KHALIL-UR-REHMAN KHAN, J- This judgment will dispose of two constitution petitions (W.P.278-R/86 and 237-R/86) and one civil revision (CR.No.1311/84) as the controversy raised in all the three petitions is one and the same.
2. The brief facts of the controversy are that Muhammad Saleem son of Muhammad Umar, an ex- Army man was allotted evacuee land situated in village Ghaziwal and Jamman, Tehsil Narowal District Sialkot by the Border Area Committee vide orders dated 20.12.1967, 12.8.1972 and 2.9.1972.
Similarly, Jan Muhammad respondent was also allotted khasra No.728/2, now constituted as khasra No.740 measuring 2 kanals 6 marlas along with some other land including land of Khasra No.724 measuring 8 marlas, khasra No.726 measuring 1 kanal 6 marlas and khasra No.727 measuring 2 marlas against his claim on 12.9.1972. The land so allotted was sold by Jan Muhammad to Ghulam Rasul, respondent, who is petitioner in civil revision. Most of the land so allotted is in possession of Government Normal School Narowal, now known as Government College of Elementary Education, Narowal. The students of this institution raised protest against the aforesaid allotments with the result that the then Governor of Punjab intervened and the allotments in the names of the aforesaid allottees were cancelled by the Border Area Committee on 18.5.1973. Muhammad Saleem allotted filed a constitution petition W.P.1542/73) while Jan Muhammad and Ghulam Rasul Tiled Constitution Petition (W.P.1101/73). The other allottees also filed writ petitions, all of which were heard together and were accepted vide judgment dated 25.5.1976 declaring the order of the Border Area Committee inoperative in law.
3. The Headmaster Government Normal Shool, Narowal again submitted an application to the Border Area Committee on 18.8.1977 which after holding the proceedings again cancelled the allotment in the names of the aforesaid allottees vide order dated 2.1,1978. Muhammad Saleem challenged this order by filing a Constitution Petition(W.P.72-R/78) while Jan Muhammad and Ghulam Rasul allottees filed Constitution Petition(W.P.398/R/78).Both the petitions were accepted vide order dated 25.11.1985 and the matter was remanded to the Border Area Committee for fresh decision after due consideration of the evidentiary value, relevance or admissibility of the documents produced during the hearing before the High Court.
4. Ghulam Rasul purchaser from Jan Muhammad allottee filed against the Punjab Province and Headmaster of Government Normal School, Narowal a suit for permanent injunction that the respondents be restrained permanently from interfering in the ownership and possession of the plaintiff over the land comprising khasra Nos.724,726 and 727 measuring 1 kanal 16 marlas in all, situated in the revenue estate of village Ghaziwal located within the limits of Municipal Committee, Narowal and that they be directed to close the two doors which the defendants in the suit have opened towards the land of khasra No.724 of the plaintiff. This suit was resisted by the Province and the Government Normal School and ultimately the Senior Civil Judge, Sheikhupura vide judgment and decree dated 14.6.1984 dismissed the suit recording the conclusion that the allotment obtained by Jan Muhammad the predecessor in interest of the petitioner was cancelled by the Border Area Committee vide its order dated 2.1.1978. The appeal filed by Ghulam Rasul against the aforesaid judgment and decree also failed vide judgment and decree dated 31.7.1984 of the learned Additional District Judge, Sheikhupura. The learned appellate Court observed that the allotment stood cancelled under the order of the Border Area Committee dated 2.1.1978 and the said order was not assailed by Ghulam Rasul and that it stands intact. Ghulam Rasul then challenged this judgment and decree by filing a Revision Petition(C.R.1311/84) under Section 115 C.P.C, in this Court.
5. It may be mentioned at this stage that the order dated 2.1.1978 of the Border Area Committee was challenged by Ghulam Rasul and Jan Muhammad by filing Writ Petition No.398-R/78 in this Court and while admitting it on 29.3.1978 for regular hearing it further directed maintenance of status quo in the meanwhile. This petition ultimately was accepted and the matter was remanded for fresh decision vide judgment dated 25.11.1985 but before that not only the suit but also the appeal had been dismissed by the learned Additional District Judge on 31.7.1984. It may be stated at this stage that the matter remanded vide order 25.11.1985 of the High Court in the a forenoted writ petitions, was taken up by the Border Area Committee which upheld the allotments obtained by the allottees namely Muhammad Saleem and Jan Muhammad. This was so done vide order dated 25.3.1986. This order was then challenged by the Punjab Province and Government College of Elementary Education, Narowal by filing a Constitution Petition (W.P.278-R/86) Muhammad Saleem has filed another petition (W.P.237- R/86) seeking a direction against the Government of Punjab, Border Area Committee, Government College of Elementary Education and the Assistant Commissioner, Narowal to implement and give effect to the order dated 25.3.1986 passed by the Border Area Committee and to deliver immediate possession of the land in dispute to the petitioner.
6. The case of the Government College of Elementary Education, Narowal, is that the land allotted to Muhammad Saleem and Jan Muhammad respondents is in occupation of the school since 1949.
The possession of the school was regularized by making the allotment firstly on 26.5.1956 by 'the Rehabilitation Authority of the land measuring 38 kanals 11 marlas in the revenue estate of Ghaziwal and Jumman and again this very land was allotted by the Border Area Committee vide order dated 28.9.1960.U was contended that the land reserved vide order dated 26.5.1956 was allowed to remain in possession of the school by the Border Area Committee vide aforesaid order dated 28.9.1960 and that this area so reserved and allotted for the purposes of school and being used by the school had the effect of altering the character of the land in question as it ceased to be the 'land' within the meaning of Rehabilitation Settlement Scheme or the Border Area Scheme and as such could not later on be treated as the land disposable under Martial Law Regulation No.9. It was added that the Rehabilitation authorities gave this land to the School for the purpose of school and as it is being used since 1949 as play grounds, roads etc. Such a property goes out of the purview of the Border Area Scheme which scheme envisages allotment of land to the ex-service men for the purpose of cultivation. Learned Advocate-. General further submitted on behalf of the Province and the College that allotment of the land to an institution clearly meant that the same will not be used for agricultural purposes and such an allotment has the effect of altering the character of the property and as such the property in question merits to be dealt with as 'building site* in terms of clause (b) of sub-section (3) section 2 of the Displaced Persons (Land Settlement)Act, 1958. Lastly it was submitted that keeping the requirements of the school which has now grown into a college in view, the land in possession of the college should be allowed to remain with it and that need of the institution in the public interest should be allowed to have precedence over the interest of individuals who are claiming the property not on the basis of any vested right but as an allottee under the Border Area Scheme.
7. Learned counsel for the allottees in reply supported the impugned order by placing reliance on the observations and findings recorded by the Border Area Committee. It was also contended that the allotment chits relied upon by the school are bogus as there is no trace of the orders of allotments either in the record of the Rehabilitation authorities or the Border Area Committee. The findings recorded inter-alia are that there is no provision in M.L.R.9/Border Area Scheme according to which any land situated within the Border Belt could be allotted to a school; that if the school has developed the status of the land in dispute by turning it into play grounds etc. The same alteration was done in breach of the conditions of temporary allotment made in their favour; that any change brought about in the land after allotment in the year 1960 is not relevant as the land is to be allotted and disposed of on the basis of actual use to \which the land was being put on 15.8.1947; that the question to be examined by the Committee is, as to whether or not the allotment made in favour of the respondents is valid and in accordance with law; and that as the allotments have been found to be genuine and in accordance with law, these allotments are upheld and the request of the school for cancellation of the allotments is rejected. It was further observed in the impugned order that the school can have recourse under the law to acquire or purchase the land, if so required.
8. I have considered the respective submissions of the parties. The main plea of the province and the College is that the Rehabilitation authorities have consciously allotted the land though it was an agricultural land, to an institution, which obviously was not to use it for agricultural purpose, hence the alteration in the character of the land so made is to be recognized and thus the property ceased to be the land and hence went out of the purview of Rehabilitation Settlement Scheme or the Border Area Scheme. On the above premises, it was urged that the allotments made to Muhammad Saleem and Jan Muhammad allottees were illegal and without lawful authority. This plea is without merit as, firstly, in 1956 the Assistant Rehabilitation Commissioner could not have allotted or reserved the land in question in favour of the school The Border Area Committee vide order dated 28.9.1960 allotted the land on temporary basis with certain conditions. This order reads as under:- |{ . .. * / *V {{ Urdu text }} In the presence of this condition, any change unilaterally made to alter the nature and character of the land cannot be pressed into service. Moreover it is the actual use to which the land was being put on 15.8.1941 which determines the manner of its disposal and the law applicable to it See Abdul Jabbar V. Settlement Commissioner. Sheikhupura and others (1969 SCM R 114), Shaukat Hussain Rizvi V. Dr. Yar Muhammad Khan and another (P.L.J.. 1974 S.C. 180). The land in dispute admittedly was agricultural land at the time of Partition. Any change unilaterally brought about in violation of the conditions of allotment could not furnish basis for claiming that the land is to be treated as building site and as such transferable under the Displaced Persons (Compensation and Rehabilitation) Act,1958 in view of the provisions contained in section 13 of the Displaced Persons (Land Settlement) Act, 1958. Even otherwise agricultural land which has changed its character cannot be treated as a building site, unless there is such a declaration of treating the land as building site made by the Chief Settlement Commissioner. Admittedly such a declaration in respect of the land in disputes has not been made.
9. In any case the petitioner college cannot seek retention of the land in dispute through allotment from the Border Area Committee as the Martial Law Regulation No.9 of 1959 contains no provision under which land urban or rural situated within the Border Area can be allotted to an Institution e.g. College or school by the Border Area Committee. The question that urban agricultural land falling within Border area also falls within the purview of M.L.R.9 of 1959 and allotments made of such land can be scrutinized by the Border Area Committee stands with the Judgment dated 18.12.1989 in the case of Muhammad Rafique and others v. The Border Area Committee. Lahore and others (Civil Appeal No. 246 of 1987). In this case allotment of urban agricultural land came under scrutiny of the Border Area Committee. After quiting paragraph 10 of M.L.R.9, Mr. Justice Shaifur Rehman, made the observations as under:- In terms of this paragraph, the jurisdiction of the Border Area Committee extended on all evacuee property within any border area, and the provisions of the Rehabilitation Scheme including the Border Area Scheme were to be applied for the purposes of such a scrutiny to all evacuee property within the border belt. By such incorporation of the Border Area Scheme the provisions of the Rehabilitation Scheme notwithstanding paragraph 4-A stood incorporated on the strength of Martial Law Regulation No.9 conferring a jurisdiction and also a test for all allotments made. The limitations and inhibitions contained in the Rehabilitation Scheme itself could not control the provision of Martial Law Regulation No.9. On the contrary, the provisions of Martial Law Martial Law Regulation No.9 subordinated the provisions of Rehabilitation Scheme by its incorporation in Martial Law Regulation No.9. On this view of the matter it is clear that the Border Area Committee had the jurisdiction and it is not the case of the appellants that the requirements of the Border Area Scheme were satisfied when the allotment was made in favour of Mst. Ouresha Kliatoon."
It is, therefore, apparent that even if the allotment order dated 28.9.1960 is genuine and was in fact made still it carries no legal value as neither under Border Area Scheme nor under M.L.R.9 land in dispute could be allotted to the Normal School. The Border Area Committee was, therefore, justified in not recognizing the said allotment and in upholding the allotments of the land in dispute to the respondents allottees.
10. With regard to the question of public interest versus the individual interest and of giving precedence to the college over the allottees, it will be appropriate to take note of the position taken by the respondents allottees during the hearing of these petilions. Muhammad Saleem respondent voluntarily agreed to allow the college to retain bulk of the land out of the land in dispute. The statement in this respect made by Muhammad Saleem reads as under:- "As the land is needed by Government Normal School, Narowal presently known as Government College for Elementary Teachers, Narowal, I am prepared to donate the land of khasra Nos. 621 (measuring 7 kanals 11 marlas) 738 (measuring 8 kanals 16 marlas) and 739 (measuring 11 kanals 18 marlas) along with the land falling under gate and passage leading from the road from khasra No.742 to Khasra No.739. It may be clarified that this gate and road is in Khasra No.743. This offer is subject to the condition that school authorities shall deliver possession of the land of Khasra Nos.728 ,741 land of Khasra No. 743 except under the gate and passage and the land od Khasra No.747 in possession of the school if any."
On 6.3.1990 Muhammad Saleem further added that the offer of donating approximately 29 kanals mad' on 18.2.1990 still stands but the area abetting on the main road to the cxent ol 3 kanals be retained by him and the remaining area which comes to approximate! 15 kanals, after surrendering 29 kanals in favour of the school may be purchased by the Government if so desired or the school by paying reasonable market price. This offer of purchase was, however, not acceptable to the province and the school.
11. Sultan Ahmad son of Ghulam Rasul Purchaser from Jan Muhammad also got recorded his statement on 18.2.1990. This statement reads as under:- "Ghulam Rasul, the original allottee has died. I am his son and hold power of attorney on behalf of other legal representatives of Ghulam Rasul deceased. We are allottees of Khasra Nos.
724,725,726,727 and 740. Out of these Khasra numbers, Khassra No.740 is subject matter of writ petition No.278-R/86 while other Khasra numbers are subject-matter of Civil Revision No.1311/84. On a portion of Khasra No. 725 mosque exists while on a portion of Khasra No. 740 measuring about 2 marlas tube well and bath-room of the mosque exist. We are prepared to forego that much area under the mosque, tube well and bath-room for the purpose of mosque, provided possession of the other land is delivered."
In this statement he expressed his willingness to forego that such area which falls under the tube well,mosque and bath-room for the purposes of mosque provided the possession of other land is delivered. In view of these offers made in the aforesaid two statements, Tehsildar Narowal was directed to hold physical measurement of Khasra numbers of the land in dispute for report as to area in physical occupation of the college and the area of Khasra No.740 under the tube well and bathroom of the mosque. The Tehsildar has submitted report giving sketch along with the measurement of each Khasra number and the position of the possession over the Khasra number in question. This report is available on record as ExA. Muhammad Saleem ultimately offered that as he has agreed to surrender approximately 29 kanals of land in favour of the school, he be further allowed to retain a part of the land towards main road of Khasra No.621 of the revenue estate Jumman. I have considered the question of public interest raised by the learned Advocate- General. Ordinarily public interest lies in abiding by the law and by acting in accordance with law.
This question stands answered by the offers made by Muhammad Saleem and Sultan Ahmad.
These offers are fair and reasonable as these have the effect of leaving with the institution much area for its use free of cost. The land has come under the mosque, tube well and bath-room etc. Has also been agreed to left to the school. These offers are reasonable when looked in the context that the Province itself has not agreed to have the remaining area acquired for the institution by paying its reasonable market price. Even earlier the Education Department did not agree with the school as to its alleged requirement of the entire area. The Board of Revenue has already vide memo No.ll26-80/A(II) dated 11.4.1988 accorded sanction for transfer of 64 kanals 11 marlas evacuee land to the school. In these circumstances the need of the school has been amply met firstly by the Board of Revenue by according sanction to the transfer of the aforesaid land and now by the respondents Muhammad Saleem and Sultan Ahmad in the a forenoted manner. The offers so made should be accepted by the college with gratitude. If more land is needed for any project of the Institution, it should move the Government to have it acquired in accordance with law. On merits, the institution can neither seek allotment under the Border Area Scheme in its favour nor the allotments made in favour of the two allottees can be considered to be illegal. However, Muhammad Saleem and Sultan Ahmad having voluntarily agreed to surrender the land as detailed in their statements, are to remain bound by the said statements. They are, however entitled to take possession of the remaining land from the College.
12. The two constitution petitions, one filed by the Province and the School and the other by Muhammad Saleem are disposed of in the terms that in view of the statements dated 18.2.1990 of Muhammad Saleem and Sultan Ahmad read with report Ex.A, the land offered to be surrendered as detailed in the aforesaid statements should be allowed to be retained by the Government College for Elementary Education, Narowal (Government Normal High School, Narowal) and the impugned order dated 25.3.1986 to the extent of the said land shall not be implemented as against the aforesaid College, It is further declared that the remaining land shall continue to vest in Muhammad Saleem allottee respondent and Sultan Ahmad and others the heirs of Ghulam Rasul the purchaser from Jan Muhammad allottee and they shall be entitled to receive possession of the said land respectively retained by them without any It or hinderance from the College. It is further clarified that if possession of the aforesaid land which is to continue to vest in the aforesaid respondents is not vacated within one month voluntarily, the Assistant Commission, Narowal/respondent shall deliver possession thereof in accordance with law.
13. The revision petition filed by Ghulam Rasul is accepted in the terms that the land of Khasra No 725 and 740 under the mosque, tube well and bathroom etc. As detailed in the statement of sultan Ahmad read in the context of the report of the Tehsildar (Ex.A) will not form part of the allotment ownership of Sultan Ahmad and others while the remaining land allotted to Jan Muhammad and purchased by Ghulam Rasul will be retained and peacefully owned and enjoyed by Ghulam rasul (now represented by his heirs) and the suit for perpetual amendatory injunction shall stand decreed in the above terms. Parties are left to bear their own costs.