1986 PLP 2369 (CLC)

5. It seems that despite the aforementioned order of the Additional Settlement Commissioner, Jhang, dated 30‑6‑1971, land in Heera Singh Wala was not cancelled and in the meantime, mutation of inheritance No. .184 in respect of this garden land to the extent of 3/4 share was sanctioned in favour of the petitioners on 30‑8‑1975. Petitioners then sold their share to Abdul Jabbar and Shamim Ahmad petitioners in W.P. No. 73‑R of 1982. Karam Ilahi respondent who was a lessee of the garden in dispute moved an application before the DSC(L) for giving effect to the order dated 30‑6‑1971 whereupon the said officer cancelled the allotment on 28‑10‑1975 with the following orders: The afore‑quoted order was admittedly passed without hearing the petitioners. When they came to know of it, they made an application for setting aside the same on the ground, inter alia, that it had been passed without notice to them and that they were in any case entitled to the choice/option. Their application was rejected by A.C.(Sadar), Lahore by order, dated 24‑11‑1975 on the short ground that the decision having been incorporated in the revenue record, the chapter was closed. 6 . Petitioners approached this Court through Constitutional Petition No. 1434/R of 1975 to call in question the aforementioned order, dated 30‑6‑1971 and 28‑10‑1975. Writ petition was accepted with the following observation:‑ . "the contention of the learned counsel for the petitioner that the order of the Additional Settlement Commissioner (Land), Jhang, dated 30‑6‑1971 could not be given effect to without notice to them, has merits. They could justifiably raise number of grounds, that the order, dated 30‑6‑1971 was passed without notice to them and, therefore, the determination of the entitlement of Mst. Afifa Khatoon has not correctly been made; that even if there was any excess, the petitioners with a view to save the vendees under them be given choice before the excess is withdrawn etc. , before the officer who proceeded to implement the order of the Additional Settlement Commissioner (Land), Jhang, dated 30‑6‑1971. The same is, therefore, declared to have been passed without lawful authority and of no legal effect. The order, dated 24‑11‑1975, automatically, falls with it. The result is that the application moved by Karam Elahi for implementation of the order, dated 30‑6‑1971 becomes pending before the Assistant Commissioner (Sadar) Lahore, who is directed to hear the parties before giving effect to the same."

7. On remand, parties appeared before A.C. (Sadar)/Additional Settlement Commissioner (L), Lahore. Petitioners contended before him that they wanted to retain the land in village Heera Singh Wala which they had already sold to Abdul Jabbar, etc. and that instead they would surrender land in District Jhang. It was also contended by them that Mst. Afifa Khatoon having died in the year 1966, Rao Fayyaz Ali Khan was no more her attorney and could not make the statement on 21‑2‑1968 offering for cancellation, inter alia, the land in Heera Singh Wala Learned Additional Settlement Commissioner, however, took the view that he was only desired to implement the order of the Additional Settlement Commissioner (L), dated 30-6-1971 and if that order "is considered have been set aside by the High Court, even then the order, dated 13‑8‑1966 passed by the Additional Settlement Commissioner (L), Jhang still remains to be implemented." He, therefore, by order, dated 24‑11‑1981 proceeded to uphold the order of A. C. Sadar Lahore, dated 28‑10‑1975 with the observation that the land of Village Hira Singh Wala should be considered as cancelled and mutation No. 184 should also be cancelled. If Maqsood Ahmad, etc. intend to file a choice for retention of this land they should approach the proper authorities".

8. Petitioners in both the writ petitions felt aggrieved with the aforementioned order of the Additional Settlement Commissioner (L) dated 24‑11‑1981 and challenged the same in two separate writ petitions.

9. I have heard the learned counsel for the parties. It may be stated at the outset that the learned counsel for the petitioners in both the writ petitions have not challenged the findings that Mst. Afifa Khatoon had obtained allotment in excess of her entitlement. Their only and main grievance is that the impugned order has been passed in total disregard of the directions contained in the remand order of this Court dated 17‑2‑1980. Their submission is that the learned A.C. gave no consideration to the petitioners choice for retaining the land in Village Heera Singh Wala and surrendering instead the land in District Jhang and mechanically proceeded to uphold the order, dated 28‑10‑1975 whereby land in Heera Singh Wala was cancelled. It is contended by the learned counsel for the petitioners that the order, dated 28‑10‑1975 was passed in implementation of the order of Additional Settlement Commissioner, dated 30‑6‑1971 which order was specifically set aside by this Court by order, dated 17‑2‑1980 and as such learned A.C. to whom the case remanded should have applied his independent mind to the question. of cancellation of the land in Village Heera Singh Wala keeping in view the option made by the petitioners and the fact that the land in Village Heera Singh Wala had already been sold before 28‑10‑1975. It is also submitted by the learned counsel for the petitioners that offer for cancellation of the land made after the death of Mst Afifa Khatoon by the Attorney Rao Fayyaz Ali Khan was of no legal effect and could not be given effect to grievance of the petitioners is that this point was raised before the learned A . C. who has not duly considered it. It may be observed that the learned counsel for Sarwat Jameel respondent has supported the submission made on behalf of the petitioners that the petitioners should have been given an option to surrender the land for cancellation and that instead of cancelling the land in Village Heera Singh Wala the land in District Jhang be cancelled

10. Learned counsel appearing for Karam Ilahi respondent has supported the impugned order by submitting that the learned A.C rightly upheld the order, dated 28‑10‑1975 as the same was not set aside by this Court in its earlier order, dated 17‑2‑1980. This submission of the learned counsel is clearly against the order of this Court, dated 17‑2‑1980 relevant portion of which has been reproduced hereinabove which shows that the orders, dated 30‑6‑1971 and 24‑11‑1975 were set aside. No doubt, order, dated 28‑10‑1975 was not specifically mentioned but as it was passed in implemention of the order, dated 30‑6‑1971, undeniably without notice to the petitioners, it could not stand. Even otherwise, from the totality of observations made in this Court's order,. dated 17‑2‑1980, order, dated 28‑10‑1975 could not hold the field. Learned counsel for Karam Ilahi respondent has also, argued in the alternative, apparently adopting the arguments of the learned A.C., that even if order, dated 30‑6‑1971 was set aside by this Court in its order, dated 17‑2‑1980, order of the Additional Settlement Commissioner, dated 13‑8‑1966 still remained intact. This submission is equally devoid of merit as it is clear from the order of the Additional Settlement Commissioner, dated 30‑6‑1971, that the order of his predecessor, dated 13‑8‑1966 only approved a proposal that the allotment obtained by Mst. Afifa Khatoon equivalent to 3552 units be cancelled. Order, dated 13‑8‑1966 is not shown to have actually cancelled any particular area. It may also be noticed that the order, dated 28‑10‑1975 was not passed with reference to and in implementation of order, dated 13‑8‑1966.

11. I have given my anxious consideration to the submissions made by the learned counsel for the parties and on perusal of the record, I find that the impugned order has not been passed in consonance with the findings given and observations made in the order of this Court, dated 17‑2‑1980 passed in W.P. No. 1434/R of 1975. Quite evidently, case was remanded to A. C. to enable the petitioners to raise the, following contentions: ‑ (i) That the entitlement of Mst. Afifa Khatoon was not correctly determined. (ii) That even if allotment obtained by Mst. Afifa Khatoon was in excess of her entitlement, petitioners be given choice before any excess area is withdrawn in implementation of order of Additional Settlement Commissioner (L), Jhang, dated 30‑6‑1971. Impugned order shows that the entitlement of Mst. Afifa Khatoon determined in the order of the Additional Settlement Commissioner, dated 30‑6‑1971 was not challenged before the A.C. and as noted above, finding regarding excess allotment has also not been challenged before this Court. It is, however, clear from the imugned order that the learned A.C. did not apply his mind to the question as to whether the petitioners were entitled to give their choice/option for surrendering the land and whether on the facts and circumstances of this case, they could legitimately opt for retaining the land in Village Heera Singh Wala and surrendering some land an District Jhang. For instance, it has not been considered that the land situate in Village Heera Singh Wala had already been sold away before the order for its cancellation was actually passed on 28‑10‑1975. It has also not been considered that Rao Fayyaz Ali Khan could not act as attorney of Mst. Afifa Khatoon when he made the statement on 21‑2‑1968 offering for cancellation of, the land as Mst . Afifa Khatoon had died before that date. Remand order of this Court, dated 17‑2‑1980 cannot, therefore, be said to have been complied with by the learned A . C . I n the circumstances, impugned order cannot be sustained and the same is, therefore, set aside. Result, therefore, is that the case shall have to be remanded once again for passing fresh orders in implementation of order, dated 30‑6‑1971. It is accordingly ordered that the case shall go back to Additional Deputy Commissioner (General). Lahore who, according to Ch. Muhammad Nazir Ahmad, Advocate is notified officer and he shall decide the matter of implementation of the order of the Additional Settlement Commissioner, dated 30‑6‑1971 afresh, of course, after hearing the parties and after keeping in view the afore‑referred observations /directions of this Court made in its earlier order, dated 17‑2‑1980 and after attending to all the contentions raised by the parties. He need not determine the question of entitlement and/or excess allotment of Mst. Afifa Khatoon as finding in that behalf is no more in dispute. Writ petition stands disposed of with the aforesaid observations but with no order as to costs in the facts and circumstances of the case. H. B. T. Order accordingly.