1989 PLP 1351 (SCMR)

4. As this was the final order passed by the notified authority against with no departmental remedy was available a number of Constitutional petitions were filed in the High Court by the respondents. The learned Judge after examining extensively the law applicable and the claim of the respondents, held as follows:‑ (i) "For all these reasons, my considered view is that the disputed land in the possession‑of the petitioner/petitioners not only vested in the Custodian but the same has actually been treated as an evacuee property and rightly so." (ii) "The petitioners could prove the valid allotments in their favour, if any, by producing ample documentary evidence e.g. the original allotment order, order of exchange, order whereby they were put in possession, any certificate by S.P., D.M. or Special Officer, receipts of the payment of dues, rates etc. which have not been done and as such they have hopelessly failed to prove their entitlement. The photo state or attested copies of the various lists showing the eligibility etc. being the secondary evident as observed by the Supreme Court are not admissible." (iii) "I am of the considered opinion that for the reasons recorded in para. No. 3 of the judgment the disputed land was vested with the Custodian since 1947 and could validly be treated as an evacuee property even after 1‑1‑1957." (iv) "I find that most of the members of the Criminal Tribes were represented by Mr. M. Z. Burki, Advocate. The learned counsel had appeared and argued this case before respondent No. 1 on three dates i.e. 18‑10‑78, 1‑11‑78 and 2‑11‑78 and as such it can be safely assumed that the interested parties were fully aware of the hearing of the matter." (v) I find that the claimants displaced persons who were allotted land in the year 1962 and the land in whose favour was restored through the impugned order dated 12‑12‑78 have not been impleaded as respondents. They are undoubtedly, the necessary parties."

5. On these findings, the learned Judge dismissed the Constitutional petitions on 22‑5‑1982. Intra‑Court Appeals were filed and. all these appeals were disposed of by a consolidated order dated 27‑3-1983. The competency of an Intra Court Appeal itself was challenged but it was adjudged to be competent on the following finding:‑ "Admittedly, no appeal or revision was available against the first part of the order, before any of the authorities, as the relevant law, under which the proceedings were taken, had been repealed and only the pending proceedings, with no incidence of appeal or re6sion, had to continue. Thus the impugned order would have been appealable only if the appellants had chosen to accept the first part. That they did not do. Consequently, the Intra‑Court Appeal is competent:" As regards the merits of their claim, the following finding was recorded: In any case, if due to no fault of theirs and rather to their inconvenience, loss and dislocation, the appellants had been shifted to the present sites, they could not have been ousted there from, after a lapse of 30 days when the allotments made to refugee‑claimants stood cancelled and the orders never challenged." The impugned order of the notified authority was found to suffer from the following two defects:‑ (i) "The order of the Assistant Commissioner/Additional Settlement Commissioner (L) is, even otherwise, illegal. The two portions of his order reproduced in para.9 above would go to show that if the land in dispute has yet to be acquired under section 4 of the Displaced Persons (Land Settlement) Act, it was not a part of the compensation pool. How then could it be allotted to refugees in 1962?" (ii) "In any case, as soon as the Assistant Commissioner Additional Settlement Commissioner came to the conclusion that the land it question was an evacuee property, it shall be deemed to have vested in the Provincial Government with effect from 1st July, 1975,, as there way no subsisting allotment." The appeals were allowed the orders of the Assistant Commissioner dated 13th December, 1978 were declared to be without lawful authority.

6. Mr. Shahzad Jehangir Advocate, the learned counsel for the appellant has contended that all the proceedings have been taken and decisions given without notice to the appellant authorities concerned and without hearing them at any stage. It has further been contended that the Intra‑Court Appeals in the High Court were incompetent because the notified authority had passed the order dated 13th December, 1978 under the repealed law i.e. the Displaced Person (Land Settlement) Act. It was not open to an Intra‑Court Appeal on the strength of decision given by this Court in Karim Bibi and others v. Hussain Bakhsh (P L D 1984 S C 344). If that decision of the Appeal Bench is removed from the scene, the decision of the learned Judge in Chamber would remain in the field and that is in favour of the appellants and provides no grievance to them. On merits of the claim also it is made clear that the property had been treated as evacuee at every stage and had been dealt with as such. The orders to the contrary failed to take note of the various acts done in respect of the property by authorities possessed of the power in the matter.

7. Mr. Ashraf Wahla, Advocate, the learned counsel for some of the respondents has pleaded the finality of the order passed by the Additional Commissioner on 1‑12‑1966 following the judgment of the High Court in the earlier round of litigation wherein the property was held to no non‑evacuee, and against which the appeals were allowed by this Court and remand had been ordered. The Additional Commissioner had entertained this appeal under section 7 of the Colonization of the Government Lands Act, read with section 13 of the Punjab Land Revenue Act. 8.. Mr. Atta‑ur‑Rahman, Advocate, the learned counsel for some of the respondents contends that as all the respondents have remained consistently and uninterruptedly in possession of the land since 1949 or nearabout, the land even if earlier treated as evacuee shall vest in the Provincial Government under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the occupants of the land/respondents would be entitled to purchase the same.

9. There is one Appeal Civil Appeal No.371 of 1986, filed by the allottees of the 'land in occupation of the members of the Criminal Tribe. The judgment of the Appeal Bench of the High Court is sought to be set aside, and to that extent, the cause is common with the other appeals,

10. Ch. Muhammad Farooq, Senior Advocate, learned counsel for these appellants contends that the Intra‑Court Appeal was not competent, that the property was rightly treated as evacuee and allotted, among others to his clients.

11. All the learned counsel representing the respondents are more or less agreed that an Intra‑Court Appeal was not competent but the only factor pleaded is that till 27‑3‑1983, when the Appeal Bench of the High Court decided these matters there was no authoritative pronouncement of this Court in the Field and the respondents were bona fide prosecuting their remedy before a forum which was later found to have no jurisdiction in the matter. The remand by this Court to the notified authority was under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the provisions thereof provided that after remand, the proceedings had to be decided afresh finally by the notified authority under the Repealed Law as if that law was 1 still in existence. As the law under which the Assistant Commissioner/Collector, the notified authority decided the matter on 13‑12‑1978 provided for Appeal, Revision etc. an Intra‑Court Appeal was clearly incompetent. On that view of the matter the impugned decision of the Appeal Bench of the High Court is without jurisdiction and of no avail to the respondents. The time consumed in the proceedings cannot said to be bona fide and condonable.

12. On merits too, we find that the respondents had not a tenable claim. The Government of Punjab as the Custodian of State land had by its letter No.523/TH, dated 4‑7‑1952, notified as hereunder:‑‑ "The Governor of the Punjab is pleased to order that all grantees irrespective of whether the payment has been made or not for acquisition of proprietary or occupancy rights should be treated as Evacuee Property for the purpose of Rehabilitation Settlement Scheme." The Rehabilitation Commissioner had in the year 1956 by Circular No.8157 50/51‑53/R, (R), dated 8‑12‑1956 directed that the area abandoned by non‑. 'Muslim evacuee Criminal Tribes who had acquired occupancy rights should be utilized under Rehabilitation and Settlement Scheme, and the, allotments were made to the refugees accordingly. The Custodian had in case Abdul Ghani v. State held on 26‑12‑1962 that "the land occupied by the non‑Muslim members of the Criminal Tribes under the Criminal Tribes Act (in other districts) before partition and left by them in 1947 was an evacuee property for Rehabilitation and Settlement purpose". This decision was challenged in the High Court by Writ Petition 37 of 1964 and by a Petition for Leave to Appeal but without success. This background clearly shows that since 1952 the evacuee interest in State land was treated as evacuee property and had to be dealt with under the Rehabilitation Scheme. The objection to the want of acquisition of the unallotted evacuee land under section 4 of the Displaced Persons (Land Settlement) Act is misconceived. The notification under section 4(2) of the Act printed at page 26 of Latifs Commentary clearly shows that "all land as defined in clause (3) of section 2" in West Pakistan was acquired and also the land "already allotted under the West Pakistan Rehabilitation Settlement Scheme prepared by the Rehabilitation Commissioner West Pakistan under section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) with the approval of the Central Government" The definition of land as proceded in clause (3) section 2 is as follows:‑‑ "Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens un surveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land, but does not include;‑‑ (a) Property as defined in sub‑clause (b) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (111 of 1956) or in sub‑clause (d) thereof; or (b) Such evacuee land as may he declared by the Chief Settlement Commissioner as a building site." The definition is fairly extensive and exhaustive. The land in dispute having already been declared evacuee and treated as such, while hearing the appeal under the Colonization of Government Lands Act the Additional Commissioner could not declare it to be non‑evacuee or as State land. Such an order could not protect the interest of the respondent whom Mr. Ashraf Wahla, Advocate is representing. The entire land abandoned by evacuee grantees which came in possession of Muslim members of the Criminal Tribes was covered by the notification of acquisition, treated as evacuee, dealt with as such. In view of the foregoing discussion, all these appeals are allowed, the Intra‑Court Appeals judgment dated 27‑3‑1983, is set aside and the order of the learned Judge in Chamber is restored. No order as to costs. AA./S‑304/S Appeals allowed.