1987 PLP 58 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Respondent No.1 Ghulam Mohyuddin now deceased and represented by his legal representatives was a displaced person from East Punjab (India). He had submitted a number of claims, out of which land covered by claims Nos. 9312 and 9311, had been transferred by him to Abdur Rehman and others, the appellants herein, before partition. His own entitlement was 411 P.I.Us. as ownership rights and 573 PA. Us. as mortgage rights. As against his verified claims respondent No.1 was allotted land in Chak No. 232‑R . B. Tehsil and District Faisalabad. In the meantime, the appellants made an application that the land verified in the name of respondent No.1 against claims Nos. 9312 and 9311 did not belong to him, as it had been transferred to them. This application was allowed, vide order, dated 2nd September, 1959, by the Assistant Rehabilitation Commissioner (Punjab) who held that on a statement made on oath by respondent No.1 himself, the land in question was owned by Fateh Din predecessor- in‑interest of the appellants.

2. On 4th March, 1963, respondent No.1 submitted an affidavit before the Assistant Commissioner requesting that as the verified claim 9311 in his favour was in respect of land which did not belong to him, the land allotted against the same may be cancelled and adjusted against his claim No. 9313. The Assistant Settlement Commissioner accepted this request and directed that 573 units of respondent No.1 verified against his mortgage rights be adjusted as Khata No.91 and land cancelled from Khata against claim No. 9311 be adjusted against it.

3. It seems that this order was not challenged by the appellants as according to them they had no notice or knowledge of the same. They, however, made an application on 29th July, 1975, requesting the Assistant Commissioner/ Deputy Settlement Commissioner (Land) to restore the same land which was earlier allotted to respondent No.1 against claim No. 9311 in their favour, apparently because the land comprised in this claim was later found to be of their entitlement. This request was accepted by the learned Assistant Commissioner/ Deputy Settlement Commissioner (Land) vide his order, dated 28th January, 1976.

4. Being aggrieved respondent No.1 filed a constitutional petition before the Lahore High Court challenging the aforesaid order. The learned Single Judge who heard the constitutional petition held that the order passed by the learned Assistant Commissioner/ Deputy Settlement Commissioner (Land), dated 28th January, 1976, was illegal, without lawful authority and of no legal effect, on the following reasoning:‑ "A perusal of the record as placed on the file by the petitioner as well as the respondents shows that the land in question had been allotted to Ghulam Mohyuddin petitioner against his claims including claim No.9311. The allotment against claim No. 9311 had, however, been cancelled on 4th March, 1963, at his request as the petitioner had disowned that claim. The land so released was, however, adjusted under the same order against his claim No.9313 (for mortgagee rights) which had originally been ignored as the petitioner had exhausted his entitlement to the extent of 1000 units under the instructions. The contention of the learned counsel for the contesting respondents that the land allotted against claim No.9311 should have been given over to his clients is neither reasonable nor valid as the petitioner had a better right and claim over it after he got it cancelled from a claim which he disowned. In this view of the matter, the entitlement of the petitioner to retain the land allotted to him could not have been questioned and the Assistant Commissioner did not have any authority to cancel the same. Even otherwise the Assistant Commissioner/ Deputy Settlement Commissioner did not have any jurisdiction to reopen the allotment finalised in the year 1963 on an application made on 29th July, 1975, when his powers as the Deputy Settlement Commissioner (Land) had been taken away under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Further, he has not at all considered the fact that the allotment in favour of the petitioner stood finalised and could not be reopened on any account other than fraud or misrepresentation and that too before the repeal of the Displaced Persons (Land Settlement) Act."

5. The appellants, being dissatisfied with the judgment of the learned Single Judge in the High Court, preferred a petition for leave to appeal in this Court. On hearing the arguments of the learned counsel for the parties, by order, dated 8th March, 1983, this Court converted the petition into an appeal, in order to examine the correctness of the view taken by the learned Single Judge.

6. We have heard Mr. Muhammad Arif, learned counsel appearing for the appellants and Mr. Khalilur Rehman, learned counsel appearing for respondent No.1. It was mainly urged on behalf of the appellants that the order, dated 28th January, 1976, was passed in implementation of the direction given in the order passed by the Assistant Rehabilitation Commissioner, dated 2nd September, 1959, and since the claim of respondent No.1 bearing No. 9311 was cancelled, the consequential order logically flowing from it was that the allotment of respondent No.1 should have been cancelled and the land covered by it to have been allotted to the appellants. The adjustment of the unutilized units of respondent No.1 in regard to the mortgage land, to permit him to retain the land was also assailed as illegal. Learned counsel for respondent No.1 stated that the said respondent had himself appeared and made a statement on oath accepting the title of the appellants' predecessor to the land comprised in the two claims (Nos. 9311 and 9312) and consented to necessary changes to be made in the relevant records. Not only that but he voluntarily appeared before the Assistant Commissioner/ Deputy Settlement Commissioner and requested him to cancel his previous allotment as against claim No. 9311 and adjust the units against his claim No. 9313. Learned counsel submitted that his client had no objection to the appellants utilizing the claim in respect of the said land in obtaining allotment of the available land, but they had no right to ask the authorities to reopen the question of allotment made in favour of respondent No.1 on his other claim in respect of mortgage rights, as they have no claim to the allotted land superior to that of respondent No.1. 7.We are inclined to agree with the submission made on behalf of the respondent No.1. The appellants have not succeeded in making out a preferential claim to the allotment of lands made in favour of respondent No.1. Merely because the claim against which the said allotment was originally based, has been found, without any fraud having been practiced, to be not properly verified in favour of respondent No.1 is no ground for disentitling the said respondent from allotment of the same land as against his other claim. We are also unable to agree with the proposition that allotment of the land originally based on claim No. 9311 after the verification has been changed in favour of the appellants, was a necessary step consequential to the order passed by the Assistant Commissioner/ Deputy Settlement Commissioner, dated 2nd September, 1959. The said order, as indeed conceded by the learned counsel for the appellants was passed under para. 49 of the Rehabilitation Settlement Scheme. The order having given effect to the title of appellants' predecessor and ordering the mutation to be effected in the record was sufficient compliance with the requirements of law and the order exhausted itself by effecting the changes in the record. No further implementation of this order as such was contemplated or required. We are in agreement with the view that prevailed with the learned Single Judge that the entitlement of respondent No.1 to retain the land allotted to him was not open to question and the learned Assistant Commissioner had no jurisdiction to cancel the same in the manner done by him in his impugned order.

8. Learned counsel for the appellants, however, expressed apprehension that the decision made by the High Court would result in depriving the appellants of their entitlement to obtain allotment of land on the basis of the land abandoned by them in India which was the subject‑matter of the two verified claims mentioned above. This apprehension in our view is unfounded as in a proper proceeding before the competent authority, the appellants can always claim benefit of their entitlement subject to the limitations and requirements of the applicable law.

9. In the result for the reasons stated and with observations made herein above, this appeal is dismissed with no order as to costs. M.I. Appeal dismissed.