1. ' MUHAMMAD HALEEM, C.J.--These appeals arise from the common judgment of the Lahore High Court, Lahore, passed in writ petitions Nos. 18-R of 1973 and 827-R of 1973.
2. ' Civil Appeal No, 295 of 1976 and Civil Appeal No, 179 of 1977 are directed against the judgment in writ petition No, 18-R of 1973 while Civil Appeal No, 178 of 1977 is against the judgment in writ petition No, 827-R of 1973.
3. Leave to appeal was granted to consider whether by operation of section 4 of the Transfer of Evacuee Land (Katchi Abadi) Act 1972, (hereinafter referred to as "the Act"), the confirmed allotment of land, if any, in favour of the first respondent stood cancelled as from the appointed day, that is, 15th day of March, 1972, on the issuance of the notification under section 2(1)(f) of the Act, declaring such area to be Katchi Abadi, and whether persons who were in occupation of the area of evacuee land not exceeding five Marlas became eligible to the conferment of proprietary rights in respect of such land under section 5 of the Act.
4. ' The Governor of Punjab and the Chief Martial Law Administrator, Zone `C', promulgated Martial Law Order No, 251 on 18th of March, 1972, authorizing the Chief Settlement Commissioner to declare any locality existing on any evacuee property as Katchi Abadi. The order, inter alia, provided that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled and the allottees and transferees of such land shall be paid such compensation as may be determined by the Government.
5. ' The Chief Settlement Commissioner, further, under paragraph 7 of this Order framed the Scheme on 20th of April, 1972, and by it the Deputy Settlement Commissioner was authorized, after making such personal survey and such other inquiry as he may deem appropriate, to recommend to the Chief Settlement Commissioner to declare any locality consisting of fifty or more tenements existing on evacuee land not already declared as building site as Katchi Abadi. The Chief Settlement Commissioner, however, had the sole discretion to accept such recommendation or not.
6. Subsequent to the promulgation of this Martial Law Order and the framing of the Scheme, the Transfer of Evacuee Land (Katchi Abadi) Ordinance, 1972, (Ordinance XX of 1972), was promulgated on 28th of May, 1972, which was approved by the National Assembly and re-enacted on 18th of September, 1972, as Act XIII of 1972 (Transfer of Evacuee Land (Katchi Abadi) Act, 1972). The terms "Evacuee land" and ""Katchi Abadi" are defined as in the afore-mentioned Martial Law Order No, 251.
7. Section 3 of the Act gives to it an overriding effect over all other laws in terms that its provisions should have effect notwithstanding anything to the contrary contained in any other law or any decree, judgment or order of any Court or other authority, or any agreement, contract or instrument. Section 4 cancelled all allotments and transfers of evacuee land in any Katchi Abadi as from the 15th day of March, 1972, and the allottees and transferees of such land were only eligible to the payment of such compensation as was determined by the Government. Subsection (2) of this section, saved such evacuee land as was occupied by its allottee or transferee on the crucial date and did not exceed his verified claim. Section 5 of the Act conferred on persons other than those mentioned in section 4(2) who were in occupation of evacuee land, proprietary rights in respect of such land not exceeding five marlas on payment of such price as may be determined by the Chief Settlement Commissioner on the basis of the market price prevailing in the year 1947. Section 7 of the Act authorised the Chief Settlement Commissioner to prepare a scheme for carrying out the purpose of this Act with the approval of the Government. Section 11 of the Ordinance gave validation to any action taken, scheme made, order passed and thing done under Martial Law Order No, 251 as deemed respectively to have been taken, made, passed and done under this Ordinance. The Act re-enacted the validation provision in the same terms.
8. ' The Chief Settlement Commissioner issued a Notification on 19th of September, 1972, under clause
(f) of subsection (1) of section 2 of the Ordinance read with sub-clause (2) of clause (3) of the Scheme and section 11 of the aforesaid Ordinance declaring an inhabited area of 77 Kanals 8 Marlas of evacuee land comprised in Khasra Nos. 116, 117, 119, 120, 130, 132 to 139, 211, 212, 241 to 244 situate in Chah Thalaywala, village, Qutabpur, Multan, as Katchi Abadi. Again by another notification dated 3rd of May, 1973, under the aforesaid provision of the Act and the same provision of the Scheme read with section II of the aforesaid Ordinance declared an inhabited area of evacuee land measuring 27 Kanals comprised in Khasra Nos. 245-Min, 246-Min, 248, 122, 123 and 127 situate in Chah Thalaywala. Village Qutabpur, Multan, as Katchi Ahadi.
9. ' There arose a dispute between the appellants and respondent No, 1 in Civil Appeal No, 295 of 1986 over the declaration of Khasra Nos. 117, 119, 120, 130, 132 to 139, 245 min, 246, 248, 122, 123 and 127 as Katchi Abadi as the appellants claimed to be in occupation of different portions of the disputed land since 1947 as displaced persons and to have constructed their houses thereon. Respondent Ahmad Zaman Khan on the other hand asserted that he was a refugee and had migrated from Basti Danishmandan, East Punjab, (Agreed Area) and that the disputed land was allotted and confirmed in his favour against his verified claim.
10. ' It may here be mentioned that the Settlement Commissioner in his parawise comments conceded that so far as Khasra Nos. 117, 119, 120, 130 and 132 to 139 were concerned, they stood confirmed in favour of Ahmad Zaman Khan since long and that relevant entries existed in R.L. II, 60 and 64 of village Qutabpur, Tehsil and District Multan. It was also asserted in the comments that upon survey of the area measuring 77 Kanals 8 Marlas, it was found that the occupants had constructed houses thereon and that the total area of land confirmed in favour of Ahmad Zaman Khan which was declared as Katchi Abadi measured 104 Kanals 6 Marlas. The said respondent filed writ petition No, 18-R of 1973 to challenge the notification dated 19th of September, 1972, declaring an area of 77 Kanals 8 Marlas as Katchi Abadi. Again he filed another writ petition bearing No, 827-R of 1973 and challenged notification dated 3rd of May, 1973, which was published on 27th of September, 1973, declaring an area of 27 Kanals as Katchi Abadi.
11. ' In both the petitions, the plea of the said respondent was that as the land was permanently transferred to him it was no longer evacuee land which could be declared as Katchi Abadi. Further, that most of the land was covered by Pacca houses and as such it could not be declared as Katchi Abadi under the relevant provisions of the Act and, in any case, since the notification dated 19th September, 1972, was issued on the recommendation of the Additional Settlement Commissioner and not by the Deputy Settlement Commissioner, who was the designated authority under the Act, it was, accordingly, bad in law. Finally, as for the notification dated 3rd of May, 1973, in regard to land measuring 27 Kanals, it was asserted that the Deputy Settlement Commissioner was coerced to make the recommendation under the instructions of the then Minister for Law and Rehabilitation, and, therefore, he did not lawfully exercise his discretion while recommending the said property to be declared as Katchi Abadi.
12. ' In regard to the status of the property, the High Court held in paragraph 17 of its judgment as under: "The above discussion would show that after the acquisition of evacuee land under section 4 of the Land Settlement Act it ceased to be an evacuee property and all interests and rights of evacuees held therein were extinguished. The character of such property cannot, therefore, be evacuee, as to all intents and purposes it vests in the person whom it has been permanently transferred. As held by the Supreme Court in the authorities referred to above, it cannot be treated as evacuee property and question of calling and terming it as such in any future legislation would not arise."
13. ' As to the effect of section 4 of the Act, the High Court held that it only aims at transferring certain evacuee land to the occupants thereon and not the land which has been permanently transferred.
14. ' The High Court held after inspecting the relevant departmental files of the Deputy Settlement Commissioner, Multan, and the Additional Settlement Commissioner, Multan, that there were no details in regard to the cluster of katcha houses of at least fifty or more so as to satisfy the requirement of para. 3 of the Scheme, and, therefore, in its absence no recommendation could be made for declaring the disputed land as Katchi Ahadi. Again the recommendation of the Additional Settlement Commissioner concerning land measuring 77 Kanals 8 Marlas for being declared as Katchi Abadi as per notification was illegal as he was not authorised to do so under the relevant law. Further, that it was so declared at the instance of the Rehabilitation Minister without any independent application of his mind "by the competent Rehabilitation and Settlement Authority." Again the recommendation of the Deputy Settlement Commissioner, Multan, for the issuance of the notification dated 3rd of May, 1973, was under duress as it was on the insistence of Mr. Mukhtar Ahmad Awan, Minister for Law and Rehabilitation, that it was made.
15. ' In conclusion, the High Court held in paragraph 29 as under: "Since the property, in question, subject-matter of both the writ petitions, has been declared as Katchi Abadi in violation of the relevant provisions of law, as discussed above, and without applying mind independently by the competent authority, therefore, the notifications issued in this behalf, as referred to above, have no legal effect."
16. ' Both the appellants and the Federal Government felt aggrieved by the common judgment and they sought review of the judgment by this Court.
17. ' The appellants in Appeal Nos. 295 of 1976 and 179 of 1973 contended that the High Court should not have given a finding on a question of fact as to the cluster of katcha houses of at least 50 or more in number on its own examination of the files on the basis that no details existed therein particularly when the appellants denied in their written statement the assertion of the respondent that the Abadi in the land in dispute comprised Pacca houses, Pacca streets, pacca kothis and offices etc., and claimed that there existed on the land "Katcha houses and shops built with mud."
18. Respondents Nos. 2 to 4, in their written statement took the stand that "most of that area was constructed by various persons after partition and even at the time of its confirmation in favour of respondent No, 1, and that "the inhabitants of Chah Thalawal applied for declaring the land in question as Katchi Abadi." Further the land on which the appellants have constructed their houses was surveyed before the issuance of the notifications. Indeed, if there was any violation of paragraph 3 of the Scheme prepared under Martial Law Order No, 251, the question had to be, in the first instance, resolved by the Settlement Authorities if the conditions for the issuance of the notifications were not fulfilled. The High Court could not in a summary manner dispose of the question without taking evidence. In this view of the matter, the finding of the High Court cannot be sustained.
19. The declaration of Katchi Abadi by the first notification dated 19th September, 1972, was in conformity with clause 3(2) of the Scheme framed under Martial Law Order No, 251 which was saved by section 11 of the Ordinance. The power was, accordingly, exercised under section 2(1)(f) and section 11 in conjunction with the above provision. This Ordinance was approved by the National Assembly and validation was given to the Scheme in exactly similar terms by section 11 of the Act. As the Ordinance was repealed, section 6 of the Act takes care of the notification as one to have been issued under the Act in the context of clauses (b) and (c) of the said section.
20. ' Accordingly, no exception can be taken to the validity of the notifications or as to the operation of para. 3(2) of the Scheme prepared under the Martial Law Order No, 251.
21. The most important question is as to the status of the land. This controversy has also been resolved as by section 2 of Ordinance I of 1977, (Transfer of Evacuee Land (Katchi Abadi) (Amendment)
22. Ordinance, 1977), promulgated on 5th of January, 1977, which was repealed and re-enacted as Act III of 1977 on 9th of January, 1977, the term "evacuee land" has been given an extended meaning as by the insertion of the words "including any land, plot or vacant site allotted, transferred or otherwise disposed of by the Chief Settlement Commissioner or any other authority under either of the Acts or any other law for the time being in force" after the brackets, figures and words "XII of 1957", with effect from eighteenth day of September, 1972.
23. ' The notifications are subsequent to the date from which the extended meaning has been given to the term "evacuee land." It cannot now be argued with any force that the property ceased to be evacuee property on its inclusion in the compensation pool and subsequent transfer to respondent No, 1 on permanent basis as it takes care of land which could be termed as Katchi Abadi despite the fact that it stood permanently transferred. Therefore, no illegality Can attach to the declaration of the land as Katchi Abadi by the notifications.
24. ' Here it is important to mention that in Civil Appeal No, 53 of 1973 the predecessor-in-interest of the legal representatives namely Muhammad Jameel was not a party in writ Petitions Nos. 18-R of 1973 and 827-R of 1973 out of which civil Appeals Nos. 178 of 1977,' 179 of 1977 and 295 of 1976 arise. Civil Appeal No, 53 of 1983 arises out of writ petition No, 625-R of 1987, which was filed by respondent No,1 against the Settlement Authorities and Muhammad Jameel, in which the disputed Khasra No, is 396 measuring 45 Kanals and 9 Marlas, situate in village Qutabpur, Tehsil and District Multan, which according to respondent No,1, was allotted to him jointly with his maternal uncle Gul Muhammad Khan and as he was the sitting allottee, he claimed that it continued to remain allotted to him as by the order of the High Court dated 28th of October, 1965, in writ petition No, 1906-R of 1965 in which .He was a party. Muhammad Jamil not only concealed during the hearing of the above petition that his earlier writ petition No, 472-R of 1965 was dismissed in limine but also, that he did not file any further appeal against the above order. Khasra No, 396 was split up into Khasra Nos.
25. 246-min, 245-min and 248. The entire Khasra No, 396 comprised 45 Kanals and 9 Marlas. As the entire Khasra number was confirmed in favour of respondent No,1, Muhammad Jameel claimed an area measuring 15 kanals out of Khasra No, 246 as to have been allotted in his favour as brick-kiln.
26. Respondent No, l's writ petition No, 625-R of 1967 was allowed and Muhammad Jamil appealed to this Court and succeeded as the case was remanded by con sent to the Notified Officer on 9th October, 1984, for determination of the following two questions: "(1) Whether an application had already been made by the appellant and had been pending for transfer of the brick-kiln, and
(2) What was the size of the brick-kiln, constituting the industrial concern, allotted to the appellant."
27. ' The report has been submitted and it appears that the brick-kiln exists on Khasra No. 246 which stood allotted to Muhammad Jamil on 9-1-1950, and an application seems to have been filed by Muhammad Jamil as an industrial concern. There is dispute as to the actual area of the brick-kiln in Khasra No. 246 and so also as to whether any portion of the brick-kiln in Khasra No. 246 is included in the notification dated 3rd May, 1973. In the context of these facts, the entitlement of the legal representatives of Muhammad Jamil is yet to be determined.
28. ' In the context of all these facts, we would allow the appeals but subject to the right of the appellants in regard to the brick-kiln in Civil Appeal No. 53 of 1973. There will be no order as to costs.