According to averments of petition, Petitioner No.1 being claimant displaced person was allotted agricultural land to the tune of 474 Kanals, 6 Marlas situated in village Sohawara Tehsil Shakargarh, District Sialkot at Khata No. 56 of Register RL-II. The same allotment was confirmed on 28-8-1964.
The detail of Khasra numbers is also given in para 1 of the petition. In consolidation of the village the said Khasra numbers were changed. Petitioner No.1 sold this land to Petitioners Nos.2 to 6 and mutation No.8, dated 24-6-1970 was also sanctioned regarding this sale. Respondent No.2 submitted an application under section 10/11 of the Displaced Persons Land Settlement Act, before Additional Settlement Commissioner (Lands) Sialkot, exercising powers of Chief Settlement Commissioner (Land) Sialkot, who vide order, dated 9-11-1973 while exercising powers under section 10/11 of the Lands Settlement Act, 1958 cancelled allotment from the name of Petitioner No.1.
Hence this Constitutional petition.
2. The learned counsel for petitioner has contended that order of Settlement Commissioner dated 9-11-1973 is without jurisdiction and is without lawful authority as the same has been passed without affording an opportunity of hearing to the parties concerned. Petitioners Nos.2 to 6 being bona fide purchasers were not given any opportunity and no notice was issued to them and only recorded statement of Petitioner No. l and the case was disposed of hurriedly by the Settlement Commissioner. He further contended that the land in dispute was allotted to Petitioner No. l on 28- 8-1964 and even if it is presumed that the land belonged to Forest Department even then the confirmation made in the name of petitioner is protected as held by Hon'ble Judges of Supreme Court in cases Province of Punjab v. Muhammad Mahmood Shah (1991 SCM R 1426). The Province of Punjab, through Collector, Bahawalpur v. Mst. Khudeeja Begum and another (1996 SCM R 1117) and Sh. Abdul Shakoor and others v. Settlement and Rehabilitation Commissioner (Lands) Lahore and others (1998 SCM R 1177).
3. Conversely the learned Additional Advocate-General, who has entered appearance on behalf of Forest Department has supported the impugned order and contended that being forest land it could not be transferred against verified claim of a displaced person. He, however, as far as non- issuance of notice to the petitioners, has submitted that as the original allotment was not in accordance with law, the subsequent allottees have got no right whatsoever to retain the same and the order passed by the learned Settlement Commissioner is legal and suffers from no jurisdictional defect
4. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate- General. In case Province of Punjab v. Muhammad Mahmood Shah (supra) while deciding eight different appeals filed by the Province of Punjab including Forest Department, their lordship of Hon'ble Supreme Court of Pakistan observed as under:-- "On 27-2-1,965, the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore addressed the following directive to the Deputy Commissioners, Sialkot, Gujranwala, "' Gujrat, Shahpur, Rawalpindi, Jhelum and Attock:-- "Subject: DISPOSAL OF EVACUEE LAND IN POSSESSION OF THE FOREST DEPARTMENT.
On the representation of Forest Department it has been decided by the Chief Settlement Commissioner that evacuee lands in possession of the Forest Department whether notified or un- notified should not be allotted against claims under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders."
Another decision was taken by the Chief Settlement Commissioner on 29-5-1965 as hereunder:-- "It was pointed out that some of the land with the Forest Department had already been allotted by the local officers to certain claimants. It was decided that such allotments should be revised by the Settlement Commissioner concerned under the relevant provisions of the Displaced Persons (Land Settlement) Act. A list of such areas' will be obtained from the Deputy Commissioner concerned so that individual cases could be taken for being revised."
"In all the appeals now under consideration except three (Civil Appeals Nos.307 of 1981, 155 of 1983 and 188 of 1988) the land had been allotted and confirmed against claims prior to 27-2-1965 when the Settlement Commissioner excluded such areas from allotment. In C.A. No.307 of 1981, the entitlement of the Displaced Persons to get the allotment was upheld on 25-7-1964 i.e. Prior to the directive, but the actual allotment pursuant to it was made on 6-11-1978 for various reasons, which are not relevant in the case. In Civil Appeal No.155 of 1983, the confirmation had taken place for the first time on 18-11-1968. In Civil Appeal No. 188 of 1988, the allotment to Mst. Khatoon Zohra was confirmed in 1971 and the vendees from her had approached the Civil Court.
"In view of our discussion above the allotments finalized before 27-2-1965 held good. Those made after were in violation of the prohibitory order of the Chief Settlement Commissioner and cannot, therefore, be sustained."
5. In the present case the allotment in favour of Petitioner No. l was confirmed on 28-8-1964, therefore, in view of dictum laid down in above said case, the allotment having been finalized before 27-2-1965 cannot be called in question before any Authority. Therefore, the contention raised by the learned Additional Advocate-General to the effect that the order of the Additional Commissioner was well within his jurisdiction has no force.
6. In view of above discussion and the authoritative pronouncement made by Hon'ble Supreme Court of Pakistan in the above noted cases, this writ petition is allowed. Resultantly, impugned order, dated 9-11-1973 is set aside and the same is declared to have been passed without lawful authority and of no legal consequence. No order as to costs.