AISHA BIBI Versus MEMBER, BOARD OF REVENU

The petitioners Mst. Aisha Bibi and Arshad Ali have moved this Constitutional petition praying therein that the impugned order, dated 20‑4‑1986 (Annexure 'C') passed by the respondent Member Board of Revenue, Lahore, may be declared without lawful authority and of no legal consequence.

2. In compliance with the direction issued by this Court, learned counsel for the Member, Board of Revenue as well as the learned Advocate‑General Punjab are present and have been heard. The case of the petitioners is that they are in cultivating possession of the land in question on the target date and as such, they are entitled to purchase the same in accordance with the provisions contained in section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Learned counsel contended that the petitioners did make an application before the respondent for the purchase of the land in question. However, the respondent without looking into the record of the case and without summoning the report from the lower Revenue Court, proceeded to observe that the land in question be disposed of through auction and the petitioners may also participate in the auction. This order was passed by the learned Member, Board of Revenue on 20‑4‑1986. Learned counsel stated that the petitioners have a vested right in the land in question inasmuch as they have made considerable investment in its development. Learned counsel has also placed on record copies of Khasra Girdawaries showing their possession over the land in dispute. The learned Additional Advocate‑General has submitted that the respondent has disposed of the case summarily without determining as to whether the petitioners are entitled to purchase the land in question or not. He stated that the case should be remanded to the respondent with a direction that he should dispose of the case of the petitioners in accordance with law. However, the learned Additional Advocate‑General conceded that the record shows that the petitioners are in cultivating possession of the land in dispute. Similarly, the learned counsel for the Department submitted that the petitioners are in the possession of the land in question but he stated that it is not necessary that the land in question be sold to them. Learned counsel also submitted that a portion of the land in question is occupied by a village pond. He has also stated that the land in question might be used for public purposes.

3. I have heard learned counsel for the parties and perused the record very minutely. I am of the view that the admitted position in the case is that the petitioners are in the cultivating possession of the land in question. It is also conceded by the respondent's learned counsel that the land is still lying undisposed of. The record of the case will reveal that the petitioners approached the respondent with a petition praying therein that the land in question was in their cultivating possession and as such, the same may be sold to them in accordance with law. It may be observed that the respondent summarily disposal of the petition of the petitioners observing that they can participate in the auction of the land in question when the same shall take place. This is not the requirement of law. As stated earlier, the land in question is in possession of the petitioners and the same is still lying undisposed of. The requirement of section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975 is that in such like cases the available land is to be sold to its occupants. This aspect of the case has not all been considered by the respondent.

4. The upshot of the above discussion is that the impugned order, dated 20‑4‑1986 passed by the respondent is declared to have been passed without lawful authority. The petitioners are in possession of the land in question and they are entitled to purchase the same in accordance with the provisions of the law contained in section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975. With this direction, the case shall go back to the respondent who shall proceed in the matter keeping in view the law on the subject and the entitlement of the petitioners and then he shall dispose it of within one month. The result is that the petition is allowed leaving the parties to bear their own costs.

H.B.T./A‑289/L Petition allowed/Order accordingly.