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Writ Petition No. 1191-R of 1977, decided on 15th December, 1985

---Art. 199--Displaced Persons (Land Settlement) Act (XLVI1 of 1958), Ss. 10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss. 2 & 3--Allotment of land, cancellation of--Land becoming available: after final order of cancellation of allotment by Settlement Authorities, held, would be dealt with in accordance with provisions of repealing Act, 1975 and persons admittedly in possession, thereof would be entitled to purchase same under S. 3 of Act XIV of 1975.

Ch. Akbar Ali for Petitioners.

Ch. Muhammad Arif for Respondents Nos. 2 to 6.

Date of hearing: 15th December, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Laws (Continuance in Force) Order 1977, calls in question order, dated 5-1-1977 passed by the learned Assistant Commissioner/Additional Settlement Commissioner, Toba Tek Singh.

2. The facts briefly stated are that respondents Nos. 2 to 5 were allotted land in Chak No. 360/G.B.. Tehsil Toba Tek Singh, District "f; Faisalabad (now District Toba Tek Singh) in excess of their entitlement by 320 units. Gulab Din predecessor-in-interest of respondent No. 6 was also allotted land in the same village in excess of his entitlement by 333 P.I. units. The petitioners filed an application about this excess allotment before the respondents, on which an order, dated 29-10-1960 was passed. Yet another application was made on 28-12-1961 by the petitioners for implementation of the said order, dated 29-10-1960. The Additional Settlement Commissioner by his order, dated 15-1-1962 directed that the case be sent to the Sub-Divisional Officer for acting in accordance with order, dated 29-10-1960. The Sub-Divisional Officer/ Deputy Rehabilitation Commissioner (Lands), Toba Tek Singh by his order, dated 4-4-1962, however, directed that the file be sent to the Colony Officer for onward transmission of the claim forms to the Central Record Room and on receiving reply from there, send the file back to his Court by 5-6-1962. Before, however, this could be done, the Deputy Rehabilitation Commissioner (Lands) Toba Tek Singh passed an order, dated 28-2-1964 permitting respondents Nos. 2 to 6 to purchase the excess units. The above order was, however, recalled by the Deputy Commissioner/ Additional Settlement Commissioner on 20-4-1964. Respondents Nos. 2 to 6 preferred an appeal against order of the Deputy Commissioner/ Additional Settlement Commissioner and their appeal was accepted by the learned Settlement Commissioner by order, dated 3-12-1965 and the case was remanded for fresh decision in accordance with law after hearing the parties.

3. On remand the Additional Settlement Commissioner (Lands), Lyallpur (now Faisalabad) passed order, dated 31-5-1966 holding that it was not lawful for any authority to sell the excess area to the allottees. He, therefore, directed resumption of excess land from respondents Nos. 2 to 6. The said respondents filed a revision before the Settlement Commissioner which was dismissed on 6-2-1967. Writ Petition (W.P. No. 146/R-67) against the order of the Settlement Commissioner was dismissed by a Division Bench of this Court on 21-2-1967 and the Petition for Special Leave to Appeal against the order of the High Court also failed before the Supreme Court on 9-4-1967.

4. The land in dispute was then allotted to the petitioners by order, dated 15-10-1968 passed by the Deputy Settlement Commissioner, Toba Tek Singh. Respondents Nos. 2 to 6 preferred an appeal against this order of the Deputy Settlement Commissioner which was accepted by the Additional Settlement Commissioner by his order, dated 20-2-1969 and the case was again remanded to the Deputy Settlement Commissioner for decision afresh after hearing the parties. Revision by the petitioners to the Settlement Commissioner was dismissed on 2-3-1970 and their writ petition against the revisional order (W.P. No. 504/R-1970) was dismissed by the High Court on 10-3-1975.

5. The result of the above litigation was that the order, dated 20-2-1969 passed by the Additional Settlement Commissioner, Lyallpur (now Faisalabad) held the field whereunder the case had been remanded for adjudication afresh. In the meanwhile the Evacuee Laws were repealed w.e.f. 1-7-1974. The present respondents Fazal Elahi, etc., therefore, made an application for implementation of the order, dated 20-2-1969, and, therefore, the matter came up before the Notified Officer viz Assistant Commissioner/ Additional Settlement Commissioner by his order, dated 5-1-1977 held that the allotment to the petitioners stood cancelled because they were 13 Class permit holders. '1 'he petitioners feeling dissatisfied with the order, dated 5-1-1977 which maintained the cancellation of their allotment have come up in the present constitutional petition.

6. The main contention of the learned counsel for the petitioners was that the Additional Settlement Commissioner has illegally allowed the respondents to purchase the land in dispute as section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, was not applicable to the facts of the present case.

7. The only other contention of the learned counsel for the petitioners was that after the land had been ordered to be resumed from the respondents, which order of resumption had been maintained up to the level of the Supreme Court, there was no justification to have allotted part of the land to the respondents against their unsatisfied P.I. units and allowing the purchase of the remaining land.

8. On the contrary, the learned counsel for the contesting respondents submitted that section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1974 was fully attracted to the facts of the case in hand and the order of the Additional Settlement Commissioner, impugned in this writ petition is not only lawful but also has been passed on proper appreciation of the law on the subject and the facts of the case.

9. The learned counsel for the respondents next submitted that by order of the Additional Settlement Commissioner, dated 20-2-1969 the allotment of the land in dispute had been cancelled from the name of the petitioners which order by virtue of affirmation thereof by the High Court had attained finality and, therefore, the land in dispute had become available to be dealt with in accordance with the provisions of the Evacuee Property and Displaced Persons Laws (Repeal) Act, A 1975.

10. Having given consideration to the contentions raised on behalf of the parties. I am of the view that the contentions raised on behalf of the petitioners have no force.

11. It has been correctly pointed out that after the first ground of the litigation when the land had been allotted to the petitioners the second round of the litigation started under which the allotment of land in dispute from the name of the petitioners was also cancelled, by order, dated 20-2-1969. This made the land in dispute as available property as on the date of coming into force of Evacuee Property and' Displaced Persons Laws (Repeal) Act, 1975. The present petitioners after having unsuccessfully challenged this order before the High Court did not further pursue the matter which attached finality to the same and has thus a binding force against the petitioners as well. In the meanwhile, section 3(i) ibid conferred a right on the respondents to purchase the land as they were admittedly in possession thereof during the specified period.

12. It may also be observed that the position as apparent from the impugned order is that 55 produce index units of the respondents were still pending unsatisfied when the land was ordered to be resumed from them which made their entitlement to that extent wholly unexceptionable. It is also the admitted position that the respondents continued to be in possession of the land in dispute throughout. Further observation in the impugned order that by allowing the petitioners to purchase the land in dispute, their holdings would not exceed the subsistence holding is also going unrebutted. That being so the impugned order is perfectly lawful whereby confirmation of land equivalent to 55 units out of Killa Nos. 17 (8-18) and 18 (3-K min) of Square No. 6 in favour of Fazal Elahi and Muhammad Sarwar respondents Nos. 2 and 3 has been ordered and the purchase of the remaining land by the other respondents, viz. respondents Nos. 2 to 6 according to their respective possession has been allowed.

13. In view of the foregoing discussion I find no merit in this petition which is accordingly dismissed.

There will, however, be no order as to costs.

H . B . T . Petition dismissed.

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