1. NASIM HASSAN SHAH, J.-This order will govern Civil Petitions for Special Leave to Appeals Nos.
2. 506/761 550/76 and 612/76, as they are directed against a common ,judgment dated 3-3-1976 passed by a learned Single Judge of the Lahore High Court; while disposing of two writ petitions, namely, W. P No. 143-R of 1970 and W. P. No. 112-R. Of 1975. Civil Petition No. 550 of 1976 arises out of W. P. No. 143-R of 1970, while Civil Petition No. 612 of 1.976 arises out of W. P. No. 112 of 1975, Civil Petition No. 506 of 1970 arises opt of the order passed in both the said writ petitions, inasmuch as the petitioners in the said petition had been impleaded at their own request as parties in both the writ petitions and their complaint is that no attention, indeed no reference, has been made to their case in the impugned judgment.
3. The facts briefly stated are that the petitioners in Civil Petition No. 550 of 1976 (which arises out of W. P. No. 143-R/70) claimed to be Jammu and Kashmir refugees and were allotted lend on temporary basis in village Missan, Tehsil and District Sheikhupura in the Sear 1947-48. Several attempts were made to dislodge the petitioners from the said land but they successfully resisted all such attempts, for instance, in 1952 one Ghulam Ahmad Bodla was proposed, against his claim, the area under temporary allotment of the petitioners in R. L. II in village Missan. Tehsil Ferozewala, District Sheikhupra but the petitioners objected and produced an order of the Financial Commissioner to the effect that the area under allotment of the petitioners should not be disturbed. However, the land in their temporary allotment was allotted to A.I Mohtisham (respondent No. I in C. P. No. 550/76), who was a claimant from a non-agreed area. This allotment was made by the Assistant Rehabilitation Commissioner on 29-10-1959 and 12-12-1959 and was done without canceling the petitioners' allotment or with notice to them. In fact, the allotment made to A.I Mohtisham was in village Missan and Kalar and extended to 3;381 kanals and included the allotment made in favour of the petitioners which extended only to 388 kanals, Since the allotment was made without notice to them and their possession was not disturbed their case is that they did not become aware of this order for several years. However, when they did come to know about it and complained before the Deputy Settlement Commissioner he did not adjudicate upon it mainly on the ground that the petitioner had not been able to produce the evidence to show that they were former nationals from Jammu and Kashmir State. They then filed a revision petition before the Settlement Commissioner, who by his order dated 21-2-1967, remanded the case to the Deputy Settlement Commissioner (Land), Ferozewala for reconsideration of the legal and factual aspects of the case. On remand, the Deputy Settlement Commissioner decided vide his order dated 15-7-1968, that the land could not be kept in reserve for Jammu and Kashmir refugees and that the petitioners had no case. The petitioners then filed a revision petition before the Settlement Commissioner. The learned Settlement Commissioner after detailing the facts and circum--stances of the case found that since the land had been allotted to A.I Mohtisham (respondent No. 1 in C. P. No. 550176 and petitioner No. 1 in C. P. No. 612/76) a claimant from non- agreed area, who had subsequently surrendered the land and purchased it under the Scheme prepared under Martial Law Regulation No. 89 he had no jurisdiction in the matter and, accordingly, dismissed the revision petition vide his order dated 3-4-1969. The petitioners in Civil Petition No. 550 of 1976 challenged the said orders of the Settlement Authorities by Writ Petition No. 143-8 of 1970.
4. The facts relevant to Civil Petition No. 612 of 1976 are that A.I Mohtisham (petitioner No. 1 therein and respondent No. 1 in C. P. No. 550/75), who is a claiment from non-agreed area, filed a claim under Schedules IV and V of the Registration of Claims Act and the Officer-on --Duty issued him an entitlement certificate. In lieu thereof he was allotted land in village Missan (including land allotted to the petitioners in C. P. No. 550/66) and Kalar which extended to 26,401 units. Sometimes in 1959- 60 A.I Mohtisham sold 35 acres out of the land allotted to him in favour of Peti--tioners 2-5 by a registered deed. After the promulgation of Martial Law Regulation Nos. 84 and 89. A.I Mohtisham surrendered 8663 units out of about 23000 units allotted in his favour as excess land which he opted to purchase under the Scheme for the disposal of the land surrendered under Martial Law Regulation No. 8: and amended by Martial Law Regulation No. 91. However. A.I Mohtisham paid only one instalment and thereafter he entered into an agreement with Muhammad Yousaf Kpthoria (respondent No. 3 in C. P. No 612/76) whereby he appointed him as his general attorney to pay the instalments of the aforesaid purchase price, alienate the land for that purpose and take further steps. In 1966, he learnt that the aforesaid Kothoria (respondent No. 3) had alienated the same land in favour of his own son whereupon he cancelled the general attorney ship of respondent No. 3 but the latter filed a civil suit to challenge the aforesaid action. A tem--porary injunction was issued against Respondent No. 3 restraining him from taking any further section. However ultimately a suit of Respondent No. 3 was deceased. This was challenged by A.I Mohtisham by an appeal but later on he withdrew the appeal. It may also be mentioned that Kothoria. Respondent No. 3, surrendered his rights in favour of Respondent No. 3 (Zulfiqar A.I) and respondent No. 2 (Malik Nazar Muhammad)., The last mentioned two respondents applied to the Collector to be allowed to substitute A.I Mohtisham as purchaser and ultimately the proprietors of the land. The Collector allowed this request and asked the Board of Revenue for permission to allow Respondents 1-2 to deposit the necessary instalments. The Board of Revenue refused to allow the payment of instalments. The Collector resumed the land by his order dated 24-11-1969. In the meanwhile A.I Mohtisham was allowed an opportunity to deposit the instalments under the general extension given upto 1972 but failed to do. He, however, applied on .f-7-1974 for permission to pay the instalments to the Minister of Revenue of the Punjab Government on which a report was called for from the Deputy Commissioner, Sheikhpura. But in the meanwhile, Writ Petition No. 143-R of 1978 had been filed by the petitioners in C. P. No. 550 of 1976, in which stay order had been issued to this extent of land involved therein, no action was taken. A.I Mohtisham approached the High Court for modification of the stay order issued in W. P. No. 143-R of 1970 to enable him to make the deposits.
5. The stay order was modified and he again applied to the Minister and a report was again called for from the Deputy Commissioner, Sheikhpura. However, in the meantime, the Deputy Commissioner had submitted a report to the Board of Revenue that respondents 1-2, namely, Zulfiqar A.I and Malik Nazar Muhammad may be allowed to make the deposits as they were in physical control of the area. He, therefore, made an application on 21-1-1975 to the Member, Board of Revenue that he should be allowed to deposit the balance its lump sum. This application alongwith the earlier recommendations of the Deputy Commissioner to permit respondent 1-2 to deposit the balance in lump sum was disposed of by two separate orders, both passed on 8-2-1975. So far as the prayer of A.I Mohtisham was concerned, he was informed that as he had "a dispute with certain private parties with regard to claim/right over the land opted to be purchased under M. L. R. 89/91 in village Missan. Tehsil Ferozewala District Sheikhpura with which the Board of Revenue is neither concerned nor can get involved in it at this stage. You can seek your remedy in a Civil Court, if so desired."
6. However, the prayer of Respondents 1-2 was allowed and the Deputy Commissioner, Sheikhupura was informed that the Board of Revenue had allowed Messrs Zulfiqar A.I and Malik Nazir Muhammad vendees to make payment of defaulted instalments with interest of the undisputed portion of the surrendered land. A.I Mohtisham and Petitioners 2-4 in Civil Petition No. 312/76 filed writ petition (W. P. No. 112/R/70) to challenge the order of the Member, Board of Revenue dated 8-2- 1975. This petition was pint up for hearing alongwith the earlier Writ Petition No. 143-R/70. During the hearing of this petition, the petitioners in C,. P. No. 506/76 applied in both the writ petitions to be impleaded as parties. Their case was that they were sitting tenants and in case A.I Mohtisham was not held entitled to the purchase of the land it was offered to them and consequently they claimed that they were interested parties. This prayer was allowed.
7. The learned Single Judge, so far as Writ Petition No. 143/70 was concerned, held that the petitioners therein could not succeed for a variety of reasons, namely, that the land in question was confirmed to a claimant from a non-agreed area on 29-10-1959 and 12-12-1959 but the petitioners (in the said writ petition) did not challenge these orders by means of any regular appeal or revision. These orders, therefore, became final. On the basis thereof, the land in question was dealt with and disposed' of under Martial Law Regulation No. 89 and 91 in the year 1962. The petitioners did not even take any step for another two years and, therefore, the Deputy Settlement Commissioner was justified vide his order dated 5-8-1965 in filing the miscellaneous application submitted before him.
8. Though the learned Settlement Commissioner set aside this order and remanded the case on 21- 12-1967 but this was erroneous because no revision was competent against the order dated 5-8- 1965. However, the Deputy Settlement Commis--sioner during the remand declined to interfere on 15-12-1968 and the same Settlement Commissioner this time rightly refused vide his order dated 3- 4-1959 to exercise jurisdiction holding that he had no jurisdiction in the matter whatsoever.
9. Consequently, this decision being correct there was no interference called for.
10. As regards Writ Petition No. 112-R/75, the case of petitioner No. 1, A.I Mohtisham (in the said writ petition), who bad surrendered his entire excess land under Martial Law Regulation No. 89 and 91 and was allowed to purchase the same under the relevant Scheme, contended that he alone was entitled to pay the purchase price and to by conferred proprietary rights. The learned Judge in the High Court, however, found that although the land in question was sold to the petitioner No. 1 some time in the year 1982 he has not paid a penny from his pocket to words the payment of the purchase price and with regard to the other consequ--ential matters he entered into an agreement and conferred general power of attorney-ship to respondent No. 3 by a registered deed on 15-6-1962 to do all, things which he could do himself including sale of land in question, payment of the purchase price, etc. Four years later, he purported to rescind the general power of attorney- ship by means of a notice in press but the suit filed by respondent No. 3 succeeded and a decree was passed in his favour which was allowed to become final. Therefore, whatever acts were performed by the respondent No. 3 were done in exercise of the right conferred on him by Petitioner No. 1. The latter could not, therefore, turn round and challenge the same in the discretionary jurisdiction of the High Court. Moreover, as late as on 10-8-1968 the Petitioner No. 1 ratified all the acts of the respondents by means of registered document. This document was filed along-with written statement by respondent No. 1-3 (in W. P. No. 112-R/75) on 12-6-1974. But was not repudiated.
11. The affidavit filed at the end of the arguments denying the execution of the document could not be accepted being an afterthought. So far as petitioners 2-5 are concerned they were held also to have no case. They had based their claim on the premises that part of the property in dispute was earlier sold to them. However, when the petitioner No. 1 surrendered his land along-with others under M. L. Rs. 89 and 91, the petitioners Nos. 2-5 never came forward to claim their right nor did they contest the first petition in which the petitioners in Writ petition No. 143-R of 1970 sought the land being Jammu & Kashmir refugees. As the action taken under M. L. Rs. 89 and 91 could not be challenged by Petitioners 2-5 after lapse of more than 14 years they were held to have no case.
12. Moreover, these petitioners could not maintain a joint petition with petitioner No. 1 when their claim was inconsistent with the act of Petitioner No. 1 surrendering the entire land. The Writ Petition No. 112-11/75 was held to be without force and dismissed. So far as the claim of the petitioners in Civil Petition No. 506/76 was concerned, the same was not considered presumably on the ground that after holding that respondents 1-2 were entitled to purchase the land they ceased to have any right to get it even under Para. 5 of the relevant Scheme. The petitioners in Petition No. 506 of 1976 are aggrieved because no mention at all has been made of their case in the entire judgment.
13. After hearing the learned counsel for the parties, we find no force in Civil Petition No. 612 of 1976 (filed by A.I Mohtisham) and Civil Petition No. 506 of 1976 (file) by Manzoor Hussain, etc.). Though no reasons have been given for not accepting the claim of Manzoor Hussain cogent reasons have teen given for dismissal of the writ petition of A.I Mohtisham, etc. Namely, Writ Petition No. 112-R of 1975, out of which Civil Petition No. 612 of 1976 has arisen.
14. Major Ishaq Muhammad Khan, in support of this petition, raised only a single point, namely, that the orders of the Member, Board of Revenue (Colonies) allowing respondents 1-2, namely, Zulfiqar A.I and Malik Nazar Muhammad vendees to make payment of the defaulted instalments was illegal as it was in conflict with para. 10 of the Scheme for disposal of land surrender under M. L. R. 89 as amended by M. L. R.
91. Para. :0 is in the following terms :- "10. The purchaser shall not, without the sanction in writing of the Collector, alienate any portion of the land sold, before he had paid the entire purchase price and executed deed of conveyance prescribed for similar alienation in the region concerned."
15. Ch. Muhammad Sadiq appearing for the respondents in this petition has drawn our attention to a memo. No. 1723-71-IV 1976-C.S. Date 10th June, 1971, wherein a clarification has been issued with regard to the scope of Para. 10. This is in the following words "A careful reading of paragraph 10 of the Scheme for the disposal of surrendered land would show that alienation is possible with the sanction, in writing, of the Collector, before payment of price execution of deed of conveyance. But this power is to be used by the Collector in really genuine cases."
16. This Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan, etc. (PLD 1965SC690) where a contention was raised that whenever sale of land is prohibited an agreement for sale without sanction should also be regarded as prohibited on grounds of public policy, it was held that there was little force in this contention. Fn that case Section 4 of the Kabul River Project (Control and Prevention of Speculation in Land) Act, 1948 fell for interpretation and it was observed that the said provision only prohibited alienation of land. It was added that "if there is some condition precedent to the validity of a transfer it is open to the parties to enter into an agreement subject compliance with the condition precedent. The attack on the agreement for sale on the ground of public policy can only succeed if it is shown that the intention of the agreement was to defeat a law. If the parties that enter into an agreement for sale contemplate only a sale with the requisite sanction they are not making any effort to defeat the law." In the present case as theagreement of sale has finally been approved by the requisite authority no objection can be validly raised against it.
17. Major Ishaq Muhammad Khan relied upon Muhammad Siddique Qureshi and others v. S. Nasir Ahmad Shah an others (PLD 1980 Rev. 62) for acceptance of the contrary view. However, on perusal of the case, we find that it is distinguish--able. In any case, the petitioners in Civil Petition No. 612 of 1976 have no case for relief in exercise of the discretionary jurisdiction of this Court to grant leave to appeal in view of their conduct as elaborately discussed in the judgment of the High Court. Consequently, Civil Petition No. 612 of 1976 must fail and is rejected hereby.
18. Similarly, Civil Petition No. 506 of 1976 must also fail as respondents 1-2 have stepped into the shoes of A.I Mohtisham and the land is no longer available for transfer to the sitting tenant.
19. However, there is some force in the contention raised by Mr. FAZLE Mahmood in Civil Petition No. 550 of 1976. The petitioners' case was that they being Jammu & Kashmir refugees the area allotted to them was for purposes of their maintenance and could not be allotted to other displaced persons in lieu of their verified claim, in view of para. 4 (a) (ix) Part I of the Rehabilitation Settlement Scheme and the allotment of the said land in favour of A.I Mohtisham in 1959 without notice to the petitioners and without cancelling their allotment was void. In this connection, reliance is placed on Dost Muhammad and others v. Mst. Badal Jan and others (1976 SCMR 112) andJan Muhammad and others v. Naseebullah and another (PLD 1979 SC 385) wherein it was observed that where land is temporarily allotted to Jammu & Kashmir refugees for free rations and such persons all along continue in possession ofsuch land, the cancellation of allotment of such land behind the back of the allottees and without notice to them is not permissible under the law. The question whether temporary allotments to Jammu & Kashmir refugee of such nature cannot be cancelled is already engaging the attention of this Court, in Civil Petitions Nos. 585/76, 586/75 and Civil Petition No. 20/76 in which cases leave to appeal has already been granted.
20. Ch. Muhammad Sadiq, learned counsel for the, respondents, however, argued that the petitioners Civil Petition No. 55U/76 were not refugees from Jammu & Kashmir but from Gurdaspur District, (East Punjab) and produced some documents in support of this plea. However, we find that n the detailed order passed by the Settlement Commissioner dated 3-4-1969 Dismissing the revision petition of the petitioners although the arguments of both sides on this point have been noticed but no final decision has been given ,n this point on the ground that as the matter had been dealt with under r4. L. R. &9, it was not open to the Court to set aside the orders, right of wrong as they were immune to challenge before the High Court and the Supreme Court.
21. The above view has .Been criticised by Mr. Fazle Mahmood, learned counsel for the petitioners, who cited before us the decision in Yasin Khm and another v. Settlement and Rehabilitation Commissioner Karachi and others (PLD 1979 SC 385) and argued that if the Settlement authorities have passed an order without notice, such an order would be void and a nullity in law and any subsequent order on the basis of the said void order would also be null and void. He relied on the observations in the judgment that paras. 5 and 7 of M. L. R. 89 were not concerned with allotment; temporary or permanent made by the Settlement authorities under the Displaced Persons (Land Settlement) Act, 1958. He has also relied upon The Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975SC331) wherein it was held that M. L.,R. 89 was not promulgated to condone all frauds and irregularities, which might have been committed by claimants.
22. The question arising in Civil Petition No. 550 of 1976, therefore, require further consideration. We grant leave to appeal.
23. Security Rs. 2,000.
24. To be made ready on the present record with liberty to the parties to add further documents, if any.
25. The overall result is that leave to appeal is refused in Civil Petition No. 506 of 1976 and Civil Petition No. 612 of 1976, but granted in Civil Petition No. 550 of 1976, which will be heard along-with Civil Petitions Nos. 585/76, 586/76 and 20/76.