2019 PLP 2077 (MLD)

MUHAMMAD SHERAZ KIANI, J.

The captioned writ petition has been filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, whereby, the following relief has been implored by the petitioners:- (i) Respondents may graciously be directed to process to acquire the petitioner's land according to law and rules situated at Naluchi/Gojra, District Muzaffarabad Khewat No.15 bearing survey No. (previously 35) presently 76 measuring 19 marlas, and khewat No.45, comprising survey No. (previously 17) presently 82 measuring 3 kanal 5 marlas totally 4 kanal 4 marlas. (ii) That respondents be directed to restrained themselves from any type of construction on disputed land till the final proceeding of acquiring and payment of compensation; (iii) Respondents may kindly further directed to pay compensation of land measuring 4 marlas at market rates prevailing at the time of payments of compensation along with profit at the existing Bank rates immediately."

2. Shortly stated facts of the captioned writ petition are that the land from khewat No.15, comprising survey No.35 old, 76 new, measuring 19 marlas and khewat No.45, comprising survey No.17 old, 82 new, measuring 3 kanal 5 marla situated in Mozia Naluchi/Gojra was allotted to predecessor-in-interest of petitioners, Shahjahan Malik, in accordance with law and rules on 08.10.1956, and after the death of Shahjahan Malik, the entries were made in the revenue record in the names of his three daughters namely Mumtaz Begum, Riaz Akhter and Rukhtaj Akhter. Mumtaz Begum is alive whereas the other two have died and their legal heirs are petitioners Nos. 2 to

15. It has been stated that out of survey No.17 old, new 82, land measuring 7 marla was acquired by respondent No.1 in year 1987 and compensation was also received by the daughters of Shahjahan Malik. It has further been alleged that Police Department in possession of the land wrote a letter to Revenue Department for demarcation of Dispensary which is situated at Naluchi/ Gojra and after receiving the report that land belongs to petitioners, respondents Nos.3 and 4 wrote another letter to respondent No.9 for cancellation of allotment of the petitioners and they were replied to acquire the land as they already acquired a part of the land in year 1987, but without acquiring the land of petitioners, the respondents continued to construct the safety Wall and shops thereupon and dismantled the Dispensary building and thus faced huge agitation from the local public and petitioner's as well. As per contents of petition, the petitioners again got a report from revenue department relating to its demarcation and the said report was submitted to the Police Department which again showed the undisputed ownership of the petitioners. It has been alleged that a suit for declaration regarding the ownership of the land was also filed by the petitioners in the Civil Court No.1, Muzaffarabad and the respondents submitted their objections on the said suit, however, the suit was withdrawn after getting the advice from the senior counsel on 15.07.2013. Hence, this petition, to direct the respondents to acquire the afore-mentioned land and pay the compensation to the petitioners as per law.

3. The writ petition was admitted for regular hearing on 1st June, 2015 and the respondents were directed to file written statement and they filed the same, whereby, the claim of petitioners was refuted in toto and it has been stated that in year 1950, the land measuring 179 kanal 16 marla was duly handed over and allotted to the Police Department and in this regard allotment chit was also issued and in year 1987, upon the land comprising survey No.82, the Police Department started construction which is still continued. It has been stated that upon the said land no objection was raised by the other side and the Police Department has never admitted any right of the petitioners and as per revenue record, the said land is under the ownership and possession of the Police Department and finally they requested for dismissal of the writ petition.

4. The learned counsel for the parties argued the case as per their respective pleadings. The learned counsel for petitioners referred the following authorities:-- 2017 MLD 299 A case titled "Nizam Din and others v. Azad Government and others decided by the Hon'ble apex Court of AJ&K on 25.02.2013.

5. I have heard the pro and contra arguments advanced by the learned counsel for the parties and gone through the record of the case.

6. It is averred by the petitioners that the land of khewat No.15, comprising survey No.35 old, 76 new, measuring 19 marlas and khewat No.45, comprising survey No.17 old, 82 new, land measuring 3 kanal 5 marlas situated in Mozia Naluchi/Gojra was allotted to predecessor-in-interest of petitioners, Shahjahan Malik, and the same is in their ownership and the respondents/department are in illegal possession of the said land. Prayer has been made that the respondents may be directed to acquire the petitioner's land according to law and compensation may be given to the petitioners. A perusal of record shows that the land was allotted to Shahjahan Malik, predecessor-in-interest of the petitioners on 08.10.1956, however, it is not revealed from the record that after allotment, the petitioners or late Shahjahan ever got the possession of the land rather the record shows that since long the suit land is in possession of the Police Department and specifically Police Department is not impleaded in the line of respondents which is a necessary party. Although some officials of the department have been impleaded in the line of respondents and according to law, the department which is occupying the land was a necessary party as direction sought to be given to the department not to any official of the department, so this writ petition is liable to be dismissed on this sole ground.

7. Furthermore, the claim of the petitioner that they are owners of the land and they should be compensated according to law is also belied from the record as although the allotment was made in their favour and as such the entries in the revenue record are found but so far it is neither pleaded nor established that the proprietary right has been given to the petitioners. Unless they are not granted proprietary rights by the learned Custodian, their claimed right of ownership shall be deemed as premature. It is true that the right to hold and possess the property is a fundamental right of all the state subject as enshrined in the constitutional provision of Azad Jammu and Kashmir Interim Constitution, 1974, and nobody can be deprived of his property without compensation and no authority can be authorized to snatch the property of any person without due process of law and the same has been laid down in the referred judgment cited by the learned counsel for petitioners but the question in the instant case arises that the petitioners who have not been granted proprietary rights or right of ownership under the relevant provision of law by the Custodian and in absence of such grant, whether they can be considered as owners merely on the strength of allotment made in their favour? The answer is in negative, because no person can become the owner of any property except through operation of law or transfer of the ownership through recognized mode by competent authority/person. In the instant case, neither after the allotment, the petitioners were granted proprietary rights nor the land was transferred in their names, still they do not find any place in the column of ownership of the revenue record.

8. It is to be noted that as, the land in question is an evacuee land and under section 18-A(1) of the Pakistan (Administration of Evacuee Property) Act of 1957, as adopted in Azad Jammu and Kashmir, an allottee can enjoy the proprietary right, but a procedure has been given in subsections (2) and (3) of the said section, that how and after fulfilling certain requirements, the allottee, can be granted the proprietary right by the Custodian. Before getting such rights they do not become owner. Ownership as defined in Black's Law Dictionary, is collection of rights to use and enjoy property including right to transmit it to others. It is a complete dominion, title and the entirety of the powers of its use and disposal by law. Obviously without proprietary right certificate or at least no objection certificate to be issued by the Custodian, the petitioners are not authorized to transfer or dispose of the land under discussion. When, once the proprietary rights are granted to the allottee, he gets place in the column of ownership and unless the same are awarded to the allottee, he will be entered only in the column of cultivation in revenue record. In the ownership column still the entry reads as under:- Therefore, in my view, the petitioners cannot be treated as complete owner of the suit land and when they are not owners, right of compensation, under the relevant provision of the Constitution, does not accrue in their favour. However, it is observed that if they succeed to get the proprietary rights under the relevant rules and law then they would be at liberty to file the fresh petition for requisite relief but at this stage their writ petition is premature.

9. With regard to the effects of an allotment, it is to be observed that when a person is allotted a particular piece of land, it is the responsibility of the Rehabilitation Authority under the Azad Jammu and Kashmir Rehabilitation Act, 1956 to put the allottee into the possession of the allotted land, so when the land is allotted to the petitioners, it was for the petitioners/allottees to apply for the possession of the land before the Rehabilitation Authority or before Civil Court to get the possession of the land if the same was illegally occupied by the Police department. The petitioners should have also applied before the Custodian for grant of proprietary order too. This Court is not supposed to pre-empt the Custodian to discharge his functions. The law is well settled on the point, that an act prescribed by law to be done in a particular manner, that shall be done in that manner or not at all. So, in view of Article 44 of Azad Jammu and Kashmir Interim Constitution, in presence of such alternate remedy the writ petition cannot be issued in favour of petitioners on the basis of only allotment order which was issued in year 1956 without putting the petitioners into possession, as they have not availed the alternate remedy by applying before the Rehabilitation Authority for possession or continued their suit before the Civil Court. In the writ jurisdiction the prayed relief can only be granted in case they prove themselves the owners of the land and in absence of any proprietary rights they cannot be declared as owners of the land. The authorities referred by the learned counsel for the petitioners are not helpful due to distinguishable facts of the case, therefore, not to be discussed in detail. Therefore, in the light of what has been stated above, finding no force in this writ petition, it is hereby dismissed with no order as to the costs. ZC/33/HC(AJ&K) Petition dismissed.