1968 SCMR 12 (PLP)

FAZLE-AKBAR, J.-This appeal, by special leave, is brought before this Court to call in question a judgment of a Division Bench of the High Court of West Pakistan. The dispute in this case relates to a garden in Chak No. 325/E.B., Tehsil Vehari, District Multan. One, Ch. Ali Bakhsh who was a quasi-permanent allottee of about 8 squares of land comprising Khasra Nos. 2,5, 6, 12-17,24 and 25 of Square No. 22 in the said Chak, made a gift of the said land in favour of his grandsons, the present applicants Nos. 1-4. In the year 1952-53, the remaining area of Squares Nos. 22 and 23 of the said Chak was allotted on quasi-permanent basis to the appellants Nos. 5-18. Subsequently, they gave this land to Ch. Ali Bakhsh in lieu of his other lands. Thus, the entire land in Squares Nos. 22 and 23 comprising 24 acres, became the property of appellants 1-4 and their grandfather, Ch. Ali Bakhsh. On 31-3-59, Ch. Nabi Ahmad, Additional Rehabilitation Commissioner, allotted the above land describing it as a garden of 50 acres, to Khan Shah Muhammad Khan and directed the Deputy Commissioner, Multan, to arrange for-delivery of physical possession of the garden to the allottee. Ch. Ali, Bakhsh then filed an application before the Additional Settlement Commissioner stating therein that the land in question was "Banjar Qadeem" and that he had himself planted the said garden. A Tahsildar under the direction of the Additional Rehabilitation Commissioner, after inspecting the disputed land examining the record, submitted his report to him. In his report, he stated that from the lard taqsim prepared in 1950 by the Patwari and from the Canal Department report prepared in 1949, it appeared that there was a garden only in 63.4 kanals and that Ali Bakhsh had planted a garden in the remaining land. He concluded his report by saying : "In the circumstances, for the purpose of assessment of garden area the above-noted prima facie old compact garden or the area shown allotted as garden in the fard taasim or in the Canal Department report of 1949 may be taken to the garden existing at the time of the partition. The allotment of this area under the scheme if. considered necessary may be reviewed." Ch. Nabi Ahmad, Additional Settlement Commissioner, while referring the case to the Chief Settlement Commissioner, observed as follows : "We have either, to accept the area of the garden as found in the fard taqsim or in the report of irrigation Department. The date of entries in the fard taqsim is not indicated but Ahmad possibly may be later than the report of the Irrigation Department. It would, therefore, be safer to accept the report of Irrigation Department according to which the area of seven acres seven knnals and four marlas can only be allotted to Khan Shah Muhammad Khan. This area is situated in the midst of the Akbar, area (more than four squares) allotted to or obtained in exchange from other allottees by the petitioner (Ali Bakhsh) and if allotment is made it would lead to perpetual litigation and dispute between the parties. I, therefore, place this case before C. S. & R. C. to consider the cancellation of this area as garden so as to remain in the allotment of petitioners family and if C. S. & R. C. is not inclined to agree, then this allotment will be offered to Khan Muhammad Khan. Before placing this case before C. S. & R. C. I wanted to consult Khan Shah Muhammad Khan if he was prepared to accept this area as garden but as he is absent today in spite of the notice served on him I have no option but to report the matter to C. S. & R. C." Mr. Hashim Raza, the Chief Settlement Commissioner, after hearing the parties rejected the petition of Ch. Ali Bakhsh. He then applied for review of his order, but the same was also rejected by him on 5-11-59. He then moved a writ in the High Court challenging his order. A learned Single Judge of the High Court, however, upheld the preliminary objection that Ali Bakhsh having gifted his allotted land to his grandsons, had no locus standi to present the writ petition. He, accordingly, dismissed the petition on 12-i2-60. Ch. Ali Bakhsh then submitted a petition for review of the order of the learned Single Judge. He therein contended that he had locus man& to maintain the writ petition because he still retained the land which he had obtained in exchange from the appellants 5-18. On 20-3-63, the learned Single Judge recalled his previous order and allowed Ch. Ali. Bakhsh to continue the writ petition. En the meantime, present appellants Nos. 5--18 filed two miscellaneous applications for being made parties to the writ petition and these applications were accepted subject to all just exceptions. When the said writ petition along with two civil miscellaneous applications came up for hearing before Mr. Jamil Hussain Rizvi, J., the learned Judge granted the prayer of Ch. Ali Bakhsh for withdrawal of the writ petition. He accordingly dismissed it was withdrawn. He also dismissed the miscellaneous petitions n the ground that the applicants were not parties in the proceedings before the Settlement Commissioner. The appellants Nos. 1-4 then went up in revision before the Chief Settlement Commissioner against the order dated 31-3-59 of the Additional Settlement Commissioner. Appellants Nos. 5-18 also filed a revision petition against the said order. Both these petitions were, however, dismissed by him on 10-5-63. The appellants then on 5-6-63 filed in the High Court of. West Pakistan a revision petition under section 21 of the Displaced Persons (Land Settlement) Act, 1958, and, in the alternative, prayed for setting aside the order of the Chief Settlement Commissioner, in exercise of writ jurisdiction under Art. 98 of the Constitution. This petition was, however, dismissed in limine by the High Court on 5-7-63 on the ground that revision under section 21 of the Displaced Persons (Land Settlement) Act was not competent. The appellant were then granted special leave to appeal to this Court against the, order of the High Court. Mr. Mahmud Ali, the learned counsel for the appellant and Mr. Abdul Haque, the learned counsel for the respondents, L, have conceded that no revision lay to the High Court under section 21 of the Displaced Persons (Land Settlement) Act, 1958. Mr. Mahmud Ali has, however, rightly pointed out that the appellants alternative prayer for relief under the writ jurisdiction was not considered at all by the High Court. The appellants Settlement authorities on the ground that neither the cancellation of their allotments had been notified in accordance with the provisions of the Displaced Persons Land Settlement) Act, 1958, nor were they given any opportunity of being heard before cancellation of their allotments. These questions could have been easily considered by the High Court because there was an alternate prayer for relief under the writ jurisdiction, but, this escaped the attention of the High Court. Thus, the failure of the High Court to record any opinion with respect to the alternate prayer in the petition necessitates a remand of the case to that Court. We accordingly allow this appeal and direct that the case be returned to the High Court to record the necessary findings on the points raised in the petition, in exercise of its writ jurisdiction, and to make an, order after notice to the parties thereafter as 0, required by law. Costs will be costs in the cause. Appeal accepted. Case remanded.