' SHAFIUR RAHMAN, J.-- Leave to appeal was granted in all these connected appeals to examine the following questions of law:-
(1) Whether an Intra-Court Appeal was at all competent and maintained in view of the decision of this Court in Mst.Karim Bibi v. Hussain Bakhsh (PLD 1984 SC 344).
(2) Whether the property in dispute was never acquired under section 4 subsection (2) of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act), at no stage formed part of the Compensation Pool and was not, therefore, available for settlement of refugees.
(3) Whether the land in dispute in the absence of a notification under section 4(2) of the Act came to vest in the Provincial Government under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and was available for adjusting the claim of the grantees belonging to the criminal tribes.
(4) The effect of the decision of this Court dated 22-5-1978 in Civil Appeal No, 188/1970 and others on the finality of the decision of the Additional Settlement Commissioner dated 1-12-1966 regarding the evacuee or non-evacuee character of the interest in the light of the decision of this Court in Sahibrai v. The Custodian of Evacuee Property, South Zone, West Pakistan, Karachi (PLD 1957 SC 63).
2. The respondents in these appeals are the Muslim members of the Criminal Tribes who were settled under the Criminal Tribes Act, 1911 in various Colony Chaks. This happened before independence and before creation of Pakistan. Land was also allotted under the same law to non- Muslim members of the Criminal Tribes. In 1948-49, after the non-Muslim grantees had left, according to the respondents' version, the District Administration settled them on the land so vacated by non-Muslim members of the Criminal Tribes in order to consolidate them. According to the version of the appellant, no such formal official settlement of the respondents over land vacated by non-Muslims had taken place but that they had of their own occupied such lands and were in possession of it. In the year 1962, this land was allotted to the refugees. Against the allotment of the land to the refugees and the treatment of the land as evacuee, four Constitutional petitions were filed, which were accepted. Appeals were preferred to this Court (Civil Appeals Nos.
158, 160, 187 and 188 of 1977) and these were allowed on 22nd May,1978, in terms as hereunder:- ' 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.
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. Even otherwise, at best, this matter could have been left to the competent authorities to accommodate the respondents on the holdings presently held by them in the peculiar circumstances of the case. It however, appears to us that the High Court was not at all justified in the exercise of the jurisdiction vested in it under Article 98 of the abrogated Constitution of the Islamic Republic of Pakistan 1962 to pass any original order of the type in these cases. The only proper course open to the High Court was to have remanded these cases to the competent authorities for their decision on all the points in controversy after hearing le parties. It was all the more necessary because in our opinion so far none of competent authorities seems to have passed any order whatever after hearing the respondents and they were all along condemned unheard. For the foregoing reasons we have no alternative but to accept these appeals, set aside the impugned judgment passed by the High Court in all these four appeals and remit these cases to the Collector vested with the jurisdiction for disposal afresh in accordance with law after hearing all the interested parties. But in peculiar circumstances of these case the parties are left to bear their own costs."
3. The notified authority i.e, Assistant Commissioner/Additional Settlement Commissioner (Land)
'Wiwi, after examining at great length, the merits of the claim, passed the following order on 13-12- 1978 concerning the Muslim members of the criminal Tribe.
"In the light of this order the respondents who are affected will be ejected from this land in their possession in accordance with the law now prevalent. However they can be accommodated on available state land in this Chak or in any other chaks reserved for Criminal Tribes if they are found eligible for allotment under Criminal Tribe Scheme. They are therefore directed to apply individually before the undersigned for taking further action in this matter. These respondents have been occupying the disputed land since 1947. So they are to be assessed the rent at the rate of 10 times the land revenue and this money should be collected for depositing in Evacuee Compensation pool under the Rehabilitation and Settlement Commissioner."
4. As this was the final order passed by the notified authority against wich no departmental remedy was available a number of Constitutional petitions were filed in the High Court by the respondents. The learned Judge after examining extensively the law applicable and the claim of the respondents, held as follows:-
(i) "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."
(ii) "The petitioners could prove the valid allotments in their favour, if any, by producing 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 photostat or attested copies of the various lists showing the eligibility etc. Being the secondary evidence as observed by the Supreme Court are not admissible."
(iii) "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 1-1-1957."
(iv) "I find that most of the members of the Criminal Tribes were represented .By Mr. M. Z. Burki, Advocate. The learned counsel had appeared and argued this case before respondent No, 1 on three dates i.e, 18-10-78, 1-11-78 and 2-11-78 and as such it can be safely assumed that the interested parties were fully aware of the hearing of the matter."
(v) 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 12-12-78 have not been impleaded as respondents. They are undoubtedly, the necessary parties."
5. On these findings, the learned Judge dismissed the Constitutional petitions on 22-5-1982. Intra- Court Appeals were filed and all these appeals were disposed of by a consolidated order dated 27- 1-i 9R3. The of an Intra-Court Appeal itself was challenged but it was adjudged to be competent on the following fording:- "Admittedly, no appeal or revision was available against the first part of the order, before any of the authorities, as the relevant law, under which the proceedings were taken, had been repealed and only the pending proceedings, with no incidence of appeal or revision, had to continue. Thus the impugned order would have been appealable only if the appellants had chosen to accept the first part. That they did not do. Consequently, the Intra-Court Appeal is competent."
' As regards the merits of their claim, the following finding was recorded: ' In any case, if due to no fault of theirs and rather to their inconvenience, loss and dislocation, the appellants had been shifted to the present sites, they could not have been ousted therefrom, after a lapse of 30 days when the allotments made to refugee-claimants stood cancelled and the orders never challenged."
' The impugned order of the notified authority was found to suffer from the following two defects:-
(i) "the order of the Assistant Commissioner/Additional Settlement Commissioner (L) is, even otherwise, illegal. The two portions of his order reproduced in para.9 above would go to show that if the land in dispute has yet to be acquired under section 4 of the Displaced Persons (Land Settlement) Act, it was not a part of the compensation pool. How then could it be allotted to refugees in 1962?"
(ii) "In any case, as soon as the Assistant Commissioner /Additional Settlement Commissioner came to the conclusion that the land in question was an evacuee property, it shall be deemed to have vested in the Provincial Government with effect from 1st July, 1975, as there was no subsisting allotment."
' The appeals were allowed, the orders of the Assistant Commissioner dated 13th December, 1978 were declared to be without lawful authority.
6. Mr. Shahzad Jehangir Advocate, the learned counsel for the appellant has contended that all the proceedings have been taken and decisions given without notice to the appellant authorities concerned and without hearing them at any stage. It has further been contended that the Intra- Court Appeals in the High Court were incompetent because the notified authority had passed the order dated 13th December, 1978 under the repealed law i.e, the Displaced Persons (Land Settlement) Act. It was not open to an Intra-Court Appeal on the strength of decision given by this Court in Karim Bibi and others v. Hussain Bakhsh (PLD 1984 SC 344). If that decision of the Appeal Bench is removed from the scene, the decision of the learned Judge in Chamber would remain in the field and that is in favour of the appellants and provides no grievance to them. On merits of the claim also it is made clear that the property had been treated as evacuee at every stage and had been dealt with as such. The orders to the contrary failed to take note of the various acts done in respect of the property by authorities possessed of the power in the matter.
7. Mr. Ashraf Wahla, Advocate, the learned counsel for some of the respondents has pleaded the finality of the order passed by the Additional Commissioner on 1-12-1966 following the judgment of the High Court in the earlier round of litigation wherein the property was held to no non-evacuee, and against which the appeals were allowed by this Court and remand had been ordered. The Additional Commissioner had entertained this appeal under section 7 of the Colonization of the Government Lands Act, read with section 13 of the Punjab Land Revenue Act.
8. Mr. Atta-ur-Rahman, Advocate, the learned counsel for some of the respondents contends that as all the respondents have remained consistently and uninterruptedly in possession of the land since 1949 or nearabout, the land even if earlier treated as evacuee shall vest in the Provincial Government under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the occupants of the land/respondents would be entitled to purchase the same.
9. There is one Appeal Civil Appeal No,371 of 1986, filed by the allottees of the land in occupation of the members of the Criminal Tribe. The judgment of the Appeal Bench of the High Court is sought to be set aside, and to that extent, the cause is common with the other appeals.
10. Ch. Muhammad Farooq, Senior Advocate, learned counsel for these appellants contends that the Intra-Court Appeal was not competent, that the property was rightly treated as evacuee and allotted, among others to his clients.
11. All the learned counsel representing the respondents are more or less agreed that an Intra- Court Appeal was not competent but the only factor pleaded is that till 27-3-1983, when the Appeal Bench of the High Court decided these matters, there was no authoritative pronouncement of this Court in the field and the respondents were bona fide prosecuting their remedy before a forum which was later found to have no jurisdiction in the matter.
12. The remand by this Court to the notified authority was under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the provisions thereof provided that after remand, the proceedings had to be decided afresh finally by the notified authority under the Repealed Law as if that law was still in existence. As the law under which the Assistant Commissioner/Collector, the notified authority decided the matter on 13-12-1978 provided for Appeal, Revision etc. An Intra-Court Appeal was clearly incompetent. On that view of the matter the impugned decision of the Appeal Bench of the High Court is without jurisdiction and of no avail to the respondents. The time consumed in the proceedings cannot said to be bona fide and condonable.
13. On merits too, we find that the respondents had not a tenable claim. The Government of Punjab as the Custodian of State land had by its letter No,523/TH, dated 4-7-1952, notified as hereunder:-- "The Governor of the Punjab is pleased to order that all grantees irrespective of whether the payment has been made or not for acquisition of proprietary or occupancy rights should be treated as Evacuee Property for the purpose of Rehabilitation Settlement Scheme."
' The Rehabilitation Commissioner had in the year 1956 by Circular No,8157- 50/51-53/R, (R), dated 8-12-1956 directed that the area abandoned by non-Muslim evacuee Criminal Tribes who had acquired occupancy rights should be utilised under Rehabilitation and Settlement Scheme, and the allotments were made to the refugees accordingly. The Custodian had in case Abdul Ghani v.
State held on 26-12-1962 that "the land occupied by the non-Muslim 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 purpose". This decision was challenged in the High Court by Writ Petition 37 of 1964 and by a Petition for Leave to Appeal but without success.
This background clearly shows that since 1952 the evacuee interest in State land was treated as evacuee property and had to be dealt with under the Rehabilitation Scheme.
' The objection to the want of acquisition of the unallotted evacuee land under section 4 of the Displaced Persons (Land Settlement) Act is misconceived. The notification under section 4(2) of the Act printed at page 26 of Latif's Commentary clearly shows that "all land as defined in clause (3) of section 2" in West Pakistan was acquired and also the land "already allotted under the West Pakistan Rehabilitation Settlement Scheme prepared by the Rehabilitation Commissioner West Pakistan under section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) with the approval of the Central Government". The definition of land as provided in clause (3) section 2 is as follows:-- "Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land. But does not include;--
(a) Property as defined in sub-clause (b) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956). Or in sub-clause (d) thereof; or
(b) Such evacuee land as may be declared by the Chief Settlement Commissioner as a building site."
' The definition is fairly extensive and exhaustive.
The land in dispute having already been declared evacuee and treated as such, while hearing the appeal under the Colonization of Government Lands Act the Additional Commissioner could not declare it to be non-evacuee or as State land. Such an order could not protect the interest of the respondent whom Mr. Ashraf Wahla, Advocate is representing. The entire land abandoned by evacuee grantees which came in possession of Muslim members of the Criminal Tribes C was covered by the notification of acquisition, treated as evacuee, dealt with as such.
' In view of the foregoing discussion, all these appeals are allowed, the Intra-Court Appeals judgment dated 27-3-1983, is set aside and the order of the learned Judge in Chamber is restored.
No order as to costs.