The necessary facts for appreciating the respective pleas of the parties are that land measuring 11 Marlas out of Khasra No. 293 situated in Mauza Khoherkey, Tehsil and District Gujranwala was allotted as agricultural land to one Abdus Salam on 25-8-1965. Fazal Din, petitioner No.l purchased the said land from Abdus Salam vide Mutation No. 1502, dated 3-12-1968. Fazal Din then sold this very land to Muhammad Akram, petitioner No.2 vide registered sale-deed dated 5-11-1974. This sale was given effect to in the Revenue Record by attesting Mutation No. 3062, dated 31-5-1978. It appears that Janat Bibi who was in occupation of the land in question filed a Misc. application in the year 1973 which was treated as a revision petition and certain proceedings were taken thereon uptil 3-4-1974 when the matter was fixed for 22-5-1974. It also appears from a perusal of memo of revision petition dated 4-6-1974 that certain proceedings were withdrawn by Mst. Janat Bibi on 22- 5-1974. The revision petition dated 4-6-1974 was ultimately heard by Mr. Muhammad Anis Nagi, Settlement Commissioner, Lahore with the powers of Chief Settlement Commissioner and was accepted vide order dated 21-12-1976. This order was then assailed by Fazal Din and Muhammad Akram, petitioners, by filing this writ petition in the year 1982 with the explanation that they have come to know of the impugned order when application was submitted by Janat Bibi, respondent, to record a mutation in her favour in substitution of the mutation already sanctioned in favour of petitioner No.2.
2. Learned counsel in support of this petition argued that the impugned order is illegal and without lawful authority as the same was passed without providing opportunity of hearing to the petitioners and that the land of Khasra No. 293 has been held to be agricultural land by the Supreme Court in C.P.S.LA. No. 771 of 1974 and as such the order allotting the said land as agricultural land to predecessor-in-interest of the petitioners on 25-8-1965 was perfectly valid in law. It was added that as held in the aforenoted judgment of the Supreme Court, evacuee property is to be transferred according to its character and nature as found in the year 1946-47. Lastly, it was contended that the learned Settlement Commissioner erred in law in not dismissing the revision petition as barred by time merely by observing that the question of limitation is not relevant in case of a void order. It was added that the order of allotment dated 25-8-1965 cannot be held to be a valid order as admittedly in 1946-47, the land in question was agricultural land.
3. Learned counsel for Mst. Janat Bibi, in opposition argued that Noor Muhammad, husband of Janat Bibi was in possession of land since 1947 and after death of Noor Muhammad, Janat Bibi continued in possession till date, and they having built a house on the said land she is entitled to seek transfer of the same for which purpose Janat Bibi had also filed BS form.
It may be noted that the form was admittedly filed much after the order of allotment passed in favour of Abdus Salam. Janat Bibi, respondent No.l, herself placed on record Annexure R/F which is report of the Patwari. According to this report dated 24-9-1972 there existed a wooden stall (tall) and one residential room with no boundary wall on the site.
4. The plea of learned counsel for respondent that Fazal Din had notice of the proceedings pending before Mr. Muhammad Anis Nagi, Settlement Commissioner is premised on the following recital appearing in the said order:- Learned counsel in support of this recital referred to order sheet (Annexure R/B). These proceedings, as has been noted above, were withdrawn on 22-5-1974 as per assertion of Janat Bibi herself contained in the memo of revision petition. In any case, Muhammad Akram, petitioner, was not even a party to the revision petition. In these circumstances, the plea of the respondent that petitioners had notice of the proceedings of revision petition stands controverted. Learned Settlement Commissioner failed to notice that under section 2 (2) (b) of the Displaced Persons (Land Settlement) Act, 1958 the land continues to be agricultural land until it is declared to be different or a building site by the Chief Settlement Commissioner. Moreover the question of delay in challenging the order dated 25-8-1965 was not attended to properly and in accordance with law.
5. In view of the above legal deficiencies, the impugned order dated 21-12-1976 of the Settlement Commissioner cannot be sustained. The same is, therefore, declared to have been passed without lawful authority and is hereby quashed. As a consequence of the quashment of the impugned order, the revision petition shall be treated to be still pending and shall be disposed of by the concerned Notified Officer in accordance with law after hearing the parties. The parties will be at liberty to raise all the pleas available to them under the law. The revision petition shall be disposed of within three months.
The parties are left to bear their own costs.