Stereo.

HCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
I.C.A. No.638/2011
Member Residual Properties, Board of Revenue, Punjab, Lahore
Versus
Muhammad Arshad Chaudhary etc.
=================================================

JUDGMENT
Date of Hearing: 20.03.2018.
ICA No.638/2011
Appellant by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.1 to 8 by: Mr. Muhammad Shahzad Shaukat, Advocate.
Respondents No.10(i) to 10 Mr. Aamir Zahoor Chohan, Advocate.
(vi) by:
WP No.39990/2016
Petitioners by: Mr. Muhammad Shahzad Shaukat, Advocate.
Respondents No.1 to 4 by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.5 to 10 by: Mr. Aamir Zahoor Chohan, Advocate.
WP No.176056/2018
Petitioners by: Mr. Aamir Zahoor Chohan, Advocate.
Respondent No.1 by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.2 to 10 by: Mr. Muhammad Shahzad Shaukat, Advocate.

CH. MUHAMMAD IQBAL, J:- Through this single judgment,

we intend to decide titled I.C.A. as well as Writ Petitions

No.39990/2016 and 176056/2018 as common question of law and

facts are involved and subject matter of suit property is also same.

I.C.A. No.638/2011
2. Through this ICA, the appellant has challenged the judgment

dated 30.09.2011 passed in Writ Petition No.206-R/2010 whereby

learned Single Judge-in-Chamber accepted the said writ petition filed

by respondents No.1 to 8 to the extent of penalty (50%).

Writ Petition No.176056/2018

Through this writ petition, Nawabzada Walayat Ali Khan etc. /

petitioners challenged the order dated 09.07.2010 passed by the

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Chief Settlement Commissioner / Member (Judicial-V) / Member

(Residual Properties), Board of Revenue / Notified Officer, Punjab,

Lahore whereby the Notified Officer accepted the applications of

Rafaqat Ali etc. (respondents No.2 to 10) and allowed the sale of

evacuee land situated in Harbanspura to them on the market price

plus 50% penalty.

Writ Petition No.39990/2016

Through this writ petition, the petitioners Ch. Ayyaz Imran and other

subsequent vendees have challenged the order dated 03.05.1992 and

order dated 24.06.1993 whereby the Settlement Commissioner

(Lands), Punjab, Lahore / Notified Officer allotted land measuring

25-Kanals 06-Marlas situated in Mauza Harbanspura, Lahore to

respondents No.5 to 10; order dated 18.06.2016 whereby the

Additional District Collector, Lahore accepted the application of

respondents No.5 to 10 and restored the mutation No.10445 vide

order dated 22.08.2016.

3. As this consolidated judgment shall dispose of the instant ICA

as well as the connected writ petitions, as such, the parties to the lis

will be referred according to memo of parties appended with instant

Intra Court Appeal, Ch. Ayyaz Imran etc. Respondent No.1 to 8 in

the instant appeal who are also petitioners of Writ Petition

No.39990/2016 shall be referred hereinafter as “respondents /

occupants” whereas legal heirs of Nawabzada Walayat Ali Khan /

respondents No.10(i) to 10(vi) in instant appeal who are also

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petitioners of Writ Petition No.176056/2018 shall be referred

hereinafter as “respondents / allottees”.

Brief consolidated facts of the above Intra Court Appeal as

well as both the writ petitions are that evacuee land measuring 253-

Kanals 04-Marlas comprising Khasra Nos.1425 to 1431-1435, 1477

to 1485 and 1488 to 1517 situated in Mauza Harbanspura, District

Lahore was transferred to Services General Administration &

Information Department (Information, Culture & Tourism) for the

construction of tourist village within 5 years vide Memorandum

No.360-86-1/805-CS dated 16.03.1986. After expiry of said five

years, Managing Director, TDCP, intimated, officer on special duty

BOR vide TDCP/DM(P&D)/93/117 dated 27.05.1993 that the

earmarked land is no more required as the tourist village has already

been established within Jallo Park.

Nawabzada Walayat Ali Khan obtained allotment of land

measuring 25-Kanals 06-Marlas comprising Khasra Nos.1488, 1493

and 1494 situated in Mauza Harbanspura against his unadjusted

urban claim of 258 PIUs vide order dated 03.05.1992 and mutation

No.10445 was sanctioned in favour of allottee on 24.06.1993 which

allotment was challenged by one Rafaqat Ali through Writ Petition

No.45-R/1995 which petition stood dismissed by this Court, whereas

Assistant Commissioner, Tehsil Lahore Cantt. Initiated review

proceeding and finally cancelled the above mutation on 21.03.1995.

The aggrieved allottee challenged the said order of Assistant

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Commissioner before Notified Officer on 19.03.2003 which met

with dismissal on 24.02.2016. The allottee filed application before

Commissioner for restoration of said mutation which was accepted

by ADCG Cantt. vide order dated 18.06.2016 and order of Assistant

Commissioner dated 21.03.1995 was set aside and mutation

No.10445 was restored on 22.08.2016 in the revenue record.

Contemporaneously Rafaqat Ali being in possession of land

filed application for the allotment of land measuring 84-Kanals

including the land bearing Khasra No.1488, 1493 and 1494 already

allotted to the respondent allottee, which application was dismissed

by the Notified Officer. Feeling aggrieved, he filed Writ Petition

No.103-R/1995 which was accepted by this Court vide order dated

11.07.1995. After acceptance of the writ petition, said Rafaqat Ali

sold out the possessory right of the land in large number of pieces to

different persons. The Chief Settlement Commissioner challenged

the order of this Court through filing Civil Appeal No.969/1996

which was accepted by the August Supreme Court vide judgment

dated 22.04.1998 (reported as 1998 SCMR 2596) holding that the

land be disposed of under the Scheme for the Management &

Disposal of Available Urban Properties, 1977. Rafaqat Ali & 28

others again filed applications on 07.12.2007 to the Senior Member,

Board of Revenue for the purchase of the evacuee land under the

Scheme 1977, whereas the Managing Director, TDCP, Punjab vide

letter No.PS/MD/TDCP/09/170 dated 06.06.2009 reported that 203-

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Kanals land has been occupied by encroachers. On the said

information, the Chief Settlement Commissioner floated

advertisement in newspapers requiring all the illegal occupants to

appear before him on 20.11.2009. Only, Ch. Ayyaz Imran & 8 others

appeared and asserted that they are subsequent vendees from said

Rafaqat Ali since 1995 and have raised Pacca construction over the

said land. They filed application on 20.11.2009 for the purchase of

the land in their possession through private treaty at market price.

The Chief Settlement Commissioner / Administrator (Residual

Properties) allowed the sale of said land already allotted to

respondent No.10 (the allottee) to the illegal occupant at the market

price plus + 50% penalty vide order dated 09.07.2010. The

subsequent sitting occupant filed Writ Petition No.206/2010 which

was allowed by this Court vide order dated 30.09.2011 and

imposition of penalty of 50% was set aside. Hence, the captioned

ICA as well as Writ Petitions.

4. Mr.Mahmood A. Sheikh,Advocate submitted that order of the

learned Single Judge in Chamber dated 30.09.2011 is illegal and not

sustainable in the eye of law. He further submits that after Repeal

Act, 1975, the Notified Officer was not competent to allot the urban

land, building site, land against the unadjusted PIU Units and

verbally prayed for reversal of order dated 03.05.1992 and

24.06.1993 of the Notified Officer.

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Mr. Muhammad Shahzad Shaukat, Advocate appearing on

behalf of respondents occupants submits that after the Repeal of

Evacuee Laws, land could not be allotted against any pending claims

of unadjusted unsatisfied PIUs, within the urban limits of District

Lahore; that all the available evacuee land can only be disposed of

through the Scheme for the Management & Disposal of Available

Urban Properties, 1977; that the Notified Officer / Member (Residual

Properties), Board of Revenue, Punjab, Lahore in contravention of

the Scheme mentioned hereinabove has illegally and unlawfully

allotted the urban evacuee land to “allottee” respondent No.10, as

such, orders dated 03.05.1992, 4.06.1993, 18.06.2010 and

22.08.2016 are liable to be set aside being illegal and passed without

lawful authority.

Mr. Aamir Zahoor Chohan, Advocate/learned counsel

appearing on behalf of the legal heirs of Nawabzada Walayat Ali

Khan, respondents No.10(i) to 10(vi) “allottee” submits that the

Chief Settlement Commissioner vide order dated 24.06.1993 allotted

urban agricultural land measuring 25-Kanals 06-Marlas in

Harbanspura, Lahore to the allottees (respondent No.10 (i) to 10(vi))

against 228 PI Units, which order is still in field; further submits that

the order dated 09.07.2010 in favour of Ch. Ayyaz Imran etc.

“occupants” is illegal as said occupant claimed to be purchasers of

the land measuring 64-Kanals 03-Marlas from Rafaqat Ali in 1995

whereas the said vendor has lost his claim upto the Hon‟ble Supreme
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Court of Pakistan and they are not entitled to purchase the said land;

learned Member (Residual Properties) / Notified Officer was not

competent to sell the land to the illegal occupants as per Scheme

1977; further submits that property has already been allotted to

claimant allottee and was not available in pool for disposal of land

since 1992; further submitted that neither allottees were arrayed as

party in the proceeding before the Member nor they were heard

before passing the order of sale to the sitting occupants and allottee

has been condemned unheard; and finally prayed for dismissal of

Writ Petition No.39990/2016 and setting aside order dated

09.07.2010 passed by the Chief Settlement Commissioner.

5. We have heard the arguments of learned counsels for the

parties and gone through the record with their able assistance.

6. As the main controversy in the instant matter is centered

around the allotment as well as sale of the evacuee properties

situated in Mauza Harbanspura within the urban limits of District

Lahore. The pivotal points for determination before this Court are as

under:-

(1) whether after issue of Notification dated 16.05.1973 by

Chief Settlement Commissioner declaring all the property
(including urban agricultural land) as building site and with
promulgation of the Evacuee Property and Displaced Persons
Laws (Repeal) Act, 1975, the Notified Officer was competent
to make fresh allotment against unsatisfied urban units;

(2) whether the Member (Residual Properties) has the

jurisdiction to order for the sale of urban evacuee / state land
to the encroachers, illegal occupants who were not in
possession of evacuee state land on 01.01.1976?
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Now dilating upon the first point, it is quite appropriate to briefly

recapitulate the legal scheme of rehabilitation of the evacuee.

Admittedly, after partition of India in 1947 for the rehabilitation of

the migrants the allotments of evacuee land were being made to the

evacuee claimant against their claim under different schemes and

notification on the subject as well as under the Displaced Persons

(Compensation and Rehabilitation) Act, 1958. Numerous complaint

regarding the bogus claims and fake allotment received to the Chief

Settlement Commissioner who in order to curb fraudulent allotment

issued a notification dated 16.05.1973 declaring all the evacuee

urban lands situated within the urban limits of a Municipal

Corporation, Municipal Committee, Notified Area Committee, Town

Area Committee, Small Town Committee and Sanitary Committee,

or a Cantonment, throughout the Province of the Punjab, as building

sites and a complete ban was imposed on the allotment of such lands.

The above notification was ultimately validated by the Hon‟ble

Supreme Court of Pakistan in the case reported as Muhammad

Ramzan & Others Vs. Member (Rev.)/CSS & Others (1997 SCMR

1635). Further, all the evacuee laws were also repealed through the

Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975

with effect from Ist July 1974 and further allotment of evacuee lands

against any claim were banned and a limited jurisdiction was

conferred upon the notified officer under Section 2 (2) of the

Repealing Act, 1975 to dispose of only the active pending

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proceedings or the matters remanded by the High Court or by the

Supreme Court of Pakistan. For ready reference Section 2 (2) of the

Act ibid. is reproduced as under:-

“2. Repeal of certain Laws.-(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 officers 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 shall be remanded to the, officers notified as aforesaid.”

The pending proceedings means only those proceedings which

were immediately pending before 01.07.1974 or the cases decided by

the Hon‟ble Supreme Court or High Court. The Hon‟ble Supreme of

Pakistan in respect of the same preposition has laid down in the case

reported as Chief Settlement Commissioner / Member, Board of

Revenue (S&R Wing), Punjab, Lahore Vs. Akhtar Munir & 6 Others

(PLD 2003 SC 603) as under:-

“The facts leading to the filing of Writ Petition No.52-R of 1984

were that claim of the respondents were duly verified in District
Rawalpindi but instead of getting the same settled in District
Rawalpindi the respondents sought their transfer to Lahore on the
ground that they had shifted to Lahore. The verified claims were
allegedly misplaced either in the office of the Deputy
Commissioner, Rawalpindi or Lahore in transit. The respondents
have not cared to contest the appeal and it appears from the
record that they had for the first time moved an application on
26-2-1976 with regard to the whereabouts of their claims as a
result of which a duplicate entitlement certificate was issued on
22-11-1976. The case thus cannot be said to be actively pending
consideration before the authorities concerned for final disposal
within the contemplation of the principle enunciated in Zafar Ali
Khan v. Chief Settlement Commissioner (1999 SCMR 1719).
The conceding statement of the learned counsel for the
department can have no bearing on the case in view of the
observations made in Muhammad Ramzan v. Member
(Revenue)/CSS (1997 SCMR 1635) that disposal of
constitutional petition by the High Court based on illegal and
tainted concession of Settlement Department is devoid of lawful
authority and subsequent direction for its implementation is
equally coram non judice and as such has no binding effect. The
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judgment dated 4-12-1991 vis-à-vis this petition thus suffers from

a jurisdictional defect and there is force in the contention that it is
void ab initio being coram non judice.”

Further, the Hon‟ble Supreme Court of Pakistan has defined pending

proceedings in a case reported as Government of Punjab, Colonies

Department, Lahore & Others Vs. Muhammad Yaqoob (PLD 2002

SC 5) which is as under:-

“The term “pending proceedings” as used in these laws would

mean that an initial step taken as contemplated under the
settlement laws for allotment of land against verified claim of the
claimants but the same did not finalize before the repeal of the
same, therefore, it was with reference to such cases that it was
provided that those would be taken forward and concluded under
the repealed settlement laws as if they had not been repealed for
the said limited purpose and in order to pass final order in such
cases a provision was made to appoint a Notified Officer to deal
with such cases. Mere possession of any evacuee land as claimed
by the respondent in Chak No.223/RB in the writ petition would
not make his case, a case of pending proceedings within the
contemplation of provisions of sections 2 and 3 of the Evacuee
Property and Displaced Persons Laws (Repeal) Act, 1975,
therefore, the direction issued by the learned Judge of the High
Court for allotment of the said land under the settlement laws to
the respondent was violative of law which could not have been
given, for under Article 199 of the Constitution, the High Court
could direct a person performing functions in connection with the
affairs of the Federal Government to do what law requires him to
do whereas the direction issued in this case was to the contrary
i.e., what law did not require him to do, he was ordered to do.”

Furthermore, the Hon‟ble Supreme Court of Pakistan in another case

reported as Nawabzada Zafar Ali Khan and Others Vs. Chief

Settlement Commissioner/Member, Board of Revenue, Punjab,

Lahore and Others (1999 SCMR 1719) decided that the matters

which were either actively pending consideration before the

Authorities for final disposal or had been remanded by the High

Court or Supreme Court were to be finalized by the “Notified

Officers” and held as under:-

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“30. Bare perusal of above provisions would disclose that only

such matters which were either actively pending consideration
before Authorities for final disposal or had been remanded by the
High Court or Supreme Court were to be finalized by the
“Notified Officer”. The Settlement or Rehabilitation Authorities
by express positive assertion have no jurisdiction to entertain any
fresh petition or representation. In the present case undisputedly
question of entitlement concerning agricultural property left over
by Nawab Faiz Ali Khan in Patiala State was neither remanded
by this Court in the above judgment, dated 19th July, 1962, nor
any such directions were made by the High Court while
dismissing the Petition No.121-R of 1989 on 11-2-1990, whereby
notified officer on its strength could commence proceedings.
Therefore, any petition or representation filed by the petitioners
with regard to matter which otherwise legitimate claim, same
under the law could not be entertained by Chief Settlement
Commissioner or Notified Officer or any other Settlement
Authority by virtue of „The Repealing Act‟. Therefore,
proceedings drawn by Settlement Commissioner which
culminated in passing of order, dated 26-2-1992 were devoid of
lawful authority and deemed to have no legal effect. Therefore,
on the established principle of law entire edifice constructed over
it shall automatically crumble and fall to the ground.”

Reliance is also placed on the case reported as Ali Muhammad

through LRs & Others Vs. Chief Settlement Commissioner & Others

(2001 SCMR 1822).

“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,
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 in view
of the Notifications, dated 3rd January, 1958 and 16th May, 1973
issued by the Chief Settlement Commissioner respectively. The
Chief Settlement Commissioner/Notified Authority had no
jurisdiction/lawful authority to make the allotments in favour of
private parties treating their cases to be pending. Similarly
respondent Muhammad Waris and other whose case was
discussed at length was not entitled for transfer of the property in
his favour because admittedly their claim was allegedly verified
on 26th January, 1991 much after repeal of evacuee
laws/regulations by Act of 1975. As far as intervenors are
concerned they may approach the concerned department in view
of the observations of the High Court in Civil Revision No.1062-
D of 1987, decided on 18-6-1990 and Writ Petitions Nos.2-R of
1989 and others decided on 20th June, 1990 for redressal of their
grievance.

As a result of above conclusion Civil Appeals Nos.170 to

176, 185 and 1561 to 1566 of 1999 are dismissed with costs.
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Whereas Civil Appeals Nos.177 to 184 of 1999 are allowed with

costs, as a consequence whereof the impugned orders operating
against the appellants passed by High Court and Chief Settlement
Commissioner / Notified Authority are declared as of no legal
effect.”

Even otherwise, the Hon‟ble Supreme Court of Pakistan in the

latest judgment reported as Member Board of Revenue/Chief

Settlement Commissioner, Punjab, Lahore Vs. Abdul Majeed &

Another (PLD 2015 SC 166) has conclusively held that the Chief

Settlement Commissioner / Notified Officer is not competent to

make any fresh or any alternate allotment of land to person in lieu of

any belated claim. It was finally observed that only the actively

pending matter shall be treated as pending proceedings or the matter

which are recommended by High Court and Supreme Court cases

within the ambit of the pending proceeding. Moreover, after

promulgation of Repeal Act, 1975, all the evacuee properties, both

urban or rural, including agricultural stood transferred to the

Province against the paid consideration and the Provincial

Government has been empowered to dispose of the same through

respective urban and rural schemes. Whereas, from the plain reading

of the above provision of law, it evinces that Notified Officer was

empowered only to dispose of pending proceeding or the matter

remanded back by this Court or the Hon‟ble Supreme Court.

7. Now coming to the instant lis relating to Writ Petition

No.39990/2016, where the allotment of Nawabzada Walayat Ali

Khan / respondent No.1 (allottee) has been challenged. Admittedly

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he obtained allotment of urban agricultural land measuring 28-

Kanals 08-Marlas in District Gujranwala against his urban verified

claim No.9211 for 258 PIUs but said allotment was challenged in

Writ Petition No.667-R/1969 which allotment was set aside by this

Court vide judgment dated 14.03.1974. Feeling aggrieved by order

of this Court, he challenged the same through Civil Appeal

No.215/1976 and the Hon‟ble Supreme Court of Pakistan dismissed

the said appeal vide judgment dated 07.09.1987. After having lost

the cause, respondent No.1‟s allottee / claimant filed application for

the allotment of alternate evacuee land against 258 PIU urban

agricultural units. The then Secretary (Revenue)/Settlement

Commissioner (Land)/Notified Officer, Punjab vide order dated

30.05.1992 declared his claim as pending proceeding under Section

2 (2) of the Act 1975 and allotted urban agricultural land measuring

25-Kanals 06-Marlas bearing Khasra Nos.1488, 1493 and 1494 in

Mauza Harbanspura, Tehsil Cantt., District Lahore to respondent No.

10, which allotment was implemented in the revenue record through

registered mutation No.10445 on 24.06.1993 and same was

sanctioned 05.07.1993. It is quiet pertinent to mention here that since

the allotment of the land on 30.05.1992 neither the respondent

allottee obtained the possession till date nor moved any application

in this regard. Moreover, Assistant Commissioner initiated

proceeding of review and finally cancelled the mutation No.10445

vide order dated 31.05.1995 and land was restored in the name of
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provincial government whereas the said land remained under the

possession of the illegal encroacher who succeeded in obtain order

dated 09.07.2010 for the purchase of said land through private treaty

at market rate. Admittedly, the evacuee laws were repealed w.e.f.

01.07.1974 and the Chief Settlement Commissioner vide

Notification dated 16.05.1973 declared the land in question as

building site which could not be allotted against PIUs after repealed

laws and notified officer was vested with no jurisdiction to allot or

transfer land or grant alternate land after repealed evacuee laws.

Reliance is placed on the cases reported as Muhammad Ramzan &

Others Vs. Member (Revenue) Chief Settlement Commissioner &

Others (1997 SCMR 1635) and Ali Muhammad through LRs &

Others Vs. Chief Settlement Commissioner & Others (2001 SCMR

1822). Further reliance is also placed on the case of Member Board

of Revenue/Chief Settlement Commissioner, Punjab, Lahore Vs.

Abdul Majeed & Another (PLD 2015 SC 166) wherein it has been

held that the Chief Settlement Commissioner/Notified Officer is not

competent to make any fresh or alternate allotment of land.

Furthermore, after the Evacuee Property and Displaced Persons

Laws (Repeal) Act, 1975, the land was vested in the Provincial

Government against the paid price and disposal of such land has to

take place according to scheme framed by Provincial Government

whereas the Notified Officer has no authority to allot the land after

repealed laws as the land was not available for any allotment.
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Reliance is placed on the cases of Syed Saifullah Vs. Board of

Revenue, Balochistan through its Member (RJT) & 4 Others (1991

SCMR 1255) and Mirza Zafar Ali & Others Vs. Lahore Cantonment

Cooperative Housing Society Limited (2005 SCMR 985) whereas

the Chief Settlement Commissioner (Lands), Punjab, Lahore on

30.05.1992 and 24.06.1993 passed orders of allotment of land

measuring 25-Kanals 06-Marlas in Harbanspura Cantt., Lahore qua

the unsatisfied 258 PIUs urban in favour of respondent No.10

(allottee) in contravention of the Evacuee Property and Displaced

Persons Laws (Repeal) Act, 1975 as well as the Scheme for the

Management and Disposal of Available Urban Properties, 1977 and

also against the dictum laid down in Ramzan‟s as well as Ali

Muhammad and Rafaqat Ali‟s cases. Admittedly, the land of

Harbanspura is declared building site which was not available for

any allotment whereas the Notified Officer went beyond his

jurisdiction in making allotment of urban evacuee land against the

unadjusted PIU rather same can only be disposed of through

unrestricted open auction, as such, the order passed by the Notified

Officer in favour of Nawabzada Walayat Ali Khan dated 30.05.1992

and mutation No.10445 dated 24.06.1993 are illegal and void ab-

initio, as such, the same are not sustainable in the eye of law

consequently subsequent orders of the Notified Officer dated

18.06.2016 as well as order of ADCG dated 22.08.2016 have no

substratum to stand, as such, same are set aside accordingly.

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8. The next point for adjudication and determination before this

Court is that;-

(2) whether the Member (Residual Properties) has the

jurisdiction to order the sale of urban evacuee / state land to
the encroachers, illegal occupants who took possession of the
state land since 1995?

Admittedly, land measuring 253-Kanals 04-Marlas comprising

Khasra Nos.142 to 1431, 1435-1477 to 1485 and 1488 to 1517

situated in Mauza Harbanspura was an evacuee land which was

transferred to the TDCP vide Colony Department Memo No.360-56-

1/805 dated 16.03.1986 for the establishment of tourist village but

due to deficiency of the funds the said project could not be

accomplished and Managing Director, T.D.C.P. vide Memo

No.TDCP/ DM(P&D)/93/117 dated 27.05.1993 intimated the

Member, Board of Revenue for surrender of 203-Kanals land which

was in possession of illegal occupants. Rafaqat Ali and 28 others, the

occupants in possession of the land filed application under Section 3

of the Evacuee Property and Displaced Persons Laws (Repeal) Act,

1975 for the purchase of land under their possession which

application was dismissed. They filed a Writ Petition No.103-R/1995

which was allowed by this Court vide order dated 11.07.1995

thereafter the said Rafaqat Ali alienated his possessory right to

respondents No.1 to 8 sitting occupants (the petitioners of Writ

Petition No.39990/2016). Against the above order of this Court, the

Chief Settlement Commissioner filed Civil Appeal No.969/1996

which was allowed by the Hon‟ble Supreme Court vide judgment

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dated 22.04.1998 (reported as 1998 SCMR 2596) holding therein

that Rafaqat Ali etc. were not eligible to purchase the said land and

also directed the Member / Administrator (Residual Properties) to

dispose of said evacuee urban land as per the Scheme for the

Management and Disposal of Available Urban Properties, 1977.

After having lost the cause upto the Supreme Court of

Pakistan Rafaqat Ali and others again filed application on

07.12.2007 whereas the subsequent vendees respondents No.1 to 8

“the occupants” filed application on 20.11.2009 for the purchase of

said land through private treaty on the prevailing market price which

request was accepted by the Member (Residual Properties) vide

order dated 09.07.2010 holding that the land be sold to the sitting

occupants at the market price plus 50% penalty which order was

assailed by the occupants through W.P. No.206-R/2010 and learned

Single Judge in Chamber partially allowed the said writ petition and

set aside the imposition of 50% penalty. Feeling dis-satisfied by the

above order, Senior Member, Board of Revenue filed captioned Intra

Court Appeal No.638/2011, whereas legal heirs of Nawabzada

Walayat Ali Khan respondent No.10(i) to (vi) “the allottees” of said

land also filed writ petition No.176056/2018 challenging the order of

Notified Officer dated 09.07.2010 with the assertion that the land has

already been allotted to them vide order dated 30.05.1992 and

mutation No.10444 dated 24.06.1993 whereof has already been

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attested in their favour, as such, said land was not available for any

transfer through private treaty and the same is liable to be set aside.

9. Admittedly, the land in question has already been declared as

building site vide notification dated 16.05.1973 issued under the

provisions of the Displaced Persons (Compensation and

Rehabilitation) Act, 1958 which notification has been validated by

the Hon‟ble Supreme Court of Pakistan. All the evacuee laws stood

repeal through the Evacuee Property and Displaced Persons Laws

(Repeal) Act, 1975 w.e.f. Ist July 1974 and under Section 3 of the

Act ibid. all the evacuee properties both urban or rural including

agricultural land stood transferred to the province and the Provincial

Government has been empowered to dispose of the same through

respective urban and rural scheme visualized under Section 3 of the

Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975

which section is reproduced as under:-

“3. Transfer of Property.-(1) All properties, both urban or

rural, including agricultural land, other than such properties
attached to charitable, religious or educational trusts or
institutions, whether occupied or un-occupied, 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 sub-section (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

Under Section 3(1)(a) read with Section 1 of the Evacuee Property

and Displaced Persons Laws (Repeal) Act, 1975, the Government

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framed Scheme for the Management and Disposal of Available

Urban Properties situated in the Province of the Punjab in 1977

called as “Scheme for the Management and Disposal of Urban

Properties 1977”. In the said Scheme the Definition of “Building

Site” is mentioned in para 1(d) which is as under:-

“1. In this scheme, unless the context otherwise requires:--

(d) “Building Site” means any vacant plot of land which is

not within a well defined compound of a permanent building and
includes:--

(i) A site on which the permanent construction, if any, does

not exceed in area by 1/8th of the site;

(ii) any site on which any building existed but was completely
demolished by floods, fire, incendiary or by any natural
calamity.”

Similarly according to claim of possessory right, possession is a

determining factor and only those occupants would be considered

eligible to apply for such allotment who retain possession on the

terminus date i.e. on 01.01.1976 and word possession has also been

defined in para 1(i) of Scheme supra as under:-

“1. In this scheme, unless the context otherwise requires:--

(i) “Possession” means possession obtained on or

before the first day of January, 1976 by any person and
includes his successors-in-interest and assignee;”

Whereas the parameters for the disposal of available properties are

defined in para Nos.6, 11, 12 and 30 of the Scheme for the

Management and Disposal of Urban Properties, 1977 which are as

under:-

“6. Transfer of houses, shop and building site having

construction.—(1) Subject to the provisions of this Scheme, an
available house or shop of any value in possession of a person
may, if he applies in this behalf, be transferred to him on transfer
I.C.A. No.638/2011 20
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price or on such price as may be fixed by the Administrator

(Residual Properties) of the area concerned:

Provided that where a house or a shop is applied for by

more than one person in possession, it may be transferred to them
jointly.

(2) An available building site on which a person in

possession has raised a permanent construction and applies for its
transfer, it may be transferred to him on the transfer price:

Provided that in addition to the construction area, only

such portion of the available open space may be transferred to the
applicant which may not exceed three times the constructed area.

(3) Where any person having made a permanent

construction on a building site does not apply for its transfer, it
shall be disposed of through unrestricted public auction
alongwith the construction. The value of such construction shall
be determined by the Deputy Administrator (Residual Properties)
of the area concerned and paid to such a person out of the auction
proceeds by such authority as may be specified.

11. Sale by auction.— A house, shop or a building site

having permanent construction for the transfer of which no
application is received and every property that is cancelled from
the name of a defaulter and a vacant building site shall be
disposed of un-restricted public auction.

12. Disposal of houses, shops or a building sites by

negotiation.— If a house, a shop or a building site having been
put to auction twice fetches no bid or fetches a bid short of the
reserve price it shall be disposed of by negotiation by inviting
sealed tenders which shall be opened by the Deputy
Administrator (Residual Properties) of the area concerned in the
presence of the tenders. If the highest offer made for such a
house, a shop or a building site is equal to or exceeds 75% of its
reserve price, it may be accepted by the Deputy Administrator
(Residual Properties) and where the highest offer made is below
75% of the reserve price but not less than 50% it may be accepted
by the Administrator (Residual Properties), of the area or where
the highest offer made is below 50% it may be accepted by the
Member, Board of Revenue (Residual Properties).

30. Power to transfer properties.—(1) The Member, Board

of Revenue (Residual Properties), may transfer, in public interest
any available property in such manner and on such price as he
may deem proper.

(2) Where a property is partly available property and

partly owned by any person the Member Board of Revenue
(Residual Properties) may transfer the available property on
application to such person on payment of transfer price.”

10. From the perusal of para No.4 of the Writ Petition No.206-

R/2010, the respondents stated that they purchased land from one
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Rafaqat Ali in 1995 and constructed their houses on the said land. It

is interesting that Rafaqat Ali earlier filed application to purchase the

evacuee land measuring 80-Kanals comprising Khasra Nos.1488,

1493, 1494, 1499, 1500, 1504, 1505, 1506 and 1511 situated in

Harbanspura, Tehsil Cantt., District Lahore under his possession but

his request was finally stood rejected through Civil Appeal

No.969/1996 vide order dated 22.04.1998 by the Hon‟ble Supreme

Court of Pakistan which decision is reported as Member, Board of

Revenue, Punjab, Lahore Vs. Rafaqat Ali (1998 SCMR 2596),

declaring wherein that after notification dated 16.05.1973 every

agricultural urban land which had not been adjusted, allotted, or

utilized against verified claim uptill the issuance of above

notification shall cease to be available for any kind of adjustment or

allotment etc. qua such claim. It is further held that the Act XIV of

1975 became effective from the Ist day of July 1974, therefore, the

status of evacuee property as exist on such date could not be changed

or converted subsequent to the promulgation of said enactment and

further held as under:-

“4. We have heard the learned counsel for the parties at some
length, the material available on record and have also gone
through the judgment rendered by this Court in the case of
Muhammad Ramzan (supra). It is an admitted fact that the Chief
Settlement and Rehabilitation Commissioner, Punjab exercising
powers under clause (b) of subsection (3) of section 2 of the
Displaced Persons (Land Settlement) Act, 1958, has vide
Notification dated 16-5-1973, declared all the available evacuee
urban land including such areas which had not yet been
confirmed to any person against verified Produce index Units,
located within urban limits of Municipal Corporation, Municipal
Committee, Town Area Committee, Small Town Committee,
Sanitary Committee or Cantonment throughout the Province of
Punjab as “building sites”. It is also an admitted fact that when
I.C.A. No.638/2011 22
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the evacuee laws were repealed by the Repeal Ordinance, I974

followed by Act XIV of l975, the evacuee Urban land in all the
revenue estates situate within the urban limits of Municipal
Corporation in the Province of Punjab were declared “building
sites” for disposal under section 13 of the Displaced Persons
(Land Settlement) Act, 1958. Thus, visualized, upon repeal of the
evacuee laws, only pending proceedings or those cases decided
by the High Court or Supreme Court, after such repeal, which
had been remanded to any such Authority, in the absence of such
repeal, were to be remanded to the Notified Officer concerned
and required to be disposed of in accordance with section 2 and
subsection (3) of section 2 of Act XIV of 1975.

5. Section 3 of Act XIV of 1975 provides that all properties

both the urban and rural including agricultural land than other
those properties attached to charitable, religious or educational
institutions, whether occupied or unoccupied, which may be
available for disposal immediately before the repeal of the laws
or which may become available for disposal after such repeal, as
a result of final order passed under subsection (3) of section 2
stood transferred to the Provincial Government on payment of
price and in case of urban property, a Scheme of their disposal
was to be prepared by the Provincial Government and rural
properties were to be disposed of by the Board of Revenue under
a Scheme to be prepared by the Provincial Government. It is
further provided therein 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
the land but only that much land shall be offered to such person
as does not together with the land already held by him, exceeds a
subsistence holding within the meaning of Land Reforms
Regulation, 1972. The other provisions relating to allotment to a
displaced person from Jammu and Kashmir State are not relevant
for deciding the controversy in hand.

6. Reference may also made to (PLD 1977 Punjab Statute

page 62) to‫ ‏‬show
‫‏‬ that the Government of Punjab prepared a
prescribed scheme for the‫ ‏‬Management and Disposal of
Available Urban Properties. Reference may also be‫ ‏‬made to PLD
1985 Punjab Statutes page 6, which shows that certain provisions‫‏‬
of the scheme were amended in 1984. Chapter 4 of the Scheme
relates to‫ ‏‬Disposal of Available Properties. Paragraph 6 of the
Scheme deals with transfer‫ ‏‬of house, shop and building site
having construction. The term “available‫ ‏‬property” is defined
vide paragraph 1 (C) as under:-

“Available Properties” mean houses, shops building sites,

hotels, Industrial concerns and cinema house (whether
allotted by the Industries Rehabilitation Board or not)
which were available for disposal on and immediately
before the first day of July, 1974 or which may thereafter
become available for disposal but do not include
properties attached to charitable, religious or educational
trusts or institutions.”
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The term “Building Site” is defined in paragraph 1 (d) which

reads thus:

Building Site means any vacant plot of land which is not within a
well-defined compound of a permanent building and includes:

(1) a site on which the permanent construction, if any, does not

exceed an area by 1/8th of the site;

(ii) any site on which any building existed but was completely
demolished by floods, fire, incendiary or by any natural
calamity.”

In the case of Muhammad Ramzan (supra) this Court

exhaustively discussed the scope of the Notification dated 16-5-
1973 and declared that on the promulgation of the Notification,
dated 16th, May 1973, no agricultural urban land existed or was
available for Disposal and that when the Act XIV, 1975 became
operative there was no land available for adjustment against
Produce Index Units. Mere fact that some matters regarding
adjustment of specified land, were under consideration or had not
been carried out, would not bring the grievance within the
purview of section 2(2) of Act XIV of 1975. Therefore, Notified
Officer had no jurisdiction to allot, or transfer the land or grant
alternate lands again unadjusted verified units. In the case of
Muhammad Ramzan (supra) the dicta laid down in the cases of
Bashir Ahmed v. Punjab University Academic Staff Association
(1991 SCMR 377), Syed Saifullah v. Board of Revenue,
Balochistan through Member (RJT) (1991 SCMR 1255) and
Member Board of Revenue, Punjab (Settlement and
Rehabilitation Wing) Chief Settlement Commissioner, Punjab,
Lahore v. Muhammad Mustafa (1993 SCMR 732), were
reiterated that the Chief Settlement Commissioner was competent
to issue notification for converting agricultural land into building
sites and consequently, Notification dated 16-5-1973 was valid,
therefore, on the issuance of said Notification every agricultural
land which had not been adjusted, allotted, or utilized till then
against verified claim ceases to be available for such claim. It is
further held that the Act XIV of 1975 became effective from the
first day of July, 1974, therefore, the status of evacuee property
as existed on such date could not be changed or converted
subsequent to promulgation of said enactment. It was further held
that the Notification dated 16-5-1973 was executory in nature and
became operative immediately on its issuance and this had the
effect of converting unutilized agricultural urban in entire Punjab
to be building site.

7. As to the contention that the property in dispute was rural

agricultural land, suffice it to say that, there is nothing on record
to show that the property in dispute located in Harbanspura,
Lahore, was not a part of urban agricultural land to answer
description of “available property”. In any event, this disputed
question of fact cannot be raised for the first time in these
proceedings. Clearly, with the repeal of evacuee laws in 1975, the
unallotted agricultural land vested in the Provincial Government
against price paid for it, therefore, its disposal had to take place
according to the relevant Scheme framed by the Provincial
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Government in the year, 1977, as amended in 1985. We are

fortified in taking this view which is in accord with the dicta laid
down in the case of Syed Saifullah (supra).”

Further the respondents occupants themselves asserted in para Nos.3

and 4 of their application moved before the Chief Settlement

Commissioner in CSC Case No.887 of 2009 that:-

“3. That the land being evacuee was allotted against urban
claim in the year 1989 in the name of Mukaram Ali Khan, the
grandson of Nawabzada Liaqat Ali Khan, the first Prime Minister
of Pakistan. Rafaqat Ali, being in possession of the land agitated
against the allotment and got the mutation in the name of the
allottee cancelled. Thereafter, Rafaqat Ali applied for purchase of
the land under section 3 of the Evacuee Property and Displaced
Persons Laws(Repeal) Act XIV of 1975. The sale was refused,
whereupon he filed writ petition No.103-R/1995 in the Lahore
High Court, Lahore. The writ petition was allowed , vide order,
dated 11.07.1995 by a learned Single Judge of Lahore High
Court. After the judgment in his favour Rafaqat Ali passed on
possession of the land to the applicants and others who are in
possession of houses constructed by them.

Application for issue of certified copies of order of the High

Court and the writ petition has been submitted. Certified copies
will be filed in this Court as and when received by the
respondent/applicant.

4. That the Chief Settlement aggrieved of the order of the

High Court dated 11.07.1995 filed Civil Appeal No.969 of 1996
which was allowed by the Supreme Court of Pakistan, vide
judgment, dated 22.04.1998. The order of the High Court was set
aside and it was held that the land being building site is available
for disposal under the provisions of the Scheme For The Disposal
of Available Urban Properties, 1977. The judgment is reported as
1998 SCMR 2596.”

Admittedly, the respondents (occupants) are purchasers of

possession from said Rafaqat Ali whose claim over the very suit land

has already been rejected by the Hon‟ble Supreme Court of Pakistan

declaring said Rafaqat Ali disentitled to purchase the suit land then

subsequent vendees from him cannot be considered eligible to

purchase the evacuee land measuring 64-Kanals 03-Marlas rather

their claim if any has to sail and sink with their vendor‟s right as
I.C.A. No.638/2011 25
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they have no independent status. Moreover, the learned Single

Judge-in-Chamber has conclusively held that the above illegal

occupants drive no right in any respect from the said Rafaqat Ali

which in entirety dis-associate them for the right of their predecessor

and said findings have not been challenged any further which lead to

conveniently observe that respondents occupants are even precluded

to claim the right of possession from their vendor‟s possessory right

since 01.01.1976 whereas they took the possession of the respective

land in 1995 much subsequent to terminus date of possession i.e.

01.01.1976, as such, they are not entitled to purchase the land as laid

down in the supra judgment passed in Rafaqat Ali case, therefore,

the order of the Member (Residual Properties), Board of Revenue

dated 09.07.2010 for sale of property at market price plus 50%

penalty as well as the order passed by this Court in a Writ Petition

No.206-R/2010 dated 30.09.2011 maintaining the sale of evacuee

urban land at market price are contrary to the dictum laid down by

Hon‟ble Supreme Court of Pakistan whereas under Article 189 of the

Constitution of Islamic Republic of Pakistan, 1973 the orders of

Hon‟ble Apex Court are binding upon all the organs of the state. It is

settled law that when law does not permit to achieve a thing directly,

the same could not be allowed to be obtained indirectly. Reliance can

be placed on Bank of Punjab and another Vs. Haris Steel Industries

(Pvt.) Ltd. and others (PLD 2010 SC 1109). The Hon‟ble Apex

Court in the said judgment held as under:-

I.C.A. No.638/2011 26
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“If the interpretation canvassed by Mr. Irfan Qadir, ASC was to

be accepted then the same would not only defeat the clear object
of the provision in question but would also lead to a blatant
absurdity. It would be preposterous and irrational to declare that
once an incumbent of the office of the Prosecutor General had
completed his term of three years then no one had the
competence to extend or enlarge the said term even by one day
but the same competent authority could instead, grant him three
years by appointing him afresh to the same office. In the recorded
judicial history such a situation attracted judicial notice in the
year 1889 in case of Madden V. Nelson (1889 AC 626) and it
was Lord Helsbury who declared for the first time that what was
not permitted by law to be achieved directly could not be allowed
to be achieved indirectly. And the said principle has been
repeatedly acknowledged and followed by the Courts ever since
then and the Courts in Pakistan are no exception in the said
connection. The cases of Mian Muhammad Nawaz Sharif and
Haji Muhammad Boota (Supra ) are evidence to the said effect.”

Reliance can also be placed on a judgment of this Court reported as

Muhammad Sajjad Husain Vs. Government of Punjab through

Secretary Establishment, Lahore and 19 others (2013 PLC (C.S) 1).

Moreover, regarding the similar character of land in Mauza

Harbanspura Lahore, Punjab the Hon‟ble Supreme Court of Pakistan

in American International School System Vs. Mian Muhammad Ramzan

and others (2015 SCMR 1449), after discussing in detail the

provisions of the policy has conclusively held that the subject

evacuee land could only be disposed of through unrestricted open

auction in terms of paras 6 (3), 11, 12 and 30 of the Scheme 1977.

11. Furthermore, from the perusal of Section 3(1)(a) of the

Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975

and the definitions of building site as well as the determination of

any possessory rights and parameters for the disposal of the available

properties are elaborately mentioned in para Nos.1(d) and 1(i) read

with paras 6, 11, 12 and 30 of the Scheme for the Management and
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Disposal of Urban Properties, 1977. Keeping in view the binding

effect of notification dated 16.05.1973 whereby all the evacuee

properties have already been declared building site and under para

1(i) of policy scheme 1977 only those occupants who have

possession on or before 01.01.1976 are only considered eligible to

purchase the evacuee land or apply for the grant of proprietary rights

whereas the respondents occupants themselves admitted in their

petition of having possession in the year 1995 much after the

determined terminus date which dismantle their claim. Moreover,

respondents No.1 to 8 the occupants neither mentioned in their writ

petition nor before this Court that they were in possession of land

before the 1st day of January 1976. Admittedly, they got possession

in 1995 from said Rafaqat Ali whose rights after proper adjudication

has been extinguished infinitum, as such, the subsequent vendees in

possession have no independent right or entitlement to purchase the

land under para No.6 of the Scheme rather conjunctive reading of

para 6(3), 11 and 30 of Scheme 1977 furnishes accumulative affect

to dispose of the evacuee properties through unrestricted open

auction as settled by the Hon‟ble Supreme Court of Pakistan in

American International School System case (supra), as such, the order

dated 09.07.2010 passed by the Member (Residual Properties),

Board of Revenue for the sale of evacuee land to subsequent

occupants is against the policy as well as against parameters settled

by the Hon‟ble Supreme Court of Pakistan in case reported as

I.C.A. No.638/2011 28
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Member, Board of Revenue, Punjab, Lahore Vs. Rafaqat Ali (1998

SCMR 2596). Furthermore, the Hon‟ble Supreme Court of Pakistan

in a C.P. No.709-L/2009 titled as “Member (Judicial-V), Board of

Revenue/Chief Settlement Commissioner, Punjab & 2 Others Vs.

Sagheer Muhammad Khan & Others” settled that after repeal of Act

all such property shall have to be disposed of through unrestricted

open auction so that assets vested in Province which ultimately

belongs to the people of the province shall be duly protected and

safeguarded. The relevant portion whereof is reproduced as under:-

“7. Considering the above, we are clear firstly that the

conclusion arrived at by the learned Single Bench in para 9 of the
impugned judgment, as reproduced above is incorrect and the
reliance on the case of Muhammad Hussain (supra) is also
misplaced. Secondly, it is evident that as of date, the respondents
can have no claim on the property in question. According to the
current law and arrangements put in place by the Province
subsequent to the Repeal Act the property will have to be
disposed of through open public auction so that the assets vested
in the Province and ultimately in the people of the Province are
duly protected. This shall not prevent the Province from
proceeding against the respondents or others both for recovery of
compensation for occupation and use of the property and for any
other action civil or criminal in this case. This petition is
converted into appeal and is allowed in the above terms.”
(Underline to place emphasis)

Whereas the above legal and factual aspect perhaps have not been

debated before the learned Single Judge in Chamber and significant

facts escaped from his judicial consideration as such the impugned

order dated 30.09.2011 passed in writ petition maintaining the sale

of the land at market price as well as order dated 09.07.2010 of Chief

Settlement Commissioner are not inconsonance with law and policy

as Notified Officer was not competent to allot land to illegal

occupants, encroachers who were not in possession of evacuee land

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on 01.01.1976 rather he also adopted modus operandi which is not

warranted by any law policy or any instruction which is farcical

order in nature and can be termed as void ab-initio and not

sustainable in the eyes of law which shall be considered to have been

set aside.

12. In view of the above the impugned order passed by learned

Single Judge-in-Chamber dated 30.09.2011 as well as order of the

Notified Officer dated 09.07.2010 are not sustainable which are

hereby set aside. Resultantly, the application for the purchase of the

land is considered to have been rejected accordingly. Member /

Administrator (Residual Properties) is directed to expeditiously

retrieve the possession from the illegal occupants as per law.

13. As discussed above, the captioned Intra Court Appeal as well

as both the writ petitions are disposed of accordingly.

(AMIN-UD-DIN KHAN) (CH. MUHAMMAD IQBAL)

JUDGE JUDGE

Approved for Reporting.

Judge Judge

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