1. ' By this Constitution Petition, Syed Nazir Hussain Shah, the ancestor and predecessor-in-interest of the petitioners called in question the order, dated 15-12-1973 whereby the Settlement Commissioner, Sukkur cancelled the allotment of agricultural land bearing S. No. 7/2 (two Acres 16 Ghuntas) in Deft Borah, Taluka Rohri, District Sukkur made in his favour. On death of said Nazir Hussain Shah, the present petitioners who are his heirs were substituted in his place.
2. ' The petitioners' case is that the land in dispute which originally belonged to Hindu owner Sooraj Singh was allotted to Syed Nazir Hussain Shah, a displaced claimant, in 1960. Following the promulgation of M.L.R.89, the said allottee surrendered the disputed land which, however, was repurchased by him, by exercising the requisite option. The land was also mutated in his name in the record-of-rights. After about nine years from the allotment, Sikandar Khan who had been in possession of the disputed Survey Number was served with. a notice calling upon him to vacate the land as the same was allotted to Nazir Hussain Shah. Instead of complying with the notice, Sikandar Khan (respondent No. 3) moved an application dated 10-11-1969 before the Deputy Commissioner, Sukkur praying for cancellation of the allotment of the land in favour of Nazir Hussain Shah. It was claimed in the said application that the respondents Sikandar and Shah Bux had jointly purchased the land in dispute from a Muslim owner Wali Muhammad son of Tagial for Rs. 686 under a registered deed executed on 24-11-1920. However, the above application was dismissed by the Deputy Commissioner vide his order, dated 20-3-1971. Aggrieved by this order the respondent preferred Revision Application before the Settlement Commissioner (Land) Sukkur, who by the impugned order allowed the Revision and cancelled the allotment of the land made in favour of Nazir Hussain Shah.
3. ' The arguments of the learned counsel for the parties were heard at great length and with their assistance I have also gone through the relevant documents.
4. ' It was first contended by the learned counsel for the petitioners that the respondent Sikandar had approached the Deputy Commissioner on revenue side, therefore, his remedy against the order of the Deputy Commissioner lay before Board of Revenue and not before the Settlement Commissioner. Accordingly he was of the view that the revision application filed before the Settlement Commissioner was not competent and consequently the impugned order passed by the Settlement Commissioner in such Revision Application was without jurisdiction and had not legal effect. He further submitted that since the respondent Sikandar had questioned the status of the land in dispute in his application, it was rightly rejected by the Deputy Commissioner and the impugned order upsetting the view by the Deputy Commissioner was clearly erroneous and cannot be legally sustained. It was urged by the learned counsel that as provided in section 22 of the Pakistan (Admipistration of Evacuee Property) Act, 1957 (hereinafter referred to as the 1957- Act), Custodian alone had the necessary jurisdiction to decide about the status of the property being evacuee or not. He also referred to section 41 of the 1957-Act, arguing that no Court civil or revenue or any other authority has jurisdiction to adjudicate upon any question as to whether any person is or is not evacuee or whether any property is or is not evacuee property. In support of his arguments the petitioners' Advocate has placed reliance on Haji Sulleman v. The Settlement Commissioner, Karachi and others PLD 1967 Kar.
5. 834.
6. ' The learned counsel for the private respondents repelled the argument that the Deputy Commissioner had disposed the application of the respondent Sikandar in the capacity of a revenue authority. In this connection he referred to the application itself. On perusal of the application it is found that the said respondent has prayed for relief in the following words: "I request that the illegal allotment of the land made to the claimant may kindly be cancelled as it is in our possession since the date of our purchase and we are paying the land assessment since then."
7. 'It is clear from the above prayer that the respondent Sikandar Khan had moved the Deputy Commissioner for cancelling the allotment of the land in dispute and not for altering the entries in the revenue record in respect of the said land. The order of the Deputy Commissioner also shows that he too declined to interfere with the allotment as the land in dispute was shown to be in the name of the Central Government in A the revenue record.
8. Therefore, it is not correct to say that the respondent Sikandar Khan had approached the Deputy Commissioner in the capacity of revenue officer or that the latter had decided his application in that capacity. Consequently the said respondent had challenged the order of the Deputy Commissioner at right forum namely the Settlement Commissioner.
9. ' The next argument of the learned counsel for the petitioner was that since the respondent Sikandar Khan had raised the question of the status of the land in dispute as being non-evacuee, the proper forum for resolving such dispute was Custodian and no Court civil or revenue or any other authority had any jurisdiction to adjudicate upon such question. It may be pertinent to refer to subsection (1) of section 22 of 1957 Act which reads as under: "22--
(1) Any person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that:
(a) the property is not evacuee property; or
(b) his interest in the property has not been affected by the provisions of this Act."
10. 'It is manifest from the above provision of law that before the respondent Sikandar is required to have the status of the land, which he claims to be his property, determined by the Custodian, it is necessary to show if the said land was ever treated either by Custodian or by any Rehabilitation authority as evacuee property. It seems the petitioners are not in possession of such proof nor is there any material to draw such conclusion. Obviously the learned counsel for the petitioner was only banking upon the factum of the allotment itself. But even the allotment order has not been produced. However, the admitted position is that the allotment was made in 1960. There is nothing on the record to indicate if the land in question was treated as evacuee property prior to its allotment to Nazir Hussain Shah and if so from what point of time it was so treated. In absence of such proof, if the allotment of the land alone were to be considered the basis for treating the land as evacuee land, then such treatment would commence from the date of the allotment. However, it is a settled law that person or property as evacuee before 1-1-1957 cannot be declared or treated as such afterwards. This is clearly provided in section 3 of 1957 Act. If any authority is needed in support of the above preposition reference can be made to Pakistan through Secretary Ministry of Rehabilitation and others v. R.S. Roopchand and others PLD 1976 SC 479 and Ayazuddin Shaikh v.
11. Additional Settlement Commissioner, Karachi 1968 SCMR 69.
12. 'Even if it be assumed that on migration of Hindu owner prior to 1-1-1957 the property vested in the Custodian the mere vesting of property in the Custodian would not be tantamount to declaring or treating such property as evacuee. The competent authority namely the Custodian or Rehabilitation authorities must have done some overt act in respect of the property, namely .that the specified property must have been declared or treated as evacuee property. There is, however, no evidence to show that at any stage of time the Custodian had declared the property in dispute as evacuee or he had taken over its possession or had permitted any person to occupy or continue occupying it or in any manner deal with the property on his behalf nor is there any material to indicate that it was temporarily allotted to any person by the Rehabilitation authorities. On the other hand, it is not disputed that respondent had been in possession of the land in dispute since prior to the partition of the Sub-continent. The respondents' case is that the basis of their possession is their ownership of the property in dispute which they had purchased in 1920 (i.e. long before the establish ment of Pakistan) and that too not from the Hindu owner but from one Wall Muhammad, a Muslim. In support of their claim they have relied upon registered sale-deed. Thus, the petitioners have failed to show that the property In question was evacuee property and was declared or treated as such prior to 1-1-1957. As stated above, it could not be declared or treated as evacuee property after the said date.
13. ' Having arrived at the above conclusion the next point to be considered is whether the Settlement Commissioner had jurisdiction to cancel the allotment in controversy. In this connection reliance was placed on section 41 of 1957 Act. As provided in this section no civil or revenue Court or any other authority shall have jurisdiction to entertain or adjudicate upon any question arising from any suit, appeal, application or other proceedings as to whether any person or any property in or is not evacuee or evacuee property or what right or interest, if any, any such person has in any such property. It may be observed that no such question was involved in the instant case. Therefore to say that Custodian had the exclusive jurisdiction to adjudicate upon such question or in the alternative the Settlement Commissioner had no power to decide in that regard would not be a correct approach. The respondents having purchased the disputed land in 1920 and that too from the Muslim owner the question of the said land being evacuee property at any stage of time simply did not arise. Consequently it could not be acquired by the Central Government nor could it be made a part of compensation pool. Mere entries in the revenue record would not relieve, the relevant authorities of the burden of proving that the property in respect of which the entries appear in the revenue record was actually declared or treated as evacuee property and was acquired as such property and made a part of compensation pool. As has been pointed out above no such 'proof is forthcoming.
14. ' At this stage I would examine the case of Haji Sulleman referred to above. The facts of this case were that one Ismailjee and his wife Mst. Amina Bai had purchased the disputed property from a Hindu owner. The transaction was confirmed by the Custodian. Subsequently Mst. Amina Bai gifted her share in the property to the petitioner who even got into possession of the gifted portion of the property. However, after about ten years the petitioner received a notice from the Additional Settlement Commissioner but when he appeared in response to the notice, the matter was dropped. Again two years thereafter a notice appeared in Daily 'Dawn', but this time the notice was addressed to the original purchasers namely Ismailjee and Mst. Amina and not to the petitioner. As no one appeared in response to the said notice, the Additional Settlement Commissioner held the property to be evacuee property within the meaning of 1957 Act, forming a part of compensation pool directing further that the said property be disposed in accordance with the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to the 1958 Act). It is in this background that the Supreme Court held as under:- "As a result of the notification under section 3 of the Compensation Act of 1958 it is the interest of the evacuee which is extinguished in the property and it then vests in the Central Government. The notification would, therefore, affect only evacuee property. But if the Settlement Authorities proposed to deal with a property and the question is raised that this was not an evacuee property at all, it is difficult to seek how the Settlement Authorities could, in the absence of any provisions in the Act, proceed to enquire into the character of the property. Their jurisdiction depends upon the property having been vested in the Central Government. But if such a vesting itself is questioned then the jurisdiction to give a declaration in that respect must remain with the Custodian so long as Act XII of 1957 is on the statute book and a Custodian continues to function. Of course, there may be a case when upon the admitted facts a certain property was an evacuee property at the material time and came to be acquired by the Central Government by virtue of the notification. In such a case it could easily be said that a question as to the character of the property did not properly arise so as to attract the jurisdiction of the Custodian."
15. In the first place the facts of the reported case are obviously distinguish able from the facts of the instant case. Secondly it is left open in the above authority that in the case of admitted facts when the question as to character of the property did not arise so as to attract the jurisdiction of the Custodian, the Settlement authorities are not barred from exercising their jurisdiction. In the case in hand the possession of the respondents since prior to the allotment of the land in favour of Nazir Hussain Shah is not denied. Even the sale transaction through which the respondents have allegedly purchased the disputed land is not seriously controverted. There is also no evidence indicating that the , property in question was ever declared or treated as evacuee property.
16. On these facts it cannot be argued that the respondent Sikandar while making application for cancellation of the allotment had challenged the status of the disputed property as not being evacuee property. In fact his prayer was that the land in question belongs to the respondents who have been in possession of the same eversince its purchase in 1920 and that it has wrongly been allotted to the above Nazir Hussain Shah, therefore, the allotment made in his favour be cancelled. I am of the view that the Settlement Commissioner was within his power to entertain the application of the respondents and cancel the allotment made in favour of Nazir Hussain Shah.
17. ' In support of the above view, the learned counsel for the respondents referred to sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. As provided in section 10 the Chief Settlement Commissioner has power to cancel the allotment if he is satisfied that the same has been obtained by means of fraud or false respresentation. Similarly section 11 provides that the Chief Settlement Commissioner may, for reasons recorded in writing, cancel or terminate any allotment or lease made under a scheme or under the Act after giving reasonable opportunity of hearing to the affected person. Therefore, the learned counsel argued that the Settlement Commissioner had the requisite power of cancelling the allotment of the disputed land in favour of Nazir Hussain Shah.
18. In this connection the learned counsel for the respondents also invited my attention to para. 12 of the Rehabilitation Settlement Scheme which reads as under:- "Subject to restriction imposed by clauses 10 and 22 of this Scheme no allotment shall be deemed to have been made until the Rehabilitation Authority concerned has issued a written permit for the allotment and the allottee, if not already in possession thereof, has been put in possession thereof under the said permit."
19. ' It was argued by the learned counsel that it is an admitted position that even though the alleged allotment of the land in. favour of Nazir Hussain Shah was made in 1960, he was neither in possession of the disputed land at the time of the allotment nor was he put in possession thereof immediately following the allotment, therefore, in view of the above para. 12 the allotment was not deemed to have been made. In other words the allotment was not valid. It appears that a notice was issued to the respondent Sikandar in 1969 (i.e. nine years after issuance of the allotment) calling upon him to vacate the possession of the disputed land as the same had been allotted to claimant Nazir Hussain Shah. This clearly shows that the said allottee was neither in possession of the disputed land at the time of the allotment nor he was put in possession of the same immediately after the allotment. Thus the conditions laid down in para. 12 of the Scheme referred hereinabove remained unfulfilled. Consequently I agree with the argument of the learned counsel for the respondents that the allotment in favour of Nazir Hussain Shsh was jeopardised and it could not be held as valid allotment.
20. ' The learned counsel for the respondents has placed reliance on several authorities which I would now proceed to examine. The first case referred by him is the unreported judgment dated 9-3-1980 of Zaffar Hussain Mirza, J. of this Court (as he then was) in the case of Syed Shafquat Hussain v.
21. Deputy Settlement Commissioner, Sanghar and 4 others (Constitution Petition No. 475 of 1974). In said case the land in dispute was allotted to the petitioner. The allotment was challenged in appeal before the Settlement Commissioner by one Lt.-Col. . Muhammad Nazir who claimed to have purchased the said land from its non-evacuee Hindu owners. The appeal was allowed by the Settlement Commissioner and the allotment in favour of the petitioner was ordered to be cancelled. The petitioner filed writ petition challenging the order of the Settlement Commissioner inter alia on the ground that the Settlement Commissioner had no jurisdiction to determine the status of the property as evacuee or non-evacuee. It was held: "If the property in dispute in the present case was not treated as evacuee property at any time it is idle to urge that an order declaring its status as non-evacuee ought to have been obtained."
22. ' Proceeding further the learned Single Judge observed: "It is no doubt true that under section 41 of Act XII of 1957 it is the exclusive jurisdiction of the Custodian to determine the status of the property. However if a non-evacuee property is treated as evacuee property wrongly as forming part of the compensation pool after the crucial date viz. 1-1- 1957, the order of transfer of allotment would obviously be without jurisdiction which can be challenged by way of appeal or revision before the Settlement hierarchy. In such a situation the higher authority hearing such appeal or revision could not be said to be determining the status of the property but merely rectifying error or illegality by the lower officers."
23. ' The above reported case appears to be on all fours with the instant case. As in the reported case, in the instant case also the disputed land was allotted after the crucial date i.e. 1-1-1957. Prior to that date the said land was not declared or treated as evacuee property. The respondent in possession of the land claimed to be its owners and therefore, moved the Settlement authorities for cancellation of the allotment in favour of the petitioner. The Settlement Commissioner in revision filed against the order of the Deputy Commissioner cancelled the allotment. Accordingly I am in complete agreement with the learned Single Judge in his views that while cancelling the allotment order in favour of the petitioner, the Settlement Commissioner could not be herd to have determined the status of the property but had merely rectified the error or illegality committed by the lower officers. As pointed out above, such power was available to the Settlement authorities even under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. Moreover, the jurisdiction of Settlement authorities is barred under section 41 of 1957 Act where Custodian alone is competent to exercise jurisdiction under section 22 of 1957 Act. Again Custodian comes in the picture when the property in dispute is declared or treated as evacuee property .prior to 1-1-1957.
24. That is however not the position in the instant case. Therefore the question of approaching Custodian for deciding the status of the property did not arise. Accordingly the order passed by the Settlement Commissioner is not without jurisdiction.
25. ' Another case relied upon by the learned counsel for the respondents is of Shukri and 3 others v.
26. Ch. Muhammad Shafi Zaffar and 2 others PLD 1975 Lah. 619 wherein it was held: "A mere entry of one's name as an owner in the Government record or in private papers did not relieve the purchaser from such owner from the duty and the responsibility of making an inquiry into the title of the owner........................
27. ' In the same judgment the learned Single Judge of Lahore High Court relying on the authority of the Supreme Court Muhammad Khan and others v. Chief Settlement and Rehabilitation Commissioner PLD 1962 SC 284 quoted the following passages from the said authority: ft .................................................................................................................................. It is difficult to accede to this contention as correct.
28. The intention to destroy the rights of Pakistani owners in proper ties in which part of the interest vested in an evacuee without any compensation whatsoever, cannot be lightly attributed to the Legislature."
29. "The position that emerges, therefore, is that the right, title and interest of the appellants has not been acquired by the notification issued under section 4 of the Act and unless the appellants' mortgage is redeemed either by Government or by the allottee, the appellants are entitled to retain possession of the land under their mortgage."
30. ' Lastly it was argued by the learned counsel for the respondents that since on the admitted facts of the case substantial justice had been done, the writ jurisdiction could not be invoked in the aid of injustice. The learned counsel urged that even if the impugned order was without jurisdiction, this Court being seized of the matter could hold the allotment of the land in dispute in favour of Nazir Hussain as void ab initio and of no legal effect. In support of his submission he placed reliance on Tufail Muhammad v. Muhammad Ziaullah Khan PLD 1965 SC 269 wherein it was held: "The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalil-ur- Rahman was putting forward an untrue case before the Settlement Authorities when he claimed the whole house."
31. ' In the instant case I am satisfied that property in dispute has remained in possession of the respondents eversince they had purchased it in 1920 from a Muslim owner. It was not declared or treated as evacuee property at any stage of time prior to 1-1-1957. Mere entry in the revenue record is not enough to prove the Central Government to be owner of the property, particularly when there is ample material to show that the said property has never remained as evacuee property or has been so declared or treated. Obviously its inclusion in the compensation pool was entirely erroneous. Therefore, the allotment of the same in favour of the claimant Nazir Hussain was void. In these circumstances, the petition is without any merit. Accordingly it is dismissed with no order as to costs.