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Writ Petition No. 475 of 1979, decided on 9th March, 1980.

----S. 2(2)--Allotment of land--Effect of repealing laws--Allotment of land in lieu of verified claim, as per S.2(2) of Act XIV of 1975, held, had to be disposed of under repealed provisions of settlement laws.

---S----8--Constitution of Pakistan (1973), Art.199--Evacuee trust property--Status--Determination of--Proper forum--Question whether certain evacuee property was attached to charitable, religious or educational trust or institution or not, held, was within domain of Chairman of Evacuee Trust Board to decide--High Court, held, would not decide status of land one way or other, in its constitutional jurisdiction.

Ch. Muhammad Rafique Khan for Petitioner.

Fazal-e-Hussain for Respondent (E.P.T. Board.)

Nemo for the remaining ,respondents.

Date of hearing: 9th March, 1980.

Petitioner, as a displaced person from village Kundula Kalan, Tehsil Phalwar, District Jullunder was allotted land on temporary basis in 1947, in village Thakra Tehsil Dipalpur, District Sahiwal. He filed six claim forms from village Thakra for the land abandoned by him in India. His claim forms were still pending verification with the Central Record Office when the land held by him on temporary basis was allotted to one Rehmat Khan, another claimant, at Khata Nos. 32 and 33 of R.L.II. The petitioner filed appeal against these allotments which was accepted by the Additional Rehabilitation Commissioner, by order, dated 28-12-1954. Subordinate authorities were directed to reserve 75 of the area under temporary allotment of the petitioner till the verification of his claims. .

2. No land was verified, in the filed by the petitioner. This, statedly was because area abandoned by him was verified on some other claim. The petitioner thereafter faced a long drawn litigation, fully disclosed in the petition. His claim, ultimately, was verified on 30th April, 1975. It is alleged that after the verification of the claim; when the petitioner approached the District authorities for implementation of order, dated 28-12-1959, he learnt that the land under his temporary allotment had been confirmed to respondents Nos. 1 to 7, Khata No. 26/10/8, in lieu of the claim form of their predecessor Lakha Khan. This was by order of Assistant Rehabilitation Commissioner, dated 10‑10‑1954. As by then the settlement laws had been repealed, the petitioner was left with no remedy in the hierarchy of Settlement Courts to assail the order of allotment made in favour of respondents Nos. 1 to 7. The same order is called in question in this constitutional petition.

3. Petition against respondents Nos. 1 to 7 was dismissed, vide order of this Court, dated 12‑5‑1979 and was admitted to consider the question if the petitioner could be allotted some available land as his case would be deemed to be pending for all these years, relevant portion of the admitting order is reproduced for facility of reference:‑

"2. As regards the allotment of the reserved area made in favour of respondents Nos. 1 to 7 predecessor‑in‑interest admittedly sometime in the year 1958, it is not possible after 21 years to disturb them in their settled position. Consequently, the writ petition against them is dismissed. However, the petitioner is prima facie entitled, to allotment of the land in lieu of his verified claim and this has not been done by the respondent public authorities concerned on account of their indifferent attitude. The petition is admitted against them. Let a notice be issued to the respondents Nos. 8 to 11...."

It may be noticed, that the petitioner had then pointed out that an area measuring 116 Acres was available for allotment in village Mattanwala and the same can be allotted in satisfaction of his claim.

4. As the status of the area available for allotment was in dispute, I sent for Mr. Fazal‑e‑Hussain, Advocate, counsel for the Evacuee Trust Board, to assist me in the case. Departmental authorities also sent a report in this regard.

5. In the report, it is not disputed that the petitioner is entitled to the allotment of some available area as his claim form remained pending satisfaction for all these years. It is, also, not disputed that some area was reserved for him which was later on allotted to respondents Nos. 1 to 7. I am, therefore, of the view that the case regarding allotment of land in lieu of his verified claim, as provided in section A 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, shall have to be disposed of under the repealed provisions of the settlement laws.

6. Assistant Commissioner has forwarded copy of his letter, dated 6‑4‑1976, addressed to the Chief Settlement and Rehabilitation Commissioner, Punjab, Lahore to this Court. In this letter, he has, by way of second _ alternative, recommended the petitioner's case for the allotment of land out of the area available in village Mattanwala. The relevant portion of the letter reads thus:‑

"Secondly the petitioner has prayed in his application that an evacuee land measuring 116 Acres is avttilable in village Mattanwala which should be allotted to him in lieu of his pending claims. In this respect it is submitted that the land applied for allotment is entered in Khewat No. 2 of village Mattanwala. Out of this Khewat an area of 92 Acres 5 Kanals and 13 Marlas captioned as evacuee land had already been allotted to Nur Muhammad, etc. the legal heirs of Wahat claimant had already been made. This land was under the custody of the District Trust Board, Sahiwal. The Honourable High Court in decision of a Writ Petition No. 1633 of 1966, decided on 23‑8‑1974 has held that the land situated in Khewat No. 2 of village Mattanwala is evacuee land and is available for allotment to refugee claimants. The land measuring 116 Acres sought for allotment by the present petitioner is also, covered by the decision of the Honorable High Court, dated 23‑8‑1974. This portion of land is now under the custody of Evacuee Trust Board, Sahiwal, who has further sublet it to the lessees. The position of the both the Khatas is explained. I think the later Khata which is in the control of Trust Board needs clarification by your honour or other competent authority to assign it evacuee one. Under these circumstances the application of Sardar Muhammad Chatta and others supporting documents is returned herewith for necessary direction."

7. Mr. Fazal‑e‑Hussain, ‑Advocate, learned counsel for the Evacuee Trust Board, took me through the judgment of this Court, dated 23‑8‑1974, given in W.P. 1633 of 1966. Another judgment, dated 24‑9‑1979, in W.P. 585‑R of 1977 relating to Khewat No. 1, in the same village, was also brought to my notice. Under the latter judgment, it has expressly been held that area in Khewat No. 1 is Evacuee Trust property. In the earlier judgment, the order treating the area in Khewat No. 2 as Trust Property was set aside as the allottee in the case was not heard. It was, however, observed:‑

"But this does not and cannot preclude the competent authorities .to hold a regular enquiry into this dispute and pass any fresh order warranted by the law in this connection."

8. The latter judgment, therefore, cannot be used as a precedent to hold that the entire land in Khewat No. 2 belongs to the evacuee pool. It is not disputed that the area now available is under the management of Evacuee Trust Board. There is, therefore, a bona fide dispute regarding the status of this land. Under section 8 of Evacuee B Trust Properties (Management and Disposal) Act, 1975, if a question arises whether an evacuee property is attached to a charitable religious or educational trust, or institution or not, it shall be decided by the Chairman. In these proceedings it is not possible for me to decide this question finally, one way or the other. If the petitioner is keen to obtain allotment of the available area in village Mattanwala, he can approach the Chairman of the Evacuee Trust Board, for a declaration in this regard. However, in the circumstances, I am inclined to hold that the petitioner notwithstanding the repeal of evacuee laws is entitled to the allotment of land out of available evacuee areas, available in the estate or in some adjoining estate. This petition, therefore, stands, disposed of with the above observations.

There will be no order as to costs

H.B.T Order accordingly

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