Muhammad Afzal and 40 others have fled this Constitution petition seeking declaration to the effect that the order dated 28-7-1971 passed by the Border Area Committee and the order dated 21-7-1985 refusing to review the said order, are illegal, having been passed without lawful authority and hence ineffective in law. The petitioners asserted that Mst. Noor Jehan widow of Sanobar Khan, a claimant displaced person was allotted an area measuring 55 Kanals 18 Marlas including field Nos. 6052, 6053 and 6057 measuring 22 Kanals 18 Marlas at Khata No. 15 of the Register RL-11 of village Kasur (Urban) Tehsil and District Kasur, against her verified claim. She sold out of the aforesaid field numbers land measuring 22 Kanals 18 Marlas in favour of Mian Sohan Din, Jamal Din, Aziz Din and Abdul Hameed through registered sale-deed on 23-5-1967. The said sale was also given effect to in the revenue record vide Mutation No. 2239 dated 1-7-1967. The allotment obtained by Noor Jehan was challenged by Muhammad Latif in the Court of Additional Settlement and Rehabilitation Commissioner, but the proceedings so initiated remained unsuccessful as the said application was dismissed vide order dated 24-2-1968. He then filed revision petition which was also dismissed on 6th April, 1968 by the Settlement Commissioner (L). Muhammad Latif then moved an application before the Custodian Evacuee Property, Punjab for declaration to the effect that the land in question was not evacuee property. This application also failed vide order dated 8- 2-1969. The allotment in the name of Mst. Noor Jehan, the claimant allottee and predecessor-in- interest of Mian Sohan Din etc. thus remained intact.
2. The petitioners statedly are the purchasers of their respective plots out of the aforesaid land through registered sale-deed executed by Mian Sohan Din and others. These petitioners have statedly constructed their houses on the plots respectively purchased by them in the aforesaid manner. Some of the petitioners are also paying property tax as is apparent from the two receipts placed on record.
3. The petitioners felt aggrieved when they came to read a public notice issued by the A.C,/Deputy Settlement Commissioner (L), Kasur for sale through auction of the land in question. These notices were issued in the name of persons mentioned therein calling them to remain present at the time of auction as otherwise the plots in question will be sold in their absence and without their association. These petitioners then submitted an application to the learned Member (S&R Wing)/Chief Settlement Commissioner, Punjab, Lahore, who while directing the petitioners to approach the Border Area Committee, ordered postponement of the auction: The petitioners were then heard by Border Area Committee and vide order dated 28-7-1971 the Border Area Committee held that the allotment of 55 Kanals 18 Marlas obtained on 11-5-1967 was illegal as the said allotment was neither made in the presence of Noor Jehan, the alleged allottee nor at that time any of her representative or attorney was present and that the units against which the allotment was obtained had also been transferred from Kot Murad Khan, which is outside the Border Belt. It was also noted that units certificates were issued for Nawab Shah and Lahore Districts on 18-12- 1967 whereas the allotment was statedly obtained on 11-5-1967 i.e. at the time when the units had not yet been transferred. The allotment of the land falling within the Border Belt having not been made by the Border Area Committee was, therefore, violative of the provisions of MLR 9 and the said allotment was, therefore, for all these reasons, cancelled. The petitioners on coming to know of the said order filed review petition but the same was dismissed vide order, dated 21st July, 1985 of the Border Area Committee.
4. Learned counsel for the petitioners in support of the . petition argued that another order dated 28-7-1971 of the Border Area Committee passed in similar circumstances was set aside in W.P. No. 398/R/74 and as such theimpugned order dated 28-7-1971 merits also to be quashed; that the then Martial Law Administrator, Punjab vide Notification dated 8-6-1971 declared the Municipal limits of Kasur as a restricted zone and the said area within those limits shall not be allotted by the Border Area Committee and that the land in question has not been allotted to any one under the MIR and as the petitioners have built their houses after spending huge amount should be allowed to retain their respective plots specially in view of the fact that it is the policy of the present Government to rehabilitate the owners of petty hutments. Learned counsel added that the petitioners are prepared to pay the price of the plots respectively in their possession to the Border Area Committee.
5. In view of the assertions that the petitioners have built their houses, respondents were required to make a factual inquiry and report as to whether the petitioners have constructed their houses or not. Report was accordingly submitted. It stands established that the petitioners have constructed their houses on most of the land in dispute. In view of this report and the fact that the allotment in favour of Noor Jehan, the original allottee has been cancelled which will have the effect of de- settling the petitioners who have purchased their respective pieces of land from Mian Sohan Din and others who in turn were purchasers from the allottee of the said land, the matter was referred to the GHO for consideration of the request of the petitioners to allow them to retain their respective pieces of land. Ch. Muhammad Rafique Khan learned Legal Advisor of the Border Area Committee, has submitted after receiving instructions from the concerned quarters that the provisions of MLR 9, as these exist presently, do not permit the authorities to allow the petitioners to retain the land in question as the scheme under the MLR envisages allotment of the land to the eligible persons only.
6. I have given serious consideration to contentions of the learned counsel for the petitioners but find the same without merit. The order dated 28-7-1971 challenged in W.P.No. 398/R/74 pertained to a different allottee and a different Khata. The High Court had quashed that order inter alia on the ground that the said order was not a speaking order. The judgment of the High Court in the said petition as such is not relevant. The reliance on Notification dated 8-6-1971 is also of no avail as the argument based thereon was ultimately repelled by the Supreme Court in Muhammad Sharif v.
Nawab Bibi and others (1986 SCM R 538) and Muhammad Rafique and others v. The Border Area Committee, Lahore and 10 others (1990 SCM R 817). The last plea that as the land has not been allotted to anyone else, therefore, the same be allowed to be retained by the petitioners, is a plea which merits to be considered by the concerned authorities as well as the GHO and Federal Government. It is true that the petitioners purchased the land when in the revenue record it stood entered in the name of their transferors. It is their a misfortune that later on the allotment order obtained in favour of Noor Jehan, the original allottee, was found to be illegal and ineffective in law.
It is also true that according to provisions of MLR 9 the concerned authorities cannot allot the land to the purchasers until and unless amendment is made in the law. Thic, amendment can be made by the Federal Legislature through the intervention of the Federal Government which has its policy of settling and rehabilitating the poor people. The petitioners belong to that class of society which needs protection and obviously no useful purpose will be served by uprooting them from the area in dispute measuring 22 Kanals. 18 Marlas. The concerned authorities will be well advised to consider the request of the petitioners sympathetically. As far as this Court is concerned, it cannot declare the impugned orders to have been passed without lawful authority. This petition, therefore, fails and is dismissed leaving the parties to bear their own costs.