IHSAN-UL-HAQ CHAUHDRY, J.--The petitioners, through this Constitutional petition have prayed for a direction to respondent No.1 not to interfere in the matter and to respondents No.2 and 3 to give effect to order dated 8.11.1989 in the revenue record.
2. The relevant facts are that the petitioners migrated on the eve of partition from Amritsar city to Lahore. The petitioners submitted their claim in respect of urban agricultural land abandoned by them in India. Since the special Jamabandi was not available therefore their claim was rejected.
The petitioners thereafter filed a suit for declaration in the year 1965. The same was decreed by the learned trial Court vide judgment and decree dated 27.2.1971. The Settlement Department filed an appeal. The same was dismissed by the appellate Court vide judgment and decree dated 8.9.1971.
The petitioners thereafter approached the Chief Settlement Commissioner for satisfaction of their claim in terms of the decree of the civil Court but all their efforts failed. The petitioners thereafter .
Invoked the Constitutional jurisdiction of this Court through W.P.No.516-R/74. The same was disposed of vide order dated 1.10.1974 with the direction to the Chief Settlement Commissioner to look into the matter and decide the fate of the claim of the petitioners who had during the pendency of the writ petition proceeded to file Mukhbari application against Nizam Din and 4 others in respect of bogus allotment obtained by them in villages Ajudhiapur Chung Khurd Babu Sabu and Kot Lakhpat of Lahore District. The petitioners in pursuance of the order dated 1.10.1974 of this Court moved an application before the Chief Settlement Commissioner who marked the same to Commissoner Lahore Division with the powers of Settlement Commissioner for its disposal in the light of the observations of this Court. This application was decided vide order dated 26.5.1975 and the claim to the extent of 5569 index units was verified. it is added that on account of indifferent and lethargic attitude of the Department that it took almost three decades to verify the claim of petitioners and then for another coming 15 years failed to make any allotment to the petitioners against claim so verified. it was on 25.1.1989 when D.S.C(L),Lahore proceeded to order that since all urban agricultural land within the Municipal Limits has been declared as building site therefore the petitioners may be given option for allotment of agricultural land.
3. On the other hand the application of the petitioners under section 10/11 of Land Settlement Act was ultimately allowed by Settlement Commissioner vide order dated 12.7.1989 and the petitioners were held entitled to get the land to the extent of 5569 produce index units out of the land so resumed from the names of Nizam Din and others Accordingly the petitioners moved D.S.C(L)/notified officer for implementation of the order dated 12.7.89 but on inquiry by the notified officer it transpired that the land which was so resumed is not available for allotment to them therefore the petitioners were asked to give their option. The petitioners accordingly pointed out the land in dispute. The result was that the land' in villages Charrer and Amer Sidhu was allotted to the petitioners. The allotment was given effect to in the RL-ll. The same are appended as annexures 'C and D' Respectively .The matter was pending with the A-D.C.(G)/Collector Lahore for sanction of mutation but the officers refused to give effect to the allotment made in the names of the petitioners on the pretex that the respondent No.1 has passed same order not to give effect to the allotment in the names of the petitioners. The petitioners finding no way out were constrained to file this Constitutional petition.
4. The petition was admitted to regular hearing and notices were issued to the respondents who have appeared through Advocate-General Punjab and contested the petition.
5. The learned counsel for the petitioners in support of the petition has argued that respondent No.1 had no Jurisdiction whatsoever to pass the impugned order. it is added that all Courts are to function in the sphere allocated to them. In this behalf the learned counsel has referred to Article 175 of the Constitution of Islamic Republic of Pakistan. it is added that Act XXVIII of 1958 was repealed with effect from 1.7.1974 and according to Section 2(2) of Act XIV of 1975 the orders of notified officers were to be treated as final. There was absolutely no power of review appeal or revision. The learned counsel in this behalf has relied on the judgment of Hon'able Supreme Court in the case of Officer on Special Dutv. Central Record Office and others Vs. Bashir Ahmad and 9 others (1977 S.C.M.R.208) and judgments of this Court in the cases of Muhammad Yusuf and 2 others Vs. Chief Settlement Commissioner Punjab, Lahore & 2 others 11980 C.L.C.744) and Mst.
Fattan________ and 4__ others Vs.Chief___ Settlement Commissioner/Member. Board of Revenue. Punjab and another (1988 C.L.C.1699).
6. The next argument is that now the policy is that the settlement matters should be concluded at the earliest possible date and all out effort should be made not to re-open the matters unnecessarily. The learned counsel in support of the contention has referred to the judgment of the Hon'able Supreme Court in the cases of Faizuddin Ahmad Vs. Muhammad Yousaf and another (1988 S.C.M.R.1289) Sher Afzal Khan and others Vs. Haji Razi Abdullah and others (1984 S.C.M.R.228) and judgment of this Court in the case of Malik Shahab Din and 4 others Vs. Imdad Ali Ghallu A- D.C.fGV Bahawalpur and 7 others (1986 C.L.C.2194).
7. The submission on merits of impugned order is that respondent No.1 proceeded on a mistaken assumption of law to hold that petition for restoration of Mukhbari application was not competent.
The submission in nut-shell is that the Settlement Commissioner seized of the matter had exercised the discretion properly and order was passed as back as 12.1.1978 and it was not challenged in any forum therefore it was a past and closed transaction. Respondent No.1 had no jurisdiction to find fault with the same. The learned counsel in support of the proposition that the restoration petition was competent has referred to the case of Ghulam Muhammad Vs.D.S.CfLletc.
(1986 Law Notes (Lahore)759).In this behalf it was added that respondent No.1 has proceeded in a mechanical and illegal manner. The next submission is that order dated 25.1.1989 of D.S.C (L)/notified officer was no hurdle or bar to the order dated 8.11.1989 passed by Waqar Ahmad Khan, D.S.C(L)/notified officer because in the earlier order the officer had shown his in-ability to allot land against the verified claim of the petitioners while through order dated 8.11.1989 the petitioners were allotted land as informers on the basis of the order dated 12.7.1989 passed by the Settlement Commissioner .It is submitted that neither the second notified officer reviewed the earlier order of the other notified officer nor he departed from the tenure of the order dated 26.5.1975.
8. It was further added that Section 2(6) of Act XXVIH of 1958 defines Settlement Authority while Sections 10/11 of the said Act do not require that the allotment should be made by the same authority who has passed an order under sections 10/11 of the Act. On the order hand it was to be made by a notified Settlement Authority. In this behalf it was submitted that the Chief Settlement Commissioner proceeded to divide the areas of operation between the notified officers vide notification dated 24.10.1989 and according to this notification the area in which the allotment has been made to the petitioners fell within the jurisdiction of Mr. Waqar Ahamad. The learned counsel submitted that according to the instructions issued by the Department vide memo.No.3741-75/841- R(L) dated 24.4.1975, after the acceptance of the petition under sections 10/11 of the land Settlement Act the proceedings were to be treated as pending proceedings. The submission is that with the decision of the application under sections 10/11 one stage came to an end while in respect of the implementation of this order the proceedings were to be treated as pending proceedings and therefore no fault could be found with the order dated 8.11.1989.
9. The learned Counsel for the petitioners concluded his arguments with the submission that the notified officer showed his in-ability to allot any land against verified claim vide order dated 25.1.1989 because all urban agricultural land within the Municipal limits was declared as 'building site' and the authorities were stopped from making allotment of this land as it was decided to dispose of the same through open auction. it is added that respondent No.1 failed to appreciate that through the circular dated 18.2.1974 of the Chief Settlement Commissioner it was clarified that this embargo does not pertain to the allotments to be made to informers in respect of the lands resumed in the proceedings under section 10/11.
10. On the other hand the learned Advocate General, Punjab on behalf of the respondents has argued that the order of Mr. Waqar Khan dated 8.11.1989 is coram non judice for the following reasons:- a) It tantamount to review of order of Mr. Ijaz Ahmad dated 25.1.1989. It is added that both being D.S.C.,Mr. Waqar Ahmad had no jurisdiction to sit in judgment over the order of Mr. Ijaz Ahmad;and b) That the order of Mr. Waqar Ahmad was in violation of order dated 12.7.1989 of Mr. Sarfraz Ali Khan delegatee of the Chief Settlement Commissioner. it is submitted that the application of the petitioners was accepted and they were to be allotted land resumed from Nizam Din etc. In this behalf the learned Advocate-General has referred to para 10 of the judgment of Mr. Sarfraz Ali Khan appended as annexure !A!.It is added that Mr. Waqar Ahmad could have implemented this order as it is and could not have allotted land to the petitioners other than the land resumed from Nizam Din etc. He,in this behalf has referred to para 9 of the order dated 8.11.1989 of Mr. Waqar Ahmad to contend that there was no question of giving choice to the petitioners. it is added that in terms of the notification dated 24.4.1975, a notified officer could implement the order of the other Settlement Authority as it is but could not travel beyond the same. The other submission was that the Chief Settlement Commissioner being at the apex of the administration has every authority and jurisdiction to interfere in the orders passed by its subordinates which are without jurisdiction.
11. The next submission was that the conduct of the petitioners disentitles them of any relief in writ jurisdiction. In this behalf the learned Advocate-General has referred to observation of respondent No.1 in the impugned order that there were interpolations in the 'Mukhbari, appication. it is added that Settlement Commissioner has no power to restore 'Mukhbari application especially when the matter was also disposed of on merits.
12. Mr. S.M. Nasim. Advocate while replying to the arguments of the learned Advocate-General submitted that Mr. Waqar Ahmad Khan while passing the order dated 8.11.1989 did not review the earlier order of Mr .Ijaz Ahmad Khan dated 25.1.1989 appended as annexure 'R/VII' with the report because that order was passed as to allotment of the land against the claim of the petitioners while Mr. Waqar Ahmad Khan proceeded to make the allotment to the petitioners as infromers. it is added that it is clear from the notifications dated 16.5.1973 and 18.2.1974 that these are to different categories. Therefore the order passed on 25.1.1989 has no bearing or adverse reflections on the order dated 8.11.1989 passed by Mr. Waqar Ahmad Khan. it is added that in view of the provisions of Section 2(4) of Act XIV of 1975, it is the duty of respondent No.1 to execute the orders of Settlement Authorities and to achieve this object the respondent No.1 appointed Mr. Waqar Ahmad as a notified officer vide notification dated 24.10.1989 (appended as annexure 'H').The arguments are concluded with the submission that Mr. Waqar Ahmad also did not go beyond the tenor of the order of Mr. Sarfraz Ali Khan dated 12.7.1989 as he proceeded to record evidence as to the availability of the land and it is only thereafter that he proceeded to allow an option to the petitioners in term of Section 14(1-A) of Act No.XXVIII of 1958 as inserted by Act No.XXXVI of 1974.
13. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record relevant provisions of law as well as the cited precedents. Now I proceed to deal with the arguments raised by the learned counsel for the petitioners with reference to counter arguments of the learned Advocate-General Punjab.The first submission on behalf of the petitioners was that respondent No.1 has no jurisdiction,whatsoever,to pass the impugned order. The learned counsel in this behalf has referred to Act LV of 1973, Act XXXVI of 1974 and XIV of 1975. The submission in nut-shell is that after the repeal of the Settlement Laws on 1.7.1974, the settlement Authorities have no power of review appeal or revision. The orders passed by notified officars have been made final. The anxiety of the legislature may be to conclude the Settlement work one way or the other. The learned counsel in this behalf has rightly referred to the judgments in the cases of Officer on Special Duty Central Record Office and others Muhammad Yusuf and 2 others and Mst. Fattan and 4 others.
14. The learned Advocate-General in reply to the submission on behalf of the petitioners argued that respondent No.1 being at the apex of the administration has every authority and jurisdiction to set-aside the illegal orders passed by his subordinates. The arguments of the learned Advocate- General as already noted in the foregoing paragraphs are that the order dated 8.11.1989 of Mr. Waqar Ahmad Khan is illegal. The learned Advocate-General however failed to refer to any provision of law giving the power of revision appeal or review to respondent No.1. The legality or otherwise of an order could only gone into by a competent authority who may have jurisdiction in the matter. Thus the action of respondent No.1 is patently in excess of authority and is .Therefore without jurisdiction.
15. It is not necessary to examine the legality of order dated 8.11.1989 passed by Mr. Waqar Ahmad Khan as the same has not been challenged in properly constituted proceedings by anyone but in order to avoid multiplicity of proceedings and to do complete justice, I proceed to examine the plea raised by the learned Advocate-General. In this behalf the attack to the order of Mr. Waqar Ahmad Khan was to fold. The first was that this amounted to review of the order of Mr. Ijaz Ahmad Khan dated 25.1.1989. The argument is clearly misconceived.Mr. Ijaz Ahmad Khan showed his inability to make any allotment to the petitioners as claimants whereas Mr. Waqar Ahmad Khan proceeded to make allotment to the petitioners as informers. Both the capacities are different. In case of a claimant there could be no allotment within the Municipal Limits in view of the notification dated 16.5.1973 but this notification was not applicable to the informers as clarified in notification dated 18.2.1974. The last notification clearly gives the background of this amendment in the policy. I hold that in view of introduction of Section 14(1-A) through Act LV of 1973 and its substitution by Act XXXVI of 1974 this notification was necessary and the policy was rightly amended and modified.
16. Now coming to the other ground of attack to the order of Mr. Waqar Ahmad Khan namely that he could not have made allotment of alternative land of the choice of the petitioners because Mr. Sarfraz Ali Khan has ordered as is clear from para 10 of his order, that the resumed land should be allotted to the petitioners. The argument is again clearly misconceived.Mr. Waqar Ahmad proceeded to implement the order dated 12.7.1989 and he in this behalf he examined concerned four revenue patwaris. it transpired that land resumed was not available .Therefore, the petitioners requested him for allotment-of alternative land in terms of Section 14(1-A) of Act XXXVI of 1974. it is relevant to refer to the provision before proceeding any further .The same reads as under:- "(2) for subsection (1-A) the following shall be substituted namely:- "(1-A) Where at any the before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) 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 in a claimant to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or if the resumend land has already been allotted to some other persons to the allotment to the said extent of any other land of his choice available for allotment in the same Province land
(b) in any other case to a cash award of such amount as the Chief Settlement Commissioner may decide."
It is clear from the section that if the information submitted by him is proved to be correct and such land is resumed then he is entitled to:- i) if claimant to the allotment of resumed land to the extent of his pending claim in the province;or ii) if the land has already been allotted to other person then to allotment of and other land of his choice available for allotment. The restriction is only to the extent of pending claim and the province. And iii) in any other case he is entitled to cash award of the amount to be decided by the Chief Settlement Commissioner.
17. Now when Mr. Waqar Ahmad Khan, after recording the evidence came to conclusion that the land resumed in pursuance of order dated 12.7.1989 of Mr. Sarfraz Ali Khan is net available then he rightly proceeded to accept the request of the petitioners for allotment of the land in dispute. The D.S.C, did not proceed to allot the same straightaway but he first verified whether the same is available or not? It was only when it was proved that the land selected by the petitioners is available the same was allotted to the petitioners.
18. This is not all.The conclusion of the order of Mr. Sarfraz Ali dated 12.7.1989, reads as under:- "..... These petitioners/informers are entitled for allotment of the resumed land to the extent of their verified pending claim as per classification of the units in accordance with the provision of Section 14(1-A) of the Displaced Persons (Land Settlement)
Act,1958."
It is clear that the petitioners were to have the allotment in terms of Section 14(1- A).Therefore, there is nothing wrong with the order of Mr. Waqar Ahmad Khan when he proceeded to accept the request of the petitioners for alternative land.
19. The argument of the learned Advocate-General is without any merit yet for another reason also accordingly to Section 14(1-A, as reproduced above the informant in the first instance is entitled to allotment of the resumed land. The question whether the resumed land is available or not is a subsequent question which will arise only when the allotment is to be made to the informants in accordance with their verified claim. The need for this exercise arises only at the the of the allotment and not at the the of decision of application under sections 10/11, because at that stage there was no question of the petitioners or any one being giving choice for alternative land Incidently the above provision is a complete reply to the first argument of the learned Advocate- General in this behalf that Mr. Waqar Ahmad had no jurisdiction to review the order of Mr. Ijaz Ahmad Khan. it is clear from bare reading of this provision that if the informer is a claimant then he will be entitled to allotment of land and in any other case to cash compensation. Therefore,refusal of Mr. Ijaz Ahmad Khan to allot land to the petitioners as claimants did not affect their entitlement to secure allotment as informants.
20. It is clear from the order of Mr. Sarfraz Ali Khan read with order of Mr. Ijaz Ahmad Khan and Mr. Waqar Ahmad Khan that they conducted the proceedings strictly in accordance with law and there is nothing wrong with the same-It is only respondent No.1 who illegally and without jurisdiction interfered in the matter sitting in his office. The days of royal decrees have gone now.
The functionaries of the State are to function strictly in accordance with the sphere alloted to them and in accordance with law. No Court or authority is entitled to exercise powers not vested in it. The learned counsel for the petitioner has rightly referred to the provision of Article 175 of the Constitution. The proposition can be approached from another angle that all citizens have an inalienable right to be treated in accordance with the law as per Article 4 of the Constitution of Islamic Republic of Pakistan. The action of respondent No.1 being derogatory to the law and the Constitution is liable to be struck down. I find it not possible to express myself better than done by this Court in case of Mr. A. Raza Deputy Chief Engineer. West. North-Western Railway. Lahore and others Vs. The Federation of Pakistan etc. (P.L.D. 1958 (W.P. Lahore 185). The relevant portion of the judgment reads as under:- "Kayani, J.--I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in an Introduction to a Commentary
(1) that members of the public services were said to hold office during the pleasure of the President or the Governor as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious, phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947, has made it possible for a Government servant sue the Crown in tort. The old decisions like I.M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah almighty alone, says the Preamble to the Constitution. Even if the Preamble had been less pious, the King-can-do-no-worag theory was by its very nature inapplicable to a democratic State."
21. The learned Advocate-General argued that the conduct of the petitioners disentitled them to any relief in the Constitution jurisdiction. In this behalf, he has referred to certain interpolations noted by respondent No.1 in the impugned order. The argument does not require any serious consideration for the reason that respondent No.1 has not given any positive finding on this point.
He has simply referred to this fact. On the other hand, the learned counsel for the petitioners has referred to the comments filed by respondent No.1 in W.P.No.646- R/78 and placed on the file as annexure 'F wherein it was categorically stated that there was no interpolation in the Mukhbari application.
22. Now I proceed to examine the order of respondent No.1 whether it could be justified legally or factually. Respondent No.1 held that the order dated 12.1.1978 of the Settlement Commissioner is illegal and without lawful authority for the following reasons: -
(a) that after repeal of Evacuee Laws no Settlement Court was competent to review any order passed by it or its predecessor.
The order dated 12.1.1978, whereby Mr. Bhatti, Settlement Commissioner restored the application of the petitioners under section 10/11 cannot be termed as a review of earlier order of dismissal, it was simply and purely an order of restoration; and
(b) that application could have been restored on valid grounds and if moved within 30 days it was held by him that there was no legal justification for restoration of the order. The learned Advocate- General further added that the petitioner was not only dismissed for non-prosecution but also for lack of evidence.
The order of dismissal of Mukhbari application was in paramateria to an order passed under Order XVII Rule 2 C.P.C. It is settled law that if plaintiff fails to enter appearance on the adjourned date the court can proceed to dismiss the suit. This way the application inf at was dismissed for non- prosecution. In any case although the order is dated 12.1.1978 but nobody including respondents ever changed the same in any forum. The respondents have placed on record the interim orders as annexure 'R/3' The perusal of the same shows that the petitioner was fixed for 7.7.1977 but on this date the Presiding Officer was on leave, therefore, the matter was adjourned to 13.7.1977 for 'further proceedings and on this date the Settlement commissioner was ill advised to dismiss the application for non-prosecution as it was not a date of 'hearing'. The order was patently illegal and the moment it was brought to the notice of the Settlement Commissioner, he was under a legal obligation to set-aside the order of dismissal. Reference, in this behalf, can be made to the judgment of this Court in the case of M /s. Aziz Floor Mills. Bahawalpur and 2 others Vs. The Industrial Development Bank or Pakistan (P.LJ.1990 Lahore 168).
23. The respondent No.1 then proceeded to nullify the order of allotment dated 8.11.1969 on the grounds namely that Mr. Ijaz Ahmad Khan, D.S.C., another notified officer had already refused to make allotment against this claim vide his order dated 25.1.1989. And that Mr. Sarfraz Ali Khan, by his order dated 12.7.1989, held the petitioners entitled to the land so resumed but Mr. Waqar Ahmad, D.S.C, proceeded to allot land according to the choice of the petitioners. It was, therefore, concluded that the latter officer, instead of implementing the order has gone beyond the scope of the same.
The reasoning is clearly illegal, illogical and against facts. The petitioners were entitled to allotment of land in terms of Section 14(1-A) and to the same effect is the order of Settlement Commissioner dated 12.7.1989. Anyhow both these grounds have been dealt at length in earlier portion of this judgment, therefore, the same do not require any further deliberations.
24. The respondent No.1 not only over-stepped his jurisdiction but also proceeded in reckless manner ignoring law and facts altogether. He himself observed that no review was competent after the repeal of Evacuee Laws but failed to keep in mind that the orders passed by notified officers are final and nobody in the hierarchy of settlement had any jurisdiction or authority to interfere with the same. It is highly regretable that such a senior officer acted not only against the statute but also ignored the well-settled principles of natural justice that nobody should be condemned unheard. It is strange that he having readied the apex of the Department has never heard of celebrated judgments of Hon'ble Supreme Court in the cases of Abdul Saboor Khan Vs Karachi University (F.L.D 1986 S.C. 536), University of Dacca Vs. Ahmad (P.L.D. 1965 S.C. 90) and Abdul A'la Maudoodi Vs. Government of West Pakistan (P.L.D. 1964 S.C. 673) and many more.
25. It is matter of great concern for all Courts that the position of the Settlement Department is that of a trustee, holding the evacuee property in trust for the benefit of the claimants, is now assuming the role of the owner. One of the arguments on behalf of the respondents advanced was that the property is worth over Crores and the petitioners have illegally grabbed the same. The learned counsel for the petitioners rightly pointed out that basis for this argument was furnished by the inefficiency of the Rehabilitation and Settlement Department while taking over 40 years to settle the claim of his clients. It is rightly submitted by him that if this land was transferred to his clients in the year 1960 or so then it was worth only few thousands. Further that if this criteria is to serve as basis then now no refugee-claimant can be settled because value of property has appreciated everywhere. The Government cannot be paid any premium for its own lapses. This argument does not take into consideration that the petitioner have suffered for about half a century.
26. The result is that this petition is allowed with costs and the impugned order of respondent No.1 dated 20.12.1989 is declared without lawful authority and jurisdiction and respondents No.2 and 3 are directed to implement the order dated 8.11.1989, whereby the land was transferred to the petitioners.