ASIM HAFEEZ, J.:- This judgment shall also decide inter-connected Intra Court Appeals (ICAs) No.621 of 2014 & 684 of 2014 (appeals). All these appeals arise out Judgment dated 12.05.2014, by the learned Single Judge in chambers in Writ Petitions No. 14-R/2012 and 82-R/2012, whereby order dated 30.12.201 1 by respondent No.1 was set-aside. ICA No.684 of 2014 was filed by one Mr. Shaukat Ali against the order of dismissal of application under Order 1 Rule 10 Code of Civil Procedure 1908, on 12.05.2012.
2. We can trace the history of the case from the opening paragraphs of order dated 30.01.2010, which facts are by and large not disputed. The Member (Judicial-1) Settlement Commissioner decide d the case titled as "Muhammad Akram. etc vs Muhammad Afzal / AC/DSC(L) vide order dated 13.12.2003, wherein excess allotment was cancelled from the name of Chand Bibi and land was ordered to be resumed in favour of the provincial government. For reference, the order dated 13.12.2003 is reproduced hereunder; "In view of the position discussed above, the excess allotment in village Qila Sahib Singh has since been cancelled from the name of Chand Bibi in the connected case titled "Mst. Naziran Bibi, etc. vs. Muhammad Fazal, etc." decided today . The allotment of land measuring 37 kanals 10 marlas bearing Nos. 363, 404, and 405 made by AC/DSC(Land), Hafizabad in the name of Mst. Chand Bibi is obviously without any entitlement and has no legal value in the eye of law. The same is also hereby ordered to be cancelled. The District Officer (Revenue), Hafizabad is directed to implement this order and resume the said land allotted to Mst. Chand Bibi in Village Khaurlanwala in favour of the State. So far as the petitioners are concerned, they are directed to submit fresh application for this purpose on the basis of their continuous possession in terms of Section 3 of the Repeal Act 1975, after the land is resumed by the District Officer (Revenue )/DSC (L), Hafizabad in favour of the State. A copy of this order be also sent to Secretary (S&R)/SC(L) for information and necessary action".
3. Order dated 13.12.2003 was impugned through Writ Petition No.61-R/2004 before the Lahore High Court Lahore, by the subsequent vendees, claimed to have purchased land from the legal heirs of Chand Bibi, and the persons aggrieved of order of cancellation of excess evacuee land. The petition was disposed of in terms of order dated 11.11.2008, which is reproduced hereunder; All the Writ Petitions are accordingly disposed of with the observations that the findings recorded by the learned respondent NO.1 in the impugned order that Chand Bibi was entitled only to 45 units and consequently to the allotment of proportionate land is up-held. The learned respondent No.1 or his successor-in-office shall calculate and adjust the resumed land to be allotted against the said 45 units and adjust the same against the sales made by the LR of Mst. Chand Bibi. The petitioners shall also be entitled to file applications to be considered alongwith the applications of respondents No.2 to 6 in terms of section 4 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975. No orders as to costs".
4. In compliance of the order dated 11.11.2008, the respondent No.1, in case bearing No. CSC Case No.118/2009 passed order dated 30.01.2010, relevant portion whereof is reproduced hereunder;
4. I have heard the learned counsel for the parties and perused the relevant record . In compliance with the order of the Hon'ble High Court dated 11.11.2008 passed in Writ Petition No.61-R/2004 the allottee was entitled to only 45 PIUs seniority wise in favour of the petiti oners. Ghulam Rasool, the petitioner being first purchaser of the allottee was entitled to the tune of 45 PIUs. As reported by District Officer (Rev.). As reported by District Officer (Rev.), Hafizabad land measuring 11 kanals & 09 marlas Khasra No.903/365 (6-K & 14-M), 478 (1-K 17-M), 670/293 (12- M) & 718/85 (2-K 6-M) against 44 PIUs was to be restored in favour of the present petitioners, therefore, it is ordered accordingly . The remaining land excluding land measuring 11 Kanals & 09 Marlas out of total land measuring 103 Kanals & 17 Marlas is resumed in favour of state. District Officer (Rev.), Hafizabad is directed to implement the said order and resume the land in favour of Provincial Government (Sabiq Matrooka)
5. As regards the application of the petitio ners for purchase of the land under Section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975 in the light of orders of the Hon'ble Court out of 30 kanals & 05 Marlas the petitioners submitted an affidavit for purchase of the remaining land measuring 15 Kanals, 03 Marlas & 02 Sarsai which became excess from their entitlement. The petitioners are bona-fide purchasers from the allottee and have been in possession of the same since the purchase. Therefo re, they are allowed to purchase the land measuring 15 Kanals, 03 Marlas & 02 Sarsai at the market price plus 10% surcharge. They shall deposit the amount under head No.G-1 1226. Deposits in favour of the Chief Settlement Commissioner , Punjab. District Officer (Rev.), Hafizabad shall get the market price and 10% surcharge assessed through District Price Assessment Committee and send the case for final approval by the Chief Settlement Commissioner within one month.
5. The Respondent No.1 submitted application dated 03.08.201 1 to the appellant seeking purchase of evacuee land Khasra No.399, 477, 478, 812/409 measuring 24 Kanals 12 Marlas, situated in Mouza Qillah Sahib Singh, Tehsil and District Hafizabad. Respondent No.1 claimed transfer of land, measuring 24 Kanals 12 Marlas, in its favour in term of order dated 12.05.201 1 against consideration of Rs.7,380,000/- deposited on 02.05.201 1, which was mutated through mutation No.5292 dated 16.05.201 1.
6. It appears that current controversy reignited when the appellant, vide order dated 30.12.201 1, re-called earlier order dated 30.01.2010, relevant portion of order dated 30.12.201 1 is reproduced hereunder; "In view of the facts as well as the law points stated above, I being a competent authority hereby recall the order dated 30.01.2010 passed in CSC case No.118/2009 and quash the subsequent proceedings conducted on the basis of this order . I also declare the transactions in favour of Muhammad Azam as null and void, ab-initio.
However , he shall have the right to retrieve his deposited amount. The case is hereby decided with the following observations: "i) According to the order dated 13.12.2003 of Member (Judicial-I)/Chief Settlemen t Commissioner and order dated 11.11.2008 of the Hon'ble High Court, the original allottee was entitled for 45 PIUs. In this way, the area equal to 45 PIUs which comes to land measuring 11 kanals & 9 marlas shall be distributed amongst the most senior vendees from the original allottee which shall be determined by District Collector , Hafizabad personally . ii) After deducting the area measuring 11 kanals & 9 marlas out of 103 kanals & 17 marlas, the remaining evacuee urban land measuring 92 kanals & 8 marlas is hereby resumed in favour of the Provincial Government (Sabiqa Matrooka) as had already been done by the then Member (Judicial-I)/Chief Settlement Commissioner , vide order dated 13.12.2003 and by the Hon'ble High Court vide judgment dated 1 1.11.2008. iii) The most senior vendees are only entitled for 11 kanals & 9 marlas as has been narrated in para (i) above. The vendees of remaining resumed area measuring 92 kanals & 8 marlas are not entitled for its purchase because their cases do not fall within the purview of Section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No.XIV of 1975. The vendees always step into the shoes of their vendees. A defective title could not become perfect as it was further transferred. The dictum laid down in the judgments reported as PLJ 2011 Lahore 202 and 2008 AC 22 are fully applicable in these case. The resumed land measuring 92 kanals & 8 marlas shall be put to unrestricted public auction by the Auction Committee headed by District Collector, Hafizabad, Secretary (S&R), Board of Revenue, Punjab and Additional District Collector, Hafizabad shall be the members of the Auction Committee. The vendees/occupants shall have the first right of purchase. The highest bid money/auction amount shall be deposited under head No.G-11226 "Deposits in favour of the Chief Settlement Commissioner, Punjab" and the same shall be subject to final approval of Chief Settlement Commissioner, Punjab under rules/policy. District Collector, Hafizabad is directed to complete the auction process within a period of three months without fail under intimation to this Court".
7. The appellant had also passed specific order on the application CSC Case No.755/201 1 of the respondent No.1, which formed part of the order dated 30.12.201 1, relevant part thereof is reproduced hereunder; "6. CSC Case No.755/2011: The contention of Muhammad Azam s/o Muhammad Din was that the order dated 30.01.2010 was legally passed by this court and the subsequent orders and proceedings were also based upon facts. He argued that he was entitled for purchase of land measuring 24 kanals & 12 marlas which was legally transferred to him against a consideration of Rs.24,00,000/- per acre and the mutation of proprietary rights was also sanctioned in his favour . In this way, the transaction in his favour had become a passed and closed transaction. He further submitted that the complaints were liable to be rejected. During the course of hearing, he was asked about the possession on the area in question because in the latest report, the revenue field staff never supported his contention regarding possession of the area in question but he failed to satisfy the court that he was in possession at the time of passing the order dated 30.01.2010. In this way, it appeared that he made an unsuccessful attempt for snatching the valuable urban properties of the Provincial Government by concealment of actual facts."
8. Respondent No.1 impugned order dated 30.12.2011 through Writ Petition No.14-R/2012, which petition was accepted on 12.05.2014 alongwith Writ Petition No.82-R/2012. Hence this Appeal.
9. Through ICA No. 621 of 2014, the appel lant impugns order dated 12.05.2014, passed in Writ Petition No. 82- R/2012, which petition was allowed in terms of order passed in W rit Petition No.14 R/2012.
10. ICA No. 684 of 2014 was filed by Mr. Shaukat Ali, whose application for becoming party was dismissed on 12.05.2014. The appellant allegedly claimed entitlement to bid for resumed evacuee land under section 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 ("Repeal Act"). It is pertinent to mention that Writ Petitioners in Writ Petition No.82-R/2014 and appellant in ICA No.684 of 2014 were aggrieved of order dated 12.05.201 1, through which land was allegedly allowed to be transferred to respondent No.1. Submissions by the learned counsel for the Appellant.
11. Learned counsel for the appellant defended the order dated 30.12.201 1, alleging that excess land resumed in favour of the provincial government was sold / transferred through fraudulent and collusive proceedings, as a result whereof the valuable land of the Government was sold at ridiculously low price. The learned counsel contends that land was sold to respondent No.1 without appreciating the fact that land was not agricultural but falls within urban area/boundaries. The learned counsel emphasized that the learned single Judge in chambers had not appreciated the law and facts, while setting aside the order dated 30.12.201 1.
Submissions by the learned counsel for the Respondent No.1.
12. The learned counsel representing respondent No.1 contended that no power of review was available to the appellant in view of provisions of Repeal Act, hence the order dated 30.12.2011 is wholly without jurisdiction. Land once sold / transferred, consideration whereof had been accordingly determined and paid, cannot be cancelled in purported exercise by the appellant, who otherwise was ineffective after passing of order dated 12.05.2011. On merits, learned counsel contended that land sold was agricultural, which was determined at the time of assessment of land for determining its price. Per learned counsel, the transfer of land was in accordance with scheme prepared for disposal of un-allotted rural/agricultural land in terms of section 3(1)(b) of Repeal Act, prepared by Board of Revenue in this behalf. The counsel took us through the entire record to establish that all procedural requirements were fulfilled and the price, at which land in question, was accordingly determined and it commensurate with the market price.
Submissions by the learned counsel for the Respondents in ICA No.621 of 2014 and learned counsel for appellant in ICA No.184 of 2014.
13. The learned counsel for the respondents in ICA No.621 and the learned counsel representing appellant in ICA No.684 of 2014 also claimed rights in the resumed land, some claiming land on the basis of sales made by the legal heirs of Chand Bibi and others claiming land on account of alleged possession of land. It was argued that order dated 11.11.2008, passed in Writ Petition No.61-R/2004, was not followed and land sold to respondent No.1 was fraudulent and caused prejudice to their rights claimed by them. No land can be sold without fulfilling the requirements of law .
14. Arguments heard. Available record perused.
15. At the outset, we enquired from the learned counsel for respondent No.1 that whether land in question, i.e. measuring 24 Kanals 12 Marlas, was claimed as purchased from the legal heirs of Chand Bibi, the learned counsel submitted that land is claimed in independent capacity, on the basis of continuous possession, and same was purchased after resumption of land in favour of the Provincial Government - which was firstly mutated in the name of the government vide Mutation No.5054 dated 24.02.2010 measuring 86 Kanals 18 Marlas 1-1/2 Sarsai -, pursuant to order dated 30.01.2010, of the appellant, which was in excess of entitlement of Chand Bibi. Learned counsel, reiterated that respondent No.1 claimed entitlement to land in lieu of scheme for disposal of un-allotted evacuee rural agricultural land, proposed and implemented by the Board of Revenue in terms of section 3 (1)(b) of the Repeal Act. According to him, land was transferred in terms of order dated 12.05.2011 passed by the appellant, which order was illegally recalled by the appellant vide order dated 30.12.2011.
16. The crux of the submissions made before us are that appellant has no jurisdiction to recall its earlier order , in view of the provisions of Repeal Act. Additionally , it was argued that entire proces s / exercise of sale / transfer of evacuee land was collusive and fraudulent. Respondent' s No.1 counsel submitte d that sale/transfer , in favour of respondent No.1, was in accordance with the scheme of disposal of land, introduced under section 3 (1)(b) of the Repeal Act. Respondent No.1 claimed proprietary rights over the land on the basis of order dated 12.05.201 1, pursuant to which order , land was mutated in the name of respondent No.1 through mutation No.5292 dated 16.05.201 1.
17. Before we proceed to decide the matter, it is expedient to reproduce the order dated 12.05.201 1 - foundation of the claim of the respondent No.1, which was recalled/reviewed vide order dated 30.12.201 1 by appellant. The order dated 12.05.201 1 reads as; No.598-11/793-U&R-VI, Board of revenue, Punjab, Farid Kot House, Lahore. Dated the 12.05.201 1.
From The Board of Revenue, Punjab To The District Coordination Of ficer/Collector , Hafizabad Subject: TRANSFER OF LAND MEASURING 24K-12M COMPRISING KHASRA NOS.399/4,477/8-4,478/8-4 AND 812/409/3-15 SITUA TED IN MAUZA QILA SAHIB SINGH, TEHSIL AND DISTRICT HAFIZABAD IN FAVOUR OF MUHAMMAD AZAM S/O MUHAMMAD DIN /O QILA SAHIB SINGH, TEHSIL AND DISTRICT HAFIZABAD.
Member (Judicial-v), Board of Revenue/Chief Settlement Commissioner , Punjab has been pleased to transfer the land measuring 24 Kanals 12-Marlas, comprising Khasra Nos. 399/4,477/8-4,478/8-4 and 812/409/3-15, situated in Mauza Qila Sahib Singh, Tehsil and District Hafizabad in favour of Mr. Muhammad Azam son of Muhammad Din, Mauza Qila Sahib Singh, Tehsil and District Hafizabad, at Rs.73,80,000/- (Rup ees seventy three lacs eighty thousands only) deposited by the petitioner on 02.05.201 1, in the National Bank of Pakistan, Main Branch, Hafizabad under Head No.G-1 1226 Deposit in favour of Chief Settlement Commissioner , Punjab.
You are requested to proceed further in accordance with law after observing all the codal formalities regarding its implementation in the revenue record under intimation to this of fice.
Issued with the approval of Chief Settlement Commissioner , Punjab.
Deputy Secretary (S&R)
Board of Revenue, Punjab, Farid Kot House, Lahore.
No. & date Even.
A copy is forwarded for information to
1. MBR (J-V)/CSC, Board of Revenue, Punjab
2. Commissioner , Gujranwala Division, Gujranwala.
Deputy Secretary (S&R) Board of Revenue, Punjab, Farid Kot House, Lahore.
18. Since, respondent No.1 claimed rights in the evacuee land, on the basis of scheme for the disposal of un-allotted land, prepared by Board of Revenue in exercise of powers under section 3(1)(b) of the (Repeal) Act, which is reproduced hereunder: "3. Transfer of property-- (1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Act and Regulation, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of Section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal--
(a) In the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf, and b) in the case of rural properties, by the Board or Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land.
Provided further that only so much land shall be offered to such person as does not together with land already held by him exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972." [Emphasis underlined]
19. We will examine the order dated 30.01.2010, Order dated 12.05.201 1, Order dated 30.12.201 1 and Order dated 14.05.2014 while adjudicating upon the matter .
Whether the respondent No.1 fulfils the qualification / eligibility benchmark?
20. We have examined the order of trans fer dated 12.05.201 1 and section 3(1)(b) of the Repeal Act, it is clear that the respondent No.1, before claiming any alleged right in the land, had to fulfil the terms and conditions of section 3(1)(b), ibid, and conditions of scheme of disposal of land. To ascertain the entitlem ent of the respondent No.1, it is imperative to examine documents referred by the learned counsel for the respondent No.1. First in the series, is application, filed by the respondent No.1 , dated 03.08.201 1 to seek transfer / sale of resumed evacuee land - except this application there was no other application / document on record. During the course of hearing of the case, we confronted the learned counsel for respondent No.1 that whether any other application / document was submitted by respondent' s No.1 father , to which he responded that certified copies of Khasra Girdawari' s were attached with the writ petition and no other document was required in the prese nce of said documents. We are called upon to enter into this in-depth analysis of documents as fraud has been alleged.
21. In paragraph No. 1 of application, dated 03.08.2010, filed for seeking purchase of evacuee land, it was mentioned that respondent No.1 was in cultivating possession of the land for the last thirty years - which implied that he had claimed possession of the land since 1980 [since application was filed on 03.08.2010]. In view of this admission whether the respondent No.1 can claim any benefit of proviso to clause (b) of sub-section (1) of section 3 of Repeal Act, which reads as; "Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land".[emphasis underlined]
22. We have also examined the copies of Khasra Girdawari, which showed record since 1972-73. Respondent No.1 claimed occupation of 24 Kanals 12 Marlas but land appearing in these documents was less in measurement [as evident from the Khasra Girdawari for the years 1972-1973, 1973-1974, 1974-1975, 1975-1976]. And Khasra Girdawari for the years 1976-1977, 1977-1978, 1978-1979, 1979-1980 are missing as well. It appeared that respondent No.1 does not meet the terms and conditions of section 3(1)(b) of Repeal Act, which essentially required that person claiming had to be occupy land continuously for four harvests immediately preceding Kharif 1973.
23. We had examined the report of the Patwa ri dated 02.09.2010, on which much emphasis was laid by the learned counsel for the respondent No.1, wherein it was observed that the respondent No.1 was in possession for the last 30-35 years approximately , which implied that as per the report the respondent No.1 or its father , as claimed, were in possession since 1975 - which fact alone disentitle respondent No.1 in terms of section 3(1)(b) of the Repeal Act. It is noted that while dismissing the application CSC Case No.755/201 1 of the respondent No.1 had observed that the respondent No.1 was not in possession at the time of the passing of order dated 30.01.2010.
24. The primary condition that the land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land is undoubtedly a condition precedent, to be met before determination of purchase price and other requirements.
25. We have also noticed that requirement of section 3(1)(b) was made part and parcel of the scheme for disposal of un-allotted evacuee rural Agricultural Land, which is evident from Chapter-I, clause (ii) and Chapter-II clause i) of the said scheme, which are reproduced hereunder; C H A P T E R-I.
In this Scheme unless the subject or context otherwise requires:- ii) 'Occupied land' means evacuee un-allotted land which is in continuous possession of the occupant for four harvests immediately , preceding Kharif, 1973.
C H A P T E R-II.
Disposal of occupied un-allotted land.
"2 (i) That such Persons/has/have been in actual cultivating possession thereof for a period of at least four harvests immediately preceding Kharif 1973 upto the extent of subsisting holding within the meaning of the Land Reforms Regulation 1972 i.e. 121/2 acres.
26. Now if the respondent No.1 was unable to meet the qualification / eligibility then whether alleged sale / transfer of land in its favour constitute a valid, legal and legitimate sale? We have examined the order dated 12.05.2011, wherein no such determination was done, to ascertain the eligibility of the respondent No.1. We, while hearing appeal, are constrained to take cognizance of this blatant flaw, wherein the factum of absence of inherent qualification / eligibility of the respondent No.1, under section 3(1)(b) of the Repeal Act, to claim land was no where considered or appreciated. Meaningful silence by the entire hierarchy of the Board of Revenue raises obvious doubts qua the credibility of the transaction, which illegality culminated into order dated 12.05.201 1, as reproduced hereinabove.
27. We noted that such determination was conspicuous by its absence from the order dated 12.05.201 1, which material fact escaped notice of the learned single judge in chambers, as well, while acknowledging alleged right of the respondent No.1 qua the land.
28. During the course of arguments, it is admitted that appellant is the only relevant competent authority to determine the entitlement and claim of respondent No.1 or any person claiming right to purchase land in terms of scheme for disposal of land, rural/agricultural or urban as the case may be. In these circumstances, we are of the opinion that the question of entitlement of respondent No.1 in a context of relevant scheme is a crucial issue which to-date has not been determined. Since the entitlement of respondent No.1 was never considered or adjudged, therefore, alleged transfer or permission to transfer land vide order dated 12.05.2011 is void and of no legal effect.
It is nobody' s case that any determination was done or appeared to have been carried out before passing of order dated 12.05.201 1, on the basis whereof land was sold/transferred to respondent NO.1.
29. We observed that Writ Petition No.82-R/2012 - order impugned through ICA No.621 of 2014 - was allowed on the basis of the order dated 12.05.2014, passed in Writ Petition No.14-R/2012, wherein the question of the power to recall / review was subject to the challenge. The writ petitioners also challenged the order dated 12.05.201 1 alongwith other orders, on the premise that benefit was extended to respondent No.1 deceptively and fraudulently at their expense.
30. We have also examined the order dated 30.01.2010, which was passed pursuant to order dated 11.11.2008, passed in Writ Petition No.61-R/2004. Said order had two parts, one relating to the order of resumption of land measuring 86 kanals 18 Marlas 1-1/2 Sarsai, already mutated in the name of the provincial government through Mutation No.5054 and other relating to the determination of the rights of the parties to claim / bid for the ownership of the evacuee, in terms of section 3(1) of Repeal Act- depending on the status of the land -, as observed in the order dated 11.11.2008. We are of the opinion that the order dated 11.11.2008, ibid, has not been complied with in letter and spirit - to the extent of entitlement of all eligible persons under section 3(1)(b) of the Repeat Act, 1975 - and apparently the sale of land to respondent No.1 is illegal and carried out without determination of material questions - touching very entitlement of respondent No.1. The order dated 11.11.2008 had attained finality and implementation thereof was mandatory but conspicuously overlooked, which was not adhered to while passing order to the extent of entitlement of the persons holding possession of resumed land and claiming eligibility to purchase under the Scheme introduced.
31. We believe that determination of the entitlement of the persons, allegedly claiming possession of the resumed land was not done in accordance with section 3(1) of the Repeal Act. In these circumstances, we disagree with observations made by the learned single judge in chambers vide order dated 12.05.2014, whereby acknowledgement was extended to the transfer through order dated 12.05.201 1.
32. Learned counsel for respondent No.1 referred to various provisions of Repealed Act of 1975 to substantiate arguments that no power to recall-review was available with the appellant, which appears to be a correct position of law.
33. In view of the facts narrated above, it appears that the issue is not confined to the determination of power or recall-review of otherwise but involves determination of the rights of the parties vis--vis the resumed evacuee land.
The question arises that whether, we acting as appellate Court can examine the orders passed by the appellant. We are hearing this matter as appellate authority, enjoying all powers under the Constitutional jurisdiction, which position is further fortified in view of the fact that no appeal, review or revision was available to appellant, whose orders are amenable to jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Taking a lead from arguments of respondent No.1, since no right of appeal, review or revision is available against the order of appellant, we, are entitled to examine entire matter. Guidance, in this behalf can be solicited from celebrated judgments by Apex Court of Pakistan reported as "IMRAN ULLAH v. THE CROWN" (PLD 1954 Federal Court 123) and "F.A. KHAN v.
THE GOVERNMENT OF PAKIST AN" (PLD 1964 SC 520). Relevant portion of IMRAN ULLAH v. THE CROWN' s case is reproduced hereunder: "The statutory right of appeal confers a right of re hearing of the whole dispute unless expressly restricted in scope and the appellate Court is not confined to the reasons which have been given by the Court below as the ground of its decision. The appeal Court has to cons ider the controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court."
Relevant portion of F.A. KHAN v . THE GOVERNMENT OF P AKIST AN's case is reproduced hereunder: "None of these matters is res integra and in fact decided cases show that in respect of the nature of an appeal the following propositions may be regarded as established:
(i) when an appeal is filed the matter becomes sub-judice and is reheard by the appellate Court which does not Act merely as a Court of error;
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court;
(iii) the original and appellate proceedings are steps in one proceedings."
34. We have examined the order dated 12.05.2014, wherein the learned Single Judge conspicuously overlooked real issue of entitlement of respondent No.1, a Writ Petitioner before the Court, who was seeking entitlement on the basis of order dated 12.05.2011 to question the jurisdiction of the appellant to recall/review its earlier order.
Respondent No.1 had not approached the Court with clean hands and intended to take refuge behind, an illegal exercise by the appellant to recall earlier order , without disclosing that respondent No.1 lacked entitlement/eligibility - on the basis of the documents availabl e. We cannot close our eyes to this gross illegality , whereby the alleged entitlement of respondent No.1 was acknowledged without appreciating crucial fact that respondent No.1 failed to meet the basic requirements under section 3(1)(b) of the Repeal Act.
35. We set-aside the order dated 12.05.2014, order dated 30.12.201 1, order dated 12.05.201 1 - which was passed and allowed transfer of land in favour of the respondent No.1 without examining and adhering to the mandate of section 3(1)(b) of the Repeal Act and fulfilment of conditions of scheme for the disposal of un-allotted evacuee rural agricultural land.
36. We also set-aside the order dated 30.01.2010, to the extent of the sale / disposal of resumed evacuee land amongst the applicants / claimants being not adhered to while determining the rights of subsequent vendees and persons claiming land on basis of continuous possession of land, however , the order to the extent of the resumption of the land to Government of Punjab is sustained.
37. Consequently , the sale / mutation of the resumed land, including the sale / transfer to the respondent No.1 and in favour of the claimants, claiming land by virtue of purchase from the legal heirs of Chand Bibi is set-aside and declared void, being contrary to section 3(1) of the Repeal Act, and the schemes implemented for the disposal of un-allotted evacuee land.
38. We remand the matter to the appellant to examine the claims and determine the eligibility of each applicant, after ascertaining the possession and period of possession strictly in accordance with the law and thereafter decide entitlement and other matters, including but limited to the determination of the status / nature of the land (either it is agricultural or urban) and market price of the land, if he applicants meet qualification / eligibility benchmark for purchase, in lieu of their continuous possession from the period specified in section 3(1) of Repeal Act. However, it is observed that the observations made in this judgment are tentative in nature and appellant should decide the matter in accordance with law without being influenced with this judgment.
39. The appeals are accepted in above-mentioned terms.