P L D 2026 Supreme Court (AJ&K) 17 (PLP)

RAJA SAEED AKRAM KHAN, CJ.

This appeal, by leave of the Court is directed against the judgment of the High Court dated 19.01.2024, passed in Writ Petition No. 916 of 2016.

2. The essential facts of the case are that the private respondents filed a writ petition before the High Court, asserting that the land bearing old Survey Numbers 388, 389, 394, and 395 (renumbered as 934, 935, 936, 937, 937/1, and 963), measuring 18 Kanal and 16 marla, situated at Chatter Kalas, Muzaffarabad, was allotted to their father, Haji Abdul Rehman Tareen, via an allotment chit dated 28.02.1963. They claimed that the land remained in the possession of the Agriculture Department until 18.10.2004, during that period no rent was paid by the department. They further contended that the Proprietary Rights Transfer Order (PRTO) was issued in favor of their father by the Custodian on 22.01.1991. Subsequently, by notification dated 18-10-2004, the land was transferred to the Education Department (Colleges) for the construction of Scouts Cadet College at Chatter Kalas. The respondents sought a writ from the High Court to restrain the appellant and proforma respondents from commencing construction on the disputed land or, alternatively, to acquire it legally if needed for the college's construction.

3. In a previous round of litigation, the High Court accepted the writ petition through an ex-parte judgment dated 11.03.2019. This ex-parte judgment was later set aside by this Court and the case was remanded to the High Court for a fresh decision.

4. The appellant (respondent No. 2 before the High Court) submitted a written statement refuting the respondents' claims. It was argued that the land was transferred to Scouts Cadet College, Chatter Kalas, through a government notification, which was not challenged in the writ petition. The appellant further contended that the land was allotted to the Agriculture Department through an allotment order dated 03.06.1957 and was therefore under its possession, making it unavailable in the surplus pool for subsequent allotment in 1962. Thus, the allotment to the respondents' predecessor was void and legally null. It was also stated that the Agriculture Department had maintained continuous possession since 1950, and neither the respondents nor their predecessor had ever occupied the land. Consequently, the PRTO granted to Abdul Rahman Tareen was alleged to be invalid and issued in contravention of the applicable law. The appellant requested dismissal of the writ petition.

5. After necessary proceedings, the learned High Court accepted the writ petition through the impugned judgment in the following terms:- "In view of the above, to my mind, Petitioners herein, have succeeded to establish their stance, therefore, the writ petition in hand is accepted and respondents are directed to acquire the disputed piece of land falling within the ownership of father of the Petitioners herein, and the Petitioners be compensated in accordance with law. The petition in hand is disposed of accordingly with no order as to costs".

6. Syed Atif Mushtaq Gillani, Advocate, the learned counsel for the appellant is of the view that judgment of the learned High Court is contrary to the law and the facts of the case. He asserted that the learned High Court while delivering the impugned judgment has not given due weightage to the fact that the disputed land was neither in the possession of the Custodian nor available for allotment rather the land in dispute was allotted to the Agriculture Department vide Allotment Chit issued on 03.06.1957. It is a settled principle of law that the land which is not in the possession of the Custodian, or which has not been pooled by the Rehabilitation Commissioner, cannot be allotted under Rehabilitation Laws. He further submitted that the land in question remained under the possession of the Agriculture Department till the issuance of the notification dated 18.10.2004, whereby, the possession was officially handed over to the Education Department. He contended that the disputed land was transferred to the Scouts Cadet College Muzaffarabad, however, neither the Scouts Cadet College nor Board of Governors of the Scouts Cadet College were arrayed party in the writ petition. He further contended that the learned High Court has also not given its findings upon the question of laches, which is fully attracted in the case in hand. The respondents have not explained at all that if the disputed land was allotted in the name of their father in the year 1963 then why they have not tried to take over its possession from the Agriculture Department throughout their life. Lastly, the learned Advocate requested for acceptance of this appeal.

7. Khawaja Imtiaz Ahmed, learned Advocate for the respondents, vigorously defended the impugned judgment, arguing that it is in accordance with established legal principles and warrants no intervention by this Court. He submitted that the Azad Government is a necessary party in matters of land acquisition, as the ownership of acquired property vests in the Government, thereby negating the necessity of including Scouts Cadet College as a party. He further contended that, since the impugned judgment remains unchallenged by the proforma respondents, it has attained finality with respect to them, hence, the appellant can only agitate the case to his extent. The learned Advocate asserted that the disputed land was allotted to the respondents' father through an allotment chit dated 28.02.1963, and the PRTO was issued on 22.01.1991. He argued that the proforma respondent No. 9 transferred the property to the Higher Education Department for the construction of Scouts Cadet College via a notification dated 18.10.2004, without acquisition or payment of compensation, compelling the respondents to file a writ petition, which was justly accepted by the High Court. Regarding the allotment chit dated 03.06.1957, he argued that its photocopy has been submitted before the High Court, hence, the same is not admissible as evidence under the law. He further argued that earlier the allotment of land in favour of respondents' father was challenged by one Wali Muhammad Wani. In the said litigation, Agriculture Department was impleaded as respondent No.3. The learned Custodian vide judgment dated 23.09.1993 declared the allotment of respondents' father as legal, hence, now at this stage the allotment of the respondent cannot be made disputed. Finally, the learned Advocate emphasized that the Agriculture Department is not recorded in the revenue record as the allottee of the disputed land, whereas the respondents' father is entered as the owner. He concluded that the High Court acted lawfully in passing the impugned judgment, without any legal impropriety.

8. We have heard the learned counsel for the parties and gone through the record.

9. In this case, the respondents are asserting the ownership of the disputed land measuring 18 kanal 16 marla situated at Chatter Kalas, Muzaffarabad. They claim that this land was allotted to their father via an allotment chit dated 28.02.1963 and later the PRTO was also issued on 22.01.1991. Contrary to this, the appellant claims that the land in dispute was allotted to the Agriculture Department vide allotment chit dated 03.06.1957, hence, the allotment of respondents being subsequent is nullity in the eye of law.

10. As both parties claim ownership of the disputed property, it is essential to carefully assess the strength and legitimacy of their respective claims. So far as the claim of the respondents regarding allotment, is concerned, it appears from the perusal of the record that the land in question was originally allotted to their father through an allotment chit dated 28.02.1963, which was further solidified by the issuance of PRTO on 22.01.1991. This assertion of ownership was later reinforced in a legal proceeding in 1993, when one Wali Muhammad Wani filed an application under section 18-B of the Pakistan Administration of Evacuee Property Act, 1957 challenging the allotment of father of respondents. In the said application, the Agriculture department was arrayed as respondent No.3. Even the department filed objections and learned Custodian, vide judgment dated 23.09.1993, considered the same in the following manner: It has become abundantly clear and obvious the allotment of respondents has already been declared to be valid by the forum of an exclusive jurisdiction because the Agriculture Department failed to produce any proof of allotment. It may be stated here that when a particular forum or authority has been vested with jurisdiction over a matter by law, its decision carries finality unless successfully challenged through an appellate process.

11. The entries in the revenue record also fully testify the claim of respondents. In the revenue record, the Agriculture Department is entered as possessor and not the owner, whereas, the respondents' father is entered as owner. Had the Agriculture Department been the allottee, it would have challenged these entries.

12. Now coming to the allotment of Agriculture Department. It is alleged that the land in dispute was allotted to the Agriculture Department vide allotment chit dated 03.06.1957, however, in support of this claim only a photocopy of allotment chit has been produced. A photostat copy cannot be read into evidence. This view is fortified from the following: Photostat copy cannot be read into evidence. 1998 SCR

310. Photostat copy being inadmissible in evidence cannot be relied upon. 2000 YLR 2326. Assuming, for the sake of argument, that there was indeed an allotment in favor of the Agriculture Department, the pertinent question arises: why was it not produced before the Custodian during the litigation in 1993? This omission further weakens the appellant's claim that the land was allotted to the Agriculture Department.

13. The learned counsel for the appellant has tried to challenge the allotment of respondents on the ground that the land was not available for allotment. However, as noted earlier, the respondents' allotment has already been finalized by a forum with exclusive jurisdiction, hence, its legality cannot be questioned at this stage on any such ground.

14. The record shows that the impugned judgment was passed against six respondents, yet only the Education Department has filed this appeal. Notably, the Agriculture Department, which claims to be the allottee of the disputed land, has not challenged the High Court's judgment that declared it is not the valid allottee. It is perplexing that the alleged allottee has chosen not to dispute the High Court's conclusion, while a third party, the Education Department, is now asserting the Agriculture Department's status as the allottee. This is a very amazing aspect of the matter.

15. The stance of the appellant that without cancellation of previous allotment the land could not be been allotted subsequently, has no force for the simple reason that indeed there existed no allotment in favour of the Agriculture Department, hence, the question of its cancellation does not arise at all.

16. Regarding the claim of not arraying the necessary parties, it may be stated that respondents are owners of the land and in the writ petition their main claim was that they should not be deprived by their property save in accordance with law i.e., without payment of compensation. Under section 16 of the Land Acquisition Act, 1894 when the Collector makes an award, he may take possession of the land which shall thereupon vest absolutely in the Government. In this state of affairs, the necessary party in this case was Azad Government, which has been duly arrayed in the writ petition.

17. The learned counsel for the appellant also argued that the High Court failed to consider the issue of laches. However, we are of the opinion that, in view of the respondents' prayer clause before the High Court, the principle of laches is inapplicable in this case. The non-payment of compensation constitutes a violation of a fundamental right guaranteed by the Constitution and amounts to a continuous wrong. Therefore, the doctrine of laches does not apply. In this regard, it is appropriate to refer here the case reported as Zia-ud-Din v. Azad Government and others [2022 SCR 588], wherein, it was held that:- "

7. As the argument of the learned counsel for the respondents that the work order was issued on 27.09.2018 but the appellants have filed the writ petition on 24.08.2019, after a lapse of more than one year, therefore, the same is hit by the principle of laches, is also not convincing in nature. It may be noted here that it is not a sufficient and valid ground to deprive of a citizen of the State from his fundamental right, i.e., to get the compensation of his own property. The enforcement of fundamental rights guaranteed by the Constitution is paramount duty of the Courts being the custodian of the Constitution, therefore, in our view the non-payment of compensation to the land owners is a continuous wrong, therefore, in such like cases merely applying the doctrine of laches, a landowner, could not be deprived of the amount of compensation, especially when their land was used for public purpose without getting their prior consent."

18. Islam provides a complete code of life, offering detailed and comprehensive guidance with a universal approach to every aspect of human existence. Among other principles, it safeguards and guarantees the rights to life and property for all individuals. Islamic teachings strictly forbid the unlawful seizure of another's property unless fair and compatible compensation is provided to the rightful owners. In support of this, the translation of a portion of Ayah 188 of Surah Al-Baqarah is as follows: The Last Holy Prophet Muhammad in his sermon delivered on the occasion of the farewell Hajj has bestowed the people an absolute charter of human rights, while reiterating the importance of non-interfering with the properties of other Muslims which is quoted as under: "Your blood, your properties, and your honour are sacred to one another like the sanctity of this day of yours, in this (sacred) town (Mecca) of yours, in this month of yours." [Sahih Al-Bukhari: Vol. II Chapter No.132, Hadith No.795 Translation by Dr. Muhammad Muhsin Khan] Further, in the initial era of Islam first acquisition of land was made for the construction of Al-Masjid-an-Nabawi. The said land was owned by two orphan children who offered the said land as a gift which was refused by the Holy Prophet Muhammad and after payment of full price of the land, construction of the Mosque was started. This elevated event has been /reported in Sahi Bukhari which prescribed as under: The above text establishes a glorious principle that the land of even any feeble person cannot be taken away even for any sacred object without payment of its compensation. The Azad Jammu and Kashmir Interim Constitution, 1974, also safeguards the fundamental right to property. Article 4(14) of the Constitution guarantees that no person shall be deprived of their property except in accordance with the law. Thus, we are of the considered opinion that the High Court acted in accordance with law while accepting the writ petition of the respondents. The impugned judgment is well-reasoned and calls for no interference by this Court. The result of the above discussion is that finding no force, this appeal is dismissed. No order as to costs. MQ/2/SC (AJ&K) Appeal dismissed.