1. MUHAMMAD AFZAL ZULLAH, CJ. ---This appeal through leave of the Court is directed against the dismissal by the High Court of appellants' Civil Revision. It had arises out of their suit for declaration and permanent injunction relating to allotment of State land on lease with possible consequence of grant of proprietary rights.
2. The trial Court, it seems, non-suited the appellants mainly on the points of jurisdiction and other legal questions but the High Court after having examined the merits came to the conclusion that the allotment orders relied upon by the appellants were beyond the target date involved in the case.
3. Learned counsel at the leave stage, showed us the photo copies of the disputed orders. "Firstly, although very short and not in any proper form; they do, prima facie, convey at least an intention to make allotment. Secondly, there are two dates found on the allotment forms. On one of the dates the orders seem to have been passed - one purports to be the date of tender and the other purports to be the date of proceedings. If the former is treated as the date of allotment also the appellants seem to have a good case for further examination; but, if the latter is treated as the date of allotment they would have, prima facie no case."
4. After hearing the learned counsel we granted leave to appeal in the circumstances of this case to resolve the controversy regarding the question of allotment; whether made or not within target date in favour of the appellants.
5. The Government having been directed to produce the relevant record in this case, the learned Additional Advocate-General is present with the record and he has also been heard.
6. After careful scrutiny of the original records which were not before the High Court, we have no doubt that the allotment was in fact made in favour of the appellants on 30-5-1971, before the target date. The High Court proceeded on the assumption that there was no such allotment on that day. Thus on this ground alone this appeal merits to be allowed. In the record there is not only entry in the allotment register but also there is a separate allotment order, dated 30-5-1971 on a printed form wherein is also a direction for the delivery of possession to the appellants/allottees.
7. Furthermore, in the relevant file there is an order dated 14-7-1972, according to which the allotment was earlier made, as above stated, but there being some excess it was sought to be excluded.
8. Thus, the High Court judgment is based on non-consideration and misconsideration of the substantive evidence which clearly shows that the allotment was made and possession ordered to be delivered to the appellants on 30-5-1971. - The next question arises; whether, the case should be remanded to the High Court or decided by this Court. All the learned counsel agreed that it should be decided by this Court. The arguments were then addressed by all of them. The learned counsel for the respondents laid stress on the point that they being auction-purchaser since 1963 it was not their fault that the land was resumed from them and given to the appellants under 15 years scheme. He also stressed that even if the allotment date is 30-5-1971 the grant of proprietary rights would be subject to the fulfilment of the conditions by the appellants. The learned counsel for the appellants on the contrary stressed that in so far as grant of proprietary rights is concerned the matter is between the appellants and the Government.
9. The learned Additional Advocate-General adopted a balanced conciliary view; namely, that while the appellants are entitled to the proprietary rights, yet some consideration should be shown by the appellants to the respondents because the resumption of the area from them was subsequently set aside. He suggested that half of that part of the land which was allotted to the appellants and which originally formed part of the auction-purchase by the respondents should be retained by the appellants anti the, remaining half should be returned to the respondents. Learned counsel for the appellants has agreed to this suggestion made by the learned Additional Advocate-General.
10. Learned counsel for the respondents stated that although it might be a fair arrangement to safeguard the rights of the parties, he not having been able to consult his clients, cannot make a positive statement.
11. Although, technically in the light of the foregoing discussion the appellants can be granted relief to a greater extent but acting on the rule laid down in Muhammad Iqbal v. Shamas-ud-Din (PLD 1990 SC 736) we accept the suggestion made by the learned Additional Advocate-General and allow this appeal in the following terms:-- (a)That that area allotted to the appellants which originally formed part of the auction-purchase by the respondents shall be divided half and half between the two contesting parties.
12. (b)With regard to the entire area thus retained by the appellants proprietary rights shall be granted to them.
13. (c)That the area to be surrendered by the appellants shall be at their choice.
14. The decree shall, accordingly be modified. There shall be no order as to costs.