' ZIA MAHMOOD MIRZA, J.---This appeal by leave of this Court is directed against the judgment of Lahore High Court dated 28-4-1976 whereby Writ Petition No, 148-R/76 filed by Ghulam Muhammad and Din Muhammad respondents herein against the order of Deputy Settlement Commissioner dated 28-1-1976 was accepted and the Deputy Settlement Commissioner concerned was directed to act in accordance with law and offer the land in occupation of the respondents to them for sale as per the mandate of Act XIV of 1975.
2. Facts forming the background of this appeal briefly are that Ghulam Muhammad and Din Muhammad respondents claiming to be the legal heirs of Mst. Jewni widow of Muhammad Bukhsh filed Claim Forms No, 9286 and 9287 in respect of her abandoned rights in agricultural land in Village Fateh Garh, District Ludhiana (India). These claims were verified and the respondents obtained allotment of 30-1/2 Kanals of land in Chak No, 29/S.B., Tehsil and District Sargodha against the said claims. However, on a report of the Director, Enforcement, Evacuee Property and Claims, the Deputy Settlement Commissioner by his order dated 25-9-1964 cancelled the respondents' allotment on the ground that they had no connection whatsoever with the deceased right-holder.
Respondents preferred a Settlement Revision No, 8/1965 which was accepted by the High Court and the case was remanded to the Chief Settlement Commissioner for fresh investigation into the question of succession of Muhammad Bukhsh.
' On remand, the matter was placed before Sardar Hadayat Ullah Khan Mokal, Settlement Commissioner (Land) with the powers of Chief Settlement Commissioner who after holding an inquiry came to the conclusion that the respondents had no connection or relationship with the deceased right-holder and, therefore, they were not entitled to allotment of land in lieu of the area abandoned by Mst. Jewni. He accordingly, in exercise of his powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, cancelled the respondents' allotment vide order dated the 4th of November 1971 and directed that the area in dispute be resumed forthwith and that "the area so resumed shall be utilized for the compensation of genuine claimants strictly in accordance with circular Memorandum No, 4160-69/3571-RD, dated 10-6-1969 issued by the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore". The officer further directed that the respondents being illegal occupants shall render the accounts of the mesne profits derived by them and the same shall be recovered from them as arrears of land revenue. Copy of the order dated 4-11-1971 was directed to be sent to the Deputy Commissioner/Additional Settlement Commissioner (Land), Sargodha for immediate necessary action.
3. Aggrieved by the aforementioned order dated 4-11-1971, the respondents once more approached the High Court in Settlement Revision No, 49 of 1972 which was partly accepted vide order dated 26-5-1972 as the High Court set aside the direction relating to the rendition of accounts and recovery of mesne profits from the respondents but did not interfere with the rest of the impugned order of the Chief Settlement Commissioner. The respondents did not agitate the matter any further but somehow continued in possession of the land in dispute. It appears that the present appellants who were the claimants displaced persons brought it to the notice of the authorities concerned through an application made on 26-3-1974 that the respondents despite the cancellation of their allotment were unlawfully continuing in possession of the land in dispute and prayed that the order of the Chief Settlement Commissioner dated 441-1971 be implemented and the area in dispute be allotted to them against their claim as per the direction contained in the said order. Meanwhile, the respondents on the strength of their occupation, also put in an application on 27-4-1974 for purchasing the land in dispute at the rate of Rs,10 per PIU, basing their claim on Memorandum No, 24-POL/74 dated 9-1-1974. Applications of both the appellants and the respondents were rejected by the Deputy Settlement Commissioner on 8-7-1974. Both the parties are then stated to have filed the revision petitions before the Settlement Commissioner who rejected the same on 6-12-1974 holding that after the repeal of Evacuee Property and Displaced Persons Laws, he was not competent to hear the revision. He, however, observed in his order that "Deputy Settlement Commissioner (Land) should decide the case in accordance with the instruction contained in paras. 2 and 3 of the Ordinance of 1974". Pursuant to this observation of the Settlement Commissioner, the matter came up before the Deputy Settlement Commissioner
(Land) who by his order dated 28-1-1976 held that the respondents were not eligible to purchase the land in dispute under the provisions of section 3 (b) of Ordinance XV of 1974 for the reasons, inter alia, that the Chief Settlement Commissioner had passed an order of ejectment against them on 4-11-1971 which order was still in tact and in force as the same was maintained even by the High Court; that in pursuance of the said order, land had been actually cancelled from their names and resumed in favour of the Central Government and that the persons whose allotments were cancelled under section 11 of the Displaced Persons (Land Settlement) Act were liable to surrender possession of the land in their occupation and their occupation was invalid. The Deputy Settlement Commissioner also took note of the direction given by the Chief Settlement Commissioner in his order dated 4-11-1971 regarding the utilization of the land in dispute for compensating the genuine claimants and observed that in view of this direction of the Chief Settlement Commissioner, the matter regarding the disposal of the resumed land should have been treated as a pending case and disposed of in accordance with the provisions of the repealed Act to which the proceedings related as laid down in Ordinance XV of 1974 itself. Taking this view of the matter, the Deputy Settlement Commissioner proceeded to hold in accordance with the order of the Chief Settlement Commissioner dated 4-11-1971 that "in case Hakim Ali and Niaz Ali and Muhammad Ismail (the present Appellants) are found to be genuine claimants, there is no bar to the allotment of land to them against their verified claims."
4. Feeling aggrieved by the aforesaid order of the Assistant Commissioner/Deputy Settlement Commissioner (Land), respondents challenged it in Writ Petition No, 148-R/1976 which was heard alongwith three other connected petitions involving identical questions of law, by a learned Single Judge of the High Court who disposed of all the petitions by a consolidated judgment dated 28-4- 1976. Writ Petition No, 148-R/1976 as stated above was accepted by the learned Judge holding that the impugned order of the Deputy Settlement Commissioner was based on misreading of record and non-application of operative statutory provisions. The High Court observed that the Deputy Settlement Commissioner was in error in finding that an order of ejectment was passed against the petitioners (now the respondents) by the Chief Settlement Commissioner on 4-11-1971.
According to the High Court, the Chief Settlement Commissioner passed no order of ejectment. He only ordered that the allotment "be cancelled forthwith and area resumed" and sent a copy of his order to the Additional Settlement Commissioner for necessary action who did not cancel the allotment until 14-5-1974 and that the resumption i,e. Re-occupation of the land has still not taken place. The view taken by the High Court was that in any case, these events had come about after the Legislature had conferred right of purchase on the occupants i,e. From the 1st of July 1974 and, therefore, the question of the petitioners (respondents herein) having no locus standi did not arise.
It was further observed that "the fact that the petitioners allotment was cancelled and, therefore, their possession was invalid has no relevance. Under the Statute, the person has to `occupy' the land. He does not have to an order in his favour. If he had that, he would be in possession and in that case, the petitioners would be owners and question of purchase would not arise." For all these reasons, the impugned order of the learned Deputy Settlement Commissioner dated 28-1-1976 was held to be unsustainable and was declared to have been passed without lawful authority and of no legal effect and the Deputy Settlement Commissioner was directed to act in accordance with law and offer the land in occupation of the respondents to them for sale per the mandate of Act XIV of 1975. Aggrieved of this decision, the appellants filed a petition for leave to appeal (C.P. 783-76) in this Court in which leave prayed for was granted on 27th February, 1978.
5. We have heard the learned counsel for the parties and have gone through various orders placed on the present record. Learned counsel appearing for the appellants contended that the land in dispute was not available property within the contemplation of section 3 of Ordinance XV of 1974/Act XIV of 1'975 and as such it could not be offered for sale to the respondents. Reliance for this submission was placed on the order of the Chief Settlement Commissioner dated 4-11-1971 as also on the provisions of Act XIV of 1975. It was contended that the Chief Settlement Commissioner having directed that the land in dispute be utilized for compensating the genuine claimants, it could only be allotted to the claimants whose claims were still unsatisfied and could not be sold to the occupants/respondents. It was further contended that since the appellants being the sitting allottees of the Chak where the land in dispute is situate had applied for its allotment against their pending/unsatisfied units on 26-3-1974 which application was still pending at the time of the repeal of the Evacuee Property and Displaced Persons Laws, the land was not available for disposal under section 3(1) of the Act. According to the learned counsel, the application of the appellants was to be disposed of first by virtue of the provisions of subsections (2) and (3) of section 2 of Act XIV of 1975 and the land in dispute would become available for disposal under section 3 (1) of the Act only if and when the appellants' application was finally rejected. Precise submission of the learned counsel was that without determining/deciding the appellants' entitlement for allotment of the land in dispute against their pending claim, the land could not be offered for sale to the respondents under section 3(1). In support of his submissions, learned counsel for the appellants relied upon "Shah Nawaz and others v. Member Board of Revenue" (PLD 1978 SC 266) and "Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others" (PLD 1979 SC 46).
6. In order to appreciate the contention of the learned counsel for the appellants, reference may usefully be made to the relevant provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). Section 2 (1) of the Act repealed as many as seven laws including the Displaced Persons (Land Settlement) Act, 1958. Subsections (2) and (3) of section 2 read as follows:-- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the Authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such Authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
' Section 3 (1) of the Act which gave a right to the occupants to purchase the land in their occupation is reproduced hereunder:- " Transfer of property.--(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section, 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal--
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: ' Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: ' Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972.
7. Combined reading of the aforenoted provisions makes it quite clear that the proceedings pending on the date of repeal of Evacuee Property and Displaced Persons Laws were saved by the Repealing Act XIV of 1975 by providing that all such proceedings shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and shall be disposed of by such notified officers in accordance with the provisions of the Repealed Laws to which the proceedings relate and that the right to purchase the land given to the occupants by section 3 (1) of the Act shall come into play only if, as a result of the final order passed in the pending proceedings under subsection (3) of section 2, the property becomes available for disposal. That is to say, if the property is not transferred/settled in the pending proceedings. If, however, as a result of the pending proceedings, the property is transferred to the applicant/claimant, then it will of course not be available for sale to the occupant under the first Proviso to section 3 (1) . These provisions, it may be stated, had earlier been examined by this Court in the two cases cited by the learned counsel for the appellants and it was held in the case of Shah Nawaz and others v. M.B.R. That subsection (1) of section 3 applies only to such land which becomes available as a result of a final order passed under subsection (3) of section 2. That was the case of an informant, a claimant versus the occupant of the land which being in excess of his entitlement had been cancelled from his name. The latter claimed that since he had not been ejected from the land in dispute, he had a right to purchase it under section 3 of Act XIV of 1975 while the informant had applied for allotment of the land as a reward for his 'Mukhbari'. It was held on the fact of the precedent case that as the proceedings of the informant claiming the land in dispute were 'pending proceedings' at the time of the repeal of Displaced Persons (Land Settlement) Act, the land in dispute was not available with the result that the concession to purchase the land bestowed on the occupants in subsection (1) of section 3 was not available to the occupant in that case. Similarly, in the case of Nawab Din v. M.B.R. (supra), application of a claimant seeking transfer of evacuee land against his verified claim which was pending at the time of repeal of the Displaced Persons (Land Settlement) Act was held to be pending proceedings within the meaning of subsection (2) of section 2 of Act XIV 1975 and consequently, it was held that the land in dispute was not 'available land' within the contemplation of section 3 of the said Act and, therefore, the occupant of the land had no right to have it as against the claimant whose application was sub judice at the relevant date. Almost identical was the position in the instant case. It has not been denied that not only the order of the Chief Settlement Commissioner dated 4- 11-1971 directing that the land in dispute be utilized for satisfying the claim of genuine claimants was in the field when the Evacuee Property and Displaced Persons Laws were repealed with effect from 1-7-1974, the appellants' application moved on 26-3-1974 seeking transfer of the land in dispute against their unsatisfied claim was also pending adjudication at the time of the repeal of aforesaid laws. That being so, the matter regarding the transfer of the land in dispute was a 'pending proceeding' which according to the provisions of subsections (2) and (3) of section 2 of Act XIV of 1975 was required to be disposed of in accordance with the provisions of the repealed Act viz the Displace Persons (Land Settlement) Act, 1958. The land in dispute would become available for the purposes of section 3 (1) of Act XIV of 1975 only after the proceedings taken on the appellants' application had been finalized and a final order passed rejecting their claim for transfer of the land in dispute against their pending units. Admittedly, no such order had been passed by any competent authority. On the contrary, the Deputy Settlement Commissioner by his order dated 28-1-1976 had held that if the appellants were found to be genuine claimants, there was no bar to the allotment of the land to them against their verified claim. In the circumstances, the land in dispute was not available for disposal under section 3 (1) of Act XIV of 1975 either before the repeal of the Evacuee Property and Displaced Persons Laws or thereafter so as to offer it for sale to the respondents. This aspect of the legal position, it appears, was not placed before the learned Single Judge in the High Court with the result that he proceeded to deal with the question of respondents' entitlement to purchase the land in dispute without considering whether the land was available for disposal in terms of section 3 (1) of the Act and held that since the respondents were the 'occupants' of the land for the requisite period (concept of valid and lawful possession, according to the learned Judge, having no relevancy under the relevant statute) and as no order of ejectment was passed against them, they were entitled to purchase the land in dispute.
8. In the aforesaid view of the matter, we hold that for the reasons aforementioned, the land in dispute was not available for disposal/offer for sale to the respondents. In the circumstances, we do not consider it necessary to go into the question whether the benefit of the first proviso to section 3 (1) could be extended to the respondents who had obtained allotment and occupation of the land in dispute on the basis of a false and fraudulent claim.
9. In view of what has been said above, this appeal is allowed, the impugned judgment of the High Court to the extent that it directed the Deputy Settlement Commissioner concerned to offer the land in dispute for sale to the respondents is set aside and the case is remanded to the Chief Settlement Commissioner/Member (S & R), Board of Revenue, Punjab with the direction that the appellants' application for transfer of the land in dispute against their pending units be first disposed of in accordance with the provisions of the Displaced Persons (Land Settlement) Act, 1958 and the Schemes framed thereunder. The Chief Settlement Commissioner may dispose of the case himself or entrust it for disposal to the Notified Officer/Deputy Settlement Commissioner concerned. Needless to observe that final orders on the application of the appellants shall be passed after hearing both the parties. No order as to costs.