This Constitutional petition is filed by the petitioner Rafaqat A.I s/o Taj Din for a direction that the land measuring 80 Kanals consisting of Khasra Nos. 1488, 1489, 1493, 1494, 1499, 1500, 1504, 1505, 1506 and 1511 as shown in Khasra Girdawri, Annexure: 'A', be ordered to be transferred in his favour under first proviso to section 3 of the Displaced Persons Laws (Repeal) Act, 1975. According to the Khasra Girdawri, M/s. Taj Din and Muhammad Shafi sons of Nawab Din were in possession of the disputed land whereas the present Constitutional petition has been filed only by Rafaqat A.I s/o Taj Din and not by Muhammad Shafi or his legal heirs, one of the co-occupants.
2. The following is the prayer in the writ petition:-- "Under the circumstances it is respectfully prayed that a writ, direction or order be issued to the respondent to sell the land in question to the petitioner under section 3 of Act XIV of 1975."
3. The first and foremost question arises as to whether the petitioner, as son of Taj Din, is entitled to the transfer of disputed land under the relevant provision aforementioned. The law is well-settled in
(I) PLD 1978 SC 266 "Shah Nawaz and others v. Member, Board of Revenue", (II) PLD 1980 SC 214 "Rahmat A.I v. Settlement Commissioner", (III) PLD 1978 Lahore 912 "Abdul Majid v. Deputy Settlement Commissioner", (IV) 1994 CLC 2299 "A.I Muhammad v. M.B.R./C.S.C., (V) 1987 SCMR 1240 "Lt.-Col. (Retd.) Munir Hussain v. The Chief Settlement Commissioner" and (VI) detailed judgment dated 1- 6-1994 in Writ Petition 154-R of 1990 delivered by my learned brother Mian Allah Nawaz, J. In the aforementioned case-law, it is laid down that if the writ petitioner is in occupation of the land continuously for four harvests immediately preceding Kharif 1973, he has the statutory right to claim transfer under the aforementioned provisions. Khasra Girdawri in the present case unmistakably shows that the land was in possession of Taj Din and Muhammad Shafi sons of Nawab Din. Predecessor-in-interest of the petitioner, therefore, fulfils the statutory conditions and as such the petitioner is entitled to the disputed land.
4. First proviso to section 3 is as under:- "Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land."
Thereafter, the second proviso is as follows:-- "Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation 1972."
5. In 1987 SCMR 1240 referred above, the Chief Settlement Commissioner ordered that the case of writ petitioner in this case be examined under section 3 and finally the Hon'ble Supreme Court held as follows:-- "We would, therefore, convert this petition into an appeal and hold that Ch. Muhammad Akbar and Ch. Rahmat A.I (who were vendees mentioned in the order of the Settlement Commissioner) shall be transferred land in the terms of the first proviso of clause (b) of subsection (1) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975), while Isa, Anwar and Mst. Mahmooda, who were not vendees on the date when the order dated 6-7-1971 was passed but are the further vendees of Ehsanullah (who undoubtedly was present before Mr. Mahmood Sadiq), shall be entitled to the transfer of the land to the extent to which their vendor Ehsanullah was entitled. Similarly, the three informants, namely, Lt-Col. Munir Hussain, Lt.-Col. Nazir Hussain and Major Muhammad Khan (appellants Nos.1, 2 and 10) the informers before Kh. Mahmood Sadiq will be entitled to the satisfaction of their claim pending in Hafizabad Tehsil out of the land which become available after the sale to the vendees, as indicated above. "
6. In this particular case, the petitioner has no contest/competition with the informers and is claiming the benefit of statutory provisions in his own right, therefore, he is entitled to the transfer of disputed land.
7. Report in this case was called for by order dated 27-4-1995, 24-5-1995, 20-6-1995 and 4-7-1995 but the same was not submitted and, therefore, arguments were heard on 11-7-1995 on which date even the report on factual aspect was not available. In this view of the matter, the occupation of predecessor-in-interest of the petitioner as contained in Annexure 'A' Khasra Girdawri relating to the year 1971 onward is presumed to be correct and the petitioner, in these circumstances, is entitled to the transfer of disputed land Rs.100 per P. I. U. As noted in 1987 SCMR 1240.
8. At the time of arguments, learned counsel for respondent half-heartedly, argued that the disputed land has been declared as building site vide notification dated 16-5-1973 under the old law and, therefore, the same is not transferable. Reliance is placed on 1991 SCMR 377 "Bashir Ahmad v. Punjab University Academic Staff Association". Learned counsel appearing on behalf of Settlement Department did not advance his plea forcefully. The facts of the cited case are different.
Punjab University Academic Staff Association was allotted land in this case under section 10(2)(b) of Displaced Persons (Land Settlement) Act, 1958 and in these circumstances it was held that the informer/allottee could not be given the land in question and aforementioned notification was also referred in the following manner:--.
"Mr. Shahzad Jahangir has been heard on behalf of the petitioners, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the notification dated 16-5-1973 declaring the urban lands within the Municipal Limits etc. As 'building sites' no allotment of such lands on the basis of the claimant's units, whether urban or rural, could be made. "
9. While issuing the notification dated 16-5-1973, another notification was issued on the same day and the ban was imposed in the following manner:-- "The Chief Settlement and Rehabilitation Commissioner, Punjab, has issued a notification under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958 declaring all urban land within the Municipal Limits throughout the Province as building sites. As such no further allotments of urban land will be made against any claim. Proposal already made and not confirmed will also stand cancelled. " .
The ban is, therefore, against the allotment as against claim and not otherwise. Petitioner is claiming his statutory right under section 3 of the Act, XIV of 1975 and notification is inapplicable firstly that the land is not being allotted as against claim and secondly that the petitioner fulfils statutory right to claim the disputed land. The plea of learned counsel for petitioner that notification has come to an end after the enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which came into force on 28-1-1975 will be a question to be decided in some other proper case.
For what has been said above, this writ petition is accepted and the MBR/Chief Settlement Commissioner, Punjab is directed to sell the disputed land in favour of petitioner @ Rs.100 per P.I.U., of course, keeping inview the second proviso where he is only entitled to the area which does not exceed subsistence holding within the meaning of Land Reforms Regulation, 1972.
Learned counsel for petitioner as well as that of Settlement Department may be informed of this order by the office.