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Writ Petition No. 67 of 1966, decided on 30th July 1969.
, S. 2 (3) read with S. 2 (1)‑Word "land" used in Act‑Does not mean purely agricultural land‑Word "land" being specifically and separately defined in S.2(3), part of meaning given to word "allotment" in S. 2 (1) cannot be read into it.
, S. 2 (3) read with West Pakistan Rehabilitation Settlement Scheme, paras. 6 and 16 (Part II) and Chief Settlement Commissioner's Letter No, 56‑LFR‑6189‑R (P), dated 17th April 1961 ‑ Words "ghair mumkin" and "ghair mumkin godi". ---‑Piece of land becom ing "ghair mumkm"‑not taken out of ambit of agriculture for all times to come‑Words only mean that land is not being used for agri culture for time being‑Potential of such land as land for agricultural purposes‑Not affected, except when subject to some perinanent struc ture‑Land for tune being used for removing earth to feed brick kiln (ghair mumkin godi), held, held for agricultural purposes and falls within definition of "land"‑‑Allotment of such land cannot be cancelled on ground of its being entered as brick kiln in revenue records or because it formed part of an industrial concern.
It is not necessary that a piece of land which is being used, for the time being, for removing the earth cannot or is not held for agricultural purposes. When the earth is removed for the purpose of preparing the bricks, the fields are not left in such a condition as not to put them under use for agriculture. The word "ghair tnutnkin" does not indicate that the piece of land which becomes ghair mumkin is taken out of the ambit of agriculture, permanently and for all tines to come. It only means that, for the time being, the land is not being used for agriculture but its potential as a land held for agricultural purposes is not affected, except when a piece of agricultural land, becomes ghair mumkin within the classification of abadi deh or becomes subject to some other permanent structure. The fact that a part of the land in dispute, at a particular time, was mentioned in the revenue record as ghair mumkin godi does not mean that it had lost all the potentiality of a land held for agricultural purposes. It is a matter of common knowledge that ghair mumkin godi, after the removal of earth for the purpose of preparing the bricks, have not only been used for agriculture but have often proved to be better land as compared to the remaining pieces of land in the same area. The area described, in the jamabandi, as ghair mumkin godi was not such as to be taken out of definition of land. It remains land held for agricultural purposes but only earth is removed therefrom for the purpose of preparing the bricks; and when this is being done from particular fields, those fields become ghair mumkin godi for the time being. In the light of the above discussion, the allotment of that particular land to the petitioner cannot be assailed on the only ground that it could not be allotted to him under the Land Settlement Act because it formed part of industrial concern. That being so, the allotment, thereof in favour of the petitioner could not be annulled, directly or indirectly, by the Settlement Authorities acting under the Settle ment Act.
, S. 15 ‑ Use of word "temporary" in order of allotment ‑ Only mechanical, due to forms being used as such in early days‑No provision in Act requires confirmation of allotment ‑ Permanent settlement takes place after allotment, whatever its form, subject to payment of fees etc.
. First Sched., para. 14‑Land used as brick kiln, servant's quarter, and for preparation of bricks or their storage---- Treated as industrial concern‑To be disposed of under para. 14 Such land cannot be transferred to person on basis of claim for agricultural land.
, S. 15 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), First Sched., para. 14‑Property transferred to a person under Displaced Persons (Land Settlement) Act, 1958 Cannot be subsequently transferred to another under Displaced Per sons (Compensation and Rehabilitation) Act, 1958 without getting previous allotment set aside in hierarchy of Settlement authorities ---- Order excluding property from category of agricultural land and transferring same to another person as industrial concern (brick kiln)‑Held, illegal and without jurisdiction.
‑Previous allottee of land acquiring right in property‑Interested party‑Subsequent allotment of same property to another person without giving such interested part), opportunity of hearing‑Illegal.
, S. 19 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 20‑Revision‑‑Order remanding case passed without hearing person interested‑Person interested nevertheless participating in proceedings before lower Court and failing to challenge order of remand before any Settlement authority or even in writ petition ‑ Conduct of such person, in circumstances, deprives him of any relief in respect of remand order.
Ghulant Mohi‑ud‑Din v. Chief Settlement Commissioner P L D 1964 S C 829 rel.
, S. 20‑Revision‑Limitation ‑ No period o limitation prescribed under Act for filing revision petitions‑Peti tioner's conduct, however, not such as to entitle him to relief in revisional jurisdiction‑Petition may, in circumstances, be dismissed on ground of laches
Abdul Majid Shaida v. Mst. Noor Jahan and another P L D 1967 S C 221 rel.
awl Displaced Persons (Land Settlement) Act (XLVII of 1958)‑Displaced Persons (Compensation and Rehabilita tion) Act, 1958 not "superior" to Displaced Persons (Land Settle ment) Act, 1958‑Contention that orders passed under former Act must prevail over orders passed tinder latter Act, held, without force ‑ No clash or inconsistency between provisions of two Acts‑Order passed by competent authorities in respect of subject‑ matter dealt with under latter Act, held, validly passed.
Yahya Bakhtiar and Basharat Ullah for Petitioner.
Aziz Ullah Memon for Respondents.
Dates of hearing: 29th and 30th July 1969.
Abdul Hakim Patel, the petitioner, has challenged, under Article 98 of the Constitution, the transfer of a brick kiln together with the land situate in and comprising of Kbasra Nos. 153 to 155, total area measuring about 27 acres, in Mahal Khushkaba Yasinzai, Mauza Shaldra, Sirki Road, Quetta, to Taj Muhammad, the predecessor‑in‑interest of respondents Nos. 1 to 5.
2. Briefly stated, the facts are that the brick kiln was allotted to Taj Muhammad and three others in 1950. In 1957, one of the allottees abandoned his share, and in his place the petitioner was joined as allottee with Taj Muhammad and two others, namely, Muhammad Waris and Shirin.
The petitioner, who is a displaced person with verified claim of agricultural land, applied for and obtained allotment of about 59 acres of land which included the above‑mentioned Khasr a numbers, in which, of course, the brick kiln is situate. The order of allotment was passed by an Assistant Rehabilitation Commis sioner (Lands) acting under the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the "Land Settlement Act") on 24th February 1959 (Annex. B'). The possession of the land is shown to have been delivered to the petitioner on 28th May 1959 (Annex. B/1'), Taj Muhammad, who claimed to be the major allottee of the brick kiln, obtained a P. T. O. of the brick kiln together with the land (total about 27 acres) as an industrial concern against a price of Rs. 60,480, on 11th November 1959 (Annex. C'). This P. T. O. is shown to have been issued by a Deputy Settlement Commissioner acting under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the "Settlement Act").
3. On 31st August 1961, Taj Muhammad applied to the Addi tional Settlement Commissioner (Urban) requesting him to exclude the area of about 27 acres from the agricultural land liable to be disposed of under the Land Settlement Act. By the order, dated 26th September 1961 (Annex 'D'), the Additional Settlement Commissioner ordered, as he put it that "this land may, therefore, be excluded for the purpose of disposal as agri cultural land". The order was passed without giving any notice to the petitioner who challenged it in revision which was accepted by the Settlement Commissioner (Urban), by his order dated 4th July 1962. The matter was remanded to the Additional Settlement Commissioner, with the direction that it should be decided afresh after giving hearing to the parties. This order was passed without giving a notice to Taj Muhammad.
In the second round, the Additional Settlement Commissioner (Urban) held, vide his order dated 17th June 1964 (Annex. E') that the transfer of the entire area as an industrial concern under para. 15 (3) of the Schedule to the Settlement Act was not valid lie, therefore, cancelled it and thus dismissed the application of Taj Muhammad made on 31st August 1961. The decision was based on the finding that the area in dispute was land as defined under the Land Settlement Act and, therefore, it could not be transferred as an industrial concern under the Settlement Act.
In the meanwhile, Taj Muhammad died and his successors‑in -interest, i.e. respondents Nos. 1 to 5, challenged the above order by means of a revision petition filed after about two years on 28th March 1966. The Settlement Commissioner (Urban), by his order, dated 30th March 1966 (Annex. O'), condoned the delay and by a separate order, dated 20th June 1966 (Annex. 'R') accepted the revision and restored the order of the Addi tional Settlement Commissioner (Urban), dated 26th September 1961 (Annex. D'); and declared that the transfer of the property in favour of Taj Muhammad was valid and proper. This order has been challenged in this Court under Article 98 of the Constitution.
4. There are some other necessary facts which also need to be stated. Taj Muhammad moved an application on 24thJune 1964, to the Deputy Rehabilitation Commissioner (Lands) requesting that the transfer of the property in dispute made in favour of the peti tioner be cancelled. It was also prayed in that application that the Khasra numbers in dispute be declared as an industrial concern. Proceedings were started on this application and records were summoned. Subsequently, on 1st October 1964, another application was addressed by the successors of Taj Muhammad to the "District Magistrate/Collector", Quetta, requesting for the inspec tion of the property and for its declaration as an industrial con cern. A similar application was again addressed, on 5th January 1965, to the District Magistrate/Collector, Quetta, by respondents Nos. 1 to 5 with the same request as mentioned above. It appears that the proceedings started by the Deputy Rehabilitation Commissioner (Lands) on the application, dated 24th June 1964, culminated in an order passed by him before May 1965, a certified copy of which obtained in May 1965, has been produced during the hearing of this petition and which has been placed on the record (Annex. C/1'). The date of the order is not discernible but the contents thereof show that the order was passed on the application of Taj Muhammad (presumably) dated 24th June 1964, because the subsequent applications were moved by his successors‑in‑interest. This is a detailed order and it has been clearly held therein that the property in dispute was land which was lawfully transferred to the petitioner after due enquiries by the Assistant Rehabilitation Commissioner (Lands) from the revenue officials; which revealed that some land was under culti vation and other could be brought under it. The Deputy Reha bilitation Commissioner (Lands) also relied on the letter of the Chief Settlement Commissioner No. 56‑LFR‑61/89‑R (P), dated 17th April 1961 wherein the Settlement Authorities had been direct ed that the allotments made and confirmed under the Rehabilita tion Settlement Scheme of land which was entered in the revenue record as brick kiln and not agricultural land, should be allowed to remain with the allottees thereof and should not be cancelled for the purpose of disposal as industrial units through auction or otherwise, and that such allotments should be treated as final. The Deputy Rehabilitation Commissioner (Lands) treated the allotment to the petitioner as the one mentioned in the letter of the Chief Settlement Commissioner and held that the same being of February 1959, the land, which was subject thereof, could not be transferred to Taj Muhammad as an industrial concern in November 1959. He, therefore, declined to interfere with the position then existing and, as he put it, he proceeded to "confirm the allotment of Khasra Nos. 153 to 155" in favour of the peti tioner as agricultural land. With this order, he formally dismissed the petition of Taj Muhammad. Admittedly, this order was never challenged in the hierarchy of the Settlement Authorities (Lands).
5. At this stage, there was one order of the Additional Settlement Commissioner (Urban), dated 17th June 1964 (Annex.' E') and another order (date not established) of the Deputy Rehabilitation Commissioner (Lands) (Annex. C/1) whereby it had been held that the property in dispute had been validly allotted to the petitioner as land and that the same could not be transferred as an industrial concern to Taj Muhammad. Instead of taking the matter further on either side in appeal/ revision, the respondents Nos. 1 to 5, on 20th January 1966, filed another application (Annex. 'H/1') before the Additional Settlement Commissioner (Lands) under section 10 of the Land Settlement Act, alleging that the petitioner had obtained the allotment of the disputed Khasra numbers by means of fraud and misrepresentation. The fraud alleged was that he misrepresented before the authorities concerned that the brick kiln was an agricultural land. It was requested in this application that the allotment to the petitioner be cancelled and the land be declared as non‑agricultural. The Additional Settlement Commissioner (Lands) did commence the proceedings on this application and fixed the case for hearing on some dates, the last known date being 30th March 1966. This matter of proceedings under sec tion 10 of the Land Settlement Act had not yet formally concluded when the respondents Nos. 1 to 5 filed the revision petition (Annex. 'M') before the Settlement Commissioner (Urban) on 28th March 1966, which culminated in the impugned order, dated 20th June 1966 (Annex. 'R'). It is mentioned in the memo. Of revision that the application before the Additional Settlement Commissioner (Lands) was still pending when the revision petition was filed and it was further claimed that the said revision petition was in continuation of those proceedings before the Land Settle ment Authorities and was thus within time.
6. The learned counsel for the petitioner has raised the following contentions against the impugned order:‑
(i) That the application for the transfer of industrial concern could be made only to the Additional Settlement Commissioner. No such application was made by Taj Muhammad and therefore, a P. T. O. alleged to have been issued in his favour for the transfer of the property as industrial concern on 15th November 1959 was illegal.
(ii) That the original authority, in respect of the transfer of industrial concern being the Additional Settlement Commis sioner, his order, dated 26th September 1961 (in favour of Tai Muhammad) and the other order, dated 17th June 1964 in the second round (in favour of the petitioner) should be treated as the original orders. In this view of the matter, the proceedings which culminated in the impugned order, dated 20th June 1961;, by the Settlement Commissioner should be treated as an .appeal; even though the petition was described as revision. In that context, the learned counsel stated that the appeal thus having been filed about two years after the last order of the Additional Settlement Commissioner (Urban), dated 24th June 1964, was clearly time barred; and the order of condonation of delay, dated 13th March 1966 (Annex. 'O') being ex parte and without hearing the petitioner cannot be treated as valid order of condonation of delay. He has also pointed out that an application was made by the petitioner for grant of hearing on the question of condonation of delay which was dismissed on 18th June 1966 (Annex. 'Q'), with the remark that the delay having been already condoned, that application had become infructuous. The precise contention of the learned counsel is that the question of limitation, in the circumstances, amounted to a question of right and, therefore, the delay could not be condoned without hearing the petitioner who, in spite of having made an application, was shut out on the subject.
(iii) That the property in dispute was transferred to the peti tioner as land under the Land Settlement Act, earlier in time and, therefore, it was not available for transfer to Taj Muhammad without first getting the said transfer set aside in the hierarchy of the Land Settlement Authorities. In this connection, he has particularly relied on the order of the Deputy Rehabilitation Commissioner (Lands) placed on the record and now marked as (Annex. 'C/1'). In other words, according to him, the Settlement Authorities (Urban) had no jurisdiction to transfer the property which had earlier been dealt under the Land Settlement Act. Mr. Memon, the learned counsel appearing for the respondents, conceded that the allotment to the petitioner of the land in dispute on 24th February 1959 was under the Land Settlement Act. He has, however, explained that it was not necessary to further pursue the challenge before the Settle ment Authorities (Lands) because She respondents had succeeded before the Settlement Commissioner (Urban), by obtaining the impugned order in their favour.
(iv) That the Settlement Commissioner (Urban) had no, jurisdiction to declare the land, as either non‑agricultural land or an industrial concern. In this connection, reliance has been, placed on the definition of land' in section 2(3) of the Land. Settlement Act.
(v) That the transfer of land to the petitioner gave rise to another dispute, the proceedings in respect of which were taken to the Settlement Authorities (Urban) by other persons, and by an order, dated 31st August 1964 (Annex. 'T') the Settlement Commissioner (Urban) refused to interfere because the property was not included in the urban area.
(vi) That the order of remand, dated 4th July 1962, by the Settlement Commissioner (Urban) was criticized in the impugned order without jurisdiction and without any justi fication.
7. Mr. Aziz Ullah Memon, on the other hand, argued on the following basis:‑
(i) hat the Jamabandis of 1940 and 1958‑59 showed major part of the land in dispute as ghair mumkin godi; and because Godi is a place wherefrom earth is taken for preparing the bricks, therefore the land in dispute could not be included: in the definition of land given in section 2(3) of the Land Settlement Act.
(ii) hat Taj Muhammad had no knowledge that the land in dispute had been allotted to the petitioner, at the time that the order, dated 26th September 1961 (Annex. D') was passed by the Additional Settlement Commissioner in his favour; therefore, that order could not be assailed, for the reason that it was passed without hearing the petitioner. In this connection, he referred to paragraph 3 of the writ petition wherein it is stated that the allotment to the petitioner was made after informing the Assistant Settlement Commis sioner, vide Annex. 'B/2'. I his, Mr. Memon contended, was not in fact an information to a Settlement Authority but to a Rehabilitation Authority (Lands); therefore, Annex. B/2', according to him, could not constitute a knowledge for the, Settlement Authorities (Urban) that the land in dispute had. already been allotted under the Land Settlement Act. It may be straightaway remarked that this latter part of the argument of the learned counsel is untenable; because in the grounds of revision (Annex. 'M'), on which the impugned order was passed, Taj Muhammad had in paragraph 6 thereof, stated that as soon as he learned about the transfer in favour of the present petitioner, he immediately applied to the Additional Settlement Commissioner (Urban), Quetta who, vide his order, dated 26th September 1961, excluded the property for the purpose of its disposal as agricultural land.
(iii) That the brick kilns have throughout, during the Settle ment operations, been treated as industrial concerns not allotted by Rehabilitation Board and have been transferred under para graph 15 of the Schedule to the Settlement Act, therefore, the land in dispute which is partly described as a brick kiln could not be transferred to the petitioner under the Land Settlement Act. In this connection, he referred to subsections (1) and (3) of section 2 of the Land Settlement Act. He particularly relied on exception (a) to subsection (3) wherein property, as defined in sub‑clause (b) of clause (2) of section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956), had been excluded from the definition of land. That property is defined as industrial concerns, such as Factories and Workshops outside the municipal limits, etc., i.e.. outside the urban areas, In this connection, the learned counsel explained that an area of 3 Acres is under the Factory (( doubt if the brick kiln can be so‑called) which included some servant quarters, the place for making the bricks and storing them and the kiln itself. The adjoining land, according to the Jamabandi, is either chah jari yakreta or khushkaba (agricultural land irrigated by rain water) and ghair mumkin godi (agri cultural land which has been subjected to earth removing operations and which has different levels). According to the learned counsel, there are two such godis in the land in dispute with ditches from 12' to 20' deep. This latter part of the assertion of the learned counsel was vehemently denied by the learned counsel for the petitioner who stated that there are no ditches and that the land which has been under godis is perfectly levelled. It was agreed by both the parties that the entire land in dispute is hardly about 2 to 4 furlongs away from the boundaries of the Municipal Committee, Quetta and is in one piece. In this connection, the learned counsel for the respondents asserted that Abdul Hakim Patel is not 9oin‑ to utilise the land in dispute as agricultural land but intends to sell it for the purpose of constructing houses. This assertion was accepted as partly correct by the petitioner who was present in Court and stated that he intends converting about 5 acres of a piece of 11 acres into a housing colony. This aspect of the case could be considered by a competent authority under section 2(3) (b) of the Land Settlement Act and does not fall for determination in the present proceedings. It, however shows at least one thing that the land is of such, level that it can be utilized for building of houses.
The sum total of this argument of the learned counsel for the respondents is that the property in dispute not being one which was subject to Land Settlement Act could not be trans ferred to the petitioner and, therefore, the order, dated 24th February 1959, passed by an Assistant Settlement Commissioner (Lands) was void abolition.
(iv) that there is no bar for the transfer of the entire area of 27 acres as brick kiln to Taj Muhammad. According to the learned counsel, the definition of industrial concern, in Settlement Scheme No. II which deals with the disposal of evacuee industrial concerns, is not limited to the specified sites under those concerns but also includes the entire premises of those concerns which, in the case of a brick kiln, will include the entire area from which the earth has been removed or can be removed for the purpose of preparing the bricks. When asked whether a larger area, say, of 100 acres could thus be included in an industrial concern, the learned counsel replied in the affirmative. In this connection, he commented that even the Mitchels' farms in the District of Sahiwal which include large areas of fruit and vegetable gardens will be considered as an industrial concern; because there is a fruit canning factory in those farms which is fed by the raw material from the entire area.
The learned counsel also stated that if the question of transfer of the brick kiln was to be considered in the light of the above argument, the only person entitled to transfer was Taj Muhammad because he was the major shareholder and only he applied for its transfer.
(v) That the petitioner by his conduct of accepting a share in the allotment of the brick kiln in 1957, is now estopped from asserting that the entire area is not a brick kiln. In this connection, he relied on the observations in the order, dated 17th June 1964 (Annex. E') by the Additional Settlement Commissioner to the effect that the petitioner had executed a lease deed in favour of a third party in respect of the brick kiln, in the capacity of a shareholder, in its allotment.
(vi) That according to the instructions issued by the Chief Settlement Commissioner, vide Memo. No. 2177‑F&M‑Reh./60 dated 4th May 1960, printed at page 141 of the old Manual of Settlement Law and procedure, all evacuee brick kilns were to be treated as industrial concerns, not allotted by the Industries Rehabilitation Board, for the purposes of their disposal.
(vii) That section 36 of the Settlement Act provides that the said Act, the rules, the Schemes and Orders made thereunder, shall have effect, notwithstanding anything inconsistent therewith contained in any other law or any instrument; and there being no similar provision in the Land Settlement Act, it would mean that the former Act, as the learned counsel put it, is superior to' the latter Act. Therefore, even if the property in dispute could be disposed of under both the laws and has been disposed of as such, the transfer under the former law should be held to be valid.
(viii) That the petitioner was not an aggrieved person qua the order passed by the Additional Settlement Commissioner in favour of Taj Muhammad on 26th September 1961 (Annex. D') because the said order with regard to the exclusion of the property in dispute from the definition of agricultural land could not be passed under the Settlement Act. If that is so, the said order could not be treated as "an order under this Act" as envisaged by the opening part of subsection (1) of section 19 of the Settlement Act which reads as follows
"Save as otherwise provided under this Act, any person aggrieved by an order under this Act may prefer an appeal to : . . . . ."
On the basis of this reasoning, the learned counsel argued that the petitioner not being an aggrieved person, his appeal before the Settlement Commissioner and the order passed by the latter officer, dated 4th July 1962, on this appeal were illegal.
In this very connection, it was next argued that the remand order, dated 4th July 1962, by the Settlement Commissioner (Urban) was illegal because it was passed without any notice to Taj Muhammad. When pointed out that Taj Muhammad participated in the remand proceedings which were the result of the said order and did not challenge it either in the hierarchy of Settlement Authorities or by means of a writ petition and, therefore, on the authority of the case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (PLD 1964 SC 829). Taj Muhammad or his successors could not be allowed to urge lack of notice, particularly when he was heard in the subsequent pro ceedings; the learned counsel had no more comment to offer.
It was also argued that the order dated 17th June 1964 Annex. F') of the Additional Settlement Commissioner (Urban) which was set aside by the impugned order was not valid because it went beyond the scope of the application of Taj Muhammad which asked only for the exclusion of the property in dispute from the "agricultural land." In this order, Taj Muhammad was not only refused the relief claimed in that application but was also burdened with and prejudiced by a finding that the transfer in his favour was illegal. In this connection, it was contended that the Additional Settlement Commissioner could not pass the second part of the order because he had no power of suo motu revision.
8. I have heard the learned counsel for both the parties at some length. In my view, all the arguments addressed at bar relate to two main questions, namely :‑
(i) Whether the property in dispute, whole or part, can be treated as "land" and can thus be disposed of under the Land Settlement Act or is partly or wholly an industrial concern liable to be disposed of under the Settlement Act
(ii) Which of the orders passed in respect of the disposal of the property, whether on the "urban" side or on the "land" side is valid. In other words, keeping in view the respective jurisdiction of the authorities and legality as to procedure, etc., of the orders passed by them, whether the orders passed in favour of Taj Muhammad and or his successors‑in‑interest in respect of the transfer of the property in dispute are valid; or the initial order passed by the Assistant Settlement/ Rehabilitation Commissioner (Lands) on 24th February 1959 (Annex. B') and later confirmed by a Deputy Rehabilitation Commissioner (Lands) (Annex. 'C/1') is valid
9. The definition of land, as given in section 2(3) of the Land Settlement Act, is as follows :‑
"Land" means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee in such land, but does not include
(a) Property as defined in sub‑clause (b) of clause (2) of section 2 of the Registration o ' Claims (Displaced Persons) Act, 1956 (111 of 1956); or in sub‑clause (d) thereof; or
(b) such evacuee land as may be declared by the Chief Settlement Commissioner, as a building site."
It has been contended on behalf of the respondents that the land as defined must be such land which is under use for agriculture. In this connection, Mr. Memon referred to the definition of allotment in section 2(11 of the Land Settlement Act, wherein allotment is defined as an allotment of agricultural land made to a displaced person under the Land Settlement Act under various other laws. From this, an attempt has been made to show that the word "agricultural" should be read with the word "land" as given in the definition quoted above. The definitions given in section 2 of the Land Settlement Act are to be read subject to the context in which the relevant words are used in the) Act. When land has been specifically as d separately defined, it is not possible to read in it a part of the meaning given to the word "allotment". Moreover the use of the word "land" in sections 14 and 15 of the Act which deal with the allotment of land and permanent settlement thereon, has A to be understood with reference to the definition given in subsection (3) of section 2. Therefore, when read with reference to the context of sections 14 and 15, it will not be possible to read land as purely agricultural land, as contended by the learned counsel for the respondents. Thus it is only the definition given in subsection (3) of section 2 which is relevant for the present discussion. The definition clearly starts) with the supposition that land is evacuee property which need not necessarily be under agriculture at the relevant time, but should be held for agricultural purposes or for purposes subservient to agriculture or for pasture, and further that it can be unsurveyed land which need not have ever been under agriculture. The learned counsel for the respondents very vehemently argued that the entries in the Jamabandi of 1940 and 1 358 show that most. of the land was not under agriculture. Factually, this supposition is not correct. A part of land is specifically mentioned as khushkaba which means barani land and being used for the purpose of agriculture. Again some of the land is shown as under a well which is mentioned as chah jari yakreta which means that the land other than barani land was capable of being irrigated from the well for the purpose of agriculture. In so far as the land described as ghair mumkin godi is concerned, the order (Annex. C/1') shows that some of it is under cultivating and the other can be brought under cultivation. In any case, it is not necessary that a piece of land which is being used, for the time being, for removing the earth cannot or is not held for agricultural g purposes. When the earth is removed for the purpose of preparing the bricks, the fields are not left in such a condition as not to put them under use for agriculture. The learned counsel appears to have been misled by the use of the word "ghair mumkdn" In the Jamabandi. This word does not indicate that the piece of land which becomes ghair mumkin is taken out of the ambit of agriculture, permanently and for all times to come. It only means that, for the time being, the land is not being used for agriculture but its potential as a land held for agricultural purposes is not affected, except when a piece of agricultural land becomes ghair ,mumkin within the classification of abadi deh or becomes subject to some other permanent structure. Apart from these classes of ghair mumkin land, any others like ghair mumkin khuddar, ghair mumkin khal, ghair mumkin charagah, ghair mumkin nala, ghair murnkin godi, etc., keep the potentiality of being converted into a purely agricultural land at the instance of the person who is holding the land.
This supposition is supported by the provisions and policy contained in the West Pakistan Rehabilitation/Settlement Scheme which has, by now been declared as a law rather complete code in itself, for the subject dealt therein. In para. 6 (Part 11) oil the scheme, while dealing with the allotment of gardens, it is mentioned that, at one time, the Khasra number of wells or other ghair mumkin areas which form part and parcel of gardens were not reported to the Government along with the Khasra numbers,', of the gardens; consequently such Khasra numbers could not be, given in the allotment orders. But so far as the possession is I concerned, it was ordered that the same should be delivered of, the entire area including the wells and other ghair mumkin areas' Again in paragraph 16 (Part II), while dealing with the) determination of area for allotment, it was laid down that the land of the following categories will have to be compensated as follows :‑
"(a) Banjar Jadid will have the same produce index value as the class of soil with the lowest index number in the assessment circle in which it is situated.
(b) Banjar Qadim will have half the value of (a) above.
(c) Ghair Mumkin will have one quarter of the value of (a) above.
(d) Where there are three classes of barani land in a particular area the value of ghair mumkin, banjar jadid and qadim will be based on the index number accorded to the Second Class viz., barani II in such cases.
(e) Land under the aerodromes will be treated as barani Where, however, the claimants have documentary evidence of the classification of such land, the matter should be referred for final decision of the Rehabilitation Commissioner, West Pakistan. (Reference former Punjab Government memo No. 5929‑R(L), date 1st February 1953)."
It may be noticed that even land under aerodromes which is another form of ghair mumkin, i.e., ghair mumkin hawai adda, was treated as land for the purpose of compensation. Similarly, other ghair mumkin lands and banjar qadim lands were treated as land for the purpose of the Rehabilitation Scheme. It is pertinent to further note that the definition of land as given in the Scheme is almost the same, as in land Settlement Act, except with regard to the small difference arising out of the circumstances at the time that the two definitions were given. This definition, i.e., one in the Scheme, also starts with the words "means all evacuee land held for agricultural purposes or for purposes subservient to agriculture". Thus the fact that a part of the land in dispute, at a particular time, was mentioned in the revenue record as ghair mumkin godi does not mean that it had lost all the potentiality of a land held for agricultural purposes. It is a matter of common knowledge that ghair mumkin godis, after the removal of earth for the purpose of preparing the bricks, have not only been used for agriculture but have often proved to be better land as compared to the remaining pieces of land in the same area. The site plan (Para. 29 file Vol. I D. S. C.) which has been prepared by the patwari who gave the copy of the Jamabandi (Annex. R. D.') and wrote a note thereon explaining as to what the godi is, shows that the two godis at the time of the preparation of that site plan comprised of much less area than is mentioned in the Jamabandi of 1958. This would clearly show that the area and the specific number of fields under godi keep on changing with the passage of time. It would show that a piece of land which may be under godi today will not be under god after say five years, and at that time the same field may be agricultural and another field may then be under use as ghair mumkin godi. This also shows that the area described, in the Jamabandi, as ghair mumkin godi is not such as to be taken out of definition of land. It remains land held for agricultural purposes but only earth is removed therefrom for the purpose of preparing the bricks; and when this is being done from particular fields, those fields become ghair mumkin godi for the time being. Therefore, in my view, even the area under ghair mumkin godi falls under the definition of land.
There is another circumstance which supports the above view and that is the treatment of brick kiln (bhatta) separately in the Revenue record from the godi. In the copy of Jamabandi at page 34 of file Vol. I (D. S. C.), both the items are mentioned separately and separate areas are given as being thereunder which would show that even if both areas are ghair mumkin, the one mentioned as godi cannot be treated as bhatta itself. Had it been so, the entire area would have been treated as entered as ghair mumkin Matta. The fact that some of it is mentioned as ghair mumkin bhatta and the other as ghair mumkin godi shows that the quality and potentiality of both the lands is different.
10. There is another aspect of the matter. The brick kilns have been treated as industrial concerns not allotted by the Industries Rehabilitation Board for the purpose of their disposal: under paragraph 15 of the Schedule to the Settlement Act. No, arguments have been raised by the learned counsel for the petitioner that the brick kilns could not be so treated and it has been assumed by both the learned counsel that the kiln itself is an. industrial concern. On my own, I do not think it is necessary, in this case, to examine the question whether or not the kiln will fall under the scope of "Industrial concern" as envisaged in paragraph 15 of the Schedule. The definition of industrial concern given in the Settlement Scheme No. II which deals with the disposal of such like concerns is not very helpful in respect of this question. Therefore, treating the kiln only as an industrial concern, it is to be seen as to what is the departmental interpretation in respect of the land attached to the brick kilns for the purpose of removing the earth. The memo. dated 4th May 1960 (at page 141 of the old Manual of Settlement Law) has not dealt with the question, specifically, of land attached to the brick kilns. Though with regard to certain other types of industrial concerns, it has been mentioned that if an industrial concern, generally speaking, consists of more units some of which it may be possible to treat as shops and houses ; the same may be excluded from the industrial concern if they form independent units and may then be disposed of as shops and houses under Settlement Scheme No. I (see para. (5) of the memo). In respect of the brick kilns, however, the question clarified in a subsequent letter issued by the Chief Settlement Commissioner ; who holds the office under bath the laws, i.e. the Land Settlement Act as well as the Settlement Act. The letter in point is No. 56‑LFR 61‑89‑R(P), dated 17th April 1961. It has been referred to and relied upon in the order passed by the Deputy Rehabilitation Commissioner (Lands) (Annex. C/1'). In this letter, it is clarified that if an area is mentioned in the Revenue Record as "brick kiln, etc.," and not as agricultural land, whether its allotment as agricultural land should be cancelled After considering the question it was decided that the confirmed allotments of the said area, as land, should be treated as final and should not be cancelled on the ground that the land is entered as brick kiln in the Revenue record. The learned counsel for the respondents vehemently contended that the Chief Settlement Commissioner had no power to issue such a policy letter in respect of the definition of land given in the Land Settlement Act. The learned counsel for the petitioner has not been able to show me any provision of law under which the Chief Settlement Commissioner could issue such a policy letter. But there is no denying the fact that the Chief Settlement Commissioner cannot be deprived of interpreting the law in either of the Acts. Therefore, this letter can be considered as the departmental answer to a question involved in this case ; which it is not improper for this Court to take into consideration. It is only in this context that the letter has been referred to.
11. There is yet another aspect of the question whether or not the property in dispute could be disposed of as land. It is an admitted fact that the brick kiln was originally allotted, on 21st June 1950, by the Rehabilitation Advisory Committee. The order of the Committee filed by the respondents with the counter‑affidavit is Annex. R/A'. The copy shows as if the Committee, while allotting the brick kiln, allotted the entire land of about 27 acres comprising of Khasra Nos. 153 to 155. This, however, does not appear to be the case. The original order which is on page 1 of the file Vol: III (Rehabilitation) specifically refers to the bhatta and the well' as having been allotted by them. Had it been the intention of the Committee to allot the entire land in the above Khasra numbers, the well would not have been separately mentioned. The copy (Annex. R/A') shows the order of the Committee being in quotation, which is the correct reproduction of the original order on the file ; but in the opening part of the copy of the order (without quotation marks), the above khasra numbers are mentioned ; which is not the position with regard to the original order on the file. It may be that at the time of allotment, only the brick kiln (proper) and the well for the purpose of supplying water for the preparation of the bricks, were allotted to Taj Muhammad and others, and subsequently somebody without paying any attention to this aspect of the matter included the above Khasra numbers in the formal order of allotment because the brick kiln was situate in them. This supposition is strengthened by a report/note recorded by an A. R. C. on 23rd March 1950/3rd April 1950, in respect of the area/land which is alleged to have been allotted along with this brick kiln. The note reads as follows :‑
"The case relating to Lime Kiln' on a land measuring 109 Rodes and 9 Poles on Sirki Road, Quetta, was discussed in three meetings of the Advisory Committee as one Waris Khan (a local) had applied for its allotment. A Sub‑Committee was deputed to visit the site and its members are of the opinion that the land in question is not suitable to run a kiln, but may be utilized for cultivation after making it smooth and levelled by means of Tractors. They also suggested to entertain more applications from other Refugees who are desirous for the allotment as the present applicant being a non‑Refugee (local) may be given a chance for its allotment along with them."
it was after this that other persons including Taj Muhammad were considered as applicants and the order, dated 21st June 1950 was passed. It does not appear from the file that the question of treat ing the land adjoining the brick kiln as agricultural land was ever reviewed by the Committee. It is, in this context, that to my mind the items bhatta and well' only are used in the order, dated 21st June 1950 by the Committee and the other land which was described as godi is not so included in the allotment. Even if an extreme position is visualized of the allotment of the entire area, it must be considered to have been allotted not the whole of it as brick kiln ; but partly as brick kiln, partly as well and partly as godi land. In whatever light it is looked at, in my view even at the time of allotment the property in dispute, except the brick kiln (bhatta) itself, was not treated as industrial concern and was being treated as land. In passing, it may be remarked that the copy of the re‑allotment in 1957 of the kiln filed with the writ petition (Annex. A') mentions the brick xiln bearing municipal Nos. 153 to 155. These, of course, are Khasra numbers ; but the description of the brick kiln, it appears, has been taken from the copy of the previous order of June 1950 which, to my mind, was not correctly prepared. As discussed above, the brick kiln being in one of these Khasra numbers and copy of, the allotment of 1950 having mentioned these Khasra numbers, the documents prepared in 1957 and thereafter also mentioned those Khasra numbers. Otherwise, as explained above, the allotment was of the brick kiln (proper) and the well only.
It may be clarified that this aspect of the matter has been taken note of by me while going through the file only as an additional circumstance. Otherwise, I have already held on other grounds that the godi land and the land other than the brick kiln in the property in dispute falls within the definition of land as given in the Land Settlement Act and could be legally dealt thereunder.
In the light of the above discussion, the allotment of that particular land to the petitioner cannot be assailed on the only ground that it could not be allotted to him under the Land Settlement Act because it formed part of industrial concern. That being so, the allotment, thereof in favour of the petitioner could not be annulled, directly or indirectly, by the Settlement Authorities acting under the Settlement Act.
This finding, of course, is subject to the exercise of other powers by the competent authorities under the Land Settlement Act. In particular, I may refer to a part of the facts narrated above wherein it is mentioned that an application under section 10 in respect of the allotment having been obtained by the petitioner, by means of fraud and misrepresentation is still pending before those authorities. Subject to the question of fraud, etc. (in the exercise of the power under section 10/11 of the Land Settlement Act) and that too in respect of matters other than the question of the nature of the land in dispute, the allotment of the above land to the petitioner was valid and no exception can be taken to it on the basis that it could not be dealt by the Land Settlement Authorities under the Land Settlement Act.
It may be mentioned that the learned counsel for the respondents had, at one stage, contended that the allotment to the petitioner cannot be treated as confirmed allotment. The allotment in dispute was made on 24th February 1959, which has been confirmed by a detailed order passed by the Deputy Rehabilitation Commissioner (Lands) Annex. C/1'), somewhere in 1964‑65. It is admitted by the learned counsel that the allotment was made under the Land Settlement Act. When pointed out that the allotments made under that Act need not be formally confirmed, except when they are made due to lack of data as provided in proviso (c) to subsection (3) of section 15, no circumstance has been mentioned from which it may be gathered that the allotment to the petitioner was only provisional on the basis of inconclusive data. The use of the word "temporary" in the order of allotment, it appears, is only mechanical, due to the forms being used by the authorities concerned in those days. Otherwise, it is admitted by the learned counsel that there is no provision for the confirmation of an allotment under the Settlement Act ; and that after an allotment, in whatever form it may be, the permanent settlement takes place subject, of course, to the exercise of powers under sections 10 and 11 and to the payment of fees, etc. In any case, the allotment, in this case, in my view was confirmed, if confirmation was necessary, by the order (Annex. 'C/I') of the Deputy Rehabilita tion Commissioner (Lands).
12. Next the question arises whether the area which has come under the kiln itself and is being used for that purpose for more than two decades and that area which is under servant quarters or is being used for preparation of bricks, or storing them, remains agricultural or not. It is admitted at bar by both the learned counsel that this area is 31 acres, in the property in dispute. I have already remarked that the brick kilns (proper) have been treated as industrial concerns to be disposed of under paragraph 14 of the Settlement Act, and this position has not l been challenged by the learned counsel for the petitioner ; rather he himself relied on the memo. dated 4th May 1960, referred to above, which clearly treats the brick kilns as industrial concerns. If that is, so, there is no justification for the petitioner to claim the allotment or transfer of the said industrial concern on the basis of his claim for agricultural land. In the writ petition itself, in paragraph 3, it is admitted that the area allotted to the petitioner included a brick kiln, though it is specifically mentioned that in addition to that it included the land in Khasra Nos. 153, 154 and 155. If, according to the admissions of the petitioner himself, a part of the property in dispute is a brick kiln, the same could not be transferred to him. Therefore, without going into the details of the question as to the nature of that part of the property and in view of the facts ; that factually it has been admitted that 3J acres in the disputed property is a brick kiln (proper) ; and the fact that it is not disputed that the brick kiln (proper) is an. industrial concern which can be disposed of under the Settlement Act ; and the further fact that the petitioner has, in the writ petition, claimed the property in dispute on the basis of its having been allotted to him in compensation against a land claim, I feel constrained to hold that the petitioner is not entitled to a relief under the discretionary jurisdiction under Article 98 of the Constitution, in respect of the area of the brick kiln (proper), i.e. 32 acres.
13. With the above findings, the question as to the legality, propriety and jurisdiction of the orders passed in this case presents no difficulty. The order of allotment under the Land Settlement Act was passed in favour of the petitioner in February 1959. An order is said to have been passed by a Deputy Settlement Commissioner (Urban) in favour of Taj Muhammad in November 1959, transferring the same property as an industrial concern. Apart from the fact whether or not a Deputy Settlement Commissioner could pass such an order because the contention of the learned counsel for the petitioner is that, according to Settlement Scheme No. II, only Additional Settlement Commissioner were empowered to transfer industrial concerns ; the fact remains that the property stood already transferred to the petitioner under another law by a different authority and that the Deputy Settlement Commissioner (Urban) acting under the Settlement Act had no jurisdiction to transfer the same for Taj Mohammad. It may be mentioned here that the respondents have not produced the original order of transfer in favour of Taj Muhammad. I called upon the learned counsel for the respondents to show if ever such a specific order of transfer was passed. He referred to a short order by the Deputy Settlement Commissioner on page 4 of the Settlement file Vol. Il which is (already) marked by a line drawn around it, which reads as follows :‑
"Prepare fresh PTO and get the amount adjusted today. CSS‑4.
Entry should be made.
(Sd.) DS&RC
19‑1‑61."
This order was made on an application of association, dated 27th October 1960, by Taj Muhammad with one Mr. Ghulam Safdar requesting that an amount of Rs. 2,016 be adjusted from the Compensation Book submitted by him and an amended P. T. O. be issued. It was, in this connection that the above order was passed in January 1961. This cannot, at all, be the order of transfer on the basis of which the original P. T. O. was issued on 16th November 1959. As the position emerges from the record, it appears no order was ever passed in favour of Taj Muhammad before the issuance of the P. T. O., dated 16th November 1959. Therefore, the said P. T. O. has no basis at all.
14. The order passed by the Additional Settlement Commissioner, dated 26th September 1961 (Annex. 'D') on the miscellaneous application of Taj Muhammad, whereby he excluded the entire property in dispute from agricultural land and held that Taj Muhammad was entitled to the transfer thereof under paragraph 15 of the Schedule to the Settlement Act, is k illegal and without jurisdiction ; because the property had already been transferred to the petitioner as land under the Land Settlement Act and without getting that order set aside in the heirarchy of the Land Settlement Authorities the said order (Annex. 'D') cannot be held to have been passed with competence.
The order is illegal on another ground as well. Admittedly, the petitioner had acquired a right in the property in dispute and was an interested party. The said order was passed without giving him an opportunity of hearing. The contention of the learned counsel for the respondents that Taj Muhammad or for that matter the Additional Settlement Commissioner did not know that the property had been allotted to the petitioner, has no factual basis because, as stated earlier, Taj Muhammad has, in paragraph 6 of his grounds of revision (Annex. M'), clearly stated that he moved the Additional Settlement Commissioner because he had come to know "about the transfer in favour of" the present petitioner.
15. It is true that the order passed by the Settlement Commissioner, on 4th July 1962, remanding the case to the Additional Settlement Commissioner was without hearing Taj Muhammad and for that reason it can be treated to be illegal.
But after the remand, Taj Muhammad participated in the proceedings before the Additional Settlement Commissioner in the hope that he may obtain a favourable order. Not only this but also, he failed to challenge the order of the Settlement Commissioner before any other authority or before the High Court in writ jurisdiction. This conduct of Taj Muhammad, of the authority of Ghulam Mohi‑ud‑Din's case (P L D 1964 S C 829) would deprive him of any relief in respect of the remand order, even if it can be held that the same was illegal.
The learned counsel for the respondents has assailed the order of remand, dated 4th July 1962, on another ground, namely, that it was passed on an appeal filed by the petitioner which according to him, was not competent. The argument of the learned counsel is that the order passed by the Additional Settlement Commissioner (Urban), dated 26th September 1961 (Annex. D') in respect of the exclusion of the property from agricultural land, not being within the jurisdiction of the said officer under the Settlement Act, was not passed under that Act : and if it was not passed under that Act, the appellate jurisdiction under section 19 thereof could not be attracted ; because an appeal could be filed only against the orders passed under that Act and ; therefore, according to him, the petitioner was not an aggrieved party for filing an appeal before the Settlement Commissioner under the same Act. I must say that in order to raise this technical objection, the learned counsel has contradicted his position on the other two questions, i.e. the nature of the property and the jurisdiction of the Settlement Authorities (Urban). Be that as it may, it must be said that the argument is misconceived. An order in favour of the petitioner by the competent Authorities under the Land Settlement Act had already been passed. Another authority not having jurisdiction in the matter passed the order against him. Even if that order was without jurisdiction and was not passed under the Settlement Act, yet the fact remains that an authority (Additional Settlement Commissioner), in his purported exercise of jurisdiction under that Act, passed the order against the petitioner. Therefore, he immediately became aggrieved of the order in that purported exercise of jurisdiction under that Act. He could assail the same by means of an appeal or revision before the Settlement Commissioner exercising jurisdiction under the same Act, with the prayer that the order which had already been passed by the Additional Settlement Commissioner under the same Act, was without competence and was liable to be set aside as without jurisdiction. There is nothing illegal about it. This is the normal course of challenge of orders which are claimed to be without jurisdiction but are passed in purported exercise of a valid jurisdiction. Therefore, finding no merit in this contention of the learned counsel, I repel the same.
16. The order, dated 17th June 1964 (Annex. E') passed by the Additional Settlement Commissioner (Urban) whereby the claim of Taj Muhammad in respect of the property in dispute was rejected appears to ma to have proceeded on the correct lines ; in that the property in dispute was land and not subject to the jurisdiction of the Settlement Authorities (Urban) under the Settlement Act and that the same having already been disposed of as land could not again be transferred to Taj Muhammad as a brick kiln. He, therefore, held that the transfer in favour of Taj Muhammad of the entire property as brick kiln under paragraph 15 of the Schedule was invalid and was thus liable to be cancelled with the result that the original application of Taj Muhammad, dated 31st August 1961, for the exclusion of the property from agricultural land was dismissed. About the land under the brick kiln (proper) which, I have already stated, is 31 acres, the Additional Settlement Commissioner was of the view that Taj Muhammad could move for the exclusion of this area, only, from the transfer of land in dispute to the petitioner but it could be done only before the Land Settlement Authorities. I agree with this observation of the Additional Settlement Commissioner ; and if the present proceedings in the High Court had not been under Article 98 of the Constitution, I may have also confirmed that part of the said order also. But, as already held by me, the petitioner cannot be granted relief in this discretionary jurisdiction in respect of 32 acres area under the brick kiln (proper) about which he has made an admission in the writ petition and about which it is not claimed that it is not an industrial concern and cannot be disposed of as such: In that view of the matter, even if, as I have held, the order by the Additional Settlement Commissioner (Annex. E') is legal and the one passed by the Settlement Commissioner on 20th June 1966 (Annex. R') and impugned in this writ petition is illegal, the petitioner cannot be granted the relief in respect of this area of 3J acres under the brick kiln (proper) because on his own admission he is not entitled to it.
The learned counsel for the respondents assailed the order by the Additional Settlement Commissioner (Annex. E') on the ground that it went beyond the scope of the application, dated 31st August 1961 on which the same was passed. I do not agree with this contention. The scope of the enquiry initiated on that application included both the questions firstly whether or not the property in dispute was land and secondly whether or not the same could be transferred to Taj Muhammad ; and it was in this sense that the same was understood by the Additional Settlement Commissioner who passed the earlier order in favour of Taj Muhammad on 26th September 1961 (Annex D'). Both these questions were decided in that order also. After remand, the Additional Settlement Commissioner while considering the case afresh did not commit any illegality by again deciding both the questions ; but this time the order was against Taj Muhammad.
17. The order passed by the Settlement Commissioner on 20th June 1966 (Annex. R') which is impugned in this petition has been assailed by the learned counsel for the petitioner, on the ground that it was passed on a time barred appeal (even though it was described as a revision) and that the condonation of delay was without hearing the petitioner. I do not agree with the analysis by the learned counsel of the proceedings before the Settlement Commissioner. The property in dispute stood transferred to Taj Muhammad (though illegally as explained above). This order of transfer was set aside by the order of the Additional Settlement Commissioner, dated 17th June 1964 (Annex. E'). The latter order, in so far as it set aside the transfer in favour of Taj Muhammad, cannot be treated to be an original order. It could only be set aside in appellate jurisdiction. If that is so, the proceedings before the Settlement Commissioner could not be of appeal. If those proceedings are treated of revision, then there being no limitation for filing a revision the same could not be held to be time barred. Therefore, I find no force in the contention of the learned counsel for the petitioner that the impugned order is illegal because of the so‑called appeal being time‑barred.
It is, however, open to question whether the Settlement Commissioner should have exercised the revisional jurisdiction as late as in June 1966 when the order impugned before him was passed in June 1964, and in the intervening period Taj Muhammad had approached the authorities under the Land Settlement Act for redress and, in fact, some of the proceedings were still pending before those authorities. The conduct of Taj Muhammad does not appear to be such as to make him entitled to a relief in the revisional jurisdiction by the Settlement Commissioner after such a long time. This aspect of the matter can be decided by reference to the ruling of their Lordships of the Supreme Court in the case of Abdul Majid Shaida v. Mst. Noor Jahan and another (PLD1967SC221). But I refrain from making any further comment on this question as the same was not argued at the bar. Moreover, it is unnecessary to examine the legality of the impugned order on the basis of the above aspect of the matter because, on my findings as to the nature of the property and the jurisdiction of the Settlement Authorities (Urban), the conclusion which follows is that the impugned order by the Settlement Commissioner transferring the entire property as industrial concern under the Settlement Act (Annex. R') to Taj Muhammad was illegal and without jurisdiction and is liable to be set aside on that score alone.
18. The contention of the learned counsel for the respondents that the Settlement Act is "superior to" the Land Settlement Act and, therefore, the orders passed under the former Act should prevail notwithstanding any order passed under the latter Act, is without any force. He has referred to section 36 of the Settlement Act. That provision cannot override the whole c structure of settlement under the Land Settlement Act. This Acti shall operate in the subjects dealt therein. As mentioned earlier, the order was validly passed by competent authorities in respect of the subject‑matter dealt under the Land Settlement Act. I Therefore, there is no question of there being a clash or, inconsistency between the provisions of the two Acts.
19. Lastly, the argument of the learned counsel for the respondents that the petitioner is estopped from challenging the transfer to Taj Muhammad of the entire area at brick kiln because the former was an allottee thereof, is untenable. The petitioner never accepted the position that the land other than that under the brick kiln was an industrial concern. If that is so, the question of estoppel does not arise. Moreover, as observed earlier, the. allotment in 1950 and also in 1957, in my view was not of the land other than the brick kiln. The argument is, therefore, repelled.
20. In the light of the above discussion, I accept this petition in respect of the land in the property in dispute other than 3J acres which falls under the brick kiln (proper). The order, dated 20th June 1966 (Annex. R') passed by the Settlement Commissioner is set aside as being illegal and without lawful authority and those passed in favour of the petitioner by the Land Settlement Authorities (Annex. B') and C/1', subject to earlier observations and except in so far as the above‑mentioned area (31 acres) is concerned, are held to be valid and operative. There shall be no order as to costs.
S. A. H. Petition accepted except for land under kiln.
Order accordingly.
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