1. ' NASIM HASAN SHAH, J.---The facts, which form the background, are that the property in dispute is an urban evacuee land situated within the urban limits of Khangarh Town, District Muzaffargarh.
2. The appellant and a number of other refugees are in occupation of the lands adjacent to the land in dispute, wherein they have raised permanent structures, which stand transferred to them.
3. ' It appears that the aforementioned adjacent land was allotted to the respondents in lieu of thier rural claim. However, this allotment was set aside on 24-3-1970 by the Additional Settlement Commissioner (Land). On further revision, the respondents succeeded in getting this order dated 24-3-1970 set aside by the Settlement Commissioner and the allotment was restored (vide his order dated 5-7-1973). The last mentioned order was thereafter questioned before the Lahore High Court through two Writ Petitions namely W.P. No,1158 of 1974 and W. P. No,710-R of 1973 and these writ petitions were heard together. A learned Single Judge of the High Court vide order dated 18-3- 1980 accepted the said writ petitions on the ground that as the respondents were not in possession of the land they could not have been allotted the same and the case was remanded for decision afresh to the Settlement Commissioner.
4. ' On remand, the Additional Commissioner exercising the powers of the Settlement Commissioner found that the land in question was urban at the time of the allotment and, therefore, it could not have been allotted to the predecessor of respondents Nos.2 to 4 against their claim of rural agricultural land. Accordingly, their revision, which was ordered to be decided afresh by the High Court, was dismissed and it was further ordered that "the land will be disposed of according to the prevailing law". This order by the Additional Commissioner was passed on 5-6-1982.
5. ' Feeling dissatisfied, the respondents moved the Lahore High Court in its Constitutional jurisdiction by filing a writ petition (W.P. No,64-R of 1982). When the writ petition came up for final hearing on 12- 5-1987, a letter of the Board of Revenue dated 2-2-1986 was produced before the Court to the effect "that the land in dispute was found urban by the Deputy Commissioner and the Settlement Commissioner and it will, therefore, be appropriate if the land is offered to the petitioners for sale at an average market rate".
6. ' The learned Judge of the Lahore High Court, taking note of this letter, proceeded to allow the Writ Petition of the respondents and directed the Notified Officer concerned to sell the land to the respondents herein on the market price (at the, rate of Rs,17,467 per acre). The above order dated 12-5-1987 passed by the learned Single Judge of the High Court is impugned before us in this appeal, by its leave.
7. Leave was granted by this Court mainly to examine the question whether the Board of Revenue had any power to sell the land in terms of the letter dated 2-2-1986?
8. ' We have heard Mr. Maqbool Sadiq, learned counsel for the appellants and Rana Abdul Rahim, learned counsel for the respondents.
9. ' It will be observed that all the evacuee laws were repealed as from 1-7-1974. In order to cater for proceedings pending on the repeal of these laws, the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) made some explicit provisions for the disposal of the pending proceedings on the said date vide section 3 of the Act.
10. ' The relevant part of this section is reproduced below for facility of reference: "3. Transfer of property.- --(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal--
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf."
11. ' A scheme under section 3(1)(a) of the said Act, namely, "Scheme for the management and disposal of available urban properties" was, accordingly, framed by the Punjab Government on 31st January, 1977 and para.11 of the said Scheme is relevant which may be reproduced below:-- "11. Sale by auction.-- -A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be disposed of by unrestricted public auction."
12. Thus, according to the prevailing law, the property had to be disposed of by unrestricted public auction. The letter of the Board of Revenue allowing the sale of the disputed land in favour of the respondents on average market price was, therefore, not in accordance with law and could not be acted upon. In giving effect to the said letter, the High Court overlooked this vital aspect of the matter, an omission which has vitiated its order.
13. ' The result is that the impugned judgment of the High Court ordering auction to be taken in terms of the letter dated 2-2-1986 of the Board of Revenue is not in accordance with law and must be set aside. The property in question, under the law, has to be disposed of in accordance with the terms of para.11 of the Scheme of 1977 i.e, through unrestricted public auction and it is ordered accordingly.
14. ' The result is that this appeal succeeds and is allowed in the above terms. In the circumstances, the parties are left to bear their own costs.