1990 PLP 1766 (CLC)

SUBJECT:‑REQUEST FROM MUHAMMAD HISAMUDDIN FOR GRANT OF URBAN GARDEN EVACUEE LAND IN KARACHI DIVISION This case relates to the request of Mr. Muhammad Hisamuddin Ansari for grant of urban/Garden Evacuee land in Karachi, in lieu of his verified Garden units which have not yet been satisfied.

2. The facts of the case are that his entitlement for Agriculture land was settled in Taluka Shahdadkot, District Larkana. As regards U.R.V. i.e. Garden/urban entitlement Certificate, Gayan Bagh Larkana was in possession of the applicant against his claim. 1n the meantime this Gayan Bagh was acquired and given to Municipal Committee, Larkana by the Government of Pakistan, Ministry of Rehabilitation. The applicant filed Writ Petition No.568/62 in the High Court. The case was remanded to the Settlement Commissioner, Khairpur. It was held that the claim of the applicant may be satisfied elsewhere provided a Garden land is available.

3. The applicant from time to time made applications to the defunct -Settlement Authorities as well as Ex‑Prime Minister of Pakistan for allotment of land in Karachi in lieu of his Garden land taken forcibly by the Municipal Committee, Larkana.

4. The Chief and Rehabilitation Commissioner (Land), Pakistan under his letter dated 8‑5‑1971 directed the Deputy Commissioner/Additional Settlement Commissioner (Land), Larkana that the claim of the applicant should be settled in his District in the first instance. If, however, it is not possible to satisfy his claim in his District, same may be transferred to another District of Khairpur Division having a surplus Garden area with the approval of the Settlement Commissioner (Lands) of the Division for its satisfaction according to law.

5. The applicant in 1975 made an application to the Ex‑Chief Minister of Sindh for allotment of land in Karachi in lieu of his Garden land taken over by the Municipal Committee Larkana. A decision was taken that he may be given cash compensation in lieu of claim as the Evacuee Laws were repealed. But it was not considered by the Settlement Authority as the case of the applicant was coming within purview of section 2 (2) (3) (4) of the Evacuee Property Displaced Persons Laws Repeal (Act) 1975 whereunder the pending cases of the claims have to be settled by the Board of Revenue, Sindh.

6. The Board of Revenue, Sindh has examined the case of the petitioner in light of decision of Supreme Court as well as Law Department advice and found that his claim is pending one and land to the extent of 4‑20 acres equivalent of 259 P.I. units may be granted to him in satisfaction of his units in District Karachi (East) or (West) from the available Evacuee Agriculture land.

7. A summary is, accordingly, submitted to the Governor M.L.A. Zone through the Chief Secretary for approval/orders on para 6 supra. (Sd.) (Altaf Hussain Qadri) Secretary to Government of Sindh Land Utilization Department." Reliance has been placed by him on the case reported as P L D 1979 SC 846.

7. Mr. Abdul Ghafoor Mangi, the Assistant Advocate‑General, Sindh, contended that as no order passed by any of the official respondents had been impugned in the petition and as the case of the petitioner was rejected by the Settlement Commissioner in the year 1964, his claim cannot be considered to be a pending case. At best, according to him, the petitioner is entitled to cash compensation.

8. Mr. Mubarak Hussain Siddiqi, Advocate appearing for Aligarh Muslim University Old Boys Society contended that the case of allotment of land out of survey No.21 of deh Bitti Amri in favour of the petitioner cannot be considered as the said Society has paid the price of the entire land comprised in survey No.21 under orders of the Government. According to him, 80 acres of land was allotted to the said Society under the Statement of Conditions issued by the Government of Sindh (Land Utilization Department) in exercise of their powers conferred by subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912 vide their notification No.869/71‑4083. P.I. dated 22nd June, 1971 published in the Extraordinary issue of the Sindh Government Gazette on 24th .Tune, 1971. The land that was purchased by the Society from private persons was compacted with the area of 80 acres allotted to the Society in terms of Condition No.7 (2) of the said Statement of Conditions. He relied on two letters of Government of Sindh indicating that the said Society was allotted 40 acres of land in the said Scheme and additional area of 40 acres was also allotted to them in the sale Scheme. The allocation of particular land according to both the letters was to be made' later on. Both Mr. Mubarak Hussain Siddiqi, Advocate for the Society and Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General have not been able to produce any order indicating that particular land including survey No.21 of deh Bitti Amri was allotted to the said Society till this date. According to Condition No.7 of the Statement of Conditions referred to hereinabove unit of allotment will not be less than 40 (20) acres or more than 100 acres inclusive of any land the Applicant /Society owns in the Scheme, the said Society according to their own showing already owned an area .of over 199 acres within the Scheme and no Authority under the said Statement of Conditions was competent to allot a single acre to them. The intention of the Government of Sindh to allot 80 acres of land to the Society as, conveyed in the two letters mentioned above remained to be a proposal and none of the Committees constituted under the Statement of Conditions ever scrutinised their applications and recommended allotment of actual land. The said Society is said to have purchased a substantial area of over 199 acres of land which cannot by any stretch of imagination be considered to 1 scattered land. In fact Master Plan Department of the K.D.A. had informed the Society that their land was included in particular Sectors. Exchange of land in a event could only be allowed and other land allotted in lieu thereof in terms provisions made in Condition No.7 (2). The Society has also not been able produce any order passed by the Government of Sindh allowing them exchange and allotting them land in lieu of that land. It seems that under the patronage certain officers in the K.D.A., and Revenue Department the Society was able grab valuable land without any valid orders. It need not be stressed that under Condition No.6 it is the Government of Sindh alone that has been conferred t) power to allot land to any Society within the Scheme. No authority subordinate the Government can either allot land under Condition No.6 or permit exchant under Condition No.7 (2) of the said Statement of Conditions. Under the; circumstances, we are inclined to hold that survey No.21 of deh Bitti Amri or G that matter any other land was never allotted to the said Society. The survey No.21 of deh Bitti Amri continues to be unallotted evacuee land.

9. Mr. K.M. Nadeem, the Assistant Advocate‑General, Sindh during the course of hearing on 25‑4‑1989 stated "petitioner's entitlement to allotment land is not disputed in lieu of Gayan Bagh Property. The only question is whether land is available in district East and West, Karachi for allotment to the petitioner.

10. We are also unable to agree with the contention of Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General Sindh that as no order of any authority ha been impugned in this petition, the petition itself is not maintainable. A High Court under Article 199 (1) (a) (i) of the Constitution can always pass an order directing a person performing functions in connection with the Federation Province or a Local Authority to do anything which he is required by law to do Such a direction can always be issued if an authority either omits to take decision or avoids to decide a matter to pass appropriate orders in accordance with lam We, therefore, direct that the claim of the petitioner in respect of garden Ian shall be satisfied out of land survey No.21 of deh Bitti Amri as far as it may b possible. By following the above course, we are ‑fortified by the guideline indicated in the case reported as P L D 1979 S C 846.

11. We in view of above are inclined to hold that the claim of the petitioner in respect of garden land was transferred for satisfaction in Karachi District a early as 1962 and was pending for satisfaction at the time of repeal of Evacuee laws to be decided by the notified authorised officer under the Scheme the relevant for the purpose. The case of the petitioner as pointed out above was always considered to be a pending case in terms of section 2 (2) (3) (4) of the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. As indicated above, we have also reached the conclusion that survey No.21 of deh Bitti Amri is an unallotted and available evacuee land.

12. In view of above, we allow this petition and direct the respondents Nos. and 2 to direct the notified authorised officer to satisfy the claim of the petitions out of evacuee land comprised in survey No.21 of deh Bitti Amri as far as it may be possible under the Scheme applicable at the relevant time.

13. Before parting with the case as we have noticed that the Society with the active assistance of certain officers of the K.D.A. and Revenue Department succeeded to illegally occupy valuable Government land, we would leave it open to the respondent No. 1 to order or conduct a probe in the matter and take appropriate action against the delinquent officers. A copy of this judgment shall be sent to him. H.B.T./M‑1165/K Petition allowed.