This petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973, read with the Provisional Constitution Order, 1981, calls in question the order dated 19-5-1981 passed by the Settlement Commissioner (Lands)/Chief Settlement Commissioner, Punjab, Lahore, whereby the revision petition filed by Abdul Ghani father of the petitioner in pursuance of Writ Petition No. 380/R- 75 decided on 10-11-1976 was dismissed on the ground that the petitioner had no unsatisfied unit and his entire claim had been satisfied and the order dated 30-9-1964 of the Deputy Settlement Commissioner (Lands), whereby the disputed land was allotted to Bashir and Sharif respondents Nos. 2 and 3 herein, who sold it to respondent No. 4, who in turn sold to respondents Nos. 5 and 9.
2. Briefly, the facts of the case are that Abdul Ghani father of the petitioner was a Jammu and Kashmir refugee in village Kotehra, District Sialkot, since 4-9--1947. His claim was verified to the extent of 1491 P.I. Units. He was allotted land equivalent to 584 units on 26-6-1960 in village Kotehra and 50 units in village Taurnal and 138 units in village Bilaloch. He also secured the allotment of 246 units on 15-5-1964 in village Kotehra. Thereafter, the land measuring 57 Kanals 17 Marlas equivalent to 270 P.1: units in village Kotehra was allotted to Bashir and Sharif respondents Nos. 2 and 3 vide order dated 19-5-1964. The petitioner's father challenged this allotment before the Additional Settlement Commissioner, Sialkot, on the ground that his claim had not yet been satisfied and he being a senior had a preferential right for the allotment. The Additional Settlement Commissioner accepted the appeal and remanded the case to the Deputy Settlement Commissioner vide order dated 19-5-1968. Respondents Nos. 2 and 3 challenged this order in revision which was rejected by the Settlement Commissioner (Lands on 13-3-1970. The order was, however, modified to the extent that the Additional Settlement Commissioner should hear the case on remand and not the Deputy Settlement Commissioner. On remand, the Additional Settlement Commissioner came to the conclusion that the order in favour of respondents Nos. 2 and 3 was valid and, therefore, dismissed the appeal on 8-4-1971. It was also dismissed on the ground of limitation. The petitioners father challenged that order in revision petition, which was also dismissed on 25--6-1974. Meanwhile, respondents Nos. 2 and 3 had sold the land in dispute to one Ghulam Gilani respondent No. 4, who in turn sold to respondents Nos. 5 to 9 vide registered sale-deed dated 10-11-1967, Abdul Ghani petitioners' father challenged this order by means of writ petition No. 380/R-75, which was accepted on 10-11-1976 and the case was remanded for decision afresh in accordance with law by the authority appointed under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
3. In pursuance of the remand order, the Settlement Commissioner (Lands), Punjab, Lahore, by order dated 15-9-1981, held that the entire units of petitioners' father Abdul Ghani had already been adjusted and, therefore, he had no right for transfer of the disputed land which has been allotted to respondents Nos. 2 and 3.
4. Learned counsel for the petitioners contends that the finding of fact recorded by the Settlement Commissioner is partly based on no evidence on record and partly in disregard of the statement of Patwari of village Jhulke dated 21-11-1979, wherein he stated that the allotment of 75 Kanals of land in the said village Khata No. 89 equivalent to 489 P.I. Units was fake. By order dated 24-1--1982, this Court directed the Chief Settlement Commissioner to submit a report on this point. In consequence, the Additional Settlement Commissioner after perusing the record submitted a report on 2-5-1982 that the disputed allotment was never implemented either in. The relevant Khasragirdawari or register haqdaran nor there is any document in the revenue record to substantiate the authenticity of the allotment made in RL-11 against Khata No. 89 and therefore, it was a bogus document.
5. Ch. Muhammad Hassan, learned counsel for respondents Nos. 5 to 9 was unable to rebut the aforesaid report. He, however, submitted that the petitioners are estopped by their conduct to raise this question of fact in writ jurisdiction. He also took up the plea that allotment dated 13-3-1971 purported to have been issued by the Additional Deputy Commissioner (General)/Additional Settlement Commissioner (Lands), Sialkot, has since not been specifically challenged, no relief can be granted to the petitioner in this regard.
6. I have given my anxious consideration to the submissions made by learned counsel for the parties and perused the material available on the record. The impugned order is based on the allotment dated 13-7-1971 at Khata No. 89 RL-11. The petitioners are, therefore, within their right to show that it is a fake document. This point was specifically raised by the petitioners at motion stage before admission of the writ petition, wherein it was specifically contended that the alleged allotment was fake. This Court by order dated 24-1-1982 called for the report from the Chief Settlement Commissioner on this aspect of the matter. It is stated in the report of the Assistant Commissioner dated 2-2-1982 that the disputed allotment is a fake document.
7. Be that as it may, the respondents have not been afforded an opportunity of being heard to present their view point to the Assistant Commissioner, Daska, who submitted the report. This being so, the impugned allotment cannot be declared as fake on the basis of the said ex parte report, in the exercise of writ jurisdiction. On the other hand, the learned Settlement Commissioner, on the basis of the statement made by Naib Office Kanogo on 7-8-1980, recorded a finding of fact that the disputed land was allotted to Abdul Ghani the father of the petitioners. This finding is in conflict with the report of the Assistant Commissioner, Daska, dated 2-5-1982. On this short ground alone, the matter requires further inquiry. This Court, in the exercise of writ jurisdiction, cannot examine disputed questions of fact nor can substitute its decision for that of the Settlement authorities.
8. In view of the above, the impugned order dated 15-9-1981 of Syed Sajid Hussain Sherazi, Settlement Commissioner (Lands), Punjab, Lahore, is declared as without lawful authority and of no legal effect. The case is remanded to the Notified Officer under the Evacuee Property Displaced Persons Laws (Repeal) Act: 1975, to hear the parties and after examining the entire relevant record decide it afresh on the point, whether the alleged allotment of 75 Kanals in village Jhulke at Khata No. 89, 489 Units, is a fake allotment. If the answer is in the affirmative, the allotment shall stand cancelled and allotted to the petitioners against their pending units, if any. If the allotment is proved to be a genuine document, the impugned order shall hold the field.
9. The parties are directed to appear before the Additional Commissioner (Revenue), Gujranwala Division/Notified Officer under the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975, on 20-3-1989. To this extent the writ petition is accepted, but the parties shall bear their own costs.