1996 PLP 1044 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition for special leave to appeal has been filed against a judgment dated 7-6-1995 of the Lahore High Court whereby a Constitutional petition to challenge the orders dated 20-12-1982 and 19-10-1983 passed by the Board of Revenue, Punjab, refusing to sell the disputed evacuee land in favour of the petitioners was dismissed. .

2. By now it is an admitted fact that the allotment of land in dispute to the petitioners as successors-in-interest of one Mauj Ali, who died in India, was cancelled on an application under section 10/11 of the Displaced Persons (Land Settlement) Act XLVII of 1958 (hereinafter called as the Land Settlement Act) holding that the allotment thereof had been procured by fraud. In fact the entitlement of Mauj Ali deceased had already been settled in the name of Mst. Aisha Bibi and Mst. Inayat Bibi who were his successors-in-interest, in village Chaung Punj Gari, Tehsil and District, Kasur. The learned Settlement Commissioner, after settling the points for determination and conducting a proper inquiry held that the petitioners had been the Murids of Mauj Ali who could not legally succeed him and had procured the allotment of the disputed land by practising fraud. On these findings of fact, the allotment of the disputed land to the petitioners was cancelled. This order had attained finality, in that, it was not challenged in further proceedings. They had, however, applied under the first proviso to section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) (hereinafter called as the Repealing Act) for sale of land in their favour. This prayer was not granted by the Board of Revenue, Punjab on the ground that an order of ejecmtent had already been passed against them.

3. The petitioners challenged the order aforesaid before the Lahore High Court, Lahore in Writ Petition No.335-R/1983. The learned counsel appearing on behalf of the petitioners before the learned Single Judge placed reliance on Mst. Sohagi and another v. The Settlement Commissioner (Lands), Lahore and 4 others PLD 1976 Lahore 1199 to contend that notwithstanding the finding of Settlement Authorities that the allotment of the disputed land had been procured by playing fraud the petitioners could not be denied the "benefit of the new norm" and under a statutory right "under a subsequent legislation". The learned Judge in Chamber was not impressed by this argument holding that "according to the first proviso the concession of sale of land is not extendable where ejectment order has been passed" and that "Memo. dated 20-12-1982 Annex-E placed by the petitioner themselves shows the passing of the ejectment order, therefore, the petitioners cannot invoke the provision of section 3 of the Repealing Act for sale of land in their favour". In consequence, the writ petition was dismissed.

4. Ch. Amir Hussain, learned counsel for the petitioners, had reiterated the contentions which had been convassed before the High Court. According to him, the Settlement Authorities are not shown to have passed the ejectment order against the petitioners within the contemplation of the first proviso to section 3 of the Repealing Act, therefore, they, were not disentitled to the sale of the disputed land in their favour. Ch. Amir Hussain then referred to the law laid down in Mst. Sohagi's case supra and maintained that the past conduct of the petitioners has no relevance qua their entitlement under the new Statute, therefore, by all canons of justice the relief could not be legally denied to the petitioners by reference to the discretionary relief of the High Court if they were otherwise entitled thereto under the law.

5. Both the contentions are devoid of substance. The impugned order of the Chief Settlement Commissioner, Lahore, dated 31-1-1982 manifestly showed that the allotment in favour of the petitioners was cancelled and was "ordered to be resumed in favour of Settlement Department". Simultaneously the Assistant Commissioner, Wazirabad, was directed "to take possession of the entire land from Feroze Din and Muhammad Sharif (petitioners) and also recovered the mesne profits which they had been deriving their bogus allotment". It would thus be seen that not only the allotment of the land in favour of the petitions had been cancelled but ejectment order had also been passed against them. This proposition lends support from the authoritative pronouncement of this Court in the case of Shah Nawaz and others v. Member, Board of Revenue PLD 1978 SC

266. We would, therefore, reiterate that the right to purchase, within the contemplation of the first proviso to section 3 of the Repealing Act, an agricultural land occupied, by any person continuously for four harvests immediately preceding Kharif 1973 shall be offered for sale to such person unless an order of ejectment had been passed against him in respect of such land. Again the interpretation put on section 3 of the Repealing Act in Mst. Sohagi's case was not approved by this Court in the precedent of Rehmat Ali v. Settlement Commissioner and others PLD 1980 Supreme Court 214 holding that the land which is the subject-matter of a fraudulent allotment can always be duly resumed whether it is in the occupation of the defrauding allottee or in the occupation of his tenant.

6. The sum total of the above discussion is that the findings recorded by the Settlement Authorities as well as the learned Judge in Chamber of the High B Court cannot be said to be whimsical, arbitrary or perverse in any manner warranting interference by this Court. We find nothing material to infer in the matter.

7. This petition has no merits and is accordingly dismissed. A.A./F-386/S Leave refused.