ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order of a learned Single Judge of the Lahore High Court, dated 23-4-1974, whereby the writ petition of Abdul Aziz (respondent No.2) was accepted and the order of the Settlement Commissioner, Bahawalpur, dated 20-11-1965 was set aside.
2. The facts, very briefly, are that on the Mukhbari information laid by respondents 1 and 2, excess land measuring 121 Kanals 15 Marlas situate in village Ehsanpur, Tehsil and District Rahimyar Khan, was resumed from one Hayat Khan. It thus became available for transfer to the claimant displaced persons. The appellant who had 656 units in village Borrahra, Tehsil Rahimyar Khan, got the same transferred to village Ehsanpur and requested for allotment of the land resumed. This was accordingly done by the Chairman, Allotment Committee, Rahimyar Khan, on 10-9-1964 and R.L.II was issued in his favour. This allotment was, however, resented by Abdul Aziz (respondent No.2) who claimed to have preferential right for the allotment of the land because the same was resumed on his Mukhbari information. He filed an appeal from the order dated 10-9-1964 before the S. D. M. Exercising the powers of the Deputy Settlement Commissioner, Sadiqabad, but the same was dismissed on 21-1-1965 Abdul Aziz (respondent No.2), however, succeeded on 14-5-1965 it securing the allotment of the disputed land in his favour in revision from the Court of the Deputy Commissioner, Rahimyar Khan, who was exercising the powers of the Additional Settlement Commissioner, on the ground of his being an informant. The order dated 14-5-196; was this time made a subject-matter of revision by the appellant before the Settlement Commissioner, Bahawalpur, which was accepted vide order dated 20-12-1965, whereby the order of the' Deputy Commissioner-cum-Additional Settlement Commissioner, Rahimyar Khan, was set aside and that of the S.D.M.-cum-Deputy Settlement Commissioner, Sadiqabad, dated 21-1-1965 was restored. The order dated 20-12-1965 was then challenged by Abdul Aziz (respondent No.2) through a writ petition in the High Court, which culminated it the impugned order.
3. Leave was granted to examine the correctness of the findings of the High Court qua the rights of the parties.
4. The learned counsel for the parties have been heard and the various orders perused. In support of the appeal, Mr. Muhammad Anwar Bhinder pressed his entitlement for the allotment of the land in dispute on the ground that when the land was resumed and allotted to him, the concession for allotment of the land to the informants did not exist and, therefore, it was rightly transferred and confirmed in the name of the appellant, and that the order dated 14-5-1965 passed by the Deputy Commissioner, Rahimyar Khan, who was exercising the powers of the Additional Settlement Commissioner, whereby the land was allotted to respondent No.2, was without jurisdiction inasmuch as by virtue of the Displaced Persons (Laws.) Amendment Ordinance 1964 (XIII of 1964) promulgated on 28-12-1964, subsection(3) of section 19 of the Displaced Persons (Land Settlement)
Act was repealed and the revisional powers of the Additional Settlement Commissioner taken away. No revision was, therefore, competent before the Deputy Commissioner-cum-Additional Settlement Commissioner, Rahimyar Khan, in 1965, therefore, the order passed by him on 14-5-1965 was absolutely without lawful authority.
5. In rebuttal, Mr. Bashir Zafar, learned counsel for respondent No.2, has supported the order of the High Court and has relied very heavily on the case of Feroze Khan v. A.I Harder reported in 1987 SCMR 197.
6. After careful consideration of the arguments of the learned counsel for the parties, we came to the conclusion that this appeal merits acceptance.
7. Laws regulating the right of informants for allotment of land on their Mukhbari information had been changing from time to time. On 20-8-1962, by virtue of paragraph 71-A of the West Pakistan Rehabilitation Settlement Scheme, informers, who had laid information about bogus allotments, were given preference in respect of allotment against their unsatisfied claim. But on 14-5-1964 this concession was withdrawn. However, on 25-2-1965, through memo. No.6609-64/ 18-R(L), the concession was revived in those cases in which investigation had been completed and the cases were in Court on 27-2-1964. The above memo. Also carried a condition that the competent authority to decide whether the land should be allotted to an informer should be the Deputy Commissioner in his capacity as Additional Settlement Commissioner. On 30-7-1973, the Evacuee Property and Displaced Persons Laws (Amendment)) Act of 1973 was promulgated, whereby a new provision was inserted in the Displaced Persons (Land Settlement) Act, 1958. In section 14 the above concession was brought on the statute book by subsection (1-A) which reads: "(1-A) Where, on the formation of a claimant about any bogus or fraudulent allotment of land, the information has been proved to be correct and the land so acquired has been cancelled and resumed by the competent authority, the resumed land shall be allotted to the informant to the extent of his claim pending for allotment in the same Province."
Ultimately, on 22-3-1974 through Ordinance VI of 1974 and then through Act XXXVI of 1974, subsection (1-A) of section 14 of the Displaced Persons (Land Settlement) Act of 1958 was substituted as under: "(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amend--ment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled--
(a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and
(b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."
8. The perusal of the above memos and the law would show that from August 1962 till today, except the interregnum from 14-5-1964 to 25-2-1965, informants have been allowed concession of allotment of resumed land to the extent of their claim. According to memo No. 6609-64/18-R(L), dated 25-2-1965, one of the conditions laid down, however, was that the Deputy Commissioner exercising the powers of the Additional Settlement Commissioner would be the competent authority to allot land to the informants or otherwise from the land so resumed. The new provision inserted on 30-7-1973 through Act LV of 1973, the allotment of land resumed at the behest of the informants was made mandatory but by the substituted section 14(2)(1-A) of Act XXXVI of 1974, discretion was seemingly given to the competent authority that where the land resumed on the information of the informant had been allotted to some other person, the informant should be allotted, to the extent of his entitlement, from any other land of his choice available for allotment. It may be mentioned here that concession for the allotment through the memo dated 25-2-1965 and section 14(1-A) of Act LV of 1973 was prospective in nature, whereas substituted section 14(2)(1-A) of Act XXXVI of 1974 has a retrospective operation.
9. We would now examine the comparative entitlement of the contesting claimants for the allotment of the land in question in the light of the cited provisions.
10. May be that the resumption of the excess land from Hayat Khan was as a result of the information laid by Abdul Aziz respondent No.2, but as the record stands, the said land was, somehow, allotted and confirmed in the name of the appellant on 10-9-1964, who was a temporary allottee in Tehsil Rahimyar Khan and whose claim had already been transferred to this Tehsil. When this allotment was made, the concession of allotment of resumed lands to the informants did not exists because the same stood withdrawn on 14-5-1964. The appeal filed by Abdul Aziz respondent No.2 before the Deputy Settlement Commissioner, Sadiqabad, was dismissed on 21-1-1965 and on this date too the concession had not been restored to the informants as it was on 25th February 1965 when the concession of preferential right to the informants for the transfer of the resumed land was revived. Though in revision before the Deputy Commissioner, Rahimyar Khan, who was exercising the powers of the Additional Settlement Commissioner, respondent No.2 succeeded on 14-5-1965 in getting the order of the Deputy Settlement Commissioner, Saidqabad, reversed and thus secured the allotment of the disputed land, but it would hardly affect the case of the appellant, because, firstly the revisional powers of the Additional Settlement Commissioner were taken away by Amending Ordinance XIII of 1964 promulgated on 28-12-1964 and, therefore, as was rightly urged by the learned counsel for the appellant the said revision was not competent and the order of the Deputy Commissioner-cum-Additional Settlement Commissioner, Rahimyar Khan, was a nullity in the eye of law and without lawful authority, and, secondly, since the concession was revived through a memo., it did not have retrospective effect. There is nothing on the record to even suggest that respondent No.2, except the filing of the above revision petition, which was incompetent under the law, had made any, formal request separately for the allotment of the resumed land to the Deputy Commissioner as envisaged in the memo dated 25-2-1965. Moreover, Act LV of 1973 promulgated on 30-7-1973 too was prospective in nature. Therefore, obviously neither the memo dated 25-2-1965 nor Act LV of 1973 created any right in favour of the respondent. The allotment thus made in the name of the appellant on 10-9-1964 and upheld in appeal on 21-1-1965 had become a past and closed transaction.
11. True that Act XXXVI of 1974 has been made applicable with retrospective effect but it is equally true that by virtue of section 14(2)(1-A)(a) it has protected the allotment of resumed land to the appellant because the same was validly allotted to him earlier than respondent No-2. The claim of respondent No.2 can be satisfied, to the extent of his entitlement, from any other land of his choice in the same Province.
12. We have gone through the judgment relied upon by the learned counsel for the respondents and we are of the view that it has some distinguishing features and thus not applicable to the case in hand.
13. The result is that we accept this appeal and set aside the judgment of the High Court dated 23- 4-1974 with no orders as to costs.