2002 PLP 1161 (SCMR)

ABDUL HAMEED DOGAR, J.‑‑‑This appeal by leave of the Court is directed against the judgment dated 10‑10‑1994 of Lahore High Court. Bahawalpur Bench, whereby Writ Petition No.87/R of 1976/BWP was allowed and order dated 20‑2‑1973 passed by respondent No.6 was declared to be without lawful authority and of no legal effect.

2. Facts leading to the filing of the instant appeal are that the disputed Killa No.7‑B of 125/15 measuring 19 Marlas was initially allotted to Rashid Ahmad, father of the appellants, in 1947 and it remained in his possession all along but was wrongly confirmed against R.L.II No.4 in the name of Rao Liaquat Ali Khan respondent No.7 on 31‑5‑1972. Respondent No.6 vide order dated 20‑3‑1973 cancelled the allotment of appellants' father Rasheed Ahmad. Even after the repeal of Evacuee Laws. the disputed land had neither remained in the name of the Central Government nor was ever available for allotment against pending units of respondent No.7 Rao Liaquat Ali Khan, whose claim was not transferred to the village Kot Samaba, Tehsil and District Bahawalpur which is evident from the transfer certificate issued by the District Authorities of Rahim Yar Khan and Bahawalpur. But the same was allotted under the new scheme known as 'Management and Disposal of Urban Properties'. The appellants' father applied for the sanction of the mutation but the same was kept pending by the Revenue Authority as per orders of the Revenue Officer dated 24‑9‑1978. Thereafter, said Rashid Ahmad came to know that respondents Nos. l to 5 had filed the above mentioned writ petition before the Lahore High Court wherein he of himself impleaded as respondent and filed written statement.

3. Rao Liaquat Ali Khan respondent No. 7 displaced person whose claim was verified to the extent of 1/38th produced index units in lieu whereof he obtained the allotment for the following three properties which was confirmed in his name on the respective dates giving as follows: "

1. Land measuring 5 Kanals equivalent to 65 P.I. Units situate in Mauza Qadir Bakhsh Channar Tehsil Bahawalpur. confirmed on 23‑6‑1971 at Khata R.L. II No.72.

2. Land measuring 4 Kanals equivalent to 52 P.I. Units situate in Mauza Hansra, Tehsil and District Bahawalpur. confirmed on 31‑5‑1975 at Khata R.L. II No. 4.

3. Land measuring 5 Kanals 4 Marlas equivalent to 68 P.I. Units situate in Mauza Hansra, Tehsil and District Bahawalpur. confirmed on 23‑8‑1972 at Khata R.L. II No.5.

4. Although his entitlement was verified to the extent of 138 P.I. Units yet he somehow managed to have land equivalent to 185 P.I. Units transferred. Respondent No.6, called upon Muhammad Aslam, the attorney of Rao Liaquat Ali Khan, and asked him to surrender an area of his choice to the extent of 47 P.I. Units which was in excess of his allotment. The said Muhammad Aslam made a statement wherein he consented to the surrender of 19 Marlas of land from Khata R.L. II No.4 and 2 Kanals and 8 Marlas from Khata R.L. II No.5 earlier confirmed. On the basis of such statement, respondent No.6 cancelled the transfer of land measuring 3 Kanals, 7 Marlas out of the abovementioned RLs vide order dated 20‑2‑1973.

5. On 31‑5‑1972 respondent No.7 sold 19 Marlas from Khata R.L.II No. 4 to respondent No. l Mirza Munawar Beg and got the same mutated vide Mutation No. 327 on 6‑9‑1972, who further sold the same to respondents Nos. 2 to 5 vide Mutation No. 343 sanctioned on 18‑11‑1973.

6. Leave to appeal was granted by this Court ‑ on 7‑11‑1995 to consider:‑‑ "Admittedly, Rao Liaquat Ali Khan obtained excess allotment to the extent of 47 P.I. Units. The only question for consideration in this petition is whether while determining the area that he should be made to surrender he should have been allowed a choice or that the area. which he had obtained after his entitlement had been exhausted ought to have been taken away from him. To consider this question leave to appeal is granted. Status quo with regard to possession to be maintained during the pendency of the appeal. "

7. We have heard Ch. Qamaruddin Meo, learned counsel for the appellants and Bashir Ahmed respondent No.4 in person.

8. Ch. Qamaruddin Meo, learned counsel mainly contended that Writ Petition No. 87/R of 1976/BWP was liable to be dismissed on the ground of laches as well as being not maintainable as legal remedy to assail the order dated 20‑2‑1973 of respondent No.6 under the Evacuee Laws available till 30‑6‑1974 in the shape of revision/appeal was not availed before any competent Authority. He argued that the learned Lahore High Court failed to appreciate the fact that after the repeal of the Evacuee Laws, the excess land in dispute which was cancelled vide order dated 20‑2‑1973 according to the choice given by Muhammad Aslam, the attorney of respondent No.7, became the property of the Provincial Government Punjab and Rasheed Ahmad, the father of the appellants, was allotted the same on 26‑6‑1978 under the Scheme known as 'Management and Disposal of Available Urban Properties'. He supported the cancellation order dated 20‑2‑1973 passed by respondent No.6 on the ground that the land in dispute could not even be allotted to Rao Liaquat Ali respondent No.7 as no legal and proper order for transfer of his Units was passed by any relevant authority of Districts Rahim Yar Khan and Bahawalpur. He submitted that after the allotment of the land in the name of the appellants' father, the relevant transfer deed was accordingly issued on 26‑6‑1978 and the mutation could not be sanctioned because of a stay order passed by the learned Lahore High. COUT in that regard in the abovementioned writ petition. He contended that the learned High Court did not even consider the fact the Mutations Nos. 327 and 343 were got sanctioned fraudulently by respondents Nos. l to 5 on 6‑9‑1972 and 18‑11‑1973 in spite of the fact that the land in dispute was cancelled from the name of Rao Liaquat Ali. He lastly contended that even respondents Nos.l to 5 were not competent to challenge the choice with regard the surrender of an excess area by the attorney of respondent No.7 as, he himself had not challenged the same before any competent authority.

9. Respondent No.4 vehemently controverted the contentions of the learned counsel for the appellants and contended that the area measuring nine Marlas pertaining to Killa No.7B, of Rectangle No.125/7 confirmed at Register R.L. No.II was alienated by respondent No.7 through his attorney Muhammad Aslam for a consideration of Rs.10,000 in favour of respondent No.1 Mirza Munawar Beg vide Mutation No.327 sanctioned on 6‑9‑1972. Respondent No.l further sold the same to respondents Nos.2 to 5 for same consideration vide Mutation No.343 sanctioned on 18‑11‑1973 which is in their possession since then. According to him, the order dated 20‑2‑1973 passed by respondent No.6 is without lawful authority and of no legal effect. The claim of respondent No.6 Rao Liaquat Ali a displaced person was verified to the extent of 1/38th Produce Index Units in lieu whereof he obtained allotment of the aforementioned three properties.

10. The total outcome of these three kinds of properties reveals that he had been able to manage land equivalent to 185 P.I. Units thus getting 47 P. I. Units in excess of his entitlement. His attorney Muhammad Aslam in his statement shown his willingness to surrender 19 Marlas from Khata R.L. II No.4 and 2 Kanals, 8 Marlas from Khata R.L.II No.5. In view of such statement respondent No.6 cancelled the above land from Khata of respondent No.7. The first two transfers made in favour of respondent No.6 were already in accordance with its P.I. Units and there was no legal E3 objection to the transfer whereas the third transfer effected at Khata R.L. II No.5 was in an excess of his entitlement as by that time he had only 21 P.I. Units left with him but he anyhow managed to have land measuring 5 Kanals, 4 Marlas equivalent to 68 P.I. Units transferred thus being in excess of 47 P.I. Units. As such it was the last allotment which suffered from legal defect.

11. Accordingly while maintaining the impugn judgment, we direct that respondent No.7 should‑surrender immediately 47 P.I. Units obtained in excess from his last allotment at Khata R.L. II No.5 to which he was not legally entitled.

12. With these observations, the appeal is disposed of accordingly. Q. M. H. /M. A. K./S‑178/S Order accordingly.