' MIAN SAQIB NISAR, J.--- The noted Writ Petition No,546 of 2000 and Writ Petition No,1256 of 2000 are being disposed of together, as both involve the common questions of law and facts.
2. In both these cases, the petitioners have challenged the order dated 22-7-1999 passed by the Notified Officer, Bahawalpur and the confirmation of the said order in RL-II No,1 Jadid and the Mutation No,5266, dated 3-9-1999 attested in favour of respondents Nos.2 to 5 on that basis, and have also claimed in Writ Petition No,546 of 2000 that the allotment of the suit property in the name of the private respondents be also cancelled.
3. Briefly, the facts of the case, according to the petitioners are, that the land measuring 32 Kanals involved in Writ Petition No,546 of 2000 and 40 Kanals and 15 Marlas in the other writ petition, was an evacuee property, which was put to auction in the year, 1984 and the petitioners, inter alia, are the highest bidders; they were already in possession of the said land and had accordingly deposited the auction price, therefore, the said property stood excluded from the compensation pool.
4. The same land through the impugned order dated 22-7-1999 passed by the Notified Officer has, however, been allotted to the private respondents against their "Mukhbari" claim, which was originally not for the aforementioned land, but for some other, which land according to the private respondents was not available. The private respondents in this behalf have taken the precise plea in their written statement that "the answering respondents Nos.2 to 4 were the successful informers but the land resumed on their information was not available, therefore, in pursuance of section 14(1-A) of the Displaced Persons (Land Settlement) Act, 1958, they were entitled to get the alternate allotment of the land and their case was duly covered by section 2(2) of Evacuee Property and Displaced Person Laws (Repeal) Act, 1975 because the proceedings in the said case were pending before the repeal of Settlement Laws". It is also their case that the auction in favour of the petitioners was never confirmed by the competent authority rather the A.C., Rahim Yar Khan has put up a note for the D.C. Settlement, which reads as follows: "In all the cases of sale on the reserve price on the basis of possession, neither there is any documentary proof, of these persons being in possession of the land in question nor they have filed the written option to exercise the right of first purchase, as required by the scheme. Similarly in all cases of sale through auction, the list of bidders was not prepared and authenticated before the start of auction. Despite the fact that the sale proceedings have not been signed and authenticated by the Chairman Auction Committee, the price has been deposited into the Treasury."
Upon the above, on 9-7-1985 the D.C. Ordered "The above cases also have to be remanded to the Assistant Commissioner, Rahim Yar Khan for holding auction again". The Additional Commissioner directed "Their cases may be recommended for fresh proceedings". This order was never challenged by the petitioners ever, even not through the present writ petition and, therefore, such order has attained finality. It may be pertinent to mention here that the private respondents have not given any specific date or provided ally order along with their written statement as to when their "Mukhbari" application was accepted, but when questioned in the Court, learned counsel for the respondents states it to be on. 30-11-1977 i,e, after the repeal of the Settlement Laws. He, however, insists that as their "Mukhbari" application was pending at the time of repeal of the aforesaid laws, therefore, the said order would entitle them to the land, which has been resumed or the alternate available land. Be that as it may, about the private respondents, the Chief Settlement Commissioner vide order dated 19-8-1996 held that:-- "As regard entitlement of the applicants to alternate allotment, as informer under the provisions of section 14-A of the Displaced Persons Land Settlement Act, the matter should come up for consideration on 9-9-1996. A report about the status of the applicants as claimant and the claim verified in their name may be obtained from the 'Central Record Office by the said date."
' The matter again came before the Chief Settlement Commissioner on 7-10-1996 when he passed the following order:- "(4) The case of the applicants has now to be dealt with according to provisions of section 14-A of the Displaced Persons (Land) Settlement Act, 1958. The office report about the entitlement of the applicants and their own written brief about the allotment already obtained by them and their outstanding units has been placed on the file which may still be verifiable.
(5) The case is entrusted to Secretary (Revenue)/S.C.(L), Board of Revenue for disposal as per provisions of section 14-A of the Displaced Persons (Land) Settlement Act, 1958 according to the outstanding entitlement of the applicants, after due scrutiny."
' I do not find if the Secretary took any steps in pursuance of the above order. But through the impugned order, dated 22-7-1999, the Notified Officer on the basis of the statement of the Halqa Patwari, that the land in question is available and on examining the Jamabandis for 1945-46 and 1997-98, transferred the same.
5. Learned counsel for the petitioners contends that no opportunity of hearing was given to the petitioners before cancelling the allotment from their names; that the auction was duly held; the petitioners have also deposited the auction price, therefore, a vested right has been created in their favour, which could not be annulled; he also argued that when the property was auctioned in favour of the petitioners, it stood excluded from the compensation pool and was not available to be transferred to the private respondents for their "Mukhbari" claim; lastly it is submitted that after the repeal of evacuee law, the "Mukhbari" application could not be accepted and no land could be transferred to the private respondents. Reliance in this behalf is placed on Warrayam v. Settlement Commissioner (Land), Lahore and others 1996 SCM R 1949, Muhammad Boota and others v.
Additional Deputy Commissioner (G), Additional Settlement Commissioner, Sahiwal and another 1991 SCM R 859 and Abdul Aziz and others v. Malik Shahab Din and others 1990 SCM R 1610.
6. Heard. I am afraid that the noted judgments are distinguishable and have no application to the cases in hand, because in these cases, the "Mukhbari" applications were filed after the repeal of evacuee law and thus, it was held in Warrayam v. Settlement Commissioner (Land), Lahore and others 1996 SCM R 1949 "It is worthy to be noted that the Displaced Persons (Land Settlement) Act, 1958 was repealed with effect from July, 1974 and after said date there was no provision for moving Mukhbari application". The present case is covered by the judgment of the Honourable Supreme Court reported as Barkat Ali and others v. Syed Shazad Nazir and others 1981 SCM R 693, the relevant portion of the judgment is reproduced as below:-- "In view of the provisions contained in subsection (1-A) of section 14 of the Displaced Persons (Land Settlement) Act, 1958, it is clear that the informants have a legal right to the allotment of land unearthed as a result of information given by them. As the land in dispute has been resumed on the basis of information given by the respondents, they have a prior right to its allotment in accordance with their entitlement. The learned counsel for the petitioners is not in a position to contend that the provision of subsection (1-A) of section 14 aforesaid stand superseded by the subsequent legislation. To this extent therefore, the order 'made by the learned Settlement Commissioner, and upheld by the High Court, is not open to exception."
' Reference in this behalf can also be made to the following two judgments of the Honourable Supreme Court:-- ' Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214; Ch. Sadiq Ali v. Imtiaz Ahmad Khan and others PLD. 1980 SC 222.
7. From the order dated 9-7-1985 quoted above, it is clear that the auction made in favour of the petitioners was not in accord with law and therefore, it had not been confirmed; these orders were never challenged by the petitioners, even not in these petitions, therefore, the orders have attained the finality. Besides the above, the learned counsel for the petitioners has not been able to establish that the auction was held as per the rules and that on account of the above, any vested right has been created in favour of the petitioners, which should be protected in the constitutional jurisdiction, resultantly, the claim of the petitioners that they are the auction purchasers of the property and should be declared as such, and the order impugned in these petitions be set aside on that account, has no merits and is hereby rejected.
8. However, despite the above, the private respondents have not been able to show if their case is fully covered by section 14(1-A) of the Displaced Persons (Land Settlement) Act, 1958, and has been determined by the Settlement Authorities by considering the said provision, according to which 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." (underline is mine for the emphasis).
' Before the insertion of the above section, the informer was not entitled to allotment of any other land except the resumed land. With the passing of the Displaced Persons (Land Settlement)
(Amendment) Ordinance, which substituted subsection (1-A) to section 14 of the Displaced Persons (Land Settlement) Act, 1958, the right of the informer to the resumed land was taken away, if the same was already allotted to some other person, in which case he was entitled to allotment, to the extent of his entitlement from any other land of his choice available for the allotment. From the clear and unambiguous wording of the section, the entitlement of the claimant for the available land is dependent upon and is restricted to the fact that the resumed land on the date of its resumption i,e, on the acceptance of "Mukhbari" application, has been allotted to some other person, because the law is meant to protect and safeguard the rights of those who have attained the allotment before the "Mukhbari" application was allowed. If it is not so allotted, the Mukhbar shall absolutely have no right for the allotment of any other available land, rather only and exclusively to the resumed land. In both the orders mentioned above and in the last order dated 22-7-1999, this aspect of the matter has not been considered and determined; from the record available before this Court and also from the Revenue Record, the private respondents were/are not able to show as to why the land qua which they had filed the "Mukhbari" application and was resumed, was not available for its allotment on the date of its resumption and had already been allotted to some other person, so as to attract the second part of the section 14(1-A), no allotment order of such land, including the particulars thereof, have been taken in account at any stage of the proceedings and by any forum. However, in the order, dated 7-10-1996 only a reference has been made "it is also in evidence that the land cancelled by the Settlement Commissioner could not be allotted to the applicants due to non-availability". This does not meet the requirement of law, firstly for the reason that such evidence has not been discussed and secondly it is not determined if the non-availability is due to the fact that the resumed land has already been allotted on the date of resumption to some other person or it was non-available for any other cause; may be the resumed land was available, but the possibility cannot be ruled out that it was involved in some litigation or there were other claimants to the same land, but were not the allottees, therefore, instead of insisting to exercise their right under the first part of the section, which they had acquired on the basis of acceptance of their "Mukhbari" application, the respondents themselves gave up their claim for the resumed; if that was the position, it cannot be said that such resumed land "has already been allotted to some other person" entitling the respondents to have some other land of their choice available for the allotment in the same Province; this choice was mandatorily dependent upon the allotment of the resumed land to some other person at the relevant time and not non-availability simpliciter. This being a "jurisdictional fact" had to be first ascertained and determined by the Settlement Department, which in this case from the two orders reproduced above and the one dated 22-7-1999 challenged in these petitions, has not been adjudicated. Therefore, the order dated 22-7-1999 is set aside; the case is remanded to the Notified Officer to determine the above question and redecide about the rights of allotment of the private respondents in accordance with law.
' In the light of above, the writ petitions are dismissed regarding the rights of the petitioners, which they claim on the basis of auction. However, to the extent of the allotment to the respondents, these are accepted, the order, dated 22-7-1999 and all the subsequent actions based thereupon, are annulled.