1994 PLP 1267 (CLC)

Mian Nisar Ahmad for Petitioners. M. Javed Buttar for Respondents. Date of hearing: 9th June, 1991. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,. calls in question order dated 15‑12‑1973 passed by the learned Custodian, Evacuee Trust Property, Punjab, Lahore. The dispute relates to land measuring 45 Kanals 7 Marlas situate in village Garjakh, Tehsil and District Gujranwala out of which some land has been allotted to petitioner No. 1 Whilst a chunk of it was purchased try him from other allottees. Respondents Nos. 2 to 10 alongwith 29 others filed an application against the petitioner and 370 other persons under section 22 of Act XII of 1957 for a declaration that the land measuring 45 Kanals 7 Marlas is not evacuee property ,or in the alternative the allotment, of land aforementioned was subject to right of easement of the residents of the village for use as Chapper since the time immemorial. This application was dismissed as barred by time by the learned Deputy Custodian by his order dated 22‑4‑1971. Respondents Nos. 2 to 10 thereafter filed an appeal against the aforementioned order of the learned Deputy Custodian before the learned Custodian who vide the impugned order dated 15‑12‑1973 accepted the same and remanded the case to the Deputy Custodian for adjudication afresh. The petitioners feeling, aggrieves of the aforementioned order of the learned Custodian have come up to this Court in the present Constitutional petition.

2. The only grievance raised in this petition by the petitioners is that the land in dispute was not subject to the right of easement claimed by respondents Nos. 2 to 10 as it was acquired by the Central Government free from‑all encumbrances under section 4 of the Displaced Persons (Land Settlement) Act, 1958, and as such the easement, if any disappeared on the acquisition of the property for the purpose by the aforementioned enactment. This contention raised on behalf of the petitioners is not well founded in view of the dictum of the Supreme ,Court of Pakistan laid down in "Muhammad Khan and others v. The Chief Settlement and Rehabilitation. Commissioner and Shamsul Haq Khan".reported as PLD 1962 SC 284.

3. The learned counsel for ‑the petitioners when confronted with the above dictum could urge nothing to show that the aforementioned authority of the Supreme Court of Pakistan could in any manner be distinguished on the facts and circumstances of the case in hand. The said authority being binding on this Court the petitioners have no case and accordingly this writ petition is dismissed. The parties shall, however, bear their own costs.

4. At this stage the learned counsel for the petitioners has requested that the adjudication of the matter had been delayed on account of the pendency of the controversy before the various forums and, therefore, a direction may be issued to the Deputy Custodian who has become seized of the matter on remand to decide the case at the earliest. The request is reasonable and has been consented to by the learned counsel for the respondents. Accordingly, it is directed that the Deputy Custodian, Evacuee Property concerned shall decide the case before him within three months from the date of this order. H.B.T/S‑411/L Petition dismissed,