1986 PLP 2074 (MLD)

M.Awan Muhammad Hanif Khan for Petitioners. Ch. Muhammad Nazir Ahmad for Respondents. Through this Constitutional Petition, Wazir Muhammad and 19 others, the petitioners want this Court to declare the Orders, dated 31‑8‑1970 and 2‑10‑1970 of Additional Settlement Commissioner (Lands), Lyallpur and, dated 4‑12‑1974 ‑of Settlement Commissioner, Sargodha, respondent No.1 to be without lawful authority and of no legal effect.

2. The facts leading up to this petitioner (as stated by the learned counsel for the petitioners), briefly, are that lands comprising of Squares Nos.11, 12, 16 and 17 situated in Chak No.739/G.B. Lyallpur/ Faisalabad, were purchased by Isher Das and Gehla Ram under the Colonization of Government Lands (Punjab) Act, 1912. Before the proprietary rights could be secured, they migrated to India. So, the lands having been treated evacuee were allotted and confirmed to the petitioners against their verified claims. It so happened that on the report of Colony Assistant and Additional Settlement Commissioner, respondents No.382 respectively that since the evacuees had not paid the full price and the lands had been resumed by Collector Haveli Project on 30‑1-1948 and sale price by the evacuees was forfeited, therefore, the lands were not evacuee property, the Additional Settlement Commissioner vide order, dated 2‑10‑1970 cancelled the confirmation of the lands from the names of the petitioners. The petitioners moved Settlement Revisions Nos.265 of 1970 and 3 of 1971 before the High Court which were returned to the petitioners for filing before the Settlement Authorities. The petitioners then filed 5 appeals before the Settlement Commissioner against the order, dated 2‑10‑1970 which were converted into revisions and dismissed on 4‑12‑1974, hence this petition.

3. Learned counsel for the petitioners mainly contended that since the land had been treated and allotted to the petitioners as evacuee property, therefore, the Custodian lands and not the Colony Assistant/ Additional Settlement Commissioner or the Settlement Commissioner could change the nature of the property and as such, the impugned orders have been passed without lawful authority. The learned counsel for the respondents has not been able to controvert the submissions made by the learned counsel for the petitioners.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I feel that since the disputed property was treated as‑ evacuee and allotted as such to the petitioners, therefore, the Colony Assistant/ Additional Settlement Commissioner and the Settlement Commissioner were not authorized to hold that the disputed property was not evacuee property. It is well‑settled that the Custodian alone was competent to determine and adjudicate the nature of the property as to whether the same was an evacuee or not.

5. For what has been said above, the impugned orders are declared) to have been passed without lawful authority and of no legal effect. The parties are left to bear their own costs. H . B . T . Petition allowed.