MUNAWAR AHMAD MIRZA, J,---By this consolidated judgment, we propose to dispose of eighteen Appeals bearing Nos.195 of 1995 to 206 of 1995, and 1049 of 1995 to 1054 of 1995, as questions of law involved in these matters are mostly identical, though each case has its own chequered history.
2. Government of the Punjab has filed five Appeals bearing No.201, 202, 203, 204 and 206 of 1995.
The remaining appeals have been filed by the persons who on the basis of their continuous and uninterrupted occupation are claiming right to receive the land in question under different Settlement schemes issued by the Punjab Government.
3. Facts necessary for understanding the controversy in each appeal are given hereunder:--
(a) Civil Appeals Nos. 195 of 1995 and 202 of 1995: The appeal filed by the Province of Punjab pertains to land measuring 623 Kanals, 1-2 Marlas and a part of this land is being claimed in Appeal No. 195 of 1995 filed by private persons. The land in question was allegedly got deceitfully allotted by late Siraj Din, the predecessor-in-interest of the respondents.
Muhammad Ramzan and others, appellants in Civil Appeal No. 195 of 1995 claim that they are in possession of the land detailed in paragraph II (1) of the Appeal, situated in village Harbansupra Tehsil and District Lahore, since the days of their forefathers. They filed a suit for permanent injunction restraining the Settlement Authorities from disposing of said land through open auction, or to deal with it in any other manner and refrain from interfering with their lawful possession. They also submitted an application for grant of temporary injunction in the same terms. This application was rejected by the learned Civil Judge vide order dated 25-5-1985 and tae same was maintained by the learned Additional District Judge on appeal, vide order dated 14-3-1988. The Revision Petition of these appellants was accepted vide judgment dated 12-12-1988 and the injunction as prayed for was granted.
Siraj Din, predecessor-in-interest of the present respondents in both the appeals submitted a claim which was verified for 7750 produce index units (urban) on 6-5-1968 for District Sukkur, Sind.
This claim was transferred to Lahore (Punjab) on 17-7-1969 and the Additional Settlement Commissioner refused to make any allotment against said claim but the Settlement Commissioner on appeal allotted land measuring 623 Kanals, 12 Marlas at RL-II No.4 of village Shivpura Kalan, Tehsil Cantt., District Lahore on 6-4-1973.
In the Memo. Of Appeal No. 195 of 1995 following assertions have been categorically made:-- "(vii) The following allotments were undeniably obtained against the alleged entitlement of Siraj Din son of Kaley Khan:--
(a) An area measuring 919 Kanals situated in village Jandiala Sheikhan Tehsil and District Sheikhuprura was allotted at Khata No.22 of RL-11 in favour of Siraj Din. This confirmed land was sold in favour of Nasrullah Khan etc. Vide Mutation No.83, dated 13-6-1970.
(b) An area measuring 341 Kanals 18 Marlas was confirmed in favour of Siraj Din in Mauza Shahdara Tehsil and District Sheikhupuia. The land was sold in favour of Muhammad Ismail etc. Through Mutation No.5460 dated 26-9-1973.
(c) An area measuring 9 Kanals, as held by Member Board of Revenue, was also allotted in favour of Siraj Din in Gujrat.
It thus is significant that the allotment of land was already obtained much in excess of the alleged entitlement of Siraj Din which was sold for consideration as back as on 13-6-1970 and 26-9-1973.
There was, as such, no entitlement pending satisfaction at the credit of Siraj Din."
Surprisingly there is an evasive, reply as above averments have not been specifically controverted in the rejoinder.
Siraj Din (predecessor-in-interest of respondents) on 19th May, 1992 submitted an application to Ch. Talib Hussin, Member, Board of Revenue, Settlement Wing/Chief Settlement Commissioner asserting that on submission of application for implementing allotment; it transpired that on account of above referred enquiry relating to certain bogus transfers enquiry was pending and some of the parties had obtained stay orders from the Court. It was further revealed that said land had already been allotted to Sharaf Din and Daulat Khan who sold the same to one Riaz Ahmed and Bilqees Barkat. Whereas on a Mukhbari application the allotment made in favour of Sharaf Din and Daulat Khan was cancelled on 4-6-1978 by the then Chief Settlement Commissioner. The Writ Petition (Writ Petition No.789/R of 1978) filed against the same was remanded for fresh decision on 10-11-1985.
It is pertinent to mention here that in remand proceedings, Additional Commissioner Revenue/Settlement Commissioner (Lands), as 'Notified Officer' passed an order rejecting the request of Siraj Din (respondents' predecessor) as well as Pir Muhammad son of Hidayat; Wali Muhammad and Sher Muhammad sons of Allah Diya, claimants in other connected appeals, to make alternate allotments. The order, dated 3-5-1986, inter alia, reads as under: -- "Agricultural land situated in the revenue estate of Mauza Shivopura Kalan, District Lahore was ordered to be allotted to the abovesaid petitioners vide orders dated 23-1-1973 and 6-4-1973 but the same were not implemented due to the litigation pending in the Civil Court. The decree holder Ch. Riaz Ahmad succeeded to get the land mutated in his favour in the Revenue Record.
A Mukhbari application under section 10/11 of Settlement Act was filed against the allotment to Sharaf Din etc. By Mr. Qazi Mushtaq Ahmad etc. The said application was decided against the allottees and their allotment was ordered to be cancelled by Mr. M.A. Razzaq, Settlement Commissioner on 8-6-1978. Then an application was submitted by the petitioners in this Court that their allotment orders may be implemented. But the Honourable High Court issued status quo order on 9-7-1978 in Writ Petition No.789-R of 1978 filed by Bilqees Barkat etc. Ultimately this Writ Petition has succeeded and order of the Settlement Commissioner is set aside by the Honourable High Court vide orders dated 10-11-1985.
In the above circumstances when the question of implementation of orders dated 23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for alternative allotment. After repeal of Evacuee Laws this Court is not the proper forum and their request is not m9intainable.
With these observations this petitions is rejected."
The respondent further asserted that said land had been disposed of through plots, and on certain portions the purchasers have already raised construction. These respondents, therefore, prayed that alternate land be allotted to them in village Dhana Singhwala or Harbanspura, Lahore Cantt.
Because large area of Government land is still available there. Chief Settlement Commissioner Punjab recorded statement of Siraj Din and vide order dated 8-6-1992 summoned the record on 25-6-1992 for further proceedings. A Writ Petition (No. 132/R of 1992) in the Lahore High Court Lahore, against aforesaid interim order was filed seeking direction for allotment of alternate land. Which was, however, disposed of on 28-6-1992 with the following observation:-- "On Court's call Rana Muhammad Arshad Khan learned Additional Advocate-General has appeared on behalf of the learned Member Board of Revenue, the only respondent in the case. Mr. Elahi Bakhsh Vijdani learned counsel for the petitioner is also present. They have been heard. The admitted position is that the matter is still pending adjudication before the Board of Revenue. The concerned Officer had been summoned with record by the learned Member Board of Revenue.
Grievance of the learned counsel is that it is duty of the Settlement Department to provide land against the verified claim of the petitioner. Be that as it may, learned Member Board of Revenue, Punjab, shall decide the matter pending before him as early as possible on merits according to law. With these observations this petition stands disposed of."
The Chief Settlement Commissioner then vide order dated 29-7-1992 observed that it was not feasible to annul all the sales and demolish the constructions already raised and, therefore, urban land measuring 614 Kanals, 12 Marlas in village Harbanspura, Tehsil Cantt. District Lahore, was allotted to him against 6140 produce index units as alternate measure. The appellants in Civil Appeal No. 195 of 1995 on gaining knowledge of said allotment Order, filed a Constitution Petition (Writ Petition No. 142-R of 1993) in Lahore High Court, Government of Punjab also felt aggrieved and challenged said order of allotment through separate Writ Petition No. 125-R of 1994 which came up for consideration alongwith other petitions relating to adjoining land having similarity of circumstances and were decided through common judgment dated 27-6-1994, which has now been assailed in these appeals.
(b) Civil Appeals Nos. 196 203 and 205 of 1995: The controversy in these three appeals relates to land measuring 585 Kanals and 15 Marlas situated in village Harbansupra, Lahore Cantt., more particularly described in the order dated 21-9- 1992, impugned in these matters.
Respondent No. l Pir Muhammad son of Hidyat in lieu of the land left over by him in India, got his claim verified for 7076 produce index units from Central Record Office, Lahore. Subsequently on reverification/revalidation claim was enhanced to 7750 produce index units for Sukkur District (Sind). Later Settlement Commissioner, Lahore, by means of order dated 23-1-1973 passed in Appeal No.97 of 1973 transferred said claim for its adjustment against urban land in Lahore District.
Admittedly, land equivalent to 1800 produce index units was allotted to respondent in Mauza Shahdara, District Sheikhupra, which was duly transferred in his favour. Remaining produce index units were adjusted by allotment of land measuring 585 Kanals and 15 Marlas (RL-II-5) in village Shivpura, Lahore Cantonment Record reveals that respondent No. l (Pir Muhammad) had filed an application before competent authority for sanctioning mutation of abovereferred land in his favour and granting him proprietary right over it. During this process it came to his knowledge that said land was already allotted to Sharaf Din and Daulat Khan who sold it to Riaz Ahmad who in turn transferred the same to Bilqees Barkat. A Mukhbari application was moved against said Sharaf Din and Daulat Khan, whereupon proper enquiry was held and their -original claims stood rejected thus allotment of land made in their favour was cancelled by Chief Settlement Commissioner on 4- 6-1978. Mst. Bilqees Barkat was directly affected as she was statedly a bona fide purchaser of the said land, so she challenged above order of cancellation of allotment before High Court through Writ Petition No.789/R of 1978 which was allowed on 10-11-1985 and case was remanded for fresh decision. During remand .Proceedings, respondent Pir Muhammad and others (respondents in the connected appeals) also requested for grant of alternate land because the land falling within Shivpura Kalan vested in Park View Society which was disposed of through plots to various persons and purchasers had already raised construction over a large portion of said land. Request for alternate land made by respondents (i) Pir Muhammad, (ii) Late Siraj Din (respondents in Appeals Nos. 195 of 1995 and, 202 of 1995) and (i.e) Wali Muhammad and Sher Muhammad sons of Allah Diya (respondents in appeals Nos. 199 and 201 of 1995) was rejected vide order dated 3-5-1986.
Operative portion is reproduced below:- "In the above circumstances when the question of implementation of orders dated 23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for alternative allotment. After repeal of Evacuee Laws this Court is not the proper forum and their request is not maintainable.
With these observations this petition is rejected."
In such background of circumstances respondent No. l having failed to get transfer of land allotted to him on 23-1-1973 submitted an application before Chief Settlement Commissioner, Lahore, on 19th May, 1992, for granting alternate land in Mauza "Dhanasinghwala" or Mauza Harbansupura", Lahore Cantt. It was asserted in the application that there was double allotment of land measuring 585 Kanls and 15 Marlas granted to respondent No. l at Shivpura Kalan, Lahore Camt., in pursuance of Order, dated 23rd January, 1973. Besides, Mst. Bilqees Barkat who obtained said area of land from claimants Daud and others had instituted Writ Petition No. 789-R of 1978 whereby through interim order, dated 4th March 1980, Lahore High Court restrained the Settlement Department from implementing the allotment order existing in favour of respondent. Eventually this petition was decided vide judgment, dated 10th November, 1985 and matter remanded to settlement authorities for decision afresh. It was asserted that respondent Pir Muhammad had been effectively persuing his claim for implementation of allotment order dated 23-1-1973, but on account of influence exercise by the appellants and Mst. Bilqees Barkat he could not succeed in getting mutation or securing possession, therefore, he pressed for allotment of an alternate land. It is important to mention, that respondent did not disclose in application dated 19-5-1992 that his request for alternate allotment was also rejected on 3-5-1986, relevant portion whereof has been reproduced above.
From the material brought on record it appears that interim order for summoning relevant file was passed by the Notified Officer,' when respondent filed Writ Petition No. 161-R of 1992 and directions were issued to dispose of the matter regarding implementation of allotment at the earliest.
Thereafter, without, any intimation to private appellants or public notice, Chief Settlement Commissioner purporting to exercise powers of 'Notified Officer' decided the matter on 21-9-1992, whereby alternate land measuring 585 Kanals and 15 Marlas in village Harbansupura, Lahore Cantt. Was allotted to respondent. The occupants, who are appellants in Civil Appeals Nos.203 and 205 of 1995, throughout this period have been continuously pursuing their claim and superior right of obtaining land in Harbanspura, Lahore Camt., on the grounds of its continuous uninterrupted occupation from the the of their fore-fathers. Additional Deputy Commissioner-cum-Collector, Lahore Cantt., while implementing order dated 21-9-1992 requested the Member, Board of Revenue Punjab that respondents Pir Muhammad, late Siraj Din son of Kaley Khan and Wali Muhammad and Sher Muhammad sons of Allah Diya (respondents in other connected matters) have fraudulently procured the land by concealment of facts and prima facie was not evacuee property. The relevant observations are mentioned below for ready reference:-- "It is further pointed out that all these allotments appear to have been obtained by the fraudulent persons in the absence of original claimants. How the double allotment has also been obtained in village Harbanspura without the knowledge of the original claimant i.e. Allah Diya and to other claimants recorded in para. 1.
The above facts indicate that double allotments have been obtained by the fraudulent persons without the knowledge of original claimants by concealing the actual facts of allotment already made, since they have not appeared in person before the learned Chief Settlement Commissioner nor any effort seems to have been made to procure their personal attendance. The fraudulent persons are liable to be prosecuted legally. The double allotments obtained by them in village Harbanspura are, as such, liable to, be cancelled. It is also pointed out that the Hon'ble Supreme Court has already held in their judgment dated 9-2-1991 declaring that the land falling in village Harbanspura would go to the Provincial Government. (Annexure 'C').
In view of the above decision of the Hon'ble Supreme Court the land falling in village Harbanspura cannot be treated as evacuee property and available for allotment. An enquiry was also entrusted by the Federal Government, Ministry of Religious Affairs, in the year 1980-81 to the then Assistant Commissioner (Saddar) Lahore in respect of the land of village Harbanspura who submitted a comprehensive report with his finding that these lands were not evacuee and as such not available for allotment.
Member, Board of Revenue-cum-Notified Officer on 9-1-1993 suspended the aforementioned order pertaining to implementation of allotment in this case and matters concerning Pir Muhammad, Wali Muhammad and Sher Muhammad (respondents in connected appeals). The occupants Haji Imam Din and others, however, challenged the order dated 21-9-1992 of 'Notified Officer' through Writ Petition No. 196-R of 1994; the same was also challenged before High Court by appellants Muhammad Ilyas and others through Writ Petition No. 156-R of 1994, Whereas Government of Punjab also feeling aggrieved from said decision preferred Writ Petition No. 126-R of 1994. All the abovereferred petitions alongwith other connected matters were rejected by Lahore High Court by common judgment dated 27-6-1994. It is important to mention here that appellants Muhammad Ilyas and others (C.A. No. 205 of 1995) while narrating facts expressly made following assertions:-- "That the respondent No. l had only according to his own versions an entitlement of 5858 units after 1/4th deduction of 7750 P.I. Units while only in Shahdara urban land vide allotment dated 2-2-1972 and 8-3-1971 at Khatas Nos.463 and 476 he obtained allotment of 5583 units already and further got allotment in Karachi, D.G. Khan and Rahimyar Khan etc., and had no units to obtain present allotment in Harbanspura as he had already exhausted his claim. The order of transfer of units from Sukkur to Lahore is fraudulent bogus and the order dated 17-9-1969 in this respect is a fraud committed on the record. There is no such order dated 23-1-1973, as the claim of the respondent No. l was declared at that the as bogus by then Claim and Settlement Commissioner (Lands) with power of Chief Settlement Commissioner on 6-7-1972 and District Authorities were directed not to make any allotment against the claim including the claim of the respondent No. l and further directed to withhold the mutation regarding the sale etc., and hence as a matter of fact the order of allotment dated 23-1-.1973 could not be passed as shown by the respondent No. l."
Respondents in rejoinder have given evasive reply without specifically refuting these averments.
Anyhow through these three Appeals Nos. 196, 203 and 205 of 1995, orders dated 27-6-1994 passed by the High Court and order dated 21-9-1992 of 'Notified Officer' have been challenged.
(c) Civil Appeals Nos. 199 and 201 of 1995 .
The dispute in these to appeals relates to land measuring 443 Kanals and 5 Marlas situated in Harbanspura, Lahore.
Allah Diya father of the respondents Wali Muhammad and Sher Muhammad had put up claim for the land abandoned by him in India, which was finally verified to the extent of 5897 produce index units (urban). This claim was initially pending for allotment of land in Sukkur (Sind). Later by virtue of order dated 23-1-1973 passed by the Settlement Commissioner (Land), Lahore, in Appeal No. 100 of 1993, said claim was transferred for adjustment at Lahore and land measuring 443 Kanals, 1 Marla in village Shivpura Kalan, Tehsil Cantt. Lahore was allotted to him. Multifarious nature of litigation started over land allotted to respondents. It transpired that said land had been already allotted to Riaz Ahmed, Abdul Hamid, Nadir Khan and several other persons. The transferees also filed writ petition before Lahore High Court, whereby Settlement Department was restrained from disposing, alienating said land or parting with its possession in any manner. It will be seen that Writ Petition No. 789-R of 1978 was decided on 10-11-1985, remanding the case to Settlement Authorities for fresh decision. It is admitted position that during this period several developments had taken place, whereby land had been acquired by the Defence Housing Society, Lahore Cantt. And allotted to numerous persons. The respondent Allah Diya, father of private respondents, therefore, was unable to obtain possession of land allotted to them. During the remand proceedings keeping in view aforementioned circumstances the respondents Wali Muhammad and Sher Muhammad requested the Notified Officer to grant the alternative land but this prayer was rejected vide order dated 3-11-1986 in the following terms:-- "---..In the above circumstances when the question of implementation of orders dated 23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for alternative allotment.
After repeal of Evacuee Laws this Court is not the proper forum and their request is not maintainable. With these observations this petition is rejected."
The order in detail has been reproduced hereinabove. The respondents were not successful in obtaining possession of land allotted to them vide order dated 23-1-1973. Therefore, they eventually on 18-5-1992 submitted an application before Member, Board of Revenue/Chief Settlement Commissioner, Punjab, giving detailed background and prayed for alternative land to the extent of their verified claim in village "Dhana Singhwala" or 'Mauza Harbanspura", Lahore. Chief Settlement Commissioner summoned the record and obtained the report of Patwari after recording statement of the respondents. As in other cases, interim order was challenged before the High Court, whereupon direction was made for expeditious disposal of the application filed by respondents.
The 'Notified Officer' without any intimation to occupants or public notice granted and confirmed allotment of land measuring -443 Kanals, 5 Marlas comprising of 67 Qitas in village Habranspura, Tehsil Cantt. District Lahore, in lieu of verified claim of respondents vide order dated 29-8-1992 with directions that the mutation of Tebdeeli-e-Haqooq Malkiat be effected in favour of present respondents. The Additional Deputy Commissioner/Collector (Cantonment) addressed a letter to Member, Board of Revenue, explaining impossibilities of carrying out mutation as directed by Notified Officer, whereupon further action was suspended. , The Appellants in Civil Appeal No. 195 of 1995 claim to be occupants of said land from the the of their fore-fathers, felt aggrieved of the abovementioned order challenged the same before the High Court through Writ Petition No.69-R of 1994. The Government of Punjab also separately instituted Writ Petition No. 185-R of 1994 challenging above decision of Notified Officer. These Writ Petitions alongwith similar matters were disposed of by the Lahore High Court through common judgment dated 27-6-1994. The appellants Ch. Hamid etc. And Provincial Government of Punjab being dissatisfied from order of Notified. Officer, dated 29th August, 1992 relating to allotment of land to respondents and of the judgment of High Court dated 27-6-1994, have filed these to appeals.
(d) Civil Appeals Nos. 197 and 206 of 1995: The dispute culminating in filing of Civil Appeals Nos. 197 and 206 of 1995, relates to 230 Kanals of land in village Harbanspura, Tehsil Cantt. District Lahore, which has been granted to respondent No. I (Major Muhammad Nawaz Khan) against verified claim for 2547 produce index units vide order dated 24-12-1992 passed by Chief Settlement Commissioner purporting to exercise powers of the 'Notified Officer'. The appellants claim that area of land granted to respondent No. l in Harbanspura Lahore Cantt. Has been under their continuous uninterrupted occupation for last more than 100 years. They have been asserting their right over said land with a view to protect their possession.
Even Civil Suit was filed by the appellants towards May, 1985 seeking declaration and permanent injunction. The application for interim stay was initially rejected by the Civil Judge and Additional District Judge, Lahore. However, Civil Revision No.726-D of 1988 filed by the appellant was accepted by Lahore High Court vide order, dated 12th November, 1988 granting interim stay in their favour.
Relevant portion of said order is reproduced below:-- "After hearing, learned counsel for both the parties, 1 am convinced that the petitioners have raised substantial questions to be tried by the learned trial Court in the suit and they have established existence of prima facie case in their favour. The order of learned Custodian dated 24-10-1962 and the order dated 13-9-1966 passed by respondent No.3 is sufficient to hold that the petitioners at least have a arguable case. They are admittedly in possession of the land, therefore balance of convenience is also in their favour. If their possession is disturbed during the pendency of the suit it would certainly be the petitioners who could suffer irreparable loss in case temporary injunction is not granted.' It was further observed that 'the revision petition' is therefore, accepted, the impugned orders are hereby set aside. The respondents are restrained from disposing of the suit land through open auction to deal with the same in any manner and from interfering and disturbing the possession of the petitioners till the disposal of the suit by the trial Court."
However, in the meantime, respondent No. l on 10-3-1971 obtained allotment of land measuring 254 Kanals and 8 Marlas at R.L.-II, Khata, No.582 in village Amar Sidhu, Tehsil Cantt. District Lahore by the order of Additional Settlement Commissioner. But this order could not be implemented because out of said land an area to the extent of 230 Kanals had already been allotted to Mst. Akhtar-un- Nisa, Nazir Ahmed and Rahim Bakhsh and revenue entries were also duly recorded in their favour during year 1973. However, land measuring 24 Kanals 10 Marlas in Mauza Amar Sidhu, Lahore was duly recorded in favour of respondent No. l who, however, kept pursuing his claim before the Settlement Authorities and applied for allotment of alternative land but without any success. The respondent filed a Writ Petition No.250-R of 1992 before Lahore High Court, whereby the directions were made to expeditiously examine his grievance. Eventually Chief Settlement Commissioner purporting to exercise powers as 'Notified Officer' transferred 230 Kanals of land at village Harbanspura in favour of the respondent No. 1 vide order dated 24-12-1992. The appellants on getting knowledge of the said order which was passed behind their back and without any intimation to them, challenged it through Writ Petition No. 148-R of 1993. The Government of Punjab was also aggrieved of the aforementioned order of allotment of 230 Kanals to respondent in village Harbanspura, Lahore Cantt. Therefore, Constitution Petition No. 14-R of 1994 was instituted before Lahore High Court attacking validity of said order. Both these petitions alongwith other connected matters were rejected by common judgment, dated 27th June, 1994. Through present appeals aforementioned judgment, dated 27th June, 1994 of Lahore High Court and order, dated 18th October, 1992 of Chief Settlement Commissioner Punjab/Notified Officer has been assailed.
(c) Civil Appeal No.200 of 1995.
Appellants Muhammad Ramzan and others (Civil Appeal No.200 of 1995) claimed continuous and uninterrupted cultivatory possession of land located within village Harbanspura, Lahore Cantt, allotted to respondent No. l by Chief Settlement Commissioner vide order, dated 18th October, 1992.
According to the appellants they throughout pursued their lawful right and ligitimate interest over above area of land. It was asserted that appellant since the the of their fore-fathers had cultivatory possession over said land; copies of Jambandi and Khasra Girdavri have been produced to supplement their stand. A suit seeking declaration and injunction was filed against Settlement Authorities wherein eventually Lahore High Court on 12th November, 1988 issued temporary injunction directing the Settlement Department to restrain from disposing said land through open auction or in other manner or interfering with the possession of occupants.
It is the case of appellants that respondent No.1 Mirza Shamim Ahmed Baig on the basis of entitlement certificate showing verified claim for 782 produce index units manipulated transfer of land in village Harbanspura.
Record indicates that Mirza Shamim Ahmed Baig was originally allotted agricultural land in village Keerkot, District Lahore. This area was also statedly allotted to one Nawab Altaf Ali Khan. However, dispute was resolved and said land was eventually confirmed in the name of Qamar Aftab Ali Khan on 8-8-1972. The order granting agricultural land to the petitioner in village Keerkot was, however, recalled. Respondent Mirza Shamim Ahmed Baig continued pursuing the matter before different forum and eventually filed writ Petition No.2523 of 1991 in-pleading Defence Cooperative Housing Society, Lahore Cantt, but the same was not pressed on the basis of assurance given by the Settlement Department to allot alternate land. It appears that some delay was caused in granting land to respondent as undertaken in the above matter, therefore, again writ petition was instituted by said Mirza Shamim Ahmed Baig wherein directions were issued to the concerned department for complying with its commitment. Ultimately Chief Settlement Commissioner (Ch. Talib Hussain), Punjab, purporting to exercise powers as Notified Officer vide order dated 18-10-1992 allotted an area of 78 Kanals and 2 Marlas in village Harbanspura, Cantt. Lahore to respondent Mirza Shamim Ahmed Baig by way of alternate land towards satisfaction of his verified claim. Appellants challenged above decision of the Chief Settlement Commissioner before Lahore High Court through Writ Petition No. 147-R of 1993, which came up alongwith several other petitions of similar nature concerning land in Harbanspura. All these matters were decided by Lahore High Court through common judgment dated 27-6-1994. The Chief Settlement Commissioner has based allotment of alternative land on the order of the Lahore High Court, dated 14th July, 1992 whereby factually Petition No.2523 of 1991 was disposed of on the concession made by respondent department and subsequent decision of the same Court for implementing such commitment. The order dated the 18th October; 1992 allotting the alternative land has been assailed through Civil Appeal No.200 of 1995.
4. Mr. Hamid Ali Mirza, Advocate, learned counsel for the Government of the Punjab/appellant in the five appeals filed by the Government, urged the following contentions:-- (i)The Chief Settlement and Rehabilitation Commissioner Punjab exercising powers under clause
(b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958 has vide notification dated 16-5-1973 declared all the available evacuee urban land, including such area which had not yet been confirmed to any person against verified produce index units, located within urban limits of Municipal Corporation, Municipal Committee, a Notified Area Committee, Town Area Committee, Small Town Committee, Sanitary Committee or Cantonment throughout Province of Punjab as "Building Sites". The land subject-matter of transfer to respondents against verified claims was, not available for allotment by way of alternate measures. The orders of Chief Settlement Commissioner were, therefore, void ab initio. In support of the proposition, reliance was placed on Bashir Ahmad and others v. Punjab University Academic Staff Association and others (1991 SCMR 377), Syed Saifullah v. Board of Revenue, Baluchistan through Member (RJT) and 4 others (1991 SCMR 1255) and Member Board of Revenue, Punjab (Settlement and Rehabilitan Wing)
Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCMR 732).
(ii) Notification dated 16-5-1973 (supra) was self-executory and had the effect of converting the nature of land specified therein to be 'Building Sites' on its very issuance. Thus the order contained in the notification stood implemented and was not reversible without any at of the Legislature.
(i.e)The claim on the basis of which allotment was being sought was filed in respect of the land abandoned in Jawahir Pur, District Delhi, India. It was reported that the entire estate of Jawahir Pur, District Delhi was acquired in the year 1908-1909 and the land owners were paid the compensation and since then said Revenue Estate ceased to exist in the Revenue Record. The claims of Siraj Din and 32 others claimants so filed in respect of the said abandoned land were rejected. These claims were subsequently, however, got verified on the analogy of Schedule IV of the Registration of Claim (Displaced Persons) Act, 1956 and these claimants got allotments of agricultural land in different Districts in lieu of said verified claims. One Habib Khan submitted applications under sections 10 and 11 of the Displaced Persons (Land Settlement) Act against allotments obtained by the claimants of non-existing Jawahir Para estate and Sardar Hidayatullah Mokal, Settlement Commissioner with powers of Chief Settlement Commissioner (Lands) vide order dated 6-7-1972 required the authorities to submit complete details of all such allotments of land against the claims got verified in lieu of land statedly abandoned in Jawahir Pur and Jharara estates of Delhi District. He further directed the District Authorities to stop making further allotments of land against these claims. It was argued that in view of the restraint order dated 6-7-1972 passed by the Chief Settlement Commissioner, the allotments obtained in village Shivpur Kalan by the respondents in the year 1973 were illegal and unauthorised.
(iv) The order dated 23-2-1978 of the then Settlement Commissioner is of no avail as the same is contrary to order of the Supreme Court in Civil Petition for Leave to Appeal No.609 of 1975. Thus no allotment could be obtained without first holding discreet enquiry into the genuineness of the claims. It may pertinently be pointed out that order dated 6-7-1972 passed by Sardar Haidayatullah Khan Mokal in the capacity of Chief Settlement and Claims Commissioner was challenged in the High Court by filing writ petition (No. 458/R of 1972) by 33 claimants. The writ petition was dismissed on 8-7-1974 by the High Court and the petition for leave to Appeal No.609 of 1975) filed by those very claimants including the respondents was also dismissed by the Supreme Court vide order dated 2-7-1976 observing as under:-- '
'In case inquiries made by the Chief Settlement Commissioner reveal That fraud has been practised by the petitioners on the claims registering authorities or the Rehabilitation and Settlement Authorities the transactions by which verification of claims and allotments of land have been obtained will, in their entirety, become void ab initio and non set in law. The contention that under the Registration of claims Act claims already verified cannot be reviewed has, therefore, no substance.'
(v)The order dated 2-7-1976 passed by the Supreme Court in Civil Petition for Leave to Appeal No. 609 of 1975 was not noticed by the Settlement Commissioner while passing the order dated 23-2- 1978 which order even otherwise cannot stand the test of law.
(vi)All the private respondents were undisputedly allotted lands at different places during 1973 as alternate land in lieu of the land got earlier allotted under specific orders of Settlement Officers. The officers/authorities under Settlement Laws had become functus officio and had no jurisdiction subsequently to effect any change or grant/allot any land by way of alternate land. Learned counsel explained that no allotment could legally be made in the year 1992 on moving the applications during year 1992 seeking allotment of alternate land on the plea that the applicants had not been able to get possession of the land earlier allotted to them.
(vii) Firstly the Repealing Ordinance 1974 and then Act XIV of 1975 repealed the all evacuee laws, therefore, status of land which existed on the date of repeal of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance 1974 or Act XIV of 1975 remains intact. The nature of land, therefore, could not be changed, altered or substituted by Notified Officer. The land available as 'Building Site' can, therefore, be disposed of only in accordance with relevant scheme framed under aforesaid Act. The action of Chief Settlement Commissioner (Ch. Talib Hussain) purporting above cases of granting alternative land was, therefore, devoid of lawful authority and of no legal effect.
Evidently by operation of law with the repeal of evacuee laws, land in the urban area exclusively vested in the Provincial Government and could only be disposed of in accordance with the schemes framed under the repealed law. Neither the applications submitted in the year 1992 nor the orders obtained from the High Court for disposal of such applications could be made basis for treating the said applications as pending case, nor the observations made for making allotments of available land could provide legal justification for making the allotments. Reliance was placed to the observations made in the case of Muhammad Mustafa (supra) and Malik Muhammad Sarfraz Khan Tiwana, Advocate v. Settlement Commissioner (Industries) Lahore and others (PLD 1989 SC 580 at 583).
5. These very contentions were either adopted or contentions to the similar effect were urged by the other learned counsel appearing for the appellants in the connected appeals.
6. Mirza Naseer Ahmed, Advocate Supreme Court with Syed Afzal Haider Advocate Supreme Court Ch. Mehdi Khan Mehtab, Advocate-on-Record, Mr. S.M. Masud Advocate Supreme Court Ch. Qadir Bux, Advocate Supreme Court Malik Saeed Hussain, Advocate Supreme Court Mr. Zainul Abedin, Advocate Supreme Court Awan Muhammad Hanif, Advocate Supreme Court and Sh. Anwarul Haq, Advocate Supreme Court learned counsel appearing for private respondents, opposed the appeals and' urged as under:-- 10That respondents in the above appeals were genuine claimants who had been duly issued entitlement certificates after due verification. Therefore, they had legal right for allotment of land against their verified claims.
(ii)The department was unable to provide physical possession or to arrange mutation in the Revenue Record concerning said property in favour of respondents/claimants. Therefore, legal proceedings were initiated and their unsatisfied claims are to be deemed to be pending. Thus subsequent allotment of land in village Harbanspura by way of alternative measures by Notified Officer is proper and justified'.
(i.e)Appellants in Appeals Nos. 195 to 200 and 205 of 1995 had no locus standi to file the present proceedings even if they are occupants. Their petitions were rightly dismissed by the Lahore High Court and appeals filed by them equally merit dismissal.
(iv) Notification dated 16-5-1973 converting agricultural/urban land into building site' was not acted upon by the department, therefore, the same was legitimately ignored. In any case an omnibus notification without specifying the particulars of the land to be declared building site is not contemplated by law. The notification is, therefore, invalid in law.
(v) Without prejudice to the above, even if notification dated 16-5-1973 was validly issued the same could not survive the repealing Act of 1975. Therefore, it ceases to be operative. Notified Officer was, therefore, competent to regulate disposal of the urban agricultural land for satisfaction of verified claims.
(vi)Allotment was made to the respondents in Civil Appeal No.204 of 1995 in pursuant to the directions made by the Supreme Court in Civil Petition for Leave to Appeal 1243 of 1983, which read as under:-- in view of the amendment added to section 14(1-A) to the Displaced Persons Settlement and Rehabilitation Act, 1974, if there is any land available in the Province, may be given to the petitioner.
"
Similar directions were made by the High Court in different cases to make allotments in lieu of pending claims/units. The orders passed by the Chief Settlement Commissioner in compliance with the directions made merit to be maintained so as to maintain the majesty and supremacy of law.
((vii)In case of Civil Appeal No.200 of 1995, department had given a categoric statement of granting land on the basis whereof Writ Petition No.2523 of 1991 was not pressed and disposed of on 14-7-1992. Subsequently directions were issued by the High Court for implementation of the said order and the Punjab Government as well as Settlement Authorities have not challenged validity of the said allotment, so the same cannot be challenged by the appellants as they lack necessary locus standi.
7. Apart from above referred appeals there are six other matters comprising Civil Appeals Nos. 1049 to 1054 of 1995. The facts and legal aspects in all these matters are identical. Appellants in all these matters were claimants/displaced persons who were issued entitlement certificates after verification of their claims. Respective details of the appeals is mentioned below:-- Out of verified claim of the appellants only 2010 P.I.Us. Were adjusted. Therefore, the appellants have been pursuing various remedies for procuring agricultural urban land against said unsatisfied claim. The Deputy Settlement Commissioner/Notified Officer by means of order dated 30-3-1992 passed an order whereby land measuring 121 Kanals, 5 Marlas situated in Revenue Estate of Harbanspura, District Lahore, was transferred in their favour. The respondents challenged said grant through Writ Petitions Nos. 117/R of 1992, 116/R of 1992, 184/R of 1994, 81/R of 1993, 82/R of 1993 and 84-R of 1993 which were eventually decided by a common judgment dated 16-1-1994 and matters were remanded to Notified Officer for disposal afresh. Aforereferred judgment of Lahore High Court has been challenged by appellants through Civil Appeals Nos. 1049 to 1054 of 1995.
8. Learned counsel for the appellants strenuously urged that claim of appellants was pending matter. Therefore, the notification dated 16-5-1973 had no applicability. According to him under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), appellants are entitled for grant of alternate land, which according to him, has been rightly granted. 1t was further urged that the order allotting the land was initially passed much prior to 16- 5-1973. Therefore, the notification declaring the land as 'building site' did not have any retrospective effect as regards the case of the appellants are concerned.
9. Learned counsel for respondents contended that allotments having' been made of the urban land, in satisfaction of the produce index units further allotment as alternative measure could not legally be obtained or made on the plea that possession of the allotted land could not be obtained.
The plea that in these cases allotment was made prior to the date of Notification has no legal significance. The notification dated 16-5-1973 was self-executory and became operative on its issuance. Therefore, all agricultural urban land stood converted into 'building site' which can be transferred from said date only under regular scheme in the prescribed manner. It was further contended that said land constituting 'building sites' under aforesaid notification cannot be utilized for alternative measures to satisfy any claim of the appellants. It was canvassed that if the claim of the appellants was not satisfied or remained unadjusted relief only to the extent admissible under law can be obtained, i.e. Cash compensation. It will be seen that same pleas as were urged in the connected appeals were repeated in these appeals as well.
10. Before dealing with respective contentions of the parties, it appears appropriate to state the position of law.
11. The displaced persons from India were required to file claims in respect of the land abandoned by them' in India. The claims for the agreed areas were verified on the basis of the Revenue Record received from India while claims for non-agreed areas were invited and verified under the Registration of claims (Displaced Persons) Act, 1956. Evacuee Agricultural Land in rural areas was allotted under the Rehabilitation Settlement Scheme issued in the year 1952 and then in 1956 and the Rural Supplementary Scheme No.I issued in 1957. The urban agricultural land was allotted under Urban Supplementary Scheme No.II to the West Pakistan Rehabilitation Settlement Scheme prescribed under section 6(l) of the Pakistan Rehabilitation Act for allotment of agricultural land to claimants on the basis of claims verified in Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956. There were other Schemes for other categories of displaced persons. Martial Law Regulations Nos.89 and 91 were also issued. These may not be noticed being not relevant for the purposes of instant appeals.
12. It is pertinent to note at this stage that under the Rehabilitation Settlement Scheme for allotment of rural, agricultural land as well as the Supplementary, Scheme No.II for allotment, ceiling on allotment of land, urban or rural, under the respective Schemes was fixed for the conjected districts which included Lahore District and whatever Units were left unsettled beyond the ceiling had to be taken out for settlement and adjustment in some other District. No claimant could keep the excess Units in the District and the plea that said excess Units remain pending so far as settlement in that District is concerned, is without merit.
13. The Displaced Persons (Land Settlement) Act, brought on the statute book and enforced in 1958 provided for transfer or disposal of land or other property out of the Compensation Pool comprising of all lands generally or any class of land or all land situated in a specified area or any particular land acquired by the Central Government by publishing a notification under section 4 of the Act and on publication of such a notification the right, title and interest of any evacuee or persons claiming through him in the said land extinguished and the land so acquired vested wholly and absolutely in the Central Government or in the Provincial Government as the case may be free from all encumbrances.
14. Section 15 of the Displaced Persons (Land Settlement) Act provided that a displaced person to whom any land has been allotted by a Rehabilitation Authority under a Scheme shall be settled permanently on the land on payment of prescribed fee; and the land on which a displaced person is permanently settled came to vests absolutely in such person by virtue of section 16 of the Displaced Persons (Land Settlement) Act, thus, the settlement means, settlement in accordance with the Schemes framed under the Rehabilitation Act or the Schemes framed under the Displaced Persons (Land Settlement) Act. No right could, therefore, be claimed over and above those conferred and recognized by the aforesaid Schemes.
15. The other noticable aspect of the land in dispute is the position of the land during the the that the Displaced Persons (Land Settlement) Act was on the statute book and also after its repeal.
Section 2 (3) of the Displaced Persons (Land Settlement) Act defined "Land" as follows:-- "' Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unserveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee in such land, but does not include:--
(a) Property as defined in sub-clause (b) of clause (2) of section 2 of the Registration of claims (Displaced Persons) Act, 1956 (111 of 1956), or in sub-clause (d) thereof; or
(b) Such evacuee land as many be declared by the Chief Settlement Commissioner as a building site. "
Section 13 of the Displaced Persons (Land Settlement) Act provided that any evacuee land declared by the Chief Settlement Commissioner to be a "building site" in pursuance of sub-clause
(b) of clause (3) of section 2 shall be disposed of in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1980. The Chief Settlement Commissioner in exercise of the powers so vesting in him under sub-clause (b) of clause (3) of section 2 of the Displaced Persons (Land Settlement) Act issued notification dated 16-5-1973. This notification reads as under:-- "In exercise of powers conferred upon me under clause (b) of sub--section (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, 1, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates situated within the Urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment, throughout the Province of the Punjab, as building sites, for disposal under section 13 of the said Act."
16. The evacuee urban land in all the Revenue Estates situated within the urban limits of a Municipal Corporation, Municipal Committee etc. Etc. Throughout the Province of Punjab as such was declared "building sites" for disposal under section 13 of the aforesaid Act. This was the position of the urban evacuee land at the the when the evacuee laws including the Displaced Persons (Land Settlement) Act, 1958 and Displaced Persons (Compensation and Rehabilitation)' Act, 1958 were repealed by the repealing Ordinance, 1974 which was then made Act XIV of 1975. Upon repeal of the aforesaid Acts and Regulations, all proceedings which immediately before such repeal were pending stood transferred for final disposal to such officers as may be notified by the Provincial Government and all cases decided by a High Court or Supreme Court after such repeal which had been remanded to any such authority in the absence of such repeal were to be remanded to the Notified Officers and any proceedings transferred, remanded to a Notified Officer were required to be disposed of in accordance with the provisions of the relevant repealed Act or the Regulation.
This was so provided by section 2 and subsection (3) of section 2 of the Act XIV of 1975.
17. Section 3 of Act XIV of 1975 provided that all properties both urban and rural, 'including agricultural land, other those attached to charitable, religious or educational institutions whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the laws or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2 stood transferred to the Provincial Government on payment of price and in case of urban property a scheme for their disposal was to be prepared by the Provincial Government and the rural properties were to be disposed of by the Board of Revenue under a Scheme to be prepared by the Provincial Government. Section 3, as regards agricultural land, further provided that agricultural land occupied by any person continuously for four harvests immediately proceeding Khareef 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of the land but only that much land shall be offered to such person as does not together with the land already held by him, exceed a subsistence holding within the meaning of Land Reforms Regulation, 1972. The other provisions pertaining to allotment to a displaced person from Jammu and Kashmir State may not be noticed being not relevant.
18. The Government of the Punjab Province then prepared and prescribed Scheme for the management and disposal of available urban properties (See PLD 1977 Punjab Statute page 62).
Certain provisions of the Scheme were amended 1 in 1985 (See PLD 1985 Punjab Statute page 6).
The terms "available properties" and "building sites" were defined in paragraphs 1 (c) and 1(d) of the Scheme, 1977. Paragraph 6 provided that an available building site on which a person in possession has raised a permanent construction and applied for its transfer may, be transferred to him alongwith an area which does not exceed three times the constructed area on the transfer price and where any person having made a permanent construction on a building site did not apply for transfer, it should be disposed of through unrestricted public auction alongwith the construction. The value of such construction shall be determined by the Deputy Administrator and paid to such a person out of the auction proceeds by such authority as may be specified.
Paragraph 11 of the Scheme also provides for auction of the building site.
19. These very provisions thus contemplate holding of an inquiry before auctioning the building site to determine whether any construction has been made by any person and whether he has applied for its transfer and also to assess the value of the construction raised so that if he has not applied for the transfer of the building site, the assessed compensation is awarded to him. During such an inquiry the person in possession can submit the form seeking its transfer as no the limit can be fixed for submission of the form so as to deprive him of the right to seek transfer. This was so held by this Court in the case of Ch. Altaf Hussain and others v. The Chief Settlement Commissioner, Pakistan, Lahore and others (PLD 1965 SC 68).
20. With this background we proceed to examine broad aspects directly affecting validity of allotment orders passed by the 'Notified Officer', which are subject-matter of scrutiny in these appeals. The Notification No. 1697-73/1567-R(L) dated 16-5-1973 issued by Chief Settlement and Rehabilitation Commissioner, Punjab has unambiguously declared "available evacuee urban land" including the one not yet confirmed to any person against units, as "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement Act, 1958. Bare reading of this notification clearly displays that same was executory in nature and became operative immediately on its issuance. This had the effect of converting unutilized agricultural urban land in entire Punjab to be "building site". Validity of said notification and competency of authority issuing it came for consideration before this Court in several matters. In the case of Bashir Ahmed and others v. Punjab University Academic Staff Association and others (1991 SCMR 377) it was held that allotment to informants concerning land which had been declared as a 'building site" could not be made after issuance of notification dated 16-5-1973. The relevant observations are reproduced below:-- "The order dated 25-3-1974 passed in favour of the predecessor-in--interest of the petitioners was challenged through Writ Petition No.402-R of 1976 by the Punjab University Academic Staff Association and the University of the Punjab whereby the informants were allotted the land becoming available by the setting aside of the allotments to Badar-ul-Hassan anal Qureshi Mahmud Ahmad on 10-4-1974 as the land had in the meanwhile been sold to the University Authorities on 29-3-1974 under section 10(2) of the Displaced Persons (Land Settlement) Act, 1958. It was alleged that the Additional Settlement Commissioner (respondent No.2) was incompetent in law to make the allotment to the informants as the land in question had been declared as a building site by the Notification, dated 16th May, 1973. This writ petition was allowed by the impugned judgment of the High Court dated 6-4-1988. Hence this petition for leave.
Mr. Shahzad Jehangir has been heard on behalf of the petitioners, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16-5-1973 declaring the urban lands within the Municipal limits etc. As 'building sites' no allotment of such lands on the basis of the claimants units, whether urban or rural, could be made."
21. It may be seen that after repeal of evacuee laws, no provisions were made for allotment of land against any pending verified P.I.Us. Therefore, this Court while examining effect of above referred notification and repealing Act ruled that any allotment order for adjustment against P.I.U. Procured by private persons was completely devoid of lawful authority. Relevant observation supporting this view appear in case of Syed Saifullah v. Board of Revenue, Baluchistan through its Member (RJT) and 4 others (1991 SCMR 1255) and are reproduced here under:-- "8. With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority: Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and .The correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.
9. We find, therefore, though for reasons somewhat different recorded by the High Court that the dismissal of the to writ petitions and the acceptance of the Revision Petition was the requirement of law and justified in the circumstances of the case. The appeals have no merit and are dismissed with no order as to costs."
22. Adverting to provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, it will be seen that section 3 regulates transfer or disposal of property which may be "available for disposal" immediately before the repealing Act. Besides, section 2 (2) of the aforementioned enactment further controls and restricts the powers or jurisdiction exercisable by the 'Notified Officer' for regulating property or matters which may be 'pending' when evacuee laws were repealed. Evidently important feature for allotment of any kind was subject to 'pendency of proceedings' and 'availability of land' pertaining to specific classification. This pendency of proceeding is not co---related with failure of authorities to satisfy any verified claim of a displaced person/claimant. The distinction between pendency of units/claims and "pending proceedings" have been discussed in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing) Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCMR 732). It has also been specifically elucidated that neither nature of land could be converted nor proceedings treated as pending even under direction of superior Courts if same tends to contravene existing law. The relevant observations are as under:-- ---3. The learned counsel for the appellant has pointed out that the proceedings pending in the case could be taken only to be those instituted on an application under sections 10 and 11 of the Act and not the satisfaction of the pending claim as such. The application under sections 10 and 11 of the Act having not succeeded at any stage had concluded. If the respondents had succeeded in those proceedings, their entitlement under the law (Act XXXVI of 1974) could have extended to the resumed land to the extent of their claim pending for allotment and if the resumed land had already been allotted to some other person, the allotment to the extent of such land will be effected by way of choice from the available land for allotment in the same Province. Failing these to alternatives, they were entitled to cash award of such amount as the Chief Settlement Commissioner may decide. An unsuccessful informer could not claim these rights under the law.
4. The respondents/writ petitioners being unsuccessful in their application under sections 10 and 11 of the Act could not on the basis of either the repealing law or Act XXXVI of 1974 seek benefit of allotment from an available land. It is only on their being successful in their application that they could claim adjustment against the resumed land or the other alternative available land. The pendency of the claim itself did not amount to pending proceedings. In congested Districts, there was a ceiling on allotment and whatever units were left unsettled, beyond the ceiling, had to be taken out and settled in some other District. One could not keep the excess units in the District and then claim that it remained pending so far a settlement in that District was concerned.
5...................................................................................... ......................................................................................
6. On examination of the facts of the cases and the law laid down therein we find that none of them deals with the situation like the present one i.e., an informer being unsuccessful and yet succeeding in getting a direction from the High Court. Where the direction given by the High Court is manifestly against the law it cannot be allowed to remain. "
23. Now carefully examining the details of each case in hand, it would be quite apparent, that specified land had been allotted to some of the appellants prior to the date of notification dated 16-5-1973 and they were unsuccessful in getting its possession and effecting mutation concerning the same in their favour. In majority of cases, applications seeking grant of "alternate land" were submitted to Chief Settlement Commissioner after repeal of evacuee laws, rather inwards beginning of year 1992. In certain matters directions were also obtained from Lahore High Court for ensuring 'expeditious disposal of the grievances agitated by the claimants/respondents whose verified claims despite strenuous follow-up, had not been satisfied. In one of the cases when Writ Petition No.2523 of 1991 was filed before Lahore High Court the Settlement Department made categoric concession for providing alternate land to respondent Mirza Shamim Ahmed Baig and said petition was accordingly disposed of on 14th July, 1992. Therefore, it has to be seen that when claims were not satisfied or direction issued by superior Court regarding subject-matter which inherently suffered from want of jurisdiction, were not complied on concession for allotting E alternate urban land to claimants against unsatisfied produce index units even if any concession was made by the Department, otherwise having no authority specially after repealing Act, could be legitimately sustained. The ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255 and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into "building sites" and consequently notification dated 16-5-1973 was valid. Therefore, on the issuance of said notification every agricultural urban land which had not been adjusted, allotted or utilized till then against verified claims ceases to be available for transfer. Additionally, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, became effective from the first day of July, 1974. Hence the status of evacuee property as existing on such date could not be changed or converted subsequent to promulgation of said enactment., The authority for disposal of the property or residual work was merely to be restricted to finalize rehabilitation process. Therefore, we find no difficulty in observing that when repealing Act was promulgated there did not exist any agricultural urban land, which could be adjusted against unsatisfied verified claims of produce index units. The claimants with unsatisfied entitlement could resort to any other remedy if available under the law, but were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure or otherwise.
24. Besides, it was mandatory condition for grant or allotment of land that proceedings must be pending, which could be dealt with and finalized by the "Notified Officer" within the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters under consideration, claims of respondents had not been fully adjusted or lands allocated to them for being transferred in their favour was not available for one or the other reasons. Therefore, without much comments relying on the instructive observations in cases of Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCMR 732), Syed Saifullah v. Board of Revenue, Baluchistan and others (1991 SCMR 1255) and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCMR 1358) we are inclined to hold that on. The promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV. Of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units.
25. There is yet another aspect whereby Chief Settlement Commissioner vide order dated 3-5-1986 (reproduced hereinabove) has unambiguously declined request for granting alternate land to claimants (i) Pir Muhammad, (ii) Siraj Din, (i.e) Wali Muhammad and (iv) Sher Muhammad, respondents in Civil Appeals Nos. 195, 196 199, 210, 203 and 205 of 1995. This was not challenged by said claimants, therefore, it had attained finality. Repealing Act XIV of 1975 does not contain any provisions for exercising powers of review. Therefore, on the strength of principles laid down in cases of Hussain Baksh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) and Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) Chief Settlement Commissioner, the Notified Officer was not competent to recall or bypass his previous decision. Therefore, the order for allotment of alternate land was vitiated on this score as well.
Now we will proceed to deal with other aspect regarding consequence of order passed by authority having no jurisdiction in the matter. Question relating to legality and impact of void order and for disregarding the same when nullity, has been considered by this Court on numerous occasions. Pivotal question which needs attention is whether impugned orders concerning allotment of land passed by Notified Officer are mala fide or suffer from total lack of jurisdiction or have been passed in disregard to existing law and tends to frustrate provisions of evacuee laws and schemes framed thereunder, therefore, be deemed as nullity. In case of Muhammad Swaleh (PLD 1964 SC 97) this Court ruled, that if circumstances disclose that order pre-eminently provides right to either party is nullity the same should be ignored. In the case of Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104) the Court did not attach finality to the orders which were passed by an authority in excess of its jurisdiction or suffered from want of jurisdiction and were found to be devoid of lawful authority and nullity. It was observed in these matters that edifice constructed on the basis of void order crumbles alongwith same, and did not require to be set aside through appeals or any other proceedings. In the case of Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) it has been observed that elementary principles of law require mandatory condition regarding exercise of jurisdiction by a Court, Tribunal or Authority must be fulfilled, otherwise all, proceedings drawn by such forum would suffers from total want of jurisdiction, otherwise action taken and decision rendered by said forum shall have no legal effect. Similar view was taken in case of Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184) wherein it was held that orders passed by tribunal having no jurisdiction are not sustainable and all successive proceedings based upon the same are equally illegal and devoid of lawful authority. In Chittaranjan Cotton Mills Ltd., v. Staff Union (PLD 1971 SC 197) it was observed that "where the Court is not properly constituted; all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances it could never be to late to admit and give affect to the plea that the order was a nullity" and thus impugned order was set aside. The above discussed proposition was elaborately discussed in case of Khuda Bakhsh v.
Khushi Muhammad and 3 others (PLD 1976 SC 208) wherein action and orders were found to be coram non judice and nullity in the eye of law. After surveying case-law this Court in a recent judgment reported in PLD 1997 SC 351 (Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari) also dealt with the effect of orders which are void and coram non judice, and propounded that same may not be carried out.
26. Learned counsel for the respondents have greatly stressed upon directions which were issued by superior Court for ensuring expeditious disposal of the grievances made by the claimants regarding non-adjustment of their produce index units or failure to grant them alternate land. It was also emphatically canvassed that in one of the cases department had made concession.
Therefore, directions of the High Court existed for providing alternate land. They accordingly asserted that Notified Officer stood protected and his orders were not assailable. It is indeed well- settled that consent can neither vest nor taken away jurisdiction which otherwise did not vest in any authority or forum. Reference, however, be made to the observations in the cases reported in PLD 1983 SC 243, (Sultan Ali v. Khushi Muhammad), 1983 PCr.L.J. 682, (Azad Jammu and Kashmir Government through Chief Secretary and 4 others v. Sardar Muhammad Ibrahim Khan) and 1980 SCMR 469 (Shahul Hamid v. Tahir Ali). It is noteworthy that after issuance of notification dated 16- 5-1973 ands promulgation of repeal Act, 1975 Chief Settlement Commissioner Punjab or Notified Officer did not possess any power to make allotment of any agricultural land in the urban areas of Punjab. No one in the Settlement Department was, therefore, competent to transfer or consent for giving any land much less an "alternate land" for adjustment of produce index units, specially when they did not even assert possession over any portion of such land. Additionally, by virtue of notification, dated 16th May, 1973 entire agricultural urban land was declared as "building sites" and subsequently on account of repealing enactment all unutlized properties by operation of law were transferred to the Government of Punjab in the consolidated pool, which could only be disposed of in accordance with procedure prescribed under regular schemes. Besides, none of the "building sites" could be legitimately transferred even under the scheme framed by the Punjab Government, except such portion upon which construction had been raised by the claimants and other adjoining land not exceeding three times the constructed area. Even under the scheme presently in force limit of granting agricultural urban land was considerably restricted. The "Notified Officer" flagrantly disregarding the law granted alternate land., to the claimant against verified produce index units which otherwise did not belong to Settlement Department. It is noticeable that "Notified Officer" had illegally assumed powers which were not vested in him. His conduct does not appear to be above board and is prima facie mala fide. This certainly called for probe and suitable departmental action against persons responsible for concealment of facts and wanton abuse of power by the then Chief Settlement Commissioner, (Ch. Talib Hussain).
27. Reverting to merits it may be seen that in case reported in 1993 SCMR 732 it was held that direction given by the High Court when against law cannot be allowed to hold field. Similarly in a recent judgment of this Court reported as PLD 1997 SC 351 (Province of the Punjab v. Dr. S Muhammad Zafar Bukhari) while examining implementation of judgment passed by the High Court, its non--compliance by concerned authorities on the ground of same being coram non judice was not disturbed. It would be profitable to reproduce the relevant portion as under:-- "12. This brings us to the question of implementation of the judgment dated -29-4-1989 of the High Court which judgment as held above is a 'judgment per incuriam' which was sought to be enforced by initiating contempt proceedings. The question is whether indictment for disobedience to a judgment per incuriam can be obtained or. In other words can a person be found guilty of disobedience of an order which is nullity in the eye of law. On this question cases cited in Halabury's Laws of England 4th Edition, Volume 9, para 55, are; 'R. v. Hollis (1819), 2 Stark. 536; R. v. Soper (1825), 3 B & C 857. Wherein it was held that 'a person cannot be found guilty of disobedience to an order of justices if the order was made in a matter in which they had no jurisdiction.' The comments recorded at page 100 of volume 17, Corpus Juris Secondum on the subject may be reproduce as under: 'In proceedings to punish for contempt for violation of, or failure to obey, a decree or order, various matters have been held to constitute good defence. Thus, it has been a good defence in such proceedings that the decree or order is indefinite and uncertain or that the at required to be performed would be nullity.'
On the same principle, learned Judge of the Division Bench in the case of Abdul Haleem v. Qurban Hussain (PLD 1965 Lah. 570) observed, "it is true that presumption attaches to orders of superior Courts that they are with jurisdiction but no such presumption attaches to. An order of subordinate Court. In the circumstances, Mir Bahadur Ali, Superintendent of Police, did not commit any contempt of Court by disobeying the order which had no legal force. "Again Munir, CJ, in the case of Mian Sultan Ali Nanghiana v. Nur Hussain (PLD 1949 Lah. 301 (F.B) held that order staying proceedings before the Election Commissioner being without jurisdiction was void and that being so no contempt of High Court was committed by the members by disobeying it.
13. Seen in the light of dictum laid down in these cases the appellant Government was right in pointing out to the High Court that its judgment being contrary to the judgments of the Supreme Court and the law laid down by it cannot be got implemented by invoking power of contempt of the Court. Learned Judge of the High Court without adverting to this question, insisted unfortunately on the implementation of the direction issued in the judgment. The implementation of the judgment would have amounted in acting contrary to law laid down by this Court. The promotion to which the respondent officer was legally entitled had been made by issuing the necessary notification promoting and appointing him as Associate. Professor would be illegal. The justice have been done, initiation of contempt proceedings any further and the orders, dated 8th and 29th October, 1995 requiring the appellant Government to at contrary to law are unwarranted in law."
28. Thus, following the dictum in aforequoted cases and looking to glaring disregard of law and earlier decisions of this Court, we are inclined to hold that disposal of petition by Lahore High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice, as such has no binding effect.
29. As a sequel to above discussion we are satisfied that the orders passed by the 'Notified Officer' which have been impugned in all these appeals suffered' from total lack of jurisdiction and were coram non judice. Private appellants who have been objecting to the adjustments of respondents' claim had ostensible cause, reasonable justification and fear of being prejudiced, therefore, in all fairness were 'aggrieved party as held in the case of Fazal Din v. Lahore Improvement Trust, Lahore, and another (PLD 1969 SC 223). The High Court, therefore, ought to have interfered with the illegal orders passed by Chief Settlement Commissioner, purporting to exercise powers of Notified Officer.
'
In view of our above conclusions, the appeals filed by Government of Punjab as well as by the private persons are accepted to the extent that the lands which were subject-matter in the above cases were not available for transfer either as agricultural urban land or as agricultural land since all these lands were within the Municipal limits of Lahore and were declared as building site in view of the notification dated 16-5-1973 issued by the Chief Settlement Commissioner under the provisions of Displaced Persons Land Settlement Act, 1958. It is, however, left open that if any of the appellants in Civil Appeals Nos.1049 to 1054 of 1995 was entitled under the Scheme framed after repeal of evacuee laws, the same may be agitated if so available under the law before the authorities concerned. There will be no order as to costs.