1988 PLP 826 (MLD)

AKHTAR HASSAN, J.‑‑This Intra Court Appeal is directed against an order dated 15‑1‑1983 passed by a learned Single Judge dismissing Writ Petition No.225/R of 1982.

2. The dispute relates to a house situate in village Chutianwala, within the border belt of District Kasur. Respondent No.1 Ali Gohar, an E. A. my Personnel, complained on 11‑7‑1981 to the Border Area Committee, respondent No. 2, that the house in question having been allotted to him vide order dated. 15‑4‑1961, alongwith ‑ agricultural land, was not being vacated now by the appellants to whom he had let out as tenants alongwith the land. The Committee in their order dated 3‑5‑1982 directed appellants to hand over possession of the house to him. Aggrieved by it, they brought the present petition.

3. The appellants denied the alleged tenancy contending that the order dated 15‑4‑1961 was forged; was bad in law inasmuch as it was passed only by one member instead of the Committee as a whole; was further untenable as it denoted the singular word "allowed" without giving reasons; was passed behind their back without any notice; and lastly, that the house was not amenable to the jurisdiction of the Border Area Committee as its possession was neither surrendered by, nor forcibly taken from them. They further averred that they had "instead obtained the house from one Ghulam Rasool for a sum of Rs.500 in the year 1951; paid professional and Chulha taxes for it ever since; and in the alternative had become its owners under Settlement Scheme No.V1I. On this premise they urged that the respondent Committee had no authority to direct them to deliver their own property. They pointed out that they had obtained a stay order from the Civil Court but the Committee did not take note of it, and hence the extra ordinary remedy of writ.

4. Learned Single Judge refused to grant the relief, infer alia, on the ground that already a civil suit was pending and that there was no occasion to resort to extraordinary measure.

5. Learned counsel submitted that the suit, in fact, being barred by paragraph 15 of the West Pakistan Border Area Regulation, 1959 (M.L.R.9 of 1959) was ultimately dismissed and hence all the more justification for praying for a writ. The contention is not without force. Paragraph 15 ibid was a bar to the suit and now when it has already been dismissed, it could no more provide a reason for refusing the extraordinary relief.

6. The undisputed fact is that the appellants are in possession of the house in question ever since. The first ever application made by the respondent Ali Gohar for allotment of a house in this village was dated 24‑4‑1960 Annexure D. The Patwari Halqa made a report dated 6‑11‑1960 pointing out that appellant Sher Muhammad among others was occupying it unauthorisedly and proposed its allotment in favour of respondent No.1. It was thereupon that the single‑worded order "allowed" was passed on 1.5‑4‑1961 by one of the two members of the committee purporting to allot it in favour of the respondent. These facts seem to have two‑way implication. Firstly, that the respondent was wrong in asserting that he had let the house to appellant Sher Muhammad as his tenant. The latter occupied it as an unauthorised person earlier than the order dated 15‑4‑1961 was passed in favour of the respondent. Secondly, his possession will be governed by the West Pakistan Border Area Regulation, 1959. According to paragraph 9 thereof, he was supposed to have delivered its possession to the Deputy Rehabilitation Commissioner within 30 days of its commencement or it may have been taken forcibly. It seems neither was done and he continued to enjoy its possession alongwith his son appellant No.2.

7. Counsel was right in urging that the respondent Committee had no power to allot it in favour of the respondent No.1, because under paragraph 13(a), it had power to allot only such evacuee property as may have been ether surrendered or taken possession of under the Regulation. There was no indication by any record whatsoever if any forcible measures were taken to recover possession of the house from the appellants so far, and hence the Committee, as such, was not competent to deal with it. Counsel assailed the vires of the order dated 15‑4‑1961, further on the ground that it had been passed only 1 by one Member. He referred to paragraph 4(b) of the Regulation maintaining that the Committee had to consist of two members, one being a representative of the Rehabilitation Commissioner and the other a representative of the Pakistan Army. He again invoked paragraph 13(a) for the view that the allotment had to be made by the Committee and not by one member thereof acting singly. the plea was irrefutable. None of the two members could act single‑handedly. All allotments had to be made by the Committee as such and hence the order dated 15‑4‑1961 was not lawful in having been passed only by the Army member.

8. Counsel for the respondents tried to place reliance upon a sort of acknowledgement Annexure 1, at page 89 of the file, whereby one Muhammad Tufail had acknowledged to have delivered possession of the house to respondent No.1 Ali Gohar, in presence of the witnesses including the appellant Sher Muhammad, who too had put his thumb‑impression thereon. It was claimed that the appellant had also thereby accepted the title of the respondent Ali Gohar, and that it was not open to him now to resile from it. This document was executed by Muhammad Tufail acknowledging relinquishment of possession in favour of the respondent. The appellant Sher Muhammad was at best its marginal witness. By no means, it can suffice to bind him for having accepted the respondent's claim even against himself. All that he was doing was to have become a witness of the relinquishment by another person. He made no overture in relation to his own possession over the house, and therefore, the document had no adverse effect at all against him.

9. The third aspect of the appellants' claim was that by having been in continuous possession at the time of the commencement of Settlement Scheme No.VII in the year 1961, they had become owners of this house situated in a rural area without seeking any specific orders therefore, and that the order of the Border Area Committee dated 3‑5‑1982 was of no legal effect. There was ample force in the contention, because it was not denied that the Settlement Scheme No.VII I applied to the impugned house. Admittedly, the appellants were in possession of the house when it was enforced. They became entitled to its ownership ipso facto. The respondent B.A.C. will have no authority to direct their eviction on 3-5-1982 from their own house.

10. As a result, the appeal is accepted and the order of the learned Single Judge is set aside. It is declared that the order dated 3-5-1982 of the Respondent-Border Area Committee in question is illegal, void and without legal effect qua the appellants. M.Y.H./3254/L Appeal allowed.