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Civil Petition for Special Leave to Appeal No. 298‑R/85, heard on 15th February, 1986.

(On appeal from judgment, dated 28‑1‑1985 of the Peshawar High Court, Peshawar in Writ Petition No. 19/D of 1983).

‑‑S.2‑‑Scheme for Disposal of Evacuee Agricultural Land in N.‑W.F.P. (Scheme II of 1976), para. 6‑‑Transfer of land‑‑Material produced on record showing that land in dispute was allotted in favour of petitioner on basis of his claim verified by Central Record Office‑‑Settlement Commissioner also writing to Deputy Settlement Commissioner that claim of petitioner had been verified and directing thereby to keep intact land in dispute already allotted to petitioner and that its illegal auction to respondent be cancelled and a refund case for payment of auction money prepared for necessary action‑‑Land in dispute, held, was not available for disposal under Scheme 11 of 1976‑‑Auction‑In favour of respondents void and of no legal consequence‑‑Petitioner continued to be a valid allottee of land in dispute.

M. Sardar Khan, Senior Advocate Supreme Court, Hafiz S.A. Rahman. Advocate Supreme Court and Imtiaz Muhammad Khan Advocate‑on‑Record for Petitioner.

Arbab Humayun, Advocate Supreme Court, Iftikhar Gilani, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record for Respondents.

Date of hearing: 15th February, 1986:

‑This is a petition for leave to appeal directed against the judgment, dated 28‑1‑1985 passed by the Peshawar High Court, Peshawar in Writ Petition No. 19‑D of 1983, whereby the High Court was pleased to dismiss the aforesaid writ petition.

The petitioner is a refugee from the State of Junagadh, which was forcibly incorporated into the Indian Union. He has settled down in Karachi and was lately working in the modest position of a Driver in the Overseas Registrars Limited, Karachi. However, he appears to have abandoned considerable landed property in the Junagadh State because a large area of land was verified in his favour. Most of his claim was satisfied by the allotments of agricultural land in the District of Nawabshah (in the province of Sind) but as his entitlement was not fully satisfied by these allotments his surplus units were transferred to D.I. Khan District (in the province of N.‑W.F.P.) where he secured allotments amounting to a total of 12009 units in ten different Mauzas. One of these ten Mauzas, wherein he secured allotments, was Mauza Jinda. Here he was allotted an area of 583 Kanals 8 Marlas on 9‑9‑1963 in lieu of 410 Produce Index Units, vide RL‑II No.6. However, in so far as he had settled down at Karachi, the land allotted to him was managed through his Attorneys.

It appears that on 28‑12‑1976 an area measuring 381 Kanals 4 Marlas out of his allotments in Mauza Jinda was treated to be "available" and "unallotted land" and was put to auction under a Scheme framed under the Evacuee Property and Displaced Persons Law (Repeal) Act No. XIV of 1975 for disposal of the evacuee agricultural land in N.‑W.F.P. (hereinafter referred to as Scheme II of 1976) in favour of the contesting respondents. The petitioner, on becoming aware of this development submitted an application, sometimes in 1981, to the Deputy Settlement Commissioner, D.I. Khan through his general attorney seeking cancellation of the auction on the ground that it was void ab initio and illegal. As no action was taken on this application he submitted another application to the same officer on 25‑10‑1981 through his special attorney for the same purpose. The Deputy Settlement Commissioner, D.I. Khan summoned the petitioner to appear before him in person in connection with this application. The latter, however, failed to comply with this direction on the ground that he was a bed‑ridden old man and had been recently operated upon in the Civil Hospital, Karachi and was therefore, unable to travel from Karachi to D.I Khan for attending his Court, in person. However, to satisfy the learned Deputy Settlement Commissioner about the factum of his being in existence the petitioner executed a fresh power‑of‑attorney in favour of Syed Muhammad Ismail Shamim duly registered at Karachi on 9‑6‑1982 and also forwarded his Driving License alongwith the certificate of his employer. He also got a notice published in the Daily Nawa‑i‑Waqt, Karachi, dated 10‑6‑1982 appointing Mr. Ismail Shamim as his attorney.

When the case came up before the learned Deputy Settlement commissioner, he took no notice of the abovementioned documents and was pleased to dismiss the application, dated 25‑10‑1981 on the short ground that the real claimant had not appeared in Court, vide his order dated 4‑12‑1982. He, however, further directed that necessary verification about the claim in question may be made from the Central Record office in the aforesaid order, dated 4‑12‑1982.

The petitioner feeling aggrieved by the said order assailed it, through a revision before the Settlement Commissioner, D.I. Khan. This was dismissed on the ground of lack of jurisdiction because after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 no such remedy was available. The petitioner thereupon filed a Writ Petition (No. 19‑D of 1983) before the D.I. Khan Circuit Bench of the Peshawar High Court.

Meanwhile pursuant to the order of the Deputy‑ Settlement Commissioner, D.I. Khan, dated 4‑12‑1982 regarding verification of the petitioner's claim the following answer was sent to the Deputy Settlement Commissioner by the Settlement Commissioner D.I. Khan Division, D.I. Khan, vide his Memo No. 7436‑Settl., dated 23‑7‑1983:‑

"The claim Q.P.R. No. 35905/110 has been verified by the Central Record Office, Lahore, vide his No. 180/CR, dated 28‑5‑1983 which is sent herewith with the direction that land already allotted against this claim may be kept intact and the illegal auction made in respect of land in dispute may be cancelled and refund case in respect of Muhammad Ramzan son of Ghulam Muhammad etc. be prepared and sent to this office for further necessary action. "

Ultimately, when the writ petition filed by the petitioner came up for hearing before the Peshawar High Court at D.I. Khan, the learned Judge in the High Court hearing it expressed the view that as the Deputy Settlement Commissioner was empowered to require personal attendance of the petitioner before him he was justified in dismissing his application, dated 25‑10‑1981 on his failure to appear before him in person. He further observed that "the learned Deputy Settlement Commissioner had entertained doubt about the alleged order of allotment as it did not bear seal of the authority concerned. Similarly, the copy of "Robkar' referred to in the petition was also challenged as the original of it was not available on the file kept in the office. Furthermore, unusually the fee required to be deposited on the eve of allotment of the land has not been deposited with the department till the filing of the application. Neither any mutation was attested on the basis of the alleged allotment nor any effect was given to such transfer in the revenue record as the land is recorded in the name of the Central Government in the Jamabandi for the year 1971‑72 and 1977‑78. The allotment was also allegedly made in his favour through one Gulzar Khan attorney for the petitioner. His personal participation throughout these proceedings does not stand established from the record." He further went on to observe that "it also appears on the perusal of the record that the claim of the petitioner was enquired into by the Enforcement Staff and according to their report submitted to the Department on 20‑5‑1975 a certificate was issued in favour of the petitioner bearing No. 35905/110 for Hyderabad. It is, therefore, clear that the questions raised in this writ petition are pure questions of facts requiring recording of evidence and detail scrutiny in the presence of the parties concerned. Consequently this writ petition is dismissed with no order as to costs." This order was passed on 28‑1‑1985.

When this petition for leave to appeal against the abovementioned order of the High Court came up for hearing before us it was submitted that as the area in question had been permanently settled in favour of the petitioner the same had gone out of the compensation pool and was not, therefore, available for being dealt with under the N.‑W.F.P. Settlement Scheme 11 of 1976. Consequently, its auction and purchase by the respondent and the further orders passed in connection therewith were all without jurisdiction and the fact whether the petitioner appeared before the Deputy Settlement Commissioner, D.I. Khan or not was irrelevant in view of the fact that the Settlement authorities had no jurisdiction to deal with the area in question after its permanent settlement in favour of the petitioner. As there appeared to be force in this submission, notice was issued to the respondents to hear their point of view on this aspect of the case. Accordingly, Mr. Iftikhar Gilani and Mr. Arbab Humayun have appeared on behalf of respondents Nos.8 to 13 before us today and the learned counsel for the parties have been heard at length.

The true question that requires our consideration is whether the land in dispute could be regarded as available for disposal through auction on 28‑12‑1976, when it was transferred in favour of respondents Nos. 3 to 13 by the Settlement Authorities by way of auction.

The petitioner claims that he was allotted, inter alia, the land in dispute on 9‑9‑1963, vide RL‑11 No.6, that fn 1966 a question arose as to whether the petitioner's surplus units had been properly transferred to the D.I. Khan and whether the allotments secured by him in D.I. Khan were correct. Accordingly, the Enforcement Police attached to the Settlement Department conducted an enquiry into this question and reported that nothing was detected against him. Again, after the area in dispute was put to auction the matter was enquired into by the Rehabilitation authorities and the following report submitted by the Accountant to the DSC/DC, D.I. Khan on 16‑6‑1981:‑

"That one Mr. Bahauddin son of Lal Bhai (the petitioner herein) a claimant displaced person was allotted evacuee land measuring 583 Kanals 8 Marlas in Mauza Jinda, Tehsil and District D.I. Khan, vide RL‑11 No.6 and as such necessary R.O. Letter No. 364, dated 9‑9‑1963 was issued to the Tehsildar D.I. Khan for attestation/ Mutation, etc.

After that during auction of evacuee land in 1976‑77 an area of 381.14 have been auctioned and approved in favour of M/s. Muhammad Amir, Jamal Din and Shah Kamal, etc.

According to Scheme II of 1976, para. (c) and para. 6 auction of this land has been made against the scheme as the same land was allotted land and not available for disposal.

Under the circumstances explained above and reports made by the Patwari Halqa, dated 26‑1‑1980 and Patwari Rehabilitation, dated 23‑5‑1981, 3‑6‑1981 and Tehsildar D.I. Khan, dated 29‑11‑1980 auction of this land is required to be cancelled."

A further report on the same lines was made by him on 26‑10‑1981 which reads as under:‑

"Sir, Reference your order, dated 25‑10‑1981. Report of Patwari is in detail. However, according to R.L.II of Mauza Jinda S. No.6, land measuring 583 Kanals 8 Marlas has been allotted to Bahauddin son of Lal Khan, a claimant, against his claim for which Robkar No. 364, dated 9‑9‑1963 has already been issued. But due to oversight land measuring 381 Kanals 4 Marlas has been put to open auction under Scheme II of 1976. Actually, the land auctioned on 28‑12‑1976 was not available land. Therefore, the auction has been made against the Scheme II of 1976. Accordingly, auction made on 28‑12‑1976 may be cancelled.

(Sd. ) xx 26‑10‑1981

DSC / D . I .Khan

Under what law

(Sd.) xx 28‑12‑1981"

Again in the Memo No. 7436/Settl, dated 23‑7‑1983 sent by the Settlement Commissioner, D.I. Khan Division, D.I. Khan to the Deputy Settlement Commissioner, D. I. Khan, referred to already, it was observed that the land already allotted to the petitioner may be kept intact and the illegal auction made in respect of land in dispute be cancelled as the claim of the petitioner had been verified by the Central Record Office vide No. 180/CR, dated 28‑5‑1983. It is, accordingly, submitted that in view of the above state of facts the land in dispute could not be put to auction.

Mr. Iftikhar Gilani, learned counsel for the respondents has drawn our attention to the written statement filed by the Settlement authorties before the High Court, in which it was averred that issuance of Robkar regarding allotment of 583 Kanals 8 Marlas in favour of the petitioner in 1963 was doubtful as no office copy of it was available in the claimants' file maintained in the Rehabilitation Office, D.I. Khan, that settlement fee as required by rule 7 had not been deposited by the petitioner; hence the land could not be said to have been permanently settled in his favour the existence of the real allottee was doubtful and the allotment had not been incorporated in the revenue record.

The High Court appears to have been impressed by these submissions. Indeed its observations that the Deputy Settlement Commissioner entertained doubts about the alleged order of allotment as it did not bear the seal of the authority concerned and the original of the Robkar referred to by the petitioner was not available in the file kept in the Rehabilitation Office and the non‑payment of the settlement fee were matters mentioned in the written statement filed before it and were not the grounds taken by the Deputy Settlement Commissioner while dismissing the application submitted to him on 25‑10‑1981, in his order, dated 4‑12‑1982. Herein, the sole ground taken was that the petitioner had failed to appear before him. On the other hand, he had observed so far as the merits of the matter are concerned that necessary verification about the claim in question may be made from the Central Record Office. As noted already the Central Record Office while verifying the claim held it to be correct. Thus, the doubts of the Deputy Settlement Commissioner, referred to in the judgment of the High Court appear to be the doubts expressed by him in the written statement filed in the High Court and not in his order, dated 4‑12‑1981 whereby he dismissed the application submitted by the petitioner, on 4‑12‑1981 as was' erroneously considered by the High Court.

Be that as it may, the crucial question which falls for determination is whether the land in dispute was still available for disposal on 28‑12‑1976 and could, therefore, have been put to auction

The undisputed position is that the land in question was put to auction under Scheme II of 1976. According to para. 6 of the said Scheme only "unallotted land" can be put to auction. "Unallotted land" under the said Scheme "means evacuee land which has not been allotted/ confirmed against verified claims or otherwise disposed under provisions of Displaced Persons (Land Settlement) Act, 1958 on or before 30th June, 1974".

On the basis of the material produced before us, however there is no doubt that the land in dispute was allotted in favour of the petitioner, which is evident not only from the reports of various officers referred to above and other documents placed on our record but also from the reply sent by the Settlement Commissioner, D.I. Khan Division, D.I. Khan to the Deputy Settlement Commissioner, D.I. Khan, vide Memo. No. 7436/Settl., dated 23‑7‑1983 wherein he clearly stated that the claim of the petitioner. had been verified by the Central Record Office, Lahore and the Deputy Settlement Commissioner was directed that the land in dispute already allotted to the petitioner should be kept intact and its "illegal auction" to the respondents be cancelled and refund case, regarding the auction money paid by them be prepared for necessary action. In view of this clear reply, sent by the Settlement Commissioner, no possible doubt is left about the fact that the land in dispute was allotted in favour of the petitioner and was not available for disposal under Scheme II of 1976.

Accordingly, we would convert this petition into an appeal and hold that the auction of the disputed land in favour of respondents Nos. 3 to 13 is void and of no legal effect. Similarly, the subsequent orders of the Deputy Settlement Commissioner, dated 4‑12‑1982 are without legal effect and that the petitioner is and continues to be the valid allottee of the land in dispute.

This appeal is allowed in the above terms, but in all the circumstances there will be no order as to costs.

M. Y. H. Appeal allowed.

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