CH. MUHAMMAD IQBAL, J:- Through this single judgment, I would intend to decide titled writ petition as well as Writ Petitions No.38-R and 80-R of 2016 as all the writ petitions have been arisen out of same impugned order .
Writ Petitions No.37-R and 38-R of 2016
2. Through Writ Petitions No.37-R and 38-R of 2016, the petitioner (Province of Punjab) has challenged the validity of order dated 16.11.2015 passed by the Notified Officer / Member (Judicial-III), Board of Revenue who after setting aside the order dated 01.03.2003 passed by the Secretary (S&R) restored the order dated 30.11.1976 passed by the Settlement Commissioner (Lands), Multan Division and order dated 12.03.1988 passed by the Additional Deputy Commissioner , (G) Lahore, Cantt., Lahore.
3. Brief facts of the case are that land measuring 521-Kanals 19 Marlas in Khata No.130, Village Charar , Tehsil & District Lahore was allegedly allotted to one Shujaat Ali S/o Himayat Ali. Against the said allotment, Umrao Bakht, Ashraf Ali and Anwar Hussain Ali filed Mukhbari Applications, which were allowed and allotment in favour of Shujaat Ali was cancelled by the then Notified Officer, Multan vide order dated 30.11.1976 and said land was allotted to the Mukhbars and accordingly Robkar No.21381 was issued to the ADC (G) Lahore Cantt., for implementation. Ashraf Hussain etc. (Mukhbars) filed application on 11.02.1991 for implementation of order dated 30.11.1976 as well as decree of Civil Court dated 01.07.1990 and Robkar dated 21.03.1988. The then Chief Settlement Commissioner , Punjab on the said application constituted a committee vide order dated 24.04.1991 to look into the instant case as well as other similar pending matters. The committee summoned Mr. Mumtaz Jaoiya, former ADC (G), Cantt., Lahore and recorded his statement in connection with Robkar dated 21.03.1988 purportedly issued by him, who categorically denied the genuineness of the Robkar as well as his signature and stated that no Robkar was issued by him. The then Chief Settlement Commissioner in the light of the available evidence declared the Robkar dated 21.03.1988 to be bogus, fabricated and non-existent document and finally vide memo dated 01.03.2003 cancelled the said allotment of Umrao Bakhat, Ashraf Hussain, Anwar Hussain, Balquees Begum and Majida Begum as the same was secured on the basis of forged and fabricated order dated 30.11.1976. Against the above order, Writ Petition Nos.36-R, 56-R and 64-R of 2003 were filed, which petitions were accepted by the learned Single Judge in Chambers vide order dated 19.12.2012 by setting aside the impugned order dated 01.03.2003 and the case was remanded to the Chief Settlement Commissioner to hear the parties and decide the matter afresh. Similarly another Writ Petition No.32500/2013 was also allowed by this Court on 16.12.2013 in view of the earlier order dated 19.12.2012 passed in Writ Petition No.56-R/2003, and remanded the matter to the Notified Officer, Lahore for decision on merits. In the post remand proceedings, the Notified Officer vide order dated 16.11.2015 restored the order dated 30.11.1976 passed by Settlement Commissioner (Lands), Multan Division, Multan as well as order / Robkar dated 12.03.1988 passed by Additional Deputy Commissioner (General) Cantt., Lahore. Hence, these writ petitions.
Writ Petition No.80-R of 2016
4. Through Writ Petition No.80-R of 2016, the petitioner challenged the order dated 16.11.2015 passed by the Notified Officer, Lahore and also request ed that direction may be issued to respondents No.1 to 3 to transfer the property in possession of the petitioners as per law .
5. Brief facts of this petition are that the petitioners are occupants of constructed house bearing Khasra Nos.1 196, 1197, 1198, 1199, 1200, 1201, 1202, 1215, 1217, 1135, 1136, 1137/90-1 1, 1161/94-01 and are entitled for allotment of the same as per judgment of Hon?ble Supreme Court of Pakistan in the case of Muhammad Ramzan and others Vs. Member (Rev.) /CSS and others (1997 SCMR 1635 ) whereas the notified officer without taking into account the actual physical status passed the order dated 16.11.2015 and allotted the above said Khasra to the respondent which allotment is not sustainable in the eyes of law .
6. M/s. Hafiz Muhammad Yousaf and Muhammad Shahzad Shaukat, Advocates appearing on behalf of the petitioners submit that the order dated 30.11.1976 passed by the then Settlement Commissioner (Lands), Multan Division is without jurisdiction and without lawful authority; that the said Notified Officer, Multan was not competent to allot the land situated in Lahore Cantt., which land is beyond his territorial jurisdiction; further submits that Robkar dated 12.03.1988 issued by the Additional Deputy Commissioner (General), Cantt., Lahore for allotment of an alternate land is also illegal as there is no provision available in the evacuee laws for allotment of alternate land; that all the available evacuee urban land, including the land which has not yet been confirmed to any person against units or claim or which may be available in future in all the Revenue Estates situated within the Urban Limits of a Municipal Corporation, Municipal Committee, a Notified Area Committee, Town Area Committee, Small Town Committee, a Sanitary Committee, or Cantonment throughout the Province of the Punjab are declared as building sites vide notification dated 16.05.1973 and thereafter such land cannot be allotted by any Notified Officer; that the original allottee had not challenged the cancellation of their allotment before any forum till to date; submitted that the Province of Punjab through Chief Settlement Commissioner / Member (Residual Properties), Board of Revenue is custodian of the evacuee properties and is legally competent to assail the illegal order of the allotment and to file instant writ petition; further submits that doctrine of past and closed transaction only gives protection to those rights which were created under the law and if any right is constituted against the law then principle of past and closed transaction would not be applicable rather such void and illegal orders can be ignored in its entirety; submitted that the impugned order passed by the Notified Officer is against the law and facts of the case as well as against the parameters of the Scheme 1977. In support of his arguments Mr. Shehzad Shaukat, Advocate has relied upon Muhammad Ramzan and others Vs. Member (Rev.) / CSS and others (1997 SCMR 1635 ), Member Board of Revenue/Chief Settlement Commissioner , Punjab Lahore Vs. Abdul Majeed and another (PLD 2015 SC 166), Ali Muhammad through Legal Heirs and others Vs. Chief Settlement Commissioner and others (2001 SCMR 1822 ), Mst. Kabiri Bibi and others Vs. Secretary (S&R) Board of Revenue and others (2012 YLR 392), Jamil Ahmad Sheikh Vs. Ch. Zafar Iqbal and another (2010 YLR 1257 ), Pakistan Post Office Vs. Settlement Commissioner and others 1987 SCMR 1119), Province of Punjab through Secretary , Irrigation and Power Department Lahore Vs. Deputy Settlement Commissioner , Lahore and others (1991 SCMR 1592 ) and Member Board of Revenue, Punjab Lahore Vs. Rafaqat Ali (1998 SCMR 2596 ).
7. Learned counsels appearing on behalf of the respondents submits that Provinc e of Punjab is not competent to file instant writ petition; that against the order dated 30.11.1976, a Writ Petition No.861-R/1979 was filed by Mst.
Hamida Begum etc. which was dismissed vide order dated 29.09.1986 and said order was never assailed before any forum, as such, order dated 30.11.1976 has attained finality and the principle of doctrine of past and closed transaction is applicable upon the case of the petitioners; further submitted that the petitioners of Writ Petition No.80-R/2016 are illegal occupants, as such, they are not entitled for any relief.
8. I heard the arguments of learned counsels for the parties and gone through the record with their able assistance.
9. Admittedly , the evacuee laws were repealed with effect from 01.07.1974 after promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and in exercise of the powers conferred under subsection 2 of Section 2 of the Act ibid. Governor of the Punjab in supersession of all previous notifications in this behalf notified the officers for the disposal of all pending proceedings under the laws of Repealed Act ibid. before the authorities within their territorial jurisdiction through Notification No.296(Misc.)-Admn-Sett/74- dated 14 November , 1974 which is reproduced as under:- GOVERNMENT OF THE PUNJAB BOARD OF REVENUE Dated the 14 November, 1974 NOTIFICA TION No.296(Misc.)-Admn-Sett/74-. In pursuance of the provisions contained in sub-section (2) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, the Governor of the Punjab is pleased to notify the officers mentioned in Column No.1 of the Schedule annexed hereto, for the disposal of all proceeding under Laws repealed by the said Ordinance, pending before the authorities mentioned in Column No.2 of the said Schedule within the territorial jurisdiction mentioned in Column No.3 thereof SCHEDULE Sr. No. Officers notified Authority before whom proceedings were pendingTerritorial jurisdiction
(1) (2) (3)
1. Commissioners of the DivisionsChief Settlement Commissioner, SettlementRespective Divisions. Commissioner , Claims Commissioner and Rehabilitation Commissioner
2. Mr. M.A. W asti, Addl.
SettlementSettlement Commissioner , Settlement CommissionerProvince of the Punjab Commissioner/Secretary (industries).
(Administration) to theClaims Commissioner and Member Board of Rehabilitation Respective Divisionsth th Revenue(Settlement &Commissioner on Urban(Under the control of the Reh: W ing) side Commissioners).
3. Additional 2.Settlement Commissioners.Commissioner , Settlement Commissioner , with the delegated powers for Ss. 10 & 1 1 of the D.P .
(Land Settlement) Act, 1958.
4. Deputy Addl. Settlement Respective Districts.
Commissioners, Settlement Officers &Commissioner , Addl. Settlement Colonization Officers. Commissioner , with the delegated powers for Ss.10 & 11 of the D.P.
(Land Settlement) Act, 1958. Addl. Claims Commissioner and Addl. Rehabilitation Commissioner .
5. Addl: Deputy Commr .,Addl. Settlement Respective Districts Extra Asstt: Commissioner ,(Under the control of Dy.
Settlement Officers & Addl. Settlement Commissioners.)
Extra Assistant:Commissioner, with the Colonization Officers.delegated powers for Ss.10 & 11 of the D.P.
(Land Settlement) Act, 1958. Addl. Claims Commissioner and Addl. Rehabilitation Commissioner
6. Deputy Secretary (Rural) Board ofSettlement Commissioner , Settlement CommissionerProvince of the Punjab Revenue, Settlement &with the delegated powers Reh. W ing. for Ss.10 & 11 of the D.P.(Land Settlement) Act, 1958, Claims Commissioner and Rehabilitation Commissioner on the land side/Officer on Special Duty . Central Record Office.
7. Assistant Deputy Settlement Respective Sub- Commissioners Commissioner , Deputy ClaimsDivisions.
(Under the control of the CommissionerDeputy Commissioner). Dy: Reh: Commissioner in the sub-Division on the Land Side only .
BY ORDER OF THE GOVERNOR OF THE PUNJAB SD/- (M. Aslam Avais)
Member Board of the Revenue and Secretary to the Government of the Punjab, (Excise and T axation/Settlement & Rehabilitation W ing); No.296(Misc,)-Admn-Sett/74 dated 14 Nov'1974
10. The evacuee land measuring 521-Kanals 19-Marlas of village Charar Tehsil and District Lahore was allegedly allotted to Shujaat Ali S/o Hamid Ali. Upon the Mukhbari applications of Umrao Bakht, Ashraf Ali and Anwar Hussain Ali / respondents, the allotment of said Shujaat Ali was cancelled and said resumed land was allotted to the respondents vide order dated 30.11.1976 by the Settlement Commissioner (Lands), Multan Division. Whereas as per notification reproduced above, only the Commissioner , Lahore Division was competent to adjudicate upon the matter and the Settlement Commissioner Multan was not competent to pass order of allotment in favour of Mukhbars, as such, alleged order dated 30.11.1976 was passed without jurisdiction, which is illegal, coram non- judice and has been passed without lawful authority . From the perusal of aforementioned notification dated 14.11.1974 only, the Notified Officer mentioned in column No.1 of the said Schedule was competent to adjudicate the matter falling within the territorial jurisdiction mentioned in column No.3. In this case, the Notified Officer Multan illegally invoked jurisdiction of the Chief Settlement Commissioner , Punjab Lahore and without lawful authority passed the order of allotment of evacuee land falling beyond his territorial jurisdiction, whereas the respondents failed to produce any order passed by competent authority in respect of transfer of the case for adjudication from Lahore to Multan. Furthermore, as per notification reproduced above, the Notified Officer of Multan Division has no power to allot the land situated within the territorial jurisdiction of Notified Officer, Lahore. Moreover in the presence of notification dated 16.05.1973 as well as after the repeal of evacuee laws on 01.07.1974, the Notified Officer Multan was not competent to allot land situated within the Municipal Limits of Lahore Cantt., which has already declared as building site and said land can only be disposed of by the competent authority under Scheme 1977 framed under Section 3 of the Displaced Persons (Land Settlement ) Act, 1975.th Admittedly, vide notification dated 16.05.1973, all the available urban agricultural land in district Lahore was declared as building site which land could not be allotted against any pending evacuee claim, since the issuance of the above notification whereas after the Repealing Act 1975 there exists no agricultural urban land in Lahore for any allotment or adjustment against unsatisfied claims of produce index units and the claimants holding any unsatisfied entitlement pending PIUs may seek any other remedy if available under the law, whereas they stood disentitled to obtain allotment of urban land in satisfaction of pending units or get alternate allotment of land as held by the Hon?ble Supreme Court of Pakistan in case reported as Muhammad Ramzan and others Vs. Member (Rev.) /CSS and others (1997 SCMR 1635):- "we are inclined to hold that on the promulgation of the "Notification", dated 16 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 jurisd iction to allot, or transfer the land or grant alternate lands against unadjusted verified units.
Further , in Notification dated 16.05.1973, the competent authority declared the evacuee properties as "building sites" and it cannot be allotted against rural claims rather it can only be disposed of under the Scheme for Management and Disposal of Available Urban Land, 1977, whereas informers (Mukhbars) right does not stand anywhere in the said Scheme, as such, the impugned order of allotment dated 24.04.1991 passed by the former Chief Settlement Commissioner is also against the parameters laid down in the Scheme. Furthermore, the Notified Officer, Lahore while passing the impugned order dated 16.11.2015 has also not considered propriety or impropriety of order of the Settlement Commissioner (Land) Multan Division dated 30.11.1976 which order was rendered blatantly without lawful jurisdiction as well as against notification dated 14.11.1974. Moreover, the then Chief Settlement Commissioner vide order dated 24.04.1991 constituted a probe committee to investigate the genuineness of the allotments and said committee summoned Mr. Mumtaz Joiya, ADC(G) Cantt. who allegedly made alternate allotment, adjustment and issued Robkar dated 21.03.1988. He appeared, got recorded his statement before the committee and categorically denied the issuance of above Robkar as well as denied his signature on the impugned Robkar whereas no document has been produced in rebuttal of the above statement, as such, alleged Robkar purportedly issued by ADC(G) Cantt., Lahore lost its sanctity as the same was a bogus document. Further for the sake of arguments, had the said document of Robkar been issued by the ADCG even then the same would have no validity as the said officer did not hold any authority to allot alternate land as he does not stand anywhere in the Scheme 1977. Admittedly the land of Harbanspura definitely falls within the ambit of the Notification dated 16.05.1973 whereby the Chief Settlement Commissioner has already declared it as building site which notification was upheld by the Hon'ble Supreme Court of Pakistan in its dictum laid down in Ramzan as well as Ali Muhammad's cases. Moreover, admittedly, the respondents are not in the possession of the suit land and bare perusal of Robkar shows that respondents allegedly surrendered their land in Mauza Charar and in lieu thereof alternate land was allotted to them by the Addl. Deputy Commissioner (G) Land who was vested with no authority to visualize mechanism at his own whims and caprice and passed such an arbitrary and fanciful order. Furthermore, from scanning of impugned Robkar, it is clearly mentioned therein that the proposed land has already been transferred / allotted to some other persons, as such, the allotment of an alternate land measuring 202-Kanals 01 Marla falling Khasra No.1161/94-1, 1137/90-11, 1141/10-14, 1142/6 15 to the legal heirs of Shahzadi Umrao etc. as well as issuance of Robkar was made in contravention of law as no provision is available in the Repealed Act for making the alternate allotment, rather it was mandatory for the field staff to seek fresh order/instruction from the competent authority before allotment of alternate land or proposal for the allotment which is not available on the record as such the orders of alternate allotment made by the ADC (G) is coram non judice and void ab initio. Even Chief Settlement Commissioner has no authority to make allotment of alternate land as discussed in the cases reported as Muhammad Ramzan and others Vs. Member (Rev.) /CSS and others (1997 SCMR 1635 ) and Ali Muhammad through Legal Heirs and others Vs. Chief Settlementth Commissioner and others (2001 SCMR 1822 ), Member Board of Revenue/Chief Settlement Commissioner , Punjab, Lahore Vs. Abdul Majeed & Another (PLD 2015 SC 166 ).
Learned counsel for the petitioner argues that against the order of allotment dated 30.11.1976 a Writ Petition No.861-R/1979 was filed which was dismissed in limine on 29.09.1986 by this Court, as such, order dated 30.11.1976 passed by Notified Officer attained finality and also attained the status of past and closed transaction, suffice it to say that admittedly the original order of allotment was passed by the Notified Officer designated for Multan Region who was vested with no jurisdiction to decide the matter relating the territorial jurisdiction of Notified Officer Lahore and no order of any compe tent authority has been placed on record to show the transfer of claim as well as the said Mukhbari applications from Lahore to Multan for adjudication whereas subject evacuee land undeniable fall under the jurisdiction of the Notified Officer of Lahore and mere consent or convenience of the litigating parties does not confer any jurisdiction to adjudicate a matter outside its jurisdiction rather it is only the dictates of codified law to bestow or rescind the jurisdiction of a forum. Moreover , connivances of the parties or the colourable pursuit of the adjudicator does not enlarge his territorial jurisdiction at his whims and caprice and any such order passed by an interested authority is coram non-judice, void, tainted with grotesque motive which does not have any legal protection and will not be considered as past and closed transaction. The Hon?ble Supreme Court of Pakistan has elaborately discussed and answered the matter of past and closed transaction it is recent judgment reported as Shahid Pervaiz Vs. Ejaz Ahmad & Others (2017 SCMR 206) declaring that "the principle of past and closed transaction would apply in case where rights were created under the valid law, even if such law was allowed to lapse or was removed from the statute book, however, an instrument that was still born or treated by the court as non est was barred from creating any vested rights, let alone being protected under the doctrine of past and closed transaction. The Courts were duty bound to protect the rights and interests created under a law and also to deny the enjoyment of rights purported / created under an invalid law. Where a party claiming the protection of rights, that were created under a law, failed to pass the test of constitutionality, as determined by the court, it could not take the plea of past and closed transaction. Moreover, it is reiterated that order passed in Writ Petition No.861-R/1979 attained the status of past and closed matter, suffice it to say that from perusal of said order, it reveals that the notification of building site dated 16.05.1973 was neither in question nor debated by the parties nor its effect was considered by this Court, as such, said order dated 30.11.1976 is required to be ignored as settled in Ramzan Case (supra) wherein it is held as under:- "Now we will proceed to deal with other aspect regarding consequence of order passed by authority having no jurisdiction in the matter . Question relating to legality and impact of void order and for disregarding the same when nullity , has been considered by this Court on numerous occasions. Pivotal question which needs attention is whether impugned orders concerning allotment of land passed by Notified Officer are mala fide or suffer from total lack of jurisdiction or have been passed in disregard to existing law and tends to frustrate provisions of evacuee laws and schemes framed thereunder , therefore, be deemed as nullity . In case of Muhammad Swaleh. (PLD 1964 SC 97) this Court ruled, that if circumstances disclose that order pre-eminently provides right to either party is nullity the same should be ignored. In the case of Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104) the Court did not attach finality to the orders which were passed by an authority in excess of its jurisdiction or suffered from want of jurisdiction and were found to be devoid of lawful authority and nullity . It was observed in these matters that edifice constructed on the basis of void order crumbles alongwith same, and did not require to be set aside through appeals or any other proceedings. In the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124)it has been observed that "elementary principles of law require mandatory condition regarding exercise of jurisdiction by a Court, Tribunal or Authority must be fulfilled, otherwise all proceedings drawn by such forum would suffers from total want of jurisdiction otherwise action taken and decision render ed by said forum shall have no legal effect. Similar view was taken m case of Major Syed Walayat Shah v. Muzaf far Khan and 2 others (PLD 1971 SC 184) wherein it was held that orders passed by tribunal having no jurisdiction are not sustainable and all successive proceedings based upon the same are equally illegal and devoid of lawful authority . In Chittaranjan Cotton Mills Ltd.. v. Staff Union (PLD 1971 SC 197) it was observed that "where the Court is not properly constituted; all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law.
There can also be no doubt that in such circumstances it could never be too late to admit and give affect to the plea that the order was a nullity" and thus impugned order was set aside. The above discussed proposition was elaborately discussed in case of Khuda Bakhsh v. Khushi Muhammad and 3 other PLD 1976 SC 208) wherein action and orders were found to be coram non judice and nullity in the eye of law. After surveying case-law this Court in a recent judgment reported in PLD 1997 SC 351 (Province of Punjab through Secretary . Health Department v. Dr. S. Muhammad Zafar Bukhari) also dealt with the effect of orders which are void and coram non judice and propounded that same may not be carried out".
Even in another case reported as Ali Muhammad through Legal Heirs and others Vs. Chief Settlement Commissioner and others (2001 SCMR 1822 ), the Hon?ble Supreme Court of Pakistan has declared that if any concessional statement made by the state counsel during pendency of the petition either filed by the predecessor of the appellants or by the respondents would have no binding effect because such statement was not made in accordance with law. Similarly any obser vations made by learned High Court on such assurance if is found to be contrary to law the same will be deemed to be coram non judice having no legal effect. Relevant portion from supra dictum is reproduced as under:- "Thirdly in view of the concession made by learned State Counsel during pendency of the petitions either filed by the predecessor of the appellants or by the respondents would have no binding effect because such statement was not in accordance with law. Similarly any observations made by learned High Court on such assurance if is found to be contrary to law will be deemed to be coram non judice as such shall have no legal ef fect."
Furthermore, the most emphasized assertion of the respondents is that their unsatisfied claim was pending and being successful Mukhbars, they were / are entitled for the allotment of the land qua their pending claim as it were they who traced out the illegal allotment, pursued the departmental proceedings get declared the said allotment as fraudulent and same was resumed in favour of the state and a legally recognized right stood accrued in their favour, suffice it to say that fraudulent allotment of Shujaat Ali was cancelled on 30.11.1976 much after the issuance of notification of the building site dated 16.05.1973 whereas the very statute on the subject was also stood repealed on 01.07.1974 introducing significant changes in the entire process excluding the fresh allotment as well as allotment against Mukhbari claims leaving little possible scopes for any further allotment for satisfaction of any claim rather only active proceedings pending before Chief Settlement Commissioner, or the case remanded from the Hon'ble Supreme Court as well as by this Court can only be disposed of by the designated authority . For reference Section 2 (2) of the Act, 1975 is reproduced as under:- "2. Repeal of certain laws.---(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."
Whereas this arguments of learned counsel for the respondents that Mukhbari proceedings were initiated much before the repeal of evacuee law, as such , the Notified Officer was well within jurisd iction to make allotment, suffice it to say that the pending proceedings means only those proceedings which were actively pending immediately on or before 01.07.1974 or the cases remanded by the Hon'ble Supreme Court or High Court. The case of the respondents is not covered within the purview of pending proceedings as no claim, petition or proceedings were actively pending before any competent forum which brings the claim of the Mukhbar within the ambit of pending proceedings. The Hon'ble Supreme of Pakistan on the same proposition has laid down in the case reported as Chief Settlement Commissioner / Member , Board of Revenue (S&R Wing), Punjab, Lahore Vs. Akhtar Munir & 6 Others (PLD 2003 SC 603 ) as under:- "The facts leading to the filing of Writ Petition No.52-R of 1984 were that claim of the respondents were duly verified in District Rawalpindi but instead of getting the same settled in District Rawalpindi the respondents sought their transfer to Lahore on the ground that they had shifted to Lahore. The verified claims were allegedly misplaced either in the office of the Deputy Commissioner, Rawalpindi or Lahore in transit. The respondents have not cared to contest the appeal and it appears from the record that they had for the first time moved an application on 26-2- 1976 with regard to the whereabouts of their claims as a result of which a duplicate entitlement certificate was issued on 22-11-1976. The case thus cannot be said to be actively pending consideration before the authorities concerned for final disposal within the contemplation of the principle enunciated in Zafar Ali Khan v. Chief Settlement Commissioner (1999 SCMR 1719). The conceding statement of the learned counsel for the department can have no bearing on the case in view of the observations made in Muhammad Ramzan v. Member (Revenue)/CSS (1997 SCMR 1635) that disposal of constitutional petition by the High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice and as such has no binding effect. The judgment dated 4-12-1991 vis- -vis this petition thus suffers from a jurisdictional defect and there is force in the contention that it is void ab initio being coram non judice."
Further , the Hon?ble Supreme Court of Pakistan has defined pending proce edings in a case reported as Government of Punjab, Colonies Department, Lahore & Others Vs. Muhammad Yaqoob (PLD 2002 SC 5), as under:- "The term "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases. Mere possession of any evacuee land as claimed by the respondent in Chak No.223/RB in the writ petition would not make his case, a case of pending proceedings within the contemplation of provisions of sections 2 and 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, the direction issued by the learned Judge of the High Court for allotment of the said land under the settlement laws to the respondent was violative of law which could not have been given, for under Article 199 of the Constitution, the High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law requires him to do whereas the direction issued in this case was to the contrary i.e., what law did not require him to do, he was ordered to do."
Furthermore, the Hon'ble Supreme Court of Pakistan in another case reported as Nawabzada Zafar Ali Khan and Others Vs. Chief Settlement Commissioner/Member , Board of Revenue, Punjab, Lahore and Others (1999 SCMR 1719 ) decided that the matters which were either actively pending consideration before the Authorities for final disposal or has been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers" and held as under:- "30. Bare perusal of above provisions would disclose that only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officer". The Settlement or Rehabilitation Authoritie s by express positive assertion have no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning agricultural property left over by Nawab Faiz Ali Khan in Patiala State was neither remanded by this Court in the above judgment, dated 19 July, 1962, nor any such directions were made by the High Court while dismissing the Petition No.121-R of 1989 on 11-2-1990, whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation filed by the petitioners with regard to matter which otherwise legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of The Repealing Act'. Therefore, proceedings drawn by Settlement Commissioner which culminated in passing of order , dated 26-2-1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground."
Reliance is also placed on the case reported as Ali Muhammad through LRs & Others Vs. Chief Settlement Commissioner & Others (2001 SCMR 1822 ), wherein it has been held as under:-th "41. In view of the aforesaid discussion we are persuaded to hold that the cases of the private parties are not covered by the expression "pending proceedings" in terms of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, they have no legitimate cause for transfer of the agricultural land situated around Faisalabad. Moreover, no land was available for transfer being evacuee agricultural land in view of the Notifications, dated 3rd January, 1958 and 16th May, 1973 issued by the Chief Settlement Commissioner respectively. The Chief Settlement Commissioner/Notified Authority had no jurisdiction/lawful authority to make the allotments in favour of private parties treating their cases to be pending. Similarly respondent Muhammad Waris and other whose case was discussed at length was not entitled for transfer of the property in his favour because admittedly their claim was allegedly verified on 26th January, 1991 much after repeal of evacuee laws/regulations by Act of 1975. As far as intervenors are concerned they may approach the concerned department in view of the observations of the High Court in Civil Revision No.1062- D of 1987, decided on 18-6-1990 and Writ Petitions Nos.2-R of 1989 and others decided on 20th June, 1990 for redressal of their grievance.
As a result of above conclusion Civil Appeals Nos.170 to 176, 185 and 1561 to 1566 of 1999 are dismissed with costs. Whereas Civil Appeals Nos.177 to 184 of 1999 are allowed with costs, as a consequence whereof the impugned orders operating against the appellants passed by High Court and Chief Settlement Commissioner/Notified Authority are declared as of no legal ef fect."
Even otherwise, the Hon?ble Supreme Court of Pakistan in the latest judgment reported as Member Board of Revenue/Chief Settlement Commissioner , Punjab, Lahore Vs. Abdul Majeed & Another (PLD 2015 SC 166) has conclusively held that the Chief Settleme nt Commissioner / Notified Officer is not competent to make any fresh or alternate allotment of land to any person in lieu of any belated claim. Releva nt portion of said judgment is reproduced as under:- "15. The Repealing Act, 1975 does not vest the Notified Officer with any authority to make a fresh allotment of available (evacuee) land. This disability includes the power to allot alternate land. The said limitations on the powers of the Notified Officer are discussed in Saifullah v. Board of Revenue (1991 SCMR 1255). In Muhammad Ramzan v. Member (Rev.)/CS (1997 SCMR 1635), as follows:-- "(8) With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter , its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority . Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently , its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property . On this view of the matter the decree of the Civil Court could also not remain intact. "
Furthermore, the evacuee laws were repealed on 01.07.1974 and the Notified Officer was not competent to allot the land which has already been declared building site vide notification dated 16.05.1973. The Hon'ble Supreme Court of Pakistan in case reported as Muhammad Ramzan and others Vs. Member (Rev.) /CSS and others (1997 SCMR 1635) has observed that under Notification dated 16.05.1973, the competent authority declared the evacuee properties as "building sites" and it cannot be allotted against rural claims and it can only be disposed of under the Scheme for Management and Disposal of Available Urban Land, 1977. Further, after declaring all unsatisfied agricultural urban land in entire Punjab as building site, vide notification dated 16.05.1973 issued by the then Chief Settlement Commissioner which was declared valid in Muhammad Ramzan Case (supra) by the Hon'ble Supreme Court of Pakistan and the informants (Mukhbars) are not considered eligible for getting any allotment. It was further held in the aforesaid judgment as under:- "20. With this background we proceed to examine broad aspects directly affecting validity of allotment orders passed by the Notified Officer, which are subject-matter of scrutiny in these appeals. The Notification No.1697-73/1567-R(L) dated 16.05.1973 issued by the Chief Settlement and Rehabilitation Commissioner, Punjab has unambiguously declared "available evacuee urban land" including the one not yet confirmed to any person against units, as "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act,1958. Bare reading of this notification clearly displays that same was executory in nature and became operat ive immediately on its issuance.
This had the effect of converting unutilized agricultural urban land in entire Punjab to be "building site". Validity of said notification and competency of authority issuing it came for consideration before this Court in several matters.
In the case of Bashir Ahmed and others v. Punjab University Academic Staff Association and others (1991 SCMR 377) it was held that allotment to informants concerning land which had been declared as a "building site" could not be made after issuance of notification dated 16.05.1973. The relevant observations are reproduced below:- "The order dated 25.03.1974 passed in favour of the predecessor-in-interest of the petitioners was challenged through Writ Petition No.402-R of 1976 by the Punjab University Academic Staff Association and the University of the Punjab whereby the informants were allotted the land becoming available by the setting aside of the allotments to Badar-ul-Hassan and Qureshi Mahmud Ahmad on 10.4.1974 as the land had in the meanwhile been sold to the University Authorities on 29.3.1974 under section 10(2) of the Displaced Persons (Land Settlement)
Act, 1958. It was alleged that the Additional Settlement Commissioner (respondent No.2) was incompetent in law to make the allotment to the informants as the land in question had been declared as a building site by the Notification, dated 16 May, 1973. This writ petition was allowed by the impugned judgment of the High Court dated 6.4.1988. Hence this petition for leave.
Mr. Shahzad Jehangir has been heard on behalf of the petitioners, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16.5.1973 declaring the urban lands within the Municipal limits etc. as building sites? no allotment of such lands on the basis of the claimants units, whether urban or rural, could be made".
11. So far as the arguments of learned counsel for the respondents that the Province of Punjab is not competent to file writ petition against the order passed by the Notified Officer, suffice it to say that province as well as its designated officers are trustees of the public assets of the province and if feels aggrieved of any order passed by any public functionary in violation of law or disloyalty to his obligation or under the taint of colourable exercise of jurisdiction, or under grotesque intention of extending favouritism, nepotism or unavoidable political pressure / motivation, the Government of the Province as well as its legally designated officer is well within right to challenge the such fanciful order to get the illegality corrected or reversed as held in Ali Muhammad 's case, wherein the Hon'ble Supreme Court of Pakistan resolved this controversy in a case wherein the order of the Notified Officer of Multan Division was challenged in a writ petition by Member (Residual Properties) / Custodian of Estate Land on behalf of the Provincial Government and same was held as competent. Relevant portion of Ali Muhammad case is reproduced as under:- "In this behalf it is to be noted that on 21-12-1992 order was passed by Chief Settlement Commissioner Punjab in purported exercise of jurisdiction of Notified Officer under section 2(2) of Act of 1975 whereas the writ petition was filed by Member being custodian of the State Land on behalf of the Provincial Government because after 3 January, 1958 the evacuee agricultural land subject-matter of the proceedings was no more evacuee land as it has fallen within the exclusive ownership of Member Board of Revenue Punjab."
As such, the contention of the respondent regarding the non-maintainability of the writ petition are totally misconceived and same are hereby repelled as such the Province of Punjab through Chief Settlement Commissioner / Member (Residual Properties) is competent being highest provin cial administrator / custodian of the state evacuee lands in the province to challenge the illegal order of any Notified Of ficer(s):
12. So far as the petitioners of Writ Petition No.80-R/2016 is concerned who claims to be illegal occupants over property measuring 06-Kanals including Khasra No.1137 and 1161 and they are entitled to purchase the said property under Scheme 1977 made under Section 3 of the Repealing Act, 1975 suffice it to say in this regard that the legislature in Section 3 of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975 introduced that the Provincial Government in consultation with the Federal Government should make a Scheme for Disposal of Urban as well as Rural Properties and to secure the rights of the evacuee/migrants framed Scheme for Management and Disposal of Available Urban Properties situated in the Province of Punjab, 1977 wherein theth rd definition of building site has been defined in para 1(d) and the definition of posses sion is mentioned in para 1(i) of the Scheme, 1977 which are as under:-
1. In this scheme, unless the context otherwise requires:--
(d) "Building Site" means any vacant plot of land which is not within a well defined compound of a permanent building and includes:--
(i) A site on which the permanent construction, if any , does not exceed in area by 1/8th of the site;
(ii) any site on which any building existe d but was completely demolished by floods, fire, incendiary or by any natural calamity .
(i) "Possession" means possession obtained on or before the first day of January , 1976 by any perso n and includes his successors-in-interest and assignee; And under the above policy only those persons who were in possession of the evacuee properties on or before the Ist day of January 1976 are considered eligible under para 6 of Scheme, 1977 to apply for the purchase of evacuee land, house, shop, building sites but the petitioners have neither asserted in the petition to be in possession of the land before the fixed date nor appended any such document to prove that they fulfill the criteria as prescribed under the said Scheme of 1977 rather they themselves admitted that they are the illegal occupants/encroachers and it can conveniently be observed that they have approached the constitutional jurisdiction of this Court with badly soiled hands. This Court is well within jurisdiction to decline the grant of discretionary relief and if so granted that would be tantamount to awarding protection to the possession of the usurper of the state property as the illegal encroachers who have no protection of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is settled principle of law that he who seeks equity must do equity , whereas an illegal occupant is not entitled to have any discretionary relief. The law leans towards those persons who believe in the rule of law and not those who took the law in their hands, whereas, the encroachers/illegal occupants have no right as held by the Hon?ble Supreme Court of Pakistan in Civil Petition No.882-L of 2015 vide order dated 15.03.2017 as under:- "2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possessi on of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore.
Resultantly , this petition is dismissed."
As the petitioners have not come to this Court with clean hands and being illegal occupants they are not eligible to get shelter of the scheme made for the effectees / exodus whereas unauthorized occupants being not aggrieved persons are precluded to seek any relief through extraordinary constitutional jurisdiction as they come to the Court with soil hands.
Furthermore, a decent and elaborate modus operandi has been laid down for the disposal of such evacuee lands in a recent judgment reported as American International School System Vs. Mian Muhammad Ramzan & Others (2015 SCMR 1449 ) by the Hon'ble Supreme Court of Pakistan wherein it is held that under Paragraphs 1 (d), 11, 12 and 30 of the Scheme for Manageme nt and Disposal of Available Urban Properties, 1977, the evacuee urban properties shall be disposed of through unrestricted public auction and a similar view has been enumerated in C.P.
No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner , Punjab & 2 Others Vs. Sagheer Muhammad Khan & Othe rs wherein the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 settled that after the Repeal Act, the property shall be disposed of through open auction, the relevant portion thereof is reproduced as under:- "7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms."
13. As discussed above, the orders passed by the Notified Officer as well as the ADC Cantt. Lahore have no consonance with the law and policy on the subject as well as the dicta laid down by the Apex Court, as such, the same are liable to be set aside. Resultantly , Writ Petitions No.37-R and 38-R of 2016 are allowed and impugned orders are hereby set aside being coram non-judice as well as illegal to the extent of allotment of land to the Mukhbars and alternate allotment or adjustment made by ADC(G) whereas Writ Petition No.80-R/2016 is partially dismissed to the extent of allotment of evacuee land to the petitioners.