RAJAN BIBI Versus DEPUTY CUSTODIAN OF EVACUEE PROPERTY, LAHORE
This judgment will dispose of two Constitution petitions (W.P. 1‑R‑76 and W.P. 2‑R‑76) as legal questions involved in both these petitions are one and the same. The petitioners in both these petitions are owners of agricultural land subject‑matter of these petitions. The land in dispute in the first petition (1‑R‑76) is 21 kanals 18 marlas comprising khasra Nos. 1206, 1208 and 1121 min, while the land in dispute in the second petition (W.P. 2‑R‑76) is 68 kanals 6 marlas comprising khasra Nos. 519, 616,703,704,705,952,1085,1126, though in the documents the said land has been erroneously shown to be measuring 86 kanals. The land in dispute in the first petition as per entries of the revenue record is part of khata jointly owned by Muslims and non‑Muslims though the khasra numbers in dispute fell in the share of the petitioners but was in cultivating possession of Hazoor Singh, who on partition left Pakistan and became evacuee. The land in dispute in the second petition was admittedly in the exclusive ownership of Muslims namely Shahab Din etc. but the tenants of the land were Hindus who left Pakistan and became evacuees on partition.
2. The petitioners occupied the land in dispute after the evacuee‑tenants migrated to Bharat and the land was thereafter shown in possession of the owners as per revenue record prepared after partition. The land subject‑matter of the first petition was allotted to respondents 3 and 4 vide two allotment orders, dated 13th March, 1972 and 14th March, 1972. The petitioners submitted an application on 9‑10‑1973 under section 22 of the Administration of Evacuee Property Act, 1957, seeking declaration that the land in question was not evacuee property. The land in the second petition was allotted to respondent No.2 in the said petition vide order dated 15‑6‑1966. This land was then sold by respondent No.2 to respondents 3 to 6 vide mutation No.445 in 1966. An application was submitted on 30th November, 1970, and the concerned officer prepared Naqsha Bezabtgi on 2nd February, 1971, for correcting the entries made pursuant to the allotment order but the Settlement Commissioner ultimately held that the petitioners should approach the Custodian authorities for having their rights in the land declared. The petitioners then on 30th March, 1971, submitted an application under section 22 of Act XII of 1957, seeking the usual declaration. Both these applications submitted in respect of the land involved in the two petitions were dismissed by the Deputy Custodian vide order, dated, 24th October, 1975. These orders were then challenged by the petitioners by filing the present Constitution petitions.
3. I have heard the learned counsel for the petitioners and have gone through the revenue record including the revenue record produced by the parties during the hearing. The learned Deputy Custodian in the order impugned in the first petition, returned the finding that the application was barred by time as the same was not submitted within time prescribed by law. It was further held that Hazoor Singh evacuee has been shown in the revenue record in possession of the land in dispute as "Bashara Malkana Bila Malkana Bakhayal Malkiyat Khud" and that these entries in the jamabandi show that Hazoor Singh was in adverse possession of the same and continued for more than 12 years in pre‑partition days and thereby became owner of the same. On the above premises he returned the finding that the illegal possession of the same as claimed by the petitioners, after the migration of non‑Muslims to India, does not at all wash away the evacuee character by virtue of section 3 of the Displaced Persons (Land Settlement) Act, 1958. The conclusion arrived at was that since the unlawful possession by the petitioners after partition was never accepted or approved by the Custodian Authorities and the property remained vested as concealed evacuee property in the Custodian and was available for allotment to the displaced persons against their verified claims, as such the protection available under section 3 of the Act XII of 1957 cannot be claimed in the present case.
4. In the second case the learned Deputy Custodian in the order passed on the same date, returned the finding that the petition under section 22 of Act XII of 1957 was barred by time and as even an application for condonation of delay had not been filed the same cannot be condoned. On merits, the finding returned was that mere entries in the record of the names of the petitioners in the column of ownership do not confer any title or ownership when they were never paid any batai by non‑Muslims till partition. Entry of possession Bashars Malkan Bila Malkana proves the non‑Muslims as owners of the land as they had been paying nothing to the petitioners and on their migration to India the same right stood vested in the Custodian. It was further held that occupation of the land by the petitioners after migration of the evacuees was unauthorised being without permission of the Rehabilitation Authorities under the wrong impression that after the migration of the non‑Muslims the possession automatically reverted to them. The finding thus returned was that the land in question was evacuee property and protection of section 3 of Act XII of 1957 was not available as the possession of the petitioners after partition was never accepted or approved by the Custodian. These two orders of the Deputy Custodian were then challenged in these Constitution petitions.
5. Learned counsel for the petitioners argued that the learned Deputy Custodian illegally held that the applications under section 22 of Act XII of 1957 filed by the petitioners were time‑barred in view of the period of limitation prescribed by rule 13 of the Administration of Evacuee Property Rules, 1950, as these Rules framed under section 46 of Ordinance XV of 1949, cannot be considered to be subsisting at the time of enforcement of Act XII of 1957. He argued that Ordinance XV of 1949 was repealed by Ordinance XVUI of 1956 and the latter Ordinance was then itself repealed by Ordinance XX of 1956 promulgated and enforced on 17th November, 1956, and then Act XII of 1957 enforced on 15th March, 1957, itself repealed Ordinance XX of 1956. The contention raised was that by virtue of section 24 of the General Clauses Act, 1897, the rules framed under Ordinance XV of 1949 'can be deemed to be existing at the time of the enforcement of Ordinance XVIII of 1956 but the effect of deeming clause cannot be so extended as to consider these rules framed under the repealed Ordinance to continue surviving on the repeal of each subsequent legislation. In support of the plea reliance was placed on Harish Chandra v. The State of Madhya Pradesh (AIR 1965 SC 932) but a close reading of this judgment would show that the situation prevailing in the said case was different from the one obtaining in the present case. For the same reason no guidance can be obtained from the observations made in Muhammad Din. v. Nazar Muhammad Khan (PLD 1966 Lah. 780).
6. Section 24 of the General Clauses Act provides that whenever an Act is repealed and re‑enacted a notification under the repealed Act is regarded as a notification under the Act in which the provisions of the repealed Act are re enacted. The fact that the Ordinance or the Act was repealed one after the other would not make any difference as the deeming clause of section 24 would keep the rules or the notifications issued under the repealed Ordinance alive unless it could be shown that under the re‑enacted law the notifications or the rules cannot stand on account of inconsistency with the re‑enacted provisions. Reference may be made to the Crown v. Wali Dad (PLD 1954 Lah. 236) and Umer Hyayat v. Mst. Hayat Bibi (PLD 1958 Lah. 82). Be that as it may, this question need not be pursued any further in view of the other features of the case to be pointed out in the later part of this judgment.
7. The learned Deputy Custodian in the first petition held that Hazoor Singh evacuee who has been shown in the revenue record as in possession of the land "Bashara Malikan Bila Malkana Bakhayal Malkiyyat Khud" was in adverse possession and the same having continued for more than 12 years in pre‑partition days became owner of the same. In the other case, however, the learned Deputy Custodian concluded that the entry of possession "Bashara Malkan Bila Malkana" proves the non‑Muslims as owners of the land as they had been paying nothing to the petitioners and on their migration to India the same right stood vested in the Custodian. The non‑evacuee tenants as such were treated by the learned Deputy Custodian as in adverse possession which matured into ownership. This view of the Learned Deputy Custodian is patently erroneous in law. In the case of Ali Akbar v. Malook (1991 SCMR 829) the ratio of the case Mirza Ghulam Hussain v. Ch. Iqbal Muhammad (CA.395‑75) was reaffirmed. The ratio in the said case was that source of lawful title and adverse possession are contradictory pleas and cannot stand together. Reference was also made to the following observations recorded in Shamshad v. Mukammil Shah (1984 S.C.M.R. 912):
"Learned counsel before us has urged that the entries in the Jamabandis showing the petitioners holding the land "BILA LAGAN SHARAH MALKAN" supported their claim. But there is no force in the contention because the said entries are not amenable to an interpretation that the petitioners themselves were the owners, particularly when in the same Jamabandis the name of Abdur Rahman and thereafter Mst. Pari Jan is duly entered in the column of owner, whereas the names of the petitioners or of their predecessors‑in interest are shown in the column of tenant."
The position which thus emerges is that the petitioners till partition' were recorded as owners while the evacuees were recorded as Ghair Mauroosi tenants paying no rent in view of assertion of certain rights or ownership or Bai etc.
8. The evacuee tenants no doubt as per entries of the revenue record were in possession of the land in dispute as tenants paying nothing for quite some time but on the basis of these entries they cannot claim to be the occupancy tenants. The Rehabilitation Resettlement Scheme Punjab was prescribed by the Rehabilitation Commissioner (Lands) under section 7 (1) of the Pakistan (Rehabilitation) Ordinance, XIX of 1948, in the year 1952. This Scheme was then amended from time to time and the Scheme as amended in May, 1956 contains para 31 providing for the rights of the occupancy tenants and their landlords in prescribed territory and Punjab (Pakistan .Sub‑para (v) of para 31 reads as under:‑
(v) Muslim landlords of non‑Muslim occupancy tenants West Punjab.
The land of Muslim landlords or non‑Muslim occupancy tenants in West Punjab should be treated as evacuee property and allotted on temporary basis to the refugees according to the prescribed scale. In cases where the landlord has taken possession of the land, he should be required to pay rent for the period it has, remained in his possession.
The reference to other sub‑paras of this para would show that the rights which have been recognised are those of occupancy tenants and not of others. Sub para (v) also provides that land of Muslim landlords or non‑Muslim occupancy tenants in West Punjab should be treated as evacuee property and allotted on temporary basis to the refugees according to the prescribed scale. There was no direction to treat the land of non‑Muslims tenants whose rights were not statutorily recognised as rights of the occupancy tenants to be treated as evacuee property and allotted even on temporary basis to the refugees. A reference to para 33 of the Scheme would show that instructions, with regard to the treatment of the claimants in whose Fard Haqiyyat entries of Bashara Malkana Bila Malkan or Bashara Malkan Maa Malkana appeared, were given but no such instructions were issued with respect to non‑Muslim tenants of the land situated in the Punjab (Pakistan). The occupancy tenants under the C Punjab Tenancy Act, 1887, fall into the following classes of occupancy tenants:‑
(1) occupancy tenants under section 5 (1) (a),
(2) occupancy tenants under section 5 (1) (b),
(3) occupancy tenants under section 5 (1) (c),
(4) occupancy tenants under section 5 (1) (d)
(5) occupancy tenants under section 6,
(6) occupancy tenants under section 8.
The non‑Muslim tenants admittedly were not the occupancy tenants of any of these categories and they before migration had not even been declared as occupancy tenants under section 8. However, it cannot be denied that they were possessed of valuable right of tenancy having remained in possession of the land as tenants for quite along period. But mere length of occupancy per se cannot confer the status of hereditary cultivation on a party regarded at settlement as a tenant at will. The loss of the right of the occupancy tenants because of abandonment of tenancy is recognised by section 38 of the Punjab Tenancy Act, 1887. It was in view of this legal position that section 6‑A was added to the Pakistan Administration of Evacuee Property Ordinance, 1949. This section provides that where the occupancy right of any evacuee in any land has vested in the Custodian or where the Custodian has taken possession of such land nothing in any other law for the time being in force shall operate to extinguish such right in the evacuee and neither the evacuee nor the Custodian shall be or shall be liable to be ejected from such land by reason of any default of the Custodian. Again to protect the rights of non‑evacuee tenants provision was made in sub‑section (1) of section 8 of the Pakistan Administration of Evacuee Property Act, 1957, which reads as under:‑
"8(1) Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupancy or tenancy rights, or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights on the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property, and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of‑‑‑
(a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee, or
(b) the Custodian.
(2) ..............................
Section 9 being relevant may also be quoted:‑
"9(1) Where occupancy or tenancy rights have vested in the Custodian and have been allotted as evacuee property, the Custodian may, in any case where the lessor under whom the property was held immediately before it vested in the Custodian is not an evacuee, declare by general or special order, that with effect from such date as may be specified in the order, he shall stand absolved of all responsibilities with respect to the property or the allotment.
(2) On the making of such declaration as is referred to in subsection (1),‑‑‑
(a) the allotment of the evacuee occupancy or tenancy rights shall be deemed to have effect as if granted by the lessor under whom the property was held before it vested in the Custodian and shall continue to have such effect until it is determined by lapse of time or by operation of law;
(b) all sums realised by the Custodian in respect of such allotments before the date of declaration referred to in subsection (1) shall, subject to the deduction of the fee, if any, payable to the Custodian, be payable, to the lessor.
(3). ..............................................
The rights of the tenancy of the kind vesting in the evacuee tenants were thus dealt with in section 8 of Act XII of 1957 and under section 9 of the Act the Custodian has to declare by general or special order the date for which he shall stand absolved of all responsibility with respect to the property provided that the rights have vested in the Custodian and have been allotted as evacuee property. It will, however, be noted that at the time of enforcement of this Act the property had neither been treated as evacuee property nor allotted as evacuee property, as the land in dispute in the second petition was allotted on 15‑6‑1966 while in the first petition was allotted in March, 1972 and the effect of this is required to be examined. Admittedly there is no special order passed by the Custodian m respect of the land in dispute. Learned counsel for the parties were also not able to lay hand on any general order, if any, passed by the Custodian pertaining to the rights in question vesting in the evacuee tenants.
9. The other feature to be noticed is that the petitioners admittedly took over the possession of the land in dispute after migration of the evacuees- tenants on partition. They claimed to be in possession of the land till date though the case of the respondents‑ allottees in the second petition is that they had taken over possession after the allotment. The learned Custodian has held the petition under section 22 of Act XII of 1957 as barred by time with reference to the date of allotment considering the same as the date of treating the property as evacuee property. It may be noticed that there is no formal declaration treating the land in dispute as evacuee property. The date of allotment cannot be considered to be the date of accrual of cause of action as these allotments were made without notice to the petitioners. There is nothing on record as to when allotment orders came to their notice or as to when they were dispossessed. The finding of the learned Deputy Custodian with reference to rule 13 of the Administration of Evacuee Property Rules 1950, is arbitrary as he failed to determine the date when the cause of action accrued to the petitioners. Moreover, the approach given by the learned Deputy Custodian to was misconceived. He proceeded on the basis that the adverse possession of the evacuees matured into ownership in the first petition and in the second petition he was of the view that because of the non‑payment of the Malkana and due to possession for a long period the evacuee tenants had become owners. This view is patently erroneous in view of the discussion and the reasons given above. The Deputy Custodian should have noticed that there was no direction in the Rehabilitation Settlement Scheme for making allotment of the rights in question by treating the land as evacuee property (para 31 (v) refers). Even under section 8 read with section 9 of Act XII of 1957. general or special order was required to be passed by the Custodian. It is also be noticed that in Ordinance XV of 1949, protection was given to occupancy rights of evacuees or rights for a fixed term of years and not to other rights of tenancy enjoyed by the evacuees. The effect of affording protection to tenancy rights or occupancy rights under section 8 of Act XII of 1957 with reference to provisions contained in section 3 of the same Act also requires to be gone into The learned Deputy Custodian was completely oblivious of the questions requiring determination in the applications under section 22 of the Act moved before him. The failure to determine these questions has led to miscarriage of justice.
10. For all these reasons the impugned orders passed by the Deputy Custodian in both the petitions cannot be sustained. The impugned orders arc, therefore, declared to have been passed without lawful authority and hence of no legal effect. The result is that the applications filed by the petitioners shall be considered to be still pending and shall be decided by a Notified Officer whom the power of Custodian. stands delegated and in case there are no special or general orders passed by the Custodian to deal with the situation arising to the case it will be appropriate for the learned Member (Settlement), Board of Revenue to consider the remand matter himself and to pass necessary order in this behalf. Both the petitions stand disposed of accordingly. The parties are left to bear their own costs.
AA/S‑990/L Order accordingly.