P L D 1983 Peshawar 17 (PLP)

Nasiruddin Qureshi (petitioner) calls in question through this writ petition the orders of respondents Nos. 1 and 2 dated 15-2-1979 and 26-6-1978 (correct date being 29-6-1978) respectively. The petitioner claims that he, being a refugee from Kashmir, the disputed property was transferred to him under Settlement Scheme VII of the Settlement Laws. In the survey con ducted in 1950-54 the property in dispute was shown to be the property of non-Muslims. The aforesaid survey was conducted and verified by the Custodian Department with the approval of the elders of the village which also bears the names of Abdul Shakoor father of respondent No. 4, and Abdul Malik respondent No. 3 as attesting witnesses. However, subsequently a note was appended to the survey register by some Field Qanungo to the effect that the `abadi' belong to the non-Muslims but the site underneath belonged to the Muslim although the said note was not attested by any authorised person. The Assistant Settlement Commissioner vide his order dated 26-61969, transferred only of abadi the house in favour of the petitioner and the land undernearth was treated as the property of the Muslims. About the shops it was mentioned that those shall be allotted to other deserving persons, though it was observed that the houses were allotted to the petitioner free of charge, he being a refugee from Jammu and Kashmir.

2. The petitioner and his brother feeling aggrieved appealed to the Deputy Settlement Commissioner who, vide his order dated 14-10-1969, accepted the appeal and observed that in order to ascertain the truth or the falsity of the petitioner's claim, he himself inspected the spot and also examined the relevant entries in the Survey Register and came to' the conclusion that the property in question was the ownership of one Bagat Birbal, and Juma Khan on behalf of one Abdul Shakoor was mentioned to be `Ijaradar' of the house situated on the land in question. However, the entry, in column No. 15 of the Survey Register made by the Girdawar (Field Qanungo) show ing the land undernearth the houses as the property of Muslim, was held as having been inserted subsequently because the remarks of the Girdawar dated 11-5-1955 were inconsistent with the entries in the columns concerning the owner and the `Ijaradar' of the property. Moreover, the remarks were not attested by the Revenue Officer concerned and it was not clarified as to on what basis the Girdawar, had made those remarks. It was also not verified that if the columns concerning owner and `Ijaradar' related to the superstruc ture only, then who was the owner of the land in question. There was no documentary evidence showing the land underneath the superstructure belong ing to the Muslims. The copy of the Survey Register shows the name of Abdul Shakoor father of respondent No. 4 as `Ijaradar' and not as an owner. Thus, the Deputy Settlement Commissioner, came to the conclusion that the land in question and the superstructure thereon were correctly described as Evacuee Property in the Survey Register. About the shops it was held that these were to be treated aq one unit alongwith the land and other superstruc ture; being the Evacuee Property previously owned by the same person. Thus in these circumstances, the Deputy Settlement Commissioner vide order dated 14-10-1969, transferred the land alongwith the houses and the adjacent shops in favour of the petitioner and his brother.

3. Thereafter, the petitioner and his brother applied to the Assistant Commissioner, Nowshera for obtaining the possession of the property trans ferred in their favour and after recording the statements of the occupants of the property, the possession was delivered to them accordingly.

4. Abdul Shakoor father of the respondent No. 4, who was a signatory to the entries mentioned in the Survey Register instituted a civil suit claiming the land in question as his property but his suit was dismissed on 25-2-1977 by the Civil Court for lack of jurisdiction. However, in the meantime he died and his son Muhammad Shafi respondent No. 4 had preferred an appeal before the District Judge the proceedings wherein have been stayed because of the pendency of this writ petition. It may be noted that apart from filing the aforesaid civil suit, Abdul Shakoor had not challenged the transfer of the property in favour of the petitioner and his brother before any Settlement Authority.

5. Sheikh Abdul Malik respondent No. 3, who is also a signatory to the Survey Register, for the first time submitted an application to the Additional Settlement Commissioner (Addl. Deputy Commissioner) on 20-8-1977 laying claim to only one house for the reason that it belonged to Bhagat Birbal his maternal uncle. It was alleged that the said house was in his occupation but it is obvious that the claim of respondent No. 3 was not supported by the entries in the Survey Register, which showed the property of Bhagat Birbal in possession of Juma Khan through Abdul Shakoor `Ijaradar' and there is no evidence to show that respondent No. 3 ever remained in possession of the house claimed by him. It may be noted that by this application submitted on 20-8-1977, respondent No. 3 challenged the transfer of the disputed property, effected on 14-10-19;;9, in favour of the petitioner. However, his application was accepted by the Additional Settlement Commissioner on 29-6-1978, holding that the property in question was not an Evacuee Property with the result that the transfer in favour of the petitioner and his brother was set aside. The petitioner's revision petition before the Settlement Commissioner (Lands) also met the same fate and hence the present writ petition.

6. The learned counsel .for the petitioner argued that the orders of respondents Nos. 1 and 2 dated 15-2-1979 and 29-6-1978 respectively, are without jurisdiction, and liable to be set aside for the reasons that the above officials were not authorised to declare the property as non-evacuee because neither of them was vested with the powers of the Custodian or Deputy Custodian. Moreover the matter in dispute, not being a pending case, could not have been taken cognizance of by the aforesaid officials after repeal of Settlement Laws by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XXIV of 1975) which came into operation with effect from 1-7-1974. It was further contended that the remedy available to the contest ing respondents was under section 22 of Pakistan Administration of Evacuee Property Act, 1957 (Act XII of 1957) whereunder they could have applied for a declaration as to the nature of the property before the competent forum, and that too before the repeal of the Settlement Laws. The learned counsel for respondent No. 4, on the other hand argued that the property in question was never treated as the Evacuee Property by any authority before 1-1-1957, as required by section 3 of Act XII of 1957. He further contended that in the Survey conducted in 1950-54, Abdul Shakoor, father of respondent No. 4, was shown in possession of the property through tenants and the entry made by the Girdawar showed that the land underneath the superstructure belonged to the Muslims and as such the land in question was wrongly treated an Evacuee Property and transferred to the petitioner and his brother by the Deputy Settlement Commissioner on 14-10-1969. It may be noted that Abdul Shakoor is not mentioned as owner of the land in question in the Survey Register, rather by putting his signatures as an attesting witness, he had admitted that the property in fact belonged to the non-Muslims and the finding of the Deputy Settlement Commissioner in his order dated 14-10-1969, that the aforesaid entry made by the Girdawar in the Survey Register was erroneous and inconsistent with the other entries contained therein would also show that the property belonged to the non-Muslims. It is clear that the aforesaid entry made by the Girdawar in the Survey Register was dis believed by the Deputy Settlement Commissioner for cogent reasons. More over aforesaid findings were never questioned by the constesting respondents before competent forum. The measures taken, by the father of respondent No. 4, who filed a civil suit in the Civil Court and Sheikh Abdul Malik respondent No. 3, who for the first time filed an application before the Additional Settlement Commissioner on 20-8-1977, cannot be justified in law because they have not chosen their adequate remedy available to them under the relevant law. It is also urged that no P. T. O. or P. T. D. had been issued in favour of the petitioner but it is pointed out that the property was transferred to the petitioner and his brother under Settlement Scheme VII, and they being refugees from Kashmir, were entitled to the transfer free of charge. Thus in the circumstances, he issuance of P. T. O. or P. T. D. in their favour was not called for. The learned counsel for respondent No. 4 also contended that his client being in possession was entitled to the transfer of the house under Settlement Scheme No. VII, but he failed to point out that any such application was ever submitted by his client to the concerned authorities. Excepting the filing of the civil suit he has taken no measures for getting the property transferred in his favour.

7. It is evident that the property in question stood transferred in favour of the petitioner and his brother by the Settlement Commissioner on 14-10-1969. No appeal or revision was lodged by the contesting respondents to impugned the aforesaid transfer and it was at very belated stage that respondent No. 3 presented an application to the Additional Settlement Commissioner on 20-8-1977 calling in question the transfer in favour of the petitioners and for the restoration of the house allegedly belonging to his maternal uncle. Similarly "the father of respondent No. 4 instead of seeking his remedy according to law filed a civil suit which was dismissed for lack of jurisdiction.

8. Under section 7 of the Administration of Evacuee Property Act, 1957 (Act XII of 1957) all Evacuee Property automatically stood vested in the Custodian and no declaration was required for the purpose. However, section 22 of the Act allowed a person feeling aggrieved, of any such treat ment of the properly as evacue to prefer a claim for a declaration that the property was not an Evacuee Property and has wrongly been treated so. In this case, if the contesting respondent felt aggrieved of the entries made in the Survey Register showing the property as Evacuee Property, should have availed of the remedy under section 22 of the Act. Not only that no claim of the type was preferred before the competent authority, it is also clear that the order dated 14-10-1969 of the Deputy Settlement Commissioner was also not questioned before any competent forum.

9. In view of the fact that the property in question was treated as Evacuee Property since prior to 1955, the Additional Settlement Commissioner and the Settlement Commissioner obviously had not jurisdiction to entertain the application of respondent No. 3 dated 20-8-1977 and to declare the property as non-Evacuee, because they were appointed under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 only to c dispose of the cases pending since before 1-7-1974 and this case not being a pending one could not have been taken cognizance of by them. Moreover, under section 41 of Act XII of 1957 no Court or authority, other than the Custodian, has the jurisdiction to declare whether any person or property is or is not evacuee and thus it is obvious that both the respondents have acted without jurisdiction in passing the impugned orders and declaring the pro perty in dispute as non-Evacuee. In Muhammad Akram etc. v. Deputy Settlement Commissioner etc. (P L D 1979 Note 109 at n. 81) it was held that :-- "The Displaced Persons (Compensation and Rehabilitation) Act had been repealed with effect from 1st July, 1974. Respondent had never pursued the disposal of his form at least since 1968 when he signed the first Partnership deed. He could challenge the order within 15 days which he did not do. He, therefore, shall be deemed to have waived whether right he could have claimed in the property after lapse of 15 days. His form also became ineffective and stood withdrawn due to his acquiescence. There was thus no case pending on the repeal of the Displaced Persons (Compensation and Rehabilitation) Act to be heard under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The exercise of the jurisdiction by the Deputy Settlement Commissioner was, therefore, without lawful authority on that ground also." Similarly in Mst. Anwar Bai v. Deputy Settlement Commissioner (P L D 1979 Kar. 706) it was held that :- "If there was no proceedings pending in respect of their claim before 1st July, 1974, the authorised officer under Ordinance XV of 1974 will have no power to deal in such matter and even, if there is anything wrong with the verification of the claims then the same can only be gone into in a civil suit."

10. For the above reasons, I have come to the conclusion that the impugned orders dated 15-2-1979 and 29-6-1978 of respondents Nos. 1 and 2 respectively are not maintainable as they have erred in not taking into con sideration the relevant provisions of law and have acted in excess of their jurisdiction. Thus by accepting the writ petition, the impugned orders are declared to be without lawful authority and of no legal office. No order as to costs. S. A. H. Petition accepted.