' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that land in dispute was got allotted by one Abdul Bari predecessor-ininterest of the private respondents in the year, 1963. This allotment was challenged by Rana Nazir Ahmad predecessor-in-interest of the present petitioners. Parties remained in litigation for decades even up to the level of Hon'ble Supreme Court and ultimately petitioners were found to be entitled to allotment. Ultimately vide order, dated 15-4-1985 passed by the AC/Collector with the powers of Deputy Settlement Commissioner, Sahiwal it was held that the land falling in Square No.12, Khasra Nos.124, 5/1, 5/2 and 6 to 20 measuring 160 kanals is available for allotment and the petitioners being entitled, should be transferred to them This order is still intact and has not been set aside by any Authority.
2. Petitioners are aggrieved of order, dated 12-9-2005 passed by Member Judicial-IV, Board of Revenue and an Office Order, dated 3-9-2004 issued by the Chief Settlement Commissioner.
According to the said two orders the petitioners have been deprived of their allotment of land but have only been held to be entitled to get compensation @ Rs.750 per PM.
3. It is contended .By the learned counsel for the petitioners that Office Order, dated 3-9-2004 has been issued on the basis of two judgments of the Hon'ble Supreme Court reported as PLD 2003 SC 603 and 1997 SCM R 1635. According to him both these judgments are not applicable in the facts and circumstances of the case. It is next submitted that under subsection (3) of section 2 of the Evacuee Property and Displaced Persons (Repeal) Act, 1975, the Notified Officers were required to decide the matter in terms of the repealed Acts and Regulations. Under the Repealed Act and the Regulations it was not the compensation but the land was to be allotted if the land was available for allotment. In the instant case the land has become available, therefore, question of compensation simply did not arise. He has also relied upon a judgment of my learned brother Sayed Zahid Hussain, J., The Hon`ble Chief Justice, dated 18-5-2005 in Writ Petition No. 27-R of 2005 to contend that statutory provisions of law cannot be subverted by an Office Order.
4. On the other hand, learned counsel for the private respondents contends that although his client has lost any right to the property in dispute up to the level of the Hon'ble Supreme Court, however, the petitioners are also not entitled to allotment, as the laws stood repealed in the year, 1974, therefore, any allotment if made after the repeal of Acts and Regulations would be a nullity in the eye of law.
5. Learned counsel representing the Settlement Department, however, maintains that the impugned order is not a person specific order. It is applicable to all and many matters are pending before various forums even before the Hon'ble Supreme Court with regard to entitlement of allotment of land or encashment.
6. I have considered the arguments of the learned counsel for the parties.
7. Subsections (2) and (3) of section 2 of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 are reproduced as follows:--
(2) "Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the Authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such Authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."
According to this provision of law the Notified Officer in proceedings pending at the time of repeal and transferred to him or remanded to him by any higher forum including High Court and Hon'ble Supreme Court was required to decide the matters in terms of the Repealed Acts and Regulations, the only course open to such a Notified Officer was to go by law which stood repealed. If a claimant/allottee was in litigation with another claimant/allottee prior to the repeal of the Acts and it continued thereafter then it would be deemed to be a pending proceeding required to be decided by the Notified Officer in accordance with the repealed Acts. Word "proceedings" was thoroughly and in depth detailed by their lordships in the Hon'ble Supreme Court while dealing case reported as PLD 1979 SC 846 in para. 12 as follows:-- "At this place we would like to observe that connotation of word "proceedings" is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of section 2 leave no room for doubt, that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings, related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are "all proceedings" it is not justified to diminish the totality of those proceedings by introducing jurisprudential concepts, for example of judicial proceedings, quasi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings and proceedings before a Court etc. The focus shobld remain on the words deployed in the statute and so long as the proceedings are under the Act repealed; before the competent authorities; and are of the kind and for the purpose indicated in that Act, for the enforcement of rights mentioned therein on the applicants concerned, they are the proceedings which are saved so as to continue under the relevant law repealed. The provision made is of the kind which is contained in section 6 of the General Clause Act X of 1897 where it has never been doubted that legal proceedings for enforcement of substantive rights are such proceedings which can continue after the repeal of the enactment under which they were initiated and were pending at the relevant time."
The question has been finally resolved up to the level of Apex Court that respondents were not entitled to land in dispute as against the petitioners who were held entitled to the said land, therefore, no option is left with the respondent Authorities to refuse allotment and handover possession of the disputed property to them. Offer of cash compensation is in clear violation of subsection (3) of section 2 of the Repealing Act.
8. Impugned Office Order, dated 3-9-2004 is primarily based on two judgments referred above and order, dated 12-9-2005 is also in furtherance of the same Office Order. In para. 21 of the judgment reported as PLD 2003 SC 603 their lordships divided the expression pending proceedings' used in section 2(2) of the Act into two categories; one category is of pending cases and other category is of unadjusted Produce Index Units of verified claims. The exact words used by their lordships are reproduced:-- " "Pending proceedings" used in section 2(2) of the Act covers the pending cases and not the unadjusted Produce Index Units of verified claims for which a specific mechanism in the shape of compensation was devised before promulgation of the Act."
In the instant case petitioners had a right of allotment against their claim for the land left by them in India but was wrongly got allotted by the predecessor-in-interests of the private respondents for which the petitioners' predecessor-in-interest and now the petitioners remained in litigation for no fault on their part. So far as question of their right is concerned now stands finally settled up to the level of Apex Court of the Country. Now, therefore, at this stage, when their right had matured, it would be unfair that they should be deprived of their right of allotment of land and merely compensated through nominal compensation. It is a case which can be confidently said to be pending case/proceeding at the time of Repealing Act.
9. Classification of two categories declared by the Hon'ble Supreme Court in above quoted para can be looked into from yet another angle. There could be a claimant, who was having certain numbers of PIUs duly verified, therefore, was allotted certain lands against some of those units. But at the time of repeal certain claims of verified units remained unsatisfied but his matter was not pending before any Authority, such a claimant can only be paid cash compensation and further allotment of land by Notified Officer was not permissible.
10. There is yet another angle to look into this matter. Undisputedly, the land in question stood allotted to the predecessor-ininterest of the respondents in the year, 1963 rightly or wrongly but it certainly came out of the pool of Settlement Department and became subject-matter of litigation between the petitioners and the respondents, therefore, there is no room of doubt left that it was a pending proceeding in which question of unadjusted PIUs has become irrelevant.
11. The other judgment (1997 SCM R 1635) primarily deals with the urban agricultural lands which through a notification were declared to be building sites, therefore, were not available for allotment. Conclusions drawn by their lordships are reflected in Paras. 23 and 24 of the judgment.
The relevant extracts from the said paras are reproduced respectively:-- "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."
"We are inclined to hold that on the promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against Produce Index Units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units."
12. Nutshell of the above discussion is that this writ petition is allowed. Impugned orders are declared to be illegal and without lawful D authority to the extent of refusal to allot land to the petitioners.