IRSHAD'HASAN KHAN, J.--- This petition for leave to appeal is directed against the judgment dated 1.12.1996 of the Lahore High Court, Lahore passed in Writ Petition No. 263/R of 1994.
2. This case has a chequered history. Suffice it to say that Sh.
Muhammad Afzaal and others. Successors-in-interest of S.M. Iftikhar filed Writ Petition No. 49-R/92 seeking restoration of allotment of land measuring 671 Kanal 9 Marlas in village Charar, Tehsil Lahore Cantt., District Lahore against Khata No. RL-150 which, according to the petitioners was allotted to their predecessor-in-interest and purchased by the petitioners, and in the alternative it was prayed that the petitioners be given some other suitable available land of the same value and classification/quality and situate in the same locality. In the above Writ Petition Member (Settlement and Rehabilitation), Board of Revenue, Punjab. Lahore was impleaded as respondent No. 1 while Additional Deputy Commissioner (G)/DSC (Land)/Collector, Lahore Cantt., Lahore/(Notified Officer) under Act XIV of 1975, was impleaded as respondent No. 2. The High Court called for report from the above respondent No. 2. Whereupon, he submitted the report stating therein that the land in dispute claimed by the petitioners as indicated in the Parchi Taqseem Khatauni annexed with the Writ Petition had already been allotted to various other claimants by the Settlement Authorities and mutations have also been attested in their favour. The concluding paragraph of the above report is in the following terms:- "In view of the above submission the petitioners may be advised to approach the Settlement Authorities and, seek alternate allotment. It is therefore, prayed that the writ petition may graciously be dismissed."
(Refer pages 89-90 of the paper book).
3. In consequence of the above report; the Writ Petition was disposed of as not pressed by order dated 28.11.1992 in the following terms:- "Learned counsel for the petitioners states that he does not want to press the writ petition as the petitioners shall move the appropriate authority for allotment of alternate available land. In view of the statement of the learned counsel. This petition is disposed of as not pressed."
4. The petitioners through their attorney moved an application before the Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore for allotment of alternate land measuring 671 Kanals, 9 Marlas in lieu of land allotted to them on 15.9.1971 in Khata No. 150 of RL-II in village Charar, Tehsil and District Lahore. This application is dated 10.4.1993 (refer pages 73-84 of the paper hook).
5. The Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore, vide order dated 28.2.1994, dismissed the application on the ground that the original allottees had neither agitated for allotment of land nor did they care to manage or supervise the land after its allotment by the order of Additional Settlement Commissioner on 15.9.1971. The petitioners who stepped into their shoes cannot he entitled to any other property than the one they purchased. Additionally, the petition was rejected being incompetent on the ground that the Settlement Laws were repealed with . Effect from 28.1.1975 through promulgation of Act XIV of 1975 Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the provisions of Section 2 of the Act ibid were not attracted as the case did not fall in the category of "pending proceedings". (Refer pages 85-88 of the paper hook).
6. Being aggrieved, the petitioner filed Writ Petition No. 263- R/94, which was also dismissed by a learned judge in Chambers. The operative part of the impugned order is contained in paragraph 5 thereof, which reads as under:- "I have heard the learned counsel for the petitioners at length. Learned counsel for the petitioners based the claim for allotment of alternate land on the amended decree dated 24.11.1990. In the said amended decree, S.M. Iftikhar, the decree-holder, had relinquished his claim to the extent of 254 Kanals and the decree, thus, was in respect of remaining land measuring 417 Kanals, 9 Marlas. The claim of representatives of S.M. Iftikhar, the said decree-holder, is based on the sale-deeds dated 22.3.1976 and 14.6.1976. The said sale-deeds as per the averments contained in Writ Petition No. 49- R/92 filed by the petitioners were then challenged in the suit for cancellation by S.M. Iftikhar and on the basis of the parties' statements, the suit was decreed and the sale deed were cancelled by means of a decree dated 22.12.1990 passed by the learned Civil Judge. Lahore. Para 7 of the said writ petition refers. Moreover, these two sale deeds in favour of Sh. Muhammad Afzaal, Khalil .Ahmad and Manzoor Ahmad were executed by S.M. Iftikhar in his capacity as General Attorney. The General Power-of a attorney Deed has not been placed on record. S.M. Iftikhar, according to the averments contained in the present Constitutional petition, got executed a sale agreement in his favour from the allottees on 8.3.1972 and on the' basis of the said sale agreement, he had filed . a suit in the year ,1984 for specific performance and possession of that very land. Had he been the General Attorney of the original allottees assuming that they were the genuine allottees, he would not have obtained a sale agreement in his favour on .8th of March, 1972 and then would not have tiled a suit for possession through specific-performance of the said sale agreement. This conduct of S.M. :ftikhar negates the claim of Sh. Muhammad Afzaal and his sisters (petitioners Nos. 1, 2 and 3) that S.M. Iftikhar was the General Attorney of the said allottees and had sold the land in their favour. Likewise, no benefit can be obtained by Sh. Muhammad Afzaal and his sisters from the amended decree. The same is the position of Mujeeb Ahmad (petitioner No. 4) as the said decree was only in respect of S.M. Iftikhar. Am, therefore, of the considered view that in the afore-noted circumstances, the petitioners cannot claim any right on the basis of the sale-deeds dated 22.3.1976 and 14.6.1976 as those stood cancelled vide decree dated 24.11.1990. They cannot also have a benefit of amended decree dated 24.11.1990. Neither the sale-deed nor the decree dated 24.11.1990 or for that matter the decree dated 21.6.1989 are binding on the Settlement Authorities as they were not party to the said decrees. The learned Member, Board of Revenue/Chief Settlement Commissioner was right in observing that on the basis of the sale-deeds or the decree the petitioners cannot claim an allotment of alternate land and that too by moving an application on 14.6.1993 as the request of the petitioners for alternate allotment does not fall within the purview of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. I am also not satisfied with the bona fides of the petitioners as their whole efforts seem to grab the land ny maintaining these Iroceedings. The claim made in'this petition is without merit. No justification is also made out for interference in exercise of extraordinary Constitutional jurisdiction as the view which prevailed with the learned Member, Board of Revenue/Chief Settlement Commissioner is fully justified. This writ petition is, therefore, dismissed in limine."
6. Ch. Qadir Bakhsh, learned Senior ASC for the petitioners, raised the following contentions:-
(i) That the High Court erred in holding that the petitioners' predecessor-in-interest being a vendee was not entitled to the allotment of alternate land as the subsequent allotment of the land to other persons could not be made without issuing notice to the original allottees or their successors-in-interest;
(ii) That the claim of the predecessor-in-interest was found to be genuine and the petitioners being beneficiaries were entitled to the allotment of alternate land;
(iii) That the commitment made by the Settlement Department on the basis of which the petitioners withdrew the Writ Petition has not been fulfilled by the Department; ' (iv) That the observation made by the learned Single Judge that the bona fides of the claim are also-not above-board and is based on no evidence on record; and
(v) That the mere execution of general power-of-attorney in favour of a party though cancelled later on, does not deprive him of the right in his favour by virtue of agreement to sell.
7. Mr. Khaleeq Ahmad Ansari, learned ASC for the respondents/Settlement Department, opposing the petition argued that the petitioners after withdrawal of the Writ Petition filed an application before the Chief Settlement Commissioner seeking allotment of an alternate land, which was rightly; declined on the ground that on the date of repeal of Settlement Laws the case of the petitioners was not pending and, therefore, no land could be allotted to them by virtue of sub- section (3) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. He further argued that there is nothing on record to show that at the time of repeal there was any case pending and, as such, the Member, Board of Revenue was right in rejecting the application moved by the petitioners for the grant of alternate land being incompetent. He also argued that the order passed by the Member, Board of Revenue finds support from the judgment of this Court in Syed Saifullah versus Board of Revenue, Baluchistan through its Member (R 7) and 4 others (1991 SCM R 1255) and an unreported judgment passed in Civil Petition 281-L of 1997 titled Samand Khan versus Member, Board of Revenue/Chief Settlement Commissioner, Lahore decided on 22.11.1999. He further argued that no commitment whatsoever was made on behalf of the Notified Officer to grant alternate land to the petitioner. It was merely a report submitted by the Additional Deputy Commissioner (G)/DSC(Land)/Collector, Lahore who was respondent No. 2 in the Writ Petition No. 49-R/92 and not a Notified Officer.
8. Leave to appeal is granted to consider the above pleas of the learned counsel for the parties.