' Order, dated 26-7-1994 passed by the Notified Officer (respondent No,11) has been challenged by the petitioners herein whereas the same order has been challenged by the petitioners in Writ Petition No,296-R of 1994 who are also respondents Nos.1 to 9 in Writ Petition. No,270-R of 1994.
' The matter had once earlier been before this Court in Writ Petition No,122-R of 1976 which was filed by Ibrahim (the predecessorin-interest of respondents Nos.1 to 8) and Nazir Ahmed, respondent No,9. In that petition Shabbir Hussain, petitioner herein, was respondent whereas the said heirs of Ibrahim and Nazir Ahmed are again petitioners in Writ Petition No,296-R of 1994 and Shabbir Hussain is respondent therein. Writ Petition No,122-R of 1976 was decided by this Court vide judgment dated 21-10-1986. Since the necessary facts have been stated therein quite elaborately, repetition thereof is being avoided for the sake of brevity. Suffice it to state paragraph No,5 of the judgment would spell out the controversy involved and is respectfully being reproduced hereunder:-- "After hearing the learned counsel for the parties and perusing the record with their assistance it is quite clear that while the land was being sought by the sitting allottees the petitioners or others, its allotment was being declined by the Settlement Authorities on the ground that the land was in possession of Forest Department, without issuing any notice or hearing the sitting allottees of the estate or the Forest Department who was in possession of the land in dispute, the same was allotted to the respondent No,1 who had no more interest than to sell it away.
' A genuine allottee who attains allotment after years of efforts in 1971, is not likely to sell away the land. The Officer who has passed the impugned order had also declined to examine the matter on the ground that 'it is not my duty to sit on judgment on the work done by an Officer of equivalent status who was my predecessor-in-office'. The sentiment is laudible but the Officer was exercising delegated powers of the Chief Settlement Commissioner and therefore, he should have had no hesitation in deciding the matter even if the allotment had earlier been made by an Officer of an equal status Additional Settlement Commissioner and his predecessor-in-office. It is well-establish law by now that if a reason given for an impugned order is untenable in law, the entire order is liable to be set aside. When genuine sitting allottees of the estate were waiting and seeking allotment of the land which was in possession of the Forest Department, without notice to anyone of them the allotment in favor of the respondent No,1 was void altogether and the learned Officer passing the impugned order has also illegally refused to exercise jurisdiction vested in him by lawn.
The contentions of the learned counsel for the respondents that the petitioners have no locus standi or land has been sold, have no force. The petitioners are sitting allottees with pending units in their hands for allotment and were given statutory right to move the application. Whet) the allotment in favor of the respondent No,1 was void, no title could be passed by him."
' The judgment was challenged by Shabbir Hussain and others, petitioners herein, before the Honourable Supreme Court of Pakistan and on 10-9-1991 C.A.No,452 of 1989 was dismissed with the observation that "both the appellants and respondents apart from the Forest Department shall have a right to be heard by the Notified Officer. With this observation, we dismiss this appeal, with no order as to costs". The Notified Officer has accordingly vide order dated 26-7-1994 took the view that impugned land being under the possession of Forest Department was illegally allotted to the respondent No,1 and "in view of the judgment of the Supreme Court neither respondent No,1 nor the petitioners have got any right for the allotment of the land. The allotment made to Shabbir Hussain at Khata No,5/1 of R.L.-II of Mauza Chhanawan, Tehsil and District Sialkot dated 22-2-1971 is hereby cancelled in exercise of my powers as Chief Settlement Commissioner (Land) under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958. The possession/allotment of the Forest Department over the impugned land is kept intact. The Mukhbari application of the petitioners is proved, but they are not eligible for allotment of the impugned land since it is not available for allotment. They may, however, apply to the Member, Board of Revenue/Chief Settlement Commissioner (Land) for cash award under subsection (1-A) of section 14 of Displaced Persons (Land Settlement) Act, 1958". This order has been challenged in the present petition by Shabbir Hussain and Amjad Shakoor whereas Writ Petition No,296-R of 1994 has been filed by successors of Ibrahim and Nazir Ahmed against the same order.
2. The learned counsel for the parties in both the petitions is atone insofar as they assailed the order of Notified Officer. They rely upon a report of the Extra-Assistant Settlement Officer, Sialkot dated 26-8-1971 in which there appears a recital that "the area in question was not included among the area which was acquired by the Forest Deparmtent". It is contended that mere possession of the Forest Department would not exclude the land from being dealt with under the law/Scheme. It is further contended that the Forest Department itself had been indolent in the matter and had not taken steps for its transfer. The learned Advocate-General, Punjab who appears for the Forest Department supports the order passed by the Notified Officer and contends that the view taken by the Notified Officer is consistent with the law laid down by the Honourable Supreme Court of Pakistan and has cited the latest judgment of their Lordships reported in Forest Department through Division Forest Officer, Chhanga Manga, Lahore v. Muhammad Amin and 26 others (2002 SCM R 703).
3. In judgment dated 21-10-1986 rendered in Writ Petition 122-R of 1976, Abdul Shakural Salam, J., as he then was, had observed that "allotment in favor of respondent No,1 (Shabbir Hussain, petitioner No,1 herein) was void altogether". It was further observed that "when the allotment in favor of respondent No,1 was void, no title could be passed by him". His appeal was dismissed by their Lordships of Honourable Supreme Court of Pakistan leaving an opportunity for him to be heard by the Notified Officer alongwith others. The Notified Officer has on consideratidn of the material before him, recorded a finding that allotment in favor of the petitioner namely Shabbir Hussain was "not genuine and was antedated". It has also been found on consideration of the Revenue Record by him that the land has been in possession of the Forest Department and was covered by plantation. Referring to the directive dated 27-2-1965 of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore addressed to the Deputy Commissioner Sialkot, Gujranwala, Shahpur, Rawalpindi, Mianwali, Jehlum and Attock that evacuee lands in possession of the Forest Department whether notified or unnotified should not be allotted against claims under the provisions of the West Pakistan Rehabilitation Settlement Scheme till further orders and the judgment of the Honourable Supreme Court of Pakistan, the Notified Officer held that the controversy in dispute was covered by the prohibitory order of the Chief Settlement Commissioner, therefore, the land was not available for allotment. It may be observed that the above mentioned directive of the Chief Settlement Commissioner dated 27-2-1965 had been considered by the Honourable Supreme Court of Pakistan in Muhammad Ayub and others v. The Province of Punjab (1989 SCM R 1033) and it was observed that the land in possession of the Forest Department stood excluded from allotment to refugee claim holders. In Province of Punjab v. Muhammad Mahmood Shah (1991 SCM R 1426) it was observed that the Chief Settlement Commissioner had the power to direct the exclusion of land from allotment and that by issuing directive dated 27-2-1965, the Chief Settlement Commissioner had acted within his lawful authority. The judgment relied by the learned Advocate-General upon Forest Department through Division Forest Officer Chhanga Manga, Lahore v. Muhammad Amin and 26 others (2002, SCMR 703) is also consistent with the above mentioned legal position. The order of the Notified Officer, thus, finds ample justification and is consistent with the legal position obtaining on the subject.
' Reference to the report dated 26-8-1971 wherein the officer had stated that the area in question was not included among the area which was acquired by the Forest Department is of no help inasmuch as formal acquisition was not necessary in order to attract prohibitory order dated 27-2- 1965. The mere possession of the Forest Department whether notified or unfortified was sufficient enough to exclude the land from allotment under the scheme. Legal efficacy of directive dated 27- 2-1965 having already been examined by the Honourable Supreme Court of Pakistan and upheld, the Notified Officer in the present case, thus, acted within his lawful authority to pass the impugned order.
' As a result of the above, this petition is dismissed. No order as to costs. n