This writ petition is filed by Mst. Aisha Bibi against order, dated 5-5-1976 of the Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner by which he has restored the allotment of the disputed land in favour of respondent Safia Bibi.
2. Before touching the relevant facts for the disposal of this writ petition it is necessary to state a little history of the earlier round of litigation which went up to the Hon'ble Supreme Court twice. An order was passed by this Court on 26-10-1980 accepting a compromise on the basis of the statement of the learned counsel for the parties and in view of this no further order was required to be passed in the writ petition.
3. Safia Bibi filed Review Application No.158 of 1980 declining to have ever entered into a compromise stating that the same was done without instruction and in an unauthorised manner by her so called attorney Abdul Khaliq which according to the petitioner was not binding on her.
This review petition was dismissed by order, dated 21-1-1981 of this Court.
4. Against the aforementioned order, dated 21-1-1981 dismissing the review petition of Mst. Safia Bibi, the matter was taken up in Civil Appeal No. l of 1982 in C.P.S.L.A. No.335 of 1981 and the impugned order was set aside and the case remanded by order, dated 18-1-1982 of the Supreme Court for fresh decision. In pursuance to this the matter remained pending in this Court and the case was adjourned from time to time and finally by order, dated 26-3-1986, again the case was decided in favour of petitioner Aisha Bibi holding that the documentary evidence produced by Safia Bibi does not establish the commission of fraud or misrepresentation and in view of this the Review Application No. 158 of 1980 filed by her earlier was dismissed.
5. Respondent Safia Bibi again filed C.P. No.711 of 1990 assailing the order of this Court, dated 26th March, 1986 and the same was accepted directing that the dispute between the parties in the writ petition may be decided in presence of the parties afresh. The case was taken up by me for the first time on 10-11-1992 and thereafter on 29-11-1992 when permission was granted for the legal heirs of Mst. Aisha Bibi to be brought on record. It was also ordered that the copy of the order of the Supreme Court passed in Civil Appeal No.711 of 1990 be also placed on record.
6. The learned counsel for the parties have addressed lengthy arguments on behalf of their respective clients on 27-1-1993 but did not touch any question as to the compromise between the patties about which the litigation was going on and twice in the Supreme Court and confined their submissions in detail on the merits of the case. I would, therefore, decide the case on merits keeping in view that the issue relating to the earlier compromise has been abandoned by the parties.
7. According to Naqal Fard Taqseem Arazi of village Ghazi Manara Tehsil and District Sheikhupura, the land in dispute was under the temporary allotment of Sardar Ali son of Ali Muhammad with four members of his family including Safia Bibi, his niece, and this allotment was made vide No.413 dated 5-10-1948. This is so mentioned in last column of Naqal Taqseem. It appears that the same land was proposed in favour of the present petitioner on 28-4-1971 and finally confirmed on 2-6- 1971 as is evident from Khata No.32/1 Annexure A to the petition.
8. Feeling aggrieved against this order Safia Bibi filed an appeal which was accepted by order, dated 5-5-1975 of the Chief Settlement Commissioner which order is impugned in these proceedings.
9. It is contended by the learned counsel for the petitioner that the appeal was barred by time and therefore the impugned order was without jurisdiction as the question of limitation was not in his mind. Further, the petitioner was entitled to the transfer of the land on the basis of her Urban units, the land in question being situated in an urban area..
10. It is contended by the learned counsel that the appeal was not barred by time and that in any case the same was filed from the date of knowledge and reliance is placed on para. 6 of the grounds of the appeal to this effect. He further submits that the respondent was the temporary allottee of the disputed land along with her cousin Sardar Ali and that the same could be adjusted as against her rural units, therefore, the writ petition has no merit and the same may be dismissed.
11. After hearing the learned counsel for the parties at great length I am o: the opinion that the land in dispute was allotted to Sardar Ali along with his family members on temporary basis and any one of them could claim the land as against their rural claim. It has been held in Akhtar and Hafmann Ltd. v. Messrs Ulbricht's WWE, GES, M.B.H. Austria and others 1991 SCMR 1284 that a A person cannot claim temporary allotment on the strength of temporary allotment of her brother and her father unless the applicant's name is recorded as member of the family. In this case the respondent's name is recorded in the temporary allotment order and the argument of the learned counsel for the petitioner, at this stage, that her name has been interpolated is of no avail to him. If that be the I position a regular enquiry could be sought on behalf of the petitioner in default of which it is presumed that her name also existed in the temporary allotment. Moreover, there is no finding by the Chief Settlement Commissioner in the impugned order that the name of the respondent has been subsequently recorded. It appears that the petitioner was not serious to agitate this point during the proceedings when the impugned order was passed.
12. As to the contention regarding the time-barred appeal it is settled law I that section 5 of the Limitation Act is not applicable to the Settlement Laws and, therefore the appellate authority can proceed to decide the case on merits particularly when the order is a nullity in the eye of law. In this case the land was reallotted in favour of the petitioner on 2-6-1971 without first cancelling the 8 allotment of Sardar Ali or-any one of family members and this re-allotment could not have been made after the expiry of about 20 years. The order of allotment ~ in favour of the petitioner, therefore, was an ex parte order and I without hearing the respondent, and therefore, such an order is vitiated on the principle of natural justice.
13. Further the respondent filed an appeal when came to know about the re--allotment in favour of the petitioner and this is manifested from para.6 of her appeal. In such circumstances the order dated 2-6-1971 in favour of the petitioner is not sustainable in view of Syed Muhammad Alam v.
Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6 discussing various propositions of law particularly on the issue of natural justice that no one should be condemned unheard and that in case of ex parte orders the time of limitation starts running from the date of knowledge and further that in a case where section 5 of the Limitation Act is not applicable the power of the appellate authority to decide the case on merits will not be hinged by any consideration of Limitation if the order appealed against is found to be a nullity. In view of this the contentions of the learned counsel for the petitioner are liable to be rejected without any much difficulty.
14. On the issue whether the respondent is entitled to the transfer of the land as against rural claim the legal proposition is very simple. The respondent is holding the rural claim but she was the temporary allottee C of the land in question. The learned counsel for the respondent has referred to a Memorandum No.2586 dated 26-6-1963 issued under the Second Proviso to Para. 24 of the Supplementary Scheme which is reproduced in Hakim Ali and others v. Fazal Din and others 1983 SCMR 385 and is as hereunder: --- "In supersession of the provisions contained in 2nd proviso to para. 24 of the Supplementary Scheme No.II, the Central Government has decided as a matter of general policy that the displaced persons who qualify under the provisions contained in the second proviso to clause 24 of Supplementary Scheme No.II circulated by this office Endorsement No.975-60-1R(P), dated 20th February, 1960, may be permitted to retain their temporary urban allotments of urban agricultural land against their verified entitlement for rural land or for urban and rural land combined, not exceeding the area held by them in temporary allotment or the maximum scale of allotment fixed by the Chief Settlement Commissioner under paragraph 8 of the scheme for the first round of urban allotments, whichever is less subject to title. It has also been decided by the Central Government that allotments already made in excess of this prescribed scale with permission of the Central Government under the previous provision should not .Be disturbed. These cases should, therefore, be checked and allotments made accordingly."
The petitioner not being the temporary allottee the same could not have been transferred to her under the Provision of Supplementary Scheme No.2 nor IF she cats be treated as an allottee for this purpose.
15. Looked from any angle the petitioner has not been able to disclose her right to the transfer of the disputed land and the impugned order dated 5-5-1976 seems to be unexceptionable. This was passed after hearing the petitioner as is evident from the report received in this Court on 30-11- 1976.
For reasons stated above there is no merit in this writ petition which is dismissed without any order as to costs.