' This writ petition under Article 9 of the Provisional Constitution Order, 1981, calls in question order dated 18-44982 of the Collector, Kasur, order, dated 11-5-1982 of the Additional Commissioner (Revenue), Lahore Division, Lahore, and order, dated 17-10-1982 of the Member (Colonies) Board of Revenue, Lahore.
2. The facts relevant for the disposal of this writ petition are that land measuring 8 Kanals and 4 Marlas situated in village Jabo Mall, Tehsil Kasur, was allotted to one Allah Din by order, dated 27-9- 1956 passed by the Assistant Rehabilitation Commissioner (Lands), Kasur. Relevant entries were also made in RL-II Register. Thereafter, Allah Din allegedly died in the year 1959 and the holding was mutated in favour of his son, Farzand Ali respondent No. 23 who transferred all his rights and interest in favour of the petitioner by way of oral sale in consideration of Rs, 3,000 on 26-3-1965.
Mutation incorporating the sale was also made in his favour. Subsequently, after a lapse of 25 years, the Collector, Kasur, by order, dated 18-4.1982 cancelled the allotment on the ground that the land, in dispute, was not evacuee property as per revenue record and the disputed Khasra No. 748 was 'ghair mumkin abadi deh". These entries were consistently shown in the jarnabandis and khasra girdawari for the year 1946-47 up-to-date. He further held, after appreciating the documentary evidence, that the disputed land was state land and was not transferable to Allah Din in the manner it was transferred. The petitioner's appeal against this order was dismissed by the Additional Commissioner (Revenue), Lahore Division, Lahore by order dated 18-5-1982 on the ground that the petitioner failed to produce any documentary evidence in support of his claim for the allotment. He also concurred with the findings recorded by the Collector that as per jamabandi for the relevant year, the land, in question, proved to be a State land. The revision petition filed by the petitioner was also dismissed by the learned Member (Colonies), Board of Revenue by his order, dated 17-10-1982 on the ground that it was not competent.
3. Learned counsel for the petitioner contends that order, dated 27-9-1956 passed by the Assistant Rehabilitation Commissioner (Lands), attained finality within the ambit of section 22 of the Displaced Persons (Land Settlement) Act (No. XLVIII, of 1958). Learned counsel further submitted that after the repeal of Evacuee Laws, there were no "pending proceedings" within the purview of section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (No. XIV of 1975), therefore, the allotment of the disputed land in favour of the predecessor-in-interest of the petitioner was not open to challenge and was hit by the doctrine of past and closed transaction.
Finally it is contended that the land was originally treated as evacuee land when it was transferred by the Assistant Rehabilitation Commissioner. Therefore, the respondents are estopped to take up a different stand after a lapse of two decades particularly, when a valuable right accrued to the petitioner as he is a bona fide purchaser of the land, in dispute. He further argued that in terms of para. 2 (3) of Supplementary Scheme No. II, the nature of land depends upon direct use for which the land was being put at the time of independence i. e. Before 15-8-1947. Reliance was placed on Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another (i).
4. Ch. Nazir Ahmed counsel for respondent No. 3 submitted that according to the entries made in the jamabandi for the years 1942-43; the disputed Khasra No. 748 was ghair mumkin abadi deh, therefore, that was the use to which the land was being put at the relevant time. He submits that the mere wrong entries in RL-11 Register will not change nature of use of the land. He, therefore, submitted that the dictum laid down in Nafeesa Bano's case, does not advance the case, of the petitioner. He placed reliance on Hamid Husain v. Government of West Pakistan and others (2) to contend that the disputed Khasra being never used for agriculture or for the purpose subservient to agriculture, was not open to allotment under the Rehabilitation Settlement Scheme. Ch. Nazir Ahmed also submitted that the land, in dispute, was never treated as agricultural property, in that, mere allotment of land to a particular person, does not ipso facto lead to the conclusion that it was treated as agricultural land by the Revenue authorities. He further stated that there is no documentary or oral evidence on record to prove that the Assistant Rehabilitation Commissioner consciously applied his mind while allotting the disputed Khasra to the original transferee. In support of his contention, learned counsel for respondent No. 3 placed reliance on Azam Ali and others v. The Custodian of Evecuee Property West Pakistan Lahore and another (3) wherein learned members of the Division Bench, while examining the scope of section 3-A of the Pakistan (Administration of Evacuee Property) Act (No. XIII of 1957), held that the words "treated as evacuee property" would mean that character of property must have been determined by the Rehabilitation authorities or Custodian by judicial process after notice to the owner and mere allotment as evacuee property is not enough to treat it as evacuee property. He further argued that the original allotment was void ab initio, therefore, such an order was not even required to be set aside formally in any proceedings notwithstanding issuance of the P. T. D. In support of his contention reliance wait placed on Abdul Majid v. The Settlement Commissioner, Karachi and others (4) wherein is was held that where the property is found to be an evacuee trust property, no P. T., 0. In respect of such property could validly be issued, therefore, notwithstanding issuance of the P. T.
0., the property did not go out of compensation pool. It is submitted that that facts of this case are on all fours with dictum laid down in Abdul Majid's case.
5. Mr. Shaukat Ali Mahar learned counsel for the petitioner vehemently argued in rebuttal that after issuance of P. T. D., the Settlement Commissioner had become functus officio to interfere with the allotment. Even on pretext of fraud, the transfer order cannot be inter-
(1) PLD 1969 Lah. 480 (2) 1974 SCMR 356
(3) PLD 1968 Lab. 148 (4) 1975 SCMR 423 ' fered with and the only remedy in such cases is to invoke the jurisdiction of the civil Court. In support of his contention learned counsel for the petitioner placed reliance on Muhammad Ismail v. Abdul Rashid and 2 others (1) wherein it was held that in the exercise of writ jurisdiction, the Court is not bound to strike down a void order regardless of consequence of such decision and a writ against a void order may be refused if meant to enable petitioner to circumvent provisions of a statute of limitation or if petitioner is estopped by his conduct from challenging the order or guilty of laches. The authority cited by the learned counsel is against him, in that, if the original order is void then writ can be refused so that the petitioner may not retain his ill-gotten wealth. Learned counsel next contended that respondents Nos. 4 to 22 were informers, therefore, they had no locus standi to move the Settlement Department for the cancellation of the land In support of his contention reliance was placed on Liaqat Ali v. Deputy Administrator/Deputy Settlement Commissioner, Faisalabad and another (2).
6. I have heard arguments of learned counsel for the parties and have also perused the record and considered authorities cited at the Bar.
7. In my view no legitimate exception can be taken to a finding of fact recorded by the Collector after considering evidence available to him that land, in dispute, was not transferable to Allah Din.
No misreading of such evidence has been shown on record. Order dated 27-9-1956 of the Assistant Rehabilitation Commissioner (Land), Kasur, was void, therefore, A the petitioner was not entitled to protection available under section 41 of Transfer of Property Act (IV of 1882) merely on the ground that he was bona fide purchaser for value. Neither the original transferee nor the vendor had any right, title or interest in the demised property. The impugned order is just and fair.
8. I am, therefore, not inclined to exercise my discretionary constitutional jurisdiction notwithstanding the fact that the Collector was not competent to pass the impugned order after repeal of Evacuee Laws as contemplated by section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). The petitioner is not entitled B to seek equitable relief for retaining his ill-gotten weath. Refer Muhammad Ismail v. Abdul Rashid and 2 others, S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (3) and Nawab Syed Raunaq Ali etc. v.
The Chief Settlement Commissioner and others (4).
' In view of the above, the writ petition fails and is hereby dismissed with no order as to costs.
(1) 1983 SCMR 168 (2) 1983 CLC 306
(3) 1978 SCMR 367 (4) PLD 1973 SC 236