' This is a miscellaneous application under section 2, subsection (2) of Evacuee Act, XIV 1975, for satisfaction of the pending claim of the petitioners' grandfather Walayat Khan.
2. The learned counsel for the petitioners contended that Walayat Khan, grandfather of the petitioners, had a verified claim No,6802 on which land measuring 117-Kanals 2-Marlas was temporarily allotted to him in Ajudhiapur on 23-3-1948. Walayat Khan died sometime in 1950. He was survived by his son Dr. Fatal Elahi who also died in 1961 leaving behind Ashfaq Ahmad (present petitioner) and another son. The land temporarily allotted to Walayat Khan was later allotted and confirmed to some other persons on RL-II Khatas Nos. 183, 186, 187, 188, 245, .248 and 366. The petitioners' father being a doctor serving in Azad Jammu and Kashmir, could not pursue his case till his death. Both the petitioners at the time of death of their father were minors and they did not know anything about the claim of their grandfather. It was only in 1989 when they came to know of the pending claim and thereupon they moved the Member, Board of Revenue for settlement of their pending claim. The Member (S & R) had examined the case and necessary reports were obtained from the EAC (R) and ADC (G), Lahore, and from the Central Record Office which verified that the claim of Walayat Khan was genuine and that he was a temporary allottee. Of the land in Ajudhiapur and the land in his temporary allotment was transferred to other persons.
3. Continuing the learned counsel has emphasized that the application of the petitioners for either confirmation of the land under the temporary allotment of petitioners' grandfather or allotment of alternate land of, equal value is "ponding proceedings" within the meanings of section 2, subsection (2), ihid. According to paragraph 23 of the Settlement and Rehabilitation Scheme a temporary allottee could not be displaced from his temporary allotment and according to paragraph 23-A of the said Act, a temporary allotment could not be cancelled without providing any other allotment to displaced person. No order was however passed cancelling or withdrawing temporary allotment of the petitioners' grandfather nor they were given any allotment in lieu of the said temporary allotment. It was therefore clearly established that it is a 'case where certain proceedings with respect to temporary allotment of petitioners' grandfather are in law pending.
The learned counsel placed reliance on the following authorities:-
(i) PLD 1979 SC 846; to the effect that the allotment of erstwhile evacuee land in lieu of the land left by a claimant in India is a valuable statutory right which the Courts have constantly been enforcing.
(ii) 1986 CLC 2455; wherein a temporary allottee Whose verification of the claim remained pending in 1975 meanwhile land under his temporary allotment was allotted to some other persons, was, found entitled to allotment of land out of available evacuee area; notwithstanding repeal of the Evacue Laws..
(m) 1986 MLD 2028: In this case land was proposed to one claimant while the same land was confirmed to another person. Litigation Concluded on 17-11-1976, Notwithstanding the repeal of the laws, it was found that since the units of the petitioner were pending settlement' and it was because of fault of the Settlement Authorities (of misleading proposal) he was found. Entitled to the adjustment of his pending units.
1986 CLC 2820: In this case, there was proposal. In favor of the claimant in 1972, while the writ petition, was filed in 1985. The petitioner was found entitled to confirmation of land in his favour.
(v) 1988 M LD 1321: In this case the land under allotment of a claimant was cancelled and allotted to the petitioners on 1-9-1969. As a result of litigation, the land was restored to the original allottee on 14-3-1979. The petitioners then applied for satisfaction of their Pending claim. It was refused. The matter was brought before the High Court and his Lordship was pleased to observe that:- "allotment in favour of petitioners has been cancelled and the land has been restored to the original allottee would amount to that adjustment of the claim of the petitioners was wrongly made and, therefore their claim would remain pending and that is precisely, what the Repealing Statute XIV of 1975 provided that pending proceedings to be completed under the Repealing statute."
' With reference to the' argument that after repeal of Land Settlement Act, all land stood transferred to the Provincial Government, it was observed in the said case: "The land which will be given to the Provincial Government for which it may have to be paid to the Central Government will be that land which will be available after disposal of 'pending cases under the repealing law as laid down in the Statute itself."
4. The learned counsel for the Settlement Department contended that after the repeal of the Evacuee Laws, the present petition could not be considered as a pending claim. The allotment of the land temporarily allotted to Walayat Khan had not been challenged and those allottees have not been made a party, therefore, the petitioners are estopped to daim settlemeent of their claim. I have considered the arguments and perused the case record as well as the record produced by the petitioners and the reports of various officials. The Central Record Office has reported that Walayat Khan son of Fateh Khan had land measuring 116 Kanals 19 Marlas in Mauza Ganna Ghoor, Hadbast No,91, Nawan Shehr, Tehsil and District Jullundur. His Claim. Form No,6802 was duly sent to Mauza Ajudhia Pur, Tehsil Lahore by the Central Record ROOM. A certified photo-copy of Roznamcha Waqiyati of Patwari dated 23-3-1948 shows that Khasras Nos.111, 113, 76, 77, 78, 114, 115, 105, 140, 150, 173, 210, 656, 510, 512, 513, 515, 516, 517, 528, 529, 530, 531, 535, 521, 526, were temporarily allotted and Valayat Khan was put in possession thereof and was also given Fard Taqseem. The undated report of the Deputy Commissioner, Lahore furnished in response to the Court's letter No,979-Reader (Revenue), dated 30-3-1991, gives details of Khatas Nos.183, 245, 248 and 366 on which the temporary allotment made to Walayat Khan was confirmed in the names of Abdur Rashid, Naseer-ud-Din Mahmood, Muhammad Iqbal etc. Whereas Khatas Nos.186, 187 and 188 were reportedly not traceable in the Register RL-II.
6. My attention has also been drawn to the instructions issued by the Chief Settlement and Rehabilitation Commissioner vide letter No,1649-POL73, dated 13-6-1984 to the effect that "no case for alternate allotment should now be entertained for submission to the Board of Revenue except in cases in which specific directions are given by the High Court/Supreme Court or Government". The office noting on the interpretation of these orders is interestingly enough varied and contradictory.
It is obvious that these guidelines regarding the allotment of alternate land were issued on 13-6- 1984 to the District Offices and are not applicable to the Chief Settlement Commissioner or the Government. There are several other precedence cases in the Board of Revenue hr. Which alternate land has been allotted to claimants on genuine grounds. This provision has to be considered on case to case basis by the Board of Revenue and cannot be applied in a mechanical manner to shut out the satisfaction of the pending claims enmasse.
7. From the narration of the facts and perusal of the reports, it is duly established that Walayat Khan was temporarily allotted land in village Ajudhia Pur which was later allotted, to some other persons without giving an opportunity of being heard to Walayat Khan or his successors-in- interest and that he was not even given any land in satisfaction of his Claim No, 6802. It was also established that the petitioner was a minor at the time of death of Walayat Khan and his father Dr. Fazal Elahi, which explains a long delay in his agitating the case before me. The case-law cited by the learned counsel for the petitioners unambiguously lays down that allotment of land in lieu of the temporarily allotted land is a vested right and cannot be denied. The objection of the learned counsel for the Settlement Department that the petitioners are estopped as they have not impleaded the allottees of their temporarily allotted land could only be relevant in case it was proposed to allot or confirm the area temporarily allotted to Walayat Khan by withdrawing it from the present allottees In that case hearing of the present allottees would have been necessary.
8. It has transpired during the hearing of the case and examination of the record that Walayat Khan's claim was for rural land whereas Ajudhia Pur is an urban area. Hence the petitioners cannot be allotted any urban land. However, in view of the foregoing discussion, their claim for allotment of rural land is found to be pending within the meaning of section 2, section (2) of the Act ibid, and the petitioners shall be allotted land to satisfy their claim forthwith by the ADC (G), Lahore Cantt.
9. Order in this case was reserved and shall be communicated to the petitioners.