1. SHAH NAWAz KHAN, J.-Evacuee land in Chaks Nos. 15 & 13 Gajjiani. Chishtian, district Bahawalnagar was temporarily, allotted to the appellants and others, who were refugees from India. The appellant's claim was for rural agricultural area and this land was an urban agricultural land, and, therefore, it could not be confirmed in their names.
2. The Tehsildar of Chishtian, district Bahawalnagar issued notices to the temporary allottees on 30- 4-1959, directing them to have their claim forms transferred to some rural area on account of their non-entitlement to have the land confirmed in their names in urban areas. The appellants considering these notices as illegal, ultra vires and inoperativeparticular when they were sitting allottees and had the prior right to have their claim satisfied out of their temporary allotment and also considering that Chak Nos. 13 and 15 Gajjiani were not within the scope of urban area filed writ petition in Lahore High Court. In Writ Petition No. 412 of 1959, the Lahore High Court called for a report from the Rehabilitation Commissioner, Bahawal--pur, who stated that land in Chaks Nos. 13 and 1 5 Gajjiani, Tehsil Chishtian was an urban area situated within the limits of the Notified Area Committee of Chishtian and as such the holders of verified claims of rural agricultural land were not entitled to the settlement of the claims .In these urban area chaks. That writ petition was consequently dismissed by order dated 29-9-1959.
3. After the dismissal of that writ-petition about 400 Kanals of urban agricultural land in square No. 30 and 31 of Chak No. 15 Gajjiani (urban area) was allotted and confirmed in the name of Sheikh lqbal Din, the predecessor-- in-interest of respondents Nos. 3 to 9 on 2nd January, 1960, in lieu of his verified claim of urban agricultural land. It is contended on behalf of the respondents that on 3rd January, 1960, appellants Ibrahim and Babu sons and Legal Representatives of Umar Din, deceased, entered into an agreement with Sh. Iqbal Din to give him Batai for the said land confirmed in favour of the respondents. However, later they challenged the said confirmation order and filed an appeal before the Deputy Rehabilitation Commissioner which was rejected by order dated 19-8-1960 on the ground that Chak No. 15 Gajiani was an urban area and as such the temporary allottees having verified claims of the agricultural land of the rural areas were not entitled to the confirmation of the said urban agricultural land. No revision petition was filed before the Rehabilitation Commissioner against that order of the Deputy Rehabilitation Commissioner.
4. However, on 20-9-1960 , the appellants and some other temporary allottees submitted revision petition No. 245 before the Chief . Settlement and Rehabilitation Commissioner against the notice of the Tebsildar dated 30-4-1959, by which they had been directed to get their rural area claims transferred from the urban areas of the aforesaid Chak Nos. 13 and 15 Gajjani, Chishtian, to rural area for settlement. In that revision petition Ch. Iqbal Din, the predecessor-in-interest of respondents Nos. 3 to 9 was not made a party in spite of the fact that this land had been confirmed in his name after the dismissal of Writ-Petition No. 412 of 1959. In fact, the appellants did not disclose this fact before the Chief Settlement and Rehabili--tation Commissioner, much less their appeal against the order of Assistant Rehabilitation Commissioner before the Deputy Rehabilitation Commissioner (Lands) and its dismissal.
5. The Chief Settlement Commissioner after hearing the revision petition by his order dated 19-11-1960, set aside the Tehsildar's notice dated 30-4-1959, and ordered that the land in dispute be confirmed in the same "of the appellants and their co-allottees. It was also held that this area was not an urban area. Sh. Iqbal Din, then submitted Writ-Petition No. 447-R of 1961 before the Lahore High Court, which was admitted for regular hearing. In the meantime, that Chief Settlement Commissioner vigyas transferred and he was replaced by Mr. M. H. Soofi as the new Chief Settlement Commissioner. On coming to know about the writ petition, he made a request to ~ the High Court for adjournment stating that he was taken up the matter l motu for reconsideration. The case was adjourned and the learned Chief Settlement and Rehabilitation Commissioner after hearing the parties including the appellants passed an order on 28-2-1963 by which the previous t) order of his predecessor-in-office dated 19-11-1960 was set aside and the land was-restored in the names of the respondents, holding that it was an urban area and that the temporary allottees were not entitled to settle their claims. On the basis of this order the High Court dismissed the writ- petition on the ground that it had become infructuous.
6. The present appellants filed fresh Writ Petition No. 1:109-R of 1963 before the Lahore High Court, but that writ petition was dismissed by the, High Court. Reliance was placed by the present appellants on the second proviso to clause 24 of Supplementary Scheme No. 11. It was submitted that the appellants were entitled to retain the property in dispute in view of the said proviso. It was argued before the learned Judge that the proviso on which the whole case of the petitioners is based was.
7. Added by correction slip No. 542 on the 20th of February, 1960, while the allotment in favour of the respondents was made on 2nd January, 1960, i. e. before, the aforesaid proviso was added, and, therefore, it could not affect ,the rights which had already C been vested as it was not given any retrospective effect. The learned Judge accepted this contention of the respondents. It was in addition to- the memorandum issued by the Chief Settlement Commissioner which is No. 2773- -64-6225-8 (W) and was in continuation of the previous circular of 26th June, 1963. In that memorandum the concession extended to the rural area claimants for allotment of urban land against rural claim could be availed of only by those rural claimants whose temporary urban area allotment was intact on or before 8th December, 1960, and bad not been dispossessed of or the land allotted to any other claimant under Supplementary SchemeNo. II.
8. The appellants then submitted L. T. A. No.. 317 of 1968, which was heard by a Division Bench of the High Court of West Pakistan, Lahore, but it was dismissed in limine, and it was observed by the Court that there was no justification for Pir Ahsanuddin to interfere with that allotment and confirmation in favour of the respondents. It was held that, if the Chief Settlement Commissioner had not withdrawn the case from the High Court for review of the order dated 19-10-1960, they would have no hesitation in saying that the respondents would have been given the necessary relief by the Court. It was further observed that as the matters stand, they had to see whether the allotment made in favour of the respondents was in accordance with law and `they have already held that this was so, and that it could not, therefore, be taken away on the basis of mere technicalities. They concluded that the learned Judge in chambers was, therefore, right in p dismissing the appellants' petition.
9. From the above observation of the High Court, it becomes clear that the allotment in favour of the respondents was held to be in accordance with law as the property in question was an urban agricultural property. This was the main relief which was sought from the Court by the respondents.
10. The appellants did not feel satisfied and they moved this Court through C. P. S. L. A. No. 458 of 1968.
11. Leave was granted on 16th April, 1969, on the points that the contention raised on behalf of the petitioners-appellants is that once the High Court came to the conclusion that the order in review passed on the 28th February, 1963, was without jurisdiction, it should have been held that the order of the predecessor Chief Settlement Commissioner passed on the 19th of November, 1960, had become final, particularly since the Writ Petition No. 447-R of 1961 filed to challenge the order of 19th November, 1960, had itself been dismissed by another Judge of the High Court on the 6th October, 1 965.
12. It will be appreciated that in Writ Petition No. 447-R of 1961, the order dated 19th November, 1960, passed by Pir Ahsanuddin, Chief Settlement Commissioner, had been challenged. It is in the order of the Single Judge of the High Court dated 6-10-1965 that, "The Chief Settlement Commissioner has set aside in review the impugned order against which the present petition was directed. It has, therefore, become infructuous. Petition is dismissed accordingly". This order does not give any approval to the order of Pir Ahsanuddin dated 19th November, 1960, but as that order was no longer in the field in view of the second order of the Settlement Commissioner, it was considered that the writ petition in which the annulment of the said order was sought had become infructuous. It was for that reason that the petition was dismissed.
13. In the L P A which was filed by the present appellants in the High Court, the learned Judges of the Division Bench were conscious of the effect of the said order and this is why they had no hesitation in observing that the respondents were entitled to the relief claimed but for the (second) order of the Chief Settlement Commissioner the respondents would have been given the necessary relief by the Court. This shows that the said order of Pir Ahsanuddin, Chief Settlement Commissioner, dated 19-11-1960, was in the opinion of the Division Bench of the High Court held to be illegal and void hence ineffective, and they upheld the subsequent older passed by Mr. M. H. Soofi, which was necessary to see the record right and because, the aforesaid order of Pir Ahsanuddin had created somewhat uncertainty. .In Writ Petition No. 447-R of 1961, which was almost for the same purpose, when it was brought to the notice of the High Court that the Chief Settlement Commissioner had reviewed the impugned order of Pir Ahsanuddin, against which that petition was directed, the High Court considering that the Writ-Petition required no- further consideration and that it had become infructuous, was left with no option but to dismiss that petition. As such, the dismissal of that writ-petition, under the circumstances, did not give any finality to the order dated 19-11-1960 passed by Pir Ahsanuddin and instead the order passed by Mr. M. H. Soofi was impliedly approved.
14. From the perusal of the record, it can be gathered without any difficulty that in Writ Petition No. 1109-R of 1963 no such objection was taken by the present appellants that the suo motu action of Mr. M. H. Soofi was barred by limitation and that he could not review the order of his predecessor after nine months, even in suo motu, under subsection (1) of section 20 o the Displaced Persons (Land Settlement) Act, 1958. This was most probably the reason that the Single Judge while deciding that writ petition on 30-10-1968 did not take any notice of this matter, and, as indicated above, the whole case of the present, appellants then, was based on the correction slip No. 351 dated the 20th February, 1960. Even in Letters Patent Appeal No. 317 o 1968 no such objection was taken in the memorandum of appeal by the present appellants except that they submitted that Mr. M. H. Soofi was not competent to review the order of another Rehabilitation Commissioner. When this point was taken up at the time of arguments, the High Court unhesitatingly observe that the order passed by Pir Ahsanuddin on the 19th of November, 1960, having been brought under challenge by the respondents, its legality had to be examined by the Court and if the Chief Settlement Commissioner had not offered to suo motu review the same, the High Court being conscious of the real question which arose for determination, as to whether the allotment made on the 2nd of January, 1960, in favour of the respondents was open to any exceptions as the provisions of the Settlement Scheme then stood, it observed that on the date the allotment was made in favour of the respondents, it was in accordance with law and the relevant Scheme, as the respondents were holders of urban agricultural claim anal the land in dispute was urban agricultural land as held by the Settlement authorities. They further held that there was no justification for Mr. Ahsanuddn to interfere with that allotment and confirmation in favour of the respondents. At that stage. It was conceded before the High Court from the side of the appellants that the allotment of the land in question in favour of the respondents had been made prior to the promulgation of the second proviso, and it was the main ground which the appellants had then been pressing before the High Court.
15. The High Court expressly referred to the jurisdictional defect in the order of Pir Ahsanuddin as distinct from a mere erroneous decision on a question of fact and law. The impugned order of Pir Ahsanuddin was wholly without jurisdiction. It was performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. The act being non-existent in the eye of law amounted to a nullity. The main concern of the High Court while deciding L. P. A. No. 317 of 1968 was to examine- the legality of that order and it was answered without any reservation.
16. For the reasons given above, we are unable to disagree with the opinion of the High Court, and, therefore, this appeal is dismissed, but we make no order as to costs.