' An area of agricultural land measuring in all 122 Kanals 2 Marlas situated in the Revenue Estate of Dogar Hindu, Tehsil Narowal, was allotted on temporary basis to one Mst. Umer Bibi, a lady displaced from the State of Jammu and Kashmir in lieu of Free Ration Scheme on 3-6-1959.
Possession was also stated to have been delivered to her in pursuance to the temporary allotment.
The revenue estate under went consolidation. The allotment earlier made in favour of Mst. Umer Bibi was cancelled on 18-3-1968 by Border Area Allotment Committee on the alleged ground of double allotment which she was alleged to have obtained outside the area of Border Belt. Mst.
Umer Bibi dissatisfied with the order recalling her temporary allotment challenged it in constitutional jurisdiction of the High Court in Writ Petition No. 1052/R of 1968. She impleaded Border Area Allotment Committee as sole respondent in the Writ Petition. Mr. Justice Nasim Hassan Shah (as his Lordship then was) accepted the writ petition, .set aside order dated 18-3-1968 and restored her temporary allotment.The conclusion reached by his Lordship is found in para. 4 of the order where it was observed:- "The case came up for hearing again on 23-10-1968 and the additional affidavit was taken note of and the writ petition admitted to regular hearing. These facts have not been controverted and the averments made therein must, therefore, be taken as correct. I, therefore, hold that the petitioner was not heard before the allotment in her favour in village Hindu Dogar was cancelled and further that she has not secured a further allotment on the basis of her claim in village Pindi Bajwan. The impugned order of the Border Area Committee, dated 18-3-1968 cannot, therefore, be sustained.
The same is declared to be without lawful authority and of no legal effect.
5. The result is that this writ petition is accepted but with no order as to costs."
' This is vide order dated 21-3-1975. Meanwhile an area of land measuring 57 Kanals 9 Marlas comprised in Field Nos.40, 49, 50, 52, 53, 55, measuring 44 Kanals 15 Marlas alongwith some other Khasra numbers 47, 48 and 51 (12 Kanals 8 Marlas) total 57 Kanals 9 Marlas was allotted to Mst. Bijjo and Mst. Bootan in lieu of their verified claims on 5-4-1966. This was done in the presence of the subsisting temporary allotment of Mst. Umer Bibi. Mst. Bijjo and Mst. Bootan transferred the land in favour of Muhammad Din and others, petitioners Nos.1 to 9, vide Sale Mutation dated 25-6-1968 for the alleged consideration of Rs.40,000. On 27-7-1968, Border Area Allotment Committee cancelled the allotment of Mst. Bijjo and Mst. Bootan. Muhammad Din and other vendees, assailed the correctness of order dated 22-7-1968, in High Court in its constitutional jurisdiction in Writ Petition No.924/R of 1968 which was directed against Border Area Allotment Committee and one Muhammad Salim a subsequent allottee.This writ petition also succeeded and was allowed by Mr.justice Dr. Nasim Hasan Shah (as his Lordship then was) vide order dated 8-11-1968. The case was remitted to Border Area Allotment Committee for redecision after notice to the parties. The relevant observations are found in paragraphs 5 and 6 of the judgment which for facility of reference are reproduced:- "Whatever be the exact position, there is no dispute on the point that the area was at one stage allotted in favour of Mst.Bijjo and Mst. Bootan on 5-4-1966 and that the same was subsequently sold in favour of petitioners Nos.1 to 9. If the allotment in favour of Mst.Bijjo and Mst. Bootan on 5-4- 1966 was not valid in law, the same had to be cancelled after the issuance of notice to them. This was admittedly not done. Similarly, as petitioners Nos.1 to 9 had acquired proprietary rights in the area after payment of due consideration, their right could also not be violated without hearing them.
6. In this view of the matter, the order dated 27-7-1968 is declared to- be without lawful authority and of no legal effect. The case is, remitted to the Border Area Allotment Committee for decision afresh, in accordance with law, after issuing notice to all parties concerned in the matter. The writ petition is accepted in the above terms, with no order as to costs."
2. In post-remand proceedings the Border Area Allotment Committee has conferred proprietary rights upon Mst. Umer Bibi under the prevailing law vide Mutation No.18, dated 27-10-1978. It was observed in the impugned order dated 27-4-1983 that area subsequently allotted to Mst. Bijjo and Mst. Bootan already stood allotted temporarily to Mst. Umer Bibi and was not available for allotment to Mst.Bijjo and Mst. Bootan in satisfaction of their claim and that too in absence of proper cancellation order, recalling the allotment of Mst. Umer Bibi. Since original allotment of Mst.
Bijjo and Mst. Bootan was defective, therefore, vendees from them could not be accorded better legal status from the one enjoyed by their predecessor. As regrds the claim of Mst. Bijjo and Mst.
Bootan it was observed in the impugned order by the Committee that their claim for allotment will be considered on its own merits on the availability of the evacuee land.
3. In this background vendees Muhammad Din and others alongwith the allottees Mst. Bijjo and Mst.
Bootan have come before this Court in constitutional jurisdiction.
4. I have heard learned counsel for the respective parties and have gone through the record.
Petitioners' counsel contended that the respondent Border Area Allotment Committee has condemned the petitioners unheard without associating them in the inquiry preceding the order conferring proprietary rights on Mst. Umer Bibi. Without deciding the case of vendees and their predecessor, Mst. Bijjo and Mst. Bootan, the proprietary rights in the land subject-matter of writ petition have been granted to Mst. Umer Bibi without caring and attending to the requirements of the remand order passed by the Hon'ble High Court. It was further contended that the basic allotment of Mst. Umer Bibi was void, having been made after the enforcement of the Displaced Persons (Land Settlement) Act, 1958 whereafter making of temporary allotment even to Jammu and Kashmir refugees was not legally permissible. After the Act came into force, land in accordance with Scheme framed thereunder could only be utilized for settlement in lieu of verified claims. In this view of the submission it was contended tht allotment made in favour of Mst. Bijjo etc. was quite valid and the petitioners Nos.1 to 9 being bona fide transferees for value were, in law, protected. This aspect of the matter was completely lost sight of and overlooked by Border Area Allotment Committee in the impugned order.
5. Learned counsel for Mst. Umer Bibi, however, defended the impugned order submitting that temporary allotment made in favour of Mst. Umer Bibi, a displaced person in the year 1959 cannot now be questioned, more so in the presence of order dated 21-3-1975 passed in Writ Petition No.1052/R of 1968. Parties had not impleaded each other in their respective writ petitions. Decision in Writ Petition No.1052/R of 1968 has, therefore, attained finality under law and cannot be assailed subsequently in the new round of litigation. Land was allotted on temporary basis to Mst. Umer Bibi on 3-6-1959 in lieu of Free Ration Scheme as a Jammu and Kashmir Refugee. It was cancelled by Border Area Allotment Committee on the wrong assumption of a fact which did not-exist.
Temporary allotment was restored to her by High Court in its order dated 13-2-1975 passed in constitutional jurisdiction. This order with passage of time attained finality as regards her status and the validity of temporary allotment. Order dated 13-2-1975 and its correctness, therefore, cannot be taken exception to by the petitioners in the new round of litigation. If they felt aggrieved by the aforesaid order of the High Court they could have brought it under challenge before Supreme Court of Pakistan. Having not done so, it is not open to them to raise objection to its correctness. Temporary allotment of Mst. Umer Bibi was never legally disturbed. Cancellation order by Border Area Allotment Committee was found illegal by the High Court. In the presence of a subsisting temporary allotment of Mst. Umer Bibi it was not available for re-allotment to Mst. Bijjo and Mst. Bootan in satisfaction of their claim. Land once allotted to a Jammu and Kashmir Refugee in lieu of Free Ration Scheme remains excluded from allotment under para. 4-A (IX) of the West Pakistan Rehabilitation and Settlement Scheme, 1957. Reference in this behalf may be made to a judgment of this Court Allah Lok and 2 others v. Irshadul Hassan and 7 others PLD 1982 Lah.
831. There was no legal bar in making temporary allotment to Jammu and Kashmir Refugee in lieu of Free Ration Scheme and the land so allotted to them stood protected under law. Under the provisions of the Repealing Act, these temporary allottees are being given the proprietary rights in the land allotted. In these circumstances, I have not been able to discover any illegality in the impugned order upholding temporary allotment of Mst. Umer Bibi and granting her proprietary B rights, in the land by the Border Area Allotment Committee. Petitioners' claim is still pending consideration with the Committee. The petition, therefore, has no merit and is dismissed leaving the parties to bear their own costs. However, the Border Area Allotment Committee in order to avoid inconvenience to the petitioners, may look to the propriety of settling the Claim of Mst. Bijjo etc. to provide coverage to the innocent vendees who purchased the land from her for valuable consideration relying on an order of an allotment.