1986 PLP 863 (SCMR)

(ii) The impugned order of the Additional Settlement Commissioner before the learned Single Judge was appeal-able to the Settlement Commissioner and since such statutory alternate remedy was avail able the writ petition was not maintainable. (iii) That the decision of the learned Single Judge was contrary to the pleadings of the parties as it was admitted by the opposite side in their written statement that the area comprised in Khewat No. 58 was non evacuee and was validly acquired with the approval of the Central Government, which fact was further admitted in the affidavit filed by the Colonization Officer.

13. In the petition filed by Rehmat Ali Alvi and others (Civil Petition No. 470/72, registered as Civil Appeal No. 44/1973), leave was granted to consider the contention that in view of the direction given by the Letters Patent Bench no part of the allotment of the said petitioners (Rehmat Ali Alvi and others) was liable to cancellation. The further contention for examination was that there was documentary evidence to prove that the land in Khewat No. 67 was evacuee and was never sold to the That Development Authority but the learned Single Judge did not advert to such documentary evidence while deciding the writ petition.

14. In view of the narration of facts in the foregoing part of this judgment, it will be seen that the, land comprised in Khewat No. 58 which was held by the learned Single Judge to be evacuee property and validly allotted to the displaced persons in lieu of their claims is in dispute in Civil Appeal No. 16/76 filed by Sayyed Muhammad Ali Shah. On the other hand Khewat No. 67 which was found to have been validly acquired by the Thal Development Authority and no longer available for allotment under the Displaced Persons (Land Settlement) Act, is in dispute in Civil Appeal No. 44/73 filed by Rehmat Ali Alvi and others. Therefore, the basic question on which the decision of the controversy between the parties turned is whether the two Khewat numbers in dispute were evacuee property or non‑evacuee in character at the relevant time when the allotments in question were made.

15. In respect of Khewat No. 67, it has been urged that in view of the final directions of the division bench in its order, dated 6th January, 1965, in Letters Patent Appeal No. 195/61, no part of the allotment of the displaced persons was liable to cancellation, and therefore, the learned Single Judge was not competent to cancel their allotment in respect of the said Khewat. It was maintained that this land was evacuee property and was not sold to the Thal Development Authority for the purpose of acquisition under its schemes. Now the finding of the learned Additional Settlement Commissioner/Colonization Officer exercising the powers of Thal Development Authority in his order, dated 17th September, 1966, was as under ;‑ "The area allotted by the Assistant Rehabilitation Commissioner in favour of Aziz Din etc., respondents, was on RL II Khata Nos. 508, 561, 562, 563 and 564 and originally comprised Khewats Nos. 17, 22, 29, 49, 50, 51, 53 and 67 of Jamabandi for the year 1946‑47 of village Aulakh Thal Kalan. With Notification No. 1542‑C, dated 4‑4‑1951, the T. D. A. were to acquire 2, 03, 418 acres of land, proprietary as well as evacuee, in various villages including Aulakh Thal Kalan and Naushera Thal Kalan, parts of which now constitute Chak No. 304/TDA. The acquisition of evacuee land could be legal only with the permission of the Central Government to that effect. Sanction of the Central Government was applied for, in the first instance, by the T. D. A. far an evacuee area of 4187 acres. The sanction was given by the Central Govern ment with their Memorandum No. F. 16(6)/51‑P, dated 18‑12‑1951. Subsequently, however, the Land Acquisition Officer. T. D. A. pointed out that a mistake had crept in the calculation of the evacuee area inasmuch as the non‑Muslims shares in Shamilat and other joint holding with the Muslim owners had not been taken into account in the first instance, that the area of 4187 acres was that which was owned exclusively by the non‑Muslims and that the correct figure, as then worked out, was 19527 acres 2 Kanals includ ing the said 4187 acreas. Permission of the Central Government was sought afresh for the acquisition of 19627‑2 Kanals of evacuee land but it was refused by the Central Government vide letter No. F. 16(14)/52‑59/P, dated 12th January, 1960. The result, therefore, is that the area of 4187 acres (that owned exclusively by non‑Muslims) only is T. D. A. property having been validly acquired, by it, and was no longer to be treated as evacuee property." On the other hand the learned Single Judge, as would appear from the extract of the impugned judgment reproduced in para. 11 above, while holding that the land comprised in Khewat No. 67 was evacuee property, came to the conclusion that it was validly acquired by the TDA. In this behalf learned Judge referred to the findings of the Letters Patent Bench.

16. This referred to the Letters Patent Appeal Bench's observation upon scrutiny of the official files which revealed that "although by Notification No. 1542‑C, dated 4th April, 1951, 203, 218 acres of land were acquired in various villages including Aulakh Thal Kalan and Naushera Thal Kalan, including the exclusive and joint Khatas of evacuees, permission of the Central Government was obtained for 4137 acres of evacuee land only vide Memo. No. F. 16(6)51‑P, dated 18th December, 1961." The Letters Patent Bench further referred to a fresh reference in respect of total area of 1957 Acres which was refused, as mentioned in the portion of the order of Additional Settlement Commissioner/Colonization Officer above. On these premises the Division Bench observed that the result was that "the evacuee interest in joint holdings and Shamilat land has remained un-acquired and is still amenable to the jurisdiction of Rehabili tation and Settlement Authorities." From this it is quite obvious that with regard to area of 4187 acres which was approved for acquisition, it was held that the same only pertained to land exclusively owned by evacuees. It is on this basis that the Division Bench held that if areas adjusted against the regrant in favour of Syed Muhammad Ali Shah comprised such exclusive evacuee Khatas, it will not be subject to jurisdic tion of Rehabilitation Authorities any more, and adjustment in his favour by Thal Development Authority of such land if made by a competent officer will not be open to challenge. If such land has been allotted to the displaced persons, it will be illegal and declared invalid.

17. In respect of the displaced persons, the Division Bench directed that their allotment will not be disturbed "if it is found that particular Khatas have not been duly acquired by the Central Government and are not included in the area of 4187 acres, for which permission has been granted by the Central Government." Khewat No. 58 was found to be jointly owned by Muslims and non‑Muslims by the Additional Settlement Commissioner/Colonization Officer and was accordingly held not to have been validly acquired by That Development Authority.

18. Learned counsel for the displaced persons submitted that the sanction for acquisition of land in favour of That Development Authority on which reliance has been placed in respect of Khasra No. 67 was sub sequently, withdrawn and therefore, even Khasra No. 67 remained un- acquired evacuee property. In this behalf the learned counsel referred to two documents, namely, Settlement Commissioner (Policy) memorandum No. 6007/AQN/MZG/63, dated 18th May, 1963, and the Chief Settle ment and Rehabilitation Commissioner's Letter No. 6011/AQN/MZG/153, dated 23rd November, 1963. The contents of these letters may be reproduc ed as under;‑ "Office of the Chief Settlement and Rehabilitation Commissioner, Pakistan 11‑Egerton Road, Lahore. Mr. Bashir Ahmad, Settlement Commissioner (Policy). The Chairman, That Development Authority, Jauharabad. Memorandum No. 6007/AQN/MZG/63, dated the 8th May, 1.963. Subject.‑Sale of Evacuee Land in the Thal Project Colony. Reference correspondence resting with the Ministry of Rehabilitation and Works demi‑official Letter No. P. 16(14)/32‑P, dated the 12th January, 1962 to your address, copy endorsed this office and your Memo. No. Thal/161/25886, dated the 17th November, 1962 on the subject noted above. In exercise of the powers conferred upon him under section 12(6) of the Displaced Persons (Land Settlement) Act, 1958, the Chief Settlement Commissioner, Pakistan, is pleased to accord sanction to the sale to the Thal Development Authority of evacuee land detailed in the enclosed statement measuring 48871 acres and 12 Marlas situated in the different villages of Tehsil Bhakkar District Mianwali and Tehsils Leiah and Kot Adu in District Muzaffargarh on payment of the price to be determined by the Chief Settlement Commissioner, subject to the condition that the property in question is not transferable to any person under the other provisions of the aforesaid Act. The question of recovery of interest, if any, to be charged from the date of occupation till the date of payment of the price will be decided alongwith the price. This supersedes the sanction conveyed in this Office Memorandum No. 149/AQN/MZG/145, dated the 26th February, 1963." Office of the Chief Settlement and Rehabilitation Commissioner Pakistan. 11‑Egerton Road, Lahore. No. 601 1 /AQN/MZG/153, dated the November, 1963. Mr. Bashir Ahmad, Settlement Commissioner (Policy) The Chairman, Thal Development Authority, Bhakkar. The Chief Settlement and Rehabilitation Commissioner, Pakistan has been pleased to withdraw sanction of 48871 acres and 12 Marlas of land situated in different villages of Tehsil Bahakkar District Muzaffargarh sanctioned in favour of the Thal Development Authority vide memo. No. 6007/AQN/MZG/63, dated 8‑5‑1963 and Memo. No. 149/AQN/MZB/145, dated 26‑2‑1962 also. (Sd.) Settlement Commissioner (Colony), West Pakistan, Lahore." The point to be noted is that the two letters pertain to the sanction granted by the Chief Settlement Commissioner for the sale to the Thal Development Authority of evacuee land measuring 48871 Acres and 12 Marlas under section 12(6) of the Displaced Persons (Land Settlement) Act, 1958. The list of Khasra numbers annexed to the first mentioned memorandum referred to Notification No. 1542‑C, dated 4th April, 1951 and includes both the disputed Khasra Nos. 58 and

67. We have been supplied photo copy of the Punjab Gazette (Extraordinary), dated 2nd July, 1951, in which the said notification of 4th April, 1951, was published. This notification was issued by the Governor of Punjab in exercise of powers conferred by subsection (1) of section 36 of the Thal Development Act, 1949 and related to an area comprised 2,03,418 Acres in various villages including Aulakh Kalan, Tehsil Leiah, District Muzaffargarh. The letters relied upon by the learned counsel relate to the withdrawal of sanction by the Chief Settlement Commissioner, under section 12(6) of the Displaced Persons (Land Settlement) Act, 1958. After the acquisition of the evacuee lands under section 4 of the said Act, the Chief Settle ment Commissioner was the competent authority to sanction the sale of the land forming part of the compensation pool. However, there is another document on record, viz. Government of Pakistan, Ministry of Refugees and Rehabilitation, Karachi Letter No. F. 16(6)/51‑P, dated 18th December, 1951 by which in exercise of powers conferred by section 12(3)(6) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, the Central Government accorded approval to the acquisition by the Punjab Government under the provision of the Thal Development Act, 1949, of immovable property measuring approximately 187 acres situated in the Leiah Tehsil, Muzaffargarh District. It may he observed that prior to the acquisition of the evacuee land under the displaced Persons (Land Settlement) Act, 1958, the property was evacuee property and at the relevant date the Central Government was competent sanction the acquisition of such property under section 12(3)(6). Therefore, if before the acquisition of the property the Central Govern had already sanctioned its acquisition by the Thal Development authority, such property would not form part of the compensation pool be subject to the jurisdiction of the Chief Settlement Commissioner. Chief Settlement Commissioner's letters on which reliance has been paced relate to an area of 48871 acres in regard to which sanction was initially accorded and subsequently withdrawn. Whereas the sanction of Government of Pakistan for acquisition relates to an area of about 4187 Acres. The withdrawal of sanction by the Chief Settlement Commis sioner, therefore, has no effect on the prior sanction accorded by the Central Government by which the status of the property would be changed from evacuee to non evacuee property vesting in the Thai Development Authority. As observed by the learned Single Judge the levers patent bench while remanding the case for fresh decision to the Colonization Officer had come to the conclusion that an area of 4187 acres which was approved for acquisition by the Central Government pertained to land exclusively owned by evacuees. Since the judgment of the letters patent bench was not challenged by either party, the learned Single Judge was justified in adopting the conclusions arrived at by the said Bench, which are also supported by the record placed before us. The learned Single Judge with reference to the entries in the Jamabandis came to the conclusion that Khasra No. 67 was exclusively held by the Hindu evacuee owners. This factual basis has not been challenged before us and no documentary evidence to the contrary has been pointed out. We, therefore, agree with the finding of the learned Single Judge that Khasra No. 67 was validly acquired by the Thal Development Authority and could not be allotted to the displaced persons under the settlement laws. The only other argument advanced by the learned counsel for tae displaced persons was that the Colonization Officer had cancelled their allotment in respect of Khasra No. 67 beyond the scope of the remand order by which the case was remanded to him by the letters patent bench. The submission was that no part of the allotment of the displaced persons was liable to be cancelled. This argument is without substance as the bare perusal of the directions given by the letters patent bench for fresh decision on remand would show that only the land which has not been validly acquired by the Thal Development Authority with the permission of the Central Government was to be excluded from the allotment of Syed Muhammad Ali Shah. The necessary consequence was that if Khasra No. 67 was acquired with the permission of the Central Government, it would be the property of the Thal Development Authority and could not, therefore, be subject to allotment under the Settlement Scheme.

17. So far as Khasra No. 58 is concerned, on the evidence produced before the Colonization Officer and examined by the learned Single Judge the land comprised therein was not jointly held by evacuee owners and Muslim non‑evacuees. Therefore, it was not covered by the acquisition sanctioned in favour of the Thal Development Authority which only covered land exclusively owned by the evacuees. This finding has not been challenged by the learned counsel for Syed Muhammad Ali Shah by showing anything to the contrary on the record. Khasra No. 58 was, therefore, validly held to be evacuee property which could not be adjusted towards the regrant in favour of Syed Muhammad Ali Shah. No other argument was urged before us and therefore, it is not necessary to decide other contentions noted in the leave granting order.

18. In the result both appeals are dismissed with costs. M. B. A. Appeals dismissed.