' By order, dated 19-10-1991 the Member (Revenue), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore while deciding a Mukhbari application, filed by Khan Bahadar, respondent No,3 has ordered the cancellation of allotment of the petitioner which has been assailed through this petition under Article 199 of the Constitution.
2. The petitioners are the legal heirs of late Ahmad Jamalullah. It was the case of Ahmad Jamalullah that he was claimant/displaced person from Hyderabad Dakkan who had submitted his claim arid was issued entitlement certificate for 29971 units (4616 units for garden and 3257 units for well-irrigated land) and the rest of the units were for rural land. He had obtained some allotment in Rahim Yar Khan and Bahawalpur. The disputed property, subject-matter of the present petition covers 164 Kanals, 17 Marlas garden situated in village Bindra, Tehsil and District Bahawalpur. This garden/land was allotted to Ahmad Jamalullah on 2-6-1956. It finds mention in memo. Dated 27-5-1963 from the Chairman Garden Allotment Committee, Bahawalpur to the Chief Settlement and Rehabilitation Commissioner, Lahore. One Hafiz Mohkam-ud-Din, filed an application under sections 10 and 11 of the Displaced Persons (Land) Settlement Act, 1958 against the said allotment on which proceedings were initiated by the Settlement Authorities. Those proceedings were challenged by Ahmad Jamalullah through Writ Petition No,227/R of 1973 which petition was accepted by a learned Single Judge of this Court by taking the view that:- "It is thus, clear that having failed to deprive the petitioners of the property in question in the normal course, respondent No,1 has resorted to the provisions of sections 10 and 11 of the Land Settlement Act. It has been held in Mirza Khan and others v. Additional Settlement Commissioner PLD 1973 Note 5 at p.14 that adjudication of the merits of a case under sections 10 and 11 of the Act which have already been adjudicated upon by the Settlement Authorities is barred by the principles of res judicata.
' Further, the learned counsel appearing for the Settlement Department is unable to show what fraud or misrepresentation the petitioners have committed to warrant initiation of proceedings against them. The powers under sections 10 and 11 are to be used very sparingly and only in case where the Settlement Authorities are satisfied after examination of record that they have been defrauded, it is highly improper to reopen a case under those provisions merely in the hope of detecting a fraud in the course of the proceedings.
4. For the reasons given above I am satisfied that the proceedings now pending against the petitioners under sections 10 and 11 of the Land Settlement Act in the Court of respondent No,2 are without lawful authority which are accordingly declared as such and quashed. The parties may, however, bear their own costs."
' It appears that Khan Bahadar, respondent No,3 had submitted an application before Deputy Commissioner with the powers of Additional Settlement Commissioner (Land) on 14-2-1974 under sections 10 and 11 of the Displaced Persons (Land) Settlement Act, 1958 qua the allotment of Mst.
Rahimunisa Begum, wife of late Ahmad Jamalullah which petition was accepted by the Additional Commissioner (General)/ Additional .Settlement and Rehabilitation Commissioner (Land), Bahawalpur on 15-3-1977. He purported to cancel the allotment of Ahmad Jamalullah as well. That order was challenged through Writ Petition No,48/R of 1977 and'the petition was disposed of as a result of consent arrangement between the parties that the matter be remanded to the Chief Settlement Commissioner/ Board of Revenue, Punjab for redeciding the case after allowing reasonable opportunity to the parties who will be at liberty to raise all contentions open to them under the law. It is in pursuance thereof that the impugned order has been passed.
3. It is contended by the learned counsel for the petitioners that Mukhbari application had been filed against Mst. Rahimunisa Begum only and not against Ahmad Jamalullah, therefore, no proceedings were pending at the time of repeal of the Settlement Laws, against him, thus, respondent No,1 has acted without jurisdiction in ordering the cancellation of the allotment of Syed Ahmad Jamalullah. The learned counsel further contends that the allotment was valid; there was no fraud and misrepresentation committed by the allottee and that even the principle of res judicata was attracted to the case. Reliance is placed on Iftikhar Hussain v. Mian Irshad Ali and others 1987 SCM R 2059 that the allotment was valid in law.
4. Learned counsel for respondent No,3 contends that despite the findings by the learned Chief Settlement Commissioner that no Mukhbari application had been filed against Ahmad Jamalullah before 1-7-1974 i,e, the repeal of the laws, he was still competent to reopen and examine the validity of the allotment. Reliance is placed on Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691.
5. It has been observed by respondent No,1 that Mukhbari application contained several interpolations and overwritings which was directed "only against Mst. Rahimunsia to start with and the name of Dr. Ahmad Jamalullah was added subsequently at some unspecified date:. Thus, he recorded his conclusion that "the proceedings against Dr. Ahmed Jamalullah would, therefore, not be covered by section 2(2) (ibid)". But despite that, he proceeded to cancel the allotment of not only Mst. Rahimunisa but also of Dr. Ahmed Jamalullah. Having recorded a finding that no Mukhbari application had been filed or was pending against Ahmed Jamaullah before the repeal of the laws, the question arises could the allotment of Dr. Ahmed Jamalullah be cancelled. In Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCM R 1719, it was observed that "any petition or representation, filed by the petitioners with regard to the matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by the Chief Settlement Commissioner or notified officer or any other Settlement Authority by virtue of "the Repealing Act". Therefore, proceedings drawn by the Settlement Commissioner which culminated in passing of order dated 26-2-1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground". In Syed Istijab Hasan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore 1999 YLR 1627, it was observed that since no proceedings were pending against the petitioners' allotment at the time of the repeal of Settlement Laws, the Settlement Authority acted without lawful authority in taking proceedings on a Mukhbari application, filed after the repeal of the laws. In Jamal-ud-Din v. Member, Board of Revenue and 4 others 2001 CLC 81, the view taken by this Court was that a matter of transfer of evacuee property which had assumed finality before the coming into force of repealing law i,e, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could not be reopened after the repeal of Settlement Laws. The judgment of this Court in Jamal-udDin's case (supra) was upheld by the Honourable Supreme Court in Civil Petition No,2546/L of 2000. There is thus, no obscurity as to the legal position that obstains on the subject. The reliance of the learned counsel for the respondent on Muhammad Baran's case (supra) is not apt in the facts and circumstances of the present case inasmuch as it was opted in that case that Fayyaz-ud-Din, the claimant-allottee had in the year, 1973 made an application for payment of cash compensation for his unutilized units which matter was still pending on 1-7-1974 when Act XIV of 1975 came into force. In the present case, no proceedings whatsoever of any nature were pending against Ahmad Jamalullah on 1-7-1974. There was thus, no jurisdiction with respondent No,1 to have cancelled his allotment. The order cannot be supported even on the ground that the same was passed by respondent No,1 in exercise of some suo motu power; firstly, proceedings had been commenced on an application filed by respondent No,3 and; secondly, even the tenor of the order would not show that respondent No,1 exercised any suo motu power. In Muhammad Irshad and others v. Chairman, Evacuee Trust Board and others 2001 SCM R 704, it was observed that whenever suo motu power was intended to be exercised express mention of the same is to be made in the order itself. Respondent No,1 in the present case, did not make any mention in the order that he was proceeding in the matter against Ahmed Jamalullah in exercise of any purported suo motu jurisdiction. Respondent No,1 thus, acted without jurisdiction and lawful authority in proceeding against Ahmad Jamalullah and cancelling his allotment.
' For the reasons stated above, this petition is accordingly accepted. No order as to costs.