' IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the judgment dated 11-7-1995 passed by the Lahore High Court in Writ Petition No,103-R of 1995.
2. The leave granting order reads thus:- "The respondent Rafaqat Ali claimed, in his petition under Article 199 of the Constitution, that he was entitled to the land in question by virtue of the first proviso of section 3 of the Evacuee Property and Displaced Persons Laws. (Repeal) Act, 1975. His petition was accepted and the learned Judge in.
The High Court directed the Chief Settlement Commissioner 'to sell the disputed land in favour of the petitioner....Keeping in view the second proviso whereby he is only entitled to the area which does not exceed subsistence holding withim the meaning of Land Reforms Regulation, 1972'.
2. Learned counsel for the petitioner, Member, Board of Revenue, Punjab, refers to the first proviso to section 3 of the Act of 1975 to point out that proviso applies to agricultural land. He also refers to a notification, dated 16th May, 1973 issued by the Chief Settlement and Rehabilitation Commissioner in exercise of powers conferred by clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958 to show that ' all the available evacuee urban land' in all the Revenue Estates situated within the Urban Limits of a Municipal Corporation, Municipal Committee, Notified Area Committee etc. Were declared ' as building sites, for disposal under section 13 of the said Act'. His contention is that the effect of the notification was that the land in question could not be treated as agricultural land and the first and second proviso to section 3 of the 1975 Act were wrongly invoked and applied.
3. Leave to appeal is granted to consider this contention."
3. Mian Qamaruddin, learned counsel for the appellant reiterated the plea raised in the leave granting order and heavily relied on the case of Muhammad Ramzan v. Member (Rev.)/ C.S.S. And others (1997 SCM R 1635), in support thereof. Mr. Abdul Rahim Qazi, learned counsel for the respondent assisted by Mr. Khaldi Ahmed Ansari also placed reliance on the case of Muhammad Ramzan (supra) in support of the impugned judgment passed by the High Court. The main thrust of argument of Mr. Abdul Rahim Qazi, was that the land in dispute being rural agricultural land situated in Mauza Harbansupra, Lahore, the Notification No,1697-73/1567-R(L), dated 16-5-1973, issued by the Chief Settlement Commissioner declaring "available evacuee urbanland" as "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958, is not applicable in the instant case, inasmuch as, it deals only with urban agricultural property and not rural agricultural property. He further submitted that the Notification in question deals with only those cases where such land is to be allotted against agricultural land claim whereas in the present case, the claim is based on possession under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter called the Act XIV of 1975) and falls for disposal under Scheme for Management and Disposal of Available Urban Properties, 1977 (hereinafter called the Scheme, 1977).
4. We have heard the learned counsel for the parties at some length, perused the material available on record and have also gone through the judgment rendered by this Court in the case of Muhammad Ramzan (supra). It is an admitted fact that the Chief Settlement and Rehabilitation Commissioner, Punjab exercising powers under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, has vide Notification dated 16-5-1973, declared all the available evacuee urban land including such areas which had not yet been confirmed to any person against verified Produce Index Units, located within urban limits of Municipal Corporation, Municipal Committee, Town Area Committee, Small Town Committee, Sanitary Committee or Cantonment throughout the Province of Punjab as "building sites". It is also an admitted fact that when the evacuee laws were repealed by the Repeal Ordinance, 1974 followed by Act XIV of 1975, the evacuee Urban land in all the revenue estates situate within the urban limits of Municipal Corporation in the Province of Punjab were declared "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958. Thus, visualized, upon repeal of the evacuee laws, only pending proceedings or those cases decided by the High Court or Supreme Court, after such repeal, which had been remanded to any such Authority, in the absence of such repeal, were to be remanded to the Notified Officer concerned and required to be disposed of in accordance with section 2 and subsection (3) of section 2 of Act XIV of 1975.
5. Section 3 of Act XIV of 1975 provides that all properties both the urban and rural including agricultural land than other those properties attached to charitable, religious or educational institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the laws or which may become available for disposal after such repeal, as a result of final order passed under subsection (3) of section 2 stood transferred to the Provincial Government on payment of price and in case of urban property, a Scheme of their disposal was to be prepared by the Provincial Government and rural properties were to be disposed of by the Board of Revenue under a Scheme to be prepared by the Provincial Government. It is further provided therein 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 the land but only that much land shall be offered to such person as does not together with the land already held by him, exceeds a subsistence holding within the meaning of Land Reforms Regulation, 1972. The other provisions relating to allotment to a displaced person from Jammu and Kashmir State are not relevant for deciding the controversy in hand.
6. Reference may also made to (PLD 1977 Punjab Statute page 62) to show that the Government of Punjab prepared a prescribed scheme for the Management and Disposal of Available Urban Properties. Reference may also be made to PLD 1985 Punjab Statutes page 6, which shows that certain provisions of the scheme were amended in 1984. Chapter 4 of the Scheme relate's to Disposal of Available Properties. Paragraph 6 of the Scheme deals with transfer of house, shop and building site having construction. The term "available property" is defined vide paragraph 1 (C) as under:- " ' Available Properties' mean houses, shops building sites, hotels, Industrial concerns and cinema house (whether allotted by the Industries Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may thereafter become available for disposal but do not include properties attached to charitable, religious or educational trusts or institutions."
' The term "Building Site" is defined in paragraph 1 (d) which reads thus: ' 'Building Site' means any vacant plot of land which is not within a well-defined compound of a permanent building and includes:-
(1) a site on which the permanent construction, if any, does not exceed in area by 1/8th of the site;
(ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity."
' In the case of Muhammad Ramzan (supra) this Court exhaustively discussed the scope of the Notification dated 16-5-1973 and declared that on the promulgation of the Notification, dated 16th, May 1973, no agricultural urban land existed or was available for Disposal and that when the Act XIV, 1975 became operative there was no land available for adjustment against Produce Index Units. Mere fact that some matters regarding adjustment of specified land, were under consideration or had not been carried out, would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units. In the case of Muhammad Ramzan (supra) the dicta laid down in the cases of Bashir Ahmed v. Punjab University Academic Staff Association (1991 SCM R 377), Syed Saifullah v. Board of Revenue, Balochistan through Member (RJT)
(1991 SCM R 1255) and Member Board of Revenue, Punjab (Settlement and Rehabilitation Wing)
Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa (1993 SCM R 732), were reiterated that the Chief Settlement Commissioner was competent to issue notification for converting agricultural land into building sites and consequently, Notification dated 16-5-1973 was valid, therefore, on the issuance of said Notification every agricultural land which had not been adjusted, allotted, or utilized till then against verified claim ceases to be available for such claim. It is further held that the Act XIV of 1975 became effective from the first day of July, 1974, therefore, the status of evacuee property as existed on such date could not be changed or converted subsequent to promulgation of said enactment. It was further held that the Notification dated 16-5- 1973 was executory in nature and became operative immediately on its issuance and this had the effect of converting unutilised agricultural urban in entire Punjab to be building site.
7. As to the contention that the property in dispute was rural agricultural land, suffice it to say that, there is nothing on record to show that the property in dispute located in Harbanspura, Lahore, was not a part of urban agricultural land to answer description of "available property". In any event, this disputed question of fact cannot be raised for the first time in these proceedings. Clearly, with the repeal of evacuee laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it, therefore, its disposal had to take place according to the relevant Scheme framed by the Provincial Government in the year, 1977, as amended in 1985. We are fortified in taking this view which is in accord with the dicta laid down in the case of Syed Saifullah (supra).
7. In view of the above, we allow the appeal and set aside the impugned judgment dated 11-5-1995 with no order as to costs.