Kohli petitioner who was a claimant displaced person died while this case was pending in this Court and his legal representatives were impleaded on the 27th of March, 1912. Kohli filed two claim forms, one for himself and the other on behalf of his real brother namely, Chohtu who had died in India. The claim forms were Nos. 14201 and 2342. These forms were filed in 1948-49 in respect of the land, which Kohli and his brother had abandoned in village Patten Kalan, Tebsil Tijara, Alwar State (India). As by that time the Jamabandis from India had not been received, two khatas in Chak No. 3, Baikot, Tehsil Chunian, District Lahore, were confirmed in the names of Kohli and his brother Chobtu by A. R. D. (Lands) in 1952. Thereafter, on the receipt of Special Jamabandis from India both the afore--mentioned claim forms were verified by the Central Record Office to the extent of 16 bighas 6 Biswa s each (Annexures A & A/1). Consequently, on the basis of two Fard Haqiats land was confirmed in the name of two brothers in the following order : Khara No. 229 comprising of khasra Nos. 1355, 1356, 1357/1, 1358, 1359, 1360, 1361 and 1370/2 measuring 57 kanals 2 marlas was confirmed in favour of Chohtu on the 7th August, 1959, (Annexure B/1). His total entitlement amounted to 497 P.
I. Us. Out of which 424 P: I. Us. Were confirmed in his name whereas 73 P. I. Us. Remained pending as unsatisfied. Khata No. 530 comprising of Kharsa Nos. 1362, 1363, 1364/1, 1365, 1366, 1367 and 1370/1 measuring 47 kanals 7 marlas was confirmed in favour of Kohli on .The 7th of August, 1959 (Annexure 'H'). His total entitlement was 493 P 1. Us. Out of which 352 P. I. Us. Were confirmed in his favour whereas 141 P. I. Us. Remained pending as unsatisfied. Since Chohtu had died in India mutation of inheritance No. 81 was sanctioned in favour of Kohli who was the only heir.
2. On the 3rd of June, 1960, an order was passed by the Additional Rehabilitation Commissioner (Touting and Inspection) as delegatee of the C. S. And R. C. Under sections 10 and 11 of the Displaced Persons Land Settlement) Act, 1958, on the application of Budh Singh respondent No. 1 whereby 117 units from the name of Chohtu and 48 units from the name of Kohli were held liable to be cancelled and were directed to be allotted to Budh Singh respondent No. 1 for being an informer.
It is contended by learned counsel that this order had been passed without any knowledge, notice or information to Kohli and that it was passed in his absence and at his back. On the 15th of June, 1960, in compliance with the aforesaid order a robkar was issued (Annexure B/2-A). This robkar was implemented by the A. R. C. (L), on the 23rd of July, 1960, and as a result Khasra No. 1364/2 measuring about 6 kanals was cancelled from Khata No. 530 in the name of Kohli (equivalent to 48 units) and Khasra Nos. 1356 and 1357/2 measuring about 15 kanals 7 marlas were cancelled from Khata No. 529 in the name of Chohtu (equivalent to 117 units). Thus about 21 kanals, 7 marlas in all were cancelled from the land which had already been confirmed to Kohli and his brother. On the 8th of October, 1960, this cancelled land was confirmed in favour of Budh Singh respondent No. 1 as an informer. He sold it to Riaz (not impleaded as a party in this writ petition) through a registered sale deed on the 4th of November, 1960, and a mutation in his name was accordingly sanctioned on the 22nd of December, 1960 (Annexure 'Q'). Riaz further sold the said land to Subhan respondent No. 2, the mutation of which was also sanctioned on the same date, namely, the 22nd of December, 1960 (Annexure'A'). At this stage it may be noted that learned counsel for respondents Nos. 1 and 2 contend that Kohli did not challenge the cancellation of his land by way of appeal or revision nor did he challenge the confirmation of the same in favour of Budh Singh respondent. On the other hand it is contended by learned counsel for Kohli that he had no knowledge of the cancellation of the said land from his name and that of his brother or even of it: confirmation in the name of Budh Singh respondent as the entire proceedings had been taken in his absence and behind his back, with--out any knowledge or any notice to him. According to learned counsel Kohli learnt for the first time on the 17th of August, 1967, that the land had been illegally cancelled from his khata.
Consequently he filed an application under section 11 of the Displaced Persons (Land Settlement)
Act, 1958, on the 26th August, 1967. (Annexure 'D') in the Court of the Additional Deputy Commissioner (Consolidation) with powers of the Chief Settlement Commissioner for the restoration of the cancelled land to him. But this application was rejected by S. Aftab Ahmad, Additional Deputy Commis--sioner (C), with powers of Chief Settlement Commissioner on the 11th of April, 1968 (Annexure D/1). Kohli filed another application of a similar nature on the 7th of May, 1968. (Annexure 'E') in the Court of the Chief Settlement Commissioner West Pakistan but this application was referred to Sardar Hidayat Ullah Mokel delegatee of the Chief Settlement Commissioner who transferred it to S. Aftab Ahmad again. Thereupon Kohli filed an appli--cation on the 16th of April, 1969, before the Chief Settlement Commissioner Sb. Manzoor Elahi praying that his case should not have been transferred to S. Aftab Ahmad who had already expressed an opinion in his previous order and had rejected the application of Kohli (Annexure 'P'). Alongwith this application was filed an application for stay dated the 19th of April, 1969 (Annexure 'F/1. Anyway, the application of Kohli was rejected by S. Aftab Ahmad delegatee of the Chief Settlement Commissioner again on the 24th of April, 1959 (Annexure 'G'), on the, ground that he had already dismissed - the application of Kohli on the same facts. Thereafter, Kohlt again filed another application on the 27th of May, 1969, purported to be under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 in the Court of the Chief Settlement Commissioner. West Pakistan, Sh. Manzoor Elahi (Annexure 'H'). This application was dismissed also on the 29th of May, 1969, and its intimation was sent to Kohli vide robkar dated the 16th of June, 1969, (Annexure 'H/I'). It was dismis--sed on the ground that the case had also been decided already under sections 10 and 11 by a competent officer and that the applicant may seek legal remedy whatever available to him in the proper Court if so advised. Then the petitioner filed settlement revision in this Court which stands converted in the present writ petition. Kohli has challenged the legality of orders dated the 29th of May, 1969, 11th of April, 1968, and 24th of April, 1969 of respondents Nos. 3 and 5 and orders dated the 23rd of July, 1968, and the 15th of June, 1960, passed by the Assistant Rehabili- -tation Commissioner (L) and Rehabilitation Commissioner (Touring and Inspection) respectively.
He has further prayed that the land in dispute be cancelled from the names of respondents Nos. 1 and 2 and that respondent No. 4 be directed to cancel the claims of respondents Nos. 1 and 2, and respondent No. 6 be directed to verify the claims of Kohli and his brother according to the record received from Alwar State.
3. Learned counsel for Kohli mainly argues that originally the order passed on the 3rd of June, 1960, by the Additional Settlement Commis--sioner (Touring and Inspection) which was referred to in the robkar dated the 15th of June, 1960 whereby land was cancelled from the khata of Kohli and his brother, was an illegal order as it had been passed behind the back of Kohli. It was an ex parte order, Kohli had no knowledge or information of the case, he was not given any notice of the same, and he was not given an opportunity to be heard. Hence that order had been passed in violation of the principle of natural justice and subsequently the proceedings taken after that order were illegal and unwarranted by law. It is next argued on the basis of Memo. No. 6894-60/491-R (P), dated the 5th of February, 1660. That the Additional Rehabilitation Commis--sioner (Touring and Inspection)
West Pakistan was only delegated powers under section 10 of the Displaced Persons (Land Settlement) Act, 1958, and that he was not delegated powers under section 11 of the aforesaid Act.
The argument of learned counsel is that since the land bad been withdrawn from the khata of Kohli and his brother as if excess allotment had been made to him by the Settlement Authorities, his case could have at the most been covered by section 11 and not section 10 as there was no allegation of fraud or misrepresentation. It is, therefore, contended by learned counsel that the aforesaid order was passed without jurisdiction. Reliance is placed on Ghulam Haider v. Mst. Bhago and others (PLD 1962 Lab. 326) and Hafeezud Din v. Mian Khadim Hussain, Additional Deputy Commissioner, Lahore and another (PLD 1965 Lab. 439) in which it had been laid down that an order passed without jurisdiction was a nullity in the eye of law. It is next submitted by learned counsel that the status of Kohli has not been properly determined in accordance with the original revenue record received from Alwar (India). The argument is that had Kohli been given an opportunity to be heard before order dated the 3rd of June, 1960, was passed, he would have explained to the Settlement Authorities as to what were his rights, status and entitlement in regard to the land which he had abandoned in India. It is submitted that para. 31 of the West Pakistan Rehabilitation & Settlement Scheme could not be invoked in the case of Kohli and his brother as they were Muslim landlords in India of Muslim tenants-at-will. It is submitted that they were not Muslim landlords of Muslims occupancy tenants under section 5 (1) (a) of the Punjab Tenancy Act, 1887. In the relevant columns of Annexure 'A/1' it is written . . . . . . " According to the learned counsel this also indicated that the nature of rights of Kohii and his brother was not covered by any section of the Tenancy Act. It was then submitted that the case of Kohli did not even fall under para. 37 (1)
(!) of the West Pakistan Rehabilitation & Settlement Scheme because the rights of his Muslim tenants fall under the other categories and sections 6 and 8 of the Tenancy Act were applicable to them. Learned counsel also referred to paras. 32 and 33 of the Rehabilitation Settlement Scheme in order to further elucidate his point. Mr. Razi Haider produced original Hindi Jamabandi received from India and stated that according to the record in his possession the rights of the tenants under Kohli and his brother were of the nature of---.." It has also been so described in Annexures'A', ~'A/1', 'B' and ~'B/1'. The argument of learned counsel in this respect is two-fold. It is contended that the rights of Kohli and his brother were not properly determined by the Settlement Authorities and, therefore, land from their khatas was cancelled illegally. It is also submitted that the claims of Kohli and his brother were not satisfied and that in total 214 P. I. Us. Of the two brothers were still outstanding. However, out of land of the two brothers, totally 165 P.1. Us. Were cancelled. This. Would mean that even if the cancelled land was taken out, there still remained 49 units unsatisfied. Thus the contention of learned counsel is that had Kohli been given an opportunity to be heard he would have brought all these facts to the notice of the Additional Settlement Commissioner (Touring and Inspection) who passed the order dated the 3rd of June, 1960. Learned counsel had also submitted that he applied for the copy of that order as indicated by Annexure 'C' (page 39 of the record) but it was never supplied to him.
4. Learned counsel for Budh Singh respondent No. l argued that it was wrong to say that Kohli had no knowledge of the order dated the 3rd of June, 1960, passed by the Additional Rehabilitation Commissioner (Touring and Inspection). It was submitted that Kohli was duly summoned :n the proceedings and the entire record was examined. It was submitted that (later when a robkar was issued and the said order was implemented on the 23rd of July, 1960, the excess land was deleted from the name of Kohli and his brother with the consent of Kohli as was clear from the order of the A: R. C. (L) recorded on Annexure 'B/1'. It was then submitted that as was apparent from Annexure 'B' and Annexure' 'B/1' these khatas were thumb marked by Kohli which also indicated that it was within his knowledge that excess land equivalent to 117 P. I. Us. Was withdrawn from the khatas of Kohli and his brother. However, Kohli did not file any appeal or revision against the order dated the 3rd of June, 1960, or the 23rd of July, 1960, of the Settlement Authorities. Therefore, it was argued that the consolidation operation started in the estate on the 27th of July, 1961, and the deleted area was shown under the ownership of respondent No. 2. In connection with consolidation operations.
Kuhli had challenged the order of the A. C. C. In 1961 b--fore the Collector, and the order of Collector in 1963 before the Commissioner. In these proceedings, particularly in his grounds of revision, before the Commissioner he had admitted that the disputed area had been withdrawn from his khala. The order of the Commissioner was challenged by Kohli before the Member Board of Revenue where again he admitted in 1963, that the disputed area had been cancelled and withdrawn from his name as far back as July, 1960 (Annexure 'R/3' and 'R/5). In the course of pendency of revision petition before the Member Board of Revenue, Kohli made a compromise with respondent No. 2 whereby respondent No. '' was given land in lieu of the disputed area and thus during this compromise. Kohli had accepted the adjustment with respondent No. 2. This compromise was reached on the 3rd of December, 1963, as was evident from Annexure 'M' attached to the writ petition. Thus, according to learned counsel throughout this period the petitioner had knowledge of the orders dated the 3rd of June, 1960, and 23rd of July, 1960, and that it could not be said that these had been passed at his back or that he had no knowledge of 'he case. Therefore, according to learned counsel for the L. Rs.Of Kohli to the effect that he came to know about those orders for the first time on the 17th of August, 1967, was a celebrate mis-- statement not supported by the record. Throughout this period he-did not challenge the said orders by way of appeal or revision before the Settlement Authorities. However, on the 28th of August, 1967, he submitted mukhbari application under section 11 of the Displaced Persons (Land Settlement) Act, in which the orders of 1960 were challenged. 1 he Additional Deputy Commissioner with power of the Chief Settlement Commissioner went into the merits of the case in spite of the fact that the proceedings had been initiated after considerable delay and yet rejected this application on the 11th of April, 1968 maintaining the earlier order dated the 3rd of June, 1960. Kohli could have challenged that order by a revision petition under section 21 of the Displaced Persons (Land Settlement) Act before the High Court or he could have filed an appeal against the same before the Settlement Commissioner but this was not done. However, he filed another mukhbari application on the 7th of May, 1968, but was also rejected on the 24th of April, 1969. He again filed a similar application, which was dismissed by the Chief Settlement Commissioner, West Pakistan, on the 29th of May, 1969. His last application was the third in the chain. The crux of the argument of learned counsel was that not only Kohli had knowledge of the orders passed in 1960, whereunder 117 P.1. Us. Were cancelled from his name but he had throughout accepted those orders and had never challenged them by way of appeal or revision, and his averment to the effect that he came to know for the first time of those orders in 1967, was a misstatement. Learned counsel for respondent No. 2 also adopted the same argument. He submitted that Kohli had knowledge respecting the cancellation of disputed area as was evident from Annexure R/3 and Annexure R/5 in 1963 and that he had challenged the orders of 1960 after a delay of 8 yeaRs.It. Was submitted by learned counsel that as Kohli or his learned counsel were conscious that the challenging of those orders by way of appeal or revision before the Settlement Authorities after such an inordinate delay would not serve his purpose he, therefore, resorted to the device of filing mukbari applications one after the other from 1967 onwards as was apparent from Annexures 'D', 'E', 'F/1', etc. It was submitted that these applications were not competent at all in the eyes of law an were moved only in order to avoid the mischief and effect of belated ness. It was argued that the present writ petition was hopelessly barred by ]aches and inordinate delay. Reliance was placed on Khalilur Rehman's v.
Lala Bishambar Das and another (PLD 1963 Kar. 234), Rafiquddln Ahmad v. Muhammad Ishaq etc. (1974 SCMR 105) and the State of Pakistan through the Secretary, Education Department, Islamabad and 3 others v. Abdul Qayyum Khan (1972 SCMR 693). It was submitted that since no appeal or revision was filed challenging the orders of 1963 by Kohli, those orders had attained finality. I have examined the record carefully. It is evident from the record that Kohli had knowledge of the orders passed in 1960 whereby the disputed area was cancelled from his name. He never challenged these orders within the period of limitation by way of an appeal or revision before the competent Settlement Authority. From the record it is evident that he has mis stated the facts when he claimed that he came to know of those orders for the first time in 1967. It is, therefore, clear that he had challenged the said orders after a lapse of more than eight years period and as he was conscious of the point of limitation, he proceeded against those orders by filing one application after the other under section 11 of the Displaced Persons (Land Settlement) Act, 1958.
5. In respect of the second argument of learned counsel for Kohli i.e. That a Settlement Officer who was specifically delegated powers under section 10 of the Displaced Persons (Land Settlement) Act, could not have withdrawn the disputed area from the name of Kohli under section 11 of the aforesaid Act, learned counsel for respondents argued that cancellation of allotment obtained in excess of entitlement due to inadvertent mistake on the part of Central Record Office, would imply that the allottee knowing his due entitlement, had tried to take benefit or advantage of the inadvertent mistake made by the Central Record Office. In such a situation, it could not be said that section 10 was not appli--cable because there had been no fraud or misrepresentation. On the con--trary, in the circumstances the allottee could be considered to have acted fraudulently.
Reliance was placed on Sher Muhammad v. The Chief Settlement Commissioner and others (1971 SCMR 339).
I have carefully examined this aspect of the case also and 1 fin force in the arguments of learned counsel for the respondents. In the present case. Kohli was allotted land on the basis of erroneous calculation by the Central Record Office. However, later when his entitlement was checked and compared with the Revenue Record received from India, it was found out that he had been allotted more land due to the mistake of the Central Record Office. However, Kohli can be deemed to have taken advantage or profit therefrom and subsequently when the excess area was withdrawn he quietly consented to the same. The argument of learned counsel for Kohli, therefore, that the disputed area could have not been withdrawn from the name of Kohli under section 10 was of no avail.
6. As for the last argument of learned counsel for Kohli that the rights of his client had not been determined properly in accordance with the original revenue record received from India. I have already mentioned that Mr. Razi Haider, Naib-Tehsildar of the Central Record Office, produced the original Handi jamabandi received from India. He stated that according to the record in his possession the rights of the tenants under Kohli and his brother were in the nature of . . . . . . . . . . . . . . ."
Consequently, as far as the facts were concerned, they controverted the stand taken by learned counsel for Kohli.
S. A. H