ALIGARH MUSLIM UNIVERSITY OLD BOYS' COOPERATIVE HOUSING SOCIETY LTD. Versus MUHAMMAD HISAMUDDIN ANSARI

AJMAL MIAN, J. ‑‑‑This is an appeal with the leave of this Court against the judgment dated 10‑5‑1990 passed by a Division Bench of the High Court of Sindh in Constitution Petition No. D‑892 of 1987, filed by respondent No. 1 for a direction for allotment of 4‑1/2 acres of land from Survey No.21 of Dch Bitti Amri, hereinafter referred to as the land, allegedly already in possession of respondent No.1, allowing the same as follows:‑‑

"12. In view of above, we allow this petition and direct the respondents Nos. 1 and 2 to direct the notified authorised officer to satisfy the claim of the petitioner 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."

The learned Judges of the Division Bench also made the following observation before concluding the above judgment:‑‑

"13. Before parting with the case as we have noticed that the Society with the active assistance of certain officers of the K.DA. 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."

2. The brief facts are that respondent No.1, who migrated to Pakistan from India, had verified claim for agricultural land equivalent to 1598 Produce Index Units, hereinafter referred to as P.I.U., and garden land equivalent to 259 P.I.U. His claim for agricultural land was satisfied, whereas against garden land, he was allotted a garden known as Ghian Bagh situated in Larkana. He was given possession thereof as per averment of respondent No.1. Be that as it may, the Rehabilitation Mukhtiarkar, Larkana, by his letter dated 10‑4‑1962, informed respondent No.1 that his allotment was cancelled in view of the order of the Commissioner, Khairpur Division. It may be pertinent to reproduce the above letter, which reads as follows:‑‑

"To

Mr. Muhammad Hisamuddin Ansari,

991/2, Drigh Colony, Karachi.

With reference to your application dated 28‑2‑1962 this is to inform you that Gian Bagh Larkana is big garden of Sindh. The Commissioner of Khairpur has ordered that this Garden should not be transferred to any one and he cancelled your allotment through his letter No.RC/H/SC‑27/62‑LRC dated 21st March, 1962. Your allotment has been cancelled by the Settlement Commissioner, Hyderabad and Khairpur Division, therefore, you cannot be granted allotment or copy of allotment order. If you desire to obtain allotment order you should approach the Settlement Commissioner, Hyderabad & Khairpur Division directly. If the Settlement Commissioner orders then we will take back the (illegible) orders of the garden after issue of notice to you.

? (Sd.)

Rehab. Mukhtiarkar,

Larkana."

3. According to respondent No.1's averment in the memo. of writ petition, the above cancellation order was passed at the behest of Mr. Zulfikar Ali Bhutto. Against the above cancellation order, respondent No.1 filed Writ Petition No.568 of 1962. The matter was remanded to the Settlement Commissioner, Khairpur, for decision. While the above petition was pending, the then Commissioner of Khairpur, ordered that Ghian Bagh be handed over to Larkana Municipality. The matter was taken up by the Settlement Commissioner, Khairpur Division, who by his order dated 7‑4‑1964, maintained the above order of cancellation and ordered that respondent No.1's claim be satisfied elsewhere if there was any garden available or alternatively in the form of some agricultural land. It was also observed by him that respondent No.1 had failed to establish his right to Ghian Bagh as he had not produced any formal order of allotment from a competent authority. It may be observed that the Settlement Commissioner, while narrating the facts at page 1 of the order (at page 81 of the paper book), made the following observation:‑‑

"The area of the Ghian Bagh is 6‑17 acres. After the expiry of the lease of Ahmad Ali Shah, possession was delivered to the petitioner vide Mushirnama dated 11‑4‑1962. Since then the petitioner was in possession of Ghian Bagh. He was also paying Land Revenue with regard to Ghian Bagh since 1961‑62."

4. The above position is also affirmed by the above‑quoted letter of the Rehabilitation Mukhtiarkar, Larkana, dated 30‑4‑1962. It further appears that after Ghian Bagh was handed over to Larkana Municipality, it was named as Bagh‑e‑Zulfiqar. It seems that against the above order of the Settlement Commissioner dated 7‑4‑1964, respondent No.1 filed Writ Petition No. D‑469 of 1964, which was dismissed on 11‑11‑1964. Respondent No.1's Advocate sent a notice dated 17‑12‑1964 to the department for filing a petition for leave to appeal, but there is nothing on record to indicate, whether factually any such petition was filed.

5. It seems that respondent No.1, after having failed to retain Ghian Bagh, made efforts to get garden land allotted against his above claim of 259 P.I.U. in Karachi District. It further seems that Deputy Secretary (Rural) to the Chief Settlement Commissioner, by his letter dated 8‑1‑1971, informed the Deputy Commissioner/Additional Settlement Commissioner, Larkana that no garden land was available in Karachi district, a copy of which was endorsed to respondent No.1 informing him that his claim could not be adjusted for garden land in Karachi, as it was heavily congested area. However, respondent No.1 continued to make efforts inasmuch as he approached the then Prime Minister, Mr. Zulfikar Ali Bhutto, through an application. Thereupon, the Deputy Commissioner, Larkana, through his letter dated 26‑3‑1975,. addressed to the Chief Settlement Commissioner, Karachi, enclosed respondent' No.1's above application and requested him to dispose it of on merits on top priority basis and the result of action be intimated for submission of compliance report to the Prime Minister. A copy of above letter is at page 134 of the paper book. The above letter was responded to by the Settlement Commissioner, Sindh, at Karachi, through his letter dated 28‑4‑197.5 addressed to the Deputy Commissioner, Larkana, informing him that since the Displaced Persons (Land Settlement) Act, 1958, hereinafter referred to as the Act, alongwith schemes made thereunder, stood repealed with effect from 1‑7‑1974 by virtue of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, hereinafter referred to as the Repealing Act, all the available land stood transferred to the Board of Revenue for disposal under a scheme to be prepared by it as required by section 3 of the Repealing Act. Respondent No.1's application was returned. It was suggested that the Chief Minister, Siridh may be moved to redress the grievance of respondent No.1. After that, it appears that respondent No.1 requested for allotment of land from Survey Nos.184 and 186, situated in Dch Gujro, Taluka Karachi, in lieu of Ghian Bagh, Larkana. The summary was placed before the Chief Minister stating therein that the above survey numbers were not available as the scheme for disposal of the same as building site was already prepared. It was suggested that respondent No.1 might apply for payment of cash compensation against his unsettled agricultural claim. Thereupon, the Chief Minister stated that "I agree that he cannot be given land in Karachi' (at page 139 of the paper book). After that, the Settlement Commissioner, Sindh, through his letter dated 24‑2‑1976, informed respondent No.1 about the above order of the Chief Minister. However, respondent No.1 continued to press for the allotment of land in Karachi District, inasmuch as he approached the Martial Law Administrator; Zone `C'. In response to which, one Major Nazar Hussain of the Headquarters Martial Law Administrator, Zone `C', through his letter dated July, 1978, informed respondent No.1 that his request for allotment of Survey Nos.184 and 186 of Deh Gujro could not be acceded to. The matter was again examined by the Secretary to the Government of Sindh, Land Utilization Department, inasmuch as he put up the matter to the Governor/Martial Law Administrator, Zone `C', through a summary dated 22‑10‑1984 (at pages 156 and 157 of the paper book). It may be pertinent to reproduce paras. 5 to 7 of the above summary, which read as follows:‑‑

"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/MLA Zone `C' through the Chief Secretary for approval/orders on para. 6 supra."

6. Photostat copy of the record does not show, whether above proposal was approved by the Governor/Martial Law Administrator, Zone `C', as the space below the words "Governor/Martial Law Administrator Zone `C' has black spots. But the Deputy Secretary (Land Utilization) ‑11, Board of Revenue, Sindh, Hyderabad, addressed letter dated 9‑10‑1985, to the Additional Commissioner at Commissioner's office, Karachi, requesting him to furnish the survey numbers, area and location of available evacuee agricultural land which indicates that it was approved. The above letter reads as follows:‑‑

"The Government of Sindh in Land Utilization Department in principle have decided to allot an area of 4‑20 acres equivalent to 259 P.I. Units in satisfaction of claim of Pirzada Muhammad Hissamuddin Ansari.

(2) A copy of application dated 7‑10‑1985 of Pirzada Muhammad Hissamuddin Ansari is enclosed.

(3) You are, therefore, requested to furnish details of S.Nos., area and location of available evacuee agriculture land as well as market value of the land. to be granted to him through the Special Messenger within a week's time positively, so that further action could be taken in the matter."

7. In response to the above letter, the Additional Commissioner, Karachi, through his letter dated 14‑10‑1985 addressed to the Deputy Secretary‑11, Land Utilization Department (at page 159 of the paper book), stated that out of the land measuring 19.18 acres from Survey No.21 of Deh Bitti Amir, 4‑20 acres of land can be granted to the applicant in satisfaction of his claim by the Government in lieu of the land of the applicant taken away from him in the district Larkana.

8. Respondent No.1 continued to press for the implementation of the above decision of the Provincial Government and since he did not get any redress, he filed the aforesaid writ petition. It appears that after the filing of the above writ petition, respondent No.1 was informed by the Settlement Commissioner through his letter dated 24‑12‑1987 that no land could be allotted to him and he might approach the Land Utilization Department of the Board of Revenue.

9. In the above writ petition, present appellant was ordered to be impleaded as a party as it claimed to be allotted above Survey No.21 of Deh Bitti Amri. It is the case of the appellant that through the registered sale-?deeds, it purchased 193.35 acres of land in Deh Bitti Amri from private persons. It is also the case of the appellant that after the framing of Scheme No‑33, it was allotted 40 acres of land on 18‑7‑1973 by the Government of Sindh in the above Scheme and further 40 acres on 3‑5‑1977. According to the appellant, the land of above Survey No.21 is part of the land allotted to it for which it had paid price. It is also the case of the appellant that since its above purchased land measuring 199.35 acres from the private persons was scattered, it applied to the Government in terms of sub‑para. (2) of condition No.7 of the Statement of Conditions issued through SRO 869/71/4083‑P.I. dated 22‑6‑1971 issued by the Government of Sindh in exercise of powers conferred by subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912, hereinafter referred to as `the statement of conditions', for allotment of compact area in lieu of above 199.35 acres. According to the appellant, it had been allotted 143.37 acres in Sectors 5‑A, 7‑A and 9‑A and 99.22 acres in Sectors 5‑B and 7‑B of Scheme No.33. Thus the total allotted area comes to 237.36 acres against total of 279.35 acres i.e. 199.35 acres being the land purchased by the appellant from the private persons plus 80 acres land allotted by the Government.

10. It may be observed that according to para. 6.07 the appellant Society invested the following amounts:‑‑

"(a) Rs.26 lacs paid in 1970‑71 to private parties as cost of 199.35 acres, vide three registered sale‑deeds.

(b) Rs.125 lacs paid in 1972‑73 to Sindh Government towards cost of 80 acres of Government land allotted to Appellant Society.

(c) Rs.205 lacs spent on internal developments.

(d) Total amount spent so far by appellant is 356 lacs (Three crores fifty? six lacs). A consolidated plan was filed as Annexures D to C.A.

11. The appellant as well as the official respondents resisted respondent No.1's above writ petition. However, the learned Judges of the Division Bench allowed the same in the above terms and also made the above observation against the allotment of land to the appellant. Thereupon, the appellant filed a petition for leave to appeal, which was granted for the above reason.

12. The above appeal had come up for hearing on 19‑1‑1993 at Rawalpindi, when the learned counsel for the appellant, Mr. Akhtar Mahmud, sent an application stating that since he had heart surgery in December, 1991, it was not possible for him to travel from Karachi to Rawalpindi, whereas respondent No. l stated that he was appearing in person and as he was very sick person, he would not be able to come again to Rawalpindi from Karachi and the case be decided. However, we ordered both the parties to file written arguments and reserved the appeal for judgment.

13. Mr. Akhtar Mahmud, learned counsel for the appellant, has riled elaborate written arguments, whereas respondent No.1 has riled very brief arguments.

14. We have perused the above arguments. According to the appellant, respondent No.1's position over Ghian Bagh was unauthorised. This submission of the appellant is belied by the abovequoted letter dated 30‑4‑1962 of the Rehabilitation Mukhtiarkar, Larkana, and the portion of the Settlement Commissioner, Khairpur Division's order dated 7‑4‑1964. The position seems to be that respondent No.1 was allotted Ghian Bagh and possession thereof was given to him on 11‑4‑1962. The allotment was cancelled for the reason that the Government wanted to give Ghian Bagh to Larkana Municipality which was in fact given and the Bagh was named as Bagh‑e-?Zulfiqar.

15. Then it has been urged by the appellant that respondent No.1 failed to give his choice in Larkana or any other district in terms of Settlement Commissioner, Kairpur Division's above order dated 7‑4‑1964, respondent No.1's request for allotment of Survey Nos.184 and 186 in Deh Gujro was rejected by the Chief Minister in February, 1976, Martial Law Administrator also rejected respondent No.1's above request on 11‑7‑1978, and no allotment could be issued in view of the ban imposed by the Sindh Government in 1973 over the allotments of land in the area and, therefore, respondent No.1 has no case.

16. The above submissions have no significance in view of the fact that probably the Governor/Martial Law Administrator, Zone `C', approved the above summary dated 25‑10‑1984, relevant portion of which is quoted hereinabove in para.5, submitted by the Secretary to the Government of Sindh, Land Utilization Department. Even if we were to assume that approval was not accorded by the Governor/Martial Law Administrator Zone `C', the above letter dated 9‑10‑1985 of the Deputy Secretary addressed to the Additional Commissioner at Commissioner's office, Karachi, contained the decision of the Provincial Government, which could not have been nullified without cogent reason. Even before the High Court on 18‑5‑1989, Mr. K.M. Nadeem, Assistant Advocate‑General took the following stand:‑‑

"A.A.‑G. Mr. K.M. Nadeem, Assistant Advocate‑General on instructions from Mukhtiarkar present states that respondents are taking steps to make proper allotment to the petitioner to satisfy his claim. In this regard they request for one month's time. Mr. K.M. Nadeem, AA.‑G. states that except the statement he has made no other arguments are to be raised. The hearing is adjourned. The respondents present shall within a period of one month intimate the petitioner and file a statement in Court stating full particulars of land which they propose to allot to the petitioner."

In response to the Deputy Secretary's above letter dated 9‑10‑1985, the Additional Commissioner, Karachi, addressed his above letter dated 14‑10‑1985 to the Deputy Secretary‑II, Land Utilization Department, Board of Revenue, Sindh, suggesting the allotment of land measuring 4.20 acres out of Survey No.21. In our view, non‑implementation of the above decision of the Provincial Government without cogent reason entitled respondent No.1 to invoke in aid Constitutional jurisdiction of the High Court. As pointed out hereinabove, at one stage of the above writ proceedings, the Government did not contest respondent No.1's entitlement to have land in Karachi District as is evident from the above‑quoted Court diary of 18‑5‑1989.

17. This leads us to the question, whether the land of above Survey No.21 was available. According to the appellant, the above survey number was declared as building site under section 2(3)(b) of the Act by a notification dated 11‑2‑1966. A copy of the above notification has been filed alongwith the supplementary statement showing the details of evacuee lands. A perusal of the photostat copy filed by the appellant indicates that Survey No.21 and its area as 22.18 acres have been overwritten in place of printed survey numbers and areas. It is also significant to note that above Survey No.21 has been written at a place where it could not have been written, as it is between Survey Nos.69 and 63; whereas, the last survey number is Survey No.20. The above over?writing and the appearance at odd place casts doubt in the absence of the original gazette. The statement of the Additional Commissioner in the above letter dated 14‑10‑1985 addressed to the Deputy Secretary II, Land Utilization Department, Board of Revenue, Sindh, that above Survey No.21 was available, cannot be said to be unfounded.

18. Even if we were to hold that above Survey No.21 was declared as building site, the question arises, as to whether the appellant has been legally allotted in order to give it locus standi to challenge the order of the High Court. It may be observed that the learned Judges of the Division Bench, while concluding the impugned judgment, have observed that "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." In this regard, it may be pertinent to reproduce Condition No.7 of the statement of conditions, which reads as follows:‑‑

"7.(1) The Unit of allotment will not be less than 20 acres or more than 100 acres, inclusive of any land that the applicant society already owns in the scheme:

Provided that an area of 100 acres shall be earmarked by the Authority in Scheme No.33 for‑construction of multistoreyed buildings by construction Companies.

(2) If an applicant society owns scattered pieces of land within a scheme to which this statement of conditions applies, it shall, on surrendering to Government such scattered pieces of land, be allotted in lieu of such land, an equivalent compact area in the scheme so far as it is possible."

19. From the perusal of para.(1) of condition No.7, it is evident that under the above statement of conditions no society could have been allowed to have more than 100 acres including the land which the applicant society already owned in the scheme. According to the appellant's own showing, it had purchased 199.35 acres land through private transactions in Scheme No.33 and, therefore, prima facie by virtue of above para. (1) of condition No.7, it could not have applied for the allotment of additional land of 80 acres. In this view of the matter, if 4.20 acres of land is going to be allotted to respondent No.1, it will not be illegal as the allotment of the above land of 80 acres in favour of the appellant is violative of above condition unless the above condition is varied by the competent authority. It may be stated that according to the appellant, the disputed land of 4.20 acres is situated in section `B', of which it had been given possession on 19‑5‑1988 during the pendency of the above writ petition. Apparently this was done in spite of the status quo order of the High Court. The case of respondent No.1 before the High Court was that he was in possession of the disputed land for a number of years and that the appellant had attempted to oust him. Respondent No.1's above plea gets support from the Commissioner's report dated 10‑12‑1987 (at page 19 of the paper book Part 11) submitted pursuant to the order of the High Court in the above writ petition. The relevant portion of which reads as under:‑‑

"Two Chowkidars of Aligarh Cooperative Housing Society namely Kamal and Lakhano, who were found in the vicinity informed the Nazir on enquiry that the employees of Aligarh Housing Society and KDA Demolition Force had demolished the room at point B in the sketch and had taken away the material viz. tin sheets, wooden beams and cement blocks etc. on their trucks. Wheel marks of heavy vehicles were visible at the site. Nobody else was found on the disputed land or anywhere around the same.

In the circumstances stated above, the petitioner appears to be in possession of the disputed land which according to him was given to him by the Martial Law Authorities in the year 1982."

20. It was also urged by the appellant in its written arguments that respondent No.1's case was not pending in terms of section 2(2) of the Repealing Act. In our view, since respondent No.1's claim against the garden land was not satisfied, it cannot be said that his case was not pending.

21. We may observe that respondent No.1 was allotted Ghian Bagh in 1962. Its allotment was cancelled on the ground that the same was needed for Larkana Municipality. Respondent No.1 had been making efforts to obtain land in lieu of the above Ghian Bagh for the last 30 years and in that process, he has lost his health which was apparent from his looks in the Court. In our view, the High Court's order seems to be just and proper, which does not call for interference. However, we may observe that since the official respondents have not disowned the allotment of 80 acres of land in favour of the appellant and the Government has received considerable amount from the appellant as per averment in the memo. of appeal, the appellant may be allowed to retain the above land excluding 4.20 acres if the same was included in the above allotted land to the appellant notwithstanding the above‑quoted observation of the High Court as any action at this stage may prejudice the interest of bona fide members of the appellant society. It will also be open to the appellant to claim the refund of the price if already paid by it for the above 4.20 acres.

22. The upshot of the above discussion is that the appeal is dismissed, but there will be no order as to costs.

M.B.A./A‑997/S ???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.