1995 PLP 1519 (SCMR)

(On appeal from the judgment dated 6‑7‑1993 of the Lahore High Court in W.P. No. 99‑R of 1993). ‑‑‑‑S. 2(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Allotment of specific property in favour of petitioner in lieu of his claim for urban agricultural land‑‑‑Such allotment was scrutinized by Settlement Authorities who on finding such property on subservient to agricultural purposes maintained the allotment‑‑‑Such fact was further scrutinized and re‑affirmed by Martial Law Authorities‑‑‑Allotment of such property, thus, attained finality and was never challenged before any higher forum‑‑‑Property in question was let out and when tenant defaulted in payment of rent he was proceeded against‑‑‑Tenant (respondent) to avoid his ejectment made application alleging therein that property in question was hidden and that he should, be allotted the same, whereupon same was allotted to him by Chief Settlement Commissioner without hearing. allottee thereof‑‑‑Validity‑‑‑Leave to appeal was granted to consider; whether order passed under Repealed Settlement Laws after conscious application of mind by Competent Authorities and such order having attained finality and same having become a past and closed transaction could have been re‑opened and set aside by Deputy Administrator Residuary Property who was a limited Authority with regard to available property, and as to whether he could sit on judgment of Settlement Authorities having not been challenged before forum in the hierarchy. Muhammad Hussain Awan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for petitioner. Shahid Hussain, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Respondent No.3. Date of hearing: 26th April, 1995. FAZAL ILAHI KHAN, J.‑‑‑Grandfather of the petitioner; namely, Abdul Majid Khan was temporarily allotted land measuring 63 Kanals 4 Marlas including disputed Khasra No.1101 measuring 1 Kanal 0 Maria 112 Sq.ft. in lieu of his claim for urban agricultural land vide order dated 2‑9‑1953. Tariq Ismail Khan, his son, succeeded him and the land was proposed in his name in LR‑11 No.13 issued in his name on 17‑2‑1959 and subsequently confirmed on 18‑12‑1959.

2. It is worthmentioning that at the time of such exercise the Naib -Tehsildar on 24‑6‑1961 had reported that land bearing Khasra No.1101 was a "Kothee" and 'should not have been confirmed but the learned Additional Settlement Commissioner/Secretary, Allotment Committee discussed the matter and found, as a question of fact, that the said Abadi was subservient to agricultural purposes hence maintained the allotment vide order dated 15‑11‑1961. This fact was further scrutinized and re‑affirmed by Martial Law Authorities. The question, therefore, attained finality and never challenged before any higher forum.

3. The "Kothee" used to be let out to various persons from time to time and lastly it was let out to respondent No.3 in the year 1972 on payment of rent. Tariq Ismail Khan gifted this property to the petitioner on 8‑3‑1978. As such respondent No.3 became the statutory tenant under the petitioner. The tenant defaulted in payment of rent which compelled the petitioner to file petition for his ejectment from the "Kothee" before the Controller of Rent. To avoid his ejectment respondent No.3 made an application alleging that the "Kothee" was a hidden property and that he was entitled to its transfer. Alongwith the application he applied for condonation ‑of delay in filing R‑Property Form which was allowed by the Chief Settlement Commissioner without hearing the petitioner. Deputy Administrator by his order dated 24‑5‑1984 held that the transfer in favour of the petitioner's predecessor was void, ab initio and treated the property as residuary property and ordered its transfer in favour of respondent No.3. The petitioner's revision petition against the same order was dismissed on 9‑1‑1993. His writ petition challenging the aforementioned orders as illegal and without lawful authority was also dismissed vide order against which leave to appeal is prayed for.

4. Leave is granted to consider; whether, the order passed under Repealed Settlement Laws after conscious application of mind by the competent authorities 'and such order having attained the finality and had become a past and closed transaction could have been re‑opened and set aside by the Deputy Administrator Residuary Property who has a limited authority with regard to the available property, and as to whether he could sit on judgment of the Settlement Authorities having not been challenged before the forum in the hierarchy. A.A./U‑64/S Leave granted.