Brief facts of the case are that Syed Zakar Hussain Shah, predecessor---in-interest of the petitioners, being a refugee claimant filed claim for agricultural and urban land in lieu of the land abandoned by him in India. The claim was verified and he was allotted agricultural land equal to 1633 Kanals and 9 Marlas by the Settlement Authorities on RL-11 No.18 at S.No.17 and summary RL-11 of Mauza Thind Kalan, Cholistan. The land so confirmed in the name of the predecessor in interest of the present petitioners fell into the territorial limits of Thal Development Authority, as such, the petitioners were constrained to apply for the adjustment of the land in lieu of the confirmed land.
The last application in this regard was moved on 10-9-1995 but he same was rejected by respondent No.2, Assistant Commissioner, Layyah on the strength of the policy letter dated 9-1- 1990 issued by the Board of Revenue; hence this petition.
2. I am constrained to observe that in spite of clear order of this Court dated 23-4-1997 directing respondent No.2 and the Secretary (Colonies) Board of Revenue, Punjab, Lahore to appear personally, they have neither entered appearance nor are represented by any state counsel. The conduct of both the statutory functionaries shows that they are not interested in defending the State case in which a big chunk of State land is involved. The respondents are, therefore, proceeded ex parte.
3. Learned counsel for the petitioners contended that the Notification No.1806/89/38-TH-IV, dated 9-1-1990 issued by the Board of Revenue imposing ban on adjustment of land allotted against claims of refugees has no force, void ab initio and against the Constitution. He has placed reliance on an order dated 31-1-1996 passed by this Court in Writ Petition No.3751 of 1995.
4. I have heard the learned counsel for the petitioners and have perused the comments submitted by respondent A.C. In reply to ground (iv), the respondent has admitted that the allotment in the name of predecessor-in-interest of the petitioners is genuine as per entries of register RL-II and summary RL-II of Mauza Thind Kalan, Cholistan. The only hurdle in granting request of the petitioners for implementation of the order of the Assistant Commissioner dated 1-9-1953 is the ban imposed .By the Board of Revenue, vide its Notification No. 1806/89-38-TH-IV, dated 9-1-1990.
5. The predecessor-in-interest of the present petitioners was allotted land in accordance with the provisions of Paragraph 64 Part II of West Pakistan Rehabilitation Settlement Scheme. The controversy involved in this petition, earlier came up for consideration before this Court and learned Division Bench in the case of Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner (PLD 1978 Lahore 252) observed as under:- "We do not think that the objection taken on behalf of the Chief Settlement and Rehabilitation Commissioner can be sustained. The proposals were made in favour of the petitioners in pursuance of a statutory scheme which is still in force. In the usual course of events those proposals would have been confirmed. The memorandum in question has put a stop to the normal functioning of the scheme. In the event it is found that the Chief Settlement and Rehabilitation Commissioner was not legally competent to issue the memorandum it will mean that the petitioners have been deprived of a benefit which they would have otherwise received by an illegal act of the Chief Settlement and Rehabilitation Commissioner. It cannot, therefore, be said that the petitioners have no grievance against the issuance of the memorandum. It may also be mentioned that the office of the Chief Settlement and Rehabilitation Commissioner is a creation of the statute. If its incumbent acts in violation of the provisions of the statute he gives a cause of grievance to the persons affected by his act."
It was also observed in the report judgment that the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), was primarily made to settle the displaced persons on the land and the other provisions appearing therein were intended to give effect to the main object. It is not the case of the respondents that there is no land available for adjustment against the verified claim of the petitioners. Viewed in this context I see no reason how the Member Board of Revenue by an executive order can prevent his subordinates from performing or absolving them of a statutory duty cast upon them by subsection (1) of section 15 of the Displaced Persons (Land Settlement) Act, 1958. He being a creation of the statute cannot act in a manner which would be in violation of his obligations under the Act. Guided by the law laid down in the aforesaid precedent case, I have no option but to accept the writ petition and declare the impugned notification imposing ban to be ultra vires.
6. Resultantly, the Assistant Commissioner, Layyah, respondent No.2 is directed to adjust the claim of the petitioners in accordance with law and rules I on the subject.