Allah Bachaya vs Qaiser Sultana

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 1565 / 2014 / BWP

Malik Allah Bachayea and eight others Versus

Qaiser Sultana and 26 others

JUDGMENT

Date of Hearing: 18.10.2021 Petitioner(s) By: Malik Imtiaz Mahmood, Advocate Respondent(s) By: Mr. Inam Ullah Hashmi, Advocate Mr. Jamshaid Iqbal Khakwani, Advocate Ch. Shahid Mehmood, Assistant Advocate General

ABID HUSSAIN CHATTHA, J: This constitutional Petition is directed against the Order dated 17.01.2014 passed by Respondent No. 20 (Member Judicial IV, Board of Revenue, Punjab / Notified Officer, Multan & Bahawalpur).

2.The brief facts giving rise to the instant case are that Syed Haider Abbas, the predecessor-in-interest of Respondents No. 1 to 18 (the “Private Respondents”) was allotted and confirmed land vide order dated 26.11.1958. Later on, Settlement Commissioner (Lands), Rawalpindi while conducting proceedings in the case of double allotment in Rawalpindi, ordered cancellation and resumption of 30 Acres of excess allotted land in Mouza Sajawal Wala, District Bahawalpur vide Order dated 23.11.1976 and implementation of the order in accordance with law as well as incorporation in the LR-II and the revenue record which was implemented. The Private

Respondents assailed the implementation Order dated 01.12.1976 through W. P. No. 1063/R/1977 before this Court which was admitted vide order dated 07.08.1977 on the ground that the Additional Commissioner (Lands), Rawalpindi Division had no jurisdiction to cancel the allotment of Mst. Akbari Begum (one of the predecessor of the Private Respondents) in Bahawalpur Division especially when she had died in the year 1969 and inheritance mutation was also sanctioned, hence, an adverse order could not have been passed against a dead person. This Court finally disposed of W. P. No. 1063 / 77 / LHR (renumbered as W. P. No. 226 / 1981 at Bahawalpur Bench) on 06.11.1997 in which the Private Respondents were allowed to surrender excess land equivalent to 822 Production Index Unit (the “PIU’s”) as per their choice. The Additional Commissioner (Revenue) was required to implement and give effect to the said Order regarding surrender of land. The predecessor of the Private Respondents initially offered to surrender the land measuring 116 Kanals out of Khata No. 208 / 170, Mouza Sajawal Wala as per offer dated 03.10.1998 (the “First Application”). However, due to deficiency of 13 Kanals of land, the Additional Commissioner did not accept the offer and in the meantime, the predecessor / Applicant passed away. Thereafter, his legal heirs filed another application dated 11.10.2003 (the “Second Application”) in which another land equivalent to 822 PIU’s was offered and initially identified land was sought to be withdrawn. Accordingly, the first offer was allowed to be withdrawn and the Second Application was accepted as requirement of equivalence of 822 PIU’s was fulfilled by surrendering 129 Kanals. During this process, the Petitioner (Malik Allah Bachayea) had filed an application claiming that he was tenant under Hindu evacuee owner and continued his tenancy under the predecessor of the Private Respondents. He applied for the purchase of proposed surrendered land in the First

Application being in possession thereof as tenant and as such, attempted to set up a rival claim against the Private Respondents in terms of Section 3(1)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (the “Act”). But his request was declined and he invoked the jurisdiction of this Court by filing W. P. No. 3757 / 2003 which was disposed of on 07.01.2005 with the direction to the Notified Officer to decide the matter after hearing both the parties.

3.Accordingly, the Notified Officer / Additional Commissioner took up the case but after the Notification dated 09.01.2004, the case was referred to Respondent No. 20 who vide impugned Order dated 17.01.2014 decided the case, operating para of which is reproduced as under:-

“The upshot of the above discussion is that the Petition is accepted and the Petitioners are allowed to surrender the excess land equal to 822 PIUs according to their choice contained in application dated 10.11.2003 and confirmed by application dated 10.10.2006. Resultantly, the application dated 03.10.1998 stands withdrawn and cancelled. The Petitioners are entitled to purchase the excess surrendered land in line with section 3 of the Displaced Persons Repeal Act, 1975 read with scheme No. 2. The Petition of the Respondents / tenants for purchase of excess surrendered land has no force, therefore, if the land under their possession is not surrendered then they have no claim under the Settlement Law to purchase the same. Hence, Petition of the Respondents is disposed of. However, the issue of tenancy could be resolved only by the competent Court under respective special law once the surrender of land is completed according to the orders of Hon’ble Lahore High Court, Bahawalpur Bench and this Court declines to exercise jurisdiction in this matter.”

4.Learned counsel for the Petitioners submitted that Petitioner No. 1 also challenged the impugned Order dated 17.01.2014 in the Civil Court which has been withdrawn to avail alternate remedy before this Court by way of filing this

constitutional Petition. He further submitted that the Petitioners are admittedly in possession of the surrendered land subject matter of the First Application as tenants since inception, therefore, the surrendered land cannot be allowed to be replaced through the Second Application and be given to the Private Respondents on account of the fact of long possession of the Petitioners. The possession of the said land being with the Petitioners was not available to allotment to the Private Respondents or to anyone else. The impugned Order has been passed illegally without due application of mind. The predecessor of the Private Respondents had already given option in the First Application to surrender the land equal to 822 PIU’s, therefore, after his death, his legal heirs cannot change the location of the excess land which they were bound to surrender and are estopped by their words and conduct in this behalf. He placed reliance on case titled, “Miangul Shahzada Jahanzeb through Legal Heirs and another v. Deputy Land Commissioner, Swat at Mingora and another” (1999 MLD 1107) to submit that the choice of land to be surrendered once made cannot be changed. He also placed reliance on cases titled, “Province of Punjab through Member (Judicial-V) v. Muhammad Azam” (2019 CLC 1356); “Taj Ali Khan v. Government of N.W.F.P. and 3 others” (1984 CLC 486); “Rafaqat Ali v. Member, Board of Revenue” (1997 MLD 2571); and “Mst. Zahoor Ellahi and others v. Addl: Commissioner (R) and others” (2012 YLR 1718) to submit that the surrendered land was the entitlement of the tenants under Section 3(1)(b) of the Act, read with circular No. 915-POL-74 dated 19.11.1974 issued by the Board of Revenue, Punjab. He also placed reliance on case titled, “Muhammad Akram v. Member, Board of Revenue / Chief Settlement Commissioner, Punjab, Lahore and 2 others” (2021 YLR Note 76) to submit that the land so surrendered cannot be awarded through private treaty rather has to be disposed of through open

auction. Learned counsel submitted that the Notified Officer has failed to take into account the import of Section 3 of the Act and other applicable laws in the matter and prayed that the impugned Order be set aside.

5.Learned counsel for the Private Respondents submitted that no question of jurisdiction, lawful authority or right and title in the surrendered land is involved or raised in the titled Petition, hence, the same is not maintainable and is liable to be dismissed. He submitted that the excess allotted land equivalent to 822 PIU’s was voluntarily surrendered vide Order dated 06.11.1997 passed in renumbered W. P. No. 226 / 1981 (supra) subject to right conferred by Section 3(1)(b) of the Act. The Private Respondents filed an application to the Revenue Authorities for the payment of cost of the surrendered land which was duly processed and the amount thereof had also been determined but on account of stay order passed in the titled Petition since 2014, the matter is still pending. The Act confers no right or title with respect to the land in favour of the Petitioners since admittedly, the Petitioners are tenants of the Private Respondents and have no locus standi to purchase the land and this issue was correctly answered in the impugned Order. The Private Respondents had filed a suit for ejectment of the Petitioners being tenants before the Revenue Hierarchy in which the Order of ejectment was passed vide Judgment dated 26.07.2004 and even that matter is being delayed because of pendency of the instant Petition. The Petitioners also filed a suit for declaration against the impugned Order dated 17.01.2014 on 03.02.2014 on their own choice but thereafter, unconditionally withdrew the same on 01.03.2014. Hence, in view of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908, the Petitioners were precluded to institute the instant Petition before this Court. The Petitioners are admittedly tenants of the Private

Respondents and are bound to pay the rent, mesne profit and produce regarding the land under tenancy to the Private Respondents but they are not paying anything to them due to the pendency of the instant Petition taking undue advantage by filing frivolous Petition regarding enforcement of a right which does not exist in their favour. He submitted that as per above referred Orders of this Court, the Petitioners were given a choice with respect to surrender of any land which right could not have been taken away. Notwithstanding the same, the First Application for surrender of excess land was changed with another land upon the rejection of the same by the Revenue Authority on the basis that the said land was deficient in terms of 822 PIU’s. It was in this context that the proposed land for surrender was changed without prejudice to the right of the Private Respondents granted by this Court in the above referred Petition. He also contended that the Petitioners as tenants were introduced by the predecessor of the Private Respondents in the year 1962-63 as is evident from the documents placed on record and the Petitioners were not tenants before partition as claimed by them, hence, they have approached this Court with unclean hands. Further, the Petitioners are tenants and are not evacuee persons, therefore, cannot claim any right with respect to evacuee land.

6.Arguments heard. Record perused.

7.It is an admitted fact that the Private Respondents voluntarily surrendered the excess land as required from them upto 822 PIU’s as depicted from the Order dated 06.11.1997 passed in renumbered W. P. No. 226 / 1981 in which this Court had allowed them to surrender excess land of their own choice. Initially, the land measuring 116 Kanals out of Khata No. 208 / 170 Mouza Sajawal Wala was offered through the First Application but due to deficiency of 13 Kanals land, the Additional Commissioner did not accept the said offer, hence,

the deficiency of surrendered land was met by replacing it with other land of 129 Kanals vide the Second Application which was accepted by the Revenue Authorities. This clearly demonstrates that this was a matter between the Private Respondents and the Government and until the excess land proposed to be surrendered did not materialize or in other words, the offer to surrender was not accepted by the competent authority, the proposed land surrendered was neither available for disposal nor any right with respect thereto was created in favour of any of the parties. Not only the Private Respondents were conferred the right to surrender the excess land of their own choice but record also clearly establishes that there is no mala fide on their part to file the Second Application with a different description of land which was undertaken only when the First Application was rejected by the concerned Revenue Officer. Therefore, the Petitioners cannot claim any right to the effect that the Private Respondents were bound to offer the land described in the First Application and the competent authority was bound to accept the same as the Petitioners had no right under the law to enforce any kind of preemptive and superfluous interest which might culminate in their favour if the First Application was accepted. The reliance on the case of Miangull Shahzada Jahanzeb (supra) is misplaced since in that case the land offered was accepted by the competent authority and as such, the first choice exercised had matured. In that context, it was held that once a choice with respect to surrender of land was made and the said land was allotted to someone else, then second or subsequent choice by retaining the previous land would not be available and hence, the second and subsequent choice was termed as belated. It transpires from the record that after having filed the First Application for surrender of excess land, the Private Respondents had done no act which can be termed as mala fide on their part. Further, the possession of the tenant is always a subordinate right and is subservient to

the right of the owner. The Petitioners admitted their status as tenant, therefore, benefit of Section 3(1)(b) of the Act in any case would have gone to the Private Respondents, if they were willing to purchase the surrendered land under their occupation in terms of Scheme No. 2 regarding disposal of residual properties. The right of the tenants as occupants under Section 3(1)(b) of the Act can arise only if the land under their occupation was duly surrendered in accordance with law and there was no claim of the previous owner as occupant. However, this question becomes irrelevant in view of the findings given with respect to the choice of surrendered land above. A tenant can enforce the tenancy right regarding which it was rightly held in the impugned order that they can invoke remedies under the law in case of any grievance. The other case law relied upon by the Petitioners is distinguishable based on different facts and is not attracted to this case.

8.The right of the Private Respondents to purchase the excess surrendered land under Section 3(1)(b) of the Act read with Scheme No. 2 as ordained in the impugned Order is recognized. No infirmity, perversity or illegality is found in the impugned Order which may warrant interference by this Court in the exercise of discretionary and extraordinary jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Accordingly, this Petition being devoid of any merit is dismissed.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*