On a detailed scrutiny of the lists attached with this report the Court was satisfied that the respondents had been shifted from their original holdings to the present holdings in dispute under the orders passed by the competent authorities. But in our considered opinion, with due deference to the learned Judges of the Lahore High Court, in the absence of any original orders for allotments passed by the competent authorities it was not safe to solely rely on the secondary evidence in the nature of the report dated the 30th of January, 1959 said to have been made by the Colony Assistant, Multan."
43. ' It has further been stated :- "There is no doubt that under section 6 of the Pakistan Rehabilitation Act 42 of 1956, the Central Government may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified. And to allot the same to persons resident in Pakistan, whether refugees or not.
44. But at the same time in the Rehabilitation and Resettlement Scheme, framed under the Act, elaborate procedure was laid down for the verification of the claims of the refugees who owned land or held occupancy or other rights of similar nature in the lands abandoned by them in India and for the allotment of the evacuee lands in Pakistan to them in lieu of their verified claims in terms of their produce index values. Admittedly, the respondents in these cases are not displaced persons from India and did not hold any verified claim. They were, therefore, not eligible for the allotments of evacuee lands to them under the Rehabilitation and Settlement Scheme in force in the Province."
45. ' Lastly it was stated therein :- "We remit these cases to the Collector Vehari vested with the jurisdiction for disposal afresh in accordance with law after hearing all the interested parties."
46. From the perusal of the order dated 22nd May, 1978 of the Supreme Court referred to above it is very much clear that according to the Supreme' Court the onus was on the writ petitioner/petitioners to prove that there. Was valid order of allotment in their favour or any valid order permitting exchange of their agricultural holdings. Furthermore, the list prepared by the Colony Assistant dated 30th January, 1959 which has also been relied upon before me is at least a secondary evidence and cannot be madg the basis of entitlement and that there was nothing to prove that the writ petitioner/petitioners were holding the disputed land in exchange of land left by them under valid allotment order and lastly the Collector-respondent No, 1 was a competent authority to. Deal with the matter who was directed t decide afresh after hearing all the interested parties.
5. Keeping all what has been stated above in mind, I proceed to cogsider the merits of these writ petitions, Writ Petitions Nos. 656, 670, 685 and 692 of 1980, Writ Petitions Nos. 83, 84 and 106 of 1981 and Writ Petition No, 85 of 1982. The facts giving rise to these writ petitions are almost identical.
47. Briefly, as stated by the learned counsel, the petitioners are Muslim members of Criminal Tribes and were settled in Chak No, 23/WB, 19/WB of Tehsil Vehari in the year 1948-50. They were allotted the disputed land as members of the Criminal Tribes through letter No, 2076, dated 19th July, 1949 issued by the Deputy Secretary Re-Settlement and Colonization Government of Punjab. They were put in possession by the competent authorities. It so happened that on 2nd December, 1962 the ARC/Tehsildar, Vehari, allotted the land in occupation of these petitioners to claimants displaced persons. The land in possession of some other members of Criminal Tribes was also transferred to refugee claimants/private respondents. Feeling aggrieved, the petitioners filed appeal which was accepted by the Deputy Settlement Commissioner, vide his order dated 30th April, 1963. According to the learned counsel this order was not further challenged by the refugee claimants. About 50 members of the Criminal Tribes challenged the order dated 2nd December, 1962 of allotment of the land to refugee claimants before the Lahore High Court through Writ Petition No, 69/63 which was accepted by the High Court on 18th October.
48. 1966. Aggrieved by this judgment the Government filed Civil Appeals Nos. 158, 160, 187 and 188 of 1970 in the Supreme Court which were accepted by a single order dated 22nd May, 1978 and the case was remanded to respondent No, 1 for fresh decision according to law after hearing the interested parties. On remand respondent No, 1 recognized the disputed land as an evacuee property and restored the allotment made in favour of the claimants displaced persons by ARG/Tehsildar on 2nd December, 1966.
49. ' The facts of Writ Petition No, 670/1980 are a bit different to this extent that the appeal filed by the petitioners against the order dated 2nd December, 1962 was accepted on 28th December, 1966 and that the petitioners therein were displaced persons from Ambala and Karnal Districts.
50. ' Writ Petitions Nos. 641, 793, 794, 796 and 797 of 1979 : The facts giving rise to these writ petitions are almost similar. Briefly, as stated by the learned counsel, the petitioners are member of the Criminal Tribes. They were originally settled in Chak No, 19/WB, Chak No, 109/NL, Chak No, 23/WB of Kassowal, Chak No, 91/LR and Chak No, 23/WB. The non-Muslim members of Criminal Tribes who were granted land in Chak No, 19/WB, Vehari migrated to India in the year 1947. Thereupon, the petitioners were shifted to this Estate in exchange of the land originally held by them. Since then they are in possession of the disputed land. As stated by the learned counsel the land originally held by the petitioners was resumed and utilized for various Schemes. It so happened that the Colony Assistant, Vehari acting in pursuance of letter dated 3rd November, 1959 issued by the Member Board of Revenue, Punjab, whereby he was directed to treat the land abandoned by the non-Muslim members of the Criminal Tribes as an evacuee property and to allot the same to refugee claimants allotted the land in occupation of the petitioners to the claimants displaced persons on 23rd October, 1962. Some of the writ petitioners challenged this order by way of appeal before the Additional Commissioner, Multan whereas, the others filed writ petitions which were heartland disposed of alongwith Writ Petition No, 69/63. The appeals before the Additional Commissioner as well as the writ petitions were allowed. Aggrieved by the order of the Division Bench of the Lahore. High Court,-the-Government filed Civil Appeal No, 188 of 1970 which was heard alongwith other Civil Appeals and was accepted on 22nd May, 1978 remanding the case to respondent No, 1 for fresh decision according to law after hearing the interested parties. On remand, respondent No, 1 recognized the land in possession of the petitioners to be an evacuee property and restored the allotment of the same made to refugee claimants.
51. ' Writ Petition No, 795 of 1979 : The disputed land measuring 79 Kanals 8 Marlas and situated in Chak No, 19/WB, was originally allotted to Gulab Singh as a non-Muslim member of the Criminal Tribes.
52. He enjoyed the occupancy rights till 1947. On his migration the land was allotted to Shah Rasul respondent No, 4 on 9th August, 1962 by ARC/Tehsildar Vehari. After the year 1967, Shah Rasul gave this land on tenancy to Roshan petitioner and thereafter, he got his claim transferred and as such the land became vacant but remained in the possession of Roshan petitioner. On 12th December.
53. 1978 respondent No, 1 restored the allotment of land in favour of Shah Rasul and implemented the allotment order in RL-II. Hence this writ petition.
6. The learned counsel for writ petitioners have raised the following points :-
(1) The petitioners were allotted the disputed land under Criminal Tribes Act and as such they are entitled to retain the same.
(ii) The disputed property was not an evacuee property, it never vested in the Custodian and was not treated as an evacuee property before 1st January, 1957 and as such could not be allotted to the claimants displaced persons in the year 1962.
(iii) After the repeal of the Evacuee Laws respondent No, 1 had no jurisdiction to declare and treat the same as evacuee property particularly, when he bad referred the matter to the higher authorities for clarification of its nature on 15th November, 1978, and
(iv) 'the impugned order has been passed in violation of the direction of the Supreme Court as well as the principles of natural justice inasmuch as the same has been passed without notice and without hearing the petitioners.
7. As against this the learned counsel for the respondents have vehemently defended the impugned judgment.
8. After hearing the learned counsel for the parties and going through the relevant material placed on the record of this petition, I find that the petitioners have not placed on record the original order of the allotment, the letter No, 2076, dated 19th July, 1949 or its certified copies to prove their entitlement. In some cases the petitioners after the conclusion of the arguments of the respondents, moved applications seeking permission to produce documents mentioned therein.
54. This request was however, rejected for reasons recorded by me and as such the documents mentioned in those petitions cannot be taken into consideration. Even otherwise, except some certified copies of revenue record, the other documents are not certified copies and as such cannot be relied upon. The onus was upon the petitioners to prove valid allotment or grant in their favour, if any. As observed in para. No, 2, the petitioners could prove the void allotments in their favour, if any, by producing of ample documentary evidence e. g. The original allotment order, order of exchange, order whereby they were or to have held, as the case may be, such property on behalf of the Custodian."
(2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, intimate to the Custodian in writing his willingness to surrender such property to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid.
(3) The provisions of subsection (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority."
55. Section 18 : Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer claim to the Custodian on the ground that :-
(a) the property is not evacuee property, or
(b) his interest in the property has not been affected by the provisions of this Ordinance.
56. Law in 1956: Ordinance, 15/1949 was repealed and re-enacted as Ordidance No, 18 of 1956 i. e.
57. Pakistan (Administration of Evacuee Property) Ordinance, 1956. The definition of the Evacuee Property remained the same.
58. ' Section 7: Of this Ordinance was a new provision which lays down :- "Where the ancestral right of an evacuee in any land or his right for a fixed term of years therein has vested in the Custodian or where the Custodian has taken possession of such land notwithstanding any other law for the time being in force, shall operate to extinguish such right against the evacuee. Neither the evacuee nor the Custodian shall be liable to be ejected from such land by reason only on any default of the Custodian."
59. ' It is to be noted that section 7 of the Ordinance, 15 of 1949 was maintained as section 8. In the year 1956 Ordinance 20 of 1956 was also enforced. Its section 3 reads as follows :- "Notwithstanding anything contained in this Ordinance no person or property not treated as evacuee or evacuee property immediately before the first day of January, 1957 shall be treated as evacuee or as the case maybe, evacuee property on or after the said date.
60. Law in the year 1957: In the year 1957, Act No, XII of 1957 i. e. Pakistan (Administration of Evacuee Property) Act, 1957 was promulgated.
61. ' Some important amendments were introduced in section 3 whereby two exceptions were added :-
(b) To any property which is occupied, supervised or managed by a person whose authority or right to do after 28th February, 1947 has not been accepted or approved by the Custodian: Section 5 : Lays down that provisions of this Act and any rule or order made therein shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effected by virtue of any such law ; Section 7: All evacuee property shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947.
62. Section 8: Where the rights of an evacuee in any land or in any house or other buildings consist or consisted of occupancy or tenancy rights or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights, on the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property, and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of :-
(a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee, or,
(b) where any person acquires or has acquired any right in possession of that property whether in pursuance of a grant, .Lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property.
63. ' This enactment appears to have been made to safeguard the evacuee's interest in the property.
64. Law in 1958.-In the year 1958, Displaced Persons (Land Settlement) Act (XLVII of 1958) was enforced: Section 3 reads as follows :- "As soon as may be, after the commencement of this Act, but not later than 90 days therefrom, every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to the Rehabilitation Authority, of the area concerned full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or management thereof.
(2) Any such property as is referred to in subsection (i) shall, notwithstanding the provisions of section 3 of the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 be tread as Evacuee Property and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act.
65. Section 4 deals with the power of the Central Government to acquire land.
(1) ...
(2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by Notification in the Official Gazette acquire such land situated in the Province (excluding the Karachi Division) as the Central Government may deem it necessary to acquire.
(3) On the publication of a Notification under subsection (1), or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the Notification shall, with effect from the date of such Publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances.
66. ' On 3rd November, 1959, a letter was issued by the Board of Revenue to the effect that the land abandoned by the non-Muslim members of the Criminal Tribes in which they had occupancy rights should be treated as Evacuee Property and be allotted to the refugees/claimants.
67. ' In the year 1975, Act No, XIV of 1975 1. e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was published for general information wherein' it was stated that it shall come into force at once and shall be deemed to have taken effect on the first day of July, 1974, Under section 2 of this Act, the Pakistan (Adminstration of Evacuee Property) Act, 1957 (XII of 1957) and the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958 and Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) were repealed. In subsection (2) of this Act it was stated :- "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 have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
68. ' It is worth= notice that the Assistant Commissioner/Collector/Additional Settlement Commissioner-respondent No, 1 has been notified by the Provincial Government as such Officer mentioned in subsection (2) of section 2 of the Act. The above statement of law indicates that a property in which the non-Muslims evacuee had any interest or right' uch as that of a grantee, allotee, lessee, was an evacuee property and the same vested in the Custodian from 1st March, 1947. And, in case, the property was in the occupation of any person whether as a grantee or not that person was bound to give information to the Custodian or any person authorised on that behalf and on his failure to do so, that property could be treated as an evacuee property even after 1st January, 1957.
69. ' At this stage, it would not be out of place to attend to the most crucial point involved in this petition i. e. Whether the disputed land left by non-Muslim members of the Criminal Tribes, which is now in possession of the petitioner/petitioners was an evacuee property and the same was actually treated as such or not.
70. ' After going through the material available before me, and the judgments of Custodian, High Court and Supreme Court shown to me, I find :
(1) that disputed land was allotted to non-Muslim members of Criminal Tribes under the conditions mentioned in the early part of the judgment and before they could get they migrated to India. The land abandoned by them is now in the possession of the petitioner/petitioners, under Evacuee Laws mentioned above, this property wherein the non-Muslim members of the Criminal Tribes had right or interest is undoubtedly, an evacuee property which was vested in the Custodian since 1st March, 1947. The next question which arises for consideration is whether this properly has been treated as an evacuee property before 1st January, 1957 and if not, whether the same now can be treated as an evacuee property. I have considered this question with care. I find that through memorandum No, 523 dated 4th July, 1952 from the Additional Secretary to the Government of the Punjab, Settlement and Colonies Department to Deputy Commissioner, Lyallpur (Faisalabad) copy of which was sent to all the Commissioners and Deputy Commissioners in the Punjab, it was stated :- "In continuation of Punjab Government memo. No, 5021-C, dated 12th November, 1951 and Punjab Government memorandum No, 1231-C, dated 4th March, 1952, the Governor of the Punjab is pleased to order that all grants irrespective of whether payment has been made or not for acquiring of proprietary or occupancy rights, be treated as evacuee property for the purpose of Rehabilitation Settlement Scheme." This would show that the disputed property was treated as an evacuee property for the purpose of Rehabilitation and Settlement Scheme. In the instant case, I further find (as admitted by the parties) that the occupants petitioner/petitioners had not given any information to the authorities concerned with regard to the disputed property and as such I am of the considered view that this property could be treated as an evacuee property even after 1st January, 1951. On this view I am fortified by the judgment of the, Custodian dated 26th December, 1962 wherein the Custodian in an identical case i. e. Abdul Ghani v. State held that :- "the land occupied by the non-Muslims members of the Criminal Tribes under the Criminal Tribes Act (in other districts) before partition and left by them in 1947 was an evacuee property for Rehabilitation and Settlement purposes."
71. ' This judgment of the Custodian was challenged before the High Court in Writ Petition No, 37 of 1964, wherein, the decision of the Custodian was upheld by the Division Bench of the Lahore High Court on 20th November, 1969. Feeling aggrieved, Abdul Ghani filed a petition for Special Leave to Appeal which was dismissed on 22nd June, 1971. I further find that this property was actually allotted to claimants displaced persons in the year 1962.
72. It is noteworthy that the petitioners never preferred any claim tha their interest in displaced land has not been affected by the Provisions o the Ordinance as contemplated by section 18 of Ordinance 15 of 1949 as such their requests to occupy the land which was certainly an evacue property were never accepted or approved under section 3-B of Act, XII o 1957.
73. ' For all these reasons, my considered view is that the disputed land in the possession of the petitioner/petitioners not only vested in the Custodian but the same has actually been treated as an evacuee property and rightly so.
4. Since the case was remanded to respondent No, 1 by the Supreme Court. It would be proper if the relevant portions of the judgment are produced in order to assess the lawful authority of the respondent No, 1 to pass the impugned order.
74. ' The Supreme Court in its judgment dated 22nd May, 1978 while remanding the case to respondent No, 1 observed : - "the initial onus, therefore, rested on the writ petitioners to affirmatively prove that they were the lawful allottees of these lands in dispute. No presumption could have been raised in their favour in this behalf. In this respect the learned Judges of the High Court were therefore, not justified in placing the onus of proof on respondents before them. Indeed according to the appellants, except for respondents Nos. 41 to 50 in Civil Appeal No, 187/70, the remaining private respondents in these appeals were originally granted some other lands as members of the Criminal Tribes but after the non-Muslim members of the Criminal Tribes had abandoned the lands now in dispute situated in Chak No, 19/WA and Chak No, 23/WB Tehsil Vehari, the respondents had in an unauthorised manner occupied them without any lawful authority. It was denied before us that in about the year 1948-49, the lands originally held by these respondents were ever resumed by the authorities and in lieu thereof the lands in dispute were lawfully allotted to them by any of the authorities under the Criminal Tribes Act, 1911, or the Colonization of Government Lands (Punjab) Act, 1912. It appears that in about the year 1949, the Criminal Tribes Department of the Punjab Government was abolished and the administrative control of the lands reserved for the settlement of members belonging to the Criminal Tribes, was also made over to the authorities vested with the powers under the Colonization of Government Lands (Punjab) Act, 1912."
75. ' It was further observed :-- "We find that at the hearing before the High Court, the respondents largely relied on a report made by the Colony Assistant, Multan, on the 30th of January, 1959 giving details of the individual holdings previously held by the, respondents and other members of the Criminal Tribes and the new allotments allegedly made to them either by the Deputy Commissioner of the Criminal Tribes or by the Colony Assistant, Colonization Officer, Nili Bar Colony.
76. But, as the impugned judgment of the High Court itself shows this report was not available on the relevant files of the department. However, the learned counsel for the contesting respondents was able to show to the Court that this report existed on one of the files in possession of the appellants brought in Court. On a detailed scrutiny of the lists attached with this report the Court was satisfied that the respondents had been shifted from their original holdings to the present holdings in dispute under the orders passed by the competent authorities. But in our considered opinion, with due deference to the learned Judges of the Lahore High Court, in the absence of any original orders for allotments passed by the competent authorities it was not safe to solely rely on the secondary evidence in the nature of the report dated the 30th of January, 1959 said to have been made by the Colony Assistant, Multan."
77. ' It has further been stated :- "There is no doubt that under section 6 of the Pakistan Rehabilitation Act 42 of 1956, the Central Government may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified. And to allot the same to persons resident in Pakistan, whether refugees or not.
78. But at the same time in the Rehabilitation and Resettlement Scheme, framed under the Act, elaborate procedure was laid down for the verification of the claims of the refugees who owned land or held occupancy or other rights of similar nature in the lands abandoned by them in India and for the allotment of the evacuee lands in Pakistan to them in lieu of their verified claims in terms of their produce index values. Admittedly, the respondents in these cases are not displaced persons from India and did not hold any verified claim. They were, therefore, not eligible for the allotments of evacuee lands to them under the Rehabilitation and Settlement Scheme in force in the Province."
79. ' Lastly it was stated therein :- "We remit these cases to the Collector Vehari vested with the jurisdiction for disposal afresh in accordance with law after hearing all the interested parties."
80. From the perusal of the order dated 22nd May, 1978 of the Supreme Court referred to above it is very much clear that according to the Supreme' Court the onus was on the writ petitioner/petitioners to prove that there' was valid order of allotment in their favour or any valid order permitting exchange of their agricultural holdings. Furthermore, the list prepared by the Colony Assistant dated 30th January, 1959 which has also been relied B upon before me is at least a secondary evidence and cannot be made. The basis of entitlement and that there was nothing to prove that the writ petitioner/petitioners were holding the disputed land in exchange of land left by them under valid allotment order and lastly the Collector-respondent No, I was a competent authority to. Deal with the matter who was directed t decide afresh after hearing all the interested parties.
5. Keeping all what has been stated above in mind, I proceed to consider the merits of these writ petitions, Writ Petitions Nos. 656, 670, 685 and 692 of 1980, Writ Petitions Nos. 83, 84 and 106 of 1981 and Writ Petition No, 85 of 1982. The facts giving rise to these writ petitions are almost identical.
81. Briefly, as stated by the learned counsel, the petitioners are Muslim members of Criminal Tribes and were settled in Chak No, 23/WB, 19/WB of Tehsil Vehari in the year 1948-50. They were allotted the disputed land as members of the Criminal Tribes through letter No, 2076, dated 19th July, 1949 issued by the Deputy Secretary Re-Settlement and Colonization Government of Punjab. They were put in possession by the competent authorities. It so happened that on 2nd December, 1962 the ARC/Tehsildar, Vehari, allotted the land in occupation of these petitioners to claimants displaced persons. The land in possession of some other members of Criminal Tribes was also transferred to refugee claimants/private respondents. Feeling aggrieved, the petitioners filed appeal which was accepted by the Deputy Settlement Commissioner, vide his order dated 30th April, 1963. According to the learned counsel this order was not further challenged by the refugee claimants. About 50 members of the Criminal Tribes challenged the order dated 2nd December, 1962 of allotment of the land to refugee claimants before the Lahore High Court through Writ Petition No, 69/63 which was accepted by the High Court on 18th October.
82. 1966. Aggrieved by this judgment the Government filed Civil Appeals Nos. 158, 160, 187 and 188 of 1910 in the Supreme Court which were accepted by a single order dated 22nd May, 1978 and the case was remanded to respondent No, 1 for fresh decision according to law after hearing the interested parties. On remand respondent No, 1 recognized the disputed land as an evacuee property and restored the allotment made in favour of the claimants displaced persons by ARG/Tehsildar on 2nd December, 1966.
83. ' The facts of Writ Petition No, 670/1980 are a bit different to this extent that the appeal filed by the petitioners against the order dated 2nd December, 1962 was accepted on 28th December, 1966 and that the petitioners therein were displaced persons from Ambala and Karnal Districts.
84. ' Writ Petitions Nos. 641, 793, 794, 796 and 797 of 1979 The facts giving rise to these writ petitions are almost similar. Briefly, as stated by the learned counsel, the petitioners are member of the Criminal Tribes. They were originally settled in Chak No, 19/WB, Chak No, 109/NL, Chak No, 23/WE of Kassowal, Chak No, 91/LR and Chak No, 23/WB. The non-Muslim members of Criminal Tribes who were granted land in Chak No, 19/WB, Vehari migrated to India in the year 1947. - Thereupon, the petitioners were shifted to this Estate in exchange of the land originally held by them. Since then they are in possession of the disputed. Land. As stated by the learned counsel .The land originally held by the petitioners was resumed and utilized for various Schemes. It so happened that the Colony Assistant, Vehari acting in pursuance of letter dated 3rd November, 1959 issued by the Member Board of Revenue, Punjab, whereby he was directed to treat the land abandoned by the non-Muslim members of the Criminal Tribes as an evacuee property and to allot the same to refugee claimants allotted the land in occupation of the petitioners to the claimants displaced persons on 23rd October, 1962. Some of the writ petitioners challenged this order by way of appeal before the Additional Commissioner, Multan whereas, the others filed writ petitions which were heard.And disposed of alongwith Writ Petition No, 69/63. The appeals before the Additional Commissioner as well as the writ petitions were allowed. Aggrieved by the order of the Division Bench of the Lahore. High Court,-the-Government filed Civil Appeal No, 188 of 1970 which was heard alongwith other Civil Appeals and was accepted -on 22nd May, 1978 remanding the case to respondent No, 1 for fresh decision according to law after, hearing the interested parties. On remand, respondent No, 1 recognized the land in possession of the petitioners to be an evacuee property and restored the allotment of the same made to refugee claimants.
85. ' Writ Petition No, 795 of 1979: The disputed land measuring 79 Kanals 8 Marlas and situated in Chak No, 19/WB, was originally allotted to Gulab Singh as a non-Muslim member of the Criminal Tribes.
86. He enjoyed the occupancy rights till 1947. On his migration the land was allot ted to Shah Rasul respondent No, 4 on 9th August, 1962 by ARC/Tehsildar Vehari. After the year 1967, Shah Rasul gave this land on tenancy to Roshan petitioner and thereafter, he got his claim transferred and as such the land became vacant but remained in the possession of Roshan petitioner. On 12th December 1978 respondent -No, 1 restored the allotment of land in favour of Shah Rasul and implemented the allotment order in RL-II. Hence this writ petition.
6. The learned counsel for writ petitioners have raised the following points :-
(i) The petitioners were allotted the disputed land under Criminal Tribes Act and as such they are entitled to retain the same.
(ii) The disputed property was not an evacuee property, it never vested in the Custoaian and was not treated as an evacuee property before 1st January, 1957 and as such could not be allotted to the claimants displaced persons in the year 1962.
(iii) After the repeal of the Evacuee Laws respondent No, 1 had no jurisdiction to declare and treat the same as evacuee property particularly, when he had referred the matter to the higher authorities for clarification of its nature on. 15th November, 1978, and
(iv) The impugned order has been passed in violation of the direction of the Supreme Court as well as the principles of natural justice inasmuch as the same has been passed without notice and without hearing the petitioners.
7. As against this the learned counsel for the respondents have vehemently defended the impugned judgment.
8. After hearing the learned counsel for the parties and going through the relevant material placed on the record of this petition, I find that the petitioners have not placed on record the original order of the allotment, the letter No, 2076, dated 19th July, 1949 or its certified copies to prove their entitlement. In some cases the petitioners after the conclusion of the arguments of, the respondents, moved applications seeking permission to produce documents mentioned therein.
87. This request was however, rejected for reasons recorded by me and as such the documents mentioned in those petitions cannot be taken into consideration. Even otherwise, except some certified copies of revenue record, the other documents are not certified copies and as such cannot be relied upon. The onus was upon the petitioners to prove valid allotment or grant in their favour, if any. As observed in para. No, 2, the petitioners could prove the void allotments in the C favour, if any, by producing of ample documentary evidence e. g. The original allotment order, order of exchange, order- whereby they were put in possession any certificate by S. P., D. M. Or Special Officer, receipts of the payment of dues, rates etc., which have not been done and as such they have hopelessly failed to prove their entitlement. The photosta or attested copies of the various lists showing the eligibility etc., being the secondary evidence as observed by the Supreme Court are not admissible. This disposes of contention (i) raised by the learned counsel for the petitioners. As for contention No, (ii), it stands already answered in para. No, 3 of the judgment. I am of the considered opinion that for the reasons recorded in para. No, 3 of the judgment the disputed land was vested with the Custodian since 1947 and could validly be treated as an evacuee property even after 1st January, 1957. As for contention No, (iii), I am afraid that the real situation has been misunderstood. As a matter of fact, after the repeat of the Act on 1st July, 1974, the respondent No, 1 was legally competent to pass the impugned order as he was notified by the Provincial Government under subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Furthermore, he had derived the authority from the order of the Supreme Court to decide the case, and the reference made by him to Settlement Authorities for the clarification of the nature of land, after the remand order of the Supreme Court having tentative one cannot take back his authority which was vested in him. A for contention No, (iv), I have considered this contention very carefully. Respondent No, 1 was directed by the Supreme Court to dispose of the cases after hearing the interested parties. Respondent No, 1 in 'his impugned judgment has stated "I again summoned the respondents at my Camp at Ratta Tibba on 12th December, 1978 to hear them and pass the necessary orders according to the remand order of the Supreme Court. None of the respondents appeared, although their learned counsel Mr. M. Z. Burki met me at Vehari, in my Court before leaving for Ratta Tibba an stated that the respondents will not attend the Court at Ratt Tibba. The summons for their attendance were issued and it has also been reported by the Patwari that these respondents have refused to sign the summons and have asked them that they would appear before the undersigned at Ratta Tibba on the next date and time. I reached Ritta Tibba all the respondents were present on the road but when I called them they left and none of them appeared then I take ex parte proceedings against them as they intentionally did not attend the Court in order to linger on this matter which is hanging fire for last 20 years, necessary service by beat of drum and proclamation has also been made in the Chak and I am convinced that all the respondents had the knowledge of this date for hearing of their cases but they avoided to attend the Court in order to linger on this matter. I, therefore, take ex parte proceedings against them."
88. ' The learned counsel has urged that the petitioners who are the members of the Criminal Tribes holding the disputed land should have been served through separate notices and the mode of service as adopted by respondent No, 1 cannot be recognized. After hearing the learned counsel I find that most of the members of the Criminal Tribes were represented by Mr. M. Z. Burki, Advocate.
89. The learned counsel had appeared and argued this case before respondent No, on three dates i,e, 18th October, 1978, 1st November, 1978 and 15th November, 1978 and as such it can be safely assumed that the interested parties were fully aware of the hearing of the matter. The learned counsel has not refuted the observation of respondent No, 1 as detailed above. He has not placed any affidavit to contradict the assertion of respondent No,
1. He has not submitted any affidavit to the effect that he had not informed the parties about the hearing of the cases at Ratta Tibba. I further find that the evacuee and rehabilitation legislation which was designed for meeting extraordinary situation should not be construed strictly. Under the Displaced Persons (Land Settlement) Rules, 1959, the provisions relating to the service of notices etc. Is as under : "Section 6(1) - Service of notices, summons or order issued or made under the Act shall be effected in any one or more of the following modes namely
(a) by delivering or rendering the notices, summons or order to the persons to whom it is intended to be served or his agent if any ;
(b) by publishing in any newspaper or proclamation by beat of drum or other customary methods in the locality."
90. Since all the official acts are presumed to have been regularly done and there being nothing against this presumption in the instant case I would assure that service was effected as mentioned by respondent No,
1. It is well settled that in case of large number of persons to whom the ground are common general notice through proclamation by beat of drum is a valid mode of service.
91. Omni-bus orders passed without granting individual hearing or considering of individual record are valid orders and as such. Respondent No, 1 has not committed any illegality in calling upon persons concerned collectively to appear for hearing. Reliance may be placed on PLD 1966 Supreme Court 403 and PLD 1964 Lah.
361. I am of the opinion that the petitioners intentionally avoided to appear and plead their cases before respondent No 1 in order to delay the proceedings since they were enjoying the possession of the disputed land for the last more than 30 years.
10. There are some distinguishing features of Writ Petitions Nos. 641/79, 793/79, 796/79 and 685/80, therefore, I would like to point out the legal flaws in these petitions which, to my mind, are per se sufficient in the rejection of these petitions. As for Petitions Nos. 641, 793 and 796 of 1979, I find that the claimants displaced persons who were allotted land in the year 1962 and the land in whose favour was restored through the impugned order dated 12th December, 1978 have not been impleaded as respondents. They are undoubtedly the necessary parties. I am of the considered opinion that it would be bad exercise of constitutional discretion and jurisdiction to condemn unheard at their back. These petitions could be dismissed on this short ground but as a matter of abundant caution to avoid multiplicity of litigation I have also considered the merits. As for Writ Petition No, 685 of 1980, I find that the petitioners had filed civil suit challenging the impugned order. They applied for stay which was refused. They challenged that order and the sane is pending before the appellate Court. Further find that the civil suit is still pending. This shocked me that the petitioners have not disclosed these facts in their petitions. I am of the view that on this short ground this petition could be dismissed.
11. For what has been stated above there being no merits in these writ petitions, the same are accordingly dismissed with no order as to costs.