1997 PLP 2858 (MLD)

‑‑‑‑S.22‑‑‑Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957, Ss. 8 & 10‑‑‑Occupancy rights of evacuees had been vested in the Custodian‑‑‑If, evacuees were occupancy tenants the ownership rights of Muslim landowners would not be extinguished. Sardar Muhammad Siddique Khan, Advocate for Appellants. M. Tabassum Aftab Alvi and Syed Muhammad Siddiqui Shah, Advocates for Respondents. Date of hearing: 1st June, 1996. BASHARAT AHMAD SHAIKH, J.‑‑‑Facts giving rise to the present appeal are that an objection was raised before the Custodian of Evacuee Property on behalf of the present appellants that proprietary rights of the land in dispute may not be issued to respondents Nos.5 and

6. The objection was repelled and propreitary rights were granted. This grant of proprietary rights was challenged by filing two writ petitions. Both the writ petitions have been dismissed in limine. Before 1947 the land in dispute was owned by Allah Ditta, who is now represented b>> the appellants, and Chimkoo Ram and Bhagwan Das sons of Hari (‑hand, were occupancy‑tenants. They left Azad Jammu and Kashmir. Allah Ditta filed a suit before the Deputy Custodian in 1955 wherein he raised the plea that the occupancy rights mentioned above had been extinguished. This plea was rejected by the learned Custodian of Evacuee Property by holding that, in light of section 21 of the Rehabilitation Ordinance 1952, occupancy rights of the evacuees had been vested in the Custodian. Subsequently, the disputed land was allotted to Gulab Din and Muhammad Afsar. On the basis of that allotment proprietary rights were granted in their favour. In the judgment under appeal a learned Judge in the High Court has referred to section 22 of the Rehabilitation Ordinance, 1952 and sections 8 and 10 of the Administration of Evacuee Property Act, 1957 and has held that all the rights including the occupancy rights which were available to non‑Muslims now vest in the custodian. In light of these legal provisions the High Court has held that allotment orders and grant of proprietary rights were valid acts. After hearing the learned counsel for the parties we have reached the conclusion that the High Court was not right in dismissing the writ petitions in limine. A perusal of the three provisions of law relied upon by the High Court shows that occupancy rights of evacuees have been vested in the Custodian but it is not provided in these provisions that if evacuees were occupancy tenants the ownership rights of the Muslim land owners would be extinguished. The documents attached with the writ petition show that name of Allah Ditta is still entered in ownership column. The question, therefore, arises as to whether the heirs of Allah Ditta have‑ ceased to be owners of the land. If the answer is in negative then how proprietary rights have been granted to the respondents. This controversy has not be resolved by the High Court. It may be noticed that occupancy‑tenants were declared entitled to get ownership rights of property held by them after fulfilling certain requirements which were prescribed under the Land Reforms Act. To resolve the controversy mentioned above provisions of the Land Reforms Act have also to be examined. ' In this view of the matter the writ petitions filed by the appellants raised legal points which needed detailed examination by the High Court. We are unable to decide the case on merits because the view point of respondents has not been brought on record in absence of written statements because the petitions were dismissed in limine. We, therefore, set aside the judgment of the High Court under appeal and order that the writ petitions shall stand admitted to regular hearing. The High Court will now proceed to decide the cases after completing the prescribed procedure. The appeal is accepted and the case is remanded to the High Court for disposal after fulfilling procedural requirements. M.B.A./185/SC/AJK Case remanded.