P L D 1988 Lahore 299 (PLP)

This petition under Article 9 of the Provisional Constitution Order, 1981, has been filed by the petitioners /informers to call in question the order of the A.D.C.(C)/A.S.C.(L), Multan, dated 29‑9‑1984 whereby the lands cancelled from the khatas of respondents Nos. 3 to 25 in Chak No.2 Gulzar and village Billiwal tehsil and district Multan were restored to them and they were allowed to surrender excess land from their khatas in Chak No.15/MR Tehsil and District Multan and two villages in District Jhang.

2. Facts forming the background of this case are that the predecessors ‑in‑title of respondents Nos. 3 to 25 who were claimants displaced persons filed their claim forms for the land abandoned by them in Fatehabad tehsil of Hissar District. Sher Khan, predecessor of respondents Nos. 3 to 17 submitted his claim from Chak No.2 Gulzar, Tehsil and District Multan where he held temporary allotment whereas predecessors of respondents Nos.18 to 25 filed their claims from village Billiwala, tehsil and district Multan where they had settled and obtained temporary allotments. The claims were verified for 'Sailab lands, produce index value whereof was calculated at the rate of 40 units per acre and allotments were accordingly made to the claimants. It appears from the present record that the total entitlement of respondents Nos.3 to 17 was worked out at 4671 units. They were allotted /confirmed land equivalent to 1742 units in Chak No.2‑Gulzar and the remaining 2929 units were transferred to Chak No.15/MR, Tehsil and District Multan where they also received some allotments. Similarly, respondents Nos. 18 to 25 were confirmed some land in village Billiwala against their verified claims and their surplus units were sent to District Jhang where they obtained allotments in different villages.

3. Present petitioners moved the Revenue Assistant, Multan, in 1961 alleging that the respondents had wrongfully obtained allotments on the premises that the 'Sailab lands left by them in their native village in India were to be calculated at the rate of 40 units per acre whereas the prescribed evaluation of such, lands was 22 units per acre. It was alleged that the respondents had thereby secured excess allotments. Matter was referred to the Deputy Rehabilitation Commissioner, who, by his order dated 17‑11‑1961 ordered the cancellation of the' excess area of the respondents from Chak No.2‑Gulzar and village Billiwala holding that the Sailab, land in Fatehabad tehsil should have been evaluated at 22 units per acre which was its prescribed value. Respondents preferred an appeal but the same was dismissed by the Additional Rehabilitation Commissioner on 16‑4‑1962. Revision was taken before the Settlement Commissioner but it was consigned to the record on 29‑6‑1962 until after the decision of a writ petition said to be then pending in the High Court concerning the same subject‑matter. Respondents Nos.3 to 17 then filed writ petition No.2106/11 of 1962 to challenge the orders of the Deputy Rehabilitation Commissioner dated 17‑11‑1961 and of the Additional Rehabilitation Commissioner dated 16‑4‑1962. Writ petition was allowed on 18‑10‑1965 on the ground that the basic order was passed without hearing the respondents. Case was, therefore, sent back for fresh decision after notice to the parties. Petitioners sought review of the order dated 18‑10‑1965 but their review petition was dismissed as incompetent. Letters Patent Appeal filed by them also failed. Petitioners then approached the supreme Court of Pakistan where their appeal (C.A.No.57 of 1970) succeeded with the result that the order of the High Court remanding the case for fresh decision was set aside and the order of the Additional Rehabilitation Commissioner passed in appeal on 16‑4‑1962 was restored. Their Lordships of the Supreme Court examined the case on merits and found that 'Sailab lands of the respondents were rightly ‑evaluated at the rate of 22 P.I. units per acre and, therefore, "the cancellation was in every way just and proper." This was vide order dated 12‑5‑1975.

4. It may be pertinently stated that while the revision petition of the respondents filed against the aforementioned order of the Additional Rehabilitation Commissioner dated 16‑4‑1962 in the matter of evaluation of 'Sailab lands was pending order of cancellation impugned therein was given effect to and excess lands were cancelled from the Khata of respondents Nos.3 to 17 in Chak No.2‑Gulzar on 16‑6‑1962 and from the Khatas of respondents Nos.18 to 25 in village Billiwala on 4/6‑8‑1962 and the areas so cancelled were allotted to the petitioners. Aggrieved with this action, respondents filed appeals but as the parties had in the meantime gone to the High Court regarding the question of evaluation of 'Sailab lands and stay orders had been issued, Deputy Rehabilitation Commissioner consigned the appeals to record with the observation that the appellants (respondents herein) could get the appeals revived after the decision of the writ petition. After the stay orders issued in the writ petition were vacated present petitioners applied to the Settlement authorities for putting them in possession of the excess lands allotted to them, Settlement Commissioner allowed the petitioners' application on 4‑3‑1975. Respondents Nos.18 to 25 challenged this action in writ petition No.253/11 of 1975 but the same was dismissed in limine on 11‑4‑1975 with the observation that the proper course for them was to have applied for revival of their pending appeals and for their disposal in accordance with law. Appeals of respondents Nos.18 to 25 were accordingly got revived which the learned Settlement Commissioner treated as revisions and dismissed them by order dated 7‑5‑1975 holding that the excess areas had been cancelled from the name of the respondents with their consent and it was for this reason that they had not challenged the allotment of excess lands made in favour of the petitioners. Respondents Nos. 18 to 25 challenged this order of the Settlement Commissioner in W.P. No.392/R of [1975]. Similarly, respondents Nos.3 to 17, also got their appeal against the implementation order resurrected which, too, was treated as revision and dismissed by the learned Settlement Commissioner on 12‑8‑1975 holding that the order of A.R.C.(L) dated 16‑6‑1962 being by way of implementation of the order of D.R.C." was not open t(, appeal. Respondents Nos. 3 to 17 then filed W‑P.No.869/R of 1975 to challenge the order of the Settlement Commissioner dated 12‑8‑1975.

5. Both the writ petitions W.P.No.392/R of 1975 and W.P.No.869/R of 1975) filed by the respondents to challenge the cancellation of their respective areas in Chak No.2‑Gulzar and village Billiwala were dismissed on 2‑11‑1976 holding that it had not been shown that the respondents had a right to exercise option for surrender of excess lands and further that the orders of allotment of the excess lands in favour of the petitioners having not been challenged had attained finality. Feeling aggrieved, both sets of the respondents filed separate petitions for Special Leave to Appeal. Question agitated before the Supreme Court was that although the respondents were prepared to surrender the surplus area of their choice, the Settlement Authority without giving any opportunity to them to exercise the choice in the matter cancelled the excess lands from their Khatas in Chak No.2‑Gulzar and village Billiwala. it was urged on behalf of the respondents that the excess being purely on account of error committed by the Department and not because of any fraud or misrepresentation on their part, they had a vested right in the lands which were still in their possession and as such they were entitled to exercise choice in surrendering the excess area. It appears that the respondents had particularly submitted that they were willing to surrender the excess area from the lands allotted to them in District Jhang but lands had been taken away from their allotments in village Billiwala and Chak No.2‑Gulzar in District Multan. Leave was granted by the Supreme Court to consider the question whether the respondents were entitled to exercise the choice in the matter of surrender of the excess land. Petition informants who were respondents before the Supreme Court took the position that the information having been laid by them in District Multan, land was rightly cancelled in that District and that they were entitled under section 140‑A) of the Displaced Persons (Land Settlement) Act, 1958 to the allotment of the land cancelled from the name of the present respondents. It was further urged on behalf of the petitioners that no right was conferred on the respondents to have a choice in the matter of surrender of land. Their Lordships of the Supreme Court on perusal of the record found on factual plane that while canceling the land from the name of the respondents, they had not been afforded due opportunity to express their choice." As regards the question on which leave was granted, it was observed "where the allotments had been made on different dates, the Settlement Authority would certainly be justified in canceling the allotments made subsequent to the satisfaction of the allottee's claim, but where the entire allotment had been made at one time and the land so allotted had remained with the allottee for a sufficiently long period so as to justify the assertion that he had developed the same at considerable expense and labor. it will be in the fitness of things to allow him a choice as to which area of the land he would surrender. This is all the more so where the resumption of the area is only by way of rectification of an error committed by the allotting authorities and is not punitive as is in the case of fraud or misrepresentation on the part of the allottee. A denial of choice in the former situation will partake of a punitive incidence which is not the intention of the law." Taking this view of the matter, Supreme Court by judgment dated 12‑6‑1983 allowed the appeals of the respondents and setting aside the orders of the High Court dated 2‑11‑1976 and of the Settlement Commissioner dated 7‑5‑1975 and 12‑8‑1975 directed that the respondents be given a choice in the Matter of surrender of the excess land subject to the condition that the land so surrendered shall be as far as possible in compact block.

6. In pursuance of the aforementioned orders of the Supreme Court of Pakistan dated 12‑6‑1983, each set of the respondents filed a separate application praying that the lands cancelled from their names and allotted to the petitioners be restored to them. Shah Muhammad etc. respondents Nos. 3 to 17 signified their assent to surrender the excess area from Chak No.15/,MR, Tehsil and District Multan. Similarly, respondents No 18 to 25 offered to surrender the arias from their khatas in District Jhang. Respondents 'applications 'were initially filed before the Additional Commissioner(C) who at the relevant time was the notified officer. He took such proceeding when the petitioners pointed out that the Additional commissioner (Revenue) has since been notified as settlement Commissioner (Lands) for Multan Division. They produced a notification in that behalf. Additional Commissioner (C), therefore, sent the case to the Additional Commissioner (Revenue) who instead of disposing of the case himself entrusted it to the Additional Deputy Commissioner (C) for disposal. Additional Deputy Commissioner heard the parties concern note of all their claims / contentions and proceeded to hold that "the' applicants had been given option to surrender land by the Supreme Court order dated 12‑6‑1983. This means that the order canceling area from their names in the year 1962 has been set aside by the Supreme Court on being satisfied that previous cancellation had been made without obtaining the choice and now vide order dated 12‑6‑1983 they have been allowed to exercise the requisite choice." Learned Officer noted the choice made by the respondents and observed that the petitioners/informants would be entitled to get their claim satisfied 'out of the land surrendered by the respondents at their choice, Learned Additional Deputy Commissioner accordingly vide impugned order allowed ‑in the applications moved by the respondents and permitted them to surrender the excess areas from Chak No.15/MR, Tehsil and District Multan (in the case of respondents Nos.3 to 17 and from revenue estates of Ashaba and Pirkot Sadhane of Tehsil) and District Jhang (in the case of respondents' Nos.18 to 25). It was also directed that the areas cancelled from the khatas of the respondents in Chak No.2‑Gulzar and village Billiwala be restored to them‑ In allowing the respondents' applications, learned Additional deputy Commissioner was also influenced by the fact that the area in dispute sought to be retained by the respondents was of their temporary allotments. Petitioners felt aggrieved with this order of the Additional Deputy Commissioner and challenged it in the present constitutional petition.

7. I have heard the learned counsel for the parties and have perused the relevant record.

8. Learned counsel for the petitioners has assailed the validity of the impugned order firstly on the ground that the Additional Deputy Commissioner (C) who passed it was not a notified officer under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and as such he was not competent to hear respondents' applications and to pass any orders thereon. Learned counsel appearing for the respondents has quite frankly conceded that the Additional Deputy Commissioner (C) was not an officer notified under the aforesaid provision but he submitted that after the case was entrusted to the said officer, petitioners have been appearing before him without any protest and actively participated in the proceedings without ever challenging his competence to hear the matter ‑ Learned counsel for the respondents has, therefore, argued that the petitioners by their own conduct are precluded from challenging tile impugned order in writ on the ground of want of lawful authority of the officer passing it. Reliance for this is placed on (i) Ghulam Mony ud Din v. The Chief Settlement Commissioner P L D 1964 S C 829 (ii) Ghulam Fatima v. Muhammad Hussain P L' D 1976 S C 729 and (iii) Saqlain v. Hazra Begum and two others 1981 S C M R 645.

9. Learned counsel for the petitioners. on the other hand, ,contended Mat as the petitioners were placed it, the capacity of the respondents before the Additional Deputy Commissioner (C), they are not estopped from agitating the plea of want of jurisdiction in writ petition. In support of his contention, learned counsel has relied on Muhammad Afzal v. Member, Board of Revenue (P L D 1967 S C 314) wherein it was observed that "by mere submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner". This view, it may be noted with respect, was examined in the case of Ghulam Fatima v. Muhammad Hussain afore‑referred and it was observed that the view taken in Muhammad Afzal s case was not inconsistent with the rule laid down in Ghulam Mohy‑ud‑Din's case. The relevant observations made in Ghulam Fatima's case may usefully 'be reproduced hereunder:‑ "At first sight, these observations appear to be inconsistent with the view of the Full Court in Ghulam Muhy‑ud‑Din's case. This impression, however, is not correct because the observations in a case have always to be construed with reference to the facts of that case. And the observation that the appellant had not waived his right to file a writ petition had reference to the earlier observation of Cornelius, C.J. that like the law‑and‑order administration "the revenue administration in its impact on the cultivator had all pervading authority which the individual cannot be expected to confront, on allegation of illegality on his own strength." This passage in my humble opinion makes it clear that the observation of 'the Court on the question of waiver and acquiescence had reference only to the plea of the appellant that in the particular circumstances of the case he was entitled to invoke the exercise of the Court's discretion despite his conduct before the Tribunal. And this means that he had made out 'a case for invoking the Court's discretion within the rule laid down by the Full Court in Ghulam Mohy‑ud‑Din case.

10. Now in Ghulam Mohy‑ud‑Din's case, the appellant had filed a second revision before the Chief Settlement Commissioner which circumstance debarred the Settlement Commissioner from exercising the power of review. The appellant, however, appeared before the Settlement Commissioner as a respondent and did not raise any objection to hearing of the review and in fact actively participated in its hearing on merits. In these circumstances, the Supreme Court observed that it could not be said that Ghulam Mohy‑ud‑Din appellant "was a mere passive spectator having no power to prevent the commission of the illegality." It was thus held that having failed to object to the usurpation of jurisdiction before the Tribunal concerned, he was disentitled to the discretionary relief in writ. jurisdiction. It was further observed that "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the. Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he, had stood by and allowed the Tribunal to usurp, a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that" person himself.

11. It is quite clear from the foregoing discussion that the Supreme Court did not hold that a writ' would be barred in every case in which the petitioner had failed to challenge the jurisdiction of the Tribunal at the relevant time but in order to invoke the discretionary remedy in writ jurisdiction, he has to show that he had "no power to prevent the commission of the illegality", namely, the usurpation Of jurisdiction of the Tribunal concerned. Now, as observed in Ghulam Fatima's case, a petitioner does not become passive spectator before a Tribunal merely 'because he was a respondent before that Tribunal. Viewed in this light, even though the impugned order was not passed by the duly notified officer, petitioners having not raised any objection at the relevant time to his jurisdiction to hear the case cannot be granted discretionary relief in writ jurisdiction in view of their conduct. It may be noted that it is not the case of the petitioners that they Were unaware that the ADC(C) was not a notified officer, or that they were 'mere passive 'spectators' before him. They have not taken any such plea in their writ petition nor have they given any explanation in the writ petition for not raising the objection before the ADC(C) regarding the lack of his jurisdiction. The record shows that the petitioners were represented by a counsel and they' actively participated in the proceedings and resisted the respondents, applications on all available grounds but they did not object to the, jurisdiction of ADC(C) to hear the application, and presumably took the chance of succeeding before him. Case of the petitioners, in my view, falls within the rule laid down in the cases cited by the learned counsel for the respondents and, as such, they, on account of their conduct, are disentitled to invoke the discretionary writ jurisdiction so as to have the impugned order quashed on the ground that the officer who passed it had no jurisdiction.

12. Learned counsel for the petitioners also sought to argue that the question of jurisdiction could be 'raised at any stage of the proceedings. There can be no cavil with this proposition but the point here is that the petitioners having failed at the relevant time to object to the jurisdiction of the officer who passed the impugned order cannot invoke the discretionary remedy of writ petition to have the order set aside.

13. On the merits of the case, learned counsel for the petitioners submitted that the petitioners laid the information with respect to the allotment of the respondents in Chak No.2‑Gulzar and village Billiwala, Tehsil and District Multan, and, as such, excess lands were liable to be cancelled therein. Respondents were also required to exercise their choice/option ‑to surrender the land in the said Chak and the village and the impugned order permitting them to surrender the excess land in Chak No.15/M.R. , Tehsil and District Multan and two villages in District Jhang was against law. Learned counsel relied' upon section ‑ 14(1‑A) of the Displaced ' Persons (Land Settlement) Act to contend that the petitioners being the informants were entitled to the allotment of the land in respect whereof. information was lodged by them. Learned counsel for the respondents, on the other hand, supported the impugned order by submitting that there. was, no law confining the choice to surrender the excess area only to that village or Chak in respect of which 'Mukhbaril is made. He pointed out that the respondents had specifically urged before the supreme Court that if they were given a choice, they would have surrendered the excess land from their areas in Chak No. 15/M.R., District Multan and two villages in District Jhang. He has referred to para 4 of the Supreme Court judgment dated 12‑6‑1983 where while referring to the submissions of the respondents (appellants therein) it was noted, .. although the appellants had been willing to surrender the lands allotted to them in district Jhang but land had been taken away from the allotments made in their name in villages Billiwala and Chak No. 2, Gulzar' respectively, in District Multan." Learned counsel for the respondents argued that it is significant that the. Supreme Court while allowing the respondents' appeal directed that they be given a choice in the matter of surrender of excess land but it did not hold that the choice was to be confined only to the allotment in villages in respect. of which the petitioners had lodged the 'Mukhbari and the only condition imposed by the Supreme Court was that "the land so surrendered shall be as far as possible in compact block." Learned counsel for the respondents also pleaded that the allotments in Chak No.15/M.R. (district Multan) and in two villages in Jhang district from where the 'respondents have now been allowed by the impugned in order to surrender the excess area of their choice were subsequent in time and were also made out ‑of the same claim regarding which the petitioners had lodged the 'Mukhbari It was further submitted that section 14(1‑A) relied upon, on behalf of the petitioners was of no avail to them as it applied to the case of bogus and fraudulent allotments whereas in the case of respondent, excess area was allotted to them as a result of miscalculation of units. 14. 1 have considered the submissions made by the learned, counsel for the parties. There is no dispute nor can it be disputed in view of the judgment of the Supreme Court dated 12‑6‑1983 that the respondents had a right to exercise their choice in the matter o surrender of excess land. They opted to surrender the excess are from their khatas in Chak No.15/MR in District Multan and two villages in Jhang district which option has been accepted vide the impugne order.. Contention of the learned counsel for the petitioners that the respondent were, bound to surrender the excess land from village Billiwala and, Chak No.2‑Gulzar as the informatory application relate thereto is not supported by any law. His reliance on section 14(1‑A is also misconceived, Section 14(1‑A) reads as follows:‑ "Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Lands Amendment Act 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 bee or is resumed by a competent authority upon the cancellation of the allotment of such land, 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 Province, o if the resumed land has already been allotted to some other person, to the allotment, to the said extent of such an available for allotment in the same Province." Perusal of the afore‑quoted provision would show that it attracted to the cases of bogus and fraudulent allotments and no where excess lands were allotted due to miscalculation of PJ. units IL was observed 6 1978 Law Notes 47 (SC) "Under section 14(1‑A of the Displaced Persons (Land Settlement) (Amendment) Act, 1974 an informer is entitled to the transfer of the excess area only if the allotment of the cancelled land was found to have been obtained b fraud or was bogus." Now in the instant case, it has 'not been found by any authority that the respondents had obtained excess allotment by practising fraud on the settlement authorities. On the other hand the record shows that there was a genuine dispute about the valuation of 'Sailab lands abandoned by the respondents in India and the controversy was finally resolved by Supreme Court vide it aforementioned judgment dated 12‑5‑1975 (reported as P L' D 1975 S 318) holding that the 'Sailab lands were to be evaluated at 22 unit per acre. Thus the respondents having obtained excess ‑allotments E a result of miscalculation of units for their 'Sailab lands, S.14(1‑A cannot in terms be invoked. However, even u/s 14(1‑A), an informal becomes entitled to the allotment of the land after it is cancelled an resumed by a competent authority and the land is resumed after the allottee surrenders it by exercising his choice. This provision therefore, even if applicable, is of no help to the petitioners. The are only entitled to the land surrendered by the respondents b exercising their choice. They have no special claim or vested rig in the lands in village Billiwala. and Chak No.2‑Gulzar and as such they cannot object to the area which the respondents have chosen surrender in Chak No.15/M.R., District Multan and in two village of District Jhang. It may also be pointed out that officer who passed the impugned order has also given good reasons for permitting the respondents to ‑retain the lands in. village Billiwala and Cha No.2‑Gulzar which were of their temporary allotment.

15. Learned counsel for the petitioners raised a point that the orders passed in 1962 canceling the excess areas of the respondents from Chak No.2‑Gulzar and village Billiwala were upheld by the Supreme Court in its judgment dated 12‑5‑1975 and it was, therefore, not open to the respondent‑officer to allow the respondents to retain those lands and to surrender lands elsewhere. There is no substance in this submission. Matter which was really decided by the Supreme Court vide its judgment dated 2‑5‑1975 related to the evaluation of 'Sailab lands and it was in this context that the cancellation of excess area was held to be just and proper. However, in another round of litigation, respondents challenged the actual cancellation of the excess area from their khatas in village Billiwala and Chak No.2 gulzar and their lordship of the Supreme Court found that the cancellation was made without affording due opportunity to them to express their choice of the land to be surrendered and it was directed that they be given a choice in the matter of surrender of excess land. This was vide judgment dated 12‑6‑1983 wherein reference was also made to the history of the litigation between the parties and the earlier judgment dated 12‑51975. The respondent‑officer, was, therefore, not barred from deciding the case of the respondents for surrendering the lands of their choice. In fact, the Supreme Court in its later judgement dated 12-6-1983 had given a clear direction that the respondents be given a choice in the matter of surrender of excess land. As discussed above, the impugned order viewed from, whatever angle, does not call for' any interference in writ jurisdiction‑ Writ petition accordingly fails and the same is hereby dismissed but there shall be no order to costs. A.A./N-102/L Petition dismissed.