' Zeladar Khan and others had filed W.P. No, 239-R-87 in this Court whereby the order dated 26-7- 1987 passed by Additional Revenue Commissioner, Punjab were called in question. It was prayed in the said writ petition that the orders passed by D.R.C. (Land) confirming the area in dispute in the name of the petitioners on 24-2-1956 be directed to be implemented in the Revenue Record in accordance with law and consequential directions/writ awarding restoration of possession of agricultural land of which they were deprived illegally. The following were the observation made by his Lordship Mr. Justice Raja Afrasiab Khan (as he then was) in the final order made on 7-11-1990: "... It appears that it is not necessary to detail the background of the case because in my view the case of the petitioners was a 'pending case' and that it was the statutory duty of the respondent, Deputy Secretary, Board of Revenue, Punjab, to have sent the case in hand to the Notified Officer for its disposal on merits according to law after hearing the parties. Admittedly, this has not been done by said officer."
With the above observation the objection if any regarding the case of the present petitioner not being "pending proceeding" has no force. So far as the correctness of the orders of confirmation of land in the name of the present petitioners is concerned, that was also looked into by his Lordship and he had proceeded to record the statement of Muhammad Iqbal Patwari of the estate on 28-3- 1988. The said statement reads as under:-- "Statement of Muhammad Iqbal Patwari Halqa 123/JB, Tehsil and District Faisalabad.
' I have seen Annexure 'S' at page 88 of the Writ Petition, which is a photo copy of RL-II relating to village 123/JB, Tehsil and District Faisalabad. I have also compared the said document with the original record and find the same to be correct and genuine."
' After affording opportunity of being heard to both the parties the writ petition was accepted.
' The following observation was also made:- "Be that as it may, after hearing the learned counsel for the parties at considerable length, I am of the view that the matter in dispute is still pending adjudication before the learned Assistant Commissioner/Deputy Settlement Commissioner Sadar Sub-Division, Faisalabad as is clear from the different interim orders having been passed by the learned officer." and also "... The impugned order, therefore, is not sustainable in law. Learned counsel maintains that learned A.C./D.S.C. (Land) City Sub-Division was the only competent Authority to decide the matter one way or the other, on its merits." and finally the following operative order was passed:-- "In these circumstances, in my considered view, the impugned order dated 26-7-1987 passed by the learned Additional Revenue Commissioner, Punjab, is a nullity in the eyes of law on the very face of record and is accordingly set aside. As observed above, in my view the proceedings referred to above are still pending within the meanings of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975, for their decision on merits in accordance with law. The learned Notified Officer is accordingly directed to dispose of the said pending proceedings before him within the next three weeks without fail after hearing the learned counsel for the parties."
2. The judgment by the learned Single Judge in Chamber referred supra was appealed against by Vice-Chancellor, University of Agricultural, Faisalabad respondent No,
2. I.CA. No, 263/90 was heard by a D.B. Of this Court and was disposed of as under:-- "It is not necessary to go into the merits of the case. Suffice is to say that the dispute in this appeal has arisen out of proceedings before the Settlement Authorities in which the original order of allotment was subject to appeal, review and revision and, therefore, this Intra-Court Appeal is not maintainable by virtue of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance (XII of 1972). This IntraCourt Appeal, therefore, fails and is hereby dismissed being incompetent, with no order as to costs."
3. Respondent No, 2 filed C.P. No, 309-L/91 against the dismissal of I.- C.A. No, 263/90 before the Hon'ble Supreme Court of Pakistan which was dismissed in the following term:-- "In view of the above there is no force in this petition. It is, therefore, dismissed."
4. The case of the present petitioners as summarised in the earlier writ petition and before the Notified Officer was that the petitioners were refugees and they filed their claims which were received after verification in Chak No, 123/JB and were entered in the register RL-II in Khatas Nos.
529/636, 530/666, 610/523, 611/524, 612/524, 613/528 and 964 and the total P.I.Us. Of their verified claims were calculated equal to 1407 P.I.Us. The petitioners were allotted/confirmed land bearing Killa No, 3 of Square No, 19, Killa Nos. 2, 7 to 14, 18 to 20 of Square No, 31, Killa Nos. 3/1, 3/2, 4, and 5 of Square No, 62, Killa Nos. 1/1, 2, 3, 5 to 9,13/1, 14/1, 15/1 of Square No, 63, Killa Nos. 1/2, L 1/3, 2, 3, 5 to 10, 11/1, 12/1, 13/1, 14/1, 15/1 of Square No, 64, Killa Nos. 5, 6/1, 6/2, 7/1, 7/2, 8/1, 8/2, 9/1, 9/2, 12/1, 13/1, 14/1, 15/1 of Square No, 65 and Killa Nos. 9/1, 9/2, 10/1, 10/2 and 11 of Square No, 66 in Chak No,123/JB, Tehsil and District Faisalabad at Khata No, 611/524 after consolidating P.I.Us. Of all the petitioners on 24-2- 1956.
5. The Notified Officer heard the parties at length and held that the proceedings qua the present petitioners were pending before him and that he was obliged to decide the issue as according to the directions of the High Court. The objection of the present respondents to that effect were repelled. To support their contentions they raised many issues even before this Court. There being a positive fmding by this Court in its judgment dated 7-11-1990, Intra-Court Appeal having been dismissed and the Hon'ble Supreme Court also having dismissed the civil petition on 13-8-1991, this question is to be treated as fmally determined and closed and all the contentions raised by the learned counsel for the respondents before this Court are not available to them. Finding to that extent having not been set aside the mere fact that the Hon'ble Supreme Court observed:-- "Besides the, order of the learned Single Judge is only one of remand wherein the parties have been allowed to raise all pleas of facts and law." would not amount to allowing the respondents to raise objections regarding the findings of this Court in W.P. 239-R-87 regarding 'pending proceedings'. They could have raised any other plea about the facts and law, there is no cavil to that. Reliance may be placed on Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846) and Inayat Bibi v. ASC and Chief Settlement Commissioner (PLD 1978 Lahore 252) and the judgment of this Court in Writ Petition No, 722-R of 1972 titled Mst. Ghulam Fatima etc. v.
Government of Pakistan etc. Delivered by Mr. Justice Gul Muhammad Khan, as he then was.
6. Before proceeding to discuss the merits of the petition qua the petitioners and respondents Nos.
1 and 2, I would like to take up the case, if any, of respondent No,
3. It has been contended on behalf of respondent No, 3 that they had applied for the allotment of Killa Nos. 3, 4 and 5 situated in Square No, 62 of Chak No, 123/JB, Faisalabad for the extension of Eid Gah, to the Board of Revenue, Punjab and that their petition was pending since long. The learned counsel for respondent No, 1 has opposed the stance of respondent No, 3 on the ground that the Anjuman was composed of millionaires. They can purchase some land and then donate the same in trust for the noble cause that they want to espouse at the cost of others. The learned counsel for respondent No, 1 has placed on file a copy of memorandum addressed by the Assistant Commissioner/D.S.C. (Land)
City Sub-Division Faisalabad, on the subject, to Deputy Secretary (Colonies), Board of Revenue Lahore dated 7-12-1991 wherein Board of Revenue was informed that the applicants were occupying the said land unauthorizedly and were trying to continue with its possession by offering to purchase through private treaty. The land in question being not available was not allowed to be occupied by the District Authorities and as such, proceedings for their eviction were initiated and encroachments so raised were ordered to be removed. It is also mentioned therein that the fact of pendency of the present writ petition was also brought to the notice of the Board of Revenue and finally request for dismissal of he application was made. Respondent No, 1 was not obliged under any provision of law to agree to the sale of its property by private treaty. The sale in itself' presupposes that the owner of the property was willing to sell out the same against a consideration. In the present case the colony authorities who, till then, considered themselves to be the owners of the land comprising Killa Nos.3/1, 3/2, 4 and 5 of Square No, 62 were not agreeable to sell out the same and none can be forced to sell out its property. No agreement of sale has been alleged by respondent No, 3 in the present case either with the writ petitioners or with respondent No,
1. Respondent No, 3 had absolutely no locus to agitate their alleged right to purchase/transfer of the land in their favour.
6-A. The notified officer while rejecting claim of the petitioners made certain observations regarding RL-II in paragraph 20 of the impugned order. Statement of Patwari Halqa Chak No, 123/JB, Tehsil and District Faisalabad was recorded in Court on 28-3-1988, referred supra. The said statement remained unchallenged throughout the hearing of the writ petition by the learned counsel appearing in the said writ petition on behalf of Member, Board of Revenue, Punjab, Lahore.
The Additional Revenue Commissioner, Faridkot House, Lahore and A.C./D.S.C., City Faisalabad had not challenged the said statement. The notified officer, respondent No, 1 was also a party. Having failed to challenge the statement of its own official in the High Court, respondent No, 1 is estopped presently to challenge the entries in RL-II which were admitted to be correct by the keeper of the record. The objection having not been taken before the High Court at the earliest time cannot be taken suo moto by respondent No, 1, after 4 years, while passing the impugned order. It rather amounted to showing disrespect to this Court but I refrain from making any further averment and hold that the observations as contained in the impugned order were without lawful authority and jurisdiction.
7. Appeals and Revisions were filed by the petitioners even after 24-2-1956 and the learned counsel for respondents Nos. 1 and 2 has referred me to para. No, 14 of the impugned order wherein different land was mentioned to have been claimed before Khan Fiaz Muhammad Khan, Additional Settlement Commissioner and the observation made by the Additional Settlement Commissioner was particularly referred.
8. The said argument of the learned counsel for the respondent weighed strongly with respondent No, 1, but he failed to notice part of the observation underlined by me and reproduced hereunder:- "I fmd that a mess has been created in this case. The petitioners being allottee has got a preferential claim over the area In dispute but at this stage it cannot be said that whether the area is available for allotment or not, Lag the DRC (L) to hurry up in allotting the area in favour of petitioners preferably temporarily allotted to them."
' The observation made by the Additional Settlement Commissioner sufficiently shows that the claim before him was for a preferential claim over the area under appeal i,e, referred in para No, 14.
The said land was claimed by Khushi Muhammad and others, in preference to others being their temporary allotment. It is nowhere mentioned therein that the present petitioners had not been allotted land earlier. The inference would be that they were simply agitating for the allotment of the land temporarily allotted to them situated in Square Nos. 35, 45 and 36 instead of some other land and it could not be inferred therefrom that the land. Presently under dispute was not allotted to the petitioners before 13-6-1957. It would rather show that the petitioners, at that time, were not interested in the land in dispute and they wanted to have the land which had been in their temporary allotment. How come that the filing of appeal and agitations for getting the land under the possession of the petitioners as temporary allottees be taken as negation of the allotment of the land in dispute in their name earlier. This shows ignorance on the part of the notified officer of the agony, hardships and litigation that the displaced persons had to undergo in getting their claims settled.
9. The mess in fact started with the issuance of notification of exchange of land dated 3-1-1958 when the RL-II of the estate were got deposited with the Tehsil Offices and the authoiities stopped making further allotments in view of the exchange. Respondent No, 1, who was himself the custodian of the Revenue Record, cannot be allowed to deprive the petitioners of their rights on the department's own overt act in not incorporating the land in dispute in the revenue records. The respondents have produced copies of Jamabandi and Khasra Girdawari. The copy of Jamabandi produced by the respondents relates to the year 1954-55 and the subsequent Jamabandi was to be prepared in the year 1958-59 and, of course, much after the issuance of Notification dated 3-1- 1958 and, of course, in view of the said notification the revenue staff did not incorporate the names of the present petitioners in Jamabandis prepared for the year 1958-59 simply on the ground that the Provincial Government of whom they were employees had allegedly become the owner of the land and all rights vesting in the custodian were exchanged and as such the rehabilitation authorities were to take their hands off from the said land. If the names of the petitioners were not incorporated and employees of the Revenue Department in the subsequent Jamabandis the same was not the fault of the petitioners. The department has,. At the same time, not produced copies of Jamabandi relating to the land mentioned in paragraph 14 of the impugned order and as such, I am of the considered view that respondent No,1 fell in error amounting to illegality in omitting to notice the circumstances after and the implications of the issuance of notification dated 3-1-1958.
10. The notified officer ignored the relevant local instructions, AnnexedCC/1 at pages 112 to 136 of the writ petition. The Government of the Punjab through Financial Commissioner had undertaken the job of rehabilitation of refugees and subsequently re-settlement of claimants in a missionery manner. The Revenue Department, in relation to agricultural land, worked day in and day out with dedication. Printed instructions were issued in this behalf by the former Punjab Government and were circulated with letters No, 4217-R(L) dated 11-12-1948 and No, 3525-R(L) dated 12-4-1950 as modified by Letter No, 522-R(L) dated 25-6-1951. These instructions were modified from time to time and fresh instructions had provided guidelines for the Rehabilitation Authorities.
11. In Lyallpur District Mr. Ahmad Khan Tarin ADC/Incharge of Rehabilitation prepared "local supplementary instructions" for the guidance of local Rehabilitation Officers implementing instructions circulated vide letter dated 11-12-1948 by the Government of the Punjab. In Lyallpur supplementary instructions were issued under the authority of the District Collector, Lyallpur Khan Ghulam Sarwar Khan, the then Deputy Commissioner and the approval for such allotment was never revoked by the Provincial Government. The disputed land was rural agricultural land. The same was the reason for allotment of Crown land to the claimants in Chak No, 123/JB including the petitioners and other claimants in the Chaks mentioned in the schedule. Killa Nos.3/1, 3/2, 4 and 5 of Sq. No, 62 of the estate were taken as ownership of the Provincial Government and not a part of the compensation pool. The contention of the learned counsel for the petitioner that the said land already stood allotted to the petitioners and that similarly other claimants in the estate were also allotted some of the Crown land which was never withdrawn; that the notified officer admitted in para. 21 of his order that:-- ".. No doubt some of the claimants have been allotted land in this village but presently there is no data before me if that land so allotted never reverted to the compensation pool, however, if something is not, permitted by law has been done it shall not be repeated."
' The contentions of the learned counsel for the petitioners are supported by the contents of the impugned order which, in my view, was not only illegal but was also self-contradictory and self- destructive in many respects. The petitioners have a right to be treated equally before the law and their right to be so treated without any discrimination is protected under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 and, therefore, Killas Nos.3/1, 3/2, 4 and 5 of Square No,62 of the estate could not be denied to the petitioners.
12. The notified officer/respondent No,1 while dismissing the proceedings observed:-- "However, there is no denial of the fact that the present petitioners are not only sitting allottees of this village since partition but have also unsatisfied pending units with them. They are petty small owners and are agitating since 1948, for settlement/allotment of their verified claims. As the proceedings are pending qua them, hence they should find out any other alternative evacuee land for adjustment of their unsatisfied pending units and they would have also superior right being sitting allottees. In alternate they can also move the Provincial Government for sale of the land in their possession by way of private treaty. With these observations, the present proceedings are dismissed. The parties are left to bear their own costs."
13. Before proceeding further it is deemed expedient to generate the development of rehabilitation laws after partition. The displaced persons were, in the first instance, allotted agricultural land at the rate of 1 Killa per head in the Punjab under the instructions issued by the Provincial Government.
In the year 1948 West Punjab Refugees (Registration of Land Claims) Ordinance II of 1948 was proclaimed with the object that the refugees be given an opportunity to register their claims in respect of loss or damage of land suffered by them. This Ordinance was subsequently passed by Provincial Legislature and promulgated as Act II of 1948. In the same year the Central Government promulgated Pakistan Economic (Rehabilitation) Ordinance, 1948. This Ordinance was amended from time to time. On 14-1-1949 notification was issued in exercise of powers conferred by section 17 of the above-referred Ordinance by the Central Government delegating the Government of West Punjab the powers to appoint under section 3 of the said Ordinance by notification in the official Gazette of the. Province, Deputy and Assistant Rehabilitation Commissioner for such areas within West Punjab for purposes as specified in such notification. Vide Ordinance No, XVI of 1949 Pakistan Economic (Rehabilitation) Ordinance, 1948 was further amended and in the preamble the words "social and" were made to be inserted in the long title and preamble of the said Ordinance after the words "maintenance of the". This was a change whereby not only the Economic Rehabilitation but also social rehabilitation was taken note of by the Legislature. The Central Government issued Pakistan Rehabilitation Rules, 1951 which were published in its Gazette on 3-2-1951 exercising its powers conferred by section 19 of the Pakistan (Rehabilitation) Ordinance, 1948. The original Ordinance XIX of 1948 was further amended by Act VII of 1951. In the Punjab the rehabilitation work was carried out by the Rehabilitation Authorities and the allotment of agricultural land was made to the displaced persons under the scheme regulated through instructions, notifications and memoranda in lieu of the claims registered and verified or deemed to have been registered or verified under the West Punjab Refugees (Registration of Land Claims) Ordinance, 1949 which in fact had succeeded the Ordinance II of 1948. The Federal Government enacted the Pakistan Rehabilitation Act, 1956 (Act No, XLII)" to provide for the restoration of the social and economic rights of Pakistan and the orderly settlement of persons who have taken refuge therein". Section 23 of said Act was the saving clause and as such the allotments of agricultural land, as in the case of the petitioners, confirmed before the commencement dated i,e, 12-11-1956 were protected. This Ordinance was repealed by the Repealing ' and Amending Ordinance, 1965 (Act X of 1965). In the meantime, however, Displaced Persons (Land Settlement) Act No, XLVII of 1958 was enacted and promulgated. This Act had not repealed the Act XLII of 1956 and had rather protected all allotments as defined in section 2(1) of the said Act. The preamble of the Act XLVII of 1958 reads:- "Whereas it is expedient to provide for the Permanent Settlement of displaced persons on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India and for matters incidental thereto or connected therewith."
' The Act was subsequently repealed by Act XIV of 1975.
14. As held supra the allotment of land in the names of the petitioners was confirmed on 24-2-1956 as stated by Patwari of the circle before the High Court on 28-3-1988. The allotment of Killa Nos3/1, 3/2, 4 and 5 of Square No,62 was also protected. The respondents have failed to produce any order of withdrawal/cancellation of the said allotment and the same is held to be subsisting in the name of the petitioners. It is a case of hardship where the displaced persons are running from pee to post for the last 42 years. This hardship has also not been heeded to by the notified officer while passing the is impugned order.
15. The respondent No,2 was allotted land including the land in dispute in the present writ petition on the premises that the same was State-land and was available for such allotment to respondent No,2. I am afraid respondent No,2 has failed to carry out the purposes of allotment during the last more than 30 years. Land in dispute is lying vacant at site. On the date of dispossession the C petitioners were the allottees of the land and were in lawful possession. The proceedings of their dispossession is accordingly declared to be without lawful authority. As held supra, allotment of the land stood confirmed in the name of the petitioners from 14-2-1956. The allotment of land to the extent of disputed property in the name of respondent No,2, being subsequent, is declared to be without lawful authority also on the ground that the same was not available for such allotment.
16. Resultantly, the impugned order dated 17-11-1991 passed by respondent No,1/Authorised Officer is declared to be illegal, without lawful authority and without jurisdiction. The writ petition is accepted.
Respondent No,1 is directed to incorporate the names of the petitioners in column of owners of Jamabandi of Register Haqdarn-e-Zamin "Zer-e-Kar" corresponding to the property in dispute situated in Chak No, 123/JB, Tehsil Faisalabad as detailed in para. 1 of the impugned order.
Respondent No,1 is further directed to restore the possession of the disputed land from which the petitioners were illegally dispossessed.
17. As the writ petition involved intricate questions of law, there shall be no order as to costs.