The necessary facts briefly stated are that one Muhammad Ismail son of Ilam Din, a refugee from Jammu and Kashmir, was allotted land in dispute situated in village Karyala, Tehsil Hafizabad, District Gujranwala on 20-10-1957. On the death 'of Muhammad Ismail, the then Rehabilitation Commissioner (Lands) vide order dated 30-4-1964 allotted the said land in the name of Nemat Ullah son of Sardar Khan, as it was represented that he was nephew of deceased allottee namely Muhammad Ismail. One Jamal Din son of Ilam Din filed a `Mukhbari' application on 22-3-1974 complaining that Nemat Ullah was not related in any manner to Muhammad Ismail allottee and that the order of allotment was obtained by him through misrepresentation and by practising fraud. The Additional Settlement Commissioner with the powers of Chief Settlement Commissioner vide order dated 20-11-1975 accepted the `Mukhbari' application, cancelled the allotment in the name of Namat Ullah and directed that the said land be allotted to Jamal Din son of Ilam Din, Mukhbar against his 4-16 PIUs. Nemat Ullah challenged this order by filing a Constitution petition in this Court which was dismissed on 21-5-1976. The Special Leave to Appeal taken to the Supreme Court was also dismissed on 27-3-1982.
2. Nemat Ullah then filed a suit before the Civil Court and on its dismissal challenged the decree of dismissal of the suit before the learned Additional District Judge. This appeal was also dismissed on 23-11-1982 and revision petition (C.R.No. 1515/D-83) to challenge the said judgment was also dismissed by this Court on 9-10-1983.
3. After all this prolonged litigation, Nemat Ullah submitted application to Chief Settlement Commissioner on 13-10-1983 saying that Jamal Din had no pending units as he had received cash compensation thereof and as such he being in occupation of the land in dispute, the same be sold to him at the rate of Rs.100 per unit. This application was rejected by the Chief Settlement Commissioner on 24-6-1984, saying that he is not entitled to seek sale of the land in his favour under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. This order was then challenged by Nemat Ullah by filing the present Constitution petition. Nemat Ullah after his death is now represented by his legal representatives. Jamal Din has also died and is being represented by Muhammad Siddique son of Ghulab Din and Mst. Rashidan Bibi daughter of Ghulab Din, as it is claimed that they are now the legal representatives of Jamal Din.
4. Learned counsel for the petitioner submitted that as Jamal Din had received cash compensation in lieu of his pending units, he is not entitled to claim allotment of the land in dispute and Nemat Ullah now represented by his legal representatives is entitled to seek sale of the said land under section 3(b) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
5. Learned counsel for the respondents on the other hand has referred to the report as well as the orders attached with the report to show that neither Jamal Din in his lifetime nor his legal representatives have received cash compensation and that in fact application for cash compensation filed was withdrawn in view of the acceptance of the Mukhbari application and the direction that the land be allotted to informer (Mukhbar) which order was upheld up to the Supreme Court and then also by the High Court in the Civil Revision arising out of the suit had to be complied with.
6. Reference was also made to `robekar' dated 16-8-1984 whereby the Additional Settlement Commissioner, Gujranwala was' directed to allot and transfer the land in dispute to Jamal Din against his pending units on account of the fact that the matter stands finally decided against Nemat Ullah and in view of the direction dated 9-9-1984 of the Member, Board of Revenue. It is also contained in his `robekar' that after allotting the land, a mutation of inheritance be sanctioned in accordance with law.
This being the position, it cannot be asserted successfully that the land is available for disposal in accordance with section 3(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It is also obvious that even if Muhammad Siddique and Mst. Rashidan Bibi are finally held not to be the legal representatives of Jamal Din still the petitioner (Nemat Ullah) cannot claim allotment on the basis of possession as the land is not available.
7. In this view of the matter, the impugned order dated 24-6-1984 passed by Member, Board of Revenue (Settlement and Rehabilitation)/Chief Settlement and Rehabilitation Commissioner, directing that Nemat Ullah is not entitled to seek sale of the land in dispute under the aforesaid Act and that in case the mutation of inheritance is not finally sanctioned in favour of Muhammad Siddique, the land be disposed of by public auction, is justified in law.
8. For the reasons given above, there is no merit in this petition and the same is dismissed with cost.