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Writ Petition No. 674/11 of 1979, heard on 12th April, 1983.
‑‑‑Ss. 10 a 11‑‑Constitution of Pakistan (1973), Art. 199‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑Allotment of land‑‑Cancellation of‑‑Settlement Authorities in total ignorance of fact that disputed land had already been confirmed to petitioners, wrongly assumed that same had been unauthorisedly allotted to person other than petitioners‑‑Authorities on application of respondent for cancellation of allotment, cancelled allotment from name of confirmed allottee and confirmed same in name of respondent quite ignoring fact that land had already been duly confirmed to petitioners‑‑Order passed by Settlement Authorities in total ignorance of facts, held, could hardly be sustained and was set aside by High Court in constitutional jurisdiction.
M. Asghar Ali for Petitioners.
Ch. Muhammad Nazeer for Respondents Nos. 1 and 2.
Dr. A. Basit and Ch. Muhammad Rafiq Khan for Respondent No. 3.
Date of hearing: 12th April, 1983.
The petitioner's father was temporarily allotted Khasra No.98 measuring 3 Kanals and 16 Marlas, Khasra No.145 measuring 63 Kanals and 5 Marlas and Khasra No.147 measuring 4 Kanals and 10 Marlas of land in village Targarh, Lahore by the Assistant Rehabilitation Commissioner on 16‑7‑1950. The petitioner's predecessor‑in‑interest remained in possession until he died in 1960. The land was confirmed in favour of the petitioners as the heirs of the deceased allottee by the Special Allotment Committee on 16‑10‑1968. When the question of adjustment of units for the area allotted came up, the petitioners were asked to give units as if the area was a garden whereas the petitioners contended that on the spot there was garden and it was ordinary land. Having unsuccessfully represented before the Settlement Department, the petitioners filed Writ Petition No. 116/R of 1970 in which learned counsel appearing for the Settlement Department submitted that the representations made by the petitioners did require adjudication and if matter in accordance with law, the petitioners are entitled to adjustment of the units on the basis of the possession at the spot as it appears then action has to be taken accordingly". It was decided that "it is clear that the adjustment has to be made in accordance with the provisions of para. 6(iv) of Part II of the Rehabilitation and Settlement Scheme. If on the spot, there is no garden as such, but it is only ordinary land, then, the petitioners' claim for adjustment of the units on the basis has got to be given effect to" . A direction was accordingly issued vide order, dated 2‑4‑1975. The petitioners, thereafter, learnt that the land in question had been allotted to Abbas Ali Khan and Himat Khan etc. behind their back. They filed Writ Petition No. 779/11 of 1975. During the hearing of this petition learned counsel for Abbas Ali stated that the latter had not got any allotment. The writ petition was allowed except to the extent of 4 Kanals and 10 Marlas of Khasra No. 147 allotted to Bashir Ahmad vide order, dated 15‑10‑1958. The petitioners have come up in the third petition above titled complaining that the land from Khasra No.145 measuring 52 Kanals and 12 Msrlas earlier shown to have been allotted in favour of Abbas Ali etc. has been cancelled vide order, dated 16‑2‑1978 and allotted in favour of respondent No.3 vide order, dated 19‑4‑1978.
2. The learned counsel for the petitioners has contended that the petitioners were entitled to remain in peace of the confirmation made in their favour more than a decade and half ago.
3. The learned counsel appearing on behalf of Settlement Department submitted that the order of this Court passed in Writ Petition No. 116/R of 1970, dated 2‑4‑1975 does not appear to have been incorporated in the record and that is why the allotment was made in favour of Abbas Ali Khan and since the latter had no title the same has been cancelled by order, dated 16‑2‑1978.
4. The learned counsel for the contesting respondent No.3 has vehemently contended that the petitioners are not entitled to relief because they do not have units for adjustment in lieu of the area earlier confirmed to them.
5. The order impugned in this petition is that of the Additional Settlement Commissioner with the powers of Chief Settlement Commissioner on an application under section 10/ 11 of the Displaced Persons (Land Settlement) Act, 1958 whereby he has cancelled the land from the name of Abbas Ali Khan by order, dated 16‑2‑1978. This Abbas Ali Khan is the same person against whom the petitioners have successfully earlier filed Writ Petition No. 779/R of 1975. The impugned order deals with the land as if it were in the allotment of Abbas Ali Khan and that he had no right to retain it. At the time when the impugned order was passed on 16‑2‑1978 the land did not vest in Abbas Ali Khan. It had been confirmed in 1968 in favour of the petitioners and their first writ petition had been accepted on 2‑4‑1975. The officer was in total ignorance of this fact as well as the fact that the confirmation of the land in favour of the petitioners had been upheld by the High Court three years earlier than his own order. The order passed in total ignorance of facts can hardly be sustained.
6. In view of what has been stated above, the impugned order, dated 16‑2‑1978 is declared to be without lawful authority and of no legal effect. Consequential order, dated 19‑4‑1978 allotting the land to respondent No. 3 shall automatically fall through. This petition is thus allowed with costs to be borne by the Settlement Department.
H. B. T./G‑6/L Petition allowed.
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