MUHAMMAD HAMZA AND Others vs MEMBER, BOARD OF REVENUE AND Other
This matter arises from a petition challenging an order concerning the land allotment of Muhammad Bakhsh, the predecessor-in-interest of the petitioners and respondents, originally made in 1954. The core legal question is whether certain land could be treated as evacuee property and whether the Provincial Government had the power to declare it as such. The Supreme Court of Pakistan held that the Punjab Government lacked the authority to declare any property as evacuee property, as such a power exclusively vested in the Custodian. Consequently, the petition was dismissed in limine, affirming the High Court's view that the ownership of the land continued to vest in the Provincial Government while only the occupancy rights pertained to the evacuee interest. The key principle laid down is that the Provincial Government cannot unilaterally declare property to be evacuee property without a determination by the Custodian.
- Whether the Provincial Government has the power to declare a property to be evacuee property?
- Does an evacuee interest confined to occupancy rights vest ownership in the beneficiary?
- Can a notification by the Provincial Government override the statutory requirement for declaring evacuee property?
ORDER
MUSHTAQ HUSSAIN, J.-Muhammad Bakhsh the predecessor-in-interest of the Petitioners and respondents was allotted land in Chak No. 691/G. B. Measuring 201 kanals and 10 marlas in 1954.
Soon after the allotment he died on the 12th of June of the same year and a mutation was duly entered. By a subsequent mutation Muhammad Hamza etc. Purchased the shop of Fatima and Amir Bibi. The heirs of Fatima and Amir Bibi- filed an appeal and the matter went up to the Member, Board of Revenue, who found that the land belonged to the Provincial Government as the evacuee was only a tenant and consequently Muhammad Bakhsh, the predecessor---in-interest of the ladies, was the beneficiary of the tenancy only and the ownership in the land could not have been transferred to him. In the writ petition the High Court found :- "It is not disputed as a fact that at the time of partition the evacuee interest in this land was confined to the occupancy rights, the owner--ship at that time and even subsequent to it continued to be that of the Provincial Government.
On that view of the matter only to the extent of interest of the evacuee and not beyond the property vested in the Custodian."
2. The petitioners have contended that by a Notification issued on 4-7-1952 and reproduced at page 18 of the file all grants irrespective of whether a payment has been made or not for acquisition of property or occupancy rights should be treated as evacuee property for the purposes of Rehabilitation Settlement Scheme.
3. This does not advance the case of the petitioners as the Punjab Government did not have the power to declare a property to be evacuee property. It could be done only by the Custodian and this has not been done so in the present case. We do not take exception to the order of the High Court and dismiss this petition in limine.