' This petition has been directed against order, dated 24-12-1992 passed by Ch. Talib Hussain, Member (Revenue)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore whereby urban land to the tune of 432 PIUs was ordered to be allotted to respondent No,2.
2. Brief facts as narrated in the writ petition are that respondent No,2 was allotted 73 Kanals and 14 Marlas urban agricultural land alongwith other area at Khata No,13 in village Thal Jundi, District Layyah on 11-5-1973. As the said area was also proposed at Khata No,28 Registrar RL-II in the name of Bashir Ahmad and others. They filed Writ Petition No,56-R of 1986, which was accepted by this Court and the case was remanded to the Notified Officer, who vide, order dated 27-2-1990 held that cancellation order was passed on 21-7-1972 and Bashir Ahmad was held to be entitled to the allotment of said land. Another Writ Petition No,57-R of 1986 filed by Bashir Ahmad etc. Wherein present respondent No,2 was arrayed as respondent No,3 was disposed of on the basis of compromise vide 'order, dated 21-9-1991. According to the averment of petition throughout this period respondent No,2 kept silent and never agitated her grievance before any competent authority and that taking benefit of order passed by this Court, dated 21-9-1991 respondent No,2 filed an application before respondent No,1 with the prayer that she may be allotted alternate land in lieu of allotment of 73 Kanals and 15 Marlas surrendered in favour of Bashir Ahmad. The respondent No, 1 on this application allotted 43 Kanals, 13 Marlas of land in village Gohawa, Tehsil Cantt. District Lahore vide order, dated 21-12-1992. Hence this Constitutional petition.
2. The learned counsel for petitioner has contended that in view of dictum laid down in Muhammad Ramzan and others v. Member (Revenue), Chief Settlement Commissioner and others (1997 SCM R 1635) the Chief Settlement Commissioner/respondent No,1 has assumed the jurisdiction, which was not vested in him, therefore, the impugned order is coram non judice and void. It is further contended that the case of respondent No,2 is not covered under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 and the same could not be termed as pending proceedings. The learned counsel further contended that the concession given by the Chief Settlement Commissioner in case of respondent No,2 was not warranted under the facts and law, therefore, the so-called consent of the counsel for the department could neither confer nor take away jurisdiction which otherwise did not vest in the authority and the impugned order is just an abuse of power by respondent No,1 as held by Hon'ble Supreme Court in abovesaid case. In the similar situation which gives rise to the filing of this petition. It is lastly contended that the allotment of land, which had been declared a building site and the same was not available for transfer is without lawful authority.
3. Nawab Saeed Ullah Khan, Advocate for respondent No,2 argued that the present writ petition is not maintainable as the same has been filed by the Chief Settlement Commissioner challenging the order of his predecessor and since the respondent had verified urban claim no illegality whatsoever has been committed by the learned Member, Board of Revenue by passing the impugned order.
4. I have heard the learned counsel for the parties at length and have also perused the record, therefore, this petition is being disposed of as a notice case. There is no cavil with the proposition that vide Notification, dated 16-5-1973, the Chief Settlement Commissioner, Punjab exercising powers under clause (b), subsection (3), section 2 of the Displaced Persons (Land Settlement) Act, 1958 declared all the available evacuee urban land including such area which was yet to be confirmed to any person against verified 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". Therefore, in view of the abovesaid Notification the land subject-matter of 'transfer to respondent No,2 against her verified claim was not available for allotment by way of alternate measure. Under the abovesaid Notification the available evacuee urban land including one not yet confirmed to any person against units and declared as 'building site' for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958 through this Notification, which 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" and the allotment of such land could not be made after issuance of Notification, dated 16-5-1973. If any authority is needed reference may be made to 1991 SCM R 377.
5. In Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991 SCM R 1255) it was held as under:- "With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price 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."
6. In case Muhammad Raman and others v. Member (Rev.)/CSS and others (1997 SCM R 1635) it was held as under:-- "It is noteworthy that after issuance of notification, dated 16-5-1973 and promulgation of Repeal Act, 1975 Chief Settlement Commissioner or Notified Officer did not press any power to make allotment of any agricultural land in the urban area of Punjab. No one in the Settlement Department was, therefore, competent to transfer or consent for giving any land muchless an alternate land for adjustment of produce index units, especially 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 unutilized 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 the 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)."
7. The observations made by their lordships in the abovesaid judgment are applicable on all force to the facts and circumstances of the present case as the impugned order is passed by the same authority (Ch. Talib Hussain, Chief Settlement Commissioner, as he then was), who had no jurisdiction to allot the building site against produce index units, especially when respondent No,2 did not claim the possession when respondent No,2 did not claim the possession of property in dispute. The impugned order is coram non judice.
8. The contention of the learned counsel for respondent about maintainability of writ petition has no force for the simple reason that the order has been passed by a person who had no power or authority to pass such order and the allotment made by respondent No,1 in favour of respondent No,2 is without lawful authority and without jurisdiction.
9. In the light of what has been discussed above, this writ petition is allowed and order, dated 24- 12-1992 passed by Ch. Talib Hussain, Member (Revenue)/Chief Settlement Commissioner, Board of Revenue, Punjab Lahore (as he then was) is declared to have been passed without lawful authority and without jurisdiction. The same is set aside. The parties shall bear their own costs.