USSAMA TARIQ Versus ADMINISTRATOR(RESIDUALPROPERTIES)/ADDITIONAL OMMISSIONER (REVENUE) LAHORE DIVISION, LAHORE

1. MUHAMMAD NAWAZ ABBASI, J.‑‑‑ This appeal with the leave of the Court has been preferred against the judgment dated 6‑7‑1993 passed by a learned single Judge of Lahore High Court in Writ Petition No.99‑R of 1993 through which the appellant had challenged the order dated 9‑1‑1993 passed by the Administrator (Residual Properties), Lahore.

2. Leave was granted in the present appeal vide order dated 26‑4‑1995 in the following terms:‑‑

3. "Leave is granted to consider: whether, the order passed under Repealed Settlement Laws after conscious application of mind by the competent authorities and such order having attained the finality and had become a past and closed transaction could have been re‑opened, and set aside by the Deputy Administrator Residuary Property who has a limited authority with regard to the available property, and as to whether he could sit on judgment of the Settlement Authorities having not been challenged before the forum in the hierarchy."

4. The relevant facts in small compass leading to the filing of this appeal are that in lieu of the claim of Abdul Majid Khan, grand father of the present appellant, land measuring 63 Kanals, 4 Marlas' including Khasra No.1101 comprising an area of 1 Kanal, 112 sq.ft was allotted to him on 2‑9‑1953 which was subsequently proposed in the name of Tariq Ismail Khan, father of the present appellant on the basis of RL‑II No. 13 on 17‑12‑1959. The proposed land, with a house constructed on it, was confirmed in the name of Tariq Ismail by the Allotment Committee on 18‑12‑1959 which having been re‑confirmed in the name of allottee on 15‑11‑1961 attained finality. Tariq Ismail Khan, the original allottee, inducted Syed Akhlaq Ahmed, respondent No.3 herein, as tenant in the house in 1972 and later on failure of said respondent to make payment of rent, the father of appellant sought ejectment of the respondent by way of filing ejectment petition. Pending disposal of the said ejectment petition respondent No.3 moved an application to the Deputy Administrator, (Residual Properties) for transfer of the house in his possession available property under the Scheme of Management and Disposal of Available Properties. The Deputy Administrator (Residual Properties) having conducted an enquiry for the purpose of ascertaining of the character of the property held that the house was still available for disposal and since the respondent was in possession of the house, therefore, he was entitled for its transfer. Consequently, the Deputy Administrator vide order dated 24‑5‑1984 transferred the same to respondent No.3 under the above said Scheme. The appellant being aggrieved of the above order of Deputy Administrator (.Residual Properties) filed a revision petition under Para. 13 of the ibid Scheme before the Administrator (Residual Properties) and the Additional Commissioner, Lahore Division while exercising the power of Administrator (Residual Properties) vide order dated 9‑1‑1993 dismissed the revision petition.

5. The appellant being aggrieved of the order passed by the Administrator and Deputy Administrator (Residual Properties) invoked the Constitutional jurisdiction of the Lahore High Court, Lahore by way of filing a writ petition (bearing No.99‑R/93) and a learned Single Judge of the High Court in Chambers vide impugned judgment dismissed the writ petition with the following observations:‑‑

6. "Both the Courts below have found as a finding of facts that the disputed property was never transferred as part of the agricultural land in favour of the grandfather of the petitioner and therefore, the disputed house was available for transfer. In this view of the matter I do not find any substance in the plea of the learned counsel that the petitioner was entitled to the transfer of the disputed property.

7. For reasons stated above there is no force in the writ petition which is dismissed in limine. However, it respondent No.4 has already assailed the impugned order separately and obtained any order in his favour, he may file a review petition which will be considered in accordance with law."

8. Learned counsel for the appellant has contended that the Deputy Administrator and Administrator (Residual Properties) and also the learned Judge in the High Court through misreading of RL-II No.13 have come to the conclusion that the house was not part of agricultural land and was still available for disposal under the ibid Scheme. The learned counsel submitted that the perusal of RL-II No. 13 which was not a disputed document, would show that Khasra No.1101 in which the house was constructed was an integral part of agricultural land allotted in the name of predecessor‑in- interest of the present appellant and that the house was not an independent property for disposal either as under Displaced Persons (Land Settlement) Act, 1958 or as an available property upon repeal of said Act. The learned counsel has drawn our attention to the note made by the Tehsildar on RL-II No.13 relating to the confirmation of land with the house in the name of Tariq Ismail which contained order of allotment dated 15‑11‑1961 passed by the Additional Commissioner. The note is read as under:‑‑

9. The learned counsel precisely argued that the house bang part of agricultural land was transferred to the predecesor‑in‑interest of the appellant in 1961. Therefore, the Deputy Administrator (Residual Properties) was not competent to re‑open the matter under the Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975 and declare that the house was not part of land allotted to the father of appellant. The learned counsel emphasized that all allotments made by the Settlement Authorities before the repeal of evacuee laws which attained finality would be treated as past and closed transactions which were not liable to be re‑opened by the Notified Officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975.

10. Learned counsel representing the respondents on the other hand has forcefully argued that RL-II No. 13 containing the endorsement of the order dated 15‑11‑1961 passed by the Additional Settlement Commissioner was brought on record for the first time in 1992 before the Administrator (Residual Properties) without producing the original order of Additional Settlement Commissioner and thus the inference would be that no such order was at all in existence before the repeal of evacuee laws in 1974 and the same having been prepared subsequently was incorporated in RL-II No. 13 to defeat the claim of respondent for transfer of the house under the Scheme for management and disposed of available properties. Learned counsel however, has not been able to show us from the record that R.L. II No. 13 either was a forged document or the entry regarding the order of Additional Settlement Commissioner appearing therein was fake and the house was an independent unit which was available for disposal at the time of repeal of the evacuee laws. The learned counsel while banking upon the order of Administrator and the Deputy Administrator (Residual Properties) contended that since the original order of allotment passed by the Additional Commissioner Settlement was not brought on record and the house being of the value of more than Rs.10.000 was situated in village Abadi, therefore, the same would riot be treated as part of agricultural land for transfer and that on all force would be deemed to be an independent unit and available property for disposal

11. We have heard the learned counsel for the parties at length and perused the record with their assistance. It is not denied that the house in question was constructed on a portion of agricultural land bearing Khasra No. 1 101 which was transferred to the predecessor‑in‑interest of the appellant in 1961. The record does not show that either the land of said Khasra or the house constructed thereon was, ever treated as an independent property to that of the agricultural land transferred to the predecessor‑in‑interest of the appellant. The possession of the house as part of the land subject‑matter of allotment, remained with the allottee since the allotment of land without any interruption by the Department and in absence of an express order to the contrary the presumption would be that the house constructed on the land was transferred as part of agricultural land to the predecessor‑in‑interest of the appellant. The respondent No.3, who was in possession, of the house as tenant of father of appellant moved an application in 1981 to the Deputy Administrator (Residual Properties) for allotment of the house to him under the scheme for management and disposal of available properties and the Deputy Administrator (Residual Properties) while tracing out the facts, held that the house was not part of the agricultural land, which was allotted to predecessor‑in‑interest of the appellant and declared it as an available property. The perusal of RL-II No. 13 placed on record in original would show that the land of Khasia No. 1101 in which the house in question was constructed was in toto transferred to the predecessor‑in‑interest of appellant, therefore, the contention that the entry relating to the transfer of house along with agricultural land was fake and was subsequently incorporated in RL-II No. 13, was not supported by any evidence on record. The mere fact that RL-II No. 13 was not produced during the enquiry conducted by Deputy Administrator (Residual Properties) and was brought on record in the proceedings in revision before the Administrator (Residual Properties) would not be a valid ground to suggest that it was a forged document. This is noticeable that the issue relating to the genuineness or otherwise of RL-II in question was never raised either before the Settlement Authorities or the Notified Officer therefore, no such objection can be allowed to be taken in the present appeal before this Court. The parties confined their litigation only to the extent of issue as to whether the house in question was or was not part of the agricultural land and the leave was granted in this appeal to consider the question relating to the exercise of jurisdiction of Deputy Administrator and the Administrator of Residual Properties in the matter after repeal of the evacuee laws under the repeal Act, 1975 (Act XIV of 1975). The jurisdiction of Notified Officer would be limited under the Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975 as under section 2(2) of the said Act, the notified officer except the completion of residual work was not competent to extend his jurisdiction to any property which was not available for disposal under the Scheme of Management of Available Properties. The notified officer under the above scheme would definitely be authorized to dispose of the available property on the basis of possession but he would have no jurisdiction to go into the question of legality or otherwise of an allotment made by the Settlement Authorities under the evacuee laws before the repeal of said laws by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975, if such an allotment has attained finality. In the present case, the agricultural law along with the house constructed on it was transferred to the predecessor‑in‑interest of the appellants in 1961 and the Deputy Administrator (Residual Properties, while travelling beyond his jurisdiction re‑opened the allotment of land made under the Displaced Persons (Land Settlement) Act, 1958 and give a declaration that the house in question was an independent unit and was not part of the agricultural land in which was available for transfer to respondent No.3 under. the Scheme of Management and Control of Available Properties. Subsections (2) and (3) of I section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975, provides as under:‑‑

(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officer as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shah be remanded to the officers notified as aforesaid.

(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."

12. Section 3 of the ibid Act provides as under:‑‑

13. "3. Transfer of property .‑‑‑(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may, be fixed by the Federal Government in consultation with the Provincial Government for disposal‑‑

(a) in the case of urban properties by the Provincial Government under a Scheme to be prepared by it in this behalf; and

(b) in case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf;

14. Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land:

15. Provided further that only such land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972.

(2) The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other person as the Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him in respect of such land:

16. Provided that only so much land shall be offered to such alottee as does not, together with land already held by him, exceed a subsistance holding within the meaning of the Land Reforms Regulation, 1972:

17. Provided further that the temporary alottee or other person who purchases the land so offered to him shall; not eject the tenant from such land except on the ground that he has failed to pay rent in accordance with the terms of his tenancy: . . .

18. Provided further that, in the event of a displaced person from Jammu and Kashmir State or any of his successors‑in‑interest being repatriated to the State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by that Government."

19. Under section 4 of the Act, the notified officer is empowered to dispose of the residual work. The examination of the relevant provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975 would show that notified officer was not empowered to interfere with the allotment of land which stood finalized under Displaced Persons (Land Settlement) Act, 1958 and make a declaration regarding the nature and character of the property subject‑matter of allotment. The learned counsel instead of satisfying us that the house was still available as an independent property for transfer and the Deputy Administrator has competently exercised the jurisdiction tried to convince us that the transfer of house with agricultural land by the Settlement Authorities was not legal as the same was required to be disposed of independently and would be deemed to be an available property for transfer on repeal of evacuee law. The question whether the house could not be transferred to the alottee of the agricultural land or it was required to be transferred as an independent property, could neither be gone into by the Deputy. Administrator nor would be permitted to be raised before this Court at this belated stage. This is an admitted position that the house was neither ever treated as an independent unit nor it was an available property for transfer under the Scheme in question on the repeal of evacuee laws. It was held in Ali Muhammad v. Chief Settlement Commissioner (2001 SCMR 1822) as under:‑‑

20. "27. It is also important to observe that Chief Settlement Commissioner/Notified Authority acted in sheer violation of section 2(3) or section 3 of Act, 1975 by passing orders in favour of respondents without thoroughly examining their cases particularly keening in view the fact whether evacuee agricultural land being allotted to them is available or not.

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41. In view of the aforesaid discussion we are persuaded to hold that the cases of the private parties are not covered by the expression pending proceedings' in terms of section 2 (2) of Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975; therefore, they have no legitimate cause for transfer of the agricultural land situated around Faisalabad. Moreover, no land was available for transfer being evacuee agricultural land ."

21. (The underlining is by us to provide emphasis)

22. Reliance can also be placed on Muhammad Ramzan v. Member (Rev.) (1997 SCMR 1635).

23. The learned Judge in the High Court without diluting ‑upon the question relating to the jurisdiction of the notified officer dismissed the writ petition with observation that the Deputy Administrator and Administrator (Residual Properties) having made scrutiny in the matter have concurrently held that the property was not transferable as part of agricultural land and would be deemed to be available for transfer under the Scheme under whichl it was transferred. It was not the function of the notified officer to go into the genuineness or otherwise of an allotment made under the Displaced Persons (Land Settlement) Act, 1958 and re‑open the past and closed transaction under the garb of his power under Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975 as the properties which had already been disposed of by the Settlement Authorities under settlement laws and which were not subject‑matter of pending proceedings, would no more be liable to be dealt with on any ground under the repealed Act and Scheme of Management and Control of Available Properties. The agricultural land along with a house constructed on it was transferred to the predecessor‑in‑interest of appellant vide order dated 15‑11‑1961 passed by the Additional Commissioner Settlement as incorporated in RL-II No.13 and having thoroughly considered the matter, we have not been able to find out any reason either to disbelieve this document or hold that laud of Khasra No. 1101 on which the house was built was transferred to the predecessor‑in interest of appellant with the exclusion of house and that house was available for transfer under the management and disposal of the available properties or that the Deputy Administrator and Administrator (Residual Properties) were competent to treat the same as available property to, be dealt with under the above said Scheme.

24. Resultantly, the orders passed by the Deputy Administrator and Administrator (Residual Properties) are declared to have been passed without lawful authority and in consequence thereto the order dated 6‑7‑1993 passed by Lahore High Court in Writ Petition No.99‑R/1993 impugned herein is set aside and this appeal is allowed. There shall be no order as to costs.

25. S.A.K.//U‑18/S Appeal allowed.