RUSTAM S. SIDHWA, J.-This is an Inter-Court Appeal calling in question the order of a learned Single Judge passed on 8-10-1977 in Writ Petition No. 401-R of 1975 declaring the order of the Deputy Settlement Commissioner dated 6-5-1975 as having been passed without lawful authority and directing the said officer to offer the disputed land for sale to the respondents.
2. The brief facts of the case are as submitted in para. 2 of the judgment of the learned Single Judge, which may be treated as a part of this judgment. However, there is one slight error which we would like to correct. The respondents purchased 138 kanals 11 marlas of land in village Sansra Goraya, Tehsil and District Gujranwala, from Mst. Desu, its allottee/ owner, in January, 1962, in respect of which mutation was sanctioned in December, 1962, but they did not purchase 173 kanals of land in the same village from Ali Muhammad, her husband, in the same year.
3. The only question that arises in the present Inter-Court Appeal is whether the present respondents, who are occupants of agricultural land and have continuously held it for four harvests immediately preceding Kharif 1973 and in respect of a part of the said land are also its bona fide purchasers for value, without notice of or being privy to any fraud or misrepresentation practised by Mst. Desu, one of the allottees, on the Settlement Department at the time of its allotment or transfer have a superior right over the present appellant, who is an informant (mukbbar), to retain the same, when the said lands have been cancelled from the names of Mst.
Desu and Ali Muhammad, the two original allottees, for fraud and resumed by the Provincial Government. The learned counsel for the appellant submits that the right of the informant is superior and in this connection has relied upon Barkat Ali and others v. Syed Shahzad Nazir etc. 1981 SCMR 693Learned counsel for the respondents, relying upon the legal findings given by the learned Single Judge in the order under challenge, submits that the right of the occupant-cum- bona fide purchaser is superior. .
4. The learned Single Judge, in accepting the writ petition, held that as only available evacuee land could be allotted to an informer in lieu of his claim and as the disputed land was not allotted in favour of the appellant prior to 1-7-1974 and no fresh allotment could be made in his favour thereafter, in view of the change in the law brought about by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, XV of 1974, the said land stood transferred to the Provincial Government and in accordance with the first proviso to clause (b) subsection (1) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, XIV of 1975, the same could only be offered to the respondents for purchase by them. Dealing with the application of subsection (3) of section 2 of Act XIV of 1975 to the case in instance, the learned Judge held that as the allotment and transfer of the proprietary rights to All Muhammad and Mst. Desu had already been cancelled in 1972, the subject of allotment or its cancellation was not before the Deputy Settlement Commissioner, to be dealt with under the repealed law, and since the said officer could not make a fresh allotment after 1-7-1974, he could only transfer the land to respondents, under the provision cited above. The learned Single Judge also repelled the application of the bar arising out of the third condition contained in para. 2 of the Scheme for Disposal of Unallotted Rural Agricultural Land framed by the Board of Revenue under clause (b) of subsection (1) of. Section 3 of Act XIV of 1975, by holding that as the statute did not provide any such limiting provision, the said provision contained in a Scheme could not over. Ride the provisions of the Act.
4. We have given our anxious consideration to this case and beg to differ from the findings of the learned Single Judge. Under subsection (3) of section of the Evacuee Property and Displaced Persons Laws (Repeal) Act, XI'V of 1975, all proceedings remanded to Settlement Officers in pursuance of sub-section (2) of section 2 have to be disposed of by him in accordance with the provisions of the Act or Regulation repealed, to which the proceedings relate. The statute in question, to which the present proceedings relate, is the Displaced Persons (Land Settlement) Act, XLVII of 1958 Under subsection (1-A) of section 14 of the said Act XLVIII of 1958, the right of the informant to secure allotment of land in respect of which he has laid information, is clearly there.
Thus, the right of the informant to have his pending case decided under the repealed law and to secure allotment there--under, in case he is able to establish that an allottee or transfree has secured evacuee land through fraud or misrepresentation, cannot be denied to him. Once the case is so decided and allotment ordered in the informant's favour, the property would cease to be available for resumption under Ordinance XV of 1974 or Act XIV of 1975. In view of this position, the right of purchase conferred on an occupant under the first proviso to clause (b) of subsection (1) of section 3 of Act XIV of 1975 must be read subject to the result of the informer's claim to its allotment pending under the repealed law. !f this is not to prevail, -the informer will have no remedy and the right granted to him under section 14(1-A) of Act XLVII of 1958, would be meaningless and his endless labour to assist Government to unearth property fraudulently acquired, would be in vain. In these circumstances, we hold that the right of the appellant to secure his final allotment, by virtue of having succeeded in having the fraudulent allotment cancelled, even after the repeal of the Displaced Persons (Land Settlement) Act, 1958, stands preserved: If any authority is required for this view, Shah Nawaz and others v. Member, Board of Revenue (1) and Rahmat Ali v. Settlement Commissioner and others (2) may be referred.
(1) PLD 1978 SC 266(2) PLD 1980 SC 214
5. As regards the respondents being bona fide purchaser for value of the land of Mst. Desu, without notice of or being privy to any fraud or misrepresentation practised by her on the Settlement Department at the time of allotment, the said qualification by itself does not entitle them to any transfer, as proceedings initiated at the informer's instance under sec--tion 10 of the Displaced Persons (Land Settlement) Act, XLVII of 1958, and culminating with the order of Mian Wahiduddin Rathore, Settlement Commissioner, exercising powers of the Chief Settlement Commissioner, dated 31-7-1972 had resulted in a finding that both the allottees' allotments had been procured through fraud. In cases where proceedings under section 10 or 11 of Act XLVII of 1958 have revealed that no fraud has been practised by allottees in securing their allotments, the claims of the informants to oust the successors of such allottees have generally been repelled on the plea of finality as contained in section 21 of the said Act and in such cases the rights of such successors as bona fide. purchasers for value who have not been party to any fraud practised by the allottees have been urged as a supportive argument, to protect their claims. If any authority is required for this view Officer on Special Duty v. Bashir Ahmad (1) and Muhammad Yousaf v. Muhammad Hassan (2) may be referred. In Bashir Ahmad's case the Supreme Court inter alia observed :-- "The argument also overlooks the fact that Bashir Ahmad and Abdul Haq the two contesting respondents are transferees for value from the original right-holders and it is nobody's case that they were privy to any fraud or misrepresentation alleged against their predecessors---in-title.
Therefore. On no discoverable principle can Bashir Ahmad and Abdul Haq be penalized for any fraud or misrepresentation if any by their predecessors-in-title unless they are pari delicto with their . Vendors."
The question whether the observation was used by the Supreme Court as a supportive argument, as stated above, or as a factor which by itself could support the claims of the bona fide purchasers, has not been free from doubt. However, in Barkat Ali's case the Supreme Court has now answered this point by clearly holding that the right of the occupant, who is also a bona fide purchaser for valuable consideration, in resumed land, is subservient to the right of the informant, unless there is any surplus area left over after the entitlement of the informant has been met, in which case the bona fide purchaser may be accommodated. We follow the view contained in Barkat Ali's case with respect, as it directly deals with the contest between the occupant, who is also a bona fide purchaser for. Valuable consideration, and the informant, which also is a matter directly in issue in the present case.
6. As regards the finding of the learned Single Judge that the third condition imposed under para. 2 of the Scheme for Disposal of Unallotted Agricultural Land offends against the Act and the same cannot be enforced, for reasons already stated above, namely, that the informant's right to secure the allotment under the repealed Act even after the enforcement of Ordinances XV of 1974 and Act XIV of 1975 is protected and preserved, the said condi--tion harmonises with the parent legislation and can, therefore, be enforced.
7. In these circumstances, the appellant has made out a case for the setting aside of the impugned judgment.
8. For the .Foregoing reasons, this appeal is accepted, the judgment of the learned Single Judge dated 8-10-1977 passed in Writ Petition No. 401-R 'of 1977 is hereby set aside and the competent Settlement Officer is directed to finalise the case of the allotment of the resumed land in favour of the informant appellant, as required by law.
(1) 1977 SCMR 208 (2) 1981 CLC 1181