CH. MUHAMMAD IQBAL, J.--- Through this writ petition, the petitioner has challenged the order dated 10.12.2004, passed by the Chief Settlement & Rehabilitation Commissioner/Member, Board of Revenue, Punjab.
2. Brief facts of the case, as contended by the learned counsel for the petitioner, are that one Moeen-ud-Din s/o Yakeen-ud-Din was a displaced person who had verified claim for ,3,13,950 PIUs and because of ceiling, he was entitled to get allotment of 36,000 PlUs only and presently dispute relates to 5000 PlUs which were transferred to Moza Datay Wali Tehsil & District Gujranwala. As allotment was not made in the said moza, therefore, Moeen-ud-Din through his general attorney Abdul Bari Khan; obtained allotment in different revenue estates. The detail of allotment of land adjusted against the PIUs is as under: Sr. No. Thame of villageUnit consumedDate of allotment 1 Jandyala Baghwala25 26-03-1962 2 Sadhoke 150 21-04-1962 3 Tong Uchha, 3307 09-04-1962 4 Dandia 193 25-04-1962 5 Chak Rajada 200 09-06-1962 6 Masanda 325 04-07-1962 7 Kamoke 800 These were proposed on 07-05-1962 and were confirmed on 01.03.1963 (5000 units)
The petitioner purchased the land allotted measuring 412 Kanals, 05 Marlas out of 316 Kanals, 04 Marlas in village Kamoke from the allottees on the basis of a mutation No. 929 dated 14.10.1963 and sold on 19.03.1966 through registered sale-deed in favour of Riasat All and Asghar Ali, respondents No. 8 & 9 and mutation No. 9947 dated 22.07.1966 was entered and sanctioned in their favour. One Barkat All filed pre-emption suit which was decreed on the basis of a compromise to the extent of land measuring 32 Kanals.
One Muhammad Siddique filed mukhbari application against Moeen-ud-Din for the allotment of land in village Kamoke which was accepted by the Additional Settlement Commissioner/Assistant Commissioner vide order dated 28.02.1978 and soon after the cancellation of the said land, land measuring 240 Kanals, 14 Marlas was allotted to Bootay Khan on 02.03.1978 and 114 Kanals was allotted to Shokat Ali, respondent No. 14.
Respondents alienated their entire land to Abdul Waheed Khan and his son Akhtar Ali Khan through sale in the years 1978 & 1980. The order dated 28.02.1978 was challenged by the petitioner, Riasat Ali, Asghar Ali alongwith Barkat Ali through Writ Petition No. 1050-RA978 which was accepted on 18.11.1985 and the matter was remanded to the Chief Settlement Commissioner with the direction to decide the case of the petitioner. The Member, Board of Revenue found that against 5000 PIUs off Moeen-ud-Din the land was allotted in Kamoke was earlier in time having been made on 01.03.1963 and there were no units left to be adjusted at Kalian Wala, as such, the allotment made therein was found bogus. Against the said order, Abdul Wakeeel and his son Akhtar Ali filed Writ Petition No. 207-R/1991 which was allowed on 15.01.1998 and the case was remanded for fresh decision. The petitioner filed CPLA before the Hon'ble Supreme Court of Pakistan against judgment dated 15.01.1998 which was disposed of vide order dated 12.06.2002 upholding the remand order. The Chief Settlement Commissioner vide impugned order dated 10.12.2004, upheld the order dated 28.02.1978 and declared that allotment in favour of Moeen-ud-Din in village Kamoke is bogus, cancelled the allotment and ordered for its allotment to informers. Hence, this writ petition.
I have heard the arguments of learned counsels for the parties and gone through the record with their able assistance.
3. The question regarding genuineness of allotment in favour of Moeen-ud-Din from whom the petitioner claims to be the purchaser of the land measuring 112 Kanals, 05 Marlas out of 316 Kanals, 04 Marlas situated in village Kamoke on the basis of a mutation No. 929 dated 14.10.1963 was put to the learned counsel for the petitioner to prove the transfer of any claim of the allottee to District Gujranwala vide order dated 27.06.2019 and learned counsel requestion for adjournment to assist this Court further and today learned counsel for the petitioner requested that he does not press this writ petition and wishes to withdraw the same, as, such, there is no . need to further discuss the case in respect of alleged allotment in favour of Moeen-ud-Din and the impugned orders to this extent are upheld.
4. So far as the allotment of informer is concerned on the last date of hearing the learned counsel for the Settlement Department opposed the withdrawal of this petition with the stance that both the private parties with their collusiveness are intending to grab the public property and certain material questions for law and facts are involved in this matter and requested that the legality of the order of settlement hierarchy may be determined as per law. Admittedly the disputed land is an evacuee land owned by the Provincial Government and it should be disposed of as per the procedure prescribed in Section 3 of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975. The Courts of Law always keep in mind while dealing with the matters relating to public property and public interest. An extraordinary obligation is saddled upon the Constitutional Courts to keep abreast itself with law and facts of the case and when certain material facts unearthed then it should decide the matter as per law even without being influenced by respective pleadings of the parties. In this regard, the Hon'ble Supreme Court of Pakistan in a judgment cited as Provincial Government through Collector, Kohat and another versus Shabbir Hussain (PLD 2005 SC 337), has held as under:--- "11. The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the learned Judicial Officers should not adopt the said course of action with their eyes completely shut to the factual and legal aspect involved in the matter e.g. if a suit is filed seeking a decree to export heroin from Pakistan and supposing none comes forward, for whatever reasons, to defend the said suit, then could it be legal or permissible for a Court to pass a decree granting a relief which was absolutely illegal and unlawful. "
12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of same representative of a Government agency".
So this Court considered it appropriate to determine the legality of order dated 28.02.1978 as well as order dated 10.12.2004.
5. From perusal of the record as well as the impugned orders following two questions require adjudication: (i).Whether the Additional Deputy Settlement Commissioner was competent to allot the resumed land to the informers and the order dated 28.02.1978 was rightly passed?
(ii). Whether the Chief Settlement Commissioner was competent to allot the resumed land to Wormers after repeal of evacuee laws?
As regard the 1st question, the Additional Deputy. Settlement Commissioner (Land), vide order dated 28.02.1978, declared the allotment of Moeen-ud-Din in other four villages namely Malkay, Sulkana, Gadi and Mandi Abad a bogus, in excess of entitlement and cancelled the same. The Additional Settlement Commissioner after the cancellation of the alleged allotment of Moeen-ud-Din allotted the resumed evacuee land to Bootay Khan and if any land left then to Shokat Ali and M. Shaft against their remaining claim or rest of the units. The relevant portion of the order dated 28.02.1978 is reproduced as under: {{URDU TEXT}} (emphasis supplied)
Whereas the Additional Deputy Settlement Commissioner was not competent to allot the resumed land without obtaining permission from the Chief Settlement Commissioner as envisages from circular No. 4027-66/3576- R(L) Lahore, dated 21.07.1966. The relevant portion of the above circular is reproduced below: "It has accordingly been decided that in all cases where the allotment of any person is cancelled on the basis of fraud or other irregularity as reported by the Director of enforcement, the resumed area should not be allotted to any person without the prior approval of the Chief Settlement and Rehabilitation Commissioner. Full details of khasra numbers, area and classification of the land resumed together with a copy of the order of the competent authority about the resumption of the land, may please by furnished to this office for obtaining the orders of the Chief Settlement and Rehabilitation Commissioner about fresh disposal of the land. These instructions will also apply to the land already resumed which has not been disposed of before the issue of this memorandum"
In continuation of the above instructions dated 21.07.1966, further instructions were issued vide memo. No. 7330-66/378-R(L) Lahore, dated 07.02.1967 regarding re-allotment of agricultural resumed land. The relevant portion of the circular dated 07.02.1967 is reproduced as under: "The resumed area should not be allotted to any person without the prior approval of the Chief Settlement and Rehabilitation Commissioner. Full details of khasra numbers, areas and classification of the land resumed together with a copy of the order of the competent authority about the resumption of the land may please be furnished to this office for obtaining the orders of the Chief Settlement and Rehabilitation Commissioner, about fresh disposal of the land."
The Chief Settlement Commissioner, in continuation of the above-referred instructions also issued further instructions vide circular No. 6167-66/1063-R(L) Lahore, dated 15.04.1967 for allotment of agricultural resumed land under West Pakistan Rehabilitation & Settlement Scheme. The relevant portion of the circular dated 15.04.1967 is reproduced as under: "The Chief Settlement and Rehabilitation Commissioner West Pakistan is pleased to order that the allotment of land resumed under sections 10 & 11 of Displaced Persons (Land Settlement) Act, 1958 will be made by a committee constituted for this purpose consisting of the following members: a. Settlement Commissioner (Lands), b. Deputy Secretary (Rural), in his capacity as Addl. Settlement Commissioner (Land). c. Addl. Settlement Commissioner (Legal)
In continuation of the above instructions dated 15.4.1967, the Chief Settlement Commissioner, West Pakistan further issued instructions vide circular No. 2771-67/2141-R(L), Lahore dated 05.06.1967 for allotment of agricultural land resumed under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958. The relevant portion of the letter dated 05.06.1967 is reproduced below: "The lands resumed under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 will not be allotted by the Settlement Authorities of the District. The Chief Settlement Commissioner will issue separate instructions for the disposal of such lands."
The Chief Settlement Commissioner also issued instructions vide circular No. 6208-67/4945-R(L) Lahore, dated 25.11.1967 for fresh allotment of agricultural land resumed from unauthorized persons. The relevant portion of the letter dated 25.11.1967 is reproduced as under: "The Chief Settlement Commissioner and Rehabilitation Commissioner has noticed with concern that the instructions contained in this office circular memo. under reference are not being complied with by the local officers and the cases of fresh allotment of land resumed under sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 to this office for placing before the committee constituted vide this office circular No. 277167/2142-R(L), dated 5.6.1967. It is, therefore, requested that instructions of the Chief Settlement and Rehabilitation Commissioner may please be complied with strictly and the requisite information in the prescribed proforma be furnished to this office in each case."
Further instructions were also issued by the Chief Settlement Commissioner for allotment of resumed land vide circular No. 42669/720-R(L) Lahore, dated 20.2.1969. The relevant portion whereof is reproduced as under: "The land resumed is not to be disposed by the District Settlement Authorities but by the special allotment committee constituted for the purpose by the Chief Settlement Commissioner vide this office memorandum No. 2771- 67/2141-R(L), dated 5.6.1967. It is further reported that some Settlement authorities are themselves reallotting the land so resumed in utter disregard of the requisition for referring such cases to the special allotment committee".
Even, it is settled law that after the repeal of evacuee laws w.e.f 01.07.1974, the Additional Settlement Commissioner was not competent to allot any agricultural land against the remaining Units and the powers were only vested with the Chief Settlement Commissioner, as such, the order dated 28.02.1978 to the extent of allotment of land in favour of Bootay Khan, Shokat Ali, Muhammad Shafi and Rasheed Ahmad etc. against unutilized, unsatisfied verified claim is patently illegal, without jurisdiction and void ab initio.
6. Now coming to the llnd question, suffice it to say. That all the evacuee laws stood repealed w.e.f 01.07.1974 after promulgation of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975 and all the evacuee properties, both urban and rural including agricultural land, under Section 3 of the Act ibid, stood transferred to provincial government which was competent to dispose of the same under the scheme. For ready reference, Section 3 of the Act ibid is reproduced as under: "3. Transfer of Property.-- (1) All properties, both urban or 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 Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under sub-section
(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 of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf Provided that agricultural land occupied by a person continuously for four harvests immediately preceding Kharif 1973 shall first he 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 the land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972.
(2) The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other persons as the Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him in respect of such land: Provided that only so much land shall be offered to such allottee as does not, together with the land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972: Provided further that, the temporary altottee or other person who purchases the land .so offered to him shall not eject the tenant from such land except on the ground theft he has failed to pay rent in accordance with the terms of his tenancy.
Provided further that, in the event of the displaced persons from Jammu and Kashmir State or any of his successors-in-interest being repatriated to that State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by the Government."
After the repeal of evacuee laws, all the evacuee law went out of the settlement pool properties which were not available for any allotment against any PIU/Informer Claim and even the Chief Settlement. Commissioner has no jurisdiction to allot any evacuee land against the adjustment of any remaining PlUs/claims rather the evacuee land should be disposed of in terms of the provision reproduced herein above. The Additional Deputy, Settlement Commissioner allotted the resumed land to the informers vide order dated 28.02.1978 under Sections 10 & 11 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 but the said law/enactment had already been repealed w.e.f. 01.07.1974 whereas Chief Settlement Commissioner directed the revenue authorities vide order dated 10.12.2004 to implement the order dated 28.02.1978 regarding allotment of land to the informers. The operative part of the order dated 10.12.2004, passed by the Chief Settlement Commissioner, Punjab is reproduced as under: "22. The net out-come of the entire discussion is that the purported allotment made in the name of Mueen-ud- Din in Village Kamoke was illegal. The same is declared as bogus and is accordingly cancelled. The allotment in other 4 villages of Malkay, Sulkana, Gandi and Mahndiabad was also cancelled by the Addl. Commissioner vide his order dated 28.2.1978 being bogus and in excess of entitlement and the land so cancelled was allotted to the informers. That portion of his order was not implemented in the revenue record because that order was assailed through writ petition No. 1050-R/1978 and the matter went in litigation. However no one of the affectees, other than the present petition challenged the order of Addl. Commissioner dated 28.2.1978. As such to their extent, that order has attained finality. The same is accordingly upheld and it is directed that the cancellation of land and its subsequent allotment to various informers as contained in the last paragraph of Addl. Commissioner's order dated 28.2.1978 by now implemented and given effect in the revenue record by District Officer (Rev), Gujranwala in respect of revenue estates of Malkay, Sulkana and Gandi and by District Officer (Rev), Hafizabad in case of village Mehndiabad."
(emphasis supplied)
Whereas under Section 2 (iv) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, Settlement Authority was denuded from jurisdiction to issue allotment orders and if any order of allotment so passed by the Settlement authorities, same would be nullity, void and coram non judice in the eyes of law.
Reliance is, placed on the cases titled as Muhammad Ramzan & others Vs. Member (Revenue), Chief Settlement Commissioner & others (1997 SCMR 1635) and Ali Muhammad through LRs & others Vs. Chief Settlement Commissioner & others (2001 SCMR 1822). In order dated 10.12.2004, the Chief Settlement Commissioner,. while declaring the allotment of Moeen-ud-Din as bogus also ordered to the revenue authorities for implementation of the order dated 28.02.1978 regarding allotment of land to informers, this part of the order containing direction to lower hierarchy is illegal and without jurisdiction void ab initio and the same never attained the status of finality in the eyes of law and is liable to be ignored. Reliance can also be placed on the cases titled as Muhammad Younus Khan & 12 others Vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar & others (1993 SCMR 618), Lal Din & another Vs. Muhammad Ibrahim 0993 SCMR 710), Khair Din Vs. Mst. Salaman & others (PLD 2002 SC 677), Talib Hussain & others Vs. Member, Board of Revenue & others (2003 SCMR 549), Khadim Hussain Vs. Abid Hussain & others (PLD 2009 SC 419), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).
The Hon'ble Supreme Court of Pakistan in its judgment titled as Khuda Bakhsh Vs. Khushi Muhammad & 3 others (PLD 1976 SC 208) observed as under:--- "The order dated the 9th of May, 1962, was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it vas, therefore, a nullity and could be ignored."
7. The conjoint reading of Sections 2 & 3 of the Repealing Act 1975, it evinces that the entire property of Settlement Pool went out from the Settlement pool and vests with the provincial government and was not available for any allotment against any outstanding unsatisfied PIUs or on the basis of claim of any informer rather the same could only be disposed of according to the policy of the subject whereas allotment of said land to the informer does not fall in purview of the Repealing Act as well as the policy of 1977 or the successive policy/notification of Board of Revenue on the subject. The Hon'ble Supreme Court of Pakistan regarding this issue has held in a case cited as Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822) as under: "12. Besides it notwithstanding the above conclusion for sake of arguments if it is assumed that the evacuee agricultural (urban) land was available for transfer, even then the notified Authority and the Chief Settlement Commissioner had no jurisdiction to transfer the land to claimants against their unsatisfied P.I.Us. in their possession because vide Notification No. 1697-731-R(L), dated 16th May, 1973 issued by Chief Settlement and Rehabilitation Commissioner Punjab had 'declared the evacuee properties as "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958. The contents of the notification thus reads:--- "In exercise of powers conferred upon me under clause (b) of sub-section (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, 1 Mr. M. Aslam Awais, C.S.P. Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one yet confirmed to any person against units or evacuee land which may become 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, as building sites, for disposal under Section 13 of the said Act."
13. The above notification was examined by this. Court in the case of Bashir Ahmed and others v. Punjab University Academic Staff Association and others (1991 SCMR 377) wherein it was held as under:--- "But we are of the opinion that the High Court was right in holding that in face of the Notification dated 16.5.1973 declaring- the urban land within the Municipal Limits etc. as 'building sites' no, allotment of such land on the basis of the claimant's units, whether urban or rural; could be made,"
The above notification also remained the subject-matter in different reported cases before this Court and ultimately in the case of Muhammad Raman v. Member (Rev.)/CSS (ibid) it was held as follows:-- "The ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255 and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into building sites and consequently Notification-dated,16.5.1973 was valid. Therefore, on the issuance of said notification every agricultural urban land which had not been adjusted allotted or utilized till then against verified claimed cases to be available for transfer."
It is also to be noticed that in view of above observations of this Court in Muhammad Ramzan's case and also keeping in view the fact that on 3rd January, 1958 evacuee agricultural land (urban) the subject-matter of the proceedings has gone out of compensation pool then how the notified authority was competent to order allotment of this land in favour of appellants. This question has also been answered by this Court in Muhammad Ramzan's case with reference to Notification, dated 16th May, 1973 and it was held thus:-- "Therefore, we find no difficulty in observing that when repealing Act was promulgated there did not exist any agricultural urban land which could be adjusted against unsatisfied verified claims of produce index units."
8. In view of above, the order dated 28.02.1978 to the extent of allotment of land to different informers is nullity in the eyes of law and same is hereby set aside, resultantly order dated 10.12.2004 is also accordingly set at naught. The Chief Settlement Commissioner, Punjab is directed to immediately retrieve the possession of the said land from the informers/illegal occupants within a period of one month after receipt of certified copy of this judgment and if needed dispose of the same through unrestricted public auction, and submit compliance report- to the Deputy Registrar (Judicial) of this Court.
9. For what has been discussed above, this petition stands disposed of accordingly.