1994 PLP 105 (CLC)

Date of hearing: 24th April, 1993. This Constitutional petition is directed against order dated 5‑8‑1992 of the Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore by which the disputed property has been sold in favour of the respondents under section 3 of Act XIV of 1975.

2. Facts relevant for the disposal of this writ petition are that land measuring 226 Kanals, 16 Marlas was sold to the respondents but the dispute in this writ petition is for 143 Kanals of land which has been sold to the respondents under section 3 of Act XIV of 1975. This land admittedly was mortgaged by the evacuees in favour of the petitioners in 1937 for a sum of Rs.700. It emerges from the record that the respondents are admittedly in possession of this land much before Kharif 1973 which is a legal requirement for the sale of the land by the Chief Settlement Commissioner under section 3 of the Act XIV of 1975. Before passing the impugned order dated 5‑8‑1992 the report was called for by the Chief Settlement Commissioner and the operative part is as under:‑‑ "The land under discussion is mortgaged with non‑evacuee viz. Ahmad Khan s/o Muhabat Khan, caste Sial Mohni r/o Chak No.262, Tehsil and District Jhang. The mortgagees have never applied for the satisfaction of his charges, thus according to memorandum No.8260/59/377‑RP‑1, dated 17‑12‑1961, from the Settlement Rehabilitation Commissioner, West Pakistan, Lahore the evacuee agricultural land mortgaged with non‑evacuee is to be treated as a land free from all encumbrances yet the petition received from the present mortgagor is enclosed herewith for information."

3. Learned counsel for the petitioners relying upon Mst. Amho Jan and 2 others v. Assistant Settlement Commissioner, (Lands), Abbottabad and 6 others (PLD 1975 Peshawar 244) and Abdur Rehman and another v. Deputy Settlement Commissioner 11 and another (PLD 1977 Lah. 576) submits that firstly the petitioners are entitled to retain the land as mortgagees and the respondents can be the tenants and therefore, the impugned order dated 5‑8‑1992 alienating land in favour of respondents is without jurisdiction.

4. On the contrary the learned counsel for the respondents has relied upon the notifications dated 17‑2‑1963, 5‑1‑1963, and 11‑5‑1963 where the local mortgagees of agricultural land were entitled to claim compensation and it is submitted vehemently by the learned counsel that the petitioners have not applied in this behalf and, therefore, the present writ petition is liable to be dismissed on this ground. It is further stated by the learned counsel that at best the petitioners are entitled to the payment of mortgage money.

5. I have heard the learned counsel for both the parties and am of the opinion that the petitioners have no right to retain the mortgaged land and are only entitled to the payment of mortgage money for which instructions were issued from time to time. Under section 4 of the Displaced Persons (Land Settlement) Act, the land vests in the Central Government free of any encumbrance and as already stated the only right of the petitioners is to file an application for the payment of the mortgage money. By notification dated 5‑1‑1963 the Chief Settlement and Rehabilitation Commissioner directed that the applications registered by the non‑evacuee charge‑holders including Muslim mortgagee for satisfaction of charge money in respect of charges on evacuee agricultural lands should be disposed of expeditiously. It is not proved. on the record whether the petitioners filed any application for the return of the mortgage money in pursuance of various notifications. The reliance by the petitioners on the aforementioned authorities is of no avail because the petitioners have no right whatsoever to retain the disputed property. The only condition under the relevant law for the sale of the property in favour of the respondent is to determine their possession which admittedly is from 1962 as is held in the impugned order. Resultantly, the writ petition has no merit and the same is dismissed with no order as to costs. H.B.T./N‑179/L Petition dismissed.