' This will dispose of Writ Petition No. 496-R of 1979 and Writ Petition No.530-R of 1979 as these arise in similar circumstances.
2. Muhammad Umar Khan, predecessor-in-interest of the respondents Nos. 1 to 7, was a displaced person from non-agreed areas. He was allotted land in village Dew Khara, Atari and Virk, Tehsil Chunian, District Kasur, on Q.P.R. On promulgation of M.L.Rs. 84 and 89, his claim was reverified and he was Issued M.R.V. He was entitled to the adjustment of the later claim. Excess he was to surrender was to vest in the Provincial Government under the aforesaid M.L.Rs., though the allottee was allowed to opt to purchase the surrendered land. It may be noted here that this has been done by the allottee.
3. However, on surrender of the land under M.L.Rs. 84 and 89, treating that as evacuee, it was allotted to the petitioner No.1 in the first petition and some others, from whom the other petitioners claim to have purchased.
4. The Additional Settlement Commissioner (Land), Kasur vide order dated 12-4-1979, has held that since the land vested in the Provincial Government under Martial Law Regulations, it could not be allotted to the petitioners. This is challenged by the petitioners through these Constitutional affairs.
5. Learned counsel for the petitioners has contended that the order passed by the Additional Settlement Commissioner dated 12-4-1979 is without jurisdiction because after repeal of all Settlement Laws he had no jurisdiction to pass any order. Secondly, that the petitioners who are bona fide purchasers for value had not been issued any notice nor were heard in the proceedings.
Thirdly, that the original allottee Muhammad Umar Khan having not exercised his option upto 31- 12-1962 to purchase under the aforesaid M.L.Rs., the land was to be sold in favour of the petitioners under the last sentence in sub-para. (i) of para. 1 of the Scheme for Land surrendered under the aforesaid Regulations.
6. Learned counsel for the contesting respondents Nos. 1 to 7, successors-in-interest of Muhammad Umar Khan, the original allottee, has contended that the order impugned dated 12-4-1979 has been passed by the Deputy Commissioner/Additional Settlement Commissioner, because the land vested in the Provincial Government under Martial Law Regulations 84 and 89 and he alone had the jurisdiction. It is secondly, contended that the land allotted to Muhammad Umar Khan, after surrender, came to vest in the Provincial Government and under the Scheme for the disposal of such land, the allottee having exercised his option to purchase on 17-1-1963 and his application having been found to be within limitation by the Revenue Authorities, the land could not be allotted as evacuee. Attention is invited to the Memorandum of the Board of the Revenue, dated 5-12-1962, wherein it was said that one month more should be given for exercise of option. The allottee Muhammad Umar Khan was issued a notice that since his M.R.V. had been received on 28-2-1962, he could file an application for purchase of the land in question which he did and consequently the land was sold in favour of the respondents' predecessor-in- interest.
7. I have heard the learned counsel for the parties and perused the record with their assistance.
There is no doubt that the land was allotted to Muhammad Umar Khan on his Q.P.R. On the promulgation of M.L.Rs. 84 and 89, he was issued M.R.V. To the extent of the reverified claim allotted land was to be adjusted. Rest of the land was to be surrendered. This was to vest in the Provincial Government. The allottee was allowed to purchase it by exercise of option. This is under the aforesaid M.L.Rs. The allottee in exercise of his right to purchase filed an option which was found to be within time. Therefore, land was, to be sold to him. The surrendered land vesting in the Provincial Government under the aforesaid Regulations had ceased to be evacuee and thus not allotable.
Consequently, any allotment of the surrendered land as evacuee in favour of the petitioner No. 1 in the first petition or the predecessor-in-interest in the other petition, was void altogether. Therefore, no right would flow therefrom in favour of the petitioners. It may be true that all the petitioners amongst whom some claim to be purchasers from the subsequent allottees may not have been heard by the D.C./A.S.C. when he passed the impugned order, dated 12-4-1979 but remanding the case for rehearing would only entail unnecessary litigation because the land could not have been allotted in favour of their predecessor-in-interest as evacuee for the reason that it had ceased to be evacuee and had vested in the Provincial Government under M.L.Rs. 84 and 89 and has since been sold by the latter in favour of the original allottee entitled to such sale under the scheme made under the aforesaid Regulations.
8. In view of what has been stated above, there is no option but to dismiss the petitions because the land being not evacuee and vesting in the Provincial Government under M.L.Rs. 84 and 89, could not be allotted as evacuee to the petitioner No. 1 in the first petition or the predecessor-in- interest in the other petition. The learned Officer passing the impugned order has already observed that the petitioners should be allotted some other evacuee land available, so their interests have already been catered for. In these circumstances, the petitions are dismissed but the parties are, however, left to bear their own costs.
Writ refused.
1985 C 1, C 2990 [Lahore] Before Zia Mahmood Mirza, J Mian IQBAL KHALID, ADVOCATE and others--Petitioners versus THE EXCISE AND TAXATION OFFICER DISTRICT TOBA TEK SINGH--Respondent Writ Petitions Nos. 632 and 633 of 1985, decided on 16th February, 1985.
West Pakistan Capital Gains Tax Rules, 1964-- ---R. 3--Constitution of Pakistan (1973), Art. 199--Gains-tax, assessment of--Remedies available against--Remedies of appeal and revision were available to petitioners in case they had grievances against assessm ent order passed by Excise and Taxation Officer--Petitioners did not file appeal against assessm ent order of capital gains-tax with apprehension that in case of filing appeal they would have to pay assessed amount--Petitioners already had paid certain amount of such tax--Undertaking given on behalf of Tax Authority that in case of appeal by petitioners, Department would not recover balance amount from petitioner pending final decision of appeal-- Petitioners might avail remedy of appeal in circumstances--Writ disposed of accordingly.
[p. 2991] A M. Farani Barrister-at-Law for Petitioners. Rashid Aziz, A.-G. for Respondent.
' It is not denied that the petitioners have a remedy of appeal and revision against the impugned order passed by the Excise and Taxation Officer. Learned counsel, however, submits that the remedy of appeal is not adequate in so far as in case the petitioners file appeal, they will have to pay the amount of gains-tax assessed in the impugned order. He further submits that the petitioners have already deposited Rs.70,000 towards the gain-tax and the total liability assessed by the E.T.O. comes to Rs.1,04,000.
2. I have sent for the Advocate-General, who has appeared. He undertakes that if the petitioners file appeal, the department will not recover the balance amount of Rs.34,000 from the petitioners pending the final decision of the appeal.
3. In these circumstances petitioners may avail the remedy of appeal in the first instance which shall be disposed of as early as possible.
With the aforesaid observation, the writ petition stands disposed of.