' Dispute in this relates to urban land measuring 2 Kanals and 9 Marlas bearing Khasra No, 240 (1 Kanal 15 Marlas) and No, 318 (14 Matlas) situate in village Baghanwala Misri Shah, Lahore. These two Khasra numbers were respectively confirmed to Khawaja Manzoor Elahi, predecessor-in-interest of respondents Nos. 2 to 7, and Abdul Habib, respondent No, 8, against their verified urban claim, at Khata Nos. 40 and 32 of Register R. L. II of the said village, on 27-1-1971. Petitioner claims to have purchased these Khasra numbers on 3-6-1972 from respondents Nos. 2 to 7 as also from respondent No,
8. He further claims to have constructed "a big residential house, some shops and a building for installation of an Ice Factory on the disputed land."
2, Dr. Din Muhammad, respondent No, 1, who died during the pendency of this writ petition and is represented by his legal heirs brought on record by order dated 1-3-1981, moved an application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958. On 7-6-1972, before the Additional Settlement Commissioner (Lands) seeking cancellation of the allotment of Khasra numbers in dispute made to Kh. Manzoor Elahi and Abdul Habib aforesaid on the ground that he was a temporary allottee of these Khasra numbers and the the same could not be allotted to the aforesaid two persons. The learned Additional Settlement Commissioner by his order dated 11-10- 1972 (Annexure 'C') disregard the application of Dr. Din Muhammad holding that "all these No, Khasras already stand confirmed to different persons. The proper course for the petitioner is to file regular appeals before the Settlement Commissioner otherwise these numbers cannot be cancelled. His prayer is that these No, Khasras were allotted to him on temporary basis. He is asked to get 2 Kanals 11 Marlas from the available area in the Lahore Urban."
' Dr. Din Muhammad respondent admittedly filed no appeal or revision against the allotment/confirmation of the land in dispute. The same Additional Settlement Commissioner (L), however, by an ex parte order dated 5-11-1972 (Annexure 'D') passed on the same file proceeded to cancel the Khasra numbers in dispute from .The Khatas of Kh. Manzoor Elahi and Abdul Habib.
Relevant portion of Annexure 'EY is reproduced hereunder :- "Statement of local Patwari is recorded. He has stated that the abovementioned two No, Khasras were on temporary allotment of petitioner and through wrong note given by Patwari it was confirmed to Abdul Habib and Kh. Manzoor Elahi respondents. Temporary allotment of the petitioner should not have been allotted to respondents. This is an omission which is to be rectified under section 11 of the Displaced Persons (L. S.) Act, 1958. I, therefore, cancel No, Khasra 318 measuring 14-M from the allotment of Abdul Habib and 240 measuring 1-15 M from Kh. Manzoor Elahi at R. L. II 32, 40 of village Baghanwala respectively."
3. Petitioner preferred an appeal to challenge the aforesaid order of the Additional Settlement Commissioner dated 4-11-1972 but the same was dismissed by the learned Additional Commissioner (Revenue) Settlement Commissioner (L), Lahore Division, by his order dated 17-10- 1973, holding that "omission could always be rectified under section 20(3) of the Displaced Persons (Land Settlement) Act, 1958. The learned Additional Settlement Commissioner (L.) did not commit any mistake while rectifying it which came to his knowledge." Regarding the petitioner's grievance that he was not heard by the learned Additional Settlement Commissioner, it was observed by the learned Settlement Commissioner that notice had been duly published through the newspaper and if the petitioner had any interest in the matter, he could have come forward and put his point of view before the learned Additional Settlement Commissioner (L). On factual plane, learned Settlement Commissioner appears to have proceeded on the premises that Khasra numbers in dispute were temporarily allotted to Dr. Din Muhammad respondent which were wrongfully allotted/confirmed to the aforesaid Kh. Manzoor Elahi and Abdul Habib.
4. Petitioner approached this Court-through the present constitutional petition to challenge the aforesaid orders of the Settlement authorities.
5. Before proceeding further in the matter, I would like to refer to a note recorded in the interim order dated 29-3-1982, passed by my learned brother Fazal-i-Mahmood, J. On the basis of the record produced before him by Zaheer Ahmad Khan, Naib-Tehsildar, Central Record Office, Lahore.
This note shows that the claim of Kh. Manzoor Elahi was verified for 142 urban units on 12-4-1969 vide M. R. V. And that of Abdul Habib was verified for 112 urban units on 4-6-1968. As regards the entitlement of Dr. Din Muhammad, respondent No, 1, it was found that he had a verified claim from agreed areas equivalent to 206 Kanals 9 Marlas as owner and 26 Kanals 4 Marlas as mortgagee.
The whole of this claim was rural except 4 Marlas of urban area. Dr. Din Muhammad was further found to have another entitlement of 52 Kanals 15 Marlas of rural area and 2 Marlas of urban area left in Mauza Faizpur, Tehsil Batala. Both the claims of Dr. Din Muhammad were found to have been verified for Lahore.
' During the course of hearing, I had also summoned the original record to find out whether the land in dispute was included in the temporary allotment of Dr. Din Muhammad and whether he had unsatisfied claim on the date when the Khasra number in dispute were confirmed to Abdul Habib and Kb. Manzoor Elahi. Examination of the record showed that Khasra numbers in dispute were allotted to Dr. Din Muhammad respondent on 6-10-1956. This was evident from `Roznamcha Waqiati' and Jamabandi for the year 1958-59. He was shown in possession of both the Khasra numbers from Kharif 56 to Rabi 63 as per Khasra Girdawari. Khasra No, 318 was further shown to be in possession from 1962-63 to 1972-73 as per Jamabandis for the relevant years, As regards the other Khasra No, viz. 240, name of Dr. Din Muhammad respondent disappeared altogether in the revenue record from 1962-63 onwards.
' Record examined by me further revealed that Dr. Din Muhammad respondent was confirmed an area measuring 18 Kanals 3 Marlas in lieu of 187 units at Khata No, 86 of Register R. L. II in village Ram Kishanwala on 22-4-1970. He was Confirmed another area of 37 Kanals 10 Marlas against 375 units at Khata No, 79 of Register R. L. II of Kot Kamboh on 7-7-1971. Record relating to village Baghanwala showed that an area measuring 12 Kanals 7 Marlas equivalent to 124 P. I. U. Was proposed to Dr. Din Muhammad respondent at Khata No, 37 of R. L. II on 22-4-1970 and the same was confirmed to him on 17-11-1971. This area was within his temporary allotment.
6. Having set forth the aforementioned position regarding the allotment of the Khasra numbers in dispute, entitlement of Dr. Din Muhammad respondent and the areas confirmed to him as also the entitlement of Kh. Manzoor Elahi and Abdul Habib, predecessors-in-interest of the petitioners, I now proceed to deal with the respective contentions of the learned counsel for the parties.
7. Learned counsel for the petitioner submitted in the first instance that Dr. Din Muhammad respondent was not a temporary allottee of the Khasra numbers in dispute. This submission has no substance. As noted above, Khasra numbers in dispute are shown to have been allotted to Dr. Din Muhammad on 6-10-1956. This fact was also incorporated in the Jamabandi for the year 1958-,9.
Not only that, he was also shown in possession of these two Khasra numbers from Kharif 1956 to Rabi 1963. Rt is, no doubt, true that the name of Dr. Din Muhammad did not figure in the revenue record from 1962-63 onwards so far as Khasra No, 240 is concerned, but effect thereof shall be examined hereinafter and in another context. Fact, however, remains that according to the revenue record, Khasra numbers in dispute were allotted to Dr. Din Muhammad in the year 1956 and he remained in possession thereof for some years,
8. Next submission of the learned counsel for the petitioner was that on the facts and circumstances of this case particularly when there was no allegation of fraud or misrepresentation or of excess allotment, recourse to the provisions of section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, was unwarranted and misconceived. According to the learned counsel, Dr. Din Muhammad could have challenged the allotment confirmation of the Khasra numbers in dispute in favour of the predecessors in-insterest of the petitioners by means of an appeal or revision. Learned counsel pointed out that some other land in village Baghanwala and Ram Kishanwala under the temporary allotment of respondent No, 1 had been allotted/confirmed to some other persons in- the year 1960-61 and in all those cases, he had moved a review petition in the first instance and then filed revision petitions which were ultimately accepted by Ch. Muhammad Shafi Zafar, Settlement Commissioner, vide order dated 8-10-1969. In the present case, however, respondent No, 1 instead of filing a regular appeal or revision resorted to extraordinary proceeding under sections 10/11 of the Act which could not be lawfully and legitimately invoked. In support of this submission, learned counsel relied upon Mukhtaran and another v. Mst. Nur Begum and another (1) wherein a Division Bench of this Court examined the scope, object and import of sections 10 and 11 of the Land Settlement Act, 1958. Relevant discussion is reproduced hereunder :- "Sections 10 and 11 are special provisions conferring special jurisdiction upon the Chief Settlement Commissioner. Chapter VI of the said Act deals with ordinary appeals, revisions and reviews. Under this Chapter, the Chief Settlement Commissioner enjoys ordinary powers of appeal and revision etc. Thus, before the amending Ordinance XII of 1964, in the ordinary routine, any dispute under the Act could come before the Chief Settlement Commissioner. The jurisdiction under section 10 is absolutely independent from and in addition to the jurisdiction under Chapter VI. The object of conferring the special and extraordinary power upon the Chief Settlement Commissioner under section 10 is also obvious i. e. To safeguard the interest of the department. The provisions of section 10 are to deal with special situation in special circumstances. This power has been given only to the higher Authority in the Settlement Organization. It can, therefore, be legitimately inferred that only special category of cases is to be dealt with under this section and there even a party need not to be 'aggrieved'. This jurisdiction under section 10 can be exercised by the Chief Settlement Commissioner on information received from any source. It was for this reason that in the beginning the persons who moved the Chief Settlement Commissioner under this section were mostly informers, An aggrieved party has a statutory right under Chapter VI to get its rights adjudicated, but such is not available under section 10. The intention of the Legislature, in these circumstances, appears to be clear insofar as the regular litigation between the parties is concerned. They would be governed by Chapter VI, where only an aggrieved person or party is given the right of appeal etc. And that too, within a prescribed period of limitation. On the other hand, jurisdiction under section 10 can be invoked by at any time. The main interested party under section 10 is the Settlement Department, which under Chapter VI, is the least affected party the provisions of section 10 a penal in nature. The. Scope of inquiry under section 10 is a limited one and confined to, only 'allotment' obtained by means of 'fraud' and 'false representation', whereas the scope of appeal or revision etc. Under Chapter VI is much wider and the Setlement Authority is required to adjudicate upon the rights of the parties. Thus, if the dispute is between certain parties regarding their rights, they are governed by Chapter VI and not by section 10."
' Reliance was also placed upon Muhammad Ali v. Fazal Hussain and others (21 wherein their Lordships of the Supreme Court held that when an order could be challenged before higher authorities and ultimately in the High Court under section 21 of the Land Settlement Act, "the recourse to the provisions of sections 10 and 11 of the Act of 1958 was not only
(I) PLD 1972 Lah. 282 (2) 1975 SCMR 61 uncalled for but also misconceived." This view was followed in Ahmad Zaman Khan v. Settlement Commissioner, Multan (1). Relevant Observations in the last mentioned case may be reproduced hereunder :- "The petitioner claims himself to be sitting allottee of the revenue estate. He could have assailed the order of allotment made in favour of the contesting respondents by way of appeal or revision instead of filing another Mukhbari application before the Settlement authorities. The application, therefore, was misconceived."
' Learned counsel appearing for the respondents on the other hand relied upon Syed Fateh Ali Haidri v. The Settlement Commissioner (Lands) (2), to contend that power under section 11 of the Land Settlement Act could well be exercised to cancel an allotment on the ground that it was made while a prior valid allotment was subsisting. I have gone through this judgment. Facts stated in the report do not clearly show that the allotment was cancelled on an application moved under section 10/11 of the Land Settlement Act. An argument was, however, raised that a confirmed allotment could not be cancelled except under the provisions of sections 10 and 11 of the Act. While disposing of this argument, it was observed that "it would suffice to say that the allotment was not cancelled under section 10 on the ground of fraud or misrepresentation but on the ground that prior valid allotments were subsisting in favour of respondents Nos. 3 and 4 and as such a power could in my opinion be exercised under section 11 of the Displaced Persons (Land Settlement) Act, 1958." It may be pointed out with respect that in this case, judgments cited by the learned counsel for the petitioner which have been referred to above were not considered. This case cannot, therefore, be cited as an authority the proposition that power under section 11 can be exercised to cancel an allotment which could well be challenged in an appeal or revision.
9. Respectfully following the afore-referred dicta, I hold that on the facts and circumstances of this case, resort to the provisions of sections 10 and 1 I of the Land Settlement Act, 1958, was wholly misconceived. Dr. Din Muhammad, respondent, who claimed better and preferential right of allotment of the Khasra numbers in dispute could or should have filed a regular appeal or revision to challenge the allotment confirmation of the Khasra numbers in dispute to the predecessors-in- interest of the petitioners just as had done in similar other cases. In fact, the learned Additional Settlement Commissioner himself, in the first instance, had advised the respondent to file regular appeal before the Settlement Commissioner. Strangely enough however, the same Additional Settlement Commissioner within a span of less than one month proceeded to accept that very application of the respondent which he had earlier disallowed and cancelled the area in dispute from the Khatas of the predecessors-in interest of the petitioners and he gave no reason for taking a view different from the one already expressed by him.
It is significant that even the learned Settlement Commissioner while dismissing the petitioner's appeal did not specifically uphold the exercise of power under section 11 of the Act of 1958 but sought to justify the order of the Additional Settlement Commissioner dated 4-11-1972 with reference to the provisions of section 20(3) of the Land Settlement Act. He, however, did not notice that under section 20(3), Settlement authorities
(1) 1981 CLC 1641 (2) 1982 CLC 1794 were competent only to correct errors or clerical mistakes in any order and to rectify errors arising therein from any accidental slip or omission. This limited power, in my view, could hardly be used for cancelling a confirmed allotment.
10. Impugned order of the Additional Settlement Commissioner passed on 4-11-1972 is open to exception for yet another reason. As noticed above, learned Officer had earlier by his order dated 11-10-1972 declined to interfere under section 10/11 of the Act, 1958, which order not having been challenged in appropriate proceedings had attained finality. Impugned order dated 4-11-1972, therefore, clearly amounted to review of the previous order dated 1140-1972, which was not permissible in la as held above.
11. Learned counsel for the petitioner assailed the validity of the impugned orders on yet another ground. He submitted that Khasra numbers in dispute were confirmed to the predecessors-in- interest of the petitioner against their verified urban units on 27-1-1971. Petitioner purchased the Khasra numbers on 3-6-1972, after verifying from the revenue record that they stood allotted/confirmed to his predecessors-in interest and that at the time of the sale in his favour, the allotment/ confirmation made in favour of his predecessors-in-interest was not the subject- matter of any appeal or revision. That being so, petitioner's rights, according to the learned counsel, were not liable to be defeated at the instance of Dr. Din Muhammad, who claimed better right on the basis of his temporary allotment but had not challenged the allotment in favour of the petitioner's predecessors-in-interest on the date they sold Khasra numbers in dispute to the petitioner. In support of this submission, learned counsel relied upon Wali Muhammad and another v. Allah Bakhsh and another (1), wherein it was held that the allotment in favour of the vendor being not challenged before a higher Rehabilitation Authority on the date he sold the land to the purchaser, proprietary rights of the latter could only be defeated by a person claiming better allotment on the basis of an earlier proposal in his name on the conditions laid down in paragraph 14 in Part I of the Rehabilitation Scheme. Order of the Rehabilitation Commissioner passed without taking into consideration the rights of the purchasers with reference to the provisions of the Scheme was, therefore, set aside as bad in law and the case was remanded to the Rehabilitation Commissioner "for fresh decision keeping in view the terms of paragraph 14 of the Rehabilitation Scheme."
' Learned counsel for the respondents, on the other hand, relying upon Bashir Ahmad and others v.
The Additional Commissioner (2), submitted that the plea of protection on the principle of section 41 of the Transfer of Property Act is not available to a purchaser from an allottee because he has to be saddled with the knowledge that transaction of purchase was subject to incidence of sections 10 and 11. I am afraid, proposition canvassed by the learned counsel for the respondents has no application to the case of the petitioner for the simple reason that section 11 of the Land Settlement Act where under confirmed allotment of Khasra numbers in dispute was cancelled, as held above, was not attracted to the present case.
12. There is yet another important aspect of the matter which need be noticed. It is, no doubt, true that Khasra numbers in dispute were,
(1) 1968 SCMR 387 (2)1983 SCMR 1199 at one time, temporarily allotted to respondent No, 1 and they were also shown in his possession up to the year 1963. Thereafter, however, Din Muhammad respondent did not figure at all in the revenue record so far as Khasra No, 240 measuring I Kanal and 15 Marlas is concerned. What is still more important is the fact that an area measuring 12 Kanals and 7 Marlas in village Baghanwala which was admittedly under the temporary allotment of Dr. Din Muhammad respondent was proposed to him on 22-4-1970 and the same was confirmed in his name on 17-11-1971 but quite significantly, he took no steps to get the Khasra numbers in dispute situate in that very village proposed and confirmed in his name. Note in this context may also be taken of the fact that Dr. Din Muhammad respondent also got urban areas confirmed in his name in village Ram Kishanwala on 22-4-1970 and in village Kot Kamboh on 7-7-1971. These facts clearly emerging from the record, to my mind, show an abandonment/ waiver on the part of Dr. Din Muhammad respondent of his rights in the Khasra numbers in dispute. Otherwise, there was no earthly reason why he should not have got these Khasra numbers proposed and confirmed in his name. His omission to get the Khasra numbers in dispute proposed and confirmed to him while he was getting other urban areas proposed and confirmed in his name cannot be reasonably explained on any E hypothesis other than. That of abandonment or waiver. No doubt, to constitute waiver, "there must be some conscious giving up of the right", as observed by the Supreme Court of Pakistan in Burma Shell Oil Company v. The Trustee in the Port of Chittagong (1). However, waiver, abandonment or lapsing of a right may be made by a person either expressly or it may be inferred from his conduct and all other attending circumstances of the case. Reference for this proposition may be made to Mustayim v. Sher Bahadar (2) and Messrs Badar-ud-Din H. ,Mavani v. Government of Pakistan (3).
In the Peshawar case, this proposition was expressed in the following terms: "Waiver as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct, such as would warrant an inference of relinquishment of the right."
Judged in the light of the afore-referred judicial interpretation of `Waiver', conduct of Din Muhammad in not getting the Khasra numbers in dispute proposed and confirmed in his name when he got other areas G confirmed to him would lead to an inference that he had waived/abandoned his rights in the Khasra numbers, Learned Additional Settlement Commissioner,. However, while passing the impugned order did not attend to this vital aspect of the case.
13. Upshot of the above discussion is that viewed from whatever angle, the impugned orders of the learned Additional Settlement Commissioner dated 4-11-1972 and the learned Settlement Commissioner (L) dated 17-10-1973 cannot be justified in law and the same are, therefore, declared to be without lawful authority and of no legal effect. Resultantly, this petition is allowed but there shall be no order as to costs in the facts and circumstances of this case.
(1) P LO 1961 SC 452 (2) PLD 1962 Pesh. 14
(3) 1981 CLC 339 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.