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Writ Petition No. 114%R of 1973, heard on 28th April 1976.

-- Art. 199-Writ--Objection that petitioners could have challenged impugned orders by means of appeal-Held, cannot be taken at late stage of hearing-Alternate remedy of appeal also not adequate or efficacious-Petition to be disposed of on merits in circumstances of case.-(Writ).

- -Read with Rehabilitation and Settlement Scheme, Pakistan Rehabi litation Act (XLII of 1956) and Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 41-Lands in dispute allotted to evacuees as "Gallantry Awards" prior to Independence-To be treated as evacuee property and disposed of as such-Order of Additional Settlement Commissioner treating such land as non-evacuee and cancelling its allotments earlier made to displaced persons-Held, without jurisdiction and of no legal effect.

The Bank of Bahawalpur Ltd. (Shah Alam Market Branch), Lahore v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another P L D 1965 Lab. 515 and Muhammad Alarn Khan and 3 others v. Mahmood Ahmad arid 2 others 1974 S C M R 92 ref.

-- S. 41-Question as to whether certain property was "evacuee" or "non-evacuee"-To be referred to Custodian for decision-Addi tional Settlement Commissioner has no jurisdiction to determine such question.-[Jurisdiction].

Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others P L D 1971 S C 779 ref.

Ch. Riast Ali for Petitioner.

Maqbool Elahi Malik for Respondent.

Date of hearing : 28th April 1976.

This order will dispose of Writ Petitions Nos. 114/R/73, 115/R/73, 116/R/73, 117/R/73, 118/R/73, 119/R/73, 120/R/73 and 136/R/73 alongwith Writ Petition No. 353/R/75 as these involve similar questions of fact and law.

2. Facts leading to the first eight, petitions are that one Pira Singh was given a Gallantry Award and granted land measuring 124 kanals 6 marlas, bearing Killas Nos. 20, 21, 22/1, 22/2, 23, 24, and 25/1 of Square No. 24 Killas Nos. 3/2, 4/2, 5 to 7. 4/1, 15/2, 4/1, 8/2, 2, 9, 16 and 25 of square No. 26, situated in Chak No. 275/R B, Tehsil and District Lyallpur, vide memo. No. 2679 dated 2nd December 1946 issued by the Collector of Lyallpur District and a mutation No. 234 was, accordingly, sanctioned in his favour by the Assistant Collector Grade 11 on 18-3-1947. He evacuated to India at the time of Independence. Out of the aforesaid land, Killas Nos. 14/2, 1 5/1 and 16 of square No. 26 were allotted under the Rehabilitation and Settlement Scheme prepared under the Pakistan Rehabilitation Act of 1956, in favour of a displaced person Ziauddin in lieu of his claim on 11-10-1954 who sold the same by a registered sale deed No. 1506 dated 10-5-1963 in favour of the petitioners in the first petiti an and mutation was sanctioned in favour of the petitioners on 3-8-1963. Killas Nos 4/2, 5, 6, 7, 8, and 15 of Square No. 26 were allotted to Mohammad Aaim Khan, Mohammad Azam and Muazzicn Khan son of Mohammad Akram Khan on 11-10-1954. Mohammad Azim sold his share of land of 2 kanals 3 marlas situated in Killas No. 8/L of Square No. 26 vide Mutation No. 772. Mohammad Azam sold his share situated in Killa No. 8/3 by mutation No. 713 and Muazaim Khan also sold his share of 41 kanals 3 marlas comprising of Killa Nos. 4, 5, 6, 7 and 15/2 of square No. 26 in favour of the petitioner in the second petition. Killa No. 3/2 of square No. 26 measuring 2 kanals 11 marlas was allotted to the petitioner in the third petition on 13-2-1954. Killa No. 22/1 of Square No. 24, the land was allotted to the petitioner in the fourth petition. Killas 20,21 of square No. 24 were allotted on 15-10-1955 to the petitioner in the fifth petition. Killa No. 9 of square No. 26 and a part of Square No. 24 was allotted on 28.4-1953 to the petitioner in the sixth petition. Killas Nos 22/2, 23 and 24 of square No. 24 were allotted to the petitioner on 9-1-54 in the seventh petition and similarly Killa No. 25 of Square No. 26 was allotted to the petitioner on 13-2-1954 in the eighth petition in the series. In the last petition i. e. Writ Petition No. 353/R/73, like Piara Singh, Havaldar Sher Singh was given a Gallantry Award on 5th of February 1947 and granted land situated in Killas Nos. 5 to 15, 16/1, 17/1, 17/2, 19/2, 18,20,22/1, 23/2, 22/2, 23/2/1, 24/2 and 25/2 of square No. 52 measuring 167 kanals 19 marlas in Chak Nos. 644 G B Tehsil and District Lyallpur. A mutation was sanctioned in favour of the grantee bearing No. 139 on 27-3-1947. From the aforesaid grant of Havaldar Sher Singh, the fourteen petitioners were allotted, in lieu of their verified claims, small pieces of land mentioned in first paragraph of the Writ Petition on various dates.

2. Sometime in 1969/70, Governor's Inspection team appears to have visited Lyallpur and its inspection note stated that the grants made in favour of the evacuees could not have been allotted to displaced persons and, consequently, under the directions of the Board of Revenue, the Colony Assistant/Collector, Lyallpur filed applications under section 11 of the Displaced Persons (Land Settlement) Act, 1958 before the Additional settlement Commissioner. The later officer vide his order dated 3-8-1970 in respect of the first set of petition on and dated 19-8-1970 in respect of the least mentioned Writ Petition set aside the orders of allotments in favour of the displaced persons holding that the properties have not been treated as evacuee properties prior to 1-1-1957 and consequently, could not have been held under allotment by the displaced persons. The latter challenged the order of the Additional Settlement Commissioner by means of Settlement Revisions in the High Court in the first instance as the orders had been passed by the Additional Settlement Commissioner in exercise of delegated powers of the Chief Settlement Commissioner. While these petitions were pending, Ordinance 1 of 1972 came into force under which the impugned orders became challengeable in appeal before a Settlement Commissioner and, therefore, the Settlement Revisions were rendered incompetent. The matter came up before a learned Division Bench of this Court consisting of my learned brothers Mr. Justice Dr. Nasim Hassan Shah and Mr. Justice Mohammad Siddiq. A request was made that tire orders passed by the Additional Settlement Commissioner were without jurisdiction and Writ Petitions against the same would be competent notwithstanding the remedy by way of appeal. The learned counsel prayed for permission to convert the Settlement Revisions into Writ Petitions by making up the deficiency in the court-fees. The prayer was accepted by the learned Division Bench vide order dated 9-1-1973. The petitioners made up the deficiency in the court fees and these matters were treated as Writ Petitions. Nobody has challeng ed this order and that holds the field. Thus, the matters have come up as Writ Petitions.

3. The fact that the petitioners could have challenged the impugned orders by means of appeal cannot be taken at this late stage against the petitioners, besides that in the circumstances the alternate remedy of appeal would not appear to he adequate or efficacious. Thus, these petitions have to be disposed of on their merits. In the first set of Writ Petitions, the only respondent is the Additional Settlement Commissioner, exercising powers of the Chief Settlement Commissioner, who has passed the impugned order. In the last petition viz. Writ Petition No. 353/R/73, besides the said Officer, Board of Revenue is also a party. Mr. Maqbool Elahi Malik, Advocate permanent representative of the Settlement Department which is now under the control of the Chief Settlement Commissioner Member Board of Revenue has appeared. Nobody else has appeared on behalf of the Board of Revenue.

4. The question which calls for determination in these petitions is as to whether the Additional Settlement Commissioner, exercising powers of the Chief Settlement Commissioner under section 11 of the Displaced Persons (Land Settlement) Act, 1958. could pass the impugned orders. Mr. Maqbool Elahi Malik, Advocate, has submitted that the said officer exercises jurisdiction to determine the validity or otherwise of land forming part of Compensation pool and if the property does not form part of the Compensa tion pool, the officer has no jurisdiction. He has pointed out that the learned Officer had taken it that the property was not an evacuee property, having not been so treated prior to 1-1-1957, therefore, the property would not form part of the Compensation pool and, consequently, the Officer had no jurisdiction in the matter. The only authority competent to declare property as evacuee or non-evacuee is a Custodian. He has referred to Fazal Din and 14 others v. The Custodian of Evacuee Property, Lahore and 21 others P L D 1971 S C 779. In this view of the matter the learned counsel submits that he cannot support the impugned orders.

5. Learned counsel for the petitioners has, of course, happily accepted the submission made by the learned counsel for the respondent. He has, further added that it stands established on record that Gallantry Awards were made in favour of the two evacuees Piara Singh and Havaldar Sher Singh prior to Independence and they were consequently allotted the lands above-mentioned. Mutations were also sanctioned in favour of the grantee. Consequently, rights had come to vest in them. Reliance is placed on The Bank of Bahawalpur Ltd., Shah Alam Market Branch, Lahore v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another P L D 1965 Lah. 515.

On their evacuation, those rights, undeniably became evacuee interests and the same were allotted, in lieu of the verified claims, to displaced persons under the Rehabilitation Settlement Scheme made under the Pakistan Rehabilitation Act, 1956. Therefore, quite clearly the evacuee interests were so treated and dealt with by the Rehabilitation authorities when the allotments were made in favour of the above-mentioned displaced persons. This being so, the learned counsel has contended that the Additional Settlement Commissioner was clearly in error that either the rights of the evacuee a were not evacuee properties, or, the same were not so treated. Consequently, the very basis of his orders is without foundation in fact or law. It is also contended that the learned Officer had no jurisdiction whatsoever to declare an evacuee property as non-evacuee or deal with the same on that basis because the jurisdiction vests exclusively in the Custodian. Lastly, it is contended that the applications by Colony Assistant/Collector under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 were not competent. The proper proceedings could only have been launched before the learned Custodian.

6. From the narration of the facts made above, it would appear that the petitioners were individually allotted small pieces of land, and, before their rights were to be extinguished, it behoved the learned Officer to examine ttie cases with a greater care than he has bestowed. There is no denying and it stands established on record, as -well as admitted in the impugned orders, that the lands above-mentioned were allotted under Notification No. 3358-C dated 22-1I-1944 in consequence of Gallantry Awards to Piara Singh and Havaldar Sher Singh. Mutations were, accordingly, sanctioned in their favour. The observation of the learned Officer that it was directed that the grantee shall take possession and that there was no Rozanamcha Waqiati to the effect that they had taken possession is of not much consequence because the grants had- been made, mutations had been sanctioned and, therefore, rights had corns to vest in the grantees. Whatever those rights were, the same became evacuee interests on the evacuation of the grantees at the time of Independence. These rights were allotted to the displaced persons. These people stepped into the shoes of the evacuee -grantees. Not only the allotments in their favour were validly made and were never challenged in regular proceedings by means of appeal or revision as provided by law and, therefore, by operation of law, the same came to be vested in them absolutely, but also the orders suffer from this infirmity that these proceed on the basis that the lands in question were not treated as evacuee properties prior to 1-1-19j7. This is quite clearly contrary to record. The lands were shown as evacuees in the relevant record, were dealt with as such, and allotments of various pieces of land were made, in lieu of verified claims, in favour of the displaced persons by the Rehabilitation Authorities. Clearly by conscious and overt act, the Rehabilitation Authorities treated these properties (excepting six pieces in Writ Petition No. 353/R/73) as evacuee properties prior to 1-1-1957. Therefore, the finding of the learned Officer to the contrary is a clear misreading of evidence and liable to be set aside on this ground. After the properties had been treated as evacuee properties before 1-1-1957, these could not be treated otherwise after the aforesaid date. In any case, if any person or authority had any qualms or grievance as regards the character of the properties, the appropriate remedy was to approach the Custodian of the Evacuee Property who was vested with the exclusive jurisdiction in the matter. Nobody else or any other authority could act on its own without reference to the relevant law and declare an evacuee property to be a non-evacuee property or vice versa. Consequently, the order of the Additional Settlement Commissioner/Chief Settlement Commissioner declaring the lands in dispute to be non-evacuee properties are without jurisdiction. The learned counsel appearing for him concedes so. If the learned Additional Settlement Commissioner were to be of the opinion that the properties were non-evacuee properties or should be so declared, the question having arisen before him he was obliged under section 41 of the Pakistan (Administration of Evacuee Properties) Act. 1957 to refer the same to the learned Custodian. He had no jurisdiction to determine the same himself. Jurisdiction of all had been expressly excluded in this behalf. Further, reliance may be placed on a judgment of their Lordships of the Supreme Court in the case of Mohammad Alam Khan and 3 others v. Mahmood Ahmad and 2 others 1974SCMR92 wherein reference was made at page 93 to a memorandum of the Provincial Government issued in July 1952 whereby it was directed that all grants of State land to the evacuees shall be treated a3 evacuee properties for purposes of Rehabilitation and Settlement Scheme. Further. their Lordships observed that "the learned Judges of the Division Bench in our opinion rightly came to the conclusion that entries in the successive revenue records clearly showed that the land was in possession of the Rehabilitation Commissioner which made it manifest that the land was "treated" as evacuee property throughout after the original grantee had become an evacuee at the time of Independence. This finding is supported by the entries in the revenue record." Same is the case in these petitions.

7. In this view of the matter, there is no escape from the conclusion that the impugned orders passed by the Additional Settlement Commissioner are without lawful authority and of no legal effect. These are so declared I In the circumstances, the parties are, however, left to bear their own costs.

S. Q. Order accordingly.

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