JUDGMENT SYED JAMSHED ALI, J.- Order dated 10.9.1984, whereby formerly evacuee land measuring 684 Kanals, 15 Marlas was sold in favour of respondent No. 5 and the order dated 10.9.1984, whereby the learned A.D.C. (G), was directed to hold an inquiry regarding the allotment in favour of one Mst.
Kaki on Khata No. 573 Of R.L.-II have been assailed in this Constitutional petition. Both the impugned orders were passed by the learned Deputy Commissioner, Kasur exercising the powers of ^he Addl.
Settlement Commissioner (L). The case has a chequered history. The relevant essentials facts are, however, noted hereunder.
2. Land measuring 5481 Kanals, 9 Marlas, situated in Kot Radhakishan was purchased by one Sampuran Singh, somewhere in 1940 through a Court auction. Vide mutation No. A A attested on 20.6.1941, he mortgaged the aforesaid land in favour of six non-muslims evacuees including Bhagat makand Singh, father of respondent No. 5. On 3.1.1942 Sampuran Singh aforesaid sold 2/3 share out of the aforesaid and in favour of Mian Muhammad Saeed and Mian Qasim Ali. In 1940, respondent No. 5 had embraced Islam and 1942 married Ali Muhammad. On the partition a the Sub- Continent her father migrated to India while she opted to stay in Pakistan with her husband.
Vide order dated 29.6.1957 of the learned Custodian, she was allowed to retain possession of the land measuring 901 kanals as maintenance for her life. The entire aforesaid land (5,481 Kanals, 9 Marlas) was, however, redeemed vide order dated 23.6.1960 of the Deputy Settlement Commissioner (L) on the application of legal heirs of Qasim Ali with the result that while the 2/3 of the land in dispute became non-evacuee the remaining one- third (1/3) became evacuee. The evacuee portion of the said land was transferred to a number of a refugee claimants including land measuring 103 Kanals, 7 Marlas allotted in favour of Mst. Kaki on R.L.1I.578 on 18.9.1961. Vide registered sale-deed dated 10.2.1962 the petitioner purchased the said land from 'aforesaid Mst.
Kaki which was duly implemented in the revenue record vide mutation No. 73 attested on 4.8.1962 and the petitioner was recorded in the column of ownership in the Jamabandies for the years 1966-67, 1970-71. '
3. On 28.9.1964 Mst. Noorjahan, respondent No. 5 made an application before the D.R.C. (L), Kasur for retention of 901 Kanals land which was rejected on 28.9.1964. However, she filed four revision petitions against the said order which were allowed vide order dated 6.4.1966 of the Learned Addl.
Settlement Commissioner and allotments to the claimants were cancelled. Against that order, the allottees filed one revision petition. The allottees were directed to file separate revision petitions.
Consequently they filed four revision petitions in addition to the one already pending. The four revision petitions were dismissed as barred by time, while the original revision petition was accepted with the result that the allotments made in favour of refugee rights holder stood restored.
4. Against the dismissal of the four revision petitions the allottees filed Writ Petitions N6s. 936-R to 939-R of 1967, while Mst. Noorjahan Begum filed Writ Petition No. 987-R/1973, against the order passed on the original revision petition. Another claimant, whose allotment was also cancelled filed W.P. No. 730-R/1972. AII these writ petitions were disposed of vide judgment dated 12.3.1976 of this Court. The writ petitions of the allottees were allowed while that of Mst. Noorjahan was dismissed with the finding that the entire land having been redeemed 1/3 portion of the total and became evacuee property and was available for allotment to the claimants. Respondent No. 5 assailed the said order in CPSLs Nos. 366 to 371 of 1976 which were dismissed by the Hon'ble Supreme Court vide order dated 25.4.1978. This judgment is reported as Noor Jehan Begum v. Feroze Khan, etc. (NLR 1978 Civil 820). However, land measuring 684 Kanals, 15 Marlas continued to remain in possession of respondent No. 5.
5. The order dated 23.6.1960 directing redemption of the entire land was challenged in appeal, before the Rehabilitation Commissioner, by Himmat etc., but their appeal was dismissed vide order dated 10.10.1961. They filed W.P. No. 747/1961 which was dismissed and their petition for leave to appeal was also dismissed vide order dated 24.6.1966. From the perusal of the record appended to this writ petition, it appears that the land allotted in favour of Mst. Kaki was cancelled by order dated 29.8.1968 of the D. S.C. (L). This order was ex parte qua Mst. Kaki. The matter thereafter, came-up before the Learned Settlement Commissioner, Punjab and vide order dated 23.7.1983 he directed restoration of all this previous allotments subject to scrutiny by the D.S.C. (L), who was directed to satisfy himself about the genuineness of the claims of the allottees and the allied matters in accordance with the law and instructions issued by the Chief Settlement Commissioner.
6. On 21.3.1984 the Assistant Commissioner Kasur recommended to the Board of Revenue that land measuring 684 Kanals should be sold to respondent No. 5 at the rate of Rs.100/- P.I.U. Which was allowed by the Board of Revenue vide letter dated 12.8.1984 and ultimately vide order dated 10.9.1984 of the Deputy Commissioner/Addl. Settlement Commissioner, Kasur, it was ordered to be sold in her favour. This is one of the orders impugned in this writ petition.
7. Pursuant to the order dated 23.7.1983 of the Settlement Commissioner, the matter was also taken-up by the Deputy Commissioner/Addl. Settlement Commissioner, Kasur. He examined the allotments made in favour of the claimants. About Mst. Kaki, it was observed . That the allotment appeared to be bogus and Addl. Deputy Commissioner (G), Kasur was directed to hold an inquiry and submit a report to the Deputy Commissioner/Addl.' Settlement Commissioner. This order has also been assailed in this petition assuming it to be an order of cancellation of the allotment made in favour of Mst. Kaki, although the said order, on a bare reading thereof, does not so direct.
8. The learned counsel for the petitioner submits that allotment in favour of Mst. Kaki was duly made. The land was purchased by the petitioner through a registered sale-deed which was duly unimplemented in the Revenue Record despite that, the petitioner was neither heard when the order dated 29.8.1968 was recorded on the Register R.L.-II nor when the case was decided by the learned Addl. Settlement Commissioner (L), Kasur vide order dated 10.9.1984. His case is that the land in dispute was not available property to be sold to respondent No. 5. He also invited my attention to the orders passed by this Court in the person writ petition according to which, Javed Iqbal. Naib Tehsildar, Central Record Office was directed to report regarding entitlement of Mst. Kaki and according to extract of special Jamabandi placed on record Mst. Kaki had abandoned in India land measuring 94 kanals of different specifications. He also brought to my notice that Noor Jamal, who was one of the allottees and was effected by the order dated 10.9.1984, had approached this Court in W.P. No. 287-R/1987 in which on the concession of the Learned counsel for Settlement Department alternate land was directed to be allotted in favour of said Noor Jamal.
9. On the other hand the learned counsel for respondents Nos. 5 and 6 contends that claim of Mst.
Kaki was never verified, the allotment was bogus and arranged by Barkat Ullah, Patwari, the real brother of the petitioner. And, even sale of the land in favour of Muhammad Shafi was made by Allah Ditta father of the petitioner purporting to be an attorney of Mst. Kaki. He submits that the order dated 29.8.1968 was not challenged by the petitioner in any appropriate proceedings and therefore, after the land had been cancelled from the khata of Mst. Kaki, it was available and was rightly sold in favour of respondent No. 5, in view of the extra-ordinary circumstances explained by the Assistant Commissioner in his letter dated 21.3.1984. He maintains that even, according to the averments of the writ petition, the said order was fully within the knowledge of the petitioner who has been appearing before the learned Addl. Settlement Commissioner through his attorney and was directed to adduce proof of verification of the claim form of Mst. Kaki but he failed to do so nor he could produce any Fard-e- Haqiat. He, therefore, contends that the assertion of the petitioner that he was not heard by the Learned Addl. Settlement Commissioner has no merit. He however, submits that in case of other allottees, whose allotments were found to be bogus were able to obtain directions for allotment of alternate land from this Court and he would have no objection, if a similar direction for allotment of alternate land, if available, is issued in favour of the petitioner.
The learned counsel for the Settlement Department has also supported the impugned orders.
10. The submissions made by the learned counsel for the parties have been considered. Sale in favour of respondent No. 5 was directed when the order of cancellation dated 29.8.1968, recorded on the Khata of Mst. Kaki, was holding the' field, In the proceedings which culminated in the order dated 23.7.1983, neither Mst. Kaki nor the petitioner was party. Therefore, it could not be said that allotment in favour of Mst. Kaki stood restored. The sale in favour of respondent No. 5 was approved by Board of Revenue on 12.8.1984 and a period of more than 17 years has already elapsed. It is now a past and closed transaction, It is no doubt correct that, a writ petition cannot be dismissed solely on the ground of laches but interference of this Court at the stage will result into upsetting a past and closed transaction and bring about an unjust consequence. Therefore, as far as sale in favour of respondent No. 5 is concerned, 1 am not inclined to interfere in exercise of discretionary Constitutional jurisdiction.
11. The other order dated 10.9.1984 of the Learned Addl. Settlement Commissioner is being taken as an order cancelling the allotment of Mst. Kaki although it is not the case because the impugned order directed the ADC(G) to hold an inquiry in the matter with the observation that the claim of Mst. Kaki appeared to be bogus. No definite finding was recorded. As a result of the exercise under taken by this Court it has been found that Mst. Kaki had abandoned land measuring 91 kanals of different categories in District Ferozepur, India, and an extract from the Special Jamabandi was placed on the record. Thus, it is clear that Mst. Kaki had a genuine claim. Perusal of the order dated 29.8.1968 of the Learned DSC(L) shows that the specific khasra number allotted in favour of Mst.
Kaki were cancelled. However, this order was ex parte. Initial proposal was made in favour of Mst.
Kaki on 15.6.1961. Therefore, notwithstanding withdrawal of specific khasra numbers from the said khata, the proposal on the register R.L.II survives and thus, the case of the petitioner falls within the scope of 'pending proceedings' within the meaning of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act (No. XIV of 1975). I have also noticed that in case of W.P. 287- R/1987, this Court directed consideration of the case of an allottee for the grant of alternate l?Nd, who was* affected by the order dated 10.9.1984. The petitioner cannot be differently treated as he is a vendee from the allottee.
10. For what has been stated above while the order dated 10.9.1984 directing sale of 618 Kanals, 15 Marias in favour of respondent No. 5 is maintained, the case of the petitioner is remanded to the learned MBR (S&R) for either deciding it himself or entrusting it to a notified officer for allotment of formerly evacuee land, if available, any where in Punjab against the claim of Mst. Kaki subject to verification of her * entitlement after a proper inquiry to be held in the matter. Such an inquiry was already directed vide the order dated 10.9.1984 of the Learned Addl. Settlement Commissioner (L). If at all alternate allotment is made against the claim of Mst. Kaki the petitioner, as a vendee from her, will be entitled to retain the said land. This writ petition is, accordingly, disposed of.