1999 PLP 1400 (MLD)

(iv) Kasur (Urban) 566-05 (vii) Tehsil Ferozewla 346-05 (viii)Tehsil Chunian 1050-18 (ix) Tehsil Shakargarh 566-00 (x) Tehsil Shakargarh 611-18

7. It is submitted by the learned counsel for petitioner that estimated value of this land is about 17 billion rupees. Apprehension is expressed by the learned counsel for Chief Settlement Commissioner that lands at other places might also have been allotted but these allotments are still hidden. It is urged that in collusive manner with intent to seek to sanctify the order of Mian Ihsan-ul-Haq dated 26-2-1992 Nawabzada Ayyaz Ali Khan filed a writ petition in this Court (W.P. 10-R/93) for issuance of directions to the settlement authorities for compliance of order dated 26-2-1992 Qamar Sultana, neglected daughter of prep Nawabzada Mumtaz Ali Khan, also came forward She filed writ petition (W.P. 62-R/93). Nawabzada Ashraf Khan son of Nawabzada Mumtaz Ali Khan filed writ petition (W.P. 183-R/93) challenging the vires of order dated 26-2-1992. It is contended that the writ petition (W.P. No.10-R/93) smacked of mala fides as, in the meantime, already the contesting respondents had manipulated allotments of vast tracts of land. All the three writ petitions were disposed of by a learned Judge of this Court on 18-4-1993, and the order dated 26-2-1992 was upheld. Petition for Special Leave to Appeal No. 1153-L of 1993 was dismissed by Supreme Court of Pakistan on 29-1-1995.

8. Feeling aggrieved, Chief settlement Commissioner has filed present writ petition (W.P. No.91-R/98). Second Writ Petition No.66-R of 1998 is by one Muhammad Sharif who claims to be an occupant of land Khasra Nos.3496, 3498, 3511 and 3513 measuring 20 Kanals situated in village Mall, District Lahore. According to him he is in possession of the land since 20 years in lieu of his unsatisfied pending units. It is contended by him that the said land had been wrongly allotted in the names of heirs of the three brothers, referred to above, and that it should be sold to him after its cancellation from their names. The third writ petition (W.P. 77-R/98) has been filed by Nawabzada Ayyaz Ali Khan etc. assailing the order dated 12-2-1998 passed, by Chief Minister, Punjab passed on the summary submitted by Chief Settlement Commissioner to him, whereunder the Chief Settlement Commissioner was directed to proceed in accordance with law and undo the fraudulent allotments so as "to ensure safeguard of public interest". Writ petition (W.P. 91-R/98) titled "Chief Settlement Commissioner v. Mian Ihsan ul Haq etc." was admitted to regular hearing on 17-6-1998. It was noticed that the connected Writ Petitions i.e. 66-R and 77-R of 1998 were already part-heard by this Court. In this view of the matter it was directed that this writ petition may also be disposed of alongwith connected writ petitions. Service of the respondents was directed to be effected through registered post A.D., telegraphically as well as citation in the press for 26-6-1998 at the expense of the petitioner.

9. The case was taken up on 26-6-1998 when only respondent No.2 entered appearance, despite registered notice, telegraphically as well as citation in the press qua all the respondents. Respondents Nos.3 to 23 were directed to be proceeded against ex pane. Copy of the writ petition alongwith Annexures were handed over to respondent No.2 in Court and the case was adjourned to 2 7-1998. On 2-7-1998 respondent No.2 entered appearance in person. He stated that his counsel Ch. Khurshid Ahmad, Advocate, was busy before another bench and as such sought an adjournment. Mr. Arif Chaudhry, Advocate, entered appearance on behalf of respondent No. 5 (already ex parte). The case was directed to be listed for 6-7-1998. On 6-7-1998 an application (C.M.1013/98) was moved by Mr. Arif Chaudhry, learned counsel for ex parte respondent No.5. The only prayer made in this application was that time may be granted to file written statement. It was submitted that respondent No.5 was a citizen of U.S.A and on learning about this case had rushed to Pakistan and entered appearance on 2-7-1998, in this case. This C.M. was taken up in the earlier part of the day as urgent matter and I heard the learned counsel at some length. Following prayer was made in the application: "In view of the above submissions, it is most respectfully prayed that thirty days' time may please be granted to file written statement, in the interest of justice. " During the course of submissions also no prayer was made for setting aside the ex parse proceedings. It is well-settled that a defendant who is ex parte, can participate in further proceedings of the case (which in the instant case has reached the stage of arguments) but without getting the ex parte proceedings set aside cannot ask for permission to file written statement. This application is dismissed. Mr. Arif Chaudhry, Advocate, appeared alongwith Ch. Khursid Ahmad, Advocate, at the time of arguments in the main case, who had earlier filed written statement on behalf of respondent No.2 and rendered assistance to him.

10. I have heard learned counsel for the parties and perused the record with their assistance. It was submitted by Syed H.M. Naqvi, Advocate, counsel for petitioner Muhammad Sharif (W.P. 66-R/98) that the petitioner was entitled to purchase the land (20 Kanalas) in his possession. As regards respondents it was urged that Nawabzada Mumtaz Ali Khan had already secured allotment to the maximum limit of 36000 P.I. Units and if other brothers were aggrieved they could at the best, claim a share therein. It is urged that Mian Ihsan-ul-Haq, by passing the impugned order, had in fact reviewed mutation of inheritance qua estate of Nawab Faiz Ali Khan sanctioned 80 years ago which was wholly illegal. He thereby altered the entries in the special Jamabandi received from India which was not legally permissible. Ch. Mustaq Masood, Advocate, (W.P.No.91-R/98), referred to earlier litigation and contended that matter which was past and closed for all times to come was illegally opened in a mala fide manner, resulting in extensive allotments to the respondents causing loss of about 17 billion rupees, with fear of further allotments being detected.

11. On the other hand, it is urged by Ch. Khurshid Ahmad, Advocate, learned counsel for the petitioner that (i) the writ petition is barred by laches and element of acquiescence has also crept in the case; (ii) this Court had dismissed the writ petitions against the order of Mian Ihsan-ul-Haq (W.P. 183-R/92, 62-R/93 and 10-R/93) thereby putting stamp of approval on the impugned order of Mian Ihsan-ul-Haq, and the honourable Supreme Court of Pakistan upheld the said judgment in C.P.S.L.A. No.1153-L/93. In this view of the matter, the Chief Settlement Commissioner could not attempt to re-open this issue by filing a writ petition; (iii) even otherwise, Chief Settlement Commissioner was not competent to assail the order of his predecessor, Mian Ihsan-ul-Haq who also enjoyed the powers of CSC; (iv) the three brothers having been accommodated out of the estate of their late father, justice has been done, and therefore, this Court in writ jurisdiction may not interfere even though the impugned order was not found to be strictly legal.

12. During the course of arguments it was specifically submitted by Ch. Khurshid Ahmad, Advocate, that no urban land whatsoever has been obtained by the contesting respondents anywhere in Punjab and that the Chief Settlement Commissioner is at liberty to retrieve the same, if any, and no objection would be raised in this behalf. This factual assertion is stoutly controverted by Ch. Mushtaq Masood, the learned counsel for the petitioner.

13. I have heard the learned counsel for the parties at great length and perused the record with their assistance. It is necessary to deal with the legal objections raised by Ch. Khurshid Ahmad, Advocate, learned counsel for respondent No.l, in the first instance. As regards the alleged laches in the writ petition (W.P. 91-R/98) "/Chief Settlement Commissioner v. Mian Ihsan-ul-Haq etc." I find no merit in this objection It has been authoritatively laid down by their lordships of Supreme Court of Pakistan in "Pakistan Post Office v. Chief Settlement Commissioner" (1987 SCMR 1119 at 1124) as under: ......the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party ...... In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied: Where either the negligence is not culpable vis-a-vis the merits of the case; or, when there is no equity in favour of the party who could be the gainer in case the condonation is denied." It was further held that the bar of laches in equitable jurisdiction is to be equated with principle of estoppel and in case there is no change by the transferee pendente lite he cannot take any advantage of this principle and the writ petition could not be dismissed except on grounds of merits. Applying the above principle of law to the facts of the instant case, it is clear that the contesting respondent No.2 while trying to avoid decision on merits by raising plea of laches is not acting in equitable manner. No change of position has taken place so as to create the bar of estoppel and keeping in view the respective legitimate rights of the parties it is necessary to decide tree case on merits. This objection is overruled. As regards the alleged incompetency of the writ petition by the Chief Settlement Commissioner against the order of Mian Ihsan-ul-Haq (who also enjoyed the powers of Chief Settlement Commissioner) I find no force in this contention either. Almost similar situation arose before the Supreme Court of Pakistan in Muhammad Baran's case (PLD 1991 SC 961). Number of appeals were filed by private persons as well as Chief Settlement Commissioner, assailing the orders of another C.S.C. These appeals were heard on merits and necessary relief granted. This contention is also repelled.

14. Now coming to the merits of the case. A perusal of the impugned order dated 26-2-1992 shows that the only issue requiring determination by Mian Ishan-ul-Haq was verification of claim of three brothers. This position is manifest from para. 6 of his order (page 77 of the paper book): In presence of observation of Supreme Court and in the light of orders of Lahore High Court in Writ Petition No.121-R of 1989, the petitioners approached the Member (Settlement and Rehabilitation), Board of Revenue, Punjab with the request that their claim in respect of their shares in the abandoned land may be verified. After examination of the case on executive side and obtaining a report from the Central Record Officer, the case has been entrusted in this Court for disposal after hearing the parties and examining all legal aspects." (Underlining is mine). At the most, if otherwise permissible by law, Mian Ihash-ul-Haq could pass an order for verification of entitlement of three brothers in the agricultural land owned by Nawabzada Faiz Ali Khan. He has to confine himself to that exercise. He could not, in any case, proceed further to issue any direction for allotment of lands to the three brothers/their legal heirs in the following terms: "It is, therefore, ordered that the concerned authorities of District Gujranwala, where Claim Form No.6107 is pending would proceed further in accordance with para. 67 of the Rehabilitation Settlement Scheme to settle the shares of the present petitioners, as indicated above, by sanctioning necessary mutations of inheritance and issuance of certificate of Units in their favour according to the shares as determined vide this order. The petitioners will be entitled to get allotment of evacuee agricultural lands available anywhere in the province, against these entitlement Certificates which should be transferred to any other place as per their choice, if so desired."

15. In the writ petition filed before High Court (W.P.10-R/93) the prayer made by Nawabzada Ayyaz Ali Khan was: "In view of the above submissions it is most respectfully prayed that the writ petition may graciously be accepted and the respondent No.2 may graciously be directed to implement the orders dated 26-2-1992 passed by the Settlement Commissioner, Lahore and to transfer the excess land beyond their entitlement of 26666 P.I. Units from the names of the respondents Nos. 3 to 1.3 in favour of the petitioners."

16. If I may say so with profound respect the learned Judge who was seized of the writ petition should have confined himself to the question of grant of relief as prayed for by the three brothers before Mian Ihsan-ul-Haq for verification of claim and ignored that part of his order regarding allotment of lands in their names. It may be noticed that in all the three writ petitions referred to above were disposed of by his lordship, the petitioner i.e. Chief Settlement Commissioner was not issued any notice nor given any chance to explain his point of view. These were still at motion stage and were finally disposed of as such. (See para. 6 of the order

page 56 of the paper book). Had the Chief Settlement Commissioner been given chance for hearing he would have pointed out the legal position on the subject and requested for dismissal of the writ petition. In any case, the order dated 18-4-1993, being violative of law declared by Supreme Court, as referred to in sequel, carries little legal weight.

17. It is necessary, at this stage to take stock of the legal position regarding verification of units and allotment of lands after the repeal of evacuee laws. After the repeal of these laws in 1975 all the evacuee property rural as well as urban came to vest in Provincial Government, no allotment of any kind could be made except in case of pending proceedings within the purview of section 2 of Evacuee Laws Repeal Act, 1975. I may respectfully quite one passage from "Syed Saif Ullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991 SCMR 1255 at 1258): "

8. With the repeal of Evacuee Laws in 1975, the un-allotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified Produce Index Units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming, was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact." In Syed Ali Ibne Muhammad v. Province of Punjab, Settlement and Rehabilitation Wing (1988 SCMR 1789) in almost identical situation, as available in the present case, arose for determination. Claim of the appellant before Honourable Supreme Court was verified in 1958 but the entitlement certificate was issued to him after 1-7-1974. High Court accepted his writ petition and directed allotment of the land to him, holding that the repealing Act, itself provided for disposal of pending cases and the appellant (in the said case) should not suffer for fault of the departmental authorities. On appeal, a division bench reached the conclusion that pending proceedings for issuance of entitlement certificate could not be equated with pending proceedings for allotment of land, as such no land could be allotted after the repeal of evacuee laws. This view of D.B. was upheld by august Supreme Court and it was held that entitlement certificate issued after the repeal of the evacuee laws did not confer any right to seek allotment on the basis of the said certificate.

18. It may be mentioned at this stage that Nawabzada Ayyaz Ali Khan filed a writ petition (W.P. No.17-R/98) before this Court seeking implementation of the order of Mian Ihsan-ul-Haq dated 26-2-1992. This writ petition came up for hearing before me and was disposed of on 22-1-1998 and the following order was passed: "Submits that agricultural land is to be allotted to the petitioner, against his outstanding entitlement in terms of the judgment of the supreme Court of Pakistan dated 29-1-1995 (C.P. No.1153/L/93) and despite the fact that he has pointed out available land, no, action is being taken. Refers to Annexure 'D'. The petitioner, if so advised may move an application before respondent No. 1 seeking implementation of the judgment of august Supreme Court in its letter and spirit. In case such an application is moved it shall be attended to and disposed of strictly in accordance with law. Respondent No.l shall, however, take care that no urban land is allotted to the petitioner. Disposed of with this direction." It is really unfortunate that Nawabzada Ayyaz Ali Khan suppressed material facts in the writ petition and various rounds of litigation that took place in the matter were not referred to. Only vague reference was made in para. 2 of the writ petition that the writ petition alongwith others had been agitating for verification of claim and allotment of land and that on 19-7-1962 that august Supreme Court held that the remedy of the writ petitioner lay before the Settlement Authorities. The litigation that ensued after 1962 referred to in third and fourth rounds of litigation (page 1403 of this judgment), was suppressed. This speaks volumes of mala fide of respondent No.2. This order, like order dated 18-4-1993 by S.A. Marian, J., being contrary to law declared by Supreme Court, referred to above, has to be ignored.

19. Therefore, notwithstanding the verification of the claim of three brothers, without conceding that the same was legal, no order of allotment could competently be made at all by Mian Ihsan-ul-Haq in the names of three brothers/legal heirs.

20. The contention raised by Ch. Khurshid Ahmad that since the order of S.A. Manan J., in the three writ petitions was assailed further before Supreme Court of Pakistan (C.P.S.L.A. No.1153-L/93) and leave was not granted, therefore, the order of their lordships dated 29-1-1995 had attained finality and became binding on the parties, is equally devoid of force. Their lordships of Supreme Court in Fazal Muhammad Chaudhry v. Ch. Khadim Hussain and 3 others (1997 SCMR 1368 at 1370) have laid down the law to the effect that if there is conflict between two decisions of the Supreme Court then the decisions of the larger Bench would prevail. Also see "Usman v. Labour Appellate Tribunal and others" (1984 CLC 2782 at 2788), Muhammad Siddique and others v. Muhammad Ibrahim and others (PLD 1981 Lah. 97 at 84) and Stat of U.P. v. Ram Chandra (AIR 1976 SC 2547 at 2556).

21. Applying the above principle of law to the facts of the instant case, it is necessary to examine as to whether the order of their lordships of Supreme Court of Pakistan refusing to grant leave to appeal (C.P.S.L.A. 1153-L/93) is to hold the field or the law declared by Supreme Court of Pakistan in Syed Saiffullah's case and Syed Ali Ibne Muhammad and others' case would be applicable to the present case.

22. With profoundest respect, I venture to point out that the order dated 29-1-1995 in C.P.S.L.A. 1153-L/93 was passed by two learned Judges of Supreme Court whereas the decision rendered in Syed Saif Ullah's case and Syed Ali Ibne Muhammad's case was by three learned Judges and six learned Judges, respectively of the said August Court. Thus, I am bound to follow the law laid down in above referred two cases. Keeping in view the dictum of their lordships of Supreme court in Fazal Muhammad Chaudhry's case (supra). The only question that is now left for determination is as to whether the case of the three brothers/legal heirs could be treated to fall within the ambit of "pending proceedings" under section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The answer is in the negative. Even availability of outstanding units could not bring the matter within the purview of section 2 of the Repeal Act. Apart from Syed Saidfullah's case (supra) this issue stands clinched by the law declared by Supreme Court of Pakistan in Syed Ibne Muhammad's case (supra).

23. It is clear that Mian Ihsan-ul-Haq acted as if he was doling out some property owned by him. He failed to observe that while being charged with official duties of high office of Chief Settlement Commissioner, he had to ensure that interest of the State/nation was kept supreme and save the property owned by the Provincial Government from being squandered/plundered by unscrupulous persons. I may mention at this stage that I called Mian Ihsan-ul-Haq, during the hearing of these cases. He entered appearance but could not offer any explanation whatsoever as to how long after the repeal of the evacuee laws he could legally pass the impugned order. He could not cite any authority/law which empowered him to pass the impugned order. He has since retired. He felt highly repentant in Court and asked for indulgence.

24. For what has been stated above, Writ Petition No.91-R of 1998 titled "Chief Settlement Commissioner v. Mian Ihsan-ul-Haq and others" is accepted and the impugned order dated 26-2-1992 is declared to be without lawful authority. All the consequential allotments made on the basis thereof shall be treated to be nullity. Necessary corrections shall be made to the relevant records. It is directed that the copy of this judgment shall be circulated to all the Notified Officers in the Punjab with a direction to proceed in accordance with law, check the relevant record and cancel any other allotment, if detected in the names of the contesting respondents Nos.2 to 23.

25. Coming to Writ Petition No.77-R of 1998 I find no force in the same. The Chief Minister of Punjab has issued the impugned direction to the Member (S&R)/CSC to take steps in accordance with law for cancellation of the allotments in the names of the three brothers/legal heirs. These allotments have already been held to be without lawful authority by me while disposing of Writ' Petition 1-R of 1998. This writ petition is dismissed.

26. Coming to the third Writ Petition No.66-R of 1998, the same also lacks merit. I asked learned counsel for the writ petitioner Mr. H.M. Naqvi, Advocate, to demonstrate from the record that the writ petitioner was in possession of the disputed land measuring 20-Kanals during the crucial harvest so as to clothe him with a right to ask for a direction for its sale to him under section 3 of the Evacuee Laws Repeal Act, 1975. He failed to do so. All that he could urge was that since the writ petitioner was in possession of the land for well over 20 years, therefore, it would be unjust to non-suit him. The petitioner having no legal right to claim the disputed land cannot successfully maintain this writ petition. This writ petition is also dismissed. No costs. A.A./C-13/L Order accordingly.