CH. MUSHTAQ AHMAD KHAN, J.-Briefly stated fects of the case out of this constitutional petition has arisen are that a Cotton Ginning Factory known as Birla Cotton Factory Okara, situate in Khasra No.121 and 78/27/new khasra No.78/54-55 of the revenue estate Depalpur, District Sahiwal over an area measuring 19 kanals and 5 marlas which had been built by Messers Himpur Bank Limited, after taking the land referred to above on perpetual lease from the evacuee owners, was ultimately purchased by the petitioner No.1. This Ginning Factory was reported to be constructed in the year 1920 and since then the land whereon it was constructed is being recorded as "Ghair Mumkin Kharkhana" in the revenue record including special jamabandi for the year, 1947 as well as khasra girdawari. Land under-neath this Ginning Factory was once allotted considering to be it an agricultural land in favour of Muhammad Shafi at khata No.663-RL-II Qila Tara Singh, On the basis of the application Tiled by the petitioner No.1 under section 10/11 of the Land Settlement Act for cancellation of the allotment referred to above on the ground that the site in question being not agricultural hence the same could not have been allotted as an agricultural land. Learned Deputy Settlement Commissioner (Lands) Sahiwal vide order dated 28.12.1973 cancelled the allotment holding that the site in question was none agricultural in nature and therefore could not have been allotted as agricultural-land. This order was confirmed in revision by the learned Settlement Commissioner (Lands) Multan Division Multan vide order dated 25.5.1974.
2. After repeal of evacuee laws and coming into force of the scheme of disposal of residual properties, on the basis of the application filed by the petitioner who is in possession of the site in question and has raised a construction thereon. Deputy Administrator residual evacuee property, Sahiwal vide order dated 53.1978 transferred the site in question in favour of the petitioner in accordance with para 33 of the relevant scheme. Subsequently, petitioner No.1 surrendered her rights in favour of the petitioners No.2 and 3 and the transfer deed had been issued in the name of the petitioners No.2 and 3 on 10.1.1979. The Ginning Factory has now been converted as an ice factory. The respondent No.1 filed a revision petition on 3.4.1979 before Additional Commissioner (Revenue) Multan Division, Multan who is respondent No.2 in the present petition, challenging the order of. Transfer dated 5.3.1978 mainly on the ground that the land in question is of agricultural nature and therefore it could n6t have been transferred in favour of the petitioner as a non- agricultural property and further that a mukhbari application filed by him under the provisions of section 10/11 of the Lands Settlement Act was already pending before the Chief Settlement Commissioner, Sahiwal, therefore the order of transfer is illegal and is liable to be set aside. This revision petition has been accepted by the respondent No.2 vide order dated 28.11.1979 and the case has been remanded for decision afresh mainly on the ground that as a mukhbari application under section 10/11 of the lands Settlement Act was pending. The property could not have been transferred till the decision of the mukhbari application made under the Displaced Persons Settlement Act. Etc. This order has been challenged by the petitioner in this constitutional petition.
2. In support of the writ petition, learned counsel for the petitioners has raised the following contentions:-
1. That the mukhbari application referred to in the order passed by the learned Additional Settlement Commissioner (Revenue) Multan is a smuggled document inasmuch as no proceedings have been taken thereon nor. Docs it reflect that it was at all entertained by any office or authority and at any rate no proceedings having been commenced on the basis of this application preor to repeal of evacuee lands it cannot be said that such an application can constitute a pending proceedings for the purpose of assumption of jurisdiction by the he notified Officer after repeal of evacuee lands in the year 1974. Reliance in this behalf has been placed by learned counsel on case of Lai Din and Others vs. Ali Ahmad and others 1991, SCMR-1553 and Asghari Begum Versus Baji Dubash....................................................................... 1991 CLC No te 203.
2. That Additional Settlement Commissioner had been appointed for the purpose of entertaining the revisions against the orders passed by the Deputy Administrator residual properties and while deciding such a revision petitions, only authority which vested in the learned Additional Settlement Commissioner was to see as to whether property has been properly transferred under the relevant scheme or not. He had no authority to make reference to some proceedings which allegedly had been conducted under the provision of Land Settlement Act, 1958.
3. That the respondent-applicant had absolutely no locus-standi to file revision petition inasmuch as he has no vested or expected right of transfer of the property in question
4. That nature of the property having already been determined by the learned Settlement Commissioner as being non agricultural, the matter cannot be re-opened. Reliance in this behalf is placed on case of Lai Din and others vs. Ali Ahmad and others (1991 SCM R 1553).
5. That an application under section 10/11 of the Displaced Persons Land Settlement Act is maintainable only if there is an allotment under the Land Settlement Act of 1958. In the case in hand, there being admittedly no allotment in existence under the provisions of Displaced Lands Settlement Act, 1958, the application under section 10/11 is not maintainable and therefore on the basis of the pendency of any such application the impugned order could not have been passed.
Reliance in this behalf is placed by the learned counsel on case of Mst. Masuda Anwar V. Addl.
Settlement Commissioner (Lands) (MLD 1986 441).
6. That mukhbari application has already been dismissed as is clear from the perusal of the certified copy placed on record of the writ petition .. As annexure 'Q' wherein it is specifically recorded that the mukhbari application filed by the respondent No.1 was dismissed on 25.10.1976 and have not been restored so far. This order has been passed on the application of the respondent wherein restoration of the application was sought.
4. Mr. A.R. Shaukat, learned counsel for the private respondents has raised the following contentions:- '
1. That the impugned order being a remand order writ petition is not competent against this order.
2. That it is not clear that to how much is the built area and therefore about 20 kanals of land could not have been allotted to the petitioner, therefore, it is necessary that an enquiry should be held on the factual plane so that it should be determined as to how much area out of the site in question can be transferred to the petitioner.
3. That the objections which are being raised in this writ petition and the documents which have been referred to including the document annex. 'Q' showing that the mukhbari application has since been dismissed cannot be looked into as all these questions have to be determined by a detailed enquiry by the Deputy Administrator Residual property and this court has no jurisdiction to look into the documents which were not produced before the lower court.
4. That no harm will be suffered by the petitioner, if the case is decided afresh after holding of enquiry and associating the parties.
5. I have considered the arguments addressed by both the learned counsel for the parties and have perused the record of the case. Admittedly the site in question is recorded as "gair mumkin kharkhana" in the special jamabandi in the year of 1947. Even at site exitance of a 'kharkhana' is admitted by both the parties. Possession of the petitioners is also admitted. It is also admitted that the properly in question was available evacuee property at the time of application of the petitioner and transfer thereof. It has also been held by the learned Settlement Commissioner in his order dated 25.4.1974 that the property in question is non- agricultural in character therefore status of the property stands already -determined. Mukhbari application filed by the respondents is under the provision of section 1,0/11 of the Land Settlement Act, 1958. Admittedly there is no allotment of the site in question as agricultural land, consequently, keeping in view the law laid down in the judgment cited at the bar, the mukhbari application is not competent. It also stands established that no proceedings having at all been taken on the mukhbari application prior to the repeal of the evacuee laws and hence it cannot be said that any proceedings were pending at the time of repeal of evacuee laws and in fact it has been dismissed on 25.10.1976 and has not been restored so far. Respondent No.2 is an authority appointed for the purpose of hearing a revision petition against the order passed by the Deputy Administrator. Residual Properties and therefore have absolutely no jurisdiction to act under the provisions of Lands Settlement Act, 1958 or to be influenced by any proceedings which may have been pending on the land settlement side. The findings of fact recorded by the learned Deputy Administrator, Residual Properties with regard to the possession and exitance of construction, except extent thereof, are admitted by the respondents. Extent of the construction is proved by the petitioners and is releected in the order passed by the Deputy Administrator Residual Properties. It is an established principle of law that successive mukhbari applications cannot be filed as is clear from the law laid down in the judgment cited at the bar. There is absolutely no bar to the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan against the remand order which is patently and is otherwise without any lawful basis and justification. The impugned order is of the type which although is a remand order but is patently illegal and unjustified. Litigation relating to settlement matters has to come an end and the proceedings which tend to prolong the agony of the people had to be discouraged. The proceedings initiated by th6 respondent on the basis whereof (he transfer order has been set aside in the impugned order, are on the face of it incompetent, frivolous and are in the nature of luxury litigation. Consequently, even if the impugned order is a remand order, this court has jurisdiction to interfere keeping in view the nature of the impugned order.
Argument of the learned counsel for the respondent to the effect that documents which have been placed on the record of writ petition cannot be looked into and further legal arguments cannot be raised in this constitutional petition which were not raised before the lower forum is misconceived.
This Court has ample jurisdiction to examine ail the relevant record for the purpose of administration of justice and finalization of litigation which has a checkered history, particularly when the document is a certified copy of public record and is not denied by the respondent. All the legal question which go to the root of the case can be allowed to be raised while deciding the writ petition. Argument of the learned counsel that remand order has not Caused any harm to the petitioner and it will rather facilitate to resolve the questions of fact .Is also misconceived. A remand order cannot be passed just for the sake of passing an order and cannot be allowed to stand merely because according to one party it will not cause any harm. Even otherwise all the necessary questions of fact arc either admitted, proved or finally determined. Hence this remand order is an exercise in futility and tends to adversely affect the petitioner.
7. In view of the above. I hold that the impugned order is illegal and is without a lawful authority.- Resultantly this writ petition is accepted,-< impugned order dated 28.11.1979 passed by the learned Additional Settlement Commissioner (Revenue) Multan, is declared to be illegal and without a lawful authority and the same is set aside, with the result that the order of transfer passed by the Deputy Administrator Residual Properties dated 5.3.1978 shall stands restored. Parties to bear their own costs.