1987 PLP 1240 (SCMR)

The vendees (respondents Nos.5 to 9 herein) challenged this order of the Chief Settlement Commissioner in the Lahore High Court through Writ Petition No.523‑R of 1982 contending that the Chief Settlement Commissioner had wrongly referred the matter to the Assistant Commissioner, Hafizabad, and given an illegal direction that the matter should be examined under section 3 of the Act, 1975 (because herein they would be entitled only to get land to the extent of subsistence holding and not the entire area of the land purchased by them). This petition was dismissed on the ground that the sale of the land under section 12(b) of the Repeal Act (Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975) could not be asked as a matter of right and that since the sale could not be asked as of right, the refusal thereof could not be challenged in writ jurisdiction. The vendees, thereupon, filed Inter Court Appeal No.73 of 1983 but this was withdrawn by the vendees being satisfied by an observation in the order of the learned Judges of the Division Bench to the effect that as the matter had been referred to the Assistant Commissioner, Hafizabad, with the direction that he should give effect to the order of the Chief Settlement Commissioner they might press their claim before him. The Assistant Commissioner in his order/report dated 11‑4‑1985 observed that there were two points which required consideration:‑ "Firstly whether Muhammad Akbar and Rehmat Ali vendees are entitled to the sale of land under section 12 (b) as recommended by Settlement Commissioner vide order dated 6‑7‑1971 and secondly whether Lt. Col. Munir Hussain are entitled to the allotment of land as informers". So far as the first point was concerned he held that the aforesaid vendees were not entitled to the sale of the land. In this connection he observed:‑-- "In para. (a) of his parawise comments submitted to the High Court in the writ petition filed by vendees the Chief Settlement Commissioner clearly observed that there was no scheme for the sale of land to the vendees under section 12 (b) of the Displaced Persons (Land Settlement) Act, 1958 and they could not claim as a right to purchase the land. In addition his lordship Mr. Justice Khalil‑ur‑Rehman observed as under:‑ "Having considered the submissions made I am of the considered view that the same are without merit. On applications, the order passed by the Chief Settlement Commissioner, as conveyed by the Memo No.3285/192‑R‑(L) dated 10‑11‑1982 (Annexure 'J'), with the petition is that their case be considered, under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. This amounts to refusing the request made for sale of land under section 12 (b) of the Repeal Act. This refusal cannot be challenged as this does not amount to denying any of the rights of the petitioners. It is conceded that the sale of the land under section 12 (b) of the Repeal Act cannot be asked for as a matter of right. If this is so, then in case of refusal, no direction can be sought from this Court in exercise of constitution jurisdiction." It is thus clear that the sale under section 12 (b) of Repealed Act has been refused to the vendees. The vendees Muhammad Akbar and Rehmat Ali having been refused the sale under section 12 (b) of Repealed Act and being not entitled to sale under section 3 have thus no other provision of law for the purchase of the land. It should also be mentioned here that Kh. Mahmud Sadiq had recommended the sale of the land to the vendees in view of their heavy investment but since the land has been under their occupation for about 17 years, the vendees at this stage at least cannot claim that their heavy investment have not been returned to them. In my opinion the vendees have earned more than what they were entitled to from the land under their occupation." Coming to the case of Lt.Col. (Retd.) Munir Hussain etc. it was observed that they were "informers" and went on to observe that although the right of the informers was taken away in 1964 the said right was restored by an amendment made in 1973 in the Displaced Persons (Land Settlement) Act, 1958, whereby para 1 (a) was added to Section 14 of the Displaced Persons (Land Settlement) Act 1958 whereby the land resumed by the competent authority on the information of a claimant was to be allotted to the informer to the extent of his claim pending for allotment in the Province. A further amendment was subsequently made in sub‑section (1‑A) of section 14 whereby this provision was given retrospective effect and the right to allotment of the informant was allowed with retrospective effect. The Assistant Commissioner opined that the result was that Lt. Col. Munir Hussain, Lt.Col. Nazir Hussain and Major Muhammad Khan were entitled to the satisfaction of their pending claim in Hafizabad Tehsil against the land cancelled from the name of Kala in village Khuda Yar. The order/report came up for final orders before the Chief Settlement Commissioner on 11‑6‑1985, who passed the following order thereon:‑ "The M.B.R. (R), on consideration of your order dated 10‑4‑1985 on the subject cited above has been pleased to direct that the matter will be disposed of in terms of the orders of the Settlement Commissioner dated 6‑7‑1971 to the effect that the land in question may be sold to the five vendees at the rate of Rs.100 P.I. U . based on the basis of classification of the soil of Rabi 1974 to the extent of subsistence holding in case of each vendee." As nothing was said about the informants in this order despite the fact that in the order/report of the Assistant Commissioner, Hafizabad, they were held entitled to allotment and also because the finding that the vendees were not entitled to the sale of the land, was reversed; the informants challenged the order of the learned Chief Settlement Commissioner dated 11‑6‑1985 by a writ petition (W.P. No.200‑R of 1985). This writ petition was disposed of by a learned Single Judge of the Lahore High Court on 14‑4‑1986 who was pleased to dismiss it, observing as follows:‑ "It is undisputed that the judicial order in the field is that of the Settlement Commissioner dated 8‑7‑1971 whereby vendees of the allottee, whose allotment was cancelled, were recommended for sale of the land and as far as the petitioners were concerned it was held that they were not entitled to the allotment in presenti but to stand in queue like anybody else for allotment. Their right to allotment of the land as informers was not recognised. This judicial order is final. A, right, if any, which is disputed‑being not available at the relevant time, negatived in 1971 cannot be resurrected after fifteen years." It was also observed:‑-- "As regards the contention that the respondents could not be sold the land by the Settlement authorities, the petitioners having no right to allotment of the land, have no locus standi to question the right of the respondents, or, the power of the authorities to sell them the land which they had earlier purchased from an allottee whose allotment had been cancelled." This petition for leave is directed against the aforesaid order of the learned Single Judge of the High Court. Counsel for the petitioners as well as of the vendees, who appeared on a notice issued by this Court, have been heard. We are of the opinion that the view of the learned Single Judge that as the right of the petitioners to allotment had not been recognised and they had to stand in the queue others seeking allotment and their attempt to resurrect the matter after 15 years of the order dated 6‑7‑1971 is not correct. The last‑mentioned order was not implemented for various reasons and in the meanwhile the Act of 1958 was amended whereby the vendees could not get more than the "subsistence holding" and that too on the satisfaction of certain conditions as to date of possession etc. In view of this change in the law the Chief Settlement Commissioner passed the order dated 10‑11‑1982 that their case for sale of the land may be considered under the aforesaid amended provision. As the earlier recommendation to permit them the sale of the entire land contained in the order of 6‑7‑1971 was modified the vendees challenged the order of 10‑11‑1982 of the Chief Settlement Commissioner in the High Court by a writ petition and then by an Inter Court Appeal and both failed. Ultimately, the Chief Settlement Commissioner, by the order dated 14‑6‑1985, found the vendees entitled to the sale of the land under section 3 of the amended provisions, namely, to the extent of their subsistence holdings. The result of this order is that some of the land which they had purchased would become available for allotment. Thus, the petitioners who were found to be informants became entitled to the allotment under the amended Act, 1974 (Displaced Persons (Land Settlement) Amendment Act, 1974). Even if the order of Kh. Mahmud Sadiq, Settlement Commissioner/ Chief Settlement Commissioner dated 6‑7‑1971 that they had to stand for allotment in the queue was considered to have become final, the fact is that while they were standing in the queue their rights got improved by the subsequent legislation and they became vested with the right of allotment of the land which had been unearthed on account of their information. The learned Judge of the High Court overlooked all these aspects of the case, which unfortunately has led him to an error. We would, therefore, convert this petition into an appeal and' hold that Ch. Muhammad Akbar and Ch. Rehmat Ali (who were vendees mentioned in the order of the Settlement Commissioner) shall be transferred land in the terms of the first proviso of clause (b) of subsection (1) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975), while Isa, Anwar and Mst. Mahmoodah, who were not vendees on the date when the order dated 6‑7‑1971 was passed but are the further vendees of Ehsan Ullah (who undoubtedly was present before Mr. Mahmud Sadiq), shall be entitled to the transfer of the land to the extent to which their vendor Ehsan Ullah was entitled. Similarly, the three informants, namely, Lt. Col. Munir Hussain, Lt.‑Col. Nazir Hussain and Major Muhammad Khan (appellants Nos.1,2 & 10) the informers before Kh. Mahmud Sadiq will be entitled to the satisfaction of their claim pending in Hafizabad Tehsil out of the land which become available after the sale to the vendees, as indicated above. The appeal is disposed of with the above terms but there will be no order as to costs. M.B.A./M‑101/S Order accordingly.