2002 PLP 785 (SCMR)

CH. MUHAMMAD ARIF, J.‑‑‑Relevant facts giving rise to ‑the instant appeal by leave of this Court stand succinctly detailed in the Leave Grant Order, dated 22‑5‑1995, which reads thus:‑‑ "Leave to appeal is sought by the petitioners Sakhawat Ali and others against a judgment by Lahore High Court in Writ Petition No. 198‑R of 1978/BWP. "Under an order, dated 29‑10‑1975 the Deputy Setllertent and Rehabilitation Commissioner, Bahawalpur allotted the disputed property to Syed Khurshid Hassan respondent No.2 treating it as an, evacuee property. Said order, dated 29‑10‑1975 was assailed by petitioners on the ground that the disputed property belonged to the Municipal Committee and was not evacuee property. While dismissing the writ petition, the learned Judge in Chamber did not agree with counsel for the petitioners that the disputed property was non‑evacuee one. The learned Judge in Chamber took note of the fact that petitioner Sakhawat Ali as well as Mst. Jamila Begum filed on 9‑10‑1977 and 10‑10‑1977 RSS Forms but the same were rejected by the Deputy Administrator Residual Property. The learned Judge in Chamber also took note of the fact that there was notification by which the Deputy Settlement Commissioner, Bahawalpur was nominated as Notified Officer for disposal of the property within the territorial jurisdiction of Bahawalpur District. The learned Single Judge did not accept the contention that the disputed property belonged to the Municipal Committee. "Mr. M. Mukhtar Ahmed Farani, learned counsel for the petitioners argued that the suit land consisted of a well which cannot be allotted to anybody. It was next argued that the petitioner Sakhawat Ali was tenant of the Municipal Committee and that the disputed property was never treated as evacuee property. In support the learned counsel cited some case‑law. "Mr. Fazal Hussain, Advocate supported the contention that the disputed property was a well and could not be allotted to anybody. "Mr. Hanif Khan Awan, learned counsel for, respondent No.2 opposed the application and argued that the disputed property was validly allotted to respondent No.2 Syed Khurshid Hassan. "An important point of public importance is involved in this petition about certain premises being well or otherwise. Secondly, it is to be F determined if a well can be allotted to an individual. For considering such points, leave to appeal is granted. The status quo shall continue till decision of the appeal."

2. Mr. Mahmood A: Qureshi, learned Advocate‑on‑Record‑ has criticised the impugned judgment by submitting that Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others (PLD 1964 SC 829) and Dr. Kainal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLI31969 SC 42) do not stand in the way of the appellants to lay claim to the disputed property as the Duty Settlement Commissioner was not competent to transfer the same in that according to the schedule it was the Assistant Commissioner who could dispose of the RSS Form. His precise plea was that as the disputed property was not evacuee property, therefore, in the matter of its transfer, it was only the Assistant Commissioner concerned who could make the transfer to an applicant in that regard. It appears the argument is the same which was attended to by the learned Judge in Chambers in the impugned judgment by making a reference to the facts on the record that respondent No.2 Syed Khurshid Hassan had filed Application Form No.RSS‑61/2207 for the transfer of the suit property on 20‑2‑1974. The Deputy Settlement Commissioner visited the spot personally and Transferred the same to the said respondent. It was also noticed that appellant No. 1/Sakhawat Ali, as well as appellant No.3/Mst. Jamila Begum also filed RSS Form of this very property on 9‑10‑1977 and 10‑10‑1977, claiming that the same was evacuee property. These forms were rejected by the Deputy Administrator (Residual Property), Bahawalpur.on 3‑5‑1978 and 10‑5‑1978, respectively. The learned Judge in Chambers was of the view that as the appellants (Nos. I and 3) had not brought to the notice of the High Court that their Forms claiming the property in dispute as evacuee property had been dismissed by the Deputy Administrator (Residual Property), therefore, they were not entitled to blow hot and cold in the same breath. Contrarily, Mr. Gul Zarin Kiani, learned Advocate Supreme Court appearing on behalf of respondent No.2, was of the view that the learned Judge in Chambers was quite right in holding that the appellants were not possessed of any right to contend now that the disputed property was not evacuee for the reason that they were themselves applicants for the same and their failure to obtain a favourable order could not legally furnish any ground for objecting to the very jurisdiction to the official respondents to deal with the, matter under the relevant scheme/law. He could not state with any certainty as to when the disputed property was either treated as evacuee property or dealt with in the past as such to attract the applicability or otherwise of the Displaced Persons (Compensation and Rehabilitation) Act (No.XXVIII of 1958).

3. We are inclined to the view that the present partakes of those causes in which the applicability or otherwise of the evacuee laws was not considered at any point of time between 1947 to 1974, when the evacuee laws came to be repealed and only the pending matters were to be dealt with under the then existing laws with effect from 1‑7‑1974. The observations in the, impugned judgment to the effect that. the present appellants were not possessed of the requisite right to dispute the nature of the property as they had themselves unsuccessfully applied for its transfer as evacuee property in the past, cannot be equated with a finding about the nature of the property to attract the applicability of the then laws to the case of the parties. That being the position the matter requires to be remitted back to the Notified Officer, Bahawalpur for decision in the cause in accordance with law.

4. The above are the reasons for our short order dated 17‑12‑1998 ,which reads thus:‑‑ "For the reasons to be recorded later, the impugned judgment of Lahore High Court,. Bahawalpur Bench, dated 29th May, 1993, passed in Writ Petition 198‑R of 1978 and order, dated 4th November, 1975, passed by Deputy Settlement Commissioner, Bahawalpur, on the basis of application filed by respondent Syed Khurshid Hassan, dated 30th September, 1979 wherein reference to an alleged Form No.RSS‑61/2207 of 20th February, 1974 was made are set aside. The case is remanded to the Notified Officer, Bahawalpur for examining:‑‑ (a) Whether property in dispute was ever declared as evacuee? (b) Whether petitioners have factually filed Form No.RSS‑61/2207 dated 20‑2‑1974 and matter could be deemed pending for being dealt with under evacuee laws? and Whether 'well' could be treated as 'evacuee property'? "The Notified Officer after examining all the facts in the light of existing law shall dispose of the matter on its own merits according to law." S.A.K./S-42/S Case remanded.