This writ petition has been filed to challenge the validity of the order dated 25-10-1971, of the learned Additional Commissioner (Revenue) with powers of Settlement Commissioner, Sargodha Division, Sargodha.
2. Briefly, the facts of this case are that the petitioners are allegedly in possession of Ihata No. 78, measuring 17 kanals and 2 marlas, situate in Chak No. 52/RB, Tehsil Jaranwala, District Lyallpur (now Faisalabad), since 1947. The petitioners applied for the transfer of the ihata, allegedly, in their possession under the Revised Settlement Scheme No. VII of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Respondents Nos. 1 to 4 also applied for its transfer in their favour. The Deputy Settlement Commissioner (Lands), Lyallpur, by his order dated 1-7-1969, transferred the ihata, in question. In favour of the respondents but on appeal, the learned Additional Settlement Commissioner (Lands), vide his order dated 17-4-1970, remanded the case to the Tehsildar, Jaranwala, for decision afresh after hearing the parties. The order of the Additional Settlement Commissioner is Annexure `A'. In consequence of remand order, the learned Assistant Settlement Commissioner/Tehsildar, Jaranwala, vide his order dated 31-3-1971, transferred the ihata, in question, in favour of the petitioners on the basis of their possession (Annexure B). The order. In question, however, does not indicate the date of possession of the petitioners. The respondent, being aggrieved with the aforessaid order filed an appeal before the Collector (with the powers of the Deputy Settlement Commissioner), Jaranwala. The Deputy Settlement Commissioner refused to interfere with the order of allotment made in favour of the petitioners anal upheld the order of the Assistant Settlement Commissioner vide his order dated 15-6-1971 (Annexure `C'). Respondents Nos. 1 to 4 filed revision petition against the aforesaid order of the Deputy Settlement Commissioner and in consequence thereof, the Additional Commissioner (Revenue) with the powers of the Settlement Commissioner vide his order dated 25-10-1971 accepted the revision petition and remanded the case to the Assistant Settlement Commissioner for a thorough inquiry into the matter in order to establish whether the present petitioners were really in possession of the site in question before 1-1-1961.
3. Learned counsel for the petitioners has assailed the validity of the order dated 25-1t.'-1971 of the Additional Settlement Commissioner (Revenue), mainly, on two grounds: Firstly, that the revision petition was not competent, in that, the Additional Commissioner (Revenue) with the powers of the Settlement Commissioner, had no jurisdiction to call for the record of the Deputy Settlement Commissioner (Lands), and the Assistant Settlement Commissioner (Lands), with a view to satisfy himself as to the propriety, legality or otherwise of the order passed by them, inasmuch as, the order of allotment in favour of the petitioners, was passed by the Assistant Settlement Commissioner/Tehsildar, appointed under the Displaced Persons (Land Settlement) Act, 1958 and, therefore, the order, in question, was not open to revision. The learned counsel for the petitioners next contends that the target date of decision, i.e. 1-1-1961 pertains to the disposal of shops and houses which are covered by para. 2 of the revised Settlement Scheme No. VII and not to the rural properties of the value of Rs. 10,000 or more which are to be dealt with under para. 7 thereof.
4. As regards the question of competency of revision petition, it ma be pointed out that the petitioner participated in the appellate as well a revisional proceedings without protest and he has not even alleged in the writ petition that a question of jurisdiction was raised by him but the same was not taken into consideration by the appellate or revisional authority. This being so, the petitioner is estopped by his conduct to challenge this question for the first time in writ jurisdiction.
5. Be that as it may, the remand of proceedings in pursuance of the impugned order to the effect that enquiry be made as to whether the petitioner was really in possession of the site in dispute before 1-1-1961 is ex facie without jurisdiction and ultra vires of Settlement Scheme No. VII.
Reference may be made to Saqlain v. Mst. Hazra Begum and 2 others (1). See also Akhter Hussain v.
Ahangoo Khan etc. (2). The relevant passage reads thus :- "The main point for determination in these cases apparently is as to whether the plots in question stood transferred to the petitioners under Settlement Scheme No. VII and whether the order passed by the Settlement authorities impliedly cancelling the transfer in favour of the petitioners had been passed lawfully and with jurisdiction. In this regard it will be essential to appreciate certain provisions of the relevant scheme which was promulgated for disposal of immovable evacuee properties (other than agricultural land) situate in rural areas as amended from time' to time and various instructions issued by the competent authorities for disposal of the above-mentioned properties. The relevant provisions will be para. 4 of the original Scheme No. VI1, the definition of "rural property" as contained in sub-clause (hj of para. 1 of the revised scheme, para. 4 of the revised scheme, paras. 6(ii), 8 and 10 of Appendix I of Settlement Scheme No. VII as originally constituted, Para. 4 of Press Note dated 21st May, 1963 at page 194 of the Manual of Settlement Law and Procedure issued by the Chief Settlement - Commissioner, Pakistan, memorandum No. 6149- PL-61 dated 19th January, 1962 and the amendment in sub-para. 2(a) of para. 5 of Settlement Scheme No. VII made by Notification No. 872-EOL/67 published in the Gazette of Pakistan Part I dated 28th July, 1967. .The conjunctive reading of all the above provisions of Settlement Scheme No. VII and the various instructions referred to above clearly leads to the conclusion that so far as rural properties of the value of less than ten thousand rupees in minor villages were concerned the criteria for transfer was the occupation before the promulgation of the Scheme and that there was no formality required to be fulfilled such as the submission of any application or form seeking transfer, passing of any formal order or preparation of any documents of transfer. In the latest instructions on the subject as contained in the Press Note dated 21st May, 1963 referred to above, it was specifically provided that no formal order will be issued in individual cases nor will the possession or ownership of the persons concerned be disturbed by any Settlement Authority. The intention obviously was that persons, whosoever they may be, in occupation of any rural property of the nature referred to above, shall be deemed to be the transferee and that too without payment of any price therefor."
(1) 1981 SCMR 645(2) 1981 CLC 971
6. I respectfully follow the view taken in the aforesaid precedents.
7. In view of the above, the direction of the Additional Settlement Commissioner (Revenue) with powers of Settlement Commissioner, Sargodha, dated 25-10-1971 to hold an inquiry afresh with reference to date of possession before 1-1-1961 is declared as without lawful authority and of no legal effect. The result is that the Member Board of Revenue (Settlement)/Chief Settlement Commissioner, shall entrust this case for disposal afresh on merits and in accordance with law in the light of the observations made in this order to any notified officer competent to hear the case.
The writ petition is accepted to this extent only with no order as to costs.