1988 PLP 1795 (CLC)

Muhammad Nazir Janjua for Petitioners. Ch. Muhammad Altaf for Respondents. Date of hearing: 19th January, 1988. The petitioner, Mst. Hajran Bibi, has moved this Constitutional petition praying therein that the order, dated 16‑5‑1983 passed by the learned Additional Commissioner, Gujranwala vide Annexure 'E' may be declared without lawful authority and of no legal consequence. Further, that the orders, dated 23‑6‑1977 and 2‑5‑1978 passed by respondents Nos. 2 and 3 may be restored.

2. Briefly the case of the petitioner is that she is the daughter of Mst. Rahim Bibi widow of Taj Din, who was refugee from Jammu and Kashmir State. The possession of land measuring 41 Kanals 19 Marlas in village Chhamal, Tehsil Shakargarh, District Sialkot was allotted on temporary basis by the Rehabilitation Authorities on maintenance basis on 15‑1‑1964 in favour of said Mst. Rahim Bibi. Later on the Government of Pakistan decided to sell the Evacuee Lands in the allotment of Jammu and Kashmir refugees. In order to purchase the land in question the petitioner submitted form bearing No. 35735, dated 5‑2‑1975 and the concerned quarters looked into his form and ultimately it was decided that the land be sold to the petitioner. As a consequence thereof the petitioner paid the sale price and later on Mutation No. 31, dated 18‑8‑1979 was effected and proprietary rights were conferred upon the petitioner. In the meantime the above‑referred Mst. Kaki died and her successors‑in‑interest filed a revision petition before the learned Additional Commissioner, Gujranwala who vide his order, dated 16‑5‑1983 resumed the land on, the ground that the petitioner is not entitled to purchase the same. The view of the learned Additional Commissioner was that this was the case of temporary allotment and on the death of the temporary allottee, rights of allottee will disappear, and as such there is nothing left behind for the petitioner to inherit.

3. Learned counsel for the petitioner forcefully argued that it is established beyond doubt that Mst. Rahim Bibi was allottee of the land in question and on her death the land in question was re‑allotted to the petitioner and the possession thereof remained with her throughout. Learned counsel forcefully submitted that after the repeal of the Evacuee Laws and after promulgation of Evacuee Laws (Repeal) Act, 1975, under section 3 of the said Act the land in question can alone be sold to the petitioner and there is nothing in the Act to resume the land in question. Learned counsel maintained that the petitioner is in the undisputed possession of the land in question; that she has improved the quality of the land; that she has become full‑fledged owner and that the learned Additional Commissioner travelled beyond his jurisdiction in taking away the land from her. Learned counsel contended that the findings given by the respondents, Government Functionaries, are not supported by any law on the subject nor any evidence available on record. He stressed that there is no such law under which the land can be resumed from the petitioner. Learned counsel urged that the petitioner being the lawful heir of the original allottee, she was entitled to inherit the land in question. Learned counsel appearing on behalf of the respondents submitted that the land in question has been correctly resumed by the Settlement Authorities inasmuch as the original allottee Mst. Rahim Bibi has died leaving behind such persons who are not entitled to inherit the, land in question. Learned counsel stated that the petitioner was not an allottee of the land in question, therefore, she cannot claim to purchase the same. However, the learned counsel conceded that the petitioner is in possession of the land in question and that she and Mst. Kaki are the legal heirs of the original allottee of the land in dispute.

4. I have heard the learned counsel for the parties and have perused the record very carefully. It is established on record that the land in question is in possession of the petitioner since long. It is also admitted that the land in question was sold to the petitioner and that she has paid the transfer price thereof. Learned counsel conceded that the proprietary rights of the land in dispute were conferred upon the petitioner by effecting the mutation. Despite that the learned counsel maintained that the land in question was rightly resumed on the ground that the petitioner is not the allottee of the land in question. I do not find any force in the contentions of the learned counsel for the respondents inasmuch as the land in question was sold by the Central Government of Pakistan to the petitioner. The sale price was paid by her and the mutation was effected. Thereafter, the proprietary rights were conferred upon the petitioner. This position is admitted by the learned counsel appearing on behalf of the Settlement Department. The contention that the petitioner is not allottee of the land in question is not supported by any evidence available on record. The mere fact that the petitioner submitted the form for the purchase of land in question, thorough enquiry was conducted by the Jammu and Kashmir Refugees Department regarding allotment of the petitioner on the form and her possession over the land in question and exhaustive report was submitted to the concerned quarter for sale of the land in question to the petitioner, will show that she is the owner of the land. At that stage nobody raised any objection on the sale of the land in question to the petitioner. At this late stage, I do not find any justification to take back the land from the petitioner who is the bona fide refugee from Jammu and Kashmir State. It is conceded that the petitioner and Mst. Kaki are the legal heirs of the deceased allottee, Mst. Rahim Bibi. Thus, in my considered view the land was correctly sold by the Centra Government of Pakistan in favour of the petitioner. The impugned order passed by the learned Additional Commissioner is not at all supported by any law nor any evidence available on record. The said order is based on mere surmises and conjectures. It is not in the interest of justice to deprive the petitioner of the land in question at this stage. Resultantly the impugned order, dated 16‑5‑1983 passed by the learned Additional Commissioner is declared to have been passed without lawful authority and accordingly the same is set aside. Consequently the earlier orders, dated 23‑6‑1977 and 2‑5‑1978 passed by the respondents Nos. 2 and 3 are hereby restored, leaving the parties to bear their own costs. This petition succeeds and is allowed. H.B.T./H‑51/L Petition allowed.