This Constitutional petition is directed against the order dated 2-10-1980 of the Additional Settlement Commissioner (Land), Punjab, Lahore refusing to cancel the allotments, in favour of the respondents, under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958.
2. Briefly stated, at the instance of the Enforcement Staff, an enquiry was made into the allotments of the respondents and by order dated 20-12--1973, the Additional Settlement Commissioner (Land)/Chief Settlement Commissioner, Punjab, Lahore, dismissed the reference. The controversy in this Mukhbari application was that the claimant, Noor Khan died in Pakistan in 1952 and that his claim could not be split up in favour of his legal heirs and, therefore, the allotments could not be made. It was further alleged that the legal heirs of Noor Khan applied for the allotments in their own names separately and in this way excess allotments have been made. It was agitated that if there would be only one claim in favour of Noor Khan then different allotments could not have been made in favour of the legal heirs.
3. A detailed enquiry was made where 16 witnesses were recorded and after discussing the matter extensively the reference was dismissed on 20-12-1973 as stated above. It was held in this order that Noor Khan died in December, 1947 and therefore his sons and daughters were rightly allotted land in their own names and in this way there was no excess allotment.
4. Despite the aforementioned dismissal of the reference, the present writ petitioners filed Mukhbari application on the same ground as was the subject-matter of the previous enquiry but this was also dismissed by order dates 2-10-1980 of the Additional Settlement Commissioner (L). While dismissing the Mukhbari application of the present petitioners, the learned Settlement Commissioner held that the matter was previously decided on 20-12-1973 and the order was passed after discussing all aspects of the case and examining the whole record. It was further observed that 16 witnesses were examined by the learned Additional Settlement Commissioner/Chief Settlement Commissioner and he determined the entitlement of all the sons and daughters and widow equally and held in his judgment that Noor Khan died in December, 1947 during the disturbances of partition and his heirs filed separate claim forms and mutation of inheritance was also sanctioned in the name of five sons, five daughters and one widow. Further held that individual allotment of the legal heirs was within their entitlement and a particular reference was made to the previous order of the Additional Settlement Commissioner that none of the legal heirs secured any allotment beyond their entitlement.
5. I have heard the learned counsel for the parties and main plea of the learned counsel for the petitioners is that the learned Additional Settlement Commissioner in dismissing the Mukhbari application vide order dated 2-10-1980 misdirected himself in holding that he had no power under section 2(21 of the; Repealed Act of 1975 to review or revise the previous order. On the contrary, the learned counsel for the respondents submitted that the matter has already been enquired into and no second Mukhbari application was competent and in any case on merit the disputed land was rightly allotted in favour of the respondents.
6. As to the contention of the learned counsel for the petitioners, the same is devoid of any force because at the time when the impugned order was passed, no powers of review or revision were available and on this ground, therefore, the impugned order cannot be declared to be without lawful authority. The earlier order was passed by the Officer exercising the powers of Chief Settlement Commissioner and the same is the status of the present Settlement officer who has passed the impugned order. There is, therefore, nothing illegal to observe that no power of revision or review vested in the officer who passed the impugned order. The learned counsel for the petitioners further contended that the predecessor of the respondents died in 1952 and the claim could not be split up and in this way, excess land has been allotted to the allottees. This again is not the correct position. It has been held in the earlier order dismissing the Mukhbari application that Noor Khan died in December, 1947. Similarly, there is a certified copy of Mutation Not 1 dated 23-4-1952 in favour of the respondents produced on the rite and has been relied upon by the learned counsel for the respondents in presence of the learned counsel for the petitioners, showing that there is a report dated 16-4-1952 certifying that claimant Noor Khan died in December, 1947. In these circumstances, there is unimpeachable evidence on the record to show that claimant Noor Muhammad died in December, 1947 and not in 1952 as is alleged by the learned counsel for the petitioners. Reliance is placed by the learned counsel for the petitioners on the statement of one of the sons where he stated that Noor Khan died in 1947 but this is being misread by to learned counsel for the petitioners as 1952. This statement was made on 13-12-1973 in the previous enquiry where the reference of the Enforcement Department was dismissed on 20-12-1973 and where it was held that claimant died in December, 1947. The documentary evidence on the record unmistakably shows that the claimant died in December, 1947 and not in 1952 and the allotment in the name of the respondents, therefore, was rightly made separately.
7. Even otherwise the petitioners have not been able to make out any case against the respondents because an extensive enquiry has also been held and the reference of the Enforcement Department was dismissed on 20-12-1973, therefore, the second Mukhbari application on the same point by the present petitioners was not competent nor there is any justification whatsoever to reopen the whole case. The respondents have permanently settled on the disputed land and no case is made out that they should be unsettled without any rhyme or reason.
8. The learned counsel for the respondents relied upon 1983 SCM R 1039 Dahla v. Settlement Commissioner (Lands) and others to show that the Settlement Commissioner could not have given a contrary decision on the same point which was the subject-matter of the earlier proceedings, and I am in complete agreement with him.
9. Faced with the aforementioned situation the learned counsel for the petitioners placed reliance on 1993 SCM R 2307 Aminullah and 2 others v. Qalandar Khan and 4 others to contend that "where a finding of fact given by a Tribunal of exclusive jurisdiction was so glaringly contrary to the material placed before it, that the error floated at the surface of the record, High Court was not barred to render a finding afresh on the basis of material available on file." There is no cavil with this legal proposition but the facts of the precedent case are quite different to that of the instant case. The learned counsel for the petitioners has not been able to show me that the Additional Settlement Commissioner/Chief Settlement Commissioner has committed a patent factual illegality which calls for any interference by this Court.
For the reasons stated above, there is no merit in this writ petition which is dismissed but without any order of costs.