1. ' SHAFIUR RAHMAN, J.-This judgment disposes of Civil Appeal No, 44/83 and Civil Appeal No 45/83.
2. Leave to appeal was granted in both to examine the judgment of the Appeal Bench of the Lahore High Court, dated 9-5.1982 to determine whether it was not a case more appropriate for remand to the notified A authority for recording a finding of fact afresh instead of the High Court itself substituting its own finding.
3. The subject-matter of the dispute is land measuring 22 K.Anals 1 Marla comprised in Khasra No, 542 measuring 11 Kanals 4 Marlas and Khasra No, 543, measuring 10 Kanals 17 Marlas within the limits of Rawalpindi Municipal Committee in the area known as Village Murir Hassan. It was shown in the revenue records of 1941-42 and 1946-47 as the ownership of Hari Singh and Partap Singh and the whole area was recorded as Ghair Mumkin Bhatta or brick kiln. The Deputy Rehabilitation Commissioner, Rawalpindi, by an order, dated 3-9-1951 allotted it as a brick kiln to respondent No, 1.
4. On an application made on 2-3-1960, the Additional Settlement Commissioner declared respondent No, 1 Nazir to be entitled under para. 15 (3) of Schedule to the Displaced Persons (Compensation and Rehabilitation) Act to the transfer of this unregistered industrial concern. In the meantime, it appears that a major portion of this area (about 16 Kanals) was confirmed on 15-5- 1961 and near about to Mst. Arnim Begum and Syed Hasham Shah, the two claimants, having verified claim of agricultural land in rural area. For getting the title deed, the allottee Nazir respondent No, 1 was required to file blueprint of the area and the plans etc. And during the course of the inquiry he came to know of the allotment of the same area having been made in the name of Amina Begum and Hasham Shah, the predecessor-in-interest of the appellants. He thereupon appealed to the Settlement Commissioner Land challenging their allotment. The Settlement Commissioner held that the appeal was time-barred and on merits the following operative order was passed :- "On merits, it is true that a brick kiln of an area of 22 Kanals was temporarily allotted to the appellant by the Deputy Rehabilitation Commissioner on 27-8-1961. The land might have been described in the revenue papers as brick kiln, but the correspondence on the file of the lower Court shows that the appellant had to start a brick kiln on it. This was objected to by Mr. M. H. Jaffry in his capacity of a President of the Military Accounts Lodge. The Rehabilitation authorities referred the matter to the Municipal Health Officer and after lengthy correspondence, it was decided by the Rehabilitation Deptt that the appellant could start the brick kiln at a distance of 500 feet from the place where he wanted to start it. This clearly shows that there was no brick kiln anywhere on the land at the time of the temporary allotment and the appellant had to start one himself. As remarked earlier the brick kiln was transferred to the appellant in the year 1962. Unfortunately the area of the brick kiln so transferred was not detailed in the P. T. O. Nor demarcated. In the meantime 16 Kanals of this land had been allotted to respondents by the Additional Settlement Commissioner (Lands) which was obviously culturable land. In these circumstances, I cannot hold that the entire area of 22 Kanals has been transferred to the appellant. The circumstances show on the other hand that only the area under brick kiln which should be 22 Kanals minus 16 Kanals stands transferred to him. There is, therefore, no force in the appeal, which is dismissed."
5. ' The respondent Nazir thereupon filed a constitutional petition challenging such disposal of the land by the Settlement authorities acting under Displaced Persons (Land Settlement) Act (hereinafter referred to as the Act). The learned Judge in Chamber, however, dismissed the constitutional petition on the ground that the transfer order held by the respondent did not mention the area transferred to him ; that the land allotted to the appellant was held to be such as could be brought under cultivation and this was a finding of fact which could not be interfered with in constitutional jurisdiction. As regards the jurisdiction of the Settlement authorities acting under the Act, the learned Judge held that the respondent had himself invoked it by filing an appeal before the Settlement Commissioner (Land) and he could not be heard objecting to his jurisdiction in the matter. The constitutional petition was dismissed.
6. ' An intra-Court appeal was filed by the respondents which succeeded mainly for the reason that the Settlement authorities had misapplied the law to the admitted facts of the case and that the Settlement authorities acting under the Act had no jurisdiction in the matter. The appeal was accepted. The transfer in favour of the respondent was kept intact and the allotment made in favour of the predecessor-in-interest of the appellants was found to be without jurisdiction and without lawful authority.
7. ' Khawaja Muhammad Farooq, the learned counsel for the appellants contended that the question whether the land allotted to the appellants was such as could be treated as land within the meaning of the Act was a question of fact which has been determined by the Settlement Commissioner (Land) and if there was any doubt about its correctness, the matter should have been got resolved by remanding the case to the Settlement authorities instead of the High Court itself deciding it. It was contended that in any case the order of the Settlement Commissioner was a just and proper order and should not have been interfered with in the constitutional jurisdiction.
8. ' The other appeal has been filed by the Settlement Commissioner. The same grounds have been taken up for challenging the order of the High Court.
9. ' None of the appellants is in a position to challenge the fact that, as observed by the High Court in the impugned judgment, the property in dispute in its entirety was shown to be Ghair Mumkin Bhatta in the Jamabandis for the years 1941-42, 1946-47 and 1952-1953. The dispute between the parties centers round as to what happened to this property after 1951, that is, whether it was being actively used us a brick kiln or was as Ghair Mumkin land which could be brought under cultivation or had been built upon by various persons and it had to be disposed of as building sites. The Settlement Commissioner in the order which was challenged before the High Court did not at all notice as to what was the use to which the land was put at the time of partition. It has been held by this Court in the light of the law applicable that it is the use to which property is put at they time of partition which determines the nature of the property and also the manner of its disposal.
10. Subsection (3) of section 2 of the Act defines land as hereunder :- " 'Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, un surveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee in such land, but does not include :-
(a) Property as defined in sub-clause (b) of clause (2) of section 2 of the Registration of claims (Displaced Persons) Act, 1956 (III of 1956) or in sub-clause (d) thereof ; or
(b) Such evacuee land as may be declared by the Chief Settlement Commissioner as a building site."
11. ' The Rehabilitation Scheme defines in clause (i) 'land' in the following words--
(i) " 'Land' means all evacuee land held for agricultural purposes or for purposes subservient to agriculture or for pasture, including un surveyed land, trees or buildings and other structures standing on it and which the Rehabilitation Commissioner, West Pakistan, has been authorized to pool and allot under section 6(1) of the Pakistan Rehabilitation Act, 1956 and section 7(1) of the Baluchistan Rehabilitation Regulation."
12. ' Para. 29 of the Rehabilitation Scheme makes the following provisions :- "29. Right to be given in accordance with entries in Jamabandis Right under the Rehabilitation Settlement Scheme should be given to a claimant in accordance with the entries in the special Jamabandis received from the prescribed area of India. Classification of evacuee land should be taken into account according to the entries in the special Jamabandis prepared for exchange with India and subsequent variations in the classification of soil should be ignored. If any hardship is caused by the application of this rule in individual cases reference should be made to the Rehabilitation Commissioner, West Pakistan. (Reference former Punjab Government Memorandum, No, 8553-R (L), dated 2nd September, 1950)."
13. ' These provisions have been construed by this Court in Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others (1) and Shaukat Hussain Rizvi v. Dr. Yar Muhammad Khan and another (2).
14. It is the actual use to which the land was being put on the 15th of August, 1947 which determined the nature of its disposal and the law applicable to it. It appears as an undisputed fact that at the time of partition this entire land was used as brick kiln. From the order of the Settlement Commissioner it appears that he did not advert to the law applicable to the admitted facts of the case. Hence it was an error of law and jurisdiction which was C committed by him and could be corrected by the High Court as it did not involve unsettling any finding of fact. On the contrary, the High Court set aside that part of the finding which was based on irrelevant considerations, namely, as to what extent the allottee was using the land for the purposes of brick kiln instead of determining as to which portion of the land was being used as brick kiln at the time of partition as evidenced by special Jamabandi.
15. ' In the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (3) the following law was laid down with regard to the finality of finding on a jurisdictional fact.
16. "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi-judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction."
17. ' In the circumstances, we find that the impugned judgment suffers from no legal infirmity and the two appeals are dismissed leaving the parties to their own costs in the circumstances of the case.
(1) 1969 SCM R 114 (2) P D 1974 SC 276
(3) PLD 1965 SC 698