MUHAMMAD HISAMUDDIN ANSARI Versus CHIEF SECRETARY, SINDH

IMAM ALI G. KAZI, J.‑‑‑ The petitioner, Mohammad Hisamuddin Ansari, is a displaced person and claimant having migrated to Pakistan from India. On his migration to Pakistan, he obtained a verified claim for agricultural land equivalent to 1598 Produce Index Units and garden land equivalent to 259 P.I.U. He succeeded in getting agricultural land in Taluka Shahdadkot and Ratodero of Larkana District while his claim for garden land remained satisfied. In order to get garden land in satisfaction of his claim he occupied some portion of a garden known as Ghian Bagh in Larkana. He made repeated representations to the Rehabilitation Authorities to allot him garden land in his possession. Ultimately in the year 1962 his request for allotment of that area out of Ghian Bagh was turned down as it was a big garden and was transferred to Larkana Municipality to be used as a public park. He then made representations to the then Prime Minister (Mr. Z.A. Bhutto) and thereafter even assisted Cartial Law Administration to facilitate satisfaction of his remaining claim certain favourable orders were passed by competent authorities to satisfy his such claim in Taluka Karachi. Survey No.21 situated in Deh Bitti Amri of Taluka Karachi District Karachi (East) remained an unallotted evacuee property and he hastened to occupy some of its portion in the hope that his claim could be conveniently satisfied: His repeated representations to various concerned authorities bore no fruit and the Evacuee Laws were repealed.

2. On one occasion in 1974 it appears that the Senior Member, Board of Revenue passed an order that survey Nos.541 and 534 of deh Gujro of Taluka Karachi be allotted to the petitioner. It was subsequently found that the said survey numbers were already allotted to some one else. Thereafter the Additional Commissioner, Karachi recommended allotment of some area out of survey No.21 of Deh Bitti Amri to the petitioner. The sufivey No.21, deh Bitti Amri was being claimed by Aligarh Muslim University Old Boys Housing Society and they started interfering with his possession. The petitioner when he failed to get a formal allotment order of that area, he filed this petition with a prayer to direct the official respondents to allot him the said area.

3. The Aligarh Muslim University Old Boys Housing Society claims that survey No.21 of deh Bitti Amri has been transferred to it. They were not initially made a party in the petition but were joined at their request as one of the respondents.

4. Mr. Shafiullah Siddiqi; Office Secretary of Aligarh Muslim University Old Boys Housing Society filed a counter‑affidavit in reply to the petition.

According to the facts stated therein the said Society had purchased an area of 199.38 acres from certain individuals in deh Bitti Amri in the year 1970‑71. Subsequently, after Scheme No.33 was notified and framed for the purpose of allotting land to the bona ride Societies registered under the Co‑operative Societies Act, 1925 the land purchased by them fell in sections 5‑A, 6‑A, 7‑A and 9‑A of that Scheme. They had also made an application for grant of 500 acres of Government land in that Scheme. The Government of Sindh vide their letter No. 5881/73/6833‑P.I. dated 18‑7‑1973 intimated the Deputy Commissioner, Karachi that an area of 40 acres in K.D.A. Scheme No.33 was sanctioned for allotment to the said Society. The detailed terms and conditions of the allotment and allocation of land according to that letter was to be intimated later on. Yet by another letter bearing No. L.U.I1/15/73‑G(K)‑I dated eligible. 4.1977 whereby the Deputy Commissioner, Karachi was again intimated that an additional area of 40 acres at the revised rate to be fixed by the Government was sanctioned in favour of the said Society. It was clarified that the site allocation of the land will be done later on after the detailed sector‑wise plan of the remaining land was prepared by the K.D.A. The Society also applied that their land purchased from private persons was scattered and that it may be exchanged and consolidated with 80 acres of land granted to them by the Government of Sindh. They started correspondence with Deputy Commissioner, Karachi (East) and the K.D.A., for their such proposal and obtained certain lay out plans.

5. Mr. Ayaz Hussain Ansari, Member, Board of Revenue (Land Utilization) Government of Sindh has Filed his counter‑affidavit. According to him, the petitioner is not entitled to relief claimed by him as his case does not come within the category of pending cases and his claim of garden land equal to 259 PIUs can only cover less than 2 acres of area and not 4.50 acres as claimed by the petitioner. He further contended that area claimed by the petitioner is an area notified to be meant for building sites and such land cannot be granted in satisfaction of claim for garden land. The petitioner, according to him, at best is entitled to cash compensation at the rate of Rs.10 per unit according to the Scheme applicable to his case.

6. Mr. Ahmed Yousuf Ali Rizvi, the Advocate for the petitioner mainly contended that the case of the petitioner for the purposes of satisfaction his claim for garden 'land remained, pending long before the repeal of the Evacuee Laws and, therefore, ought to have been decided on the basis of laws applicable before the repeal. He pointed out certain documents filed by the petitioner particularly the summary dated 22‑10‑1984 prepared by Mr. Altaf Hussain Qadri, Secretary to the Government of Sindh, Land Utilization Department for the Governor and Martial Law Administrator shows that the case of the petitioner was indeed a pending case at the time of repeal of Evacuee laws and required to be decided under the relevant Scheme at that time. The summary is reproduced herein below;

"Government of Sindh Board of Revenue, Hyderabad,

SUMMARY FOR THE GOVERNOR MARTIAL LAW ADMINISTRATOR, 22‑10‑1984.

SUBJECT:‑REQUEST FROM MUHAMMAD HISAMUDDIN FOR GRANT OF URBAN GARDEN EVACUEE LAND IN KARACHI DIVISION

This case relates to the request of Mr. Muhammad Hisamuddin Ansari for grant of urban/Garden Evacuee land in Karachi, in lieu of his verified Garden units which have not yet been satisfied.

2. The facts of the case are that his entitlement for Agriculture land was settled in Taluka Shahdadkot, District Larkana. As regards U.R.V. i.e. Garden/urban entitlement Certificate, Gayan Bagh Larkana was in possession of the applicant against his claim. 1n the meantime this Gayan Bagh was acquired and given to Municipal Committee, Larkana by the Government of Pakistan, Ministry of Rehabilitation. The applicant filed Writ Petition No.568/62 in the High Court. The case was remanded to the Settlement Commissioner, Khairpur. It was held that the claim of the applicant may be satisfied elsewhere provided a Garden land is available.

3. The applicant from time to time made applications to the defunct -Settlement Authorities as well as Ex‑Prime Minister of Pakistan for allotment of land in Karachi in lieu of his Garden land taken forcibly by the Municipal Committee, Larkana.

4. The Chief and Rehabilitation Commissioner (Land), Pakistan under his letter dated 8‑5‑1971 directed the Deputy Commissioner/Additional Settlement Commissioner (Land), Larkana that the claim of the applicant should be settled in his District in the first instance. If, however, it is not possible to satisfy his claim in his District, same may be transferred to another District of Khairpur Division having a surplus Garden area with the approval of the Settlement Commissioner (Lands) of the Division for its satisfaction according to law.

5. The applicant in 1975 made an application to the Ex‑Chief Minister of Sindh for allotment of land in Karachi in lieu of his Garden land taken over by the Municipal Committee Larkana. A decision was taken that he may be given cash compensation in lieu of claim as the Evacuee Laws were repealed. But it was not considered by the Settlement Authority as the case of the applicant was coming within purview of section 2 (2) (3) (4) of the Evacuee Property Displaced Persons Laws Repeal (Act) 1975 whereunder the pending cases of the claims have to be settled by the Board of Revenue, Sindh.

6. The Board of Revenue, Sindh has examined the case of the petitioner in light of decision of Supreme Court as well as Law Department advice and found that his claim is pending one and land to the extent of 4‑20 acres equivalent of 259 P.I. units may be granted to him in satisfaction of his units in District Karachi (East) or (West) from the available Evacuee Agriculture land.

7. A summary is, accordingly, submitted to the Governor M.L.A. Zone through the Chief Secretary for approval/orders on para 6 supra.

(Sd.)

(Altaf Hussain Qadri)

Secretary to Government of Sindh

Land Utilization Department."

Reliance has been placed by him on the case reported as P L D 1979 SC 846.

7. Mr. Abdul Ghafoor Mangi, the Assistant Advocate‑General, Sindh, contended that as no order passed by any of the official respondents had been impugned in the petition and as the case of the petitioner was rejected by the Settlement Commissioner in the year 1964, his claim cannot be considered to be a pending case. At best, according to him, the petitioner is entitled to cash compensation.

8. Mr. Mubarak Hussain Siddiqi, Advocate appearing for Aligarh Muslim University Old Boys Society contended that the case of allotment of land out of survey No.21 of deh Bitti Amri in favour of the petitioner cannot be considered as the said Society has paid the price of the entire land comprised in survey No.21 under orders of the Government. According to him, 80 acres of land was allotted to the said Society under the Statement of Conditions issued by the Government of Sindh (Land Utilization Department) in exercise of their powers conferred by subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912 vide their notification No.869/71‑4083. P.I. dated 22nd June, 1971 published in the Extraordinary issue of the Sindh Government Gazette on 24th .Tune, 1971. The land that was purchased by the Society from private persons was compacted with the area of 80 acres allotted to the Society in terms of Condition No.7 (2) of the said Statement of Conditions. He relied on two letters of Government of Sindh indicating that the said Society was allotted 40 acres of land in the said Scheme and additional area of 40 acres was also allotted to them in the sale Scheme. The allocation of particular land according to both the letters was to be made' later on. Both Mr. Mubarak Hussain Siddiqi, Advocate for the Society and Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General have not been able to produce any order indicating that particular land including survey No.21 of deh Bitti Amri was allotted to the said Society till this date. According to Condition No.7 of the Statement of Conditions referred to hereinabove unit of allotment will not be less than 40 (20) acres or more than 100 acres inclusive of any land the Applicant /Society owns in the Scheme , the said Society according to their own showing already owned an area .of over 199 acres within the Scheme and no Authority under the said Statement of Conditions was competent to allot a single acre to them. The intention of the Government of Sindh to allot 80 acres of land to the Society as, conveyed in the two letters mentioned above remained to be a proposal and none of the Committees constituted under the Statement of Conditions ever scrutinised their applications and recommended allotment of actual land. The said Society is said to have purchased a substantial area of over 199 acres of land which cannot by any stretch of imagination be considered to 1 scattered land. In fact Master Plan Department of the K.D.A. had informed the Society that their land was included in particular Sectors. Exchange of land in a event could only be allowed and other land allotted in lieu thereof in terms provisions made in Condition No.7 (2). The Society has also not been able produce any order passed by the Government of Sindh allowing them exchange and allotting them land in lieu of that land. It seems that under the patronage certain officers in the K.D.A., and Revenue Department the Society was able grab valuable land without any valid orders. It need not be stressed that under Condition No.6 it is the Government of Sindh alone that has been conferred t) power to allot land to any Society within the Scheme. No authority subordinate the Government can either allot land under Condition No.6 or permit exchant under Condition No.7 (2) of the said Statement of Conditions. Under the; circumstances, we are inclined to hold that survey No.21 of deh Bitti Amri or G that matter any other land was never allotted to the said Society. The survey No.21 of deh Bitti Amri continues to be unallotted evacuee land.

9. Mr. K.M. Nadeem, the Assistant Advocate‑General, Sindh during the course of hearing on 25‑4‑1989 stated "petitioner's entitlement to allotment land is not disputed in lieu of Gayan Bagh Property. The only question is whether land is available in district East and West, Karachi for allotment to the petitioner.

10. We are also unable to agree with the contention of Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General Sindh that as no order of any authority ha been impugned in this petition, the petition itself is not maintainable. A High Court under Article 199 (1) (a) (i) of the Constitution can always pass an order directing a person performing functions in connection with the Federation Province or a Local Authority to do anything which he is required by law to do Such a direction can always be issued if an authority either omits to take decision or avoids to decide a matter to pass appropriate orders in accordance with lam We, therefore, direct that the claim of the petitioner in respect of garden Ian shall be satisfied out of land survey No.21 of deh Bitti Amri as far as it may b possible. By following the above course, we are ‑fortified by the guideline indicated in the case reported as P L D 1979 S C 846.

11. We in view of above are inclined to hold that the claim of the petitioner in respect of garden land was transferred for satisfaction in Karachi District a early as 1962 and was pending for satisfaction at the time of repeal of Evacuee laws to be decided by the notified authorised officer under the Scheme the relevant for the purpose. The case of the petitioner as pointed out above was always considered to be a pending case in terms of section 2 (2) (3) (4) of the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. As indicated above, we have also reached the conclusion that survey No.21 of deh Bitti Amri is an unallotted and available evacuee land.

12. In view of above, we allow this petition and direct the respondents Nos. and 2 to direct the notified authorised officer to satisfy the claim of the petitions out of evacuee land comprised in survey No.21 of deh Bitti Amri as far as it may be possible under the Scheme applicable at the relevant time.

13. Before parting with the case as we have noticed that the Society with the active assistance of certain officers of the K.D.A. and Revenue Department succeeded to illegally occupy valuable Government land, we would leave it open to the respondent No. 1 to order or conduct a probe in the matter and take appropriate action against the delinquent officers. A copy of this judgment shall be sent to him.

H.B.T./M‑1165/K Petition allowed.