1991 PLP 2084 (CLC)

Date of hearing: 20th July, 1991. This judgment will dispose of Constitution petitions bearing No.445/R 77 and 446‑R of 1977 as both arise out of a single order of the learned Addl. Settlement Commissioner (Land) Summandari, District Faisalabad dated 26‑7‑1976 and involve the examination of common questions of law and facts.

2. The dispute in these petitions related to an agricultural evacuee land measuring 61 Kanals 4 Marlas situated in Chak No.44/GB, Tehsil Summandari. Ghulam Muhammad, the predecessor‑in‑interest of the petitioners was temporary allottee of this land which was confirmed to him on 15‑1‑1952. This happened vide RL‑11 No.64. It was on 1‑11‑1957, when an area measuring 22 Kanals 19 Marlas out of this land was cancelled on account of report received from the Central Record Room to the effect that the entitlement given in previous certificate was in excess and so his allotment to this extent be cancelled. It is necessary at this stage to mention that the report of the Central Record Room was made in the absence of Ghulam Muhammad and without affording opportunity of hearing to him. This was not the end of the matter. The Central Record Room sent another report stating therein that the entitlement of Ghulam Muhammad was nil. On the basis of this report, the allotment of remaining land was also cancelled.

3. On 11‑9‑1960, respondent No.3 in Writ Petition No.445 and respondent No.4 in Writ Petition No.446, were allotted the land cancelled from the name of Ghulam Muhammad. Meanwhile Ghulam Muhammad made a representation to Central Record Room to the effect that their reports were illegal, utterly incorrect and based on some mischief. It was on 18‑9‑1961 when the Central Record Room re‑examined the entitlement of Ghulam Muhammad and issued the entitlement certificate wherein it was certified that the original entitlement certificate issued by the Central Record Room in favour of Ghulam Muhammad was correct. In these circumstances, the legal heirs of Ghulam Muhammad filed two appeals on 4‑9‑1962, which were dismissed having been found barred by time. The two revision petitions filed by the present petitioners also met the same fate. In this background the petitioners invoked the Constitutional jurisdiction of this Court by filing writ petitions bearing Nos.1517/R‑65 and 1580/R‑

65. These petitions were accepted by single judgment by his Lordship Mr. justice Karam Elahi Chauhan (as he then was) by order dated 12‑11‑1973. The case was remanded to the learned Addl. Settlement Commissioner for disposal afresh in accordance with law after hearing the concerned parties.

4. In pursuance of this order the learned Additional Settlement Commissioner had passed the impugned order dismissing the revision petitions by holding that the allotment in favour of respondents could not be cancelled after the lapse of 18 years and that the claim of Ghulam Muhammad be satisfied if any evacuee land was available. Petitioners have invoked the constitutional jurisdiction of this Court against this order in these two petitions.

5. The learned counsel appearing on behalf of the petitioners criticised the impugned order on the following three grounds:‑

Firstly, that Ghulam Muhammad predecessor‑in‑interest of the petitioners was temporary allottee of this land. On receipt of verification of his claim from the Central Record Room, he was allotted the land in dispute; that the reports sent by the Central Record Room, were ex parte, factually incorrect and based on mischievous exercise. As such the orders of cancellation of allotment were totally null and void and hence subsequent allotments made in favour of respondents were without any legal sanction. Reference was made to Para No.7 of West Pakistan Rehabilitation Settlement Scheme, 1956, to support the proposition that the petitioners were entitled to this land on the principle of `first come first served'. Secondly, that the reports on which the cancellation of allotment was made, were devoid of any factual as well as legal basis; that these reports were made in the absence of petitioners and without affording them opportunity of hearing. Thirdly, that the petitioners had made a representation to the Central Record Room for re-verification of their claim and the Settlement Authorities were bound to wait for the decision of the Central Record Room before making any allotment in favour of the respondents.

6. The learned counsel for the respondent No.2, supported of the impugned decision only on one ground that it was unjust to cancel the allotment in favour of the respondents after the lapse of 18 years.

7. The learned counsel for the Settlement Department, submitted that still much evacuee land was available; that after the promulgation of Act XIV of 1975, the land vested in the Provincial Government and the residual authorities were competent to allot the same to the respondents.

8. I have heard the learned counsel for all the parties at a considerable length and have gone through the record. The facts of the case are not disputed. It is not denied ‑that Ghulam Muhammad was temporary allottee of the land in dispute. It is not disputed that Ghulam Muhammad was allotted land in 1952 and possession was delivered to him. It is uncontested that the allotment was cancelled in his favour on the basis of incorrect ex parte report sent by the Central Record Room. It is admitted that Ghulam Muhammad had filed the representation to Central Record Room, against these reports and for re‑ verification of his claim. Admittedly the Central Record Room undertook the enquiry again and sent his entitlement certificate to the Settlement Authorities. The only question for decision is whether the order of cancellation and the allotment in favour of respondents are valid and can be sustained in these admitted circumstances. It is a well‑recognised principle that the object oil Settlement laws has been to rehabilitate the displaced persons in such a manner as to integrate them in economic life of nation. The principle of allotment is `first come first served'. Reference be made to Muhammad Shafi and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (1968 SCMI, 121), Saleh Muhammad and 5 others v. Khushi Muhammad and 5 others (1979 SCMR 570), Shah Nawaz and 2 others v. Mirza Niamat Ali Beg and 12 others (1976 SCMR 227) and Syed Masood Hussain Zaidi v. Aziz Ahmad (1984 SCMR 945).

9. Para No.7 of the Rehabilitation Settlement Scheme, 1956 prescribes that in congested districts, the land is to be given to allottees. Applying this principle to the aforenoted facts of case, it is very clear that Ghulam Muhammad was temporary/sitting allottee, and therefore, was entitled to allotment under para' No.7 in Part‑2 of West Pakistan Rehabilitation Settlement Scheme, 1956. The cancellation of allotment was made without notice to him as such the order of cancellation was coram non judice, void ab initio and so nullity in the eyes of law. The orders cannot be sustained. The order of subsequent allotment being superstructure on void orders cannot stand. I have, therefore, no hesitation in coming to the conclusion that the impugned order passed by the learned Addl. Settlement Commissioner; is without jurisdiction and without any lawful authority and cannot be sustained. The order is declared as such and is accordingly set aide. In the light of foregoing analysis, the Constitution petitions bearing Nos.445/R‑77 and 446/R‑77, are accepted, the impugned orders are set aside and the allotment in favour of the petitioners is restored.

10. Before parting with this order I feel it necessary to state that the claim of respondents is a pending claim within the meaning of subsection (2) of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975. The learned counsel appearing for respondent No.1 stated categorically that the evacuee property is still available and it can be allotted to the respondents. In view of this circumstance I remit the case to the extent of respondents I (subsequent allottees) to the Notified Officer for satisfaction of their pending' claim in accordance with law. There shall be no order as to costs. AA./T‑138/L Case remanded.