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Writ Petition No. 461-R of 1977, decided on 4th March, 1986.

---Art 199---Displaced persons (Land Settlement) Act (XLVII of 1986)Ss. 10&11 Evacuee property and Displaced persons Laws (Repeal) Act (XIV of 1975) S.2 Allotment of land Cancellation of Bona fide Purchaser of land for value from original allottee of land in dispute, held, could not be deprived of such land in toto in case certain areas from khatta purchased by such bona fide purchaser subsequently was found to be unallotable to original allottee---Bona fide purchaser was entitled to retain rest of area after excluding unallotable area---order of Settlement Authority to put in auction area retainable by such purchaser after excluding unallotable area, was declared to be without lawful authority and of no legal effect by High Court in Constitutional jurisdiction.

Ch. Muhammad Tufail for petitioner.

Nemo for Respondents Nos. 1 and 2.

Ch. Mushtaq Ahmad khan for Respondent No.6 and others.

Date of hearing 4^th March 1986.

An area measuring 198 Kanals 1 Marla was allotted to one Fateh Din Khata No. 35 of register RL 11 on 15-4-1968. It was purchased by the petitioner on 11-1-1969 for a sum of Rs.18;000 and a mutation of sale No. 1221 was sanctioned on the same day in their favour. An application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was filed on 19-4-1974. It was enquired into and the Patwari concerned stated that Khasras Nos. 400, 404, 511 and 517 measuring, 20 Kanals 11 Marlas were owned by Bashindgan Deh and such were not allotable being non-evacuee. In addition to that it was stated that there existed evacuee house in 12 Khasra numbers which too were unallotable being Ghair Mumkin Abadi. Finding the aforesaid areas unallotable the entire allotment was cancelled with the directions that Khasras Nos. 400, 404, 511 and 517 shall vest in the Bashindgan Deh and also after excluding the area under the houses, the remaining area is reverted to compensation pool and will be auctioned in accordance with the instructions of the Chief Settlement Commissioner. The area allotted to any other person and included in this Khata if any will be also excluded and restored to the prior allottee. Only that area will be put to auction which is available for allotment after excluding the area as mentioned above." The application was, accordingly, disposed of vide order dated 5-4-1974. The petitioners filed a revision petition which was dismissed vide dated 24-12-1976. Hence, this Constitutional petition.

2. Learned counsel for the petitioners has contended that the petitioners are bona fide purchasers for value. At the worst; the allotment of Khasras Nos.400, 404, 511 and 517 measuring 20 Kanals 11 Marlas said to be owned by Bashindgan Deh could be excluded from the allotment. So also' the area under the houses of earlier allotted to others. But the rest of the area which has been ordered to be auctioned could not be auctioned because there was no doubt about the allotment of the predecessor-in-interest of the petitioners.

3. Learned counsel appearing for the private respondents has submitted that the original allottee was non-existent.

4. In reply the learned counsel for the petitioners stated that of course, he was non-existent because he had already died and he could neither be impleaded in Mukhbari proceedings, nor could possibly be summoned.

5. There being no doubt about the validity of the allotment in favour of the predecessor-in-interest of the petitioners and in view of statement of the learned counsel for the petitioners that the petitioners would give up their claim in relation to Khasras Nos.400, 404, 511 and 517 measuring 20 Kanals 11 Marlas which belong, to Bashindgan Deh and to the area under the houses or earlier allotted, the just thing to do is that the petitioners retain the rest of the area purchased by them some 25 years ago and question of auctioning the same, in the circumstance, would not arise. In this view of the matter impugned order of the Additional Settlement Commissioner/ Chief Settlement Commissioner dated 5-4-1974 is declared to be without lawful authority and of no legal effect to the extent that it directs the areas, other than the Bashindgan Deh. under tile houses or earlier allotted to be auctioned. The petition is thus allowed. In the circumstances, the parties shall bear their own costs.

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