PLJ 2007 SC 930
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian
Shakirullah Jan, JJ.
MUZAFFAR HUSSAIN & others--Appellants
versus
IFTIKHAR HUSSAIN etc.--Respondents
C.As. Nos. 958 to 965/2002 & Cr.O.P. Nos. 40 to
42/2003, decided on 27.3.2007.
(On appeal from the judgment dated 1.6.2000 of the Lahore
High Court, Lahore,
passed in W.P. No. 12-R/2000).
Punjab Tenancy Amendment
Act, 1952--
----Ss. 114 & 2--Evacuee Property and Displaced
Persons Law Repelaed Act, (XIII of 1975), S. 3(2)--Constitution of Pakistan, 1973,
Art. 185(3)--Leave to appeal--Right of occupancy--Appreciate the legal and
factual aspects of controversy--Contentions--Entitlement of entire land in
their occupation and had been deprived of without lawful
justification--Validity--No ambiguity--Provisions as contemplated in S. 2 of
Punjab Tenancy Amendment Act, 1952--Denying of fact--Occupancy tenant will be
considered as owner for the remaining 1/2 share in the occupied
land--Appellants were occupancy tenants and they were accommodated accordingly
and half of the land was allotted to the respondents which could have been done
by notified officer as the forums available in the hierarchy of revenue laws
are not concerned with it--Respondents having preferential rights on account of
having abandoned their agricultural land in India, were entitled for allotment
of the land in-question against their claim which was available for
allotment--After satisfaction of their claim the appellants may approach the
proper forum for allotment of remaining land subject to all legal
exceptions--Appeals dismissed.
[Pp. 932 &
933] A & B
Mr. Yousaf Farooq, ASC and Mr. Iqbal Ahmed Qureshi, AOR
for Appellants.
Mr. Maqbool Ellahi Malik, Sr. ASC for Respondents.
Date of hearing: 27.3.2007.
Judgment
Javed Iqbal, J.--The above captioned appeals with leave
of the Court and criminal original petitions are directed against the judgment
dated 1.6.2000 whereby the writ petitions preferred on behalf of appellants
have been dismissed.
2. Leave to appeal
was granted by means of order dated 1.7.2002 which is reproduced herein below
to appreciate the legal and factual aspects of the controversy:--
"This order shall dispose of eight (08) petitions
filed against the order dated 1.6.2002 of the Lahore High Court, Lahore. Petitioners in
the captioned petitions are occupancy tenants from generations. Allegedly, the
Notified Officer had assumed the jurisdiction which did not vest in him to
allot the land in dispute. It is contended that the order impugned is patently
illegal and even no notice was issued to the petitioners.
Points raised need elaborate considerations, therefore,
we are inclined to grant leave to appeal in all these petitions to consider the
legality of the judgment sought to be impugned in all these cases. It is
reported that two petition Nos.1908 and 1909 of 2002 are barred by time. We
leave the question open to be determined at the time of the final disposal of
these petitions. Status quo shall be maintained in the meanwhile and the
operation of the impugned judgment shall remain suspended."
3. Mr. Yousaf
Farooq, learned ASC entered appearance on behalf of appellants and contended
that the Notified Officer had absolutely no jurisdiction to dilate upon the controversy
and decide the same and therefore, his orders qua allotment were ab initio
void. It is urged emphatically that the dispute in question could have been
resolved by the forums available in the revenue hierarchy as the Notified
Officer had no concern whatsoever with the dispute after the repeal of evacuee
laws. It is argued that proper opportunity of hearing was not afforded by the
Deputy Settlement Commissioner/Notified Officer and therefore the appellants
were condemned unheard. It is contended that it is a case of fraud and forgery
which aspect of the matter has been ignored by the learned High Court resulting
in serious miscarriage of justice. It is next contended that no land could have
been allotted in favour of respondents after the repeal of evacuee laws by
violating the cut-off date i.e. 1.7.1974. It is argued that under Section 3 of
the Evacuee Property and Displaced Persons Laws Repealed Act, 1975 the
appellants should have been offered the land available by following the
prescribed mechanism in the said Act and in case of their refusal it could have
been disposed of in any manner as may be deemed fit and proper by the authority
concerned but no such offer was ever made and therefore, the question of
allotment in favour of respondents does not arise. It is also pointed out that
the ancestors of the appellants were occupancy tenants since the time
immemorial and they were not paying any battai as pursuant to Section 114 of
the Punjab Tenancy Amendment Act, 1952 they were owners of the land in question
which could not have been allotted in favour of any other person.
4. Mr. Maqbool
Ellahi Malik, learned Sr. ASC appeared on behalf of respondents and while
controverting the view point as canvassed at bar on behalf of the appellants
supported the judgment impugned for the reasons enumerated therein with the
further submission that no land whatsoever was available for allotment pursuant
to the provisions as contemplated under Section 3(2) of the Displaced Persons
Laws Repealed Act, 1975 and matter regarding their entitlement was pending. In
order to support his esteemed views reliance has been placed on Hakim Ali v.
Ghulam Muhammad (1995 SCMR 549).
5. We have
carefully examined the respective contentions in the light of relevant
provisions of law and record of the case. Let we mention here at the outset
that all the contentions raised on behalf of appellants were never agitated
before the learned High Court. The case of appellants before High Court in
brief was that the appellants had been given
share in the land in their possession whereas they were entitled for the
entire land in their occupation and have been deprived of the remaining half
without lawful justification. On legal plain there is no ambiguity whatsoever
and the provisions as contemplated in para 13(b) of Section 2 of the Punjab
Tenancy Amendment Act, 1952 is capable enough to meet all such sort of
eventualities. There is no denying the fact that the evacuee share will be and the occupancy tenant will be considered
as owner for the remaining 1/2 share in the occupied land. Admittedly the
appellants were occupancy tenants and they were accommodated accordingly and
half of the land was allotted to the respondents which could have been done
only by the Notified Officer as the forums available in the hierarchy of
revenue laws are not concerned with it. The Deputy Settlement
Commissioner/Notified Officer has rightly interpreted the
provisions as contained
in Section 114
of the Punjab Tenancy Amendment
Act, 1952 in the order dated 17.7.1999 which is reproduced herein below for
ready reference:--
"16. Under Section 114 of Punjab Tenancy Amendment
Act, 1952, Para (b) of Section-2, the right of occupancy tenants of land lords
has been considered therein, both occupancy tenant and landlord have been
declared as full owner according to the Battai provided in the revenue record.
The evacuee will be owner to one-half and occupancy tenants will be considered
as full owner to other one-half. (1991 SCMR 164 is relied upon). The share of
Battai provided in the revenue record produced by the Patwari shows that the
share of Battai was one-half between the landlord and the tenant."
6. The conclusion
as arrived at by the Notified Officer is in consonance with the dictum laid
down in case Zahoor Hussain v. Abdul Hamid (1991 SCMR 164) and 1995 SCMR 549
(supra).
7. The upshot of
the above mentioned discussion is that the respondents having preferential
rights on account of having abandoned their agricultural land in India were
entitled for allotment of the land in question against their claim which was
available for allotment. After satisfaction of their claim the appellants may
approach the forum concerned for the allotment of remaining land subject to all
legal exceptions. The order dated 17.7.1999 of Notified Officer has been upheld
by the learned single Judge of Lahore High Court, Lahore in chambers vide
judgment impugned which being well based does not warrant interference. The
above captioned appeals and petitions being devoid of merits are dismissed.
(A.S.) Appeals dismissed.
