' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment of the Lahore High Court dismissing the Constitution petition of the appellants wherein they had challenged the orders of the Settlement authorities.
2. The land in dispute was allotted to the appellants in 1947/48. They claimed that they were refugees from the State of Jammu and Kashmir and the allotment was made to them for purpose of maintenance in lieu of ration. In 1959 the same land was allotted to respondent No,1 who was a refugee from a non-agreed area against his verified claim. This allotment was made without notice to the appellants and without cancelling the allotment already made in their favour. In 1964 when the appellants came to know of the allotment made to respondent No,1, they filed a miscellaneous application before the Deputy Settlement Commissioner at Ferozewala. They alleged that as they were already holding the land by way of maintenance as refugees from Jammu and Kashmir State, it could not be taken away from them or allotted to respondent No,!. By his order dated 5-8-1965 the Deputy Settlement Commissioner filed the miscellaneous application.
From his order the appellants filed a revision petition before the Settlement Commissioner. The Settlement Commissioner accepted the revision petition and remanded the case to the Deputy Settlement Commissioner for a fresh decision. The order of remand was not challenged by the respondents. However that may be, the Deputy Settlement Commissioner dismissed the application of the appellants with the observation that the land allotted to the appellants could not be kept in reserve for Jammu and Kashmir refugees. The appellants filed another revision petition before the Settlement Commissioner. It was dismissed. They then filed another Constitution petition in the High Court which too was dismissed. The appellants have now come in appeal to this Court.
3. It appears that on the promulgation of Martial Law Regulations 89 and 91 respondent No,1 surrendered the land in dispute and later, opted to purchase it. Subsequently he entered into sale transactions with some of the respondents in this appeal.
4. While dismissing the Constitution petition of the appellants the High Court observed:-- "This petition is already devoid of force for variety of evacuees (sic). The land in question was confirmed to a claimant from non-agreed area, respondent No,1 on 25-10-1959 and 12-12-1959. The petitioners did not challenge these orders by means of regular appeal or revision. These became final. On the basis thereof, the land in question was dealt with and disposed of under Martial Law Regulations No,89 and 91 in the year 1962. The petitioners did not still take any step for another nearly two years, when in the end of 1964, they instead of taking regular proceedings, filed a miscellaneous petition before the Deputy Settlement Commissioner who filed the same vide order dated 5-8-1965. He acted rightly. No revision was competent against this order. The learned Settlement Commissioner fell in error in allowing the revision and remanding the case on 21-2-1967.
However, the Deputy Settlement Commissioner rightly declined to interfere on' 15-7-1968 and the learned Settlement Commissioner correctly refused to exercise jurisdiction vide order dated 3-4- 1969. In the circumstances, he had no jurisdiction in the matter whatsoever. For these reasons, there is no merit in this petition and the same is dismissed with costs."
5. The allotment of the land in dispute was made to respondent No,1 under the Rehabilitation Resettlement Scheme. Now, paragraph 4-A(ix), Part I of the Scheme stated that the 'land allotted on temporary basis to Jammu and Kashmir refugees' was to stand excluded from the Scheme and was not to be allotted thereunder. Consequently, if the land in dispute was covered by clause (ix) ibid, the allotment made in favour of respondent No,1 was clearly illegal.
' It is contended on behalf of the respondents that the appellants were not refugees from the State of Jammu and Kashmir and the land was not allotted to them in their status as such. This contention has little factual basis. Twelve of the appellants have placed on record identity certificates issued in their favour by the Government of Pakistan in the Ministry of Home and Kashmir Affairs (Kashmir Affairs Division), dated 14-8-1966, wherein they are stated to be nationals of Jammu and Kashmir State. During the proceedings before the Settlement authorities the authenticity of these certificates was never challenged. Similarly there was no definite finding of the Settlement authorities that the appellants were not refugees from Jammu and Kashmir State. It may also be mentioned that on two earlier occasions, before the allotment was made in favour of respondent No,1, attempts were made to deprive the appellants of the land held by them, but on both occasions, the orders cancelling the allotment of the appellants were set aside by the higher authorities. We have no reason to doubt that the appellants were refugees from the said State and the land in dispute was allotted to them for maintenance Reference by the High Court to the provisions of Martial Law Regulations 89 and 91 is entirely irrelevant for neither these two Regulations had the effect of validating an allotment which could not have been made under the Rehabilitation Resettlement Scheme.
7. As noticed above, the allotment made to respondent No,1 was made without first cancelling the allotment of the appellants. Even if the allotment made to respondent No,1 be taken as impliedly cancelling the allotment of the appellants, the allotment in his favour was illegal as it was made without notice to and at the back of the appellants. See Jan Muhammad v. Sher Muhammad (PLD 1979 SC 985) . It was the case of the appellants that they were unaware of the allotment made to respondent No,1 till shortly before they filed a miscellaneous application before the Deputy Settlement Commissioner. The respondents at no stage before the Settlement authorities refuted their assertion in this regard. The observations made by the High Court that in the absence of any appeal or revision the order of allotment made to respondent No,1 became final are unsupportable as the allotment to respondent No,1 had been made in violation of the Scheme and without notice to the appellants. In the circumstances we do not see how the order of the learned Settlement Commissioner directing a remand could be regarded as without jurisdiction. In any way respondent No,1had not challenged the said order at any stage.
8. For the reasons stated above, we set aside the order of the learned Single Judge and also of the Settlement authorities by which the land in dispute was allotted to respondent No,1. There will be no order as to costs.