2003 PLP 1026 (CLC)

Ch. Muhammad Bakhali for Respondents. Date of hearing: 1st October, 2002. The dispute herein relates to a piece of property covered y construction (residential sites), comprising Killa No.5 of Square No.74, situated in Chak No.213-RB, Faisalabad. The petitioners claim in occupation thereof since before partition, who statedly had applied for its transfer to them under Scheme No.VII. After some litigation before the Settlem Authorities, the matter eventually reached this Court in Writ Petition No.901-R of 1974, filed by thirteen persons. The said petition was accepted vide judgment dated 1-10-1979, setting aside the orders of Settlement Authorities and directing that an officer competent to decide the matter under both the laws, Displaced -Persons (Compensation and Rehabilitation) and Displaced Persons (Land Settlement) Act, shall rehear the parties and decide the dispute in accordance with law". This judgment was assailed by the predecessor-in-interest of the respondent No. 1, before Hon'ble Supreme Court of Pakistan, but the petition for leave was dismissed on 12-7-1980. The matter, thereafter, came to be considered by the officer in pursuance of the remand order. Some proceedings in view of intervention of one Asghar Ali Shah, gave rise to writ petitions, the detailed reference to the same, however, is not relevant now in the context of the dispute in this petition. On 8-12-1993, I the Notified Officer, ordered the transfer of the portions in occupation of If the petitioners under Settlement Scheme, NO.VII. That order was challenged by respondent No.l, through Writ Petition No-150-R of 1994, which was accepted, remitting the matter for fresh decision "keeping in view the previous judgments of this Court and the directions of their Lordships of Supreme Court, referred to above". This was vide judgment dated 15-1-1997. The matter was then taken up by respondent No.2, who vide the impugned order dated 8-9-1997, held that the petitioners were not entitled for the transfer of the area in their possession under Scheme No.VI1 and proceeded to reject their forms It is this order, which has been assailed through this petition under Article 199~of the Constitution.

2. The correctness and legality of the order passed by the Notified Officer, is assailed by the learned counsel mainly on the ground that it was the status of the property as per special Jamabandi of 1946/47, which had to be taken into consideration. According to him, paragraph No.29 of Rehabilitation Settlement Scheme, would govern the situation. It is contended that in the Jamabandi since before partition the property is described as "Ghair Mumkin Abadi", which was, thus, to be treated and disposed of as such, Reference in this context has been made, to Syed.Shaukat Hussain Rizvi v. K.B. Dr. Yar Muhammad Khan and another PLD 1974 SC 276 and Capt. Asmat Hayat and others v. Yousaf Masih and others 1994 SCMR

456. It is further contended that the occupation of the petitioners cannot be disputed in view, of the facts on the record and findings in the judicial orders in the previous round of litigation.

3. The learned counsel for the contesting respondent supports the order passed by the Notified Officer and contends that the premises in occupation of the petitioners cannot be considered to be in their "possession" to entitle them to claim its allotment/transfer, as the same were subservient to the agricultural land allotted to the respondent. It is contended that the case of the petitioners does not fall within the scope of Scheme No.VII. According to him,, the occupation of the petitioners was of permissive nature, which does not permit them to claim allotment in their own right. Reference has been made to Zafar Niazi v. Qazi Sayed Shujaatullah and others PLD 1965 (W.P.) Kar. 52; Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore 4nd another PLD 1965 (W.P.) Lah. 445; Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner and 6 others PLD 1975 Pesh. 244 and Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another PLD 1969 Lah. 480,

4. A perusal of entries in the Jamabandi of 1934-1935, would clearly show that this particular Killa number was "Ghair Mumkin Abaqi" occupied by "Bashindgaan Abadi". The same entry appears in the Jamabandi of 1946-47, that six Kanal of this. Killa number was "Ghair Mumkin Abadi". In view of paragraph 29 of the Rehabilitation Settlement Scheme and the judicial pronouncements by the Hon'ble Supreme Court in Shaukat Hussain Rizvi's case (supra) and Capt. Asmat Hayat Khan's case (supra), the property cannot be treated or dealt with otherwise than it is described in the Jamabandi of the 1946-47, which as mentioned above, was occupied by "Bashindgaan Abadi" for their residential purposes.

5. So far as claim of the petitioners as to their possession/ occupation is concerned, there cannot be any different view than was noted and observed by their Lordships of Supreme Court in C.P.S.L.A. No. 1045 of 1979, dismissing the petition filed by the predecessor of the respondent against the judgment of late Gul Muhammad Khan, J, mentioned above. It was observed by their Lordships "that the respondents (who were petitioners in Writ Petition No.901-R of 1974), claim that the area had been built upon by the evacuee owner and was occupied by them after partition. The petitioner did not deny that fact but stated that the structure as found at the time of partition was not habitable and he invested huge amount in improving it. It is also mentioned as a fact and not denied by the petitioner that he himself at one. stage applied on a. CH Form for the transfer of the disputed property as its value exceeded to Rs.10,000". The assertion of the petitioners that property was used for residential purposes and was in their occupation. thus, cannot be disputed or denied by the respondent in view of the above findings appearing in the judgment of their Lordships. The verity of those findings cannot be in any way be assailed in these proceedings. Even the Notified Officer in the post remand proceedings, had found the petitioners entitled to its transfer in view of their occupation vide his order dated 8-12-1993, which order though was set aside by this Court in Writ Petition No.-150-R of 1994, but the fact remains that the occupation of the petitioners stand established from the record. The contention of the learned counsel for the contesting respondents that their occupation was permissive one does not find support from the record and cannot be given much weight. An attempt was made to demonstrate that such occupation of the petitioners cannot be construed as "possession" in terms of the law, therefore, they cannot be allotted/ transferred the premises. The stance of the respondent, however, overlooks the eligibility criteria mentioned in settlement Scheme No.VII. It is "occupation" as per the scheme and not "possession" as defined in section 2(6) of Displaced Persons (Compensation and Rehabilitation Act, 1958. The claim of the petitioners fell well within the ambit or Settlement Scheme No.VII, and they were entitled to the same. In view of the entries appearing in the Revenue Record, in particular Jamabandi of the relevant period i.e. 1946/47, that it was being used and occupies for. residential purposes, it cannot be given any other status except described therein nor held subservient to agricultural purpose. The view taken by respondent No.2 in the matter that it was subservient to agricultural purposes and should remain with the respondent, does not C find support either from the established facts or the law applicable. His approach to the matter is,based mere on conjectures and surmises, who overlooked the material aspects of the case in non-suiting the petitioners. His order thus is not sustainable in law and is declared so. The declaration is, however, confined to the persons, who were party in Writ Petition No.901-R of 1974. The extent of the area in occupation of those persons remains still to be determined. This exercise will have to be undertaken by the Notified Officer concerned in accordance with law, whereas the main issue stand determined as settled above. The writ petition is accepted with the above observations. No order as to costs. H.B.T./M-1520/L Order accordingly.