S.A. MANAN, J.- This constitutional petition is directed against order dated 30.9.1984 of the Addl.
Settlement Commissioner (Ind) Punjab Lahore communicating to respondent No.4, Ch. Nasrullah, the decision of the MBR/Chief Settlement Commissioner, allowing him (respondent No.4) alternative allotment of land measuring 44 kanals 14 marlas in Harbanspura Estate.
2. Briefly stated, "Gopal Singh Amolak Ram Rice Mills" Sheikhupura was auctioned in favour of respondent No.4 for a sum of Rs. 1,34,000/- and as the possession thereof could not be delivered, the impugned order was passed in favour of said respondent transferring him the disputed land and consequently mutation No. 4297 dated 6.4.1985 was attested in his name. Both the order of allotment and mutation are impugned in this writ petition.
3. Petitioners No.1 to 4 are the sons while petitioner No.6 is brother of petitioner No.5, Taj Din.
4. I have heard the learned counsel for the parties as also Mr. Hamid Ali Mirza, learned counsel for settlement department. Admittedly, respondent No.4 was neither the allottee nor in possession of disputed land and the same has been transferred to him on the basis that he could not be delivered possession of auctioned property. No material has been placed on the record to show that the settlement department were helpless on this account. Once the property was auctioned in favour of respondent No.4, steps should have been taken for handing over its possession or respondent No.4 could be permitted to proceed in accordance with law. There are thousands of cases where the property is transferred but possession not delivered and the transferees/auction purchasers filed ejectment applications in a proper court of law for obtaining possession. In view of this, the action of settlement department in providing alternative disputed property was wholly illegal. Even otherwise, there is no provision in law for the transfer of disputed urban land as against non-delivery of possession of the auctioned property. Respondent No.4 is not the urban claim holder as against which the property could have been allotted to him. This being the case, impugned order of transfer in favour of respondent No.4 is without lawful authority and of no legal effect.
5. Learned counsel for settlement department also does not support the transfer of disputed land in favour of respondent No.4 in view of notification dated 16.5.1973 issued by the Chief Settlement & Rehabilitation Commissioner whereby all available urban land was to be treated as building site for disposal u/s 13 of the Displaced Persons (Land Settlement) Act, 1958. This notification was subject matter of discussion and the same was held to be validly issued as is clear from 1991 S.C.M.R. 377 "Bashir Ahmad and others vs. Punjab University Academic Staff Association etc". For all the reasons, no right could be conferred in favour of respondent No.4 for such a valuable land.
6. As to the petitioners, they have set out their claim in para 6(c) of the writ petition to the effect that they could be entitled to the allotment of the land in dispute provided the same was declared to be Jageer property. It is stated that "if the Jagir Land involved in Writ Petition No. 5710/1978 is declared as such by the High Court and resumed under L.R. Reg 1972, the petitioners would be entitled to its allotment/grant under para 18 of the said Reg. And respondent No.1 or his subordinate officers would have no jurisdiction to dispose of the land in any manner whatsoever".
7. By order dated 9.5.1977, the Chief Land Commissioner Punjab Lahore declared the property as non-Jagir. The operative part is as under:- "I therefore hold that the land in dispute is, and has correctly been treated as being, proprietary land and that the clement of jagir relates only to an assignment of land revenue and cesses amounting to Rs. 2422/-. It is this clement of cash jagir which was liable to be resumed under MIR 64.1 therefore reject the claim of the petitioners that the land in dispute should be resumed as jagir land under para 20 of MUR 63 and then allotted to them under the provisions of that Regulation read with the relevant provisions of MUR 115. The case, which has been remanded to me by Chairman Federal Land Commission by his order 12.7.1975 and remitted originally to the Chief Land Commissioner by order dated 11.2.1971 of the Lahore High Court, is disposed of accordingly."
The aforementioned order was challenged by Haji Abdur Razzaq and others in writ petition No.5710- 78 which was dismissed on 12.12.1978 but status-quo was granted by the Hon'ble Supreme Court on 5.2.1970 to the effect "let status-quo be maintained till the disposal of the CPHUA." in view of the status-quo order, respondent No.4 could not be allotted the disputed land in 1984 and for this reason as well, the impugned order is liable to be struck down.
As to the claim of petitioners, the disputed property was already held to be nm-jagir property against which writ petition No. 5710-78 was dismissed on 12.12.1978 resulting initially in C.P.S.L.A. No. 38 of 1979 and finally Civil Appeal No. 136-83 which was dismissed for lack of prosecution by he Hon'ble Supreme Court on 19.5.1985 and application for its restoration also met the same fate on 14.4.1992. The effect of this dismissal is that the property remained as non-jagir and, therefore, petitioners could not be transferred the same. All these facts are collected from the paper book, filed in the Hon'ble Supreme Court, produced by the learned counsel for petitioners. On above grounds, the writ petition of petitioners, therefore, merits dismissal.
8. Report in this case was received from respondent No.2, Addl. Deputy Commissioner (General)
Lahore Cantt. Who admitted the possession of petitioners No.1,2,4 and 6 over the part of disputed land but from 1981-82. It is stated in the report that petitioners are not entitled for the transfer of property. Be that as it may, it is for the Chief Settlement Commissioner to examine the case of petitioners if any relief can be granted to them.
For the reasons stated above, the impugned order dated 30.9.1984 is declared to have been passed without lawful authority and of ne legal effect. The Board of revenue/Chief Settlement Commissioner will dispose of the disputed property in accordance with law.