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Civil Petition No. 476 of 1976 decided on 10th August, 1981

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2‑‑Petitioner practicing fraud and misrepresentation in matter of allotment of land before Settlement Authority who recalled their order transferring land to petitioner on application made by respondent and case was ordered to be reheard‑‑Writ Petition filed by petitioner dismissed by High Court on technical ground of jurisdiction assumed by Settlement Authorities‑‑In view of conduct of petitioner and manner in which he had obtained order of allotment of land, High Court, held, was justified in refusing discretionary relief to petitioner‑

Leave to appeal refused.

Sh. Masud Akhtar for Petitioner.

Nemo for Respondents.

Date of hearing: 10th August, 1981.

An area measuring 79 Kanals 12 Marlas in village Sangla, Teshil Kharian, District Gujrat, which is in dispute, had been in temporary allotment of petitioner Muhammad Hussain as a Jammu and Kashmir refugee since 27‑10‑1952. However, acting as attorney of Sher Ali (respondent 2), he got it allotted in the latter's name. The relevant proposal was accepted on 21‑2‑1972 and confirmed the next day. Again, acting as such attorney, Muhammad Hussain sold the property in favour of his sons and the necessary mutation of the sale was entered at No.2043 on 30‑9‑1972. The sale was, however, sought to be pre‑empted by Lal Khan, respondent 1, by a suit instituted on 28‑9‑1973. Muhammad Hussain, thereupon, moved a revision petition on 30‑1‑1974 before the Settlement Commissioner challenging the allotment made in favour of Sher Ali on the ground that the land being in his (Muhammad Hussain's) temporary allotment as a Jammu and Kashmir refugee it could not be allotted to Sher Ali. In the proceeding, Sher Ali appeared and as he conceded the petition and there being no other party the Settlement Commissioner, by order, dated 5‑3‑1974, allowed the petition. This order was, however, challenged by Lal Khan by an application made before the Settlement Commissioner on 13‑11‑1974, on the ground that Muhammad Hussain had no locus standi to have moved the revision petition, nor had Sher Ali any locus standi to have confessed judgment as the land had already been transferred in favour of other parties who had not been impleaded in the proceeding. The learned Settlement Commissioner holding that the previous order had been prima facie secured by fraud and misrepresentation, recalled the same, restored the revision petition and direction that the vendees and Lal Khan should be afforded opportunity of hearing, vide his order, dated 8‑2‑1975. Against this order, Muhammad Hussain came to the High Court in Writ Petition No.97‑R of 1975. The contention was that after the repeal of the Evacuee Property Laws by Ordinance XV of 1974 followed by Act XIV of 1975, effective from 1‑7‑1974, the Settlement Commissioner had no jurisdiction to have entertained and decided Lal Khan's application filed before him on 13‑11‑1974. Lal Khan's locus standi to have moved his application was also questioned. These contentions were, however, repelled by the High Court on the ground that the earlier order passed by the Settlement Commissioner on 5‑3‑1974 was void and as such the revision petition had rightly been ordered to be reheard. Consequently, the writ petition was dismissed on 14‑4‑1976.

2. Learned counsel urges before us that the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974) having been promulgated on 30‑9‑1974, the Settlement Commissioner had no jurisdiction to have entertained Lal Khan's application instituted on 13‑11‑1974 and to have set aside his earlier order, dated 5‑3‑1974 which had acquired a finality.

3. Considering the conduct of Muhammad Hussain petitioner and the manner in which the order, dated 5‑3‑1974 had been obtained from the Settlement Commissioner, we are of the view that the High Court had rightly refused to grant him the discretionary relief on the technical ground of jurisdiction. No proper case is made out for grant of leave and as such the petition is dismissed.

M.Y.H. Petition dismissed.

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