The validity/propriety of the order of Settlement Commissioner (Land), Lahore dated 30-12-1976 is assailed in this Constitutional petition.
2. A few relevant facts for the disposal of this petition are; that Allah Rakha (herein respondent No,2) came from Occupied Jammu and Kashmir and was granted evacuee agricultural land in Khasra No,2465/18 (measuring 3 Kanals and 12 Marlas) and Khasras Nos.2729/2470/28 (measuring 18 Kanals and 18 Marlas) in village Kulluwal, Tehsil and District Sialkot as maintenance grant. An agricultural land measuring 235 Kanals and 4 Marlas including the field Nos. 2465/18 and 2729/2470/28 was allotted to one Ajaz Din by means of RL-II by the Deputy Settlement Commissioner (Lands) by order dated 27-8-1964. The said Ajaz Din made the sale of agricultural land measuring 161 Kanals and 1 Marla in favour of Malik Muhammad Ismail, Muhammad Akbar, Muhammad Sarwar, Muhammad Afzal, Muhammad Mushtaq and Faqir Hussain (herein petitioners Nos.1 to 6). The sale transaction was incorporated in mutation register and was attested by the Revenue Authorities. Having come to know about this sale, Allah Rakha filed an appeal on 1-8-1969.
The appeal was accepted by the learned Settlement Commissioner who remanded the case to the learned Addl. Settlement Commissioner (Land) for disposal afresh in accordance with law. This happened vide order dated 20-6-1970. In pursuance of this order, the learned Addl. Settlement Commissioner by impugned order accepted the appeal of Allah Rakha and cancelled the allotment of Ajaz Din regarding land in Khasras Nos. 2465/18 and 2729/2470/29. Hence this Constitution petition.
4. Learned counsel for the petitioners in support of this petition raised the following points:- Firstly, it was contended that the appeal filed by Allah Rakha was barred by five years. According to him Allah Rakha obtained the copy of order on 10-11-1965, filed an appeal on 1-8-1969, so the appeal was grossly time-barred. He asserted that this vital aspect of the case was not adverted to by the Addl. Settlement Commissioner. Hence the impugned order is without jurisdiction and merited to be set aside. Secondly, it was next contended that the allotment made to Allah Rakha was for maintenance purposes. Allah Rakha was neither refugee from Jammu and Kashmir nor he had a verified claim to get this land confirmed in his favour. In these cicrumstances the order of allotment in favour of Ajaz Din cannot be set aside. Thirdly, it was lastly contended that the property was the part of compensation pool and was correctly allotted to Ajaz Din.
5. On the contrary, the learned counsel for the Settlement Department supported the impugned decision and stated that in terms of sub-clause (ix) of Para 4-A of West Pakistan Rehabilitation Settlement Scheme, the land granted to Allah Rakha was excluded from compensation pool and so could not be allotted to Ajaz Din. According to the learned counsel for Settlement Department, the allotment made in favour of Ajaz Din was, therefore, void ab initio and was nullity in the eyes of law. Reliance was placed on Allah Lok and 2 others v. Sardar Irshadul Hassan and 7 others (PLD 1982 Lahore 831).
6. I have considered the arguments of both the sides at considerable length and have gone through the record. The facts of the case are not disputed. Admittedly Allah Rakha is a displaced person from Occupied State of Jammu and Kashmir. Admittedly he was allotted the disputed land as a maintenance grant. He was delivered the possession of land in dispute which was subsequently allotted to Ajaz Din without any notice to him and without the cancellation of allotment in his favour. This question came up for consideration in Allah Lok and 2 others v. Sardar Irshadul Hassan and others (PLD 1982 Lahore 831). The facts of the case were that Nanak, predecessor of the petitioner was a refugee from Jammu and Kashmir, was given 118 Kanals, 13 Marlas of land in village Panj Garaien, Tehsil Narowal, District Sialkot for maintenance purpose. In April, 1974 respondents Nos.2 to 8 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, for cancellation of temporary allotment in favour of Nanak on the ground that he was holder of verified claim which was satisfied in village Dhingranwali, Hinjranwala, Kharlanwala Lassoki and Mangat Uncha of Tehsil Hafizabad, District Gujranwala in the year 1962, and so he was not entitled to retain the land in Panj Garaien, Tehsil Narowal. After holding the enquiry, the Settlement Authorities cancelled the land and allotted to it to respondents Nos.2 to
8. The Division Bench of this Court set aside the order in Constitutional jurisdiction by holding that the land granted to Nanak in lieu of temporary grant was outside the compensation pool and could not be allotted to respondents. The relevant passage from the judgment may be reproduced below:- "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 earlier, 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 Nos. 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 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 or 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 said land be restored to the petitioners. However, in view of the difficult questions of law involved, the parties are left to bear their own costs."
6-A. Judged from this angle I have no hesitation in coming to the conclusion that the order passed by the Addl. Settlement Commissioner is eminently just and is in consonance with the provisions of law. It was passed without notice to Allah Rakha, without affording opportunities of hearing to him, as such this order was totally null and void being in defiance of the principle of natural justice that nobody should be condemned unheard. In such cases the question of limitation is of no help to the parties in whose favour such order has been passed. As such this contention is found utterly untenable and is repelled. As regards the contention that he was not a refugee from Occupied State of Jammu and Kashmir, it is sufficient to note that this point was not raised before the Settlement Authorities. This point being question of fact cannot be permitted to be agitated for the first time in Constitutional jurisdiction.
7. In the light of foregoing analysis, I find no merit in this petition which is dismissed, leaving the parties to bear their own costs.