1990 PLP 1772 (CLC)

12. Mr. S.M. Nasim, Advocate while replying to the arguments of the learned Advocate‑General submitted that Mr. Waqar Ahmad Khan while passing the order dated 8‑11‑1989 did not review the earlier order of Mr. Ijaz Ahmad Khan dated 25‑1‑1.989 appended as Annexure `R/VII' with the report because that order was passed as to allotment of the land against the claim of the petitioners while Mr. Waqar Ahmad Khan proceeded to make the allotment to the petitioners as informers. It is added that it is clear from the notifications dated 16‑5‑1973 and 18‑2‑1974 that these are two different categories. Therefore, the order passed on 25‑1‑1989 has no bearing or adverse reflections on the order dated 8‑11‑1989 passed by Mr. Waqar Ahmad Khan. It is added that in view of the provisions of section 2 (4) of Act XIV of 1975, it is the duty of respondent No.1 to execute the orders of Settlement Authorities and to achieve this object, the respondent No.1 appointed Mr. Waqar Ahmad as a notified officer vide notification dated 24‑10‑1989 (appended as Annexure `H'). The arguments are concluded with the submission that Mr. Waqar Ahmad also did not go beyond the tenor of the order of Mr. Sarfraz Ali Khan dated 12‑7‑1989, as he proceeded to record evidence as to the availability of the land and it is only thereafter that he proceeded to allow an option to the petitioners in term of Section 14 (1‑A) of Act NOXXVIII of 1958 as inserted by Act NOXXXVI of 1974.

13. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law as well as the cited precedents. Now I proceed to deal with the arguments raised by the learned counsel for the petitioners with reference to counter‑arguments of the learned Advocate‑General, Punjab. The first submission on behalf of the petitioners was that respondent No.l has no jurisdiction, whatsoever, to pass the impugned order. The learned counsel, in this behalf, has referred to Act LV of 1973, Act XXXVI of 1974 and Act XIV of 1975. The submission in nutshell is that after the repeal of the Settlement Laws on 1‑7‑1974, the Settlement Authorities have no power of review, appeal or revision. The orders passed by notified officers have been made final. The anxiety of the legislature may be to conclude the Settlement work one way or the other. The learned counsel in this behalf, has rightly referred to the judgments in the cases of Officer on Special Duty, Central Record Office and others, Muhammad Yusuf and 2 others and Mst. Fattan and 4 others.

14. The learned Advocate‑General in reply to the submission on behalf of the petitioners argued that respondent No.1 being at the apex of the administration had every authority and jurisdiction to set aside the illegal orders passed by his subordinates. The arguments of the learned Advocate‑General, as already noted, in the foregoing paragraphs are that the order dated 8‑11‑1989, of Mr. Waqar Ahmad Khan is illegal. The learned Advocate‑General, however, failed to refer to any provision of law giving the power of revision, appeal or; review to respondent No.l. The legality or otherwise of an order could only be gone into by a competent authority who may have jurisdiction in the matter. Thus A the action of respondent No.l is patently in excess of authority and is, therefore, without jurisdiction.

15. It is not necessary to examine the legality of order dated 8‑11‑1989 passed by Mr. Waqar Ahmad Khan as the same has not been challenged in properly constituted proceedings by anyone, but in order to avoid multiplicity of proceedings and to do complete justice, I proceed to examine the plea raised by the learned Advocate‑General. In this behalf, the attack to the order of Mr. Waqar Ahmad Khan was two‑fold. The first was that this amounted to review of the order of Mr. Ijaz Ahmad Khan dated 25‑1‑1989. The argument is clearly misconceived. Mr. Ijaz Ahmad Khan showed his inability to make any allotment to the petitioners as claimants whereas Mr. Waqar Ahmad Khan proceeded to make allotment to the petitioners as informers. Both the capacities are different. In case of a claimant there could be no allotment within the Municipal limits in view of the notification dated 16‑5‑1973 but this notification was not applicable to the informers as clarified in notification dated 18‑2‑1974. The last notification clearly gives the background of this amendment in the policy. I hold that in view of introduction of section 14 (1‑A) through Act LV of 1973 and its substitution by Act XXXVI of 1974, this notification was necessary and the policy was rightly amended and modified.

16. Now coming to the other ground of attack to the order of Mr. Waqar Ahmad Khan namely that he could not have made allotment of alternative land of the choice of the petitioners because Mr. Sarfraz Ali Khan has ordered, as is clear from para 10 of his order that the resumed land should be allotted to the petitioners. The argument is again clearly misconceived. Mr. Waqar Ahmad proceeded to implement the order dated 12‑7‑1989 and when, in this behalf he examined concerned four Revenue Patwaris, it transpired that land resumed was not available. Therefore, the petitioners requested him for allotment of altcrnativc land in terms of section 14 (1‑A) of Act XXXVI of 1974. It is relevant to refer to the provision before proceedings any further. The same reads as under:‑ . "(2) for subsection (I‑A) the following shall be substituted, namely:‑ (1‑A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973(LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled:‑ (a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and (b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide." It is clear from the section that if the information submitted by him is proved to be correct and such land in resumed then he is entitled to:‑ (i) if claimant, to the allotment of resumed land, to the extent of his pending claim in the province; or (ii) if the land has already been allotted to other person then to allotment of any other land of his choice available for allotment. The restriction is only to the extent of pending claim and the Province; and (iii) in any other case he is entitled to cash award of the amount to be decided by the Chief Settlement Commissioner.

17. Now when Mr. Waqar Ahmad Khan, after recording the evidence, came to conclusion that the land resumed in pursuance of order dated 12‑7‑1989 of Mr. Sarfraz Ali Khan is not available then he rightly proceeded to accept the request of the petitioners for allotment of the land in dispute. The D.S.C. did not proceed to allot the same straightaway but he first verified whether the same is available or not. It was only when it was proved that the land selected by the petitioners, is available the same was allotted to the petitioners.

18. This is not all. The conclusion of the order of Mr. Sarfraz Ali dated 12‑7 1989, reads as under:‑ " ....These petitioners/informers are entitled for allotment of the resumed land to the extent of their verified pending claim as per classification of the units in accordance with the provision of section 14 (1‑A) of the Displaced Persons (Land Settlement) Act, 1958." It is clear that the petitioners were to have the allotment in terms of section 14 (1‑A). Therefore, there is nothing wrong with the order of Mr. Waqar Ahmad Khan when he proceeded to accept the request of the petitioners for alternative land.

19. The argument of the learned Advocate‑General is without any merit yet for another reason, also. According to section 14 (1‑A), as reproduced above, the informant in the first instance is entitled to allotment of the resumed land. The question whether the resumed land is available or not is a subsequent question, which will arise only when the allotment is to be made to the informants in accordance with their verified claim. The need for this exercise arises only at the time of the allotment and not at the time of decision of application under section 10/11, because at that stage there was no question of the petitioners or any one being given choice for alternative land. Incidentally, the above provision is a complete reply to the first argument of the learned Advocate‑General, in this behalf, that Mr. Waqar Ahmad had no jurisdiction to review the order of Mr. Ijaz Ahmad Khan. It is clear from bare reading of this provision that if the informer is a claimant then he will be entitled to allotment of land and in any other case to cash compensation. Therefore, refusal of Mr. Ijaz Ahmad Khan to allot land to the petitioners as claimants did not affect their entitlement to secure allotment as informants.

20. It is clear from the order of Mr. Sarfraz Ali Khan read with order of Mr. Ijaz Ahmad Khan and Mr. Waqar Ahmad Khan that they conducted the proceedings strictly in accordance with law and there is nothing wrong with the same. It is only respondent No.1 who illegally and without jurisdiction interfered in the matter sitting in his office. The days of royal decrees have gone now. The functionaries of the State are to function strictly in accordance with the sphere allotted to them and in accordance with law. No Court or authority is entitled to exercise powers not vested in it. The learned counsel for the petitioners has rightly referred to the provision of Article 175 of the Constitution. The B proposition can be approached from another angle that all citizens have an inalienable right to be treated in accordance with the law as per Article 4 of the Constitution of Islamic Republic of Pakistan. The action of respondent No.l being derogatory to the law and the Constitution is liable to be struck down. I find it not possible to express myself better than done by this Court in case of Mr. A.R. Azar, Deputy Chief Engineer, West North‑Western Railway, Lahore and others v. The Federation of Pakistan etc. (P L D 1958 (W.P.) Lahore 185). The relevant portion of the judgment reads as under:‑ "Kayani, J‑‑I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article

180. I had occasion to say in an introduction to a Commentary. (Constitution of Pakistan by C.M. Shafqat that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947, has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. Lail's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone," says the Preamble to the Constitution. Even if the Preamble had been less pious, the King‑can‑do‑no‑wrong theory was by its very nature inapplicable to a democratic State."

21. The learned Advocate‑General argued that the conduct of the petitioners disentitled them to any relief in the Constitution jurisdiction. In this behalf, he has referred to certain interpolations noticed by respondent No.l in the impugned order. The argument does not require any serious consideration for the reason that respondent No.1 has not given any positive finding on this point. He has simply referred to this fact. On the other hand, the learned counsel for the petitioners has referred to the comments filed by respondent No.l in W.P.No. 646‑R/78 and placed on the file as Annexure `F wherein it was categorically stated that there was no interpolation in the Mukhbari application.

22. Now I proceed to examine the order of respondent No.1 whether it could be justified legally or factually. Respondent No.1 held that the order dated 12‑1 1978 of the Settlement Commissioner is illegal and without lawful authority for the following reasons:‑ (a) that after repeal of Evacuee Laws no Settlement Court was competent to review any order passed by it or its predecessor. The order dated 12‑1‑1978, whereby Mr. Bhatti, Settlement Commissioner restored the application of the petitioners under section 10/11 cannot be termed as a review of earlier order of dismissal. It was simply and purely an order of restoration; and that application could have been restored on valid grounds and if moved within 30 days it was held by him that there was no legal justification for restoration of the order. The learned Advocate‑General further added that the petition was not only dismissed for non‑prosecution but also for lack of evidence. The order of dismissal of Mukhabri application was in para materia to an order passed under Order XVII, Rule 2, C.P.C. It is settled law that if plaintiff fails to enter appearance on the adjourned date the Court can proceed to dismiss the suit. This way the application in fact was dismissed for non‑prosecution. In any case although the order is dated 12‑1‑1978 but nobody including respondents ever challenged the same in any forum: The respondents have placed on record the interim orders as Annexure `R/3'.The perusal of the same shows that the petition was fixed for 7‑7‑1977 but on this date the Presiding Officer was on leave, therefore, the matter was adjourned to 13‑7‑1977 for `further proceedings' and on this date the Settlement Commissioner was ill advised to dismiss the application for non‑prosecution as it was not a date of `hearing'. The order was patently illegal and the moment it was brought to the notice of the Settlement Commissioner, he was under a legal obligation to set aside the order of dismissal. Reference, in this behalf, can be made to the judgment of this Court in the case of M/s. Aziz Flour Mills, Bahawalpur and 2 others v. The Industrial Development Bank of Pakistan (1990 C L C 1473).

23. The respondent No.l then proceeded to nullify the order of allotment dated 8‑11‑1989 on the grounds namely that Mr. Ijaz Ahmad Khan, D.S.C., another notified officer had already refused to make allotment against this claim vide his order dated 25‑1‑1989. And that Mr. Sarfraz Ali Khan, by his order dated 12‑7‑1989, held the petitioners entitled to the land so resumed but Mr. Waqar Ahmad, D.S.C. proceeded to allot land according to the choice of the petitioners. It was, therefore, concluded that the latter officer, instead of implementing the order has gone beyond the scope of the same. The reasoning is clearly illegal, illogical and against facts. The petitioners were entitled to allotment of land in terms of Section 14 (1‑A) and to the same effect is the order of Settlement Commissioner dated 12‑7‑1989. Anyhow both these grounds have been dealt at length in earlier portion of this judgement, therefore, the same do not require any further deliberations.

24. The respondent No.1 not only overstepped his jurisdiction but also proceeded in reckless manner ignoring law and facts altogether. He himself observed that no review was competent after the repeal of Evacuee Laws but failed to keep in mind that the orders passed by notified officers are final and nobody in the hierarchy of settlement had any jurisdiction or authority to interfere with the same. It is highly regretable that such a senior officer acted not only against the statute but also ignored the well‑settled principles of natural justice that nobody should be condemned unheard. It is strange that he having reached the apex of the Department has never heard of celebrated judgments of Hon'ble Supreme Court in the cases of Abdul Saboor Khan v. Karachi University (P L D 1986 S C 536), University of Dacca v. Zakir Ahmad (P L D 1965 S C 90) and Abul Ala Maudoodi v. Government of West Pakistan (P L D 1964 S C 673) and many more. 25: It is a matter of great concern for all Courts that the position of the Settlement Department is that of a trustee, holding the evacuee property in trust for the benefit of the claimants, is now assuming the role of the owner. One of the arguments on behalf of the respondents advanced was that the property is worth over crores and the petitioners have illegally grabbed the same. The learned counsel for the petitioners rightly pointed out that basis for this argument was furnished by the inefficiency of the Rehabilitation and Settlement Department while taking over 40 years to settle the claim of his clients. It is rightly submitted by him that if this land was transferred to his clients in the year 1960 or so then it was worth only few thousands. Further that if this criteria is to serve as basis then now no refugee claimant can be settled because value of property has appreciated everywhere. The Government cannot be paid any premium for its own lapses. This argument does not take into consideration that the petitioners have suffered for about half a century.

26. The result is that this petition is allowed with costs and the impugned order of respondent No.l dated 20‑12‑1989 is declared without lawful authority and jurisdiction and respondents No.2 and 3 are directed to implement the order dated 8‑11‑1989, whereby the land was transferred to the petitioners. H.B.T./Z‑168/L Petition allowed.