2018LHC985
2018LHC985
2018LHC985
HCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
I.C.A. No.638/2011
Member Residual Properties, Board of Revenue, Punjab, Lahore
Versus
Muhammad Arshad Chaudhary etc.
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JUDGMENT
Date of Hearing: 20.03.2018.
ICA No.638/2011
Appellant by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.1 to 8 by: Mr. Muhammad Shahzad Shaukat, Advocate.
Respondents No.10(i) to 10 Mr. Aamir Zahoor Chohan, Advocate.
(vi) by:
WP No.39990/2016
Petitioners by: Mr. Muhammad Shahzad Shaukat, Advocate.
Respondents No.1 to 4 by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.5 to 10 by: Mr. Aamir Zahoor Chohan, Advocate.
WP No.176056/2018
Petitioners by: Mr. Aamir Zahoor Chohan, Advocate.
Respondent No.1 by: Mr. Mehmood A. Sheikh, Advocate.
Respondents No.2 to 10 by: Mr. Muhammad Shahzad Shaukat, Advocate.
facts are involved and subject matter of suit property is also same.
I.C.A. No.638/2011
2. Through this ICA, the appellant has challenged the judgment
Rafaqat Ali etc. (respondents No.2 to 10) and allowed the sale of
as well as the connected writ petitions, as such, the parties to the lis
well as both the writ petitions are that evacuee land measuring 253-
urban claim of 258 PIUs vide order dated 03.05.1992 and mutation
including the land bearing Khasra No.1488, 1493 and 1494 already
sold out the possessory right of the land in large number of pieces to
Board of Revenue for the purchase of the evacuee land under the
appear before him on 20.11.2009. Only, Ch. Ayyaz Imran & 8 others
appeared and asserted that they are subsequent vendees from said
Rafaqat Ali since 1995 and have raised Pacca construction over the
Act, 1975, the Notified Officer was not competent to allot the urban
land, building site, land against the unadjusted PIU Units and
Evacuee Laws, land could not be allotted against any pending claims
Lahore; that all the available evacuee land can only be disposed of
22.08.2016 are liable to be set aside being illegal and passed without
lawful authority.
against 228 PI Units, which order is still in field; further submits that
whereas the said vendor has lost his claim upto the Hon‟ble Supreme
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Court of Pakistan and they are not entitled to purchase the said land;
claimant allottee and was not available in pool for disposal of land
party in the proceeding before the Member nor they were heard
before passing the order of sale to the sitting occupants and allottee
parties and gone through the record with their able assistance.
Lahore. The pivotal points for determination before this Court are as
under:-
the migrants the allotments of evacuee land were being made to the
regarding the bogus claims and fake allotment received to the Chief
sites and a complete ban was imposed on the allotment of such lands.
Ramzan & Others Vs. Member (Rev.)/CSS & Others (1997 SCMR
1635). Further, all the evacuee laws were also repealed through the
with effect from Ist July 1974 and further allotment of evacuee lands
Pakistan in respect of the same preposition has laid down in the case
Revenue (S&R Wing), Punjab, Lahore Vs. Akhtar Munir & 6 Others
SC 5) which is as under:-
Lahore and Others (1999 SCMR 1719) decided that the matters
through LRs & Others Vs. Chief Settlement Commissioner & Others
Another (PLD 2015 SC 166) has conclusively held that the Chief
any belated claim. It was finally observed that only the actively
respective urban and rural schemes. Whereas, from the plain reading
claim No.9211 for 258 PIUs but said allotment was challenged in
the said appeal vide judgment dated 07.09.1987. After having lost
2 (2) of the Act 1975 and allotted urban agricultural land measuring
allottee obtained the possession till date nor moved any application
vide order dated 31.05.1995 and land was restored in the name of
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dated 09.07.2010 for the purchase of said land through private treaty
building site which could not be allotted against PIUs after repealed
Others (1997 SCMR 1635) and Ali Muhammad through LRs &
Abdul Majeed & Another (PLD 2015 SC 166) wherein it has been
Laws (Repeal) Act, 1975, the land was vested in the Provincial
Government against the paid price and disposal of such land has to
whereas the Notified Officer has no authority to allot the land after
repealed laws as the land was not available for any allotment.
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SCMR 1255) and Mirza Zafar Ali & Others Vs. Lahore Cantonment
Persons Laws (Repeal) Act, 1975 as well as the Scheme for the
and mutation No.10445 dated 24.06.1993 are illegal and void ab-
initio, as such, the same are not sustainable in the eye of law
Court is that;-
that Rafaqat Ali etc. were not eligible to purchase the said land and
dispose of said evacuee urban land as per the Scheme for the
said land through private treaty on the prevailing market price which
order dated 09.07.2010 holding that the land be sold to the sitting
occupants at the market price plus 50% penalty which order was
Single Judge in Chamber partially allowed the said writ petition and
Notified Officer dated 09.07.2010 with the assertion that the land has
attested in their favour, as such, said land was not available for any
transfer through private treaty and the same is liable to be set aside.
the Hon‟ble Supreme Court of Pakistan. All the evacuee laws stood
(Repeal) Act, 1975 w.e.f. Ist July 1974 and under Section 3 of the
Act ibid. all the evacuee properties both urban or rural including
(ii) any site on which any building existed but was completely
demolished by floods, fire, incendiary or by any natural
calamity.”
terminus date i.e. on 01.01.1976 and word possession has also been
under:-
10. From the perusal of para No.4 of the Writ Petition No.206-
R/2010, the respondents stated that they purchased land from one
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Rafaqat Ali in 1995 and constructed their houses on the said land. It
1493, 1494, 1499, 1500, 1504, 1505, 1506 and 1511 situated in
allotment etc. qua such claim. It is further held that the Act XIV of
1975 became effective from the Ist day of July 1974, therefore, the
“4. We have heard the learned counsel for the parties at some
length, the material available on record and have also gone
through the judgment rendered by this Court in the case of
Muhammad Ramzan (supra). It is an admitted fact that the Chief
Settlement and Rehabilitation Commissioner, Punjab exercising
powers under clause (b) of subsection (3) of section 2 of the
Displaced Persons (Land Settlement) Act, 1958, has vide
Notification dated 16-5-1973, declared all the available evacuee
urban land including such areas which had not yet been
confirmed to any person against verified Produce index Units,
located within urban limits of Municipal Corporation, Municipal
Committee, Town Area Committee, Small Town Committee,
Sanitary Committee or Cantonment throughout the Province of
Punjab as “building sites”. It is also an admitted fact that when
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Building Site means any vacant plot of land which is not within a
well-defined compound of a permanent building and includes:
(ii) any site on which any building existed but was completely
demolished by floods, fire, incendiary or by any natural
calamity.”
“3. That the land being evacuee was allotted against urban
claim in the year 1989 in the name of Mukaram Ali Khan, the
grandson of Nawabzada Liaqat Ali Khan, the first Prime Minister
of Pakistan. Rafaqat Ali, being in possession of the land agitated
against the allotment and got the mutation in the name of the
allottee cancelled. Thereafter, Rafaqat Ali applied for purchase of
the land under section 3 of the Evacuee Property and Displaced
Persons Laws(Repeal) Act XIV of 1975. The sale was refused,
whereupon he filed writ petition No.103-R/1995 in the Lahore
High Court, Lahore. The writ petition was allowed , vide order,
dated 11.07.1995 by a learned Single Judge of Lahore High
Court. After the judgment in his favour Rafaqat Ali passed on
possession of the land to the applicants and others who are in
possession of houses constructed by them.
possession from said Rafaqat Ali whose claim over the very suit land
declaring said Rafaqat Ali disentitled to purchase the suit land then
their claim if any has to sail and sink with their vendor‟s right as
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occupants drive no right in any respect from the said Rafaqat Ali
and said findings have not been challenged any further which lead to
01.01.1976, as such, they are not entitled to purchase the land as laid
urban land at market price are contrary to the dictum laid down by
Hon‟ble Apex Court are binding upon all the organs of the state. It is
settled law that when law does not permit to achieve a thing directly,
(Pvt.) Ltd. and others (PLD 2010 SC 1109). The Hon‟ble Apex
any possessory rights and parameters for the disposal of the available
with paras 6, 11, 12 and 30 of the Scheme for the Management and
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properties have already been declared building site and under para
purchase the evacuee land or apply for the grant of proprietary rights
petition nor before this Court that they were in possession of land
before the 1st day of January 1976. Admittedly, they got possession
in 1995 from said Rafaqat Ali whose rights after proper adjudication
Sagheer Muhammad Khan & Others” settled that after repeal of Act
Whereas the above legal and factual aspect perhaps have not been
set aside.
hereby set aside. Resultantly, the application for the purchase of the
Judge Judge
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