' This Constitutional petition is directed against the order dated 3-4-1975 passed by the Addl.
Deputy Commissioner (Consolidation)/Settlement Commissioner, Multan.
2. The facts giving rise to this petition are that one Hakeem Muhammad Nawaz deceased owned considerable landed property in village Jampur in three Chahs i,e, Chah Saifwala, Chah Dhorewala and Chah Kaniz Fatima. The land was under occupancy tenancy of some non-Muslims. The owner filed suit for termination of the occupany tenancies in the Court of the Revenue Assistant in 1944, regarding land situated in Chah Dhorewala and Chah Kaniz Fatima. These suits were dismissed by the Revenue Assistant but in appeal, the Collector Multan reversed the order of the trial Court vide his order dated 31-7-1947. He held that in respect of the land situated in Chah Dhorewala and Chah Kaniz Fatima the occupany rights of non-Muslim tenants had extinguished. This order was dus implemented in the Revenue Record vide Mutation No,185 to 192. After partition the owner filed Suits No, 1451 to 1455 in the Court of the Deputy Custodian for a declaration that the occupany tenancy in respect of land at Chah Saifwala had been extinguished. The Deputy Custodian allowed the prayer vide his order dated 23-12-1948. However, on a revision petition filed by Ghulam Muhammad, Faiz Muhammad and Muhammad Yousaf, the Custodian set aside the order of the Deputy Custodian and held that the rights of occupancy tenancies still existed in the disputed land (of Chah Saifwala). He further held that the landlords would be entitled to receive their share of payment from the persons to whom the lands were allotted. The occupancy rights in Chah Saifwala covered an area of 271 Kanals and 4 Marlas. The Rehabilitation authorities allotted the land in Chah Dhorewala and Chah Kaniz Fatima to two real brothers Faiz Ali and Ghafoor (predecessors-in-interest of No,1 to 13) on 15-11-1960 at Ithatas No,2 and 4 of RL-II of village Jampur.
The area of Chah Saifwala was allotted to Inamul Haq at Khata No, 9 of RL-II on 27-2-1963 which was subsequently purchased by Fida Hussain through a registered sale-deed dated 17-11-1964.
Fida Hussain also submitted two applications before the Collector/D.R.C.(L), Multan challenging the allotment of land made to Faiz Ali and Ghafoor at Chah Dorewala and Chah Kaniz Fatima on the ground that the said land was not evacuee property. The Deputy Rehabilitation Commissioner (L) allowed the prayer and cancelled the allotment of the respondents by his order dated 12-12-1961.
The allottees filed an appeal against the said order in the Court of the Addl. Settlement Commissioner, Multan which was accepted vide the order dated 6-5-1965 on the ground that the Custodian had held the entire area to be evacuee land. Fida Hussain filed a revision petition against the said order which was accepted by the learned Settlement Commissioner, Multan vide his order dated 30-5-1966. He clearly held that the Custodian's order applied only to cases No, 1451 to 1455/1948 relating to the area situated at Chah Saifwala. Thus, the order dated 6-5-1965 passed by the Addl. Rehabilitation Commissioner and order dated 25-5-1965 passed by the Chairman, Allotment Committee, Multan were set aside by the learned Settlement Commissioner vide his order dated 30-5-1966. The said allottees filed a revision against the order dated 30-5-1966 which was dismissed by the Settlement Commissioner vide order dated 10-9-1966. Thereafter they filed Writ Petition No,489-R/67 which was dismissed by this Court on 23-10-1967. The Petition for Special Leave to Appeal No,1 of 1968, filed by Faiz Ali etc. Was dismissed by the Hon'ble Supreme Court on 31-5-1968. With this order the first round of litigation came to an end.
3. As mentioned above, the evacuee interest existed in land situated in Shah Saifwala in the light of the Custodian's order dated 26-1-1950. Out of this land 201 Kanals and 5 Marlas were allotted to one Inamul Haq on 27-2-1963. This allotment was not challenged by any body. Inamul Haq sold the land to Muhammad Saleem and Mst. Sharifa on 1-8-1964 but thereafter, sold the same to Hakeem Fida Hussain on 17-11-1964 through a registered sale-deed. Mutation No, 281 in respect of the said sale was sanctioned on 17-11-1964. An area measuring 180 Kanals and 10 Marlas from Chah Saifwala was allotted to Kamalud-Din predecessor-in-interest of the petitioners on 3-3-1973 by the Chairman Allotment Committee. After about 9 months the respondents filed revision petition against the allotment order dated 3-3-1973. The same was allowed by the learned Additional Deputy Commissioner/Settlement Commissioner vide order dated 3-4-1975. The learned Settlement Commissioner ordered that the land be allotted to the respondents. The petitioner filed the present writ petition in this Court which was dismissed on 12-3-1980. However, subsequently the dismissal order was recalled on a review application (36 of 1980) which was allowed vide order dated 19-4-1984.
4. The learned counsel for the petitioners contends that the order dated 12-3-1980 dismissing the writ petition, was later recalled because the order dated 30-5-1966 passed by the Settlement Commissioner against the order dated 6-5-1965 was not brought to the notice of the Court. A revision application was filed by Faiz Ali etc. Respondents which was dismissed on 10-9-1966. The writ petition against the order dated 10-9-1966 was dismissed on 23-10-1966. The petition for Special Leave to Appeal was dismissed by the Hon'ble Supreme Court on 31-5-1968. He submitted that in para. 5 of the written statement filed by the respondents it was wrongly stated that the order dated 6-5-1965 was never cancelled. The order dated 30-5-1966, was also maintained by the High Court and Supreme Court of Pakistan. These orders were not brought to the notice of this Court by the respondents. He further submitted that the revision petition under section 19 of the Displaced Persons (Land Settlement) Act was filed by the respondents with considerable delay which merited dismissal. He submitted that the units of Muhammad Ashraf etc. Were transferred to Dera Ghazi Khan and were not pending in the mauza. Hence no notice was required to be given to them. The Settlement Commissioner accepted the revision petition on the assumption that the land had been cancelled from the names of Muhammad Ashraf etc. Illegaly. In fact these matters stood concluded by the judgment of the Settlement Commissioner. He submitted, in the first round of litigation respondents No, 1 to 13 could have claimed the non-evacuee portion in their favour but they were non-suited on merits and cannot claim the disputed land. He pointed out that the allotment of land equivalent to 201 Kanals 5 Marlas made to Inamul Haq in 1963 was not challenged by the respondents. He further contended that the plea of re-transfer of units was not taken before the Settlement authorities. No documentary proof was annexed to the written statement to show re-transfer of units. He further contends that in the congested district the maximum limit of the units was 2000 PIUs. The respondents had obtained land against 2000 PIUs. In village Ferozepur, hence they were not entitled to more land against their claim in district Multan which was also a congested district.
5. On the other hand the learned counsel for the respondents urged that the entire land measuring 1,280 Kanals was under occupancy tenancy of non-Muslims although the owners were .Muslims.
The occupant' rights were extinguished on 31-7-1947. Five Muslim owners filed application on 28-9- 1948 for declaring the land as non-evacuee property which was allowed by the Deputy Custodian vide his order dated 23-12-1948. The said order was challenged before the Custodian who declared the entire property as evacuee vide his order dated 26-1-1950. Mutations bearing No, 213 to 217 were sanctioned on 21-11-1953 in accordance with the declaration of the Custodian. The Mutations were subsequently incorporated in the Jamabandi. The Muslim owners continued to occupy the evacuee property whereupon respondents Nos.1 to 13 moved an application under section 3 of the Land Settlement Act which was accepted by the Deputy Rehabilitation Commissioner, Multan vide his order dated 9-4-1960. On 12-11-1960 the entire land was confirmed in the area of Changranwala on 5-9-1961. The Muslim owners pleaded before the D.R.C. That an area mesuring 174 Kanals be' excluded from the allotment of respondents Nos. 1 to 13 on the ground that it was not evacuee, property. This was allowed vide the order dated 12-12-1961 and an area measuring 174 Kanals was restored to Muslim owners. While implementing this order the A.R.C. Cancelled the entire allotment to the extent of 1,280 Kanals vide his order dated 5-5-1962 by misconstruing the order dated 12-12- 1961. The appeal filed by the respondents was allowed by the Addl. Settlement Commissioner on 6- 5-1965 and the case was remanded to the D.R.C. For decision in the light of the Custodian's order.
After remand the D.R.C. Restored the entire land at Khatas No,3 and 4 because the Custodian had declared the entire land to be evacuee. The order passed by the D.R.C. After remand is dated 25-9- 1965. However, in revision the Settlement Commissioner vide his order dated 30-5-1966 set aside both the orders dated 6-5-1965 and 25-5-1965 passed by the D.R.C. And the D.S.C. Respectively.
According to the learned counsel, the Custodian had declared entire land to be evacuee property and the subsequent orders proceeded on the basic error in construing the order of the Custodian correctly. He further contended that the. Muslim owners had merest claimed 174 Kanals of land to be non-evacuee. The rest of the land was evacuee property and lawfully confirmed in the names of the respondents. He further contended that the respondents' units were received in the estate on 16-7-1965 as was evident from annexures R-3 to R-6 with the written statement while units of the writ petitioners were received on 13-11-1972. He placed reliance on Muhammad Shall and others v.
Chief Settlement and Rehabilitation Commissioner, and others 1968 SCMR 121, Muhammad Yahya v.
Misbahul Haq 1982 SCM R 269 and Fazal v. Dildar Bakhsh and another 1985 CLC 122 to contend that on the principle of first come first served, the respondents had prior right to the allotment of the land because they were the sitting allottees of the land in Jampur. He further contended that the writ petitioners were displaced persons from non-agreed area and were not entitled to the allotment of the land. Lastly he contended that the question of delay in filing the revision petition before the Settlement Commissioner was attended to by the concerned authority and was not open to attack in the exercise of the constitutional jurisdiction. He placed reliance on Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another PLD 1966 SC 276. In reply Malik Muhammad Nawaz learned counsel for the petitioners pointed out that the documents annexed as R.3 to R.6 were suspect documents. He pointed out that the certified copies of the same have not been placed on the record. According to the learned counsel there is a clear order for transfer of the respondents' units to Dera Ghazi Khan and report of the Settlement Commissioner shows that the units of respondents Nos.1 to 3 were not pending at the time when the impugned order was passed. He further submitted that the respondents had obtained allotment of land to the extent of 2000 units and were not entitled to transfer of any land in Multan district which was a congested one. They were not sitting allottees because the allotment made to them was cancelled. He further sumitted that section 5 of the Limitation Act was not applicable under the Land Settlement Act.
Hence the delay in filing the revision petition could not be condoned by the Settlement Commissioner. Lastly he pointed out that the respondents knew that the enitre land had been cancelled from their names but they did not agitate against it. Thus, they had acquiesced in the cancellation of the land.
6. Admittedly the revision petition before the Settlement Commissioner (L) could have been filed within a period of 60 days but in the instant case it was filed on 13-12-1973, about 9 months after the date of the order (3-3-1973) without any satisfactory explanation. The respondents did not specify the date of knowledge of the impugned order. Hence the Court below, illegaly entered upon the merits of the case. As held in the case of Abdul Jabbar Khan and another v. Addl. Settlement Commissioner (Land) West Pakistan and another PLD 1967 Lah. 25, the provisions of section 5 of the Limitation Act have not been made applicable for the purposes of condonation of delay for filing an appeal or revision petition under the Displaced Persons (Land Settlement) Act, 1958. The learned Settlement Commissioner wrongly ignored the bar of limitation. The revision petition could not have been entertained after the expiry of the period of 60 days. Hence the impugned order is a nullity in the eye of law.
7. As regards the merits of the case the respondents were wrongly treated to be the sitting allottees of the mauza. No doubt in the year 1960 some land in this mauza was allotted to the respondents but the same was cancelled from their names in the year 1963 and they got their units transferred to Dera Ghazi Khan. At the time when the allotment of the land was made to the petitioners, the respondents' claim was not pending in mauza Jampur. The report submitted by the Settlement Commissioner (L) Multan clearly shows that on 3-3-1973 when the land was allotted to the petitioners no units of the present respondents were pending satisfaction in village Jampur. Even if it is assumed that in the year 1963, the land allotted to the respondents was wrongly cancelled from their names obliging them to have their units transferred to another district it could not be sufficient for treating them as sitting allottees of the mauza. The learned Settlement Commissioner proceeded on entirely wrong basis for treating the respondents as sitting allotttees of the mauza.
The precedents cited by the learned counsel for the respondents about the claims of sitting allottees are not relevant in the present case as the respondents did not enjoy the status of sitting allottees.
8. After the conclusion of arguments the respondents had filed an application (C.M.1/89) for permission to place on the record certain documents to show that the pending units of the respondents were re-transferred to Mauza Jampur. The said application was dismissed by me vide order dated 5-7-1989. The authenticity of the said documents was questioned by the learned counsel for the petitioners as the stamps borne thereon were dim and could not be properly deciphered. For the same reason, I do not feel inclined to place reliance on the photo copies of the said documents.
9. As mentioned above the occupancy tenancies stood extinguished in respect of the land situated in Chah Dhorewala and Chah Kaniz Fatima. The land of said two Chahs was wrongly allotted to Faiz Ali and Ghafoor (Predecessor-inintreset of respondents No,1 to 13), on 15-11-1960. This allotment was challenged by Fida Hussain. The Deputy Rehabilitation Commissioner (Lands) cancelled the allotment vide the order dated 12-12-1961. Subsequently on an appeal filed by the allottees the Addl. Settlement Commissioner Multan set aside the order passed by the Deputy Rehabilitation Commissioner (L) vide his order dated 6-5-1965. However, on a revision petition filed by Fida Hussain the Settlement Commissioner (L) Multan vide his order dated 30-5-1966 set aside the order dated 6-5-1965. In his order the Settlement Commissioner made it clear that the Custodian's order dated 26-1-1950 pertained to Cases No, 1451 to 1455/1948 relating to the area situated at Chah Saifwala. The orders dated 6-5-1965 and 25-5-1965 were eliminated from the field in view of the subsequent order dated 30-5-1966 passed by the learned Settlement Commissioner which was maintained upto the level of the Supreme Court of Pakistan. Hence the respondents cannot take advantage of the order dated 6-5-1965 which no longer existed and otherwise pertained to lands situated in Chah Dhorewala and Chah Kaniz Fatima and not to the land in dispute in Chah Saifwala. They had suppressed the order dated 30-5-1966 and persuaded this Court to pass the order dated 12-3-1980 in their favour which was subsequently recalled on the review petition (RA.
36 of 1980) filed by the petitioners.
10. While passing the impugned order, the learned Settlement Commissioner ignored that the respondents had already obtained allotment against the legal entitlement of 2000 Produce Index Units in villages Ferozepur and Chaddhar. Even if it is assumed that their units had been re- transferred to district Multan they were not entitled to transfer of more land against their pending units in District Multan which was also a congested district. Hence, there being no lawful claimant in the field, the allotment of land made to Kamal-udDin, predecessor in-interest of the petitioners, despite being a displaced person from a non-agreed area, would hold the field.
11. The argument raised by the learned counsel for the respondents that while implementing the order dated 12-12-1961 the A.R.C. Wrongly cancelled the ensure allotment from the name of the respondents vide his order dated 5-5-1962 cannot be given much weight, because the respondents were fully aware of the cancellation of the entire land from their names but they never agitated against various other allotments of the said land and sales by the allottees till the disputed land was allotted in the petitioner's name on 3-3-1973. They definitely acquiesced in the cancellation of the land from their names and could not be heard to say at this belated stage that the cancellation of land from their names was the result of any error in implementing the order dated 12-12-1961. There is no substance in the argument raised by the learned counsel for the respondents that the Custodian had declared the entire land to be an evacuee property. The Custodian's order, as explained above, covered the specific cases pertaining to the land situated in Chah Saifwala and not in respect of the land in Chah Dhorewala and Chah Kaniz Fatima.
12. In view of the above discussion, I set aside the order dated 3-4-1975 passed by the learned Settlement Commissioner (L) Multan and restore the allotment of land made in favour of Kamal- ud-Din (predecessor-in-interest of the petitioners) vide the order dated 3-3-1973 by the Chairman Allotment Committee. Now the title documents be issued in the name of the petitioners. The parties are left to bear their own costs.