' The only question cailing for consideration in this Constitution petition is whether the agricultural evacuee land granted to a refugee from Jammu and Kashmir in lieu of maintenance grant, can be allotted to another refugee from Jammu and Kashmir against his verified claim under Scheme for permanent allotment of land issued by the Chief Settlement Commissioner with the previous approval of Central Government under section 14 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred'to as Act).
2. The material facts to be noted are that Din Muhammad deceased had come to Pakistan as a Displaced Person from Occupied Jammu and Kashmir. He was granted Ration Card No,25226 for the purpose of getting ration. In the ration card the name of Mst. Bibi, Muhammad Hussain, his brother and his wife Sardar Bibi were incorporated as his dependants. The agricultural land measuring 144 Kanals was thereafter allotted to Din Muhammad as a maintenance grant.
Subsequently, the same land was allotted to Nihal Din, Muhammad Sharif, and Muhammad Siddique, herein petitioners, on 23-9-1964 by means of RL-II No,36. Feeling aggrieved with this Muhammad Hussain and others (legal heirs of Din Muhammad) filed an appeal which was accepted by the Settlement Commissioner (Land) dated 2-8-1969. The case was remanded to the Additional Settlement Commissioner to decide the case afresh in accordance with law. In pursuance of this order, the Additional Settlement Commissioner by means of order, dated 15-6- 1977 set aside the allotment in favour of Nihal Din and others and restored the grant in favour of the legal heirs of Din Muhammad who had died. The petitioners have challenged this order in this Constitution petition.
3. The learned counsel appearing for the petitioners contended that the appeal was filed after the period of limitation. As such the Additional Settlement Commissioner had no authority to entertain the appeal and decide it without disposing of the questions of limitation. On the basis of this question it was urged that the order of the learned Additional Settlement Commissioner was without jurisdiction and passed without any lawful authority.
4. It was next contended that the appeal was dismissed on account of non-prosecution on 24-1- 1976 by the Additional Settlement Commissioner. The application for setting aside this order was filed on 29-10-1976 by Muhammad Hussain only. As such the allotment in favour of the remaining petitioners had become and immune from further challenge.
5. It was lastly contended that the respondents were refugees without a claim while the petitioners were refugees from Jammu and Kashmir with the verified claim. As such they had priority over the respondents. According to the learned counsel for the petitioners this aspect of the case had not been adverted to by the Additional Settlement Commissioner, while passing the impugned order.
Reliance was placed on Dost Muhammad and others v. Mst. Badal Jan and others 1976 SCMR 112 and Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985.
6. On the contrary the learned counsel appearing on behalf of the Settlement Department (respondent No,4) supported the impugned decision. The learned counsel appearing on behalf of contesting respondents Nos.1 to 3, contended that the agricultural land granted to refugees from Jammu and Kashmir for the purposes of maintenance was excluded from compensation pool in terms of para.4 of the West Pakistan Rehabilitation Settlement Scheme and so the allotments made. In favour of respondents were coram non judice, without lawful authority and as such is void for all practical purposes. The order of allotment was a mere nullity and could be set aside. In regard to plea of limitation it was suggested that it was mere technical objection, strength was sought from Ghulam Muhammad and another v. Ahmad Khan and another PLD 1991 SC 391, Muhammad Din and 6 others v. Allah Lok and 3 others 1989 SCMR 323, Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985, Dost Muhammad and others v. Mst.
Badal Jan and others 1976 SCMR 112, Allah Lok and 2 others v. Sardar Irshadul Hassan and 7 others PLD 1982 Lah. 831, Mst. Sakina Bibi and another v. Mamla and 2 others PLD 1977 Lah. 202, Muhammad Khan and 2 others v. Karim Bakhsh and 2 others PLD 1977 Lah. 747, Federation of Pakistan v. Khawaja Muhammad Yousaf and 4 others 1989 CLC 2249 and Anwar Begum and others v. Settlement Commissioner and others 1989 MLD 1988.
7. I have heard the learned counsel for the parties at a considerable length and have gone through the record. The facts of the case are not disputed. Admittedly the land in dispute was granted to Din Muhammad, the predecessorin-interest of respondents. The names of respondents were incorporated in Ration Card issued to Din Muhammad. Admittedly there is no impediment to transfer the land in dispute in favour of the respondents. The only question as noted above for decision is whether the allotment of land in dispute in favour of the petitioners was legal and creative of any right in their favour.
8. In order to appreciate the contentions of the parties it is to be noticed that the matter of allotment of land to the refugees from Jammu and Kashmir was made on a different footing. The families migrating from Occupied Jammu and Kashmir were in the first instance given free ration and ration-card were issued to them. Thereafter, these ration card-holders were allotted evacuee agricultural land as a maintenance-grant. The land so granted to ration-cardholders was sold by the Chief Settlement Commissioner to the Ministry of Kashmir Affairs for utilization and satisfaction of claims of Jammu and Kashmir refugees, who had abandoned land in the occupied territory.
Paragraph 4 was inserted in the Rehabilitation Scheme Part I, clause (ix) whereunder the land allotted on temporary basis to Jammu and Kashmir refugees was excluded from compensation pool. This was followed by framing a temporary allotment scheme in order to satisfy the verified claims of refugees from Occupied Jammu and Kashmir with a condition that the moment these refugees will go back to their own homes in Occupied Jammu and Kashmir, these allotments will come to end. With the passage of time, when prospect of these refugees returning back to their homes became dim, the scheme for permanent settlement of these refugees was framed by the Chief Settlement Commissioner under the relevant provisions of Displaced Persons (Land Settlement) Act, 1958.
9. The aforenoted provisions of law came into consideration in Mst. Sakina Bibi and another v.
Mamla and 2 others PLD 1977 Lah. 202 ibid. His Lordship Mr. Justice Gul Muhammad Khan (as he then was) after the survey of the Government circulars and the law, came to the conclusion -that the land temporarily allotted to Jammu and Kashmir refugees as maintenance grant stood sold to the Ministry of Kashmir Affairs and so was not available for allotment to others. This view was approved in Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985.
9-A. The above point again came up for examination in Allah Lok and two others v. Sardar Irshadul Hassan and 7 others PLD 1982 Lah. 831, before a Division Bench of this Court. It will be appropriate to examine this case in detail. The facts of the case were that one Nanak, predecessor-in-interest of the petitioners was given land as maintenance grant in village Panj Garaien, Tehsil Narrowal, District Sialkot and possession of land was delivered to him on 28-6-1959. In 1974 the private respondents initiated proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, on the ground that Nanak had been keeping the said allotment by practising the fraud; that he had obtained permanent allotment of his claim in other villages in 1962; and so he was not entitled to retain the land in village Panj Garaien. After inquiry the allotment in his favour in village Panj Garaien, was cancelled and confirmed to respondents. The legal heirs of Nana challenged the order by filing Constitution petition which was accepted and the impugned order set aside by a Division Bench of this Court. It was held that the land granted for maintenance purposes to the refugees (Ration-card-holder) was not available for allotment in any scheme including the one for permanent settlement of refugees from Occupied Jammu and Kashmir with verified claim. The relevant paras. Of the judgment are 9 and 10 wliich are reproduced in exetensio as under:-- "(9) However, the question of application of said provision by a Settlement authority could have arisen only if the land of said temporary allotment had continued to remain in the compensation pooL But as held carlier, the land of said temporary allotment of Nanak had gone out of the compensation pool and, therefore, neither said clause 22 of Supplementary Rural Scheme could be invoked and applied nor the Settlement authorities had any jurisdiction left to cancel the said temporary allotment under section 10/11 of Displaced Persons (Land Settlement) Act, 1958 and allot it to respondents 2 to 8. The petitioners are, therefore, entitled to hold the land in question unless the same is required by the Ministry of Kashmir Affairs, Government of Pakistan, who is its absolute owner. The said Ministry alone could take away the said land from petitioners."
' The learned Judge went on to say that:-- "The upshot of the above discussion is that by virtue of the sale made by the Chief Settlement Commissioner under section 12 of the Land Settlement. Act of all the land temporarily allotted to Jammu and Kashmir refugees for the purpose of their maintenance, the said land of temporary allotment of Nanak had become the property of Ministry of Kashmir Affairs, Government of Pakistan in the year 1960 and, therefore, had been excluded from the compensation pool and the Chief Settlement Commissioner of the respondent delegatee of the Chief Settlement Commissioner had no jurisdiction left to cancel the same and allot it to respondents Nos.2 to 8. In this view of the matter, this writ petition is allowed and the order of the A.D.C.(C)/Chief Settlement Commissioner is declared to be of no legal effect as having been passed without lawful authority and direction is issued that the said land be restored to petitioners..."
10. The ratio deducible from the examination of aforenoted law and the authoritive pronouncement in the aforementioned authority, is that evacuee agricultural land allotted to ration-card- holders/refugees from Jammu and Kashmir, stands transferred to the Ministry of Azad Jammu and Kashmir and is excluded from compensation pool for the purposes of settlement in favour of then refugees from Jammu and Kashmir with verified claims. Judged from this angle it is quite clear that the allotment in favour of the petitioners by the Deputy Settlement Commissioner was without any legal sanction. It was coram non judice and was a mere nullity in the eye of law. As such the Additional Settlement Commissioner was well within his right to adjudge this allotment as having been made without any lawful authority. The impugned order, therefore, is eminently just and in consonance with the provisions of law.
11. As regards the question of limitation it is well-settled principle of law that the orders which are ab initio void, are nullity in the eye of law. The plea of limitation cannot be pressed into service in regard to such orders. The contention of the learned counsel for the respondents 1 to 3 that the appeal filed by Allah Rakha was barred by time is accordingly found to be untenable and is repelled.
12. The upshot of what has been stated above, is that I do not find any merit in this Constitution petition which is dismissed, leaving the parties to bear their mown costs.
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