FAZAL ILAHI KHAN, J---Petitioners seek leave to appeal against the judgment/order dated 10-4- 1996 passed by the learned Lahore High Court, Lahore in Writ Petition No.2-R of 1990.
2. It was contended by the learned counsel for the petitioners before us that the petitioners and respondents Nos.15 arid 16 are displaced persons from India and on their migration they settled on a piece of land bearing Khasra Nos.25/2/1 and 25/2/2 measuring about 3 Kanals 16 Marlas situated in Chak No. 127-G.B., Tehsil Jaranwala, District Faisalabad. They raised construction over the site and subsequently on coming into force of the Settlement Laws they applied for transfer of the pieces of land under their respective occupation. This fact is reflected in the Jamabandi for the year 1956-57. Subsequently, when these plots (constructed areas) were shown in the auction list in the year 1967 on the objection of the petitioners these plots were withdrawn from the auction-list, as their application forms were still pending disposal. Without deciding the fate of their applications the property in dispute was allotted to one Abdul Aziz on 14-10-1957 as agricultural land. This transfer was challenged by the petitioners on the ground that the property in dispute in fact was building site on which there already existed residential houses and this matter ultimately was settled by Settlement Authority in original jurisdiction in favour of the petitioners on 6-4-1964.
However, the aforementioned order was challenged by Abdul Aziz in Writ Petition filed before the High Court. The writ petition was accepted and the case was remanded to the Additional Settlement Commissioner for decision in accordance with law. After the remand the matter was pending till 8-12-1982 without any steps being taken in this regard. In the meantime Abdul Majid predecessor-in-interest of respondents Nos. l to 5 filed an application for his impalement as a party as he alleged that the property stood allotted in his favour by order dated 16-7-1962 as 'Chakki'. This application was allowed.
3. That the Deputy Settlement Commissioner vide Memo. No.698/HC (5)R dated 9-1-1962 asked for the guidance in the matter from the Board of Revenue (Chief Settlement Commissioner) in the light of the history of the case given therein. The Deputy Secretary, Board of Revenue in reply to the above observed that the property in question stood transferred in favour of Abdul Majid irrespective of its character, therefore, it is not available property even if it is not urban. It was suggested that a Notified Officer is to decide the case taking into consideration the final order in favour of Abdul Majid. On receipt of such advice the petitioners' applications were rejected on the ground that the property was no more available for transfer under Settlement Scheme No. VII. This order was challenged in a writ petition before the learned High Court but the same was dismissed vide order against which leave to appeal is prayed for.
4. Leave is granted to consider, inter alia, whether the Settlement Authority failed to consider whether the agricultural land in question (building site) was validly transferred as an industry under the Settlement Laws when it has already been constructed upon and occupied by the petitioners since before 1955 and at their request it was omitted from the auction-list and specially when their application forms for its transfer were pending decision. And as to whether, the learned High Court misread and failed to take notice of the legal point involved in the case; and whether, the Deputy Settlement ` Commissioner, to whom the case was remanded for decision on merits, failed to carry out independent inquiry and was justified to ask for guidance of the Member. Board of Revenue, who had no say in the matter in the law, and such opinion should have formed basis for judicial determination of the dispute.