1985 PLP 1871 (CLC)

The petitioner is a Mukhbar and had filed an application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, which was inquired into and the learned Additional Settlement Commissioner exercising powers of the Chief Settlement Commissioner vide order, dated 2-9-1976 cancelled an area measuring 16 Kanals 11 Marlas and allowed its purchase by the vendee of the original allottee. Mukhbari application of the petitioner was dismissed on the grounds that the land had already been cancelled. The applicant was a local and had no claim. This is challenged by the petitioner through this Constitutional petition.

2. Learned counsel for the petitioner has contended that but for the petitioner the land would not have become available for sale in favour of the respondent No. 2 and would have gone surreptitiously. The petitioner was entitled to land and the same had to be offered to him for sale, he being in possession, under section 3 of Act XIV of 1975.

3. Learned counsel appearing for respondent No. 2, who has been allowed to purchase the land being vendee from the original claimant, contended that the petitioner's Mukhbari application was filed on 30-8-1974. This was after repeal of all Settlement Laws from 1-7-1974 vide Act XIV of 1975, therefore, the application itself was not competent.

4. In reply, the learned counsel for the petitioner submitted that this objection was never raised before the authority who has passed the impugned order nor the application had been dismissed on this ground.

5. Vide the impugned order, the land has been sold in favour of the respondent No. 2, the purchaser from the original claimant. The allotment had been cancelled. He being bona fide purchaser for value from a claimant was entitled to protection of his rights. The vendee has not even been left at that but has been directed to purchase and pay for it. He could not be further deprived of his rights. As far as the petitioner is concerned, the certified copy of the application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, shows that it was filed on 30-8-1974. So also does the endorsement No. 512/S.C., dated 30-8-1974. Now if the application had been filed on 30-8-1974, it was incompetent altogether because the law under which it could be filed had been repealed from 1-7-1974 vide Act XIV of 1975. The contention of the learned counsel for the petitioner that in the impugned order the Additional Settlement Commissioner has observed that the application of the petitioner, dated 11-3-1974 had been received in his Court on transfer and, therefore, it will have to be taken that the application was filed on 11-3-1974 and was thus competent, is neither here nor there. That was a narration of fact made by the Additional Settlement Commissioner and was not a point in issue on which he decided the matter. Even if the application was filed on 11-3-1974, there is nothing on record to show that any proceedings were taken by 1-7-1974 and if no proceedings had commenced prior to 1-7-1974, then no proceedings could be started. It is only the pending proceedings which have been saved by the aforesaid Act of 1975. In this view of D the matter, the application could not be proceeded.

6. Learned counsel for the petitioner also contended that the order of the Additional Settlement Commissioner allowing the respondent No. 2 to purchase the land is without lawful authority and that the petitioner being in possession was entitled to be offered the land for sale.

7. Learned counsel for the respondent No. 2 submitted that the petitioner was not in possession. He had already been evicted vide order of the Assistant Collector Grade I, dated 14-6-1975 and possession taken from him and delivered to the respondent on 17-6-1975. Therefore, the respondent was rightly held entitled to purchase the land and the petitioner is not entitled to it.

8. The other contention of the learned counsel for the petitioner that the Additional Settlement Commissioner could not sell the land to respondent No. 2 has to be seen in the context that the Additional Settlement Commissioner has said that the respondent was entitled to purchase the land. In fact for the purchase of the land and to pay the price thereof, obviously the respondent No. 2 will have to approach the authority competent to sell and receive the transfer price.

9. In view of what has been discussed above, the petition has no force and it is, accordingly, dismissed with costs. A.A. Petition dismissed.