1. SALAHUDDIN AHMED, J.-This petition is directed against an order of a Division Bench of the High Court at Lahore, passed in a Letters Patent Appeal.
2. Respondent No. 1, Riasat Ali is a refugee from an agreed area and was `sitting allottee' while the petitioners are refugees from non-agreed areas and they applied for allotment of the disputed land later than the said respondent.
3. It appears that respondent No. 1 had verified claim of 3,287 units. He obtained temporary allotment of land equivalent to 240 units in village Piplan, in the District of Mianwali and it was confirmed on 21-9-1951. On the 10th October 1959, more lands equivalent to 747 units in the same village were allotted and confirmed in his favour. Thus he became a `sitting allottee' in the said village. A balance of 2,300 unsatisfied units was left in favour of the respondent. Subsequently, lands equivalent to 1,350 units became available for allotment in the said village and the respondent applied for the allotment of the lands in lieu of his unsatisfied claim.
4. One Shamsuddin, husband of petitioner No. 1, and father of the rest of the petitioners, are refugees from non-agreed areas and they too had some unsatisfied units standing in their favour in the District of Lahore, and they had then transferred to village Piplan, District Mianwali and succeeded in obtaining allotment on the 5th of February 1960, of the disputed lands in village Piplan in preference to the claim of respondent No. 1. Respondent No. 1 having felt aggrieved by this allotment, appealed before the Deputy Rehabilitation Commissioner (Lands), Jauharabad but the appeal was dismissed on the 8th June 1960. The respondent's revisional application, too, was rejected by the Rehabilitation Commissioner, Sargodha, on the 15th October 1960. The respondent then filed a writ petition before the High Court on the 17th December 1960. During the pendency of the writ petition, Martial Law Regulation No. 84 was promulgated on 2-1-1960. This Regulation was reconstituted as Martial Law Regulation No. 89 on 1-9-1961 and in pursuance of paragraph 7 of the Regulation the aforesaid allotment of land in favour of Shamsuddin and petitioner No. 6 having stood cancelled, the disputed lands were re-allotted to them. On the 24th June 1962; the aforesaid writ petition was dismissed whereupon respondent No. 1 filed a Letters Patent Appeal. The High Court in this appeal held that the original order of allotment dated 5-2-1960 in favour of the said Shamsuddin and petitioner No. 6 had been made under the Supplementary Rural Scheme under the Displaced Persons (Land Settlement) Act, 1958, and it was accordingly, open to challenge by way of appeal and revision under the said Act, and the remedy thus available to respondent No. 1 was not barred by paragraphs 12 and 15 of Martial Law Regulation No. 89. The learned Judges of the Division Bench, therefore, disagreed with the view of the learned Single Judge of the High Court in the said writ petition on this point. On merits, however, the Division Bench concurred with the findings of the learned Single Judge and allowed the Letters Patent Appeal in favour of respondent No. 1.
5. It may be mentioned here that the said Shamsuddin died during the pendency of the Letters Patent Appeal and his heirs, namely, petitioners Nos. 1 to 5, were accordingly, substituted in his place.
6. It appears that the claim of respondent No. 1 in respect of his unsatisfied units which had been transferred to Sargodha was sent back to village Piplan and it was pending there when the disputed allotment was made in favour of the said Shamsuddin and petitioner No. 6 on the 5th of February 1960. On this point the learned Judges of the Division Bench of the High Court agreed with the learned Single Judge and held that the said claim of respondent No. 1 was indeed pending in village Piplan at the relevant time and it was available to him in village Piplan at the time. The learned Judges further held that respondent No. 1 was entitled to the transfer of the disputed land as a `sitting allottee' in preference to the said Shamsuddin and petitioner No. 6. The contention advanced on behalf of the petitioners that the aforesaid claim of respondent No. 1 had been sent to the Central Record Room for verification is untenable inasmuch as no order in support of this contention has been produced before the Court.
7. In the facts and circumstances of the case it is evident that the original allotment of land in favour of the said Shamsuddin and petitioner No. 6 having been made under the Displaced Persons (Land Settlement) Act, 1958, and the Scheme thereunder, it was open to appeal and revision thereunder, and this is precisely the question that is before this Court. This question, as will be presently seen, is not affected by paragraph 7 of Martial Law Regulation No. 89. Paragraph 7 of Martial Law Regulation No. 89 reads as follows:- "7. Fresh allotment and cancellation of previous certificates and allotment.-(1) All Certificates in Forms QPR-V and UR-V and certificates showing title to land issued under the original Regulation and any allotment of land made on the basis of any such certificate shall stand cancelled and shall be deemed never to have been issued or made.
(2) Fresh orders for the allotment of land shall be made on the basis of Entitlement Certificates Provided that-
(i) where an allotment order had been issued to any claimant such order may be modified so as to conform to the Entitlement Certificate and such modified order shall be deemed to be a fresh allotment order made under this paragraph; and
(ii) the fresh allotment order shall, as far as may be, include the land previously allotted to a claimant."
8. It is thus apparent that the very basis of the provisions under paragraph 7 is the entitlement certificate issued under the aforesaid Act and if any such certificate on the basis of which an allotment is made is issued in contravention of the provisions of the said Act, it is open to appeal and revision thereunder. Martial Law Regulation No. 8 9 does not affect this position. On the contrary, as we have said already, it is based on the entitlement certificate issued under the Act, as is clear from the following provisions of paragraph 7 of the Regulation :- "(2) Fresh orders for the allotment of land shall be made on the basis of Entitlement Certificates . . . . . . . Such order may be modified so as to conform to the Entitlement Certificate . . . . ." and "the fresh allotment order shall, as far as may be, include the land previously allotted to a claimant."
9. Thus the modified order of entitlement issued to the said Shamsuddin and petitioner No. 6 under Martial Law Regulation No. 89 is liable to fail if it be found that the original order of allotment in their favour was illegal.
10. It may have been noticed that the learned Single Judge of the High Court dismissed the said writ petition on the ground that the modified order of allotment in favour of the said Shamsuddin and petitioner No. 6 was made under paragraph 7 of Martial Law Regulation No. 89 and therefore, could not be challenged before the High Court in view of the provisions of paragraphs 12 and 15 of the Martial Law Regulation No. 89. Paragraphs 12 and 15 of this Regulation are as follows :---- "12. Finality of orders.-Any order passed or Entitlement Certificate issued under this Regulation shall be final and shall not be questioned in any Court.
15. Bar to jurisdiction of Courts, etc.-(1) No provision of this Regulation or any order made or any Scheme prepared thereunder shall be called in question in any Court including the High Court and the Supreme Court and no such Court or any other authority shall have jurisdiction in respect of any matter for the determination of which provisions have been made by or under this Regulation.
(2) No such Court or authority as aforesaid shall be com--petent to grant any injunction or order of any other kind whatever in relation to any proceeding under this Regulation or any Order of Scheme made thereunder or in relation to anything done or intended to be done by any officer exercising any power or discharging any function under this Regulation."
11. The learned Single Judge, however, clearly came to the finding that the allotment initially made in their favour was not justified.
12. The Division Bench of the High Court in the Letters Patent Appeal has held that the original allotment of the disputed land in favour of the said Shamsuddin and petitioner No. 6 having formed the basis of the modified order of allotment in their favour was open to challenge under the Displaced Persons (Land Settlement) Act, 1958. The Division Bench then proceeded to consider the merits of the case, and having come to the finding that the original allotment was indeed illegal, concurred with the finding of the learned Single Judge in this respect. The Bench, accordingly, allowed the Letters Patent Appeal.
13. The High Court's view on the jurisdiction of the Court to deal with the impugned order appears to receive support from a decision of this Court in Abdul Rehman v. Settlement and Rehabilitation Commissioner (PLD 1966 SC 362). In the case under report it has been held that the right already accrued before the promulgation of the Martial Law Regulation is not affected by the Regulation in the absence of a clear provision to that effect in the Regulation. The bar to jurisdiction of Courts, as prescribed in section 15 of Martial Law Regulation No. 89, is applicable only to an order made or in a Scheme prepared thereunder.
14. As has been noticed already, the impugned order of allotment dated the 5th February 1960, is not such an order for the respondent challenged the very basis of this order which was the original order of allotment in favour of the respondent. The right to challenge the legality of the original order under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, having already accrued to the respondent, he preferred first an appeal and then revision from the said order. The revision was dismissed on the 15th October 1960, and in prosecution of his right the respondent had filed writ petition on the 17th December 1960. It was during the pendency of this Writ Petition that Martial Law Regulation No. 89 was promulgated on the 1st September 1961. This regulation not having specifically taken away the aforesaid right of the respondent, the High Court was entitled to enforce it and that is exactly what the High Court did when ultimately it allowed the respondent's Letters Patent Appeal.
15. We do not think that this is a fit' case for our interference and the petition is, accordingly, dismissed.