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Writ Petitions Nos. 269-R of 1983 and 122-P of 1985, decided on 21st December, 1985.

---Art. 9--Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11--Evacuee Property and Displaced Persons Laws (Repeal), Act (XIV of 1975), S.2 (2)--Memorandum of 1-12-1982--Withdrawal of pending cases from field officers--Such withdrawal only in respect of Mukhbari applications--Application being Mukbari application remained on file of Notified officer---Application within purview of pending proceedings, held, would survive repeal of evacuee laws.

--Ss. 10 & 11--Allotment--Confirmation of--No order of confirmation of land available on record- -Roznamcha Waqiati's entry only mentioning supply of copy of R.L. II--Confirmation of allotment, held, could not be established in circumstances.

---Art. 9--Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11--Bona fide purchasers--Claim of--Mutation in favour of predecessor of petitioners. sanctioned--Mutation of sale in favour of petitioners sanctioned on same day--Hurry displayed by petitioners. held, did not display bona fides on their part but was evidently done only to set up plea of bona fide purchasers for value--Plea was. therefore, rejected.

---Art. 9--Constitutional jurisdiction--Invoking of--Petitioner not moving Court from 1968 to 1985--Copy though obtained in 1977, petitioner waited for eight long years--By not invoking constitutional jurisdiction promptly, petitioners, held, had waived their right in circumstances.- [Waiver].

Muhammad Akram etc. v. D.S.C., Rawalpindi, etc. P L D 1979 Note 109 at p. 81 ref.

---Art. 9--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3--Right of purchase--Property admittedly not agricultural but built up area--Land not transferable as available land or building site--Petitioners, held, had no right enforceable through constitutional petition.

Sher Zaman for Petitioners.

Syed Jamshed Ali with Syed Ahmad Saeed Kirmani for Respondents.

Dates of hearing: 3rd, 4th, 7th and 11th December, 1985.

This judgment will dispose of W. P . No. 269-R of 1983 and W . P . No. 122-R/85 as common questions of law and facts are involved.

2. The dispute relates to evacuee land measuring 433 Kanals 10 Marlas in Khasra Nos. 971, 956, 958 and 960 located in village Bogri, District Kasur. According to Liaqat Ali, etc. petitioners in Writ Petition No. 269-R of 1983, this land was proposed in the name of Musa on 27-3-1968 and was confirmed on 20-4-1968 by the orders of the Assistant Commissioner/ D.S.C. (Land), Kasur. A mutation No. 878 in this regard was sanctioned in favour of Musa on 19-5-1968 and the same day, mutation No. 879 regarding the sale of the same property was sanctioned in favour of the present petitioners. Naseeba petitioner in W.P. No. 122-R of 1985 is interested in Khasra No. 958 only a portion of which is in possession of Naseeba and Ramu, two brothers, and, Gharibi, daughter of Lad Khan challenged the orders of the Deputy Settlement Commissioner (Land) of 20-4-1968 whereby Khasra No. 958 alongwith other Khasra numbers had been confirmed in favour of Musa. Malik Khurshid Ahmad, learned Additional Settlement Commissioner (Land), Lahore vide his order, dated 28-8-1969 found that according to the Register Haqdaran Zamin of 1955-56 whole of this Khasra was entered as Shamlat Hasbi Paimana Milkiyat. He also found that since Muslims and non-Muslims both had shares in Shamlat, this Khasra number could not have been allotted to the respondents unless Shamlat land was regularly partitioned. He accepted the appeal of Naseeba, etc. and remanded the case to Deputy Settlement Commissioner (Land) for partitioning the Khata and their considering the claim of the various persons on merits. It appears that the orders of 28-8-1969 were not acted upon and no further proceedings were taken. Even Naseeba, etc. chose not to pursue the matter until they decided to come to the High Court ir. W.l'. No. 122-R of 1985. Strangely enough as against the three original contenders, the list of interested persons had blown to fourteen, eleven of whom are obviously strangers to the proceedings.

3. Apart from Naseeba, referred to in the preceding paragraph Rehmat, now a respondent in the two Writ Petitions also set up a claim for allotment of land in question. He too brought an appeal against the orders of the Deputy Settlement Commissioner (Land), Kasur, dated 20-4-1968. This appeal was disposed of also by Malik Khurshid Ahmad, learned Additional Settlement Commissioner (Land), Lahore on 15-9-1972. was observed that even though Rehmat claimed to be sitting allottee and had a preferential claim over Musa, etc. no order could be passed in the appeal as it was premature, the R.L.-11 showing only a proposal without any confirmation. The learned Deputy Settlement Commissioner was directed to hear the claim of Rehmat before confirming the land to Musa, etc. respondent before him. In pursuance of these orders Rehmat moved an application before the Deputy Settlement Commissioner (Land) on 10-1-1973 for implementing the orders of 15-9-1972. While this application was still being processed the evacuee laws were repealed. On 7-1-1981 the Assistant Commissioner, Kasur decided to refer this application to the Additional Deputy Commissioner (G) as according to him, the Settlement cases were being dealt with by him. The Additional Deputy Commissioner (G) exercising the powers of Additional Settlement Commissioner (Land), Kasur, vide his order, dated 28-3-1981 decided to refer the matter to the Settlement Commissioner in the Headquarters' office. Ultimately, the matter was referred to the District Collector, Kasur by the Chief Settlement Commissioner through a memorandum, dated 6-12-1982 to dispose of the case under the relevant revenue laws. The Deputy Commissioner, Kasur has finally disposed of the matter exercising his powers as District Collector/ Additional Settlement Commissioner, Kasur, vide his order, dated 24-5-1983. He found that the order of confirmation, dated 20-4-1968 was nothing but a forgery. He decided to cancel the proposal of 27-3-1968. He found that Rehmat respondent had a preferential claim over the land as his 280 units were pending satisfaction. Three hundred and eighty-eight Kanals 10 Marlas land in dispute was thus allotted to Rehmat respondent. This order has been challenged by Liaqat Ali, etc. who are the purchasers of land from Musa to whom the land had initially, purported to have been confirmed.

4. The learned counsel appearing on behalf of Liaqat Ali, etc. petitioners in Writ Petition No. 269-R of 1983 had raised the following contentions: -

(i) The impugned orders have been passed without lawful authority as on 24-5-1983 the Deputy Commissioner was no longer a Notified Officer. All the cases had been withdrawn from the Field Officers through a memorandum, dated 1-12-1982 for disposal at the Headquarters.

(ii) The orders of confirmation, dated 20-4-1968 had attained finality and could not be disturbed after more than 15 years.

(iii) No proceeding were pending at the time of repeal of the evacuee laws, therefore, no land could be allotted to Rehmat after the laws were repealed.

(iv) The orders of 15-9-1972 passed on the appeal of Rehmat to the effect that only a proposal had been made on 20-4-1968 was factually incorrect as actually the land had already been confirmed _ on that date.

(v) The finding of forgery is not well-based.

5. As regards the question whether the Deputy Commissioner was a Notified Officer or not there is no dispute regarding the fact that the Deputy Commissioner under the relevant notification is a Notified Officer and that he continued to be so till today. The only question to be considered, therefore, was whether the Deputy Commissioner could pass any orders on the appeal of Rehmat when all pending cases had been withdrawn from the Field Officers through a memorandum on 1-12-1982, for decision by the Officers at the Headquarters. The memorandum of 1-12-1982 relates only to Mukhbari applications. It means that all Mukhbari cases were withdrawn from the Field Officers for decision only by the Officers at the Headquarters. The other cases, A therefore, continued to remain with the Field Officers as before. Rehmat's application of 10-1-1973 was not a Mukhbari application at all. It was only an application seeking implementation of the orders passed by the Additional Settlement Commissioner on 15-9-1972. The memorandum of 1-12-1982, therefore, could not operate, so as to, withdraw the present case also from the file of the Notified Officer. The Deputy Commissioner, Kasur, therefore, was quite competent to dispose of the application of Rehmat on 24-5-1983 as he was vested with necessary powers to deal with the pending cases. As regards the pendency of the matter, again, there can be no two opinions. Rehmat had appealed against the orders of the Deputy Settlement Commissioner, dated 20-4-1968 which appeal was disposed of on 15-9-1972 with a direction to the Deputy Settlement Commissioner (Land) to hear the claim before confirming the land to Musa, etc, respondents, before the Additional Settlement Commissioner (L). It was in pursuance of the orders, dated 15-9-1972 that Rehmat moved an application on 10-1-1973. Rehmat's application, therefore, was a pending proceeding and, therefore, survived the repeal of the evacuee laws on 30-6-1974. Similarly, the contention of Liaqat Ali, etc. petitioners that no land could be allotted to Rehmat after repeal of laws is to be rejected as he applied for the implementation of orders of 15-9-1972 well before the repeal of the evacuee laws and he cannot be penalised for inaction or indecision on the part of the authority over whom he had no control. Again there is no dispute that Rehmat was a sitting allottee and, therefore, had a preferential claim.

6. The question of forgery is hotly debated. The learned counsel for the respondents has argued that other material is also available on record to support the finding of forgery, even if the material relied on by the Deputy Commissioner is found to be lacking in any manner. It may be seen that the Deputy Commissioner found that the orders of 15-9-1972 passed on the appeal of Rehmat respondent clearly show that the orders of 20-4-1968 were only a proposal. He is of the view that the so-called confirmation of 20-4-1968 was a forgery and that it has been made after 15-9-1972. He also found that the record of the Patwari found no movement of the pending units of Musa from village Bhamba to the present village Bogri. In this regard, the learned counsel for the petitioners has stated that the orders of 28-8-1969 passed by Malik Khurshid Ahmad on the appeal of Naseeba, etc. clearly mentioned that Naseeba had brought an appeal against the orders of the Deputy Settlement Commissioner (L), dated 20-4-1968 whereby Khasra No. 958 had been confirmed. He is of the view that contrary opinion expressed on 15-9-1972 by the same Officer to the effect that this order was only a proposal is only an error of observation and cannot be treated as a basis in arriving at a finding of forgery. While this submission of the learned counsel is worth consideration yet, it cannot be ignored that when Naseeba's appeal, who claimed allotment of only a portion of one Khasra number came up for consideration, the only question which attracted the attention of Malik Khurshid Ahmad was the question of partition of Khasra No. 958 which being Shamlat had shares in it, both of Muslims and non-Muslims. The question, whether the orders of 20-4-1968 were a proposal or a confirmation of the proposal was not directly an issue before Malik Khurshid Ahmed, Additional Settlement Commissioner (L) when he passed, orders on 28-8-1969. As against that on 15-9-1972 Malik Khurshid Ahmad specifically mentioned that he had seen R.L.-II and that the orders of 20-4-1968 were only a proposal. The reliance of the Deputy Commissioner on the orders of 15-9-1972, therefore, is not entirely baseless. As regards, the movement of the units from village Bhamba to village Bogri where the land in dispute is located, it is true that the copy of R.L.-II (Annexure 'A') given a note, dated 1-2-1968 to the effect that 312 units had been received or: transfer from village Bhamba to village Bogri, but if there is a discrepancy between this note and the record of the Patwari produced before the learned Additional Settlement Commissioner there is no reason for ignoring the record of the Patwari altogether. Apart from this material, the learned counsel for the respondents had referred me to _ two other entries in the R.L.-II. 433 Kanals 10 Marlas of land against 312 units were proposed in favour of Musa, etc. according to the note on the R.L.-II on 26-3-1968. Surprisingly, the preliminary verification (Tasdeeq) was made on 15-3-1968 while Tasdeeq should have been taken place after the proposal and not before this. The other entry requiring attention is figure 971 referring to a Khasra number. There is obviously an overwriting on this number. This has been changed from some other number as seriatim Khasra No. 971 should have been mentioned as the last Khasra number in the series of Khasra Nos. 956, 958 and 960 and not in beginning of the series as has been done in the present case. The learned counsel for the respondent has stated that according to the certified copy made available to him Khasra No. 971 has been put in, in place of Khasra No. 911 for the reason that Khasra No. 971 consists of 206 Kanals 19 Marlas while Khasra No. 911 is a much smaller Khasra.

7. It has been shown by the petitioners that the confirmation order was passed by Mr. Jewan Khan who was the then Deputy Settlement Commissioner (L), Kasur and that Mr. Jewan Khan has not denied the signatures when he was consulted by the present Additional Settlement Commissioner (L) before he submitted the comments to the present writ petitions. The petitioners have also referred to the annexures with the report showing the tour programme of Jewan Khan and the copy of Rozenamcha Waqaati recorded by the Patwari of the Halqa. The learned counsel for the respondent also relies on the Annexures with the comments in order to show that the confirmation said to have been) made on 20-4-1968 does not find support either from the tour programme or Rozenamcha Waqaati of the Patwari. According to the copy of R.L.-II the confirmation was made by the Deputy Seftlement Commissioner at village Bheela where the Deputy Settlement Commissioner was on tour . on 20-4-1968. The tour programme shows that the S.D.M. was on tour to Bheela on 20-4-1968 but the purpose of the visit is the inspection of the Union Council Kotli Rai Abubakar which has its Headquarter at Bheela. Mr. Jewan Khan wrote an inspection note of his visit to the Union Council. As regards the confirmation of the proposal in the It . L. -II of the same date there is no other material except Rozenamcha Waqaati maintained in routine by the Patwari of the Halqa. The only entry in the Rozenamcha Waqaati of 20-4-1968 relates to a supply of a copy of R.L.-.II in Khata No. 100. Strangely enough there is no mention of the orders passed by Mr. Jewan Khan which may be connected with the confirmation orders on the Khata of Musa, the predecessor of the present petitioners. Considering all these circumstances the findings recorded by the learned Additional Settlement Commissioner that the confirmation of 20-4-1968 was nothing but a forgery is not far from truth.

8. It is claimed on behalf of the petitioners that they are bona fide purchasers for value. This plea is, however, not available to them as it is not constituted even on facts. The mutation in favour of Musa was sanctioned on 19-5-1968 and the same day a mutation of sale was sanctioned in favour of the present petitioners. The hurry so displayed does not show bona fides on the part of the petitioners. On the other hand, it is evident that this has been done only to set up a plea later, of bona fide purchasers for value. I have no hesitation in rejecting this contention.

9. The petitioners have also raised the contention of not being able to fully present their case before the Notified Officer but there is no substance in this contention. The petitioners had been associated with the matter for over ten years. They did not ask the Notified Officer for summoning of any witnesses. This plea is, therefore, nothing but an afterthought.

10. As regards the case of Naseeba, etc. it is evident that they did not move at all in the matter from 1968 to 1985. They obtained a copy of the order as early as 1977 but again awaited for eight long years before invoking the constitutional jurisdiction of this Court. In this background the learned counsel for the respondent can legitimately claim that Naseeba, etc. have waived their claim. He relies on the case of Muhammad Akram, etc. v. D.S.C. Rawalpindi, etc. P L D 1979 Note 109 at p. 81. What is more they have set up entirely a new case in the Writ Petition. They claimed that they are in occupation of 22 Kanals of Khasra No. 958 which otherwise measured 87 Kanals and that houses have been built on this land which have been in existence for over 30 years. This proposition has been questioned by the respondent who has stated that they are in possession of no more than four Kanals of land on which houses have been built and that even 4 Kanals have been illegally occupied. Whatever be the true facts, the fact remains that the petitioners cannot now claim a right to purchase this land under section 3 of the Act of 1975 as by their own admission the land is not agricultural but is built up area. Similarly this land cannot be transferred either as available land or a building site. It is significant that Naseeba, etc. have decided to join 11 strangers in the Writ Petition as against three original appellants who have set up a claim on a portion of Khasra No. 958. This has been done obviously in order to show that large number of persons will be affected if they have to be evicted from the land in question. Under these circumstances in my opinion Naseeba, etc. have no right in the land which they could now enforce through the present Writ Petition.

11. In view of the above considerations, both the Writ Petitions No. 269-R/83 and 122-R of 1985 are dismissed but there shall be no order as to costs.

S.A. Petitions dismissed.

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