' CH. MUHAMMAD MASOOD JAHANGIR, J. --- By filing the instant writ petition the petitioners has assailed the validity of order dated 12.02.2009 passed by respondent No, 1 whereby the allotment of disputed property measuring 365- Kanalas 14-Marlas, situated in Mauza Banga Jiwan, Tehsil Minchanabad, District Bahawalnagar, which was confirmed in favour of predecessor-in-interest of the petitioner namely Jalal Din vide R.L.II No, 18, dated 20.08.1982 has been cancelled.
2. The facts as alleged in the instant writ petition are that disputed land mentioned supra was an evacuee property, which was proposed in favour of Jalal Din by the then Assistant Rehabilitation Commissioner through order dated 27.07.1972 against the verified claim vide R.L.II No, 18 and thereafter the said property was confirmed in his favour vide order dated 24.08.1982 passed by the Assistant Commissioner-Deputy Settlement Commissioner, which also reflected in the revenue record vide mutation No, 20 dated 24.11.1982. It is further alleged in the instant writ petition that the said allottee Jalal Din transferred the disputed property to the present petitioners vide sale mutation No, 21 dated 24.11.1982 and since then the petitioners are in occupation of the disputed property. However, respondents No, 2 to 5 preferred an, application to Member Board of Revenue/respondent No, 1 for the cancellation of the allotment of the disputed property, which has been accepted vide order dated 12.02.2009 and the basic allotment of the land in dispute from the name of Jalal Din has been cancelled.
3. The learned counsel for the petitioners has argued Lhat one Bahawal, father of respondent No, 2 had earlier preffered Mukhbari application against the allotment of Jalal Din before the Additional Settlement Commissioner in' the year 1983 which was entrusted for inquiry to the General Assistant and as a result of thorough inquiry, the same was filed in the year 1988; that regarding the same subject-matter, the second Mukhbari application was not warranted under the law, but respondents No, 2 to 5 preferred second Mukhbari application which has been accepted by the learned Member Board of Revenue on wrong premises of law; that earlier in the proceedings of first Mukhbari application filed by Bahawal, reports dated 23.07.1984 and 26.04.1988 were prepared, which confirmed that the Revenue Officer while appearing before the Assistant Commissioner admitted to have made the proposal on R.L.II No, 18 on 27.07.1972; that the Member Board of Revenue-respondent No, 1 has over looked the provisions of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, and illegally concluded that allotment proposed before the repeal of settlement laws could not be confirmed after coming into force of the repealing Act. He has further argued that R.L.II bearing a proposal comes within the definition of pending proceedings and under the provisions of Act supra, the then Assistant Commissioner/Deputy Land Commissioner was competent to confirm the allotment regarding disputed land. He has lastly argued that the impugned order is liable to be set aside as it has been passed in utter disregard of the relevant law as well as the facts available on the record and respondent No, 1 also omitted to take into consideration that the first petition of the same nature had already been filed.'The learned counsel for the petitioners has relied upon the cases reported as "Inayat Bibi etc v. Assistant Settlement Commissioner and Chief Settlement, Commissioner" (PLD 1978 Lahore 252), "Nawab Din v. Member, Board of Revenue (Settlement & Rehabilitation) Punjab, Lahore and 4 others" (PLD 1979 Supreme Court 846) and "Bashir Ahmad v. Kamalwddin, etc."(NLR 1986 SCJ 370) in support of his contentions.
4. Conversely learned counsel for the respondents No, 2 to 5 has refuted the arguments advanced by learned counsel for the petitioners and argued that a bogus rallotment had been procured by Jalal Din in connivance with some notorious Patwaries; that the allottee and the petitioners had committed fraud and forgery by maneuvering the allotment of the disputed land measuring 365- kanals 14-marlas; that the order dated 24.08.1982 passed by Assistant Commissioner, Minchanabad, being illegal, un-warranted and result of misuse of powers was without lawful authority. Learned counsel has further mooted that respondent No, 1 after appreciating the available record had eminently dealt with the matter and finally cancelled the allotment of the disputed property. He has further argued that case of the claimant could not be treated as pending case and the Assistant Commissioner had no authority after the repeal of settlement enactment to confirm the bogus allotment. He has lastly argued that constitutional petition before this Court is not a proper remedy as factual controversies involved herein cannot be solved without full-fledged trial. The learned counsel for the respondents has also submitted notification dated 16.05.1973 and letters dated 25.06.1973, 10.05.1979 and 05.07.1979 to strengthen his arguments. He has placed reliance on the cases reported as "Farhatullah Khan and others v. Additional Commissioner (Revenue), Multan and others" (2002 SCM R 1507), "Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others" (2001 SCM R 1822) and "Benedict F.D.
Souza v. Karachi Building Control Authority and 3 others" (1989 SCM R 918) in support of his contentions.
5. Arguments heard. Record perused.
6. It is an admitted fact that. Previously Bahawal father of respondent No, 2 had moved Mukhbari application against the allotment of Jalal Din before the Deputy Commissioner/Additional Settlement Commissioner in the year 1983, which was entrusted to General Assistant for inquiry, who presented the inquiry report dated 26.04.1988 before the Additional Settlement Commissioner, copy whereof is available on file at page 35 and on the strength of said report, the application preferred by Bahawal was filed. For that reason, to my mind second Mukhbari application preferred by respondents No, 2 to 5 on the same ground was not maintainable and the principle of res judicata was applicable. Anyhow, it has revealed that the Member Board of Revenue-respondent No, 1 had earlier referred the matter to the Deputy Commissioner for further inquiry, who vide his report dated 20.10.1995 (which is available on file at page 39) refuted the allegations narrated in the application submitted by respondents No, 2 to 5. The perusal of file further reveals that respondent No, 1 again called a report from the Assistant Commissioner, Minchanabad, who submitted his report dated 20.08.1988, which is also available on file at page 42 and it also concluded that allotment of the disputed land had been validly confirmed in the name of Jalal Din.
On the strength of said reports, it could safely be presumed that the disputed property had been allotted to Jalal Din and also confirmed in his favour," but surprisingly the fate of said reports in spite of having been called for by respondent No, 1 during the proceedings' of the second Mukhbari application, has not been discussed by learned Member Board of Revenue in the impugned order, but a perusal thereof reveals that the same has been passed without referring any material or document available on file and even no opportunity was afforded to the parties for production of evidence in support of their respective claims.
7. The contention of the learned counsel for respondent No, 2 that after the repeal of enactment of settlement laws, the Assistant Commissioner was not competent to confirm the proposed allotment on the strength of disputed R.L.II, has been very eminently answered by the learned counsel for the petitioners while pointing out that the disputed land had been proposed to Jalal Din on R1.11 No, 18 against his verified claims, but at the relevant time the Chief Settlement Commissioner had issued a memo. Dated 25.06.1973 while imposing ban on the confirmation of the proposed allotment, which was challenged in Writ Petition No, 894-R/1973 and a learned Division Bench of this Court comprising Sardar Muhammad lqbal, the then Chief Justice and Saad Saood Jan JJ through the judgment reported as "Inayat Bibi etc v. Assistant Settlement Commissioner and Chief Settlement, Commissioner" (PLD 1978 Lahore 252) held that the memorandum in question to be of no legal effect and directed that the proposals already existing in favour of the petitioners should be considered as still subsisting and be disposed of in accordance with law. In this behalf the relevant para No, 2 of the said judgment is reproduced here-under:--- "The petitioners in these writ petitions have in their possession verified claims for agricultural land abandoned in India in the wake of the Partition. Proposals for allotments of land were made in their favour against these claims by the relevant Settlement authorities in accordance with the provisions of paragraph 64 of the Rehabilitation Settlement Scheme, Part II. However, before the proposals could be confirmed the office of the Chief Settlement and Rehabilitation Commissioner, Punjab, issued a memorandum on 25.6.73 addressed to all settlement authorities in the Province.
The relevant part of the memorandum reads as follows:- "In pursuance of the decision of the Federal Government of Pakistan the Chief Settlement and Rehabilitation Commissioner, Punjab, has ordered that the allotment of, rural evacuee agricultural land against verified claims/entitlement certificates be stopped with immediate effect. It is, therefore, requested that all the Assistant Commissioners/Extra Assistant Settlement Officers, Extra Assistant Colonization Officers, and all other concerned may please be directed immediately not to make further allotment of rural evacuee agricultural land against any claim, entitlement certificates. Proposals already made and not confirmed will also stand ca. Welled."
' Acting on this memorandum the Settlement authorities either cancelled or refused to confirm we proposals already made in favour or the petitioners. Finding that no other remedy was available to them the petitioners have come to this Court to challenge the validity of the memorandum."
' The said learned Division Bench further concluded:--- "For the reasons stated above, we accept these petitions, hold the memorandum in question to be of no legal effect and direct that the proposals already existing in favour, of the petitioners should be considered as still subsisting and be disposed of in accordance with law. The petitioners shall also have their costs in this Court."
' Then in a case reported as "Nawab Din v. Member, Board of Revenue (Settlement & Rehabilitation)
Punjab, Lenore and 4 others" (PLD 1979 Supreme Court 846) such-like cases were again declared to be pending cases and the Notified Offi;ers were directed to decide such-like cases. The relevant para No, 12 is reproduced here-under:--- "It 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 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 XL VII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in statute are "at, proceedings" it is not justified to diminish totality of those proceedings by introducing jurisprodential concepts, for example of judicial proceedings, quasi-judicial proceedings, administrative proceedings, penal proceedings, fiscal proceedings, and proceedings before a Court etc. The focus should remain on the words deployed in the statute and sot 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 Clauses 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.
8. The learned counsel for the petitioners has also referred to the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, wherein, officers mentioned for the disposal of all proceedings under the laws repealed by the said Ordinance pending before the authorities and Assistant Commissioners have been shown to be Notified Officer as Deputy Settlement Commissioner, therefore, no iota of confusion is found that Assistant Commissioner was not a Notified Officer at the time of confirmation of allotment regarding the disputed land in favour of Jalal Din. As such, the Assistant Commissioner, Minchanabad, being Notified Officer as Deputy Settlement Commissioner had validly and lawfully confirmed the land vide order dated 24.08.1982.
The case-law referred to by the learned counsel for the respondent No, 2 being distinguishable from the facts and circumstances of the instant case cannot be given any weight.
9. The other contention raised by learned counsel for the petitioners that Member Board of Revenue being Chief Settlement Commissioner, Punjab, has no legal entity has also substance and he was left with no jurisdiction to set aside the long standing confirmation order passed in favour of Jalal Din allottee.
10. The sequel of the above discussion is that the instant writ petition is allowed, the impugned order passed by the Member Board of Revenue/respondent No, 1 having been passed without jurisdiction is declared to be of no legal effect, which is hereby set aside and the Mukhbari application filed by respondents No, 2 to 5 will be deemed to be dismissed.