Constitutional petition under Article 199 of the Constitution challenging the allotment of 26 Kanals of evacuee land to respondent No. 1 by the Additional Settlement Commissioner, Kasur. The petitioner, a retired military officer, had previously been allotted the same land by the Border Area Allotment Committee and contested the subsequent allotment to the respondent.
The core questions were whether the petitioner possessed locus standi to challenge the impugned order, and whether the petitioner's own allotment by the Border Area Allotment Committee was lawful, given his membership on that Committee and his admitted landholdings exceeding the prescribed fifty-acre ceiling.
The Lahore High Court dismissed the petition. It held that the petitioner's allotment was a nullity because he had participated in the Committee's decision to allot land to himself, violating the principle that no person shall be a judge in his own cause (Nemo debet esse judex in propria sua causa). The Court further found that the Committee lacked competence to allot property not surrendered or taken into possession under the relevant Regulation, and that the petitioner's excess holdings negated his entitlement. Consequently, the petitioner had no vested right or locus standi to invoke the Court's constitutional jurisdiction.
' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the order dated 4-8-1975 ofAdditional Settlement Commissioner (Lands), Kasur, whereby the land measuring 26 Kanals comprising Khasra No,6963/1, situated within the municipal limits of Kasur, was allotted to respondent No,l.
2. The brief facts of the case are that Khasra No,6963 situated within the urban area of Kasur, comprises of 57 Kanals of an evacuee garden. Out of this land, 31 Kanals had already been transferred in favour of the petitioner by the Rehabilitation Authorities. This portion of the property is not under adjudication in this writ petition. The dispute in this case relates to 26 Kanals of land comprising Khasra No,6963/1. Initially the disputed land was temporarily allotted to Qazi Habibullah, respondent No,1, an urban claimant, as an evacuee garden, in lieu of the garden abandoned by him in India, by order dated 13-7-1955 of the Garden Allotment Committee. The allotment was, however, cancelled by the Deputy Rehabilitation Commissioner (Lands), Kasur, by order dated 11- 11-1960. Respondent No,1 challenged this order in the civil Court by means of a suit. Stay order was also obtained with the result that he continued in possession of the disputed land. The civil suit was dismissed for non-prosecution. Thereafter, the disputed land was treated as an 'evacuee trust property' from 1960 onward. It was put to auction first in 1963 and secondly in 1965. In the second auction, the son of respondent No,1 was declared as the successful bidder. In this background, respondent No,1 filed writ petition No,811/R-68 in this Court, challenging therein that the property in dispute was wrongly treated as evacuee trust property and also that the holding of auctions was without lawful authority. The writ petition was, however, dismissed as withdrawn on 12-6-1969, with the observation that Qazi Habibullah, respondent No,1, may approach the Chief Settlement Commissioner to get adjudication about the character of the property under subsection (3) of Section 4 of the Displaced Persons (Land Settlement) Act, 1958, as amended by Ordinance No,XXIII of 1 964. It was also observed that meanwhile respondent No,1 will not be ejected from the garden in dispute, if he was already in its possession. Accordingly, a petition was moved to the Chief Settlement Commissioner for determining the status of the disputed property, whereupon the Additional Commissioner (Revenue), Lahore, exercising the power of the Chief Settlement Commissioner, Lahore, by order dated 23-1-1970 held that the disputed land was an evacuee trust property, inasmuch as, it was attached to a religious institution as a Mandar before partition.
Against this order, Settlement Appeal No,2 of 1970 was filed in this Court by Qazi Habib Ullah, respondent No,l. The petitioner was also impleaded as one of the respondents. This appeal was accepted by order dated 4-6-1975, wherein it was held that the property in dispute was to be treated as an 'evacuee property' and not 'evacuee trust property'. The operative part of the judgment reads thus:- "....................................................... It may be made clear that this judgment, however, will not adversely affect the rights of respondent No,3 (Lt .-Col. (Retd.) Nafees-ud-Din Ansari) in the property allotted or transferred to him. Since the land bearing Khasra No,6963 has been held to be not trust property, therefore, the same was liable to be allotted under the Displaced Persons (Land Settlement) Act.
Even otherwise, if the same is treated to be an evacuee trust property in the case of respondent No,3, the same was liable to be disposed of in his favour under Section 7 of the Act by the Central Government, which has been empowered to do all acts regarding management and disposal of the pools created under the Act. The Scheme for the management of the Trust Property was framed by the Chief Settlement Commissioner under Section 14(2) of the Act and the said provision empowers him to make sale of the land where disposal by its sale seems to be appropriate course.
Anyhow, since the land allotted or sold in favour of respondent No,3 is not the subject-matter of this appeal, therefore, this judgment will not be applicable thereto."
3. Thereafter, by order dated 4-8-1975, respondent No,2 allotted the disputed land to respondent No,1 in implementation of the purported direction of the High Court passed in Settlement Appeal No,2 of 1970.
4. Prior to that, the Border Area Committee by order dated 31-10-1969 allotted the total Khasra No,6963 to the petitioner Lt.-Col. (Retd.) Nafees-ud-Din Ansari, inasmuch as, the petitioner was recommended and approved for allotment by the G.H.Q. Under Martial Law Regulation No,9. It may, however, be observed that admittedly the petitioner was himself one of the Members of the Border Area Allotment Committee, who made the allotment in his favour. The Secretary, District Evacuee Trust Property Board, District Lahore, filed civil petition No,797 of 1975 against the petitioner and respondent No,1 and others against the order dated 4-6-1975 of the Lahore High Court, Lahore, passed in Settlement Appeal No,2 of 1970. Col. (Retd.) Nafees-ud-Din Ansari, petitioner herein, filed civil petition No,883 of 1975 against Qazi Habibullah, respondent No,1 herein, and others. Leave to appeal was granted by the Supreme Court in Civil Petition No,797-75 on 27-1-1977, but leave was refused in Civil Petition No,883-75 on the ground that the order dated 4-6-1975 of the High Court passed in Settlement Appeal No,2 of 1970 did not adversely affect Col. (Retd.) Nafees-ud-Din Ansari, petitioner herein, and therefore, he had no locus standi to challenge the same.
5. Sh. Abdul Mannan learned counsel for the petitioner submits that the impugned order is based on erroneous assumption of fact that a direction was given by the High Court in order dated 4-6- 1975 passed in Settlement Appeal No,2 of 1970 for the allotment of the disputed land in favour of respondent No,1, whereas no such direction was given by the High Court in the said order. On the contrary it was clarified that the judgment delivered in Settlement Appeal No,2 of 1970 will not adversely affect the rights of the petitioner. It is next contended that the impugned order is violative of the principles of natural justice, inasmuch as, the petitioner was not heard notwithstanding the fact that he submitted an application before the Additional Settlement Commissioner that he may be heard before any action is taken in the matter. Finally, it is submitted that after repeal of the Evacuee Laws, the Settlement Authority was not competent to allot the disputed land on 4-8-1975, in favour of respondent No,1, particularly, when the disputed land had already been allotted to the petitioner by the Border Area Allotment Committee by order dated 31-7-1969. This order became final as it was not challenged before any competent forum and that the respondent has also been allotted land against his verified claims, in other areas of Lahore such as Ichhra and Amar Sadhu.
6. Mr. A.R. Shaukat, learned counsel for the respondent has raised a preliminary objection that the petitioner has no locus standi to invoke the Constitutional jurisdiction of this Court, inasmuch as, apart from the disputed property he has already procured 628 Kanals 5 marlas of land vide mutation Nos.2452 dated 20-1-1970 and 900 dated 4-11-1969 which is above his entitlement of fifty acres as laid down in the instructions issued by the Settlement Commissioner (Lands), Punjab, Officer Incharge Border Cell, vide Letter No,MBR/B AC /316-75-82 dated 25-7-1975 and the allotment procured by him from the Committee was a nullity, inasmuch as, he was not competent to make the allotment as Chairman/Member of the Border Area Allotment Committee in his own favour.
7. I have perused the record and given my anxious consideration to the submissions made by learned counsel for the parties. According to the instructions, referred to above, the serving/retired officers of armed forces are eligible for allotment of land in the border belt upto 50 acres. The increase in holding as a result of consolidation of holdings/settlement operations is not to be taken into account. In the instant case, the petitioner Lt.-Col.(Retd) Nafees-ud-Din Ansari, has admitted before this Court during the course of arguments that he was allotted an area of 56.4 acres of urban and rural land in border belt apart from the disputed property. He, however, submitted that under some other instructions issued under Martial Law Regulation No,9, he could retain the land in excess of fifty acres. Neither the petitioner nor his counsel has been able to refer any such instructions.
8. Furthermore, in the exercise of Constitutional jurisdiction of this Court, which is discretionary in nature, the petitioner cannot be permitted to take advantage of the allotment made in his favour by the Border Area Allotment Committee as the same also suffers from a patent illegality. It is a fundamental rule in the administration of justice that a person cannot be judge in his cause (Nemo debet esse judex in propria sua causa). No man can be his own judge and litigant. Where the judge has interest in the result of a cause, he cannot sit in judgment upon it. Here the petitioner was an interested party being an applicant for the allotment of the land in dispute and, therefore, his association in the Committee and participation in the decision making disqualified him to be member/ Chairman of the Committee for the purpose of deciding his own application. It is true that the Committee consisted of two officials and the petitioner was not the sole member of the Committee, but under the Regulation, the allotment had to be made by the Committee and not by one member thereof acting singly and, therefore, even if the other member is assumed to be not acting under the influence of the petitioner in the deliberation of the Committee, the allotment made in favour of the petitioner was not lawful, in that, one member could not act single handedly under the Regulation. I am, therefore, unable to agree with Mr. S.A. Mannan, learned counsel for the petitioner that no prejudice was caused as to the merits of the case by the mere participation of the petitioner in the Committee, which allotted the disputed land to him. I am also unable to uphold the contention of the learned counsel for the petitioner that once the recommendation is made by the G.H G.H.Q. And there is no other applicant, the allotment to the G.H.Q. Recommendee is a mere formality. Schedule I to Zone 'B' Martial Law Regulation No,9, lays down the categories of persons, who are eligible for allotment of evacuee land/property for the purposes of Regulation No,9. Under clause (4) of the Schedule, service and ex-servicemen recommended by the G.H.Q. Are no doubt eligible to be considered for allotment in the light of the provisions made in the Regulation in conformity with the objective standards laid down thereunder and on such terms and conditions as may be prescribed by the Government, but there is no provision for automatic allotment, to service or ex-service men recommended by the G.H.Q. Additionally, under paragraph 13(a) of West Pakistan Border Area Regulation, 1959, the Border Area Allotment Committee is competent to allot only such evacuee property as may have been surrendered or taken possession of under the Regulation. Here respondent No,1 continued to be in possession of the disputed property. The record of the Court does not show that the property was either surrendered or taken possession of under the Regulation before issuance of allotment order in favour of the petitioner by the Border Area Allotment Committee. Hence the Committee was not competent to allot the same to the petitioner. It is, therefore, difficult to hold that the petitioner has any vested right or a locus standi to challenge the impugned order when the allotment made by the Border Area Allotment Committee in his favour has not created any legal effect whatsoever entitling him to invoke the Constitutional jurisdiction of this Court. It is, therefore, not necessary to examine the other contentions raised by learned counsel for the petitioner.
' In view of the above, the writ petition fails and is hereby' dismissed, but there shall be no order as to costs.
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