' MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against the judgment, dated 28-10-1997 passed by a learned Single Judge of the Lahore High Court, Lahore in an application under section 12(2), C.P.C. Arising out of the judgment, dated 21-5-1990 passed by the said Court in Writ Petition No,55/R of 1990 filed by Agha Hassan Mirza respondent No,5 in the present appeal against the Member, Board of Revenue and others exercising the powers of Settlement Authorities.
2. Leave was granted in this appeal vide order, dated 28-6-1999 which reads as under:-- "Petitioners in both the above petitions seek leave to appeal against the judgment, dated 28-10- 1997 passed by a learned Single Judge of the Lahore High Court, Lahore in C.M.As. Nos.3785 of 1990 and 1276 of 1993 in Writ Petition No,55/R of 1990, arising out of proceedings under section 12(2), Civil Procedure Code, 1908.
' Brief facts are that the petitioners herein moved a Mukhbari Application against one Nizam Din and others alleging that they had secured allotments in various villages of Lahore District by fraud and misrepresentation. In consequence, the Additional Revenue Commissioner/Settlement Commissioner, Punjab vide order, dated 12-7-1989, held that the allotments obtained by Nizam Din, etc. Were bogus and accordingly passed order for cancellation and resumption of allotted land in favor of the Government. The petitioners were also found entitled to the. Allotment of the resumed land to the extent of their verified pending claim in accordance with the provisions of section 14(1)
(a) of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act).
' In pursuance of the above order, the area allotted to Nizam Din, etc., which was resumed, was not allotted to the petitioners but they were given some other land in village Charar and Amar Sidhu, Lahore Cantonment, in lieu of the resumed land by a subsequent order passed on 8-11-1989.
However, Member (Revenue) Board of Revenue, exercising powers of the Chief Settlement Commissioner, declared the said order as without jurisdiction vide order, dated 20-12-1989. The petitioners challenged the validity of the said order before the High Court by means of Writ Petition No,55/R of 1990 which was accepted vide judgment, dated 21-5-1990.
' Being aggrieved, the respondents filed petition for Leave to Appeal No,711/L of 1990 and respondent No,1 also filed Civil Petition No,810/L of 1990, No,3785 of 1990.
' Leave to appeal was granted in both the petitions on 18-12-1990. Grievance of the respondents before this Court was that in their application under section 12(2), C.P.C. It was, inter alia submitted that a large part of the area which has now been allotted to the respondents, vide order. Dated 8- 11-1989 was already owned by the respondent-Society and was included in Phase-III and Phase-IV of the Scheme formulated by the Society and, in fact, stood allotted in the shape of residential plots to the Members, in accordance with the Bye-laws and a number of houses were already built on these plots.
' The case of the petitioners was that they, being informers, were entitled to allotment against their verified claims in terms of section 14(1)(a) of the Act. By order, dated 6-12-1992, this Court adjourned the appeals and directed the High Court to dispose of the application under section 12(2), C.P.C. In consequence, the High Court has finally accepted the application under section 12(2), C.P.C., inter alia, with the following observations:-- ' The distinction in the case of the petitioners from that of appellant Muhammad Ramzan in the precedent case which in my humble opinion is of little consequence is that whereas in his case their Lordships were dealing with the situation where urban evacuee land had been allotted to a Mukhbar in lieu of his outstanding units in the instant case the writ petitioners had earlier secured allotment of some urban land elsewhere as Mukhbars but on finding that the land could not be so allotted to them as being not available the land in question was allotted to them in lieu thereof.
(9) The case of the petitioners is fully covered by the dictum in Muhammad Ramzan's case. The allotment in question made in their names, entries whereof were sought to be incorporated in the Revenue Record by attestation of mutation through the writ petition (Writ Petition No,55/R of 1990) was void ab initio. No direction in this view of the matter, could have been legally issued by this Court for effecting necessary entries in the Revenue Record on the basis of such void allotment.
The writ issued through the impugned judgment, therefore, merits to be recalled. It is ordered accordingly.'
' Mr. Ali Zafar, learned counsel for the petitioners argued that in the first round of litigation Mr. Justice Ihsan-ul-Haq Chaudhry, vide judgment, dated 21-5-1999 declared the order of respondent No,1 dated 20-12-1989 as without lawful authority and respondents Nos.2 and 3 were directed to implement the order, dated 8-11-1989 wherein land in dispute was transferred to the petitioners, inter alia, with the following observations:-- ' .... In case of claimant there could be no allotment within the Municipal limits in view of the notification dated 16-5-1973 but this notification was not applicable to the informers as clarified in notification dated 18-2-1974. The last notification clearly gives the background of this amendment in the policy. I hold that in view of introduction of section 14(1-A) through Act LV of 1973 and its substitution by Act XXXVI of 1974 this notification was necessary and the policy was rightly amended and modified.'
' He contended that, in the impugned order, the learned Judge in Chambers completely overlooked the above finding while accepting the application under section 12(2), C.P.C. Filed by the respondents. It is next contended that the mandatory conditions for the exercise of jurisdiction under section 12(2), C.P.C. i,e, fraud and misrepresentation, having not proved to have existed whether the High Court was competent to recall its judgment passed in Constitutional jurisdiction accepting the writ petition of the petitioners vide order, dated 21-5-1990. It is further contended that the learned Judge in Chambers has committed an error of law in holding that the allotment of urban agricultural land in lieu of petitioners' entitlement under section 14(1-A) of the Act as void ab initio, which were never an issue in controversy in Civil Miscellaneous Application filed by the respondents under section 12(2), C.P.C. It is further contended that the power of the learned High Court under section 12(2), C.P.C. Is confined to cases of fraud and misrepresentation whereas in the instant case no such finding was recorded, therefore, the impugned order was not sustainable.
' Mr. Maqbool Sadiq, learned Advocate Supreme Court for respondent No, l/caveator argued that notwithstanding absence of any specific finding regarding fraud or misrepresentation, the High Court was right in dismissing the writ petition in view of the dictum of this in the case of Muhammad Ramzan v. Member (Revenue)/C.S.S. And others 1997 SCM R 1635.
' Leave to appeal is granted to consider whether the High Court was right in recalling the order dated 21-5-1990, passed in Writ Petition No,55/R of 1990 in view of the dicta of this Court in Muhammad Ramzan (supra), in proceedings under section 12(2), C . P. C .
Civil Petition No,554/L of 1998 ' Leave has since been granted in C.P. No,464/L of 1998, leave is also granted in C.P. No,554/L of 1998 subject to limitation, inasmuch as the petition is barred by 34 days."
' In consequence to the cancellation of the allotment of land in the name of Nizam Din and others on the Mukhbari application of the appellants the Commissioner, Lahore Division exercising the powers of Chief Settlement Commissioner held them entitled for allotment of land equal to 5569 PI Units, as informer, but the above order remained unimplemented for a considerable time and ultimately D.S.C. (Land) vide order, dated 25-1-1989 observed that the Urban Agricultural Land situated within the Municipal Limit having been declared building site could not be allotted to the appellants and they could make an option for allotment of agricultural land. However, the Notified Officer later vide order, dated 8-11-1969 proposed the allotment of the land in dispute, but this order could not be given effect and they filed a writ petition in the Lahore High Court, Lahore in which a learned Single Judge vide judgment, dated 21-5-1990 issued directions to the Notified Officer for the allotment of the land to them in terms of order dated 8-11-1989 passed by D.S.C. (Land). This judgment was, however, subsequently recalled by another learned Single Judge of the High Court in an application under section 12(2), C.P.C. Moved by respondent.
' No,1/Defence Housing Authority, Lahore wherein it was pleaded that the D.H.A. Was bona fide purchaser of land for valuable consideration and the appellants by concealment of material facts obtained a favorable order from the Deputy Settlement Commissioner (Land) and also succeeded in writ petition by misrepresentation. It is stated that a similar application was moved on behalf of the Chief Settlement Commissioner for setting aside the order dated 21-5-1990 passed in the writ petition. In the light of the given facts, learned Judge in Chambers in the High Court in view of the law laid down by this Court in Muhammad Ramzan v. Member (Rev)/C.S.S. And others 1997 SCM R 1635 recalled the order dated 21-5-1990 passed in the Writ Petition No,55-R of 1990 and allowed the application under section 12(2), C.P.C. It was further held in the light of judgment of this Court in Bashir Ahmad and others v. Punjab University Academic Staff Association and others 1991 SCM R 377 that under notification dated 16-5-1973 issued by the Chief Settlement Commissioner, the property subject-matter of the dispute was urban evacuee property having acquired the status of building site for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958 was not available for allotment to the informant.
4. The learned counsel for the appellants has contended that the scope of section 12(2), C.P.C. Is limited to the extent of cases in which order is obtained by way of fraud, misrepresentation or if the order was passed without jurisdiction but in the present case, the learned Judge in Chamber in the High Court recalled an earlier judgment given in the writ petition under section 12(2), C.P.C. For entirely different consideration and contended that the appellants were entitled for the allotment of resumed land or alternate suitable land under section 14(A-1) Displaced Persons (Land)
Settlement Act, 1958.
5. The claim of the appellants as informers was verified by the D.S.C.(L) on 8-11-1989 in pursuance of the order of the Chief Settlement Commissioner on their Mukhbari application moved by them before the repeal of the evacuee laws. This application admittedly was pending on the date of repeal of evacuee laws and notwithstanding whether it could be treated "pending' for the purpose of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or not, the real question for decision would be whether before or after repeal of evacuee laws, urban evacuee land after issue of notification dated 16-5-1973, by the Chief Settlement Commissioner under Displaced Persons (Land) Settlement Act, 1958 by virtue of which the urban lands situated within the Municipal limits were declared as building site, for disposal under section 13 of Displaced Persons (Land) Settlement Act, 1958 could be allotted in terms of section 14(1-A) of the (ibid) Act.
The laws regulating the right of informant for allotment of land on their Mukhbari application have been changing from time to time and finally by virtue of Evacuee Property and Displaced Persons Laws (Amendment) Act (LV of 1973), section 14(1-A) was made part of the Statute which was substituted by Displaced Persons (Land Settlement) (Amendment) Act (XXXVI of 1974) with effect from 22-3-1974. The original section and substituted section 14(1-A) provided as under:-- "(1-A) where, on the formation of a claimant about any bogus or fraudulent allotment of land, the information has been proved to be correct and the land so acquired has been cancelled and resumed by the competent authority, the resumed land shall be allotted to the informant to the extent of his claim pending for allotment in the same Province".
The substituted section (1-A) is reproduced as under:-- "(1-A) Where at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled--
(a) If he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land had already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and
(b) In any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."
7. The careful reading of the above provisions would show that in consequence to an information furnished by a person about the bogus allotment, if such an allotment stood cancelled, the claim of the informant would be dealt with by the competent authority under section 14(1-A) of Displaced Persons (Land) Settlement Act, 1958 in the following manner:-
(a) if the informant is a claimant, he would be entitled to the allotment of resumed or any other available land, and
(b) if the informant is not a claimant, the Chief Settlement Commissioner may decide for award of cash amount.
' The status of the appellants was that of a claimant under Displaced Persons (Land) Settlement Act, 1958, therefore, they subject to notification, dated 16-5-1973 issued by the Chief Settlement Commissioner could set up their claim under clause (a) of subsection (1-A) of section 14 (ibid). The notification in question provided as under:- "In exercise of powers conferred upon me under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, I, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates situated within the Urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment throughout the Province of the Punjab, as building sites, for disposal under section 13 of the said Act."
8. The provisions of section 14(1-A) (ibid) would not as such override the notification as under the said provisions, an informant who was claimant could be allotted resumed land or any other available land whereas under the notification dated 16-5-1973, only the urban agricultural land which acquired the character of building site was kept out of the purview of allotment, therefore, the land which was definable as building site could not be allotted as land after 16-5-1973 and Notified Officer would not be competent to allot urban agricultural land for the satisfaction of the claim of informant either as claimant or non-claimant but a claimant informant could avail the choice of alternate available agricultural land. The memorandum dated 18-7-1974 by virtue of which the application of notification dated 16-5-1973 was relaxed to the extent of informer could only be relevant in case of an available land. In the present case, neither the land resumed nor the land in dispute was available for allotment, therefore, the order passed by the Notified Officer for allotment of urban alternate land was coram non judice and would be suffering from jurisdictional defect. The High Court on the assumption that the order of the D.S.C.(L) represented correct factual position proceeded to issue direction but subsequently, it was found that order was obtained through misrepresentation.
9. The learned counsel representing the Defence Housing Authority contended that the. Land subject-matter of the dispute was purchased by the authority much before the allotment in favor of the appellants and the authority having developed a Housing Scheme further allotted the residential plots to its members who have also built houses on the allotted plots, and these allottees have vested interest in the property, therefore, they were necessary parties but the appellants without impleading the Defence Housing Authority or the effected allottees obtained a favorable order in the writ petition by concealment of material facts which was rightly recalled under section 12(2), C.P.C.
10. The learned counsel representing the Settlement Department has argued that in view of the notification dated 16-12-1973 issued by the Chief Settlement Commissioner, the Notified Officer would have no jurisdiction to deal with the properties declared as building site and the land in dispute having been declared as building site was no more an urban agricultural land to be allotted in lieu of the claim of the appellants as informer.
11. The effect of notification dated 16-5-1973 issued by the Chief Settlement Commissioner by virtue of which all urban agricultural lands were declared building sites would be that such land would no more be available for allotment and after repeal of evacuee laws, the jurisdiction of the Notified Officer was confined only to the extent of disposal of available properties thus, notwithstanding the memo. Dated 10-7-1974, the urban agricultural land which had acquired the status of building site whether available or not could not be allotted for adjustment of P.I. Units. It was held in Bashir Ahmad and others v. Punjab University Academic Staff Association and others 1991 SCM R 377 that in the face of notification dated 16-5-1973 the urban land situated within the Municipal limits defined as building site could not be allotted on the basis of claimants units. In Muhammad Ramzan and others v. Member (Rev.)/C.S.S. And others 1997 SCM R 1635 it was held as under:- "The ratio decidendi in cases reported in 1991 SCM R 377, 1991 SCM R 1255 and 1993 SCM R 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into building sites' and consequently notification dated 16-5-1973 was valid.
Therefore, on the issuance of said notification every agricultural urban land which had not been adjusted, allotted or utilized till then against verified claims cases to available for transfer.
Additionally, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, became effective from the first day of July, 1974. Hence the status of evacuee property as existing on such date could not be changed or converted subsequent to promulgation of said enactment. The authority for disposal of the property or residual work was merely to be restricted to finalize rehabilitation process. Therefore, we find no difficulty in observing that when repealing. Act was promulgated there did not exist any agricultural urban land, which could be adjusted against unsatisfied verified claims of produce index units. The claimants with unsatisfied entitlement could resort to any other remedy if available under the law, but were not entitled to obtain allotment of urban land in satisfaction of. Pending units as alternate land/measure of otherwise."
' The proposition was also discussed in Malik Iftikhar Ahmad v. Assistant Commissioner and others 1994 PSC 102; Province of Punjab through Member (Settlement and Rehabilitation), Board of Revenue Punjab, Lahore v. Mst. Qaiser Jehan Begum and others 2003 SCM R 870 and Rehmat Ali v.
Settlement Commissioner and others PLD 1980 SC 214.
12. In the light of the foregoing discussions, we are of the considered view that the D.S.C. (Land) in exercise of power as Notified Officer had no jurisdiction to make an allotment of the land which had acquired the status of building site for satisfaction of the claim of informant and the allotment made by the Notified Officer in terms of section 14(1-A) of the Displaced Persons Land Settlement (Amendment) Act, 1974 without giving effect to the notification dated 16-5-1973 would be without jurisdiction which could not be validated in the writ petition, therefore, the High Court had committed no wrong in recalling the earlier judgment under section 12(2), C.P.C.
13. The net result of the above discussion is that we without Commenting upon the genuineness of the claim of appellants hold that the land subject-matter of the litigation being not available for allotment could not be allotted to the appellants for satisfaction of their claim and they may if so advised approach the Settlement Authorities for their adjustment in suitable manner in terms of order dated 25-1-1989 passed by the Notified Officer. This appeal is dismissed with no order as to costs.