1987 PLP 1432 (SCMR)

SAAD SAOOD JAN, J.‑‑ These are four petitions for special leave to appeal by the Provincial Government from the judgment and orders dated 27‑1‑1981 of the Lahore High Court, Bahawalpur Bench, by which the order of the Settlement Commissioner cancelling the allotments of the respondents was declared to be without lawful authority.

2. The dispute in these petitions relates to 29 acres 2 kanals and 13 marlas of land situate in the revenue estate of Rahimyar Khan. This land was formerly evacuee property. Its possession was taken over by the Provincial Government in January 1958 for setting up a village aid training institute. On a request made in this behalf, the Central Government by its letter dated 6‑3‑1958 accorded its approval under section 16 (3) (b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1957 to the acquisition of the said land by the Provincial Government on the conditions that fair compensations would be assessed in consultation with Custodian of Evacuee Property and that the displaced persons, if any, would be provided with alternate land. In 1961 the village aid programme was abandoned and the land in dispute was taken over by the Agricultural Department which then established an Agricultural Training Institute there. We are told that a building has been constructed by the Provincial Government on the land for the Institute and a fairly substantial amount of foreign aid given by the World Bank has been expended on its development.

3. While the Provincial Government was running the Agricultural Training Institute on the land in dispute the chairman of the local allotment committee by separate orders on 9‑10‑1964 transferred different parcels of the land as evacuee property in favour of Rao Fazal‑ur‑Rehman, Asadullah Khan and Dr. Abdul Salam. It may be mentioned that Rao Fazal‑ur‑Rehman was the father of Riaz‑ur‑Rehman. He was a former Deputy Commissioner of Rahimyar Khan. Asadullah Khan had retired as a settlement inspector. The case of the Provincial Government is that in obtaining transfers out of the land in the occupation of the Institute Rao Fazal‑ur‑Rehman and Asadullah Khan had exercised undue influence. However that may be, the Provincial Government filed appeals against the transfers made in favour of the respondents but these were dismissed by the Additional Settlement Commissioner on 28‑10‑1967. The Provincial Government then did not pursue the matter on the revisional side of the Settlement Commissioner but entered into correspondence with the Chief Settlement Commissioner for the cancellation of the transfers made in favour of the respondents. Ultimately under a direction given by the Board of Revenue Mr. Waheed‑ud‑Din Rathor, exercising the powers of the Settlement Commissioner, inquired into the validity of the transfers and by his order dated 20‑1‑1979 cancelled them. The respondents challenged the order of Mr. Rathor in writ jurisdiction in the High Court. A learned Single Judge in the High Court allowed the writ petitions and as already indicated declared the said order to be without lawful authority.

4. The main contention on behalf of the Provincial Government is that the property in dispute did not form part of the compensation pool as constituted under section 5 of the Displaced Persons (Land Settlement) Act, 1958, and for that reason‑it could not be transferred to the respondents. In this context it relies upon the notification of 8‑6‑1960 issued under section 4(2) of the Act for the acquisition of the evacuee property in the Province for the constitution of the compensation pool. In this notification exception was made in respect of lands for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property), Act, had been accorded before the date of its issuance. It was urged that as the land in dispute was clearly covered by the exception it did not form part of the compensation pool. Consequently, it could not be transferred to the respondents by the Allotment Committee.

5. The above contention was also raised before the learned Single Judge in the High Court. He rejected it on the grounds that the area covered by the sanction issued by the Central Government was not identifiable and as such it could not be held that the sanction referred to the land in dispute; apart from that the sanction was conditional upon payment of compensations and settlement of the displaced persons on alternate land; both these conditions were not satisfied. Consequently, the Provincial Government could not take advantage of the sanction in order to nullify the transfers made in favour of the respondents by a competent authority.

6. On behalf of the Provincial Government it is pointed out that there was no controversy between the parties with regard to the land which was covered by the sanction issued by the Central Government. In this context learned counsel referred to paragraph 5 of the writ petitions as well as the written arguments of the respondents that were presented before the High Court; that being so, the learned Single Judge was not right in holding that the identity of the land covered by the sanction could not be established. As regards the conditions to which the sanction was subject the learned counsel stated that the matter of payment of compensations was entirely one between the Provincial Government and the Central Government and the learned Single Judge could not disregard the sanction just because this condition was not fulfilled. As regards the condition of providing alternate land to the displaced persons, it was stated that the Provincial Government had given an undertaking before the learned Single Judge that it would abide by this condition and that this undertaking was still good.

7. The learned Single Judge also held that at the time when the Evacuee Laws were repealed there were no proceedings pending before the settlement authorities within the meaning of section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act and as such the Settlement Commissioner was not competent to cancel the transfer made in favour of the respondents. He also found that as Mr. Waheed‑ud‑Din Rathor had in a different capacity himself recommended to the Chief Settlement Commissioner for the cancellation of the transfers, he was not subsequently competent to make an order to that effect on account of bias.

8. It is contended on behalf of the Provincial Government that the learned Single Judge was not right in holding that no proceedings were pending at the time of the repeal of the Evacuee Laws as the Chief Settlement Commissioner has already been moved by a letter dated 15‑10‑1968 to take action for the cancellation of the transfers. The finding that Mr. Rathor had any bias in the matter has also been challenged. It is further contended that in any event this was not a fit case where the High Court should have interfered with the order of the Settlement Commissioner as the transfers obtained by the respondents were illegal because the property in dispute did not form part of the compensation pool and was being used for a public purpose.

9. The contentions raised on behalf of the Provincial Government need further examination. Leave to appeal is granted. The appeals should be made ready on the present record. The parties will be at liberty to file additional documents if any. M. I. /P‑16/S. Leave granted