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Writ Petition No. 1273‑R of 1976, decided on 9th February, 1983.

‑‑ Ss. 10, 11 & 12‑Allotment of land‑Land confirmed in name of petitioners assailed by respondent and matter awaiting decision on remand when Provincial Government sold land to respondent Land being not available at time of sale impugned order of sale thereof to respondent, held, without lawful authority.

Messrs Pakasia Paint Mills Ltd. v. Dr. Abdul Rauf 1970 S C M R 739 ref.

Ch. Qadir Bakhsh for Petitioner.

Nemo for Respondents.

Date of hearing : 9th February, 1983.

The petitioners challenge the order dated 17th February, 1976, passed by the Assistant Commissioner, with the powers of the Additional Settle ment Commissioner, confirming the sale of Khasra No. 145/16 min measur ing 1 Kauai situate in the urban area of Kamalia Town, District Toba Tek Singh, in favour of respondent No. 1.

2. The facts leading to the impugned orders are that the khasra in dispute alongwith 140/24 min (3 Kanals) was proposed in favour of the petitioners on 11th December, 1972. at Khata R. L.‑II/2310. The proposal was confirmed on 4th January, 1973. Respondent No. 1 made an applica tion to the Additional Settlement Commissioner for review of the order and for transfer of the land to the School. As no provision for review existed in law, the Additional Settlement Commissioner treated that application as the one under sections 10 and 11 of the Displaced Persons (Land Settlement) Act and allegedly without notice to the petitioners cancelled it vide his order, dated 27th February, 1973.

3. The petitioners challenged that order in appeal before the Settle ment Commissioner. He also treated the same as a revision petition. It was allowed vide order, dated 18th December, 1974. and the case remanded to the Additional Settlement Commissioner for a fresh decision.

4. Meanwhile, on 10th January, 1974, the Provincial Government passed an order selling the land comprising Khasra No. 145/16 to respon dent No. 1 under section 12(13) of the Displaced Persons (Compensa tion and Rehabilitation) Act. On 17th February, 1976, the case sent by way of remand was taken up by the Additional Settlement Commissioner, He, as stated above, confirmed the order of sale.

5. It is contended by the learned counsel for the petitioners that as the land in question had been confirmed in the name of the petitioners, on 4th January, 1973, it was not available for further sale by the Provincial or the Central Government, to any other person under the Displaced Persons (Land Settlement) Act, or the other Act noted above. He also relies on Messrs Pakasia Paint Mills Ltd. v. Dr. Abdul Rauf 1970 S C M R 739 to say that evacuee lands cannot be sold under section 12 of the Displaced Persons (Land Settlement) Act to any other person who is not a displaced person.

6. No one appears to contest this petition though a word has also been sent to the Bar Association so as to inform the learned counsel. The observations of the Supreme Court in the case noted above do support the case of the petitioners. They go as under :‑

‑The entitlement arose under the Displaced Persons (Land Settlement) Act, 1958. Under section 14 of this Act, allotments were to be made to only displaced persons against their verified claims in respect of the properties in the compensation pool. Even the power of the Chief Settlement Commissioner under section 12 of the Displaced Persons (Land Settlement) Act to dispose of proper ties in the compensation pool by sale or by any other manner was again subject to the provisions of the Act and the rules framed there under and would seem to be restricted to disposals in favour of displaced persons. After the lands had gone into the compensa tion pool even the power under section 25(2)(s) of the Act of 1957 would not be available."

7. It is also clear from the record that the land in question had been confirmed to the petitioners on 4th January, 1973. This transfer, however had been assailed by respondent No. I and the matter was awaiting decision in remand when the Provincial Government sold it to the School. In this view of the matter it has been rightly stated that the land was not available.

For the reasons given above, the impugned order dated 17th February, 1976, is declared to be without lawful authority and of no legal effect. The result is that the allotment as made in favour of the petitioners vide order dated 4th January, 1973, 'shall be maintained. There will be no order as to costs.

M.Y.H. Petition accepted.

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