SHAFIUR RAHMAN, J.---All these appeals have been preferred by leave of the Court to examine whether the land in dispute was available for settlement of verified claims or otherwise under the Displaced Persons (Land Settlement) Act, 1958.
2. On 10-2-1948, the Custodian of Evacuee Property, passed the following Order:-- "I, S.A. Rehtnan, P.C.S. Custodian of Evacuee Property, West Punjab, Lahore hereby authorise the Deputy Commissioner of the Districts of the West Punjab which are affected by soil erosion to agree to the closure of waste lands on behalf of non-Muslim evacuees by the Forest Department under the provision of the Punjab Land Reclamation Act."
It was modified as hereunder:----- "In supersession of my order dated the 10-2-1908, I, S.A. Rehman P.S.C. Custodian of Evacuee Property, West Punjab, Lahore do hereby authorise the Deputy Commissioner of the Districts of Sialkot, Gujranwala, Jhelum, Rawalpindi, Attock, Mianwali and Shahpur to agree to the closures of Waste Lands on behalf of non-Muslim evacuees by the Forest Department under the provision of section 38 of Indian Forests Act and sections 3, 4, 5 and 5-A of the Punjab Land Preservation (Chas)
Act, 1950."
3. Pursuant to this authorisation, the Deputy Commissioners concerned, on behalf of the Evacuee owners and on the authority of the powers conferred by the Custodian, entered into agreements as required under the Forest Act transferring the management to the Government as protected forest under section 38 of the Indian Forests Act, 1927 and permitted the application of sections 30, 32, 33 and 34 of the Indian Forests Act. Some of the conditions of tile agreement relevant to the case are reproduced hereunder:---- "(a) The existing right of ownership of Shamilat (Marusiat-occupancy rights) which I exercise over the said land shall remain intact and shall not be curtailed, restricted, or interfered with in any way.
(b) The said area shall remain protected under Government management for thirty years and at the end of this period the management will be removed. But if the owners wish they may get the period extended. The income from all produce will go to the owners.
(c) Government will not be entitled to any compensation on account of any expenditure incurred, or supervision exercised, nor will it demand any compensation, ...................................................................................................On the expiry of the notification period the said land. Alongwith all produce, i.e. Grass, Sarut, Kahi and plants of all kinds will be made over to us owners and after that Government will have nothing to do with the area.
Protection and management of the above area will be done under the Government and any compensation recovered under the said Forests Act will go to Government:"
On 27-2-1.965, the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore addressed the following directive to the Deputy Commissioners Sialkot, Gujranawala, Gujrat, Shahpur, Rawalpindi, Jhelum and Attock:---- "Subject : DISPOSAL OF EVACUEE LAND IN POSSESSION OF THE FOREST DEPARTMENT.
On the representation of Forest Department it has been decided by the Chief' Settlement Commissioner that evacuee lands in possession of the Forest Department whether notified or un- notified should not be allotted against claims under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders."
Another decision was taken by the Chief Settlement Commissioner on 29-6-1965, as hereunder:--- - "It was pointed out that some of the land with the Forest Department had already been allotted by the local officers to certain claimants. It was decided that such allotments should be revised by the Settlement Commissioners concerned under the relevant provisions of the Displaced Persons (Land Settlement) Act. A list of such areas will be obtained from the Deputy Commissioners concerned so that individual cases could be taken for being revised."
4. In all the appeals now under consideration except three (Civil Appeals Nos. 307/1981, 155/83 and 188/88) the land had been allotted and confirmed against claims prior to 27-2-1965 when the Settlement Commissioner excluded such areas from allotment. In C.A. No.307/1981, the entitlement of the Displaced Persons to get the allotment was upheld on 25-7-1964 i.e. Prior to the directive, but the actual allotment pursuant to it was made on 6-11-1978 for various reasons which are not relevant in the case. In Civil Appeal No.155/1983, the confirmation had taken place for the first time on 18-11-1968. In Civil Appeal No.188/1988, the allotment to Mst. Khatoon Zohra was confirmed in 1971 and the vendees from her had approached the Civil Court.
5. Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate-General representing the Government and the Forest Department and its functionaries contended that once the permission of the Custodian had been given in 1948 and the notification had issued, the land no longer remained available for allotment. It came under the control and management of the Government and the Forest Department. Even prior to it, according to the learned Assistant Advocate--- General, it being waste land, Banjar Qadeem or Banjar Jadeed, it did not fall within the definition of land under the Rehabilitation Scheme or the Act and had to be excluded. Additionally, the land being in possession of the Forest Department, the possession of it could not be taken over by the allottees. Hence, no allotment could be made. Finally it was contended that the Chief Settlement Commissioner had directed the revision of it and the revision had been undertaken consequent to such a directive.
6. The learned counsel representing the allottees and the purchasers therefrom have argued that the allotments which were made before 27-2-1965 were made in accordance with law and hence could not be challenged on any ground whatsoever. The notifications under section 38 of the Forests Act were not inconsistent with the allotment or the rights thereunder. The land which already stood alotted and confirmed in favour of the displaced persons against their verified claims could not be interfered with under the new dispensation of the Chief Settlement Commissioner dated 27-2-1965.
7. The argument that the land was at the time of petition Banjar Qadeem or Banjar Jadeed has not been established by reference to the record of the relevant years or from the special Jamabandis.
Even as an argument it is not tenable because land which is Banjar Jadeed or Banjar Qadeem, does not cease to be land simply because it has not been brought under cultivation for a number of years. An examination of the Rehabilitation Settlement Scheme itself shows that such land was allotable. For example, paragraph 19 of the Rehabilitation Settlement Scheme makes provision in the following words:-- "19. Provisional allotments on certificates.--The Rehabilitation Authority will allow the claimants whose Jamabandis have not been received to be provisionally rehabilitated on land under the Rehabilitation Settlement Scheme in proportion to the area claimed by them and will adopt the following formula in calculating the area to be allotted:-- Cultivable area claimed (excluding Ghair Mumkin) multiplied by the produce index of the lowest kind of soil in the assessm ent circle. Banjar Jadid and Banjar Qadim should be multiplied by half [lie produce index of the lowest kind of soil: The Produce Index Jantry also makes provision for calculation of produce index units of Banjar Qadeem and Banjar Jadeed.
8. The possession of the Forest Department was under the management rights conferred on them m the light of the permission granted by the Custodian as noted above and it was subordinate to the rights of the owners and was not independent of it. Such a possession did not interfere but in fact recognised the ownership rights in the property of someone else. For the same reason, the Custodian's permission granted in 1948 and the notifications that followed, did not have the effects of excluding such land from allotment.
9. Under paragraph 4-A of the Rehabilitation Settlement Scheme, the Chief Settlement Commissioner had the power to direct the exclusion of land from allotment where it was required for a public purpose. While so excluding by his directive dated 27-2-1965, the Chief Settlement Commissioner was acting within hi; lawful authority. The High Court, however, did not approve of it in a case (Civil Appeal. No.155 of 1983) where the allotment had been made for the first time on 18- 4-1968, by observing as hereunder:--- "The main ground on which the Settlement Commissioner set aside the allotment of the petitioners was the order of the Chief Settlement Commissioner dated 27-2-1965 mentioned above restraining the district authorities from allotting such lands as were in possession of the Forest Department.
The copy of the Jamabandi for the year 1905-66, however, shows that the possession over some of the land in question at that time was that of the petitioners but he did not go into the same. In any case it has recently been held by a Division Bench of this Court in Inayat Bibietc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah. 252 that the Chief Settlement Commissioner could not issue such instructions restraining statutory functionaries to allot land against the claims. The letter dated 27th February, 1965 is thus without lawful authority and of no legal effect: "
10. The decision referred to and relied upon for recording the above findings related to absolute prohibition against making the allotments and not qualified prohibition as is contained in paragraph 4-A of the Rehabilitation Settlement Scheme. Hence, the very basis for the decision is incorrect. In a decision of this Court in Muhammad Ayub and others v. The Province of Punjab (1989 SCM R 1033), the allotments made on 1-3-1966 were held to be violative of the directive of the Chief Settlement Commissioner dated 27-2-1965. The law point involved in all these cases has received an authoritative pronouncement in Mian Rafi-ud---Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 in the following words:-- ---It is necessary in my view to keep in mind that there is a distinction between the right to claim a transfer and the right to the transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that change in the mode of transfer cannot reopen a past and closed transaction."
11. To our surprise, we find that same learned Judge has formed contradictory opinions in respect of the same legal question and given effect to them. For example, in Civil Appeal No. 197/1988 arising out of Writ Petition No.667/R of 1980, the learned Judge of the High Court set aside the cancellation of the allotment on the following grounds:---- "In any case, the precise question with reference to the relevant legal provision has been determined by the learned Judge deciding writ petition No.706-R/75 on 29-7-1975 whereunder he had held that the allotment made prior to 29-6-1965 of, the area intended to be sold to the Forest Department, will hold the Field and could only be acquired under the general law. In the case in hand the allotment of the petitioner is dated 30-9-1904, that is to say, much before my prohibition of allotment was made and the area was sought to be sold to the Forest Department."
In the other matter (Civil Appeal No.731/88 arising out of Writ Petition No.34/R of 1978), the view taken was as hereunder:---- " ....The area in dispute was taken by the Forest Department under the directions of the Custodian of Evacuee Property vide letter No.1324 dated 10/11-2-1948 and the area was notified as protected Forest under section 38 of the Forest Act vide Notification No.2071-FT (F&A)--57/10097 dated 16-5- 1957. Consequently, the area was available for allotment under the Rehabilitation and Settlement Scheme in favour of the ultimate predecessor-in-interest of the petitioners, the allottee Muhammad Muslim on 22-11-1960. Therefore, the allotement was void altogether."
12. In view of our discussion above the allotments finalized before 27-2-1965 hold good. Those made after were in violation of the prohibitory order of the Chief Settlement Commissioner and cannot, therefore, be sustained. On this view of the matter:--
(1) Civil Appeal No.307/1981 filed by the Province of Punjab through its functionary stands dismissed as the allotment had been finalised in this case on 25-7-1964, before the crucial date;
(2) Civil Appeal No.155/1983 filed by the Sub-Divisional Forest Officer and the Settlement Commissioner is allowed, condoning the delay on account of time taken in filing the Intra-Court appeal and the judgment of the High Court dated 18th of March, 1975 is set aside restoring the order of the cancellation of allotment, as the land had been confirmed in this case on 18-11-1968;
(3) Civil Appeal No.798/1984 filed by the Province of Punjab through its functionary stands dismissed as in this case the allottee on a permit dated 1-10-1956 had received the allotment and taken possession of the land on 4-12-1956. The cancellation order with respect to this allotment has rightly beep set aside by the High Court which order is maintained;
(4) Civil Appeal No.187/1988 filed by the Forest Department of the Government of the Punjab stands dismissed as the allotment in this case was finalised on 30th September, 1964, i.e., before the crucial date;
(5) Civil Appeal No.188/1988 filed by the Province of Punjab and its functionaries is accepted and the judgments of the two Courts below are set aside and the suit filed by the respondents stands dismissed as the allotment in this case was made for the first time in 1971 and the respondents made purchases from the allottee in 1978;
(6) Civil Appeal No.388/1988 filed by the Forest Department and the Province of Punjab stands dismissed as in this case the allotment had been finalised on 2-9-1964 and the Settlement Commissioner found established no misrepresentation or fraud in making this allotment and the High Court confirmed in writ the same conclusion:
(7) Civil Appeal No.731/1988 riled by the allottees in which the High Court had refused to interfere with the cancellation notwithstanding the fact that confirmation of the allotment shad taken place long before 27-2-1965, succeeds. The judgment of the High Court is set aside, the writ, is allowed and the cancellation of the allotment under sections 10 and 11 on an application filed by the Forest Department, shall stand set aside and the allotment restored; and
(8) Civil Appeal No.366/1989 filed by the Province of Punjab, Forest Department stands dismissed as the final entitlement of the allottee was determined in this case on 13-9-1964 and only consequential steps had to be taken to give effect to it.