' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Civil Appeals Nos.170 to 176 of 1999 and 1561 to 1566 of 1999 have been instituted by private parties whereas Civil Appeals Nos.177 to 184 of 1999 have been instituted by the Province of Punjab through Secretary, Government of Punjab/Member (Colonies)
Board of Revenue, Punjab, Lahore against the judgment of the Lahore High Court, dated 29th February, 1996, therefore, we intend to dispose of them by means of instant common judgment.
2. Leave to appeal was granted in C.As. Nos. 170 to 176, 185 of 1999 and C.As. Nos. 177 to 184 of 1999 to consider following questions:--
(1) Whether, Muhammad Waris and others, the respondents were entitled to maintain the writ petitions after dismissal of four earlier writ petitions i.e, Writ Petitions Nos. 238/R of 1989, 262/R of 1990, 94/R of 1991 and 91/R of 1992, filed by them seeking the same relief?
(2) Whether the allotment made by the Chief Settlement Commissioner in the year 1992 is valid.
And legal when no proceedings were pending in terms of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975?
(3) Could, in view of the notification of exchange as a result of which the land stood excluded from the compensation pool, any allotment be made?
(4) Could the High Court itself make order of allotment in exercise of its Constitutional jurisdiction?
(5) Could the impugned orders/judgments be sustained and are liable to be set aside as the same are contradictory for the reason that same land stands allotted to more than one set of allottees?
(6) What is the effect of judgment dated 18-6-1990 passed in Civil Revision No, 1062-D of 1987 etc. By a Division Bench of the High Court on the judgments impugned in these Petitions?"
' Pending hearing the petitions which have given rise to instant appeals some of the so-called transferees of the disputed land filed applications for their impleadment as party in C.P.L.A.
Nos.1725-L 1727-L, 1728-L and 1731-L of 1996 as according to their claim the impugned orders have also adversely effected to their rights, as such, they are necessary parties. However, in the leave granting order referred to above they were not allowed to become party but their Advocates were allowed to argue the case at the time of hearing of appeals, if the Bench hearing the appeals consider it necessary, just and proper because otherwise these applicants cannot be allowed to.
Intervene at this stage as they have yet to establish their right to receive transfer of the land in question being claimed by. Them under certain documents got issued by them in their favour.
' Subsequently said applicants instituted civil petitions for leave to appeal against the impugned orders which were allowed vide order, dated 9th December, 1999 and their cases are covered by Civil Appeals Nos.1561 to 1566 of 1999. Operative paras. From leave granting order reads thus:-- "3. It is first submitted by learned counsel for the petitioners, that by order:- ' "In our view, case for grant of leave is made out in these petitions to consider the effect of the judgment dated 27-1-1999 this Court has already granted leave in sixteen other petitions filed by other private petitioners and also by the Province of Punjab against the impugned common judgment dated 29-2-1996 of the Lahore High Court. According to the learned counsel, by the said order dated 27-1-1999, leave has been granted to consider six questions which includes the following Question No,6-- ' 'What is the effect of judgment dated 18-6-1990 passed in Civil Revision No, 1062-D of 1987 etc. By a Division Bench of the Court on the judgments impugned in these petitions.'
' It is submitted by the learned counsel, that the said judgment dated 18-6-1990 passed in Civil Revision No, 1062-D of 1987 and other connected petitions are in favour of the petitioners, and, in the circumstances, to protect petitioner's right present petitions have been filed.
4. In our view, case for grant of leave is made out in these petitions to consider the effect of the judgment dated 18-6-1999 passed in Civil Revision No, 1062-D of 1987 and other connected writ petitions by the High Court and what is the effect of the permanent transfer deeds in favour of the petitioner in respect of parts of lands affected by the impugned judgments of the Lahore High Court. Leave is granted accordingly. Appeals arising out of these petitions be heard alongwith connected 16 petitions."
' The appeals are barred by time but counsel appearing on behalf of appellants have also been heard on merits in the light of the observations in the granting order, dated 27th January, 1999.
4. As per chequered history of the case the land in dispute was initially evacuee land situated in the adjacent area of Municipal Committee Lyallpur (now Faisalabad). On 20th February, 1954 Collector of Lyallpur proposed to Provincial Government that the evacuee land be sold to the Municipal Committee, therefore, Central Government made an order on 3rd of January, 1958, permitting the exchange of 5235 acres of evacuee land with 7150 acres of State land. The exchanged evacuee land was mutated in the name of Provincial Government vide Mutation No, 5309, dated 4th January, 1963 and Mutation No, 8102, dated 12th December, 1968 resultantly evacuee land went out of compensation pool and attained status of State land. Out of exchanged land an area of 152 acres, 4 Kanals and 16 Marlas was transferred to Municipal Committee Lyallpur for establishment of New Municipal Market etc. It is to be noted that prior to formal exchange of evacuee land with the State Land Settlement Commissioner Department made temporary transfers/allotments in favour of some of the claimants but no final transfer took place in their favour.
5. As it has been pointed out hereinabove that instant appeals are divided into three categories, therefore, it is necessary to note brief facts of each appeal with discussion of law on the subject in view of points noted in leave granting orders filed by private persons vis-a-vis corresponding appeals filed by the Provincial Government challenging the same order.
6. In Civil Appeals Nos. 170 to 176 of 1999 except Appeal No, 174 of 1999 appellants are the successors-in-interest of Ali Muhammad deceased whereas appellant Boota in Appeal No, 174 of 1999 is the brother of late Ali Muhammad. They have filed appeals against different respondents challenging the impugned order, dated 29th February, 1996. They claimed that late Ali Muhammad and Boota migrated from District Ludihana and their Claim Form was duly verified by the Central Record Office in respect of agricultural property, which they have abandoned in India at the time of partition. On migration they settled in Chak No, 213/RB Tehsil and District Lyallpur (now Faisalabad) and obtained temporary allotment of agriculture evacuee property but during the lifetime of Ali Muhammad their claim was not adjusted for one or the other reason, therefore, they invoked writ jurisdiction of Lahore High Court by instituting writ petitions under Article 199 of the Constitution of Islamic Republic of Pakistan being Writ Petition No, 135-R of 1989, decided on 23rd October, 1989, Writ Petition No,240/R of 1989, decided on 11th November, 1990, Writ Petition No, 264/R of 1990, decided on 22nd January, 1991, Writ Petition No, 56-R of 1991 decided on 30th March, 1991, Writ Petition No, 96/R of 1991, decided on 16th December, 1991 and Writ Petition No, 93/R of 1992, decided on 15th July, 1992. Learned High Court while disposing of these writ petitions directed the Settlement Authorities for redressal of their grievances and ultimately they succeeded in getting orders in their favour on 20th December, 1992 passed by Chief Settlement Commissioner as per their verified Produce Index Units and urban agricultural property (exchanged land) was allotted in their favour but latter on Chief Settlement Commissioner vide order dated 24-12-1992 recalled the order passed in their favour. They preferred writ petitions in High Court which have been dismissed vide impugned order, as such they have filed these appeals. It may be noted that in all these matters appellants have attempted to get adjustment of their verified PIUs against different pieces of urban agricultural land in different parts of District Faisalabad. It is also to be noted that prior to order dated 20-12-1992 passed by Member Board of Revenue/Notified Authority claim of appellants had already been rejected by Assistant Commissioner (City) Faisalabad who was also acting as Notified Authority under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (hereinafter referred to as the "Act, 1975"). It would be appropriate to reproduce hereinbelow said order of the Notified Authority:-- "12. I have heard the arguments and perused the record. The petitioner has requested for the allotment of area in Chak No, 224/RB but his claim was received and verified in Chak No,213/RB and after scrutiny it has transpired that no claim of the petitioner has ever been received in their District. Moreover, it is also worth mentioning that the entire area applied for is included in the list of exchange State land and owned by Provincial Government. The petitioner had applied after the Settlement Act was repealed and there was no application of the petitioner pending. The petitioner is neither occupant of the area applied for nor is he temporary allottee of the same. So, he is not entitled to be allotted land. The case of the petitioner carries no weight and is accordingly dismissed."
7. As far as respondents in present appeals are concerned they also claim themselves to be refugees from India and their case is also similar to the case of appellants to the extent that they got verified claims from Central Record Office for the agricultural land and despite making best efforts during course whereof either they themselves or their predecessor-in-interest have filed legal proceedings before the Courts but their grievance have not been redressed as such ultimately Chief Settlement Commissioner vide order, dated 24th December, 1992 redressed their grievance by adjusting their PIUs against Urban Agriculture Land situated in different villages adjacent to Municipal Corporation Faisalabad. However, their cases will be discussed with more details hereinafter while discussing the appeals filed by the Government of Punjab being Civil Appeals Nos. 177 to 184 of 1999.
' At this stage we propose to take up Questions Nos.2 and 3 reproduced in the leave granting order.
In this context it is noteworthy that op 1st July, 1974 Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 was promulgated. Subsequently the Ordinance was made Act of the Parliament in 1975 in pursuance whereof section 2 was promulgated which repealed the laws/regulations pertaining to Evacuee Property and Displaced Persons. This provision also prescribed mode for disposal of pending cases on the repeal of evacuee laws. Section 2 of Repeal Act, 1975 is reproduced hereinbelow:-- "2. Repeal of certain laws.--(1) The following Acts and Regulations are hereby repealed, namely:--
(i) the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956);
(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956);
(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957);
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958);
(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);
(vi) the Scrutiny of Claims (Evacuee Property) Regulation, 1961; and
(vii) the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971.
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the Official Gazette and all cases decided by the Supreme Court or a High. Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an Officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related.'
8. It is important to note that as per section 3 of Act, 1975 mechanism was provided for transfer of all properties both urban and rural including agricultural land, other than such properties attached to charitable, religious or education trusts or institution, whether occupied or unoccupied which may be available for disposal immediately before repeal of Evacuee Laws and Regulations.
9. In view of section 2(2) of Act, 1975 it will be seen as to whether the cases of appellants were pending before the authorities on the appointed day i.e, 1st July, 1974? A perusal of pleadings filed by he appellants with memo. Of appeal suggest to hold that on the said date the cases of appellants were not pending before the authorities notified under section 2(2) of Act, 1975.
Admittedly they felt necessary much after the repeal of evacuee laws to agitate their grievances before the Courts as such they started filing writ petitions from the year 1989 to onwards. Learned counsel contended on behalf of the appellants that as they possessed verified produce index units against which agricultural property was not allotted on their name, therefore, the cases of the appellants would be deemed pending for disposal before the Settlement/Notified Authorities.
Reliance in this behalf was placed by them on the case of Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846).
10. On the other hand learned counsel appearing for official respondents argued that non- adjustment of PIUs by Settlement Department against rural or urban agricultural property will not fall within the definition of "Pending Proceedings" as it has been held in the case of Muhammad Ramzan v. Member (Rev.)CSS and others (1997 SCMR 1635).
11. Before dilating upon the respective contentions of both the parties it is important to examine, "whether after the repeal of evacuee laws/regulations evacuee agricultural land was available for transfer against unsatisfied produce index units possessed by the appellants". It is to be seen that in the above paras. While noting history of the instant case it has been mentioned that the available agricultural land situated in the adjacent area of Municipal Committee measuring 5235 acres was exchanged with 7150 acres of State Land vide Notification dated 3rd January. 1958 issued by the Government of Pakistan Ministry of Rehabilitation under section 24(2)(c) of the Pakistan (Administration of Evacuee Property) Act, 1957. The validity of above notification came under consideration before Lahore High Court in the case of Muhammad Yaqub and 13 others v.
Municipal Committee Lyalipur (PLD 1971 Lahore 664) wherein it was held that the sanction for the exchange of evacuee land was validly given, therefore, it is abundantly clear that the land is not lying in the evacuee compensation pool. This Notification of the Government of Pakistan Ministry of Rehabilitation has also been held to have been validly issued by this Court in the unreported judgment in the cases of (i) Province of Punjab through Collector Faisalabad v. Ghulam Muhammad son of Atta Muhammad (Civil Appeal No, 257 of 1988), (ii) Fazal Mehmood and others v. Province of Punjab through Collector Faisalabad and others (C.Ps. 807 and 808 of 1990) and (iii)
Additional Deputy Commissioner (G) v. Fazal Mehmood Khan and others (Civil Appeals Nos.143 and 1433 of 1992). Thus, in view of these judicial pronouncements it is manifest that after 31st January, 1958 evacuee agricultural land in respect whereof efforts are being made by private appellants and respondents for allotment in their favour had gone out of compensation pool and was not available for transfer to them against their unadjusted produce index units because now these lands exclusively vested in the Provincial Government of Punjab who had obtained the same in lieu of its land measuring 7150 acres given in exchange of evacuee agricultural land.
12. Besides it notwithstanding the above conclusion for sake of arguments if it is assumed that the evacuee agricultural (urban) land was available for transfer, even then the notified Authority and the Chief Settlement Commissioner had no jurisdiction to transfer the land to claimants against their unsatisfied PIUs in their possession because vide Notification No, 1697-731-R(L), dated 16th May, 1973 issued by Chief Settlement and Rehabilitation Commissioner Punjab had declared the evacuee properties as "building sites" for disposal under section 13 of the Displaced Persons (Land Settlement) Act, 1958. The contents of the notification thus reads:-- ' "In exercise of powers conferred upon me under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, I, Mr. M. Aslam Awais, C.S.P. Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one yet confirmed to any person against units or evacuee land which may become available in future in all the Revenue Estates situated within the Urban Limits of a Municipal Corporation, Municipal Committee, a Notified Area Committee, Town Area Committee, Small Town Committee, a Sanitary Committee, or Cantonment, throughout the Province of the Punjab, as building sites, for disposal under section 13 of the said Act."
13. The above notification was examined by this Court in the case of Bashir Ahmed and others v.
Punjab University Academic Staff Association and others (1991 SCMR 377) wherein it was held as under:-- ' "But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16-5-1973 declaring the urban lands within the Municipal Limits etc. As 'building sites' no allotment of such lands on the basis of the claimant's units, whether urban or rural, could be made."
' The above notification also remained the subject-matter in different reported cases before this Court and ultimately in the case of Muhammad Ramzan v. Member (Rev.)/CSS (ibid) it was held as follows:-- ' "the ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255 and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to issue notification for converting agricultural land into 'building sites and consequently Notification dated 16-5-1973 was valid.
Therefore, on the issuance of said notification every agricultural urban land which had not been adjusted, allotted or utilized till then against verified claimed ceases to be available for transfer."
' It is also to be noticed that in view of above observations of this Court in Muhammad Ramzan's case and also keeping in view the fact that on 3rd January, 1958 evacuee agricultural land (urban) the subject-matter of the proceedings has gone out of compensation pool then how the notified authority was competent to order allotment of this land in favour of appellants: This question has also been answered by this Court in Muhammad Ramzan's case with reference to Notification, dated 16th May, 1973 and it was held thus:-- ' "Therefore, we find no difficulty in observing that when repealing Act was promulgated there did not exist any agricultural urban land, which could be adjusted against unsatisfied verified claims of produce index units."
14. It may be noted that learned counsel for appellants have emphatically argued that as the unutilized PIUs are possessed by them, therefore, their cases shall be deemed pending for the purpose of section 2(2) of Act, 1975 particularly in view of directions of Lahore High Court given to Settlement Authorities from time to time i.e, 1989 to onwards to dispose of their cases. Now it is necessary to discuss the case-law relied upon by appellants. As per facts of the case of Nawab Din
(ibid) one Rehmatullah filed an application for allotment of land against his unsatisfied P.I. Units equal to the land left by him in India. His case remained pending before different authorities of Settlement Department where ultimately an adverse order was passed against him as such he preferred a writ petition before High Court which was allowed on 21-5-1975 declaring order of Settlement Authority without lawful Authority with further direction that application filed by the petitioner be disposed of in accordance with law. During pendency of writ petition Nawab Din appellant got allotted the same property from the Colony Officer under the Colonization of Government Lands Punjab Act, 1912. Simultaneously Act of 1975 was also promulgated on 1st July, 1974. Appellant Nawab Din on 1st December, 1975 filed an application before Chief Settlement Commissioner for sale of this land to him. However, his request was not acceded to by MBR/Chief Settlement Commissioner. Thereafter, he filed a writ petition praying for the transfer of the land by means of sale to him. The legal heirs of Rehmatullah whose application, dated 3rd October, 1965 was lying undisposed of also became party in the writ petition filed by Nawab Din before High Court. Learned High Court dismissed writ petition of Nawab Din on 13-12-1978 holding that according to Act XIV of 1975 only such land could be allotted to a person which had become "available for disposal" immediately before repeal of the laws mentioned therein. It was further held that as the application of Rehmatullah was still pending had not been adjudicated upon, therefore, the proceedings of that application were saved under section 2(2) of the Act with the result that the land in dispute was still sub judice on the relevant date and had not become available for disposal under the Act but had to be disposed of in accordance with the provisions of the relevant Act. As such against this order petition for leave to appeal was filed before this Court which was dismissed.
' In view of above background precise question for consideration before this Court was; as to whether petitioner has preferential right against Rehmatullah who was claimant displaced person.
After detailed discussion it was concluded as under:-- ' "Though the whole emphasis of the learned counsel was on earlier portion of subsection (2) of section 2 of Act XIV of 1975, which talked of and saved proceedings pending to be precise, before Settlement Officers under Land Settlement Act XLVII of 1958 on the relevant date of its repeal, but the later portion of that subsection dealt with cases (to be) decided by the Supreme Court and the High Court after the repeal of that Act namely Land Settlement Act, and laid down that those shall also be decided accordingly by the authority mentioned therein. The present was a case of later category, which had been remanded by High Court on 21-5-1975, and there was thus no bar in finalising its adjudication in terms of their order of remand. In that view of the matter the whole exercise by the learned counsel for the petitioner solely with reference to earlier portion of section 2(2) was not quite apt. However, our order shows that we have examined the case from whatever angle the proceedings after the remand order of the High Court do not suffer from any illegality whatsoever."
' Examining the case of appellants in view of the observations made hereinabove safely it can be held that prior to 1st July, 1974 when evacuee Laws/Regulations were repealed by the Act of 1975 the appellants never agitated their claims before any forum inasmuch as before invoking writ jurisdiction of High Court in year of 1989 they did not approach the notified authority under section 3(1) of Act, 1975 for transfer of the land which was temporarily allotted to them as per their assertion. It may be noted that under this provision of Repealing Act Punjab Provincial Government had framed scheme for the disposal of Urban as well as rural properties. It would mean that appellants were insisting for the transfer of evacuee agricultural (urban) land (which by the time has attained the status of a non-evacuee property) merely on the strength of verified unutilized/left over PIUs. Whereas unutilized PIUs in favour of appellants would not costitute a pending case under section 2(2) of Act, 1975 in view of the dictum laid down by this Court in Muhammad Ramzan's case (ibid) wherein it was held as follows:-- ' "The claimants with unsatisfied entitlement could resort to any other remedy available under the law, but were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure or otherwise."
' It is also important to note in above referred case this Court examined the jurisdiction of a Notified Officer to grant relief to a claimant and held thus:-- "Besides, it was mandatory condition for grant or allotment of land that proceedings must be pending, which could be dealt with and finalized by the 'Notified Officer' within the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters under consideration, claims of respondents had not been fully adjusted or lands allocated to them for being transferred in their favour was not available for one or the other reasons. Therefore, without much comments relying on the instructive observations in cases of Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCMR 732), Syed Saifullah v. Board of Revenue Balochistan and others (1991 SCMR 1255) and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others (1987 SCMR 1358) we are inclined to hold that on the promulgation of the 'Notification', dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover, the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units."
15. As it has been observed hereinabove that besides the above aspects of the case appellants request for transfer of the agricultural land (urban) situated within the Municipal area of Faisalabad had been rejected by the Notified Officer on 10-4-1991. Relevant para. Therefrom has been reproduced hereinabove. Assuming for sake of arguments that appellant had succeeded in establishing before the notified authorities that their case was pending for final decision at the time of promulgation of Act, 1975 but in view of the earlier order operating against them legitimately they had no right to re-argitate their case before another Notified Authority i.e, Chief Settlement Commissioner who passed order dated 20-12-1992 which was subsequently withdrawn on 24-12- 1992. Because review of an earlier order is only possible if such right has been conferred by the Statute i.e, Act, 1975 otherwise it is not possible by the same Authority, notwithstanding the fact that two different persons have been authorized to discharge the functions of Notified Authority under section 2(2) of Repeal Act of 1975. Reference in this behalf can be made to the cases of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1); Mazaffar Ali v.
Muhammad Shafi (PLD 1981 SC 94) and Muhammad Ramzan v. Member (Rev.)/CSS (1997 SCMR 1635).
16. Ch. Qadir Bakhsh, learned Advocate Supreme Court stated at the bar that order dated 10-4-1991 is not holding the field because against this order a Writ Petition No, 96-R of 1991 was filed and in said proceedings this order was set aside. Stand taken by him was controverted by the other side.
On having gone through the order of the High Court in writ petition referred to hereinabove which was disposed of on 16-12-1991 we are inclined to hold that learned counsel for appellants has made an incorrect statement because writ petition filed on behalf of the appellants was withdrawn resultantly the learned Lahore High Court did not set aside the order dated 10-4-1991.
17. Learned counsel for appellants vehemently argued that as number of writ petitions were filed on behalf of appellants which were disposed of by making directions to the Settlement Authorities to satisfy the claim of appellants, therefore, in view of such directions appellants' case can be deemed to be pending for the purposes of section 2(2) of Act, 1975. We are not persuaded from this arguments because learned Judge in Chambers of High Court in all the orders failed to examine the entitlement of the appellants to claim adjustment of their unutilized PIUs keeping in view the fact that the property, allotment whereof, they were claiming was not available as evacuee` agriculture land (urban) as it has gone out of the compensation pool as back as from 3rd January, 1958 and also for the reason that vide Notification, dated 16th May, 1973 all the evacuee agricultural lands had been validly declared "building sites" by the Chief Settlement Commissioner and also for another added reason that at the time when evacuee laws/regulations were repealed with effect from 1st July, 1974 the appellants' claim was not pending for decision before the Settlement Authorities. Above all it was not absolutely examined as to whether after repeal of evacuee laws/regulations appellants can agitate their claim for adjustment of verified PIUs particularly when there was no allotment in their favour in respect of the property transferred to them which they were claiming merely on the strength of arguments that about 40 years back some temporary allotment was made in their favour. Therefore, in such situation any directions made by the learned High Court to the Settlement Authorities to satisfy the claim of the appellants will have no legal impact because the functionaries of Settlement Department owe a duty to implement only those directions/orders of High Court which have been passed in accordance with, law and not otherwise and if the order/direction made in this behalf by the High Court lacks legal backing it will not confer a right upon a person in whose favour such order/direction is passed meaning thereby that only lawful orders are to be implemented. In forming this opinion we are fortified with the judgment reported in the case of Province of Punjab through Secretary Health Department v.
Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and Muhatnmad Ramzan v. Member (Rev)/CSS and others (1997 SCMR 1635).
18. Appeal No,185 of 1999 has been instituted by legal heirs of one Sardar Muhammad. The case as set up by them is that their predecessor-in-interest Mian Aziz Bakhsh got temporary allotment of evacuee agricultural land in Chak No,224/RB Tehsil and District Lyallpur (now Faisalabad) but allotment of land was not confirmed in his favour as such he was constrained to file Writ Petition No,630/R of 1965 for the redressal of his grievance. The petition so filed by him was disposed of on 10th June, 1970 in view of the statement made by Advocate-General, Punjab but despite that no relief was given to him and as in the meanwhile appellants stepped into the shoes of their predecessor and their claim was rejected vide order, dated 27th November, 1982 passed by Settlement Commissioner, therefore, this order was questioned by them by filing Writ Petition No,11- R of 1982, which was allowed on 15-12-1992 with the direction, that the area measuring/equivalent to 277 PIUs shall be confirmed in their favour out of the land which was initially allotted to them temporarily. As far as remaining area, which was in their possession in respect whereof, it was observed that they shall move an application to purchase the same. The Government of Punjab challenged the order of learned High Court before this Court by instituting C.P.L.A. No,773-L of 1993, which was dismissed on 17th May, 1994. Subsequently review petition against this Order being No,62-L of 1994 instituted by Government of Punjab was also dismissed on 21-5-1982. Later on appellants approached the settlement authorities for implementation Of order of the High Court dated 15-12-1982 and also submitted a separate application before Chief Settlement Commissioner for sale of the land found in their possession in excess to 277 PIUs. Surprisingly in the meanwhile Chief Settlement Commissioner confirmed the land, which was temporarily allotted to predecessor-in-interest of the appellants, in favour of Qadir Bakhsh on 20-12-1992. As such they were constrained to file Writ Petition No,72-R of 1995 towards March 18, V)95 against Respondent No,1 Qadir Bakhsh son of Peera. It is alleged on behalf of appellants that the petition filed by them was allowed in the open Court by learned Judge of Lahore High Court on 11-10-1995 but subsequently the case was re-fixed for hearing and finally fresh impugned order, dated 29th February, 1996 was passed wherein the names of respondents Nos.3 to 9 i.e, Mst. Ismatun Nisa and others (legal heirs of Abdul Rashid deceased) were also inserted and same agricultural land was given to them depriving the appellants from 33 Kanals, 16 Marlas out of their temporary allotment, as such instant appeal has been filed.
19. Learned counsel Mr. Muhammad Munir Peracha contended that case of appellant was pending case from the date when it was sent back in 1970 to Settlement Department for disposal and subsequently this Court as well declined to interfere in the order dated 15-12-1992 passed by the High Court because petition for leave to appeal as well as review petition filed by Government of Punjab were dismissed. Similarly learned. High Court vide impugned order had no jurisdiction to reduce the entitlement of appellants equal to 277 PIUs by accommodating the respondents suo motu.
20. Learned counsel for respondent No,1 contended that order dated 10-6-1970 was passed by High Court in Writ Petition No,630-R of 1965 in view of concession extended by AdVocate-General, Punjab, otherwise High Court itself has not given a decision in favour of appellants. Learned counsel further contended that the respondents' case was pending for disposal from 1962 to onwards and in the meanwhile High Court in Writ Petition No,453-R of 1966 directed the Settlement Authorities to ascertain the case of their predecessor-in-interest but the matter remained pending. Ultimately the same was partially finalized in their favour on 24-12-1992, therefore, during the pendency of Writ Petition No,72-R of 1995 filed by Qadir Bakhsh they appeared before the High Court and prayed that after adjusting appellants claim of 277 PIUs the left over property be allotted to them to satisfy their full claim. Thus, under these circumstances High Court had granted relief to them.
21. Learned counsel appearing for official respondents denied the claim of both the appellants as well as respondents in view of the fact that the property which has been transferred either to appellants or the respondents had gone out of compensation pool with effect from 3rd January, 1958 in view of exchange of evacuee agricultural land by the Government of Pakistan Ministry of Rehabilitation with the land owned by Provincial Government in different parts of District Lyallpur.
Secondly for the reason that after 16th May, 1973 all evacuee urban land was declared to be building site vide Notification No,1697-73/1567-R(L). Thirdly in view of the concession made by learned State Counsel during pendency of the petitions either filed by predecessor of the appellants or by the respondents would have no binding effect because such statement was not in accordance with law. Similarly any observations made by learned High Court on such assurance if is found to be contrary to law will be deemed to be coram non judice as such shall have no legal effect.
22. At this juncture we would also like to point out that Province of Punjab through Secretary to the Government of Punjab have also filed Civil Appeals Nos.177 to 184 of 1999 challenging the impugned orders passed by the High Court inter alia on the ground that learned Judge in Chambers of High Court erred in law by ignoring the facts that the land subject-matter of instant appeals was exchanged with the State Land vide Notification No,F.21 (6757)-P/2, dated 3rd January, 1958 under section 24(2)(c) of Pakistan Administration of Evacuee Property Act, 1957 and after exchange of the land the Provincial Government has been shown as the owner of the land vide mutation entries effected in the years 1963 and 1968 thus, the evacuee agricultural land went out of the compensation pool and became State land and was not available for allotment to the claimants under the evacuee laws. Therefore, in view of this stand of the Government we would like to dilate upon the case of the respondents in the appeals filed by. The Government.
23. Before determining whether the case of the appellants Sardar Shahid and others as well as the respondents in the appeals can be deemed to be a "pending case" or otherwise? We feel it necessary to point out that in Civil Appeals Nos.170, 176, 177, 181, 184 and 185 of 1999 respondents Mst.
Ismatun Nisa and others being the legal heirs of late Abdul Rashid are the beneficiaries of the land.
Their case as it was put up before the Chief Settlement Commissioner/Notified Authority was that Muhammad Amin son of Abdul Rehman their predecessor-in-interest got temporary allotment of evacuee agricultural land on migration to Pakistan in Chak No,220/RB Tehsil and District Lyallpur (Faisalabad). Subsequently the allotment was cancelled from their names but in appeal Additional Commissioner Revenue Sargodha restored the same in their favour on 3rd August, 1965 who remanded the case to Colony Assistant/Collector, Lyallpur. During pendency of proceedings the land in respect of which they obtained temporary allotment was exchanged by the Rehabilitation Department with the Provincial Government and against this development Muhammad Amin filed Writ Petition No,453-R of 1969 in the Lahore High Court of West Pakistan which was decided on 10- 6-1970 whereby the case was sent to the Settlement Commissioner in view of the statement of learned Advocate-General who appeared on behalf of official respondents but on remand no relief was given to them in view of the ban imposed by Chief Settlement and Rehabilitation Commissioner on the transfer of agricultural land vide Notification, dated 16th May, 1973, as such they again filed Writ Petition No,1010-R of 1973 which was decided on 23rd May, 1975 with the direction that order already passed in Writ Petition No,453-R of 1%9 should be complied with. As such ultimately on 24-124992 Chief Settlement Commissioner accepted their entitlement and instead of allotting agricultural land which was temporarily allotted to them in Chak No,220/RB alternate land was given to them in Chak No,224/RB as in former Chak no land was available.
24. In view of the respective stand of appellants Sardar Shahid as well as respondents Mst. Ismatun Nisa and others question for consideration would be whether their cases could be deemed "pending" on 1st July, 1974 when Evacuee Laws/Regulations were repealed? First of all cases of Sardar Shahid and Ismatun Nisa will be examined. In this behalf it is noteworthy that case of both the parties is based upon the observations made by the High Court in Writ Petitions Nos.630-R of 1965 and 453-R of 1969. It may be noted that besides these two Petitions, as per record so available there is yet another Writ Petition No,10 of 1966 filed by Abdul Rashid Khan and others against the Government of West Pakistan which was decided on 10th June, 1970. It seems that in all the three writ petitions although separate orders were passe.d but the substance of all the orders is identical.
It is noteworthy that copies of the judgments respectively passed by High Court in Writ Petitions Nos.630-R of 1965 and 453-R of 1969 on 10th June, 1970 have not been placed on record by both the parties. Although it is the requirement of Order XIII, Rule 3 of Pakistan Supreme Court Rules, 1980 that alongwith memo. Of petition Advocate-on-Record will file paper book of the High Court, if any, and other record duly attested by him because in absence of documents on which reliance is placed it becomes very difficult to decide the case justly and on account of the negligence of concerned A.O.R. Court feels lot of difficulty in arriving at just decision and in such situation possibility of causing injustice to any of the parties before the Court cannot be overruled. Similarly after grant of leave the appellants as well as respondents are required to file additional documents relevant for disposal of the case. Be that as it may, inference that in Writ Petition No,640-R of 1965 and Writ Petition No,453-R of 1969 learned High Court had substantially passed same order can be drawn from the pleadings as well as from the order, dated 10th June, 1970 passed in Writ Petition No,10 of 1966, copy of which is available in Civil Appeal No,182 of 1999. A careful consideration keeping in view the observations made by the High Court in earlier writ petition referred to hereinabove persuades us to hold that no binding decision was given by learned High Court declaring that appellants and respondents claims must be satisfied against the agricultural land which was temporarily allotted to them through their predecessors-in-interest. In our opinion learned Advocate General/Assistant Advocate-General had no proper instructions to make such a statement for the reason that the evacuee agricultural land in respect whereof temporary allotment was made in their favour was no more available in view of exchange of the land vide Notification dated 3-1-1958 with the land owned by the Provincial Government situated in different areas of District Lyallpur (Faisalabad).
25. As it has been pointed out while dealing with Civil Appeals Nos.170 to 176 of 1999 that exchange of the land has been declared validly by Lahore High Court as well as susbequently by this Court in the judgments referred to hereinabove. Therefore, in view of such situation statement by Advocate-General and observations recorded by leaned High Court on basis of the same has no binding effect in view of the observations of this Court in the case of Muhammad Ramzan (ibid) wherein it has been held as follows:-- ' "Thus, following the dictum in aforequoted cases and looking to glaring disregard of law and earlier decisions of this Court, we are inclined to hold that disposal of petition by Lahore High Court based on illegal and tainted concession of Settlement Department is devoid of lawful authority and subsequent direction for its implementation is equally coram non judice, as such has no binding effect."
26. Even otherwise if it is assumed for sake of arguments that in view of direction of the High Court contained in order dated 10-6-1970 and subsequently directions made by learned High Court while disposing of writ petitions filed by them their cases were pending for final disposal but still they cannot claim relief against the property which was temporarily allotted to them or alternative land which has been granted in their favour by Notified Authority/Chief Settlement Commissioner vide order operating in their favour because on 16th May, 1973 all the evacuee agricultural (urban) property situated in Province of Punjab has been declared "building sites" and said Notification has been held valid for all intents and purposes by this Court in judgments which have been referred to hereinabove while discussing this aspect of the case in C.As. Nos.170 to 176 of 1999.
' It is also to be noted that admittedly appellants as well as respondents never succeeded in getting evacuee agricultural land confirmed/satisfied in their favour in terms of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 till 1st July, 1974 when evacuee laws/regulations were repealed by Act, 1975, therefore, in view of the judgment in the case of Muhammad Ramzan (ibid) their cases cannot be deemed to be pending for the reason the PIUs possessed by them have not been adjusted. However, against unutilized Ms they can invoke some other remedy if available under the law i.e, by claiming compensation from the Government.
Relevant para. From case of Muhammad Ramzan is reproduced hereinbelow:-- "22. Adverting to provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, it will be seen that section 3 regulates transfer or disposal of property which may be 'available for disposal, immediately before the repealing Act. Besides, section 2(2) of the aforementioned enactment further controls and restricts the powers or jurisdiction exercisable by the 'Notified Officer' for regulating property or matters which may be 'pending' when evacuee laws were repealed. Evidently important feature for allotment of any land was subject to 'pendency of proceedings' and 'availability of land pertaining to specific classification. This pendency of proceedings is not co-related with failure of authorities to satisfy any verified claim of a displaced person/claimant. The distinction between pendency of units/claims and 'pending proceedings have been discussed in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing) Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others (1993 SCMR 732). It has also been specifically elucidated that neither nature of land could be converted, nor proceedings treated as pending even under direction of superior Courts if same tends to contravene existing law. The relevant observations are as under:-- "3. The learned counsel for the appellant has pointed out that proceedings pending in the case could be taken only to be those instituted on an application under sections 10 and 11 of the Act and not the satisfaction of the pending claim as such. The application under sections 10 and 11 of the Act having not succeeded at any stage had concluded. If the respondents had succeeded in those proceedings, their entitlement under the Law (Act XXXVI of 1974) could have extended to the resumed land to the extent of their claim pending for allotment and. If the resumed land had already been allotted to some other person, the allotment to the extent of such land will be effected by way of choice from the available land for allotment in the same Province. Failing these two alternatives, they were entitled to cash award of such amount as the Chief Settlement Commissioner may decide. An unsuccessful informer could not claim these rights under the law.
' The respondents/writ petitioners being unsuccessful in their application under sections 10 and 11 of the Act could not on the basis of either the repealing Law or Act XXXVI of 1974 seek benefit of allotment from an available land. It is only on their being successful in their application that they could claim adjustment against the resumed land or the other alternative available land. The pendency of the claim itself did not amount to pending proceedings. In congested 'districts, there was a ceiling on allotment and whatever units were left unsettled, beyond the selling, had to be taken out and settled in some other District. One could not keep the excess units in the District and then claim that it remained pending so far a settlement in that District was concerned.
' On examination of the facts of the case and the law laid down therein we find that none of them deals with the situation like the present one i.e, an informer being unsuccessful and yet succeeding in getting a direction from the High Court. Where the direction given by the High Court is manifestly against the law it cannot be allowed to remain "
27. It is also important to observe that Chief Settlement Commissioner/Notified Authority acted in sheer violation of section 2(3) or section 3 of Act, 1975 by passing orders in favour of respondents without thoroughly examining their cases particularly keeping in view the fact whether evacuee agricultural land being allotted to them is available or not.
28. In Writ Petition No,11-R of 1982, decided on 15-12-1992 filed by Sardar Shahid and others the High Court has observed that the area measuring equivalent to 277 PIUs shall be confirmed in their favour out of evacuee agricultural land which was temporarily allotted to their predecessor-in- interest and in respect of the exceeding area in their possession they will make an application to the Chief Settlement Commissioner to purchase it. In view of these observations it was concerned on their behalf that this order was maintained by this Court in C.P.L.A. No,773-L of 1993 filed by Government of Punjab on 17-5-1994 and subsequently Review Petition No,62-L of 1994 filed by the Government was also dismissed on 21-5-1995, therefore, they have made out a pending case under section 2(2) of Act, 1975 in their favour. His argument has been controverted by the learned counsel appearing for the Government as well as official respondents stating that after exchange of land between Rehabilitation Department and the Provincial Government of Punjab in respect of evacuee agricultural land no property was available for transfer to them, suffice it to observe that binding effect of the order of learned High Court in writ petition filed by appellant being Writ Petition No,11-R of 1982 would be the same as is of the directions/ observations made by the same Court, in Writ Petitions Nos.630-R of 1965, 10-R of 1966 and 453-R of 1969 discussed above.
29. So far, as order dated 17-5-1995 passed by this Court in C.P.L.A. No,777-L of 1993 is concerned its perusal indicates that in view of the statement of appellants that their 277 PIUs are still pending it was stated that their case would have been considered under the law. Thus, we are of opinion that the arguments so advanced in this behalf by appellants' counsel has no force because ultimately claim of the appellants has to be considered under the law and if law does not permit they would not be entitled to any relief.
' Similarly respondent Mst. Ismatun Nisa etc. Through their learned counsel have attempted to derive benefit from judgment of this Court in C.P. No,1403-L of 1996 and it is argued on their behalf that as in this judgment the order passed by learned High Court dated 29-2-1996 has been maintained, therefore, their cases call for no interference. It may be noted that respondent No, 1 Qadir Bakhsh succeeded in getting an order dated 22-12-1992 in his favour from the Chief Settlement Commissioner contrary to the observations of High Court in Writ Petition No,11-R of 1982 dated 15-12-992, as such thereafter they filed Writ Petition No,72-R of 1995 which was accepted to the extent of the case of Qadir Bakhsh but at the same time allotting some area of the land to respondent Mst. Ismatun Nisa and others despite the fact that they were not party before the Court.
Respondent Qadir Bakhsh challenged order dated 29-2-1996 by filing C.P.L.A. No,1403-L of 1996 in which appellant Sardar Shahid and Ismatun Nisa etc. Were made as respondents before this Court.
Leave to appeal was declined vide order dated 14-6-1996 with the observations that the impugned order sought to be set aside had not occasioned any injustice to petitioner Qadir Bakhsh, therefore, in such situation when no finding was recorded by this Court in favour of Ismatun Nisa etc. No benefit can be derived by them from it.
30. Now it would be considered whether learned Judge in Chambers of High Court had lawfuly granted relief to respondents Ismatun Nisa and others while disposing of appeal filed by Sardar Shahid knowing well that they are not party in the writ petitions filed by them. In this behalf without dilating in detail on this proposition it is sufficient to observe that in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan High Court does not enjoy suo moto jurisdiction to grant relief to a party as it has been held in Fazl-e-Haq, Accountant General, West Pakistan v. The State (PLD 1960 SC (Pak.) 295), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677), Akhtar Abbas and others v. Nayyar Ilussain (1982 SCMR 549) and Haji Muhammad Sadiq and others v. Khairati (1984 CLC 2239).
31. In C.As. Nos.171 of 1999, 175 of 1999 and 179 of 1999 Riazul Qamar and others are the respondents.
They are the legal heirs of Qamaruddin. Their case is also based on the observations made by Lahore High Court in Writ Petition No,10 of 1966 dated 10-6-1970. It is their version that after remand of said case by High Court they succeeded in getting an order in their favour on 5-10-1972 for the adjustment of 262 PIUs in Chak No,213-RB but this order was never implemented and in the meanwhile this property was taken over by the Planning Department of Government of Punjab as such they filed Criminal Original No,24-W of 1977 for initiating action of contempt of Court against Settlement Department for their failure to implement the orders of the High Court dated 10-6-1970.
But, their application was dismissed on 11-3-1977 and observations were made by the Court that they may move to the higher officers of the Department for redressal of their grievance. Thereafter they had been continuously approaching different authorities of the Department for getting some relief and ultimately the "Board of Revenue issued directives 1-6-1986 i.e, that they may be given evacuee rural agricultural land and not urban land situated within the Municipal Limits of Faisalabad if they are found eligible." As such in pursuance of, these directions land was transferred to them in Chak No,130/GB by the AC/DSC(L) vide order dated 4-6-1986. The order of A.C./DSC(L) was challenged by them in Writ Petition No,391-R of 1986 before High Court inter alia on the ground that if the land in respect of which they were entitled in pursuance of the order of the High Court dated 10-6-1972 and subsequent order of the Settlement Commissioner dated 5-10- 1972 then some alternate land may be given to them in Chak No,213/RB or in other nearer chak instead of transferring the land in their favour in Chak No,130/GB. The Writ so filed by them was disposed of because the respondent made statement, "that they will be given some alternate land, with the same situational advantages preferably in Chak No,213/RB and if not possible, then in some other Chak. In view of statement of the Department learned High Court disposed of writ petition on 17-6-1990 and as a consequence thereof order of Assistant Commissioner/DSC(L)
Faisalabad dated 4-6-1986 was set aside.
32. On remand of the case respondents approached AC/DSC(L) for transfer of the land in Chak No,220-RB. Before finally disposing of their request AC/DSC(L) approached the Board of Revenue Punjab pointing out that the only hurdle in the way of desired implementation of the High Court order was the direction of the Board dated 1-6-1986. It may be noted that it is not known whether Board of Revenue waived the condition that evacuee rural agricultural land situated in different areas of Faisalabad will be given to legal heirs of Qamaruddin or not but in the meanwhile D.C.
Faisalabad vide Letter No,106 dated 10-10-1991 directed the A.C./DSC(L) City Sub-Division that appropriate action in the matter may be taken in the light of the directives dated 1-6-1986 issued by Member Board of Revenue as well as according to the relevant judgment of the Lahore High Court. It seems that respondents were aggrieved from such directives as such they approached the Chief Settlement Commissioner/Board of Revenue Lahore for implementation of order of Lahore High Court in terms of section 2(3) of Act, 1975. The Chief Settlement Commissioner accepted their request and land details whereof are mentioned in order dated 12-9-1992 was transferred on their name.
' Against this order Province of Punjab preferred a review petition before the. Chief Settlement Commissioner who dismissed the same on 26-12-1992. It is also the case of the respondents that same Chief Settlement Commissioner confirmed the same land which was granted to them subsequently vide order dated 26-12-1992 in favour of legal heirs of Ali Muhammad. As such Riazul Qamar and others filed Writ Petition No,55-R of 1993 which has been allowed vide impugned order, dated 29th February, 1996.
33. After having gone through the relevant facts of the case as well we are of the opinion that the case of respondents cannot be considered to be a pending case for the reasons discussed hereinabove in the case of Sardar Shahid and others. Moreover, the order dated 12-9-1992 passed by Chief Settlement Commissioner in favour of respondents is patently illegal and coram non judice because learned High Court while allowing Writ Petition No,391-R of 1986 vide order dated 17- 6-1990 has set aside the order of Assistant Commissioner dated 4-6-1986. As far as directions/order of M.B.R. Dated 1-6-1986 is concerned it remained intact because it was not challenged, therefore, in view of such legal position the Deputy Commissioner rightly passed order dated 10-10-1991 to implement these directions but the Chief Settlement Commissioner/M.B.R. Who also enjoys the status of Notified Officer under section 2(2) of Act, 1975 had no authority to set aside the directives of his predecessor dated 1-6-1986 for want of power of review in view of the judgment of this Court reported in PLD 1970. SC 1 and PLD 1981 SC 94. In addition to it neither the Chief Settlement Commissioner nor learned High Court while granting relief to the respondents took into consideration as to whether the property being transferred to them was available in the compensation pool or it has gone out of it with effect from 3rd January, 1958 when Evacuee Agricultural Land including the one which was transferred to the respondent has been exchanged with the State Land. We failed to understand as to how Chief Settlement Commissioner/M.B.R.
Assumed jurisdiction by over stepping order dated 1-6-1986 passed by predecessor-in-office of the incumbent Chief Settlement Commissioner/M.B.R. In fact whenever such orders are passed by an officer without caring whether jurisdiction vest in him or not it prima facie reflects on his conduct as well as competency. It is also to be noted that whenever authority is exercised in such a manner then no other inference can be drawn except that the functionary had transgressed his jurisdiction for the consideration other than judicial one and the Courts ceased with such order may recommend any action against the said officer because now by the time it is well-settled that neither the executive authorities nor judicial forums will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their functions in accordance with law which has bestowed authority upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view norms of justice. Thus, we are of the opinion that Chief Settlement Commissioner/M.B.R. Passed order dated 12-9-1992 in favour of respondents Riazul Qamar and others which was impliedly superseded vide order dated 20-12-1992 when the same property was granted to respondent Mst. Amina Begum and others (legal heirs of Ali Muhammad deceased) without lawful authority and jurisdiction. Similarly last mentioned order dated 20-12- 1992 was also an illegal order as in detail it has been discussed while considering the appeals of legal heirs of late Ali Muhammad being Appeals Nos.170 to 176 of 1999. Unfortunately learned High Court also without attending this aspect of the case granted relief to respondents Riazul Qamar and others in Writ Petition No,55-R of 1993. Thus, the impugned order of the High Court is also not sustainable.
34. In Civil Appeals Nos.172 of 1999, 173 of 1999, 174 of 1999, 178 of 1999, 180 of 1999 and 182 of 1999 Muhammad Sadiq, Mst. Bashiran and Mst. Naziran are respondens. Their case is that Ghulam Muhammad their predecessor-in-interest on his migration from India to Pakistan temporarily got allotted evacuee agricultural land in Chak No,220/RB Tehsil and District Lyalipur (now Faisalabad) which was confirmed on his name on 21-12-1956. On verification of his claim he was held entitled for 807 PIUs vide UR No,1134/926 issued on 1-12-1962 his claim was entered in RL-II, Khata No,54 in Chak No,122/JB. The Rehabilitation Authorities did not transfer the land which was temporarily allotted to him because said village had fallen into an urban area after exchange bf evacuee agricultural land with State Land on 3rd January, 1958, as such he invoked jurisdiction of High Court by filing writ petition but without any success. Ultimately on 15th July, 1992 the respondents being legal heirs of Ghulam Muhammad filed application for allotment of land in their favour inter alia on the ground that the High Court in Writ Petition No:169-R of 1990 directed the Settlement Authorities to dispose of the case of the respondents in the light of the observations of Lahroe High Court in Writ Petition No,10-R of 1966 (Abdul Rashid v. Government of Pakistan). It is their case that after great deal of efforts they have' been able to found out some evacuee land in Chak No,224/RB for satisfaction of their PIUs, therefore, they prayed for transfer of the same in their favour. Accordingly keeping in view the statement of Assistant Advocate-General in Writ Petition No,10-R of 1966 which has been discussed in detailed hereinabove vide order dated 21-12-1992 the land situated in Chak No,224-RB was allotted to them. The Government challenged this order before High Court by filing Writ Petition 97-R of 1994. However, vide impugned order dated 29-2-1996 appellant's writ petition was dismissed being not maintainable on the ground of laches and locus standi of successor Member of Board of Revenue to file writ petition. A careful consideration of the case of both the parties persuades us to form opinion that it requires no detailed discussion in view of our earlier conclusion namely that with effect from 3rd January, 1958 evacuee agricultural land including the land which had been transferred in the name of the respondents was not available as evacuee agricultural land including the land which had been allotted in the name of the respondent was not available as vide Notification, dated 1rd January, 1958 it was exchanged with the land owned by the Provincial Government and the disputed land was taken out of compensation pool, therefore, on account of change of its status it cannot be treated as evacuee land and also for the reason that on 16th May, 1973 all evacuee agricultural lands (urban) were declared as "building sites" and were not available for transfer against PIUs. Besides the case of respondents was not pending on 1st July, 1974 when evacuee laws/regulations were repealed. Above all the observations made by the High Court in Writ No,10-R of 1966 decided on 10-6-1970 cannot be construed to be an order in favour of respondent because this petition was disposed of in view of the statement of Assistant Advocate-General who assured the Court for disposal of the claim of respondents in accordance with law. Thus, we are of the opinion that Member Board of Revenue without taking into consideration all these aspects of the case has illegally passed the order in their favour. It is to be noted that in the impugned order it has not been elaborated that how the petition is barred by laches without dilating upon merits of the case to ascertain as to whether the order is sustainable in the eye of law or being a void order was liable to be just ignored. Nothing has been mentioned as to why a Member Board of Revenue was not competent to file writ petition. In this behalf it is to be noted that on 21-121992 order was passed by Chief Settlement Commissioner Punjab in purported exercise of jurisdiction of Notified Officer under section 2(2) of Act of 1975 whereas the writ petition was filed by Member being custodian of the State Land on behalf of the Provincial Government because after 3rd January, 1958 the evacuee agricultural land subject-matter of the proceedings was no more evacuee land as it has fallen within the exclusive ownership of Member Board of Revenue Punjab.
35. In Civil Appeals Nos.177 and 183 Muhammad Waris and others are the respondents. Facts of these cases are that Respondents filed Writ Petition No,15-R of 1993 against Chief Settlement Commissioner and Mst. Ismatun Nisa and others against order, dated 24-12-1992 in pursuance whereof a portion of the agricultural land was confirmed in their favour by the Chief Settlement.
Commissioner vide order, dated 22-12-1992 which was reconfirmed in favour of Mst, Ismatun Nisa and others. Whereas in latter appeal Writ Petition No,180-R of 1994 was filed by the appellant to challenge the order of Chief Settlement Commissioner dated 20-12-1992. Learned Single Judge in Chambers of High Court allowed Writ Petition No,15-R of 1993 on 13-11-1995 whereas writ petition filed by the appellant was dismissed being not maintainable as it was found suffering from laches by 18 months. Precisely stating case in favour of the respondent has been built up by learned High Court as during pendency of the petition on 5th June, 1995 statement of Muhammad Waris to justify his claim for maintaining the allotment of the land granted to him and other by the Board of Revenue vide order, dated 20-12-1992 was recorded. Although he himself was aggrieved from order, dated 24-12-1992 in pursuance whereof an area admeasuring 7 Kanals was transferred to Mst. Ismatun Nisa and others but in his statement in the Court he stated that he has relinquished this area in favour of Ismatun Nisa and others. Similarly statement of another person Muhammad Hussain son of Sher Muhammad was recorded who confirmed that he is "Karinda" of Muhammad Waris and is not in possession of land in his own right or on behalf of anybody else. It may be noted that statements of these person were neither recorded on oath nor they were subjected to cross- examination. Thereafter, learned Court concluded that as possession of the respondents on the allotted land is proved, therefore, order of the Chief Settlement Commissioner dated 20-12-1992 is upheld. It is important to note that in the writ petition filed by respondents no request was made to the High Court to ensure implementation of order passed by Chief Settlement Commissioner/Notified Officer dated 20-12-1992 but the learned Judge at his own directed that the Revenue Officer is bound to implement the order of the Chief Settlement Commissioner. To strengthen such observations reference of another Writ Petition No,198-R of 1993 disposed of by another Judge Mr. Justice S.A. Manan (as he then was) was made.
36. After having gone through the impugned order we are of the opinion that the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan did not dispose of the matter purely considering it to be a judicial case. At this juncture we would like to observe that when respondent agreed to relinquish a portion of the property which was given to Mst. Ismatun Nisa and others by Chief Settlement Commissioner/Notified Officer vide order dated 20-12-1992 then the learned Court should have dismissed the petition being without any cause of action.
' Be that as it may the case of the respondents even otherwise cannot be considered better case than the cases discussed hereinabove because as per their own averments recorded by them in the application dated 10-7-1995 as well as before the Chief Settlement Commissioner/Notified Officer was that they are successors-in-interest of Ghulam Muhammad son of Nathu who filed Writ Petitions No,100-R of 1989, decided on 4-11-1989, Writ Petition No,238-R of 1989, decided on 11-11-1990, Writ Petition No,262-R of 1990 decided on 22-1-1991, Writ Petition No,94-R.1991, decided on 16-12-1991 and Writ Petition No,91-P of 1992, decided on 15-7-1992 with the prayer for allotment of the land but without any success. It is to be noted that till filing of Writ Petition No,100-R of 1989 no claim of respondents was verified. It was for the first time that vide Letter No,87/TR, dated 26-3-1991 allegedly Central Record Office verified their claim equal to 666 PIUs as such ultimately vide application dated 10-7-1995 the respondents made a request for allotment of land contending that their claim is pending because PIUs in their favour possessed by them have not been adjusted. The Member Board of Revenue placing reliance on a judgment reported in 1986 SCMR 1927 granted relief to them vide order, dated 20-12-1992. It may be noted that the judgment referred to in the order was not relevant at all. The main question for consideration before the Chief Settlement Commissioner/Notified Authority should have been whether the case of respondent can be considered a pending case in view of the fact that for the first time the claim of their predecessor- in-interest was verified on 26-3-1991 vide Letter No,87/TR. The answer to this query would necessarily be in negative. Besides it the land, which had been allowed to him, was not evacuee agricultural land as it has gone out of the compensation pool and it was not available for transfer in view of the discussion made hereinabove while discussing the case of the respondents in other appeals. It is also noteworthy that High Court has illegally non-suited, appellant Province of Punjab by passing order, dated 29-2-1999 without taking into consideration that respondents despite filing of petitions failed to get relief but all of a sudden Member Board of Revenue treated their case as pending and passed a void order just to accommodate them against the property which has now become part of Municipal Committee Faisalabad. Inasmuch as learned Judge in Chambers of High Court did not bother to take into consideration that against a void order passed by Chief Settlement Commissioner purportedly exercising jurisdiction of a Notified Authority on 24-12-1992 no period of limitation will run. Therefore, for such reasons we are of the opinion that the order passed by learned High Court as well as order of Chief Settlement Commissioner dated 20-12-1992 and 24-12-1992 are not sustainable in law.
37. Learned Advocates appearing on behalf of intervenors contended that majority of them are in possession of Permanent Transfer Deeds issued to them by the Settlement Authorities but the property transferred to them was exchanged by Rehabilitation Department with Government of Punjab as a result whereof the latter had earmarked the same to different organizations including the Government Cooperative Housing Society etc. Therefore, they were dispossessed forcibly.
Learned counsel Mian Fazal Mehmood further contended that the intervenors are not against transfer/allotment which has been made in favour of other claimants i.e, private appellants and respondents but their case is that as they were lawful transferees of evacuee land, therefore, if the land allotted to them cannot be granted because it has gone out of compensation pool then at least they may be adjusted against any other evacuee agricultural land.
38. Learned counsel appearing for Chief Settlement Commissioner contradicted the stand taken by applicants' counsel. However, after hearing learned counsel for intervenors we are of the opinion that in the instant cases no relief can be given to them firstly for the reasons that the agricultural land in respect whereof transfer deeds were issued by Settlement Authorities in their favour had gone out of the compensation pool; secondly vide notification, dated 16th May, 1973 the evacuee agricultural land has been declared as building site, therefore, their claims cannot be satisfied.
Thirdly and most importantly they have yet to establish their entitlement on the PTDs if issued to them.
39. At this stage it will not be out of context to note that some of the appellants instituted civil litigation challenging validity of exchange of 5235 acres of evacuee agricultural (Urban) Land situated around City of Faisalabad with the land of Provincial Government measuring 7150 acres situated at different places in District Faisalabad. Those proceedings finally came for hearing before Lahore High Court in Civil Revision No,1062-D of 1987 and 7 other Revision petitions. Likewise at that time some, of the intervenors invoked writ jurisdiction of the High Court challenging the validity of exchange of land by instituting Writ Petitions No,204-R of 1989 and 6 others identical petitions. Similarly Writ Petitions Nos.2-R of 1989 and 17 other identical writ petitions were filed before the High Court. Latter bunch of petitions was decided on 20-6-1990 whereas the former was decided on 18-6-2000. In both these orders cases were not disposed of on merits because the learned counsel appearing on their behalf decided not to press the cases in view of Memorandum No,1552-85/1957-CIV, dated 17th October, 1985 issued by Board of Revenue Punjab and Notification No,186-88/1316- CIV, dated 12th June, 1988 issued by Government of Punjab Colonies Department etc. Therefore, we are of the opinion that if the intervenors desire they can avail the remedy in view of the observation made by learned High Court in the above noted judgments. As such, in the instant matter no relief can be given to them, therefore, arguments raised on their behalf are accordingly repelled.
40. Now coming to Appeals Nos.1561 to 1566 of 1999 it is to be noted that these appeals are hopelessly barred by time and no explanation has been given seeking condonation of delay.
Learned counsel for the appellants contended that a Division Bench of this Court in the case of Province of Punjab v. Muhammad Tayyab and others (1989 SCMR 1621) condoned the delay in filing of the petition on the consideration that the point raised and involved in the petitions were identical with the appeals which have already been admitted.
' On the other hand learned counsel for Chief Settlement Commissioner opposed the arguments so raised in this behalf and pointed out that a Bench of this Court comprising of 5 Hon'ble Judges has not accepted this principle in the case of Muhammad Hussain and others v. Muhammad and others (2000 SCMR 367) wherein it has been held that delay for such reason alone cannot be condoned.
We have attended to this aspect of the case and have also gone through the judgment cited at the bar by both the learned counsel for parties. Because limitation creates a right in favour of one of the parties, therefore, delay in filing of proceedings cannot be condoned lightly unless it is shown that there are sufficient reasons to do so or the impugned order is coram non judice or is a void order for any strong legal reason delay cannot be condoned.
' Thus, we are persuaded to adopt the ratio in the case of Province of Punjab (ibid), therefore, no indulgence is warranted to, condone the delay.
41. In view of the aforesaid discussion we are persuaded to hold that the cases of the private parties are not covered by the expression "pending proceedings" in terms of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, therefore, they have no legitimate cause for transfer of the agricultural land situated around Faisalabad. Moreover, no land was available for transfer being evacuee agricultural land in view of the Notifications, dated 3rd January, 1958 and 16th May, 1973 issued by the Chief Settlement Commissioner respectively. The Chief Settlement Commissioner/Notified Authority had no jurisdiction/lawful authority to make the allotments in favour of private parties treating their cases to be pending. Similarly respondent Muhammad Waris and other whose case was discussed at length was not entitled for transfer of the property in his favour because admittedly their claim was allegedly verified on 26th January, 1991 much after repeal of evacuee laws/regulations by Act of 1975. As far as intervenors are concerned they may approach the concerned department in view of the observations of the High Court in Civil Revision No,1062-D of 1987, decided on 18-6-1990 and Writ Petitions Nos.2-R of 1989 and others decided on 20th June, 1990 for redressal of their grievance.
' As a result of above conclusion Civil Appeals Nos.170 to 176, 185 and 1561 to 1566 of 1999 are dismissed with costs. Whereas Civil Appeals Nos.177 to 184 of 1999 are allowed with costs, as a consequence whereof the impugned orders operating against the appellants passed by High Court and Chief Settlement Commissioner/Notified Authority are declared as of no legal effect.
…and 16 more citing cases