1984Q19 (PLP)

MUFTAKHIRUDDIN, J.‑This petition is directed against the order, dated 19th April, 1982 passed by the Member li, Board of Revenue Baluchistan and arises in the following circumstances. The land covered under Khasra No. 5035 measur:ng 140,185 square foot situated at the back of Quaidabad Police Station was an evacuee property out of which 18551 square foot was transferred to Messrs Ch. Muhammad Hussain, Ch. Muhammad Shafi and Muhammad Jail sons of Ch. Rehmat Ali against their verified claim in the year 1958 vide Case No. 494, dated 18‑8‑1958 by the Ceputy Claims Commissioner (Lands) Board of Revenue. West Pakistan, Lahore. The land transferred to the claimantb was entered in the record of rights vide Mutation No. 266, dated 16‑7‑1960. In the year 1965 the transferees sold the land to the petitioners and the registered documents executed in this behalf are placed on the record of this case as Annexures `A" and "B". These transactions of sale in favour of the petitioners were given effect to in the record of rights through mutation recorded in the Tehsil. The land was enclosed by a wal land some cons truction was also raised which still exists. In spite of this factual position and the land having been permanently settled in the record of rights in the names of the petitioners. The entire Khasra No. 5035 except the area coming in road was declared as Kachi Abadi through Notification No. 2/73 (Kachi Abadi), dated 1 i‑6‑1974 published in the Baluchistan Gazette on 28‑6‑1974. The petiitoners assert that this notification was issued behind the back of the transferees, the predecessors‑in‑interest of the petitioners and without con sulting the revenue record, which indicated in clear and unambiguous terms that the petitioners were absolute owners of the lands to the extent of 1,855, square feet. On coming to know of this notification the petitioners moved an application on 5‑11‑1975 and again on 20‑1‑1976 to the Chef Settlement Commissioner (M. B. R.) and prayed that the land in possession of the peti tioners be declared as saved from the operation of Transfer of Evacuee Land (Katchi Abadi) Act, 1972 by virtue of section 4 (2) thereof. The then encumbent of the Post (Malik Abdul Samad Khawajakhel) inspected the site and confirmed the possession of the petitioners but no formal order for the exclusion of the area in possession of the petitioners from the notification could be passed and the matter remained undisposed of and in the year 1977 the respondents Nos. 2 to 6 made an attempt to obtain the transfer in their favour under the Katchi Abadi Act, 1972 claiming to be the occupants of land covered in Khasra No. 5035 (which was settled permanently in the name of the petitioners in the revenue record) and the learned M. B. R. II, Board of Revenue, Baluchistan on 19‑4‑1982 passed an order, the operative and concluding portion thereof is reproduced in the words used by respondent No. 1 . ` "A perusal of the file on Katchi Abadis show that the Government is of opinion that Katchi Abadis be developed to provide civic amenities as soon as possible and that the encroachers/occupants be permanently settled on the lands, assisting them in private negotiations/sale of the lands in question by the owner to the occupants (pages 165 to 176 of File No. 448/0/78 Rev. refers). Nevertheless, now I find that this is neither a pending case under the Settlement and Rehabilitation Laws (Repealed) nor has been referred to by the Nigh Court to M. B. R. for disposal etc. etc. and as such I am not competent to adjudicate it under the Settlement Laws. As regards, the Katchi Abadis, the Government directive is clear and we are only required to assist in private negotiations between owners and the dwellers in fixing the salt, price of lands so occupied. The alleged owner St. Wali Muhammad is, therefore, directed to settle the matter by private negotiation with the above‑named occupanrs for sale of the lands to them, or may have a recourse to competent civil Courts." Aggrieved of this order the petitioners have approached this Court and have prayed that "this Hon'ble Court be pleased to declare that the order impugned in the petition was passed without jurisdiction and lawful authority, is mala fide and of no legal effect".

3. It has been averred in the petition that the petitioners have constructed a boundary wall to separate the area of land from the rest of the land under Khsara No. 5035 and have also raised some construction It has also been alleged that the respondents Nos. 2 to 6 have been making efforts to dislodge the petitioners as one of them i.e. the respondent No. 5 happens to be the Assistant Inspector‑General Police, Baluchistan, though they did not make any application within the prescribed time and, were not entitled to any transfer under any scheme prepared in persuance to the Katchi Abadi Act, 1972 as the land possessed and owned by the petitioner was not inhabited ~y! them, and since the order (Annexure `J') passed by Respondent No. 1 is causing "adverse effect on the rights and interest of the petitioners they have no other alternate remedy available to them except to file this Constitutional Petition".

4. The respondents 2 to 5 though have filed separate replies to the petition but have taken the common stand that they bad applied for transfer within the time prescribed on 10‑11‑1975, 24‑9‑1975 and 20‑8‑1975 and are entitled to the transfer. The respondents have also raised legal objection to the maintainability of the petition and assert that the petitioners are not aggrieved persons as the directions made by the M. B. R. are not adverse to their interest.

5. In reply to the counter‑affidavit filed on behalf of respondent No. 5 the petitioners have filed a reply reiterating the stand taken by them in the petition. It has been contended that the respondents Nos. 2 to 6 have never made any application in time as required under Gazette Notification within 10 days. It has also been asserted that the petitioners are in occupation of the property in dispute, the notification could not have been issued as the land in possession of the petitioners was saved under section 4(1) of the Katchi Abadi Act and have referred to the affidavit sworn by Abdul Samad Khawaja Khel, the predecessor of the M. B. R. who had pass.‑d the impugned order. Para. 2 of his affidavit reads :‑‑‑ "That I remained Member‑II Board of Revenue and Chief Settlement Commissioner, Baluchistan from 1976 to 1977. That during my above mentioned tenure I had inspected the lands in dispute and found that there was a wall constructed on the road side and Western side. A house was also constructed on the Eastern side and Haji Wali Muhammad was in possession thereof and that none of the other claimants were found in possession of the land in question."

6. Before we enter upon the discussion on the merits of the petition it is desirable that we take notice of the preliminary objection raised by Mr. Basharatullah, the learned counsel for the respondent No. 5, which objection has been adopted also by the other counsels appearing for the respondents. The objection as has been mentioned earlier is that the opera tive part of the impugned order does not give a valid cause of action to the petitioners and directions given by the learned M. B. R. were not adverse to the petitioners, the petitioners are not aggrieved persons. We have given our due consideration to the objection and have no hesitation in saying that the objection is,. misconceived. The petitioners have the personal interest in the matter and are adversely effected by the notification whereby their personal property: was declared as Katchi Abadi and thus it operates against them. By the notification the petitioners are being deprived of the property and as such they are the aggrieved persons. The Supreme Court of Pakistan in Fazal Din's case (P L D 1969 S C 223) has held that an aggrieved person is one who discloses that he has a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss (.f some personal benefit or advantage or the curtailment o a privilege or liberty or franchise." This decision of the Supreme Court has been followed by the High Courts. It is unnecessarily to pile up those cases but it is sufficient to quote only a few of them and they are :‑‑ (1) Muhammad Boota and 77 others v. Commissioner, Sargodha P L D 1973 Lah. 580. (2) Messrs S. M. 11yas v. Monopoly Control Authority, Islamabad P L D 1976 Lah.834. (3) Bashir Ahmed Bilour v. Municipal Committee, Peshawar P L D 1976 Pesh: 1. (4) Mirza Abdul Ghafoor Baig v. Registrar Joint Stock, Karachi P L D 1976 Kar.

85. We accordingly repel the objection and hold that the petitioners are the aggrieved persons and the petition filed by them is maintainable.

7. A very significant apsect of this case is that no reply to the petition was filed by or on behalf of the respondent No. 1, the official respondent. The allegations of the petitioners therefore, that the land owned and possessed by them were included in the notification declaring it as Katchi Abadi was without any notice to them by the Chief Settlement Commissioner, though the revenue entry indicated them as full owners stands proved. However, in order to satisfy ourselves we required the department to make available for our perusal the file No. 448 878‑Rev.‑BOR‑Rev. Branch referred to by the Member, Board of Revenue in his order and the file containing the applications allegedly filed by the respondents 2 to 6 for the transfer of the land. The file containing the applications of the respondents 2 to 6 was not made available. The file No. 448‑8/78 has however, been perused by us. At page 82 we found a very important communication issued on 23rd July, 1978 on behalf of the Government of Baluchistan, Local Government, Rural Development and Agrovills Department (Local Council Wing). Since it has a direct hearing on the subject we are called up in this petition to consider, the same is being reproduced :‑ "No. 7‑199/77 (PLGB) 11385‑11432 Government of Baluchistan Local Goverment, Rural Development and Agrovilles Department (Local Councils Wing) Dated Quetta, the 23rd July, 1978. To, (1) All Administrators of Municipal Committees in Baluchistan. (2) All Administrators of Town Committees in Baluchistan. Subject : Survery of "Katchi Abadis" and provision of Civic Amenities therein. It has been decided that the Local Councils concerned shall arrange survey of "Katchi Abadis" in Municipal and Town areas of Quetta and other parts of the Province and prepare a short‑term plan for provision of civic amenities (water, electricity; roads/streets etc.) to such settlements. You are accordingly requested to please do the needful and send your report/plan at the earliest. While preparing the report the revenue authorities concerned are to be consulted about. the ownership of land covered by "Katchi Abadis".

2. According to the definition given by the Planning and Development Department, Government of Baluchistan a "Katchi Abadi" is defined as under :‑ "It is a temporary/Katcha structure or a Jhugi or a collection of these erected in a haphazard manner on the fringe or inside in urban area on Government or private lands by shalterless and homeless people who before announcement of 1‑7‑1978 of the C. M. L. A. were forced by circumstances to do so. Any Katcha structure as mentioned above will not be treated a part of Katchi Abadi if constructred unauthorisedly as encroachment on Government, municipal ‑or private land by persons of means possessing an alternate living accommodation." Katchi Abadis could be categorized into following :‑. (a) Those established on Government/Local Body's land. (b) Katchi Abadis established on the land under dispute between the Government and private people. (c) Kachi Abadis established on private land.

3. Any "Katchi Abadi" which has come into existence after the announcement of Chief Martial Law Administrator is not to be recognized. Also persons who have encroached upon the lands of local councils under the guise of "Katchi Abadi" and already possess alternate living accommodation are not to be considered. (Sd.) (Ghulam Rasool), Secretary, P. L. G. B. for Secretary Local Government & Rural Development. Copy forwarded to the :‑‑ (1) Member‑

11. Board of Revenue, Baluchistan, Quetta with reference to letter No. P & D. SOC(4) 19/76. V/3779‑84, dated the 2nd April, 1978, for information. (2) Commissioners of Divisions, Quetta/Sibi/Kalat/Mekran. (3) All Deputy Commissioners/Political Agents‑cum‑Controlling Authori ties for Municipal/Town Committees in Baluchistan, for information and necessary action. (Sd.) (Ghulam Rasool), Secretary, P. L. G. B. for Secretary Local Government & Rural Development." The Transfer of Evacuee Land (Katchi Abadi) Ordinance XX of 1972 (which was later repealed but re‑enacted in the form of Act X111 of 19?2, Transfer of Evacuee Land (Katchi Abadi) Act, 1972) is a piece of legislation and only reflects the implementation of the new policy and programme of social justice and is aimed at providing shelter to the homeless and the poor. Sh. Hidayawllah v. The Sealement Commissioner (Policy) Punjab, Lahore and others (1975 S C M R 161). The above‑mentioned communication of the Government keeps in view the law laid down by the Supreme Court we have just referred. The respondents 2 to 6 are admittedly not the homeless and shelterles persons, thus they are not entitled to claim any transfer/benefit under the scheme prepared under the Katchi Abadi Act, 1972. Another important fact came to our notice while examining the File No. 2/73 (Katchi Abadi) relating to evacuee Agricultural land in Katchi Abadi Act. At page 63 of the same we found a Report of the Naib‑Tehsildat Settlement which report was obtained and supplied by the Deputy Commis sioner‑cum‑Additional Settlement Commissioner Land Quetta to the Govern. ment vide R. B. =1851, dated 6‑I1‑1965. The report of the Naib‑Cehsildat does not find the names of any of the private respondents (respondents 2 to 6) as the occupants of the land under Khasra No. 5035.

8. We have also ascertained from the officials of the Department that no notification extending the time prescribed in the Gazette notification dated 28‑6‑1974 was ever issued. The Settlement Scheme for the disposal of Evacuee land situated in Katchi Abadi laid down in Chapter III that on receipt of the application the Deputy Settlement Commissioner shall acknowledge receipt thereof and enter it in a register to be maintained for this purpose. The respondents 2 to 6 have not produced any receipt in support of their assertion that they had filed applications in the prescribed form and in time. The applications made by the respondents 2 to 6 in the year 1977 as men tioned by the respondent No. 1 in his order, therefore, do not entitle them to be considered for any benefit under the scheme and we are constrained to hold that the respondents 2 to 6 having not inhabited the land in dispute and having proper accomodation to shelter them and their family they did not, deserve to be considered under the scheme prepared under the Act of 1972.

9. There remains to be consider the main question whether land pur chased by the petitioners from the transferees under Displaced Persons (Land Settlement) Act of 1958 (Act XLVIi of 1958) are saved under section 4 (2) of the Act XIII of 1972 and their rights are not affected. The land measuring 18,551 square feet under Khasra No. 5035 was permanantly transferred to the predecessors‑in‑interest of the petitioner and was permanently settled in their favour in lieu of their claims and had thus ceased to be the evacuee property and its sale or transfer by the Settlement Authority as evacuee property is illegal, as held by the Hon'ble Supreme Court in Muhammad Siddiq's case (1970 S C M R 366) and later confirmed in P L D 1973 S C

347. Provisions of section 4 (2) of the Katchi Abadi Act is nothing but the statutory recognization of the law laid down by the Supreme Court. The provisions contained in section 4 (2) of the Act reads :‑ "4(2) . . . . . . Nothing in subsection (1) shall apply to such evacuee land as was occupied by the allottee or transferee on the appointed day and does not exceed his verified claim." It has not been alleged before us on behalf of the official respondent that the land occupied by the petitioners exceeded the verified claim of the persons from whom the petitioners purchased this property. The point involved in the instant case was directly covered by the judgment of Zakiuddin Paul, J. in Ahmad Zaman's case (P L D 1977 Lab. 735). It has been held by his lordship that the evacuee land after acquisition by Central Government under section 4 of Act XLVII of 1956 ceases to be evacuee property and to all intents and purposes vests in person whom such land stands permanently transferred and the question of calling and terming such land as evacuee property in any future legislation does not arise and the declaration of such land as Katchi Abadi is violative of the provisions of law and is of no legal effect. We are in agreement with this view. Thus, there is no doubt left in our minds that the Notification No. 2/73, Katchi Abadi dated 11‑6‑1974 as published in the Baluchistan Gazette on 26‑6‑1974 to the extent it includes the land owned and possessed by the petitioners measuring 18,551 square feet out of Khasra No. 505 could not be included in the notification and declared as Katchi Abadi. The authorities did not apply their minds at all to the facts of the case nor cared to abide by the policy of the Government and thus by the inclusion of the land owned and possessed by the petitioners have made an attempt to deprive them of their valuable proprietary rights. The impugned order whereby the learned M. B. R. has failed to exercise his jurisdiction by (1) (2) not paying any heed to petitioners claim that their property is saved under, section 4(2) of the Katchi Abadi Act, 1972, is illegal and void. We accrdingly declare the impugned orders as illegal and of no legal effect, with the result that the notification would not effect the rights of the petitioners. The petition is, therefore, accepted with costs. M. Z. M. Petition accepted.