S.A. NUSRAT, J.-- This appeal by leave of this Court is from the judgment of the Lahore High Court, Lahore dated 20-11-1973 passed on a Constitution Petition of the respondents Nos.l and 2 which was accepted and the order dated 16-6-1966 passed by the Settlement Commissioner, Multan was declared to have been passed without lawful authority and of no legal effect.
2. The dispute in this case relates to agricultural land comprised in Khasras Nos.47/11/2, 12/1, 13/3, 14/1, 15/2, 16 to 23; 24/1 measuring about 12 Acres 4 Kanals and 1 Marla situated in Chak No. 90/15-L Tehsil Khanewal, District Multan. This land was State land which was sold by the Government of Punjab in 1945 for Rs.5,693/3 by public auction in favour of Darbari Lal and Chet Ram. The entire sale price was paid by the said purchasers by 18-1-1946, but before a final deed could executed in their favour , they migrated to India on the setting up of the new Dominions of India and Pakistan.
The property, therefore, continued to be shown as State land and was granted on lease from year to year till it was finally included in the Schedule of auction and purchased by the appellants on the 31st March, 1955. A conveyance deed was also executed in their favour.
3. In 1964, however, the respondents Nos. l and 2 applied to the Deputy Rehabilitation Commissioner
(Land) for the allotment of the disputed land on the allegation that it was hidden evacuee property. The latter called for a report from the Settlement Officer, Multan and on 15th January, 1965 purported to allot these lands in favour of the said respondents. This order was challenged by the appellants in appeal, which was dismissed on the 3rd September, 1965. In revision, however, the Settlement Commissioner, Multan reversed the order and held the land to be non-evacuee property because it was never treated as such before the 1st day of January, 1957. The respondents challenged this order in the High Court of West Pakistan, Lahore Seat, in a Writ Petition which was accepted as per impugned judgment by a learned Single Judge who considered the property to be concealed evacuee property relying on a decision of this Court in the case of Qutab Ali v.
Custodian Evacuee Property PLD 1964 SC 58. But this was an ex parte hearing because the respondents had not appeared. The learned High Court also relied upon to notifications of the Provincial Government issued vide Memorandum No.3036/C, dated 11-7-1951 and Memorandum No.523, dated 4th July, 1952 for the purpose of holding that the land abandoned by evacuee in colony areas in Punjab were to be treated as 'evacuee property' even if the purchase price had only been paid partially.
4. Leave to appeal was granted, inter alia, to consider whether the High Court had rightly treated the lands in dispute as hidden evacuee property.
5. It was contended by the learned counsel for the appellants that the land in question was throughout entered in the revenue record as owned by the Provincial Government. This is confirmed from the Extract from the Register Haqdaran for the year 1962-63, which appears at pages 27/28 of Paper Book. The learned counsel for the respondents was unable to refer to any document or record to controvert this fact. It is, therefore, clear that at no stage up to 1st January 1957 the disputed land was treated as evacuee property by means of any overt at done in this behalf either by the Custodian or the Settlement Authorities. The revenue record goes to show that the title in the land had not passed in favour of the evacuees Darbari Lal and Chet Ram obviously because no sale-deed was executed in their favour. There is also no evidence that even possession of the land was delivered to the said auction-purchasers. The question of the property being concealed or hidden evacuee property, in the circumstance, could arise only if the ownership in the land had come to vest in the auction-purchasers. On the contrary, the record clearly goes to show that the land was throughout entered in the revenue record in the name of the Provincial Government. In view of the facts of this case the judgment of this Court relied upon by the learned High Court has no relevance. There was no dispute in that case that the property involved in the appeal belonged to an evacuee and thus the judgment is clearly distinguishable.
Reliance was also placed by the learned High Court, and rather heavily, on to memorandums of the Provincial Government referred to above. The first Memo dated 11th July was issued by the Under-Secretary to Government of Pakistan, Rehabilitation and Colonies, to all Deputy Commissioners in the Punjab and is reproduced below; Subject:-Allotment of proprietary areas abandoned by evacuee to all refugees on permanent basis- Reference:- Correspondence resting with Punjab Government endorsement No.2567-Cdated the 6th June, 1951.
Government has decided that the proprietary lands abandoned by evacuees in colony areas in the Punjab which have been resumed by Government for breach of conditions applicable to those areas, should be treated as evacuee property for the purpose of resettlement of refugees and allotted to them under the Rehabilitation Settlement Scheme. The areas in respect of which purchase price of proprietary rights was paid partially or wholly by the evacuees but the deed of conveyance was not executed by them before evacuation should also be treated as evacuee property and allotted to refugees under the Rehabilitation Settlement Scheme. A separate record of such resumed areas should be maintained.
It has also been decided that in colony areas especially and in other areas generally abates should be distributed freely to the refugees residents to enable each family to have separate building of its own."
The second Memo which was issued by the Additional Secretary to the Government of Punjab in Settlement and Colonies Department Lahore to the Deputy Commissioner, Lyallpur is also reproduced herein under; Subject:-Allotment of land to refugees under the Rehabilitation Settlement Scheme.
Reference:-Your ;Memo No.289/C/CA, dated the 11th March, 1952.
In continuation, Punjab Government corrigendum No.5021-C, dated t4 12th November, 1951, and Punjab Government Memo No.1231-Cdated the 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 acquisition of proprietary or occupancy rights should be treated as Evacuee Property for the purposes of Rehabilitation Settlement Scheme.
Endst.No.524-Th, dated 4-7-1952 by the Additional Secretary to Government Punjab, Resettlement and Colonies Department, Lahore .
A copy with a copy of the memo replied is forwarded for information to all Deputy Commissioners in the Punjab and others."
6. In the above to notifications it was no doubt said that the areas in respect of which purchase price of proprietary rights was paid partially or wholly, by the evacuee but the deed of conveyance was not executed by them before evacuation, should also be treated as evacuee property and allotted to the refugees under the Rehabilitation Settlement Scheme. The validity of the above memos was challenged by the learned counsel on the ground that the authority issuing the same had no jurisdiction to grant any declaration regarding the status of property as evacuee which matter fell within the exclusive domain of the Custodian. There can be no cavil to this proposition of law and learned counsel for the respondents were unable to show to us that the Government of Punjab had any jurisdiction to treat any property as evacuee.
The meaning and import of the word "treated" was examined by this Court in the case of Abdul Khaliq Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74 and it was held that the "treating" must be by some officer or authority who could control or make use of such property under the Ordinance, namely, Custodian or Rehabilitation Authority. Admittedly nothing of the kind was done in this case. In this connection the learned Settlement Commissioner, Multan in his order, dated 16- 6-1966 had recorded a finding of fact as under: "In the present case the land in dispute was never shown as evacuee property in the special Jamabandi prepared in the year 1947. It continued to be shown as State land which was leased out on tender basis till 1965. It was subsequently included as State land in the schedule of auction and property auctioned on 31-5-1955. In the instant case there is neither user of the property nor a consciousness of the actual or assumed nature of the property to show that it was treated as evacuee property at any the up to its allotment to the respondents."
The above finding of fact arrived at by the learned Settlement Commissioner was unassailable and was not liable to be interfered with in the exercise of constitutional jurisdiction.
8. As a result of the above discussion this appeal must succeed, which is accordingly allowed with costs. The impugned judgment of the High Court is, therefore, set aside with the result that the order of the Settlement Commissioner dated 16-6-1966, impugned before the High Court, shall stand restored.