1995 PLP 1523 (SCMR)

Malik Mehr Khan, Advocate‑on‑Record for Respondents (in C.P. .No.111 of 1995). Manzoor Ilahi Qureshi, Advocate Supreme Court with Malik Mehr Khan, Advocate‑on‑Record for Respondents (in C.P. No. 112 of 1995). Date of hearing: 31st May, 1995. MIR HAZAR KHAN KHOSO, J.‑‑‑The facts giving rise to Petitions No.lll/95 (Ali Ahmad and others v. Municipal Committee, Talagang and others) and 112/1995 (Ali Ahmad and others v. Abdul Rashid and others) are that on 12‑12‑1964 the land under dispute was allotted to Umar Din and Mehtab Din by Settlement Department. On 7‑6‑1966 they sold it to Muhammad Nawaz. On 17‑9‑1971, Muhammad Nawaz sold it to the petitioners. The petitioners intended to construct a building thereon. They got sanctioned/approved plan. The residents of the locality objected to it. The Municipal Committee recalled the sanction/approval. The petitioners filed suit for declaration and permanent injunction in the Court of Civil Judge, Campbellpur (now Attock) against Municipal Committee, Talagang. Abdul Rashid and others also filed civil suit against the petitioners before the same Court. Both the suits were consolidated. Issues were framed. Parties led evidence. On 15‑4‑1977 the suit filed by the petitioners was dismissed but suit filed by Abdul Rashid was decreed. The petitioners filed appeal. On 17‑7‑1978 the District Judge, Attock, dismissed appeals. The petitioners filed revision petitions before the Lahore High Court, Rawalpindi Bench, Rawalpindi. On 17‑11‑1994 a Judge in Chamber was pleased to dismiss the revision petitions. The petitioners have come before this Court and challenged the same through Petitions No.lll/1995 and 112/1995. As in both the petitions the petitioners have assailed the same judgment we intend to dispose of the same by this single order.

2. Mr. Gul Zarin Kiani, Advocate Supreme Court, the learned counsel for the petitioners at the outset contended that after hearing the petitioners the learned Judge of High Court had reserved the judgment but surprisingly his clients came to know that judgment was said to have been announced on the same day. The learned counsel canvassed that after having come to know his clients immediately applied for copies of the judgment and then filed petitions before this Court. The delay of 54 days as such be, condoned. The learned counsel for the Caveator contended that the petitioner's counsel who hails from Lahore had left the Court and the judgment was announced thereafter. However, the learned counsel admitted that the judgment was not announced in his presence. In support of his contentions the learned counsel for the petitioners drew our attention to the cause list and daily report. The same indeed reflect that the judgment was ordered to be reserved. In such view of the fact we are inclined to condone the delay. Coming to the facts of the case it may be observed that the record indicates that the land in dispute was "Bun Rafah‑e‑Aam". The learned counsel for the petitioners contended that the land was originally an Evacuee Property and was acquired by the Central Government and transferred to Umar Din and Mehtab Din, the predecessor -in‑interest of the petitioners free from all encumbrances. He emphasised that under section 16 of the Displaced Persons Act when land is permanently settled to a person it shall vest absolutely in him. Besides, he contended that while deciding issue No.9, the Civil Judge held that the petitioners were the owner of the land and its finding on the issue has not been disturbed either by the appellate or the revisional Court. In such view of the fact the learned counsel emphasised that his clients' suit was erroneously dismissed by the Civil Court and likewise by the appellate Court and the revisional Court erroneously upheld the judgments and declined to decree the suit of the petitioners.

3. The learned counsel for the caveator contended that no doubt the petitioners were owners of the land but they could use it for `Rafah‑e‑Aam' but not for any other purpose.

4. Lastly the learned counsel for the petitioners contended that the Municipal Committee intended to construct a Complex there and for that purpose it has got published advertisement in the newspapers. The learned counsel for the Caveator conceded that steps taken by the Municipal Committee were wrong and he would advise them to withdraw the same.

5. It may be observed that when petitioners have been declared to be owners of the land the condition of the Revenue Department that the land could be only used for the purpose of Rafah‑e‑Aam, how far would restrict petitioners' rights?

6. We are, therefore, inclined to grant leave to appeal in both the petitions to examine the rights of the petitioners and the use of the land for `Rafah‑e‑Aam'.

7. Till disposal of the appeals the status quo ordered earlier shall remain I in force. The appeals be heard at an early date. A.A./A‑130/S Leave granted.