' GUL MUHAMMAD KHAN, J.-The appellants challenge, through this Intra-Court Appeal, the order dated 22nd May, 1982 passed by a learned Single 1141fe of this court, in W.P. N9, 441 of 1979. It was a common order passed with regard to a number of writ petitions. The Intra Court Appeals Nos. 204 of 1982 and 206 to 214 of 1982 and Writ Petition No, 391-R of 1982, arising out of some of those orders, shall also be disposed of alonghwith it.
2. Briefly, the facts leading to these appeals are that the appellant were originally granted land under the Criminal Tribes Settlement Scheme during 1930 to 1935 in various Chaks. On migration of the non-Muslim members of the Criminal Tribes of District Vehari, to India, after the creation of Pakistan, the appellants or their predecessors-in-interest were shifted by the competent revenue authority, to this estate, in the year 1948. The scheme was that the members of the criminal tribes may not remain scattered in so many villages. It was, thus necessarily, a sort of exchange of their holdings and they were shifted to the nevi lands, either in the same Chak or in another.
3. The lands originally allotted and in possession of the appellants were allotted to a Co-operative Farming Society after resumption, allegedly, at the instance of the Provincial Government, as State land. It is stated that the members of that Society have been granted proprietary rights also. The above ground is taken to show that the appellants did not abandon, of their own, their previous holdings and that the whole thing was done under a scheme of the Government itself. A scrutiny report, dated 30th January, 1959 prepared by the Colony Assistant/ Collector, Multan (Annexure 'K' to the Writ Petition) mentions all the details of the exchange.
4. The scheme under which the appellants had been granted the land originally in 1930-35 justifies the act of the Government. It contained a stipulation, as condition No, 9, providing that "if a tenant is transferred from one agricultural settlement to another (reservation) the tenant shall surrender bus tenancy on condition that he was granted an equivalent area plus compensation for improvement." Under condition No, 27, the tenants who have paid all sums due to the Government and observed all the stipulations including good behaviour, shall be entitled to occupancy rights.
So the shifting of the appellants to the new area is claimed by the appellants under condition No, 9 and it is stated that as a period of more than 15 years has also expired since the original allotment, they are entitled to proprietary rights.
5. The facts show that the Board of Revenue issued a letter, dated 3rd November, 1959 in pursuance to which the Colony Assistant ordered, on 23rd October, 1962 that the new holdings of the appellants be allotted to refugee-claimants. This order is stated to have also been acted upon in certain cases. Aggrieved with it some appeals were filed in the Court of Deputy Settlement Commissioner (Lands) and the Additional Commissioner, Multan. They, in the exercise of their powers conferred on them by the Displaced Persons (Land Settlement) Act, 1958 quashed the aforesaid order, dated 23rd October, 1962 or the allotments made. Tb result was that the allotments of the appellants stood restored. Admittedly, no appeals or revisions were filed against the orders passed by the Additional Commissioner or the Deputy Settlement Commissioner, with regard to the lands involved in the cases in hand. Consequently, the allotments restored in favour of the appellants were finalized.
6. Some of the members of the Criminal Tribes (not party to any of the present cases), however, filed directly in the High Court, writ petitions which were allowed. The Provincial Government but none of the refugee-claimant-allottees challenged the order of the High Court before the Supreme Court. Those cases have been separated from the present ones to be disposed of separately. The Supreme Court, remanded them for the consideration of the questions whether the land involved therein was evacuee property and if the allotment and shifting of the members of the Criminal Tribes had been made validly and by the competent authority. Mian Faiz Rasul, Assistant Commissioner/Collector/Additional Settlement Commissioner (L) Vehari took up those cases for decision. During the hearing, he decided to make a reference to the Chief Settlement Commissioner, Board of Revenue, Lahore, for declaring the property involved therein as evacuee property by the Custodian.
7. The Chief Settlement Commissioner, however, directed him to take action in accordance with the judgment of the Supreme Court. He also informed him about the decisions of the Custodian, the High Court and the Supreme Court on the point. Reference was also made then to the cases decided by the Custodian, the High Court and the Supreme Court whereby such a property held by a non-Muslim members of a Criminal Tribe was held to be an evacuee property under the Rehabilitation Laws.
8. The Assistant Commissioner/Collector/Additional Settlement Commissioner then took up the cases on 12th of December, 1978 and held' that all the property left by the members of non-Muslim Criminal Tribes' in their occupancy rights, as well as non-occupancy rights, shall be treated C as evacuee property, for all purposes, for rehabilitation of displaced persons against their verified claims. The objection, on behalf of the members of the Criminal Tribes, who were party thereto, that no declaration could be given about the status of the property in 1978 was rejected, on the ground that the said status had been declared by the High Court as well as the Supreme Court.
9. He, however, observed that : " This land was to be acquired under section 4 of the Displaced Persons (Land Settlement) Act, 1958, in favour of the Central Government. Now this compliance under section 4 of the Displaced Persons (Land Settlement) Act, 1958, acquiring this land in favour of the Central Government will be made by the concerned field staff."
' He further observed : " Thus, I also hold this property was rightly confirmed to the rightful claimants against their verified claims in this Chak and restore such allotments made in their favour during the year 1962 and afterwards. The allotments cancelled according to the orders of the Additional Commissioner (Revenue) Multan, vide his order, dated 1st December, 1966 in appeal Muhammad Ishaque and others v. State, are also restored in favour of said displaced persons who were allotted the area of non-Muslim members of Criminal Tribes, having occupancy rights as well as non-occupancy rights."
10. In pursuance of his findings given above, the Assistant Commissioner/Collector Additional Settlement Commissioner (L) ordered that the appellants who were affected will be ejected from the land in their possession, in accordance with law. In addition he directed that they can be accommodated on State land available in this Chak or in other Chaks meant for Criminal Tribes, if they ate found eligible for allotment under the Criminal Tribe Scheme.
11. The appellants challenged that order in the High Court but failed and hence this Intra-Court Appeals. The learned counsel for the respondents raised a preliminary objection that the Intra- Court Appeal was not maintainable, in view of section 3 of the Law Reforms Ordinance, 1972, as the order impugned in the writ petition, had been passed by the Collector and the same was appealable and revisable. This contention, however, has no force. The main burden of the impugned order of the Assistant Commissioner/Collector/Additional Settlemen Commissioner, was that the property in dispute was declared to be evacuee and the allotments made in favour of the refugee claimants were restored. It was in consequence thereof that the same officer acted a Collector and directed that the appellants be ejected from the land in question in accordance with law and they should pay six times the land revenue for the period they remained in possession.
Admittedly, in appeal or revision was available against the first part of the order, before any of the authorities, as the relevant law, under which the proceeding were taken, had been repealed and only the pending proceedings, with no incidence of appeal or revision, had to continue. Thus, the impugned order would have been appealable only if the appellants had chosen to accept the first part. That they did not do. Consequently, the Intra Court Appeal is competent.
12. On merit, the learned counsel for the appellants submitted that they were neither a party in the remand proceedings taken under the order of the Supreme Court nor bad they even been summoned. The first position is admitted by the respondents and the second is not denied. As said above, there was no dispute with regard to the holdings of the appellants. The Assistant Commissioner/Collector/Additional Settlement Commissioner, thus unjustifiably and illegally threw his net wide enough to include unreasonably the appellants. His order, therefore, could not have been maintained either on the ground of proprietary or legality.
13. Again, the appellants, according to their stand, were required by a competent authority, 1948 to abandon their previous holdings, validly allotted to them, and shift to the land in dispute. This factual position has not been checked up in individual cases though it was a necessary requirement of the order of the Supreme Court. The new holdings could however, be allotted to him under the condition No, 9 mentioned above. Even this aspect of the case has not been considered.
In any case, if due to no fault of theirs and rather to their inconvenience, loss and dislocation, the appellants had been shifted to the present sites, they could not have been ousted therefrom, after a lapse of 30 years when the allotments made to refugee-claimants stood cancelled and the orders never challenged.
14. It is to be noted further that the Courts of no civilized country will allow to be perpetuated an act which on the face of it is unjust as well as illegal. Here, if the competent authorities of the Government, first of all took away the holdings of the appellants and offered their proprietary rights to the members of Co-operative Housing Society, it could in no case go back from that act so as to later deprive the ousters, of the new holdings given in exchange. It may also be mentioned that the holdings which the Deputy Settlement Commissioner or the Settlement Commissioner restored on their appeals, after cancelling the allotment made to the refugee-claimants in 1962, could in no case be restored by an Additional Settlement Commissioner, an officer, lower in rank, particularly, when those aggrieved had never challenged the orders, passed against them as far back as 12 years.
15. The learned Advocate-General who appeared on behalf of the respondents/Provincial Government admitted that the orders of Deputy Settlement Commissioner or the Additional Settlement Commissioner/ Settlement Commissioner cancelling the allotment of the refugee claimants made in 1962, had never been challenged. He further stated that even the Government did not file any proceedings against the appellants in respect of those orders. His plea, however, was that if no occupancy rights had accrued in favour of the evacuee-allottees, the property left by them could not be considered to be an evacuee property and, therefore, it was State land. This plea, however, has no bearing on the cases in hand. The extent and the scope of this plea may probably be considered in the cases which had been remanded by the Supreme Court. There being no dispute about the land in dispute, it was not subjected to the jurisdiction' of the Assistant Commissioner/Collector/Additional Settlement Commissioner and he should not have passed an order of a general nature so as to create a plethora of un-jstified litigation.
16. Ch. Ghulam Sarwar, Advocate, wanted to represent the refugee-claimants. He was asked if any appeal, revision or other proceedings had been taken by anyone of such allottees, against the order of the Additional Commissioner/Settlement Commissioner, but he denied. He also denied having been impleaded in any of the present appeals, as a party. He also was not in a position to say that if the individual claimants allottees of the lands, involved in the present appeals had not taken away their claims and got alternate allotment elsewhere. In this view of the matter Mr. Ghulam Sarwar was not permitted to argue the cases.
17. The position, as it appears from the facts given above, is that any allotment made, to any refugee-claimant, in respect of any land involved in these appeals, stood cancelled by -the Additional Commis sioner/Settlement Commissioner and the Deputy Settlement Commissioner and the same was never restored before the Evacuee Property Displaced Persons Laws (Repeal)
Ordinance, 1974, enforced w,e,f, 1st July, 1974. Thus, on the enforcement of above Ordinance, any evacuee land which was not allotted, vested automatically in the Provincial Government and had to be sold to the persons in possession, if they so desired, under the said Ordinance or the similar Act passed in 1975. If, on the other hand, the said land had still the status of the State land, it was to be governed by the conditions of the Criminal Tribe Scheme, under which the allottees were entitled to acquire occupancy/proprietary rights, after 15 years. Thus, under both the sets of provisions, applicable to any one of the two different types of land, the present appellants would be entitled to claim their rights as owners, in case they had fulfilled the conditions as laid down in the two statutes or schemes made thereunder. The ouster of the appellants from the lands in their possession by the Assistant Commissioner/Collector/Additional Settlement Commissioner is unlawful on that ground also.
18. Apart from the reasons given above, the order of the Assistant Commissioner/Additional Settlement Commissioner (L) is, even otherwise, illegal. The two portions of his order reproduced in para. 9 above would go to show that if the land in dispute has yet to be acquired under section 4 of the Displaced Persons (Land Settlement) Act, it was not a part of the compensation pool. How, then could it be allotted to refugees in 1962 ? Further, how could the Additional Settlement Commissioner restore those allotments before the said property had been acquired, under the said Act. Thus, even on the basis of the very argument advanced by the Assistant Commissioner/Additional Settlement Commissioner, the allotments made in 1962 to the refugee were void ab) initio and could not have been restored.
19. In any case, as soon as the Assistant Commissioner/Additional Settlement Commissioner came to the conclusion that the land in question was an evacuee property, it shall be deemed to have vested in the Provincial Government with effect from 1st July, 1975 as there was no subsisting allotment. Further, as the refugee claimants had not challenged their allotments, it will not he considered to be a pending proceedings, in the eye of Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. Even the Assistant Commissioner/Additional Settlement Commissioner who took up the cases remanded by the Supreme Court could consider no case other than the one specifically entrusted to him. His jurisdiction as Additional Settlement Commissioner stood determined under law, with regard to all matters, other than the pending proceedings or cases remanded to him as the notified officer. At any rate, he had no such suo mote powers with regard to the cases of the appellants. Consequently, his proceedings vis-a-vis the appellants are void ab initio and of no legal effect.
For the reasons given above, this Intra-Court Appeal and other connected matters are allowed. The order of the learned Single Judge is set aside, the writ petition of the present appellants is accepted and the impugned order of the Assistant Commissioner/Collector/Additional Settlement Commissioner, dated 12th December, 1978, is declared to be without lawful authority and of no legal effect. The result is that the holdings of the appellants, with the rights and obligations as were attached to them, prior to 12th December, 1978 shall remain with them. There will be no order as to costs.