' This judgment will dispose of three writ petitions (W.P.375/R of 1981, W.P.508-R/82 and W.P.169- R/84) as the questions of fact and law involved in these petitions are one and the same.
2. The controversy raised in these petitions relates to land measuring 374 Kanals 1 Marla situated in village Jaitta, Tehsil and District Sheikhupura. This land was allegedly allotted to Anees Mian, respondent against his verified claim vide order, dated 29-6-1973. This land was then sold on 26- 10-1979 to respondents Nos. 5 to 11 in W.P. No. 375-R of 1981 through Sohni the alleged attorney of Anees Mian respondent. Respondents Nos. 8 to 11 in W.P.No.375-R/81 through Sohni the alleged attorney of Anees Mian respondent. Respondents Nos. 8 to 11 are sons of Sohni while others, i.e. respondents Nos. 5 to 7 are not related to the aforesaid attorney, namely, Sohni. Chanan Din petitioner who is brother of Sohni pre-empted this sale by filing a suit for possession through pre- emption and the said suit was decreed vide consent decree, dated 3-2-1980. The case of Chanan Din petitioner is that he is in possession of the land in question since then though this claim is challenged by Bawa respondent. In the year 1981 Ali Nawaz respondent submitted an application to the Secretary (Rural) Office of the Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act alleging that he had submitted an application in 1974 which seems to have been misplaced and the same was not proceeded with. It was also stated therein that Anees Mien had obtained allotment fraudulently as his units were never transferred to the estate in question and that signatures of the Allotting Authority of the said allotment are also forged. On this application Settlement Commissioner respondent summoned Chanan Din petitioner who on appearance submitted an application raising objection against the entertainment of the said application and to the holding of the proceed ings. On the plea that with the repeal of the Evacuee Laws no jurisdiction was left with the Settlement Authorities. The Settlement Commissioner passed an order, dated 10-6-1981 which is to the effect that the matter which is being enquired into is whether the application was submitted before 30th June, 1974 and if it is not so established the application will not be treated as Mukhbari application. It was added therein that summoning of record from the Central Record Office was necessary to find out whether the allotment was legal and valid even if submission of the Mukhbari application within time was not established and in case fraud is established then if anything else cannot be done still action against the defaulting official/officer can be taken. It was also observed that in case fraud is not established no action will be taken against the petitioner. On the same date another order was passing whereby Naib-Tehsildar, Central Record Office, Anees Mian the original allottee and the record of the allotment obtained in Sindh were ordered to be summoned. These two orders were challenged by filing W.P.No.375-R/1981 mainly on the ground that after repeal of the Evacuee Laws the Settlement Commissioner was not competent to entertain the application in 1981 or to hold inquiry into the genuineness or legality of the allotment. It was also asserted that though it was mentioned that question of date of presentation of the application is to be determined yet inquiry into the validity of the allotments was being proceeded with simultaneously as was apparent from the second order whereby record of allotment etc. was summoned. On 24-6-1981 this Court admitted the petition to hearing and stayed the proceedings before the Settlement Commissioner subject to notice. Then vide order dated 23-1-1982 the proceedings as regards the inquiry into the date of filing of original Mukhbari application was allowed to continue but the proceedings with regard to validity of allotment were stayed. It was also observed that in case the Settlement Commissioner comes to a finding that the proceedings have arisen out of an application filed before 30th June, 1974 then the respondent will be entitled to file an application to have this order modified. In pursuant to this order the proceedings for determining the date of filing of the application were continued by the Settlement Commissioner. Then in the year 1982 Bawa respondent submitted an application, it is alleged, on the behest of Ali Nawaz respondent saying that the land in dispute was allotted to him in the year 1964 and as such the allotment made in the name of Anees Mian respondent on 29-6-1973 was illegal, bogus and resultantly the subsequent sale and pre-emption decree were void and ineffective in law. The learned Settlement Commissioner started proceedings on this application. Chanan Din petitioner again reaised objection against these proceedings in view of the pendency of Writ Petition No.375-R of 1981 and the orders passed therein. In these proceedings the Settlement Commissioner recorded statement of Syed Akhtar Ali, Deputy Director, Anti-Corruption, Rawalpindi, wherein he deposed that neither the order of allotment, dated 29-6-1973 nor the signatures appearing thereon were in his hand.
Learned counsel for the petitioner, however, did not cross-examine him on the plea that the proceedings being held were illegal as the proceedings in respect of the disputed land were stayed by the High Court. As the learned Settlement Commissioner had refused to stay the proceedings, Chanan Din petitioner filed another constitution petition (W.P.508-R/1982). In this petition order, dated 17-11-1982 was passed directing the Settlement Commissioner to comply with the orders passed in the earlier writ petition. It may also be mentioned that Bawa respondent had also filed a suit in 1981 challenging the allotment of Anees Mian and the subsequent sale and the pre-emption decree and this civil suit is still pending before the Civil Court. In the inquiry held for determining the date of filing of the application learned Settlement Commissioner vide order, dated 28-3-1984 held that AU Nawaz respondent has filed Mukhbari application on 30th March, 1974 before the target date, i.e., 30th June, 1974. This order was then challenged by the petitioner by filing third constitution petition (W.P.169-R of 1984) on the plea that the finding was arbitrary, capricious and illegal.
3. The detailed arguments addressed by the learned counsel for the parties were heard. Learned counsel for the respondents argued that the Mukhbari application was filed on 30th March, 1974 and this being a finding of fact cannot be scrutinised in constitutional jurisdiction. It was added that as fraud is being alleged the petitioner is not entitled to seek relief in extraordinary constitutional jurisdiction. Learned counsel for the legal representatives of Anees Mian argued that no allotment was ever obtained by Anees Mian in the village in question and that the allotment was obtained by one Sohni posing as attorney of Anees Mian and as such the allotment was bogus. It was added that the units of Anees Mian were never got transferred to this village. Anees Mian died in the year 1983. The legal representatives of Anees Mian are being represented by Muhammad Younas who was appointed as their attorney on 16-5-1984. Earlier one Abdul Rehman represented Anees Mian in the capacity of attorney and this power-of-attorney was executed in January, 1978. As against the stand taken by the attorney of the legal representatives of Anees Mian, learned counsel for the petitioner submitted that obliging statement made in favour of the respondents as is being made much after the ceasing of the title in the property is not admissible in law and even otherwise has no evidentiary value. He also argued that the allotment made in the year 1973 was not 'challenged by filing appeal or revision before the Settlement Authorities and in any case the pleas being raised by the respondents cannot be gone into by the Settlement Authorities after the repeal of the Evacuee Laws. It was also added that Civil suit is already pending between the parties and in the said suit all these pleas can be taken and in fact have been taken and that these pleas should better be left for determina tion after scrutiny of the evidence to be produced by the parties. These arguments of the learned counsel for the petitioner will of course prevail in case it is held that Mukhbari application filed by Ali Nawaz respondent was filed after the target date, i.e., 30th June, 1974 but if the Mukhbari, application was filed prior to this date then the Settlement Authorities will be competent to go into the question of legality or genuineness of the allotment as the said application will have to be treated as a pending case.
4. Thus the question which requires determination is whether the Settlement Commissioner acted without lawful authority in holding that the application was filed on 30th March, 1974, i.e., before 30th June, 1974 the target date. This finding that Mukhbari application was filed on 30th March, 1974 is based on the solitary statement of Mehrban All Head Clerk, Land Branch, Egerton Road, Lahore, annexure-B with W.P.169-R of 1984. He stated that he had brought with him Diary Register containing entries from Serial No.3088 to 5557 and that against entry No.4085 an appliction filed by All Nawaz son of Hussaina resident of Syedwala, Tehsil Nankana, District Sheikhupura v. Ahmad All stands entered. This application as per entries recorded was sent to the Deputy Commissioner, Gujranwala on 30th March, 1974. The learned Settlement Commissioner concluded that this entry sufficiently establishes that the application in question was filed by Ali Nawaz respondent on 30th March, 1974. This conclusion as will be demonstrated hereunder is arbitrary and capricious. Learned Settlement Commissioner while arriving at this conclusion failed to notice that in the application submitted by All Nawaz respondent to the Secretary (Rural) in 1981, the number of the earlier application was first written as 2484, dated 29-3-1974. The figure 2484 was then scored out and No.4085 was then written. Again in this application of 1981 the title given was All Nawaz etc. v.
Muhammad All Machhi, resident of Kharban, Tehsil Hafizabad, District Gujranwala and Anees Mian son of Kale Mian, resident of Jaitta, Tehsil and District Sheikhupura. Moreover, the application entered at Serial No.4085 was statedly sent to the Deputy Commissioner, Gujranwala. It was conceded before me by the learned counsel for Ali Nawaz respondent that the Deputy Commissioner, Gujranwala was not the delegatee of the Chief Settlement Commissioner for the purposes of sections 10 and 11 of the Displaced Persons (Land Settlement) Act at the relevant time.
If that is so then there was no point in forwarding an application under sections 10 and 11 to the Deputy Commissioner, Gujranwala especially when the allotment complained of was of the land situated in District Sheikhupura. The other important feature to be noted is that the application entered at Serial No.4085 was filed against one Ahmad All only. In view of above, learned counsel for the respondents were not able to show as to how the said application diarised at Serial No.4085 could be held to have been filed against Anees Mian respondent-allottee. These features noted above establish beyond any shadow of doubt that no person acting reasonably and fairly could come to the conclusion that the said application entered at No.4085 was the application filed against the allotment obtained by Anees Mian. The finding returned by the learned Settlement Commissioner in his order, dated 28-3-1984 is, therefore, illegal, arbitrary and capricious. The order, dated 28-3-1984 is as such without lawful authority and the same is resultantly quashed. The respondents as such have failed to establish the filing of any application before the target date. By entertaining the application submitted in the year 1981, the Settlement Authorities cannot assume jurisdiction to hold the impugned proceedings as on the enforcement of the Evacuee Laws(Repeal)
Act with effect from 30th June, 1974 these authorities have been rendered functus officio. Same will apply to the application submitted by Bawa respondent in the year 1982. The proceedings entertained by the learned Settlement Commissioner and the orders passed are hereby declared to have been entertained and passed without lawful authority.
5. Before parting with this judgment I may add that I have not purposely dealt with the merits of controversy as the suit filed by Bawa respondent against the allotment is pending adjudication.
The parties shall be at liberty to raise the pleas available to them under law in the said suit which of course will be decided on its own merits.
6. With the above observations the three Writ Petitions are accepted.
The parties are, however left to bear their own costs.