QAZI MUHAMMAD FAROOQ, J.---By this common judgment we intend to dispose of the above mentioned seven appeals, by leave of the Court, as the same have arisen from a consolidated judgment dated 18-9-2000 of a learned Single Judge of the Lahore High Court dismissing seven applications under section 12(2), C.P.C. And involve identical question of law.
2. The applications dismissed through the impugned judgment were filed by the Member, Board of Revenue (S and R Wing)/Chief Settlement Commissioner, Punjab, during the second round of litigation between the parties, to challenge the validity of the judgments passed in Writ Petitions Nos.-52-R of 1984, 28-R of 1987, 409-R of 1986, 410-R of 1986, 91-R of 1988, 142-R of 1998 and 116-R of 1998 in respect of certain evacuee land. During the first round, petitions for leave to appeal filed by the appellant against the said judgments were disposed of with the observations that the petitioners may, if so advised, approach the High Court, in the first instance, for redressal of their grievance through appropriate proceedings.
3. Civil Appeal No,1834 of 2001 relates to judgment dated 4-12-1991 passed in Writ Petition No,52-R of 1984, wherein it was submitted by respondents Nos.1 to 5 that Claim Form No,189 was filed by the predecessor-in-interest of respondents Nos.1 to 4 which was verified by the Central Record Office for District Rawalpindi and Claim No,190 filed by respondent No,5 was verified in the same terms.
Both the claimants had shifted to Lahore and had moved applications for transfer of their claims from Rawalpindi to Lahore but the claim forms were not found in Deputy Commissioner's Office Lahore. Consequently, they again made attempts to get allotment in Rawalpindi but in vain as the claim forms were misplaced by the Local District Authorities or were lost somewhere in transit. It was further submitted that the case for preparation of duplicate entitlement certificates remained pending with the Settlement Department and ultimately on 'are report_ prepared by the Officer on Special Duty, Central Record Officer, Lahore entitlement certificates were issued on 19-7-1976. It was also submitted that the respondents had moved several applications and the last application for allotment was made in the year 1983 which was dismissed on 23-10-1983 on the ground that the Federal Government had banned the allotment and laws on the subject were repealed with effect from July, 1974.
4. Civil Appeal No, 1835 of 2001 pertains to judgment dated 4-12-1991 rendered in Writ Petition No,28- R of 1986 which was filed by respondents Nos.1 and 2 and father of respondents Nos.3 and 4 with the allegations that their claim initially was verified to the extent of 2283 Produce Index Units but was subsequently revised and the Produce Index Units were increased to 5235. It was further submitted that out of the verified claim aliment had been made to the extent of 1140 Produce Index Units and the remaining units were pending settlement in Tehsil Sheikhupura in spite of several applications made from time to time. The last application was dismissed on 16-1-1984.
5. Civil Appeal No, 1836 of 2001 is traceable to Writ Petition No,409-R of 1986 wherein the case set up by respondent No,1 was to the effect that he alongwith his brothers had filed a joint claim which was not properly verified as a result of which Writ Petition No,819-R of 1967 was filed which was decided on 9-11-1967 with direction to the Claims Commissioner to re-construct the record on the basis of duplicate papers and decide the case in accordance with law. The case was accordingly decided on. 19-5-1979 but the entitlement certificate was not issued and Writ Petition No,48-R of 1982 filed in respect thereof was dismissed on 20-3-1983 but the I.C.A. Was allowed on 18-12-1984 and the Settlement Authorities were directed to issue the entitlement certificate within three months but it was issued after two years. However, allotment against the same was disallowed on account of repeal of Settlement Laws.
6. Civil Appeal No,1837 of 2001 relates to Writ Petition No,410-R of 1986 which too was decided on 4- 12-1991. The facts of the writ petition are identical with the facts of Writ Petition No,409-R of 1986.
7. Appeal No,1838 of 2001 is in respect of Writ Petition No,91-R of 1988, decided on 4-12-1991. Its factual matrix is also identical with that of Writ Petitions Nos.409-R of 1986 and 410-R of 1986.
8. The writ petitions mentioned above were allowed by, a learned Single Judge of the Lahore High Court, vide a consolidated judgment dated 4-12-1991 in the following terms:-- "It is contended by the learned counsel that the petitioners are claimant-displaced persons and that some evacuee land has been allotted to some of them while the claims of others are still pending settlement in various estates. Syed Muhammad Ameen Shah, learned Legal Adviser of the respondent is present with record of the case. He 'states that he has no objection if available land is allotted to the petitioners against their verified claims provided their claims are genuine. In the circumstances, as per the statement of the learned Legal Advisor of the respondents, a direction is issued to the learned Notified Officer to allot available land to the petitioners subject to verification of their claims in accordance with law."
9. Civil Appeal No,1839 of 2001 relates to Writ Petition No,116-R of 1998 wherein submissions made on behalf of the respondent were to the effect that his claim having been verified to the extent of 5167 urban units was transferred to District Gujrat. It was confirmed to the extent of 2369 units on account of Writ Petition No,444-R of 1979 filed by one Habib Khan which was finally dismissed on 20-8-1991. Thereafter, the petitioner submitted many applications before the Chief Settlement Commissioner that the balance units i,e, 2798 units which were pending due to the said litigation may be allotted to him but without any success.
10. The writ petition was disposed of on 22-9-1998 by a learned Single Judge of the Lahore High Court with following observations:-- "Accordingly, a copy of this petition be sent to Member, Board of Revenue, Punjab,, Lahore/Chief Settlement Commissioner who shall look into the grievance of petitioner and if the petitioner has got surplus P.I. Units awaiting allotment that shall be treated as pending claim and allotment be made in accordance with law. The order shall be passed within three months after receipt of this order."
11. Civil Appeal No,1840 of 2001 pertains to Writ Petition No,142-R of 1998 wherein it was prayed that the Member, Board of Revenue/Chief Settlement Commissioner, Punjab and the Notified Officer, Gujranwala may be directed to treat the case of the respondent Muhammad Ismail with regard to allotment of the remaining units out of duly verified 5047 P.I. Units of his predecessor-in-interest Chotay Khan as pending and adjust the same against the land detailed in the petition.
12. The writ petition was partly accepted on 19-10-1998 by a learned Single Judge of the Lahore High Court and the respondents therein were directed to make allotment to the extent of 1216 P.I. Units treating the same as pending claim.
13. The aforementioned applications under section 12(2), C.P.0 were dismissed with the following observations:-- "From the resume of facts detailed in preceding paras it is clear that the claim of the respondents/petitioners do fall within the purview of the pending claims and contention of learned counsel for the applicant that they are not pending claims and no allotment at this stage can be made against the P.I. Units, has no force, I am fortified by a judgment titled Nawab Din v. Member, Board of Revenue (S&R), Punjab, Lahore and 4 others (PLD 1979 SC 846) wherein it was held as under:-- .
"At this place we would like to observe that connotation of word 'proceedings' is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of section 2 leave no room for doubt that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are 'all proceedings' it is not justified to diminish the totality of those proceedings by introducing jurisdictional concepts, for example of judicial proceedings, quasi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings and proceedings before a Court etc. The focus should remain on the words deployed in the statute and so long as the proceedings are under the Act repealed; before the competent authorities; and are of the kind and for the purpose indicated in that Act, for the enforcement of rights mentioned therein on the applicants concerned, they are the proceedings which are saved so as to continue under the relevant law repealed."
12. In all the above-noted writ petitions the allotment of the respondents/petitioners were withheld due to fault of the Department as entitlement certificates were issued to them after repeal of Settlement Laws or due to the fact that the cases in certain writ petitions remained pending before this Court or before the Honourable Supreme Court which were also decided after repeal of Settlement Laws. The respondents/petitioners cannot be penalized for no fault of their and the only authority responsible for causing delay is the Settlement Department and none else.
13. It has also been noticed that Writ Petition No,52-R of 1984 along other connected Writ Petitions Nos.409-R of 1986, 28-R of 1986 and 92-R of 1988 were decided by a common judgment on 4-12- 1991 and all along this period the Department kept silent and never agitated that above said judgment before any competent forum. The present applications under section 12(2), C.P.C. Have been filed after a delay of more than 9 years without any sufficient explanation."
14. Leave was granted to consider whether on facts and circumstances of the cases, the High Court was right in relying upon the dictum laid down in Nawab Din v. Member, Board of Revenue, Punjab, Lahore (PLD 1979 SC 846) to hold that the settlement of the claims of the respondents fell within the purview of pending proceedings.
15. Ch. Mushtaq Masood, learned counsel for the appellant after submitting at the outset that no building site was involved in these cases, raised the following contentions to assail the impugned judgment:--
(i) The writ petitions leading to the filing of the applications under section 12(2), C.P.C. Were not maintainable as the matters dealt with therein were pending claims and not 'pending cases' as visualized by the Evacuee Property.And Displaced Persons Laws (Repeal) Act, 1975. The orders passed in those writ petitions were coram non judice and hence void ab initio.
(ii) The conceding statement made by the learned counsel representing the Settlement Department was not binding on the Department in view of the defective nature of the ensuing orders. The orders passed on the basis thereof were coram non judice in the light of the observations made in Muhammad Raman etc. v. Board of Revenue/Chief Settlement Commissioner etc. (1997 SCM R 1635).
(iii) As held in Nawabzada Zafar Ali Khan v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore (1999 SCM R 1719) only those matters fell within the contemplation of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which were actively pending consideration before the Authorities concerned or had been remanded by the High Court or Supreme Court to be finalized by the "Notified Officer."
16. The respondents in Civil Appeals Nos.1834-1835 and 1839 of 2001 did not care to turn up. Mr. Ghulam Nabi Bhatti, Advocate Supreme Court, learned counsel for respondent No,1 in Civil Appeals Nos.1836 to 1938 of 2001, defended the impugned judgment by making the following submissions:--
(1) The applications under section 12(2), C.P.C. Having been tiled after nine years of dismissal of the writ petitions in question were hopelessly barred by limitation particularly when the delay was not explained.
(2) The cases remained pending actively and the Settlement Department was squarely responsible for issuing entitlement certificates after repeal of the Settlement Laws. In the cases covered by Writ Petitions Nos.409-R of 1986, 410-R of 1986 and 91-R of 1998 considerable time was consumed by the Department in reconstructing the record with the result that the cases were decided on 19-5-1979 and it was only after issuance of a direction in the I.C.A., decided on 18-12- 1984 that the entitlement certificates were issued.
(3) The applications under section 12(2), C.P.C. Were not maintainable as the High Court was possessed of jurisdiction to entertain and allow the writ petitions in question.
(4) The respondents had sold the land allotted to them but the vendees had not been impleaded.
17. Mr.Muharnmad Munir Peracha, learned counsel for respondents in Civil Appeal No,1840 of 2001, also contended that the matter fell within the ambit of "pending proceedings". He further contended that the application under section 12(2), C.P.C. Was not maintainable as no fraud was alleged therein and the impugned order was at best an erroneous order and not an order without jurisdiction.
18. As mentioned earlier, the protracted litigation between the parties consists of two rounds. During the first round Writ Petitions Nos.52-R of 1984, 28-R of 1987, 409-R of 1986, 410-R of 1986, 91-R of 1988, 142-R of 1998 and 116-R of 1998 were decided against the appellant. The petitions for leave to appeal bearing No,C.P.L.A. No,2121-L of 1998, C.P.L.As. Nos.294-L, 295-L, 296-L, 297-L, 298-L and 1095-L of 1999 arising therefrom were disposed of on 9-9-1999 with the observations that "the petitioner may, in the first instance, approach the High Court through appropriate proceedings for redressal of his grievance". During the second round the appellant filed applications under section 12(2), C.P.0 in the Lahore High Court with the prayer that "the judgments rendered in the said writ petitions may be recalled as the claims of the writ petitioners were not pending cases" as visualized by subsection (2) of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, hereinafter referred to as the Act. The applications were dismissed on three grounds. First, that the writ petitions in question were decided by a common judgment dated 4-12-1991 which was not assailed by the Department before any competent forum. Secondly, the applications had been filed after a delay of more than nine years without any sufficient explanation and, thirdly, that the claims of the respondents fell within the ambit of pending claims.
19. The first ground is misconceived inasmuch as the common judgment dated 4-12-1991 passed in the said writ petitions was challenged by the appellant through the aforementioned petitions for leave to appeal filed in this Court which were disposed of on 9-9-1999 with the observations highlighted earlier.
20. The delay in filing the applications cannot be blown out of the proportion in the face of the petitions for leave to appeal filed by the appellant and the observation with which the same were disposed of. The observation goes a long way to suggest that the petitioner could file an application under section 12(2), C.P.C. Even at that stage. The authority reported as Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others (1998 SCM R 1078), cited by the learned counsel for the respondents in Civil Appeals Nos.1836 to 1838, is thus distinguishable. In the said case it was held that the observation made by this Court in the Judgment passed in the petition for leave to appeal that if any remedy was available to the petitioners on the ground of fraud the same was to be availed by filing application before the High Court, would not have the effect of enlarging the period of limitation prescribed for making such an application as the said observation did not provide that the petitioners could file the application at that stage. Needless to elaborate that the observation clearly excludes the existence of any reservation about filing of an application under section 12(2), C.P.C. Through which the validity of a judgment or older can be challenged on the ground of want of jurisdiction.
21. Adverting to the third ground we find that the cases of some of the respondents have been wrongly held to be pending proceedings within the import of section 2(2) of tie Act. First of all we propose to take up Appeals Nos.1839 and 1840 of 2001 which relate to Writ Petitions Nos.116-R of 1998 and 142-R of 1998. Both the petitions were filed by the persons whose verified claims were not fully satisfied before the promulgation of the Act and the relief prayed for was granted for the reason that the verified claims were not adjusted in entirety before the target date on account of litigation by third persons. The reasoning is fallacious because the expression "pending proceedings" used in section 2(2) of the Act covers the pending cases and not the unadjusted Produce Index Units of verified claims for which a specific mechanism in the shape of compensation was devised before promulgation of the Act. The judgments passed in these cases by the High Court are wholly without jurisdiction and squarely hit by the expression 'want of jurisdiction' used in section 12(2), C.P.C. And as such are not sustainable.
22. The judgment passed in Writ Petition No,28-R of 1986, subject-matter of uncontested Civil Appeal No,1835 of 2001, stands on the same footing as it too involves adjustment of unadjusted produce index units traceable to the supplementary verified claim whereby the initially verified claim to the extent of 2283 Produce Index Units, regarding which entitlement certificate was issued on 1-6-1968, was increased to 5325 P.I. Units and a supplementary entitlement certificate was issued on 10-7-1975. The record does not contain any document from which it could be gathered that the claim of the respondent had remained actively pending even after issuance of entitlement certificate in the year 1968. The basis on which the supplementary entitlement certificate was issued after repeal of the Settlement Laws is also not ascertainable from the record. The proceedings before the High Court in this matter were certainly coram non judice.
23. This brings us to Civil Appeals Nos.1834 and 1836 to 1838 of 2001 arising from Writ Petitions Nos.52-R of 1984, 409-R of 1986, 410-R of 1986 and 91-R of 1988 in which entitlement certificates were issued after repeal of the Settlement Laws and which were decided on the strength of the conceding statement of the learned counsel for the respondents. The facts leading to the filing of Writ Petition No,52-R of 1984 were that claims of the respondents were duly verified in District Rawalpindi but instead of getting the same settled in District Rawalpindi the respondents sought their transfer to Lahore on the ground that they had shifted to Lahore. The .Verified claims were allegedly misplaced either in the office of the Deputy Commissioner, Rawalpindi or Lahore in transit.
The respondents have not cared to contest the appeal and it appears from the record that they had for the first time moved an application on 26-2-1976 with regard to the whereabouts of their claims as a result of which a duplicate entitlement certificate was issued on 22-11-1976. The case thus cannot be said to be actively pending consideration before the authorities concerned for final disposal within the contemplation of the principle enunciated in Zafar Ali Khan v. Chief Settlement Commissioner (1999 SCM R 1719). The conceding statement of the learned counsel for the department can have no bearing on the case in view of the observations made in Muhammad Ramzan v. Member (Revenue)/CSS (1997 SCM R 1635) that disposal of Constitutional petition by the 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 and as such has no binding effect. The judgment dated 4-12-1991 vis-a-vis this petition thus suffers from a jurisdictional defect and there is force in the contention that it is void ab initio being coram non judice.
24. As pointed out earlier, the facts forming the background of Writ Petitions Nos.409-R of 1986, 410- R of 1986 and 91-R of 1988 are that the joint claim filed by the respondents was not properly verified by the claims organization as a result of which Writ Petition No,819-R of 1967 was filed which was allowed on 9-11-1967 and the Claims Commissioner was directed to re-construct the record on the basis of duplicate papers and decide the case in accordance with law. The case of the respondents was decided on 19-5-1979 but the entitlement certificate was not issued on which Writ Petition No,48-R of 1982 was filed but it was dismissed on 20-3-1983. However, the I.C.A. Was allowed on 18-12-1984 and the Settlement Authorities were directed to issue the entitlement certificate which was issued on 12-10-1986. In this backdrop there can be no dispute with the proposition that the cases covered by these writ petitions were actively pending at the time of repeal of the Settlement Laws. The Settlement Authorities are squarely responsible for the delay in verification of the claims of the respondents and issuance of the entitlement certificates, therefore, it will be unjust and iniquitous to penalize the respondents for their inaction, apathy and delaying tactics. No doubt the entitlement certificates were issued after repeal of the Settlement Laws in compliance with the directive of the High Court issued on 18-12-1984 but this circumstance cannot stand in the way of settlement of the verified claims of the respondents and taking the final adjudication by the forum of competent jurisdiction to its logical conclusion because the cases have not been held to be pending on account of non-issuance of the entitlement certificates. The directive of the High Court with regard to the entitlement certificates was issued after and not before the repeal of the Settlement Laws when the pending cases concerning verification of the claims of the respondents were finally disposed of. The impugned judgment, therefore, does not warrant interference to the extent of these cases in spite of the fact that they were decided in favour of the respondents on the strength of the conceding statement of the learned counsel for the Department. The contention with regard to non-implement of transferees cannot be appreciated for want of proof of alleged alienations.
For the reasons stated above, Civil Appeals Nos.1836. 1837 and 1838 of 2001 are dismissed and Civil Appeals Nos. 1834, 1835, 1839 and 1840 are accepted, the impugned judgment vis-a-vis C.Ms. Nos.1066, 1062, 1082 and 1078 of 2000 is set aside and the said C.Ms. Are allowed with the result that Writ Petitions Nos.52-R of 1984, 28-R of 1986, 116-R of 1998 and 142-R of 1998 stand dismissed. No order as to costs.