2004 PLP 270 (SCMR)

ABDUL HAMEED DOGAR, J.

The petitioners seek leave to appeal against the judgment dated 21-5-2001 of a learned Judge in Chambers of the Lahore High Court, Lahore whereby Writ Petition No. 103-R of 2000 filed by the respondent was allowed.

2. The background leading to the filing of the instant petition are that Evacuee plots measuring 19 Kanals, 13 Marlas in Chak No.213/R.B., Tehsil and District Faisalabad, were transferred by the Settlement Department to respondent and 13 others. Though they deposited the price of the land, yet permanent transfer orders could not be issued in, their favour because of exchange of Evacuee lands measuring 5235 acres with State land of Provincial Government measuring 7150 acres. As a result of this exchange, the plots allotted to respondent and others went out of the compensation pool. Since, the transfer order was not issued .in favour of respondent and 13 others, as such, they tiled suit for declaration of their title and issuance of transfer order and for getting the entries of disputed land in their favour in the Revenue Record: The said suit was decreed on 24-5-1983 and the Revenue Authorities were directed to enter the mutations in their names.

3. Petitioner No.2 Province of Punjab filed an application under section 12(2), C.P.C. against the said judgment and decree which was accepted on 23-12-1986 by the learned Senior Civil, Judge, Faisalabad, whereby he set aside decree dated 24-5-1983. The respondent and others challenged the above mentioned judgment in appeal which was accepted by the learned Additional District Judge, Faisalabad, on 19-4-1987. Against the said judgment, petitioner No.2 filed -Writ Petition No.5494 of 1987 and in the meantime Government Employees Cooperative Housing Society, Faisalabad, who were allotted some piece of land out of above mentioned exchange of land, also assailed the above judgment in the writ petition and both were decided by the learned Lahore High Court vide judgment dated 21-7-1990 wherein the above exchange of the land was upheld. However, it was directed that the respondent and others may approach the relevant authority who would, examine their case in the light of the Government Notification dated 12-6-1988 and if it was found, that they had been issued PTD validly and also other conditions are satisfied, may be allowed to retain the proprietary rights in the above mention property.

4. The respondent did not keep silent but assailed the said order in Civil Petitions Nos.807 and 808 of 1990 before this Court which were dismissed and leave to appeal was refused vide judgment dated 2-10-1990. However, the following observations were made:-- "This is a hard hit case as the petitioners shall be uprooted after such a long time but unfortunately law does not help them. In view of the lamentable situation with which the petitioners are faced, the learned Advocate-General has made a statement at the bar that the Provincial Government would endeavour to settle them on some other lands and the well-being of the people is an obligation of the Government and we have no doubt 4hat the Government Authorities would make every effort to accommodate those, petitioners whose entitlement before the Settlement Authorities was established."

5. Similarly, Writ Petition No.80-R of 1988 was disposed of by the learned Lahore High Court vide judgment dated .23-12-1990 wherein it was, inter alia, held that the Advocate-General undertook that PTDs issued in favour of the vendors of the respondent and others shall be examined in the light of direction given in the judgment passed in Writ Petition, No.5494 of 1987 and the allottees/transferees will be accommodated against some suitable land if found to be in possession of genuine documents issued by the Settlement Department. As regards the question of genuineness or otherwise of the said PTDs no finding was recorded. Since respondent and others were not provided any land, as such, they preferred two separate applications for grant of alternate land to the ADC(G)/Notified Officer and Deputy Commissioner, Faisalabad but no action was taken as such they filed Writ Petition No.1561 of 1991 in the Lahore High Court, which was disposed of on 3-3-1991 with the direction to the Authority to decide the dispute within five days, which was not decided, as such, Criminal Original No.160 of 1991 for contempt of Court was preferred wherein it was again directed to decide their case by 8-4-1991. Consequently, the above said applications for grant of alternate land were rejected on the aforesaid date. The respondent and 13 others challenged the above order in Writ Petitions Nos.3208 and 3209 of 1991 which were accepted on 12-5-1991 and the matter was remanded to the Notified Officer for allotment of alternate land to them. The above said two Officers challenged this judgment in Civil Appeals Nos.143 and 144 of 1992 before this Court which vide judgment dated 4-4-1995 were accepted and the order dated 6-4-1991 passed by the ADC(G), Faisalabad and that of Lahore High Court dated 12-5-1991 were set aside and the matter was remanded to the Notified Officer again with the direction to hear the case afresh and decide the matter after providing reasonable opportunity to the respondent to demonstrate that the above transfer order was in fact genuine. Consequently, ADC(G)/Notified Officer, Faisalabad, vide order dated 3-5-1995 came to the conclusion that the land identified by the respondent and others was available, as such directed Tehsildar (City), Faisalabad, to enter their names in the record of rights and deliver the possession to them which was complied with and carried on accordingly.

6. The matter did not end here but another round of litigation started at the behest of petitioner No.2 (Province of Punjab through Collector) who filed an application under section 12(2) on 13-4-2,000 before Additional Deputy Commissioner (G) asserting therein that respondents Nos. l to 14 had procured the above mentioned land through fraud and forgery and had sold the same to respondents Nos. 15 to 44, as such, order dated 3-5-1995 of the Notified Officer be set aside and the transfer of sale in favour of respondents Nos. 15 to 44 be declared as void and non-existent. In response to the said application, the Notified Officer issued notices to the respondents who feeling aggrieved, challenged the same in Writ Petition 6730 of 2000 before th6 Lahore High Court which was disposed of on 20-4-2000 with the direction to the respondents to appear before the Notified Officer who was directed to advert to all the points raised by them in the writ petition and decide the matter within two weeks. I.C.A. No.294 of 2000 was filed against the above said order and the learned Division Bench directed the Notified Officer to decide the point of jurisdiction and the limitation first and then proceed with the matter in accordance with law after affording fully opportunity of hearing to all the parties concerned. Respondent Fazal Muhammad Khan filed objection petition raising issue of maintainability of application under section 12(2), C.P.C. before the Notified Officer which was dismissed vide judgment dated 22-5-2000 holding that the objections of respondent regarding the jurisdiction and limitation were not tenable. The respondent assailed the said order in Writ Petition No.103-R of 2000 which was accepted by the learned Single Judge in Chambers of Lahore High Court vide impugned judgment dated

7. We have heard Malik Muhammad Nawaz, learned Advocate Supreme Court for the petitioners and Mr. Najamul Hassan Kazmi, learned Advocate Supreme Court for the respondent in detail and have gone through the record and the proceedings of the case in minute particulars. .

8. Learned counsel for the petitioners mainly contended that since petitioner No. l had not passed any adverse order against the respondent as such writ petition before the High Court was premature and was not maintainable. The order dated 3-5-1995 was passed behind the back of petitioner No.2 and was secured by the respondent by playing fraud, forgery and misrepresentation, as such, being patently illegal, the question of law of limitation would not be applicable. He, however, supported the order dated 22-5-2000 which according to him, was passed by the Deputy Settlement Commissioner (Urban), Faisalabad, after affording full opportunity to the respondent and all other concerned.

9. On the other hand, learned counsel for the respondent supported the order of Notified Officer dated 3-5-1995 passed on the directions of this Court wherein, he had clearly held that no fraud or forgery had been committed. 'He seriously attacked the order dated 22-5-2000 passed by the Deputy Settlement Commissioner, Faisalabad, which according to him, being in fact 'a review order was not competent as the provisions of review were not provided in the law. According to him, application under section 12(2), C.P.C. was barred by 5 years and was also hit by the principle of res judicata and waiver.

10. Adverting to the question of limitation first, it would be appropriate to dilate upon the fact that application in question under section,12(2), C:P.C. was filed on 10-4-2000 by petitioner No.2 wherein order dated 3-5-1995 passed by Notified Officer was assailed. The reasonings advanced for belated filing of application are not convincing and believable mainly for the reason that the evacuee land transferred in the names of respondent and 13 others were initially exchanged with the State land belonging to the Province of Punjab and it was petitioner No.2 which had for the first time filed Writ Petition 5494 of 1987 challenging judgment dated 19-4-1987 passed by the learned Additional District Judge, Faisalababd.

11. It is further belied from the order dated 23-10-1990 passed in Writ Petition No.80-R of 1988,wherein Advocate-General appearing on l5ehalf of the petitioners had undertaken that PTDs issued in favour of respondents and vendors shall be examined in the light of directions given in judgment passed in Writ Petition 5494 of 1987. Thereafter, in Criminal Original No. 160 of 1991 directions were also given on 25-3-1991 to the Government functionaries to dispose of the matter of the respondent. All this goes to show that Province of Punjab petitioner No-2 had the knowledge of the entire litigation, as such, the application in question being belatedly filed is dismissed as time-barred.

12. No further appeal, revision or review was maintainable against the order of Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. According to this enactment, all the earlier Acts in field with regard to the Evacuee Property were repealed and all proceedings which, immediately before such repeal, pending before the Authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette. Irrespective of above, all such cases remanded by the Superior Courts to the Officer Notified as aforesaid after the repeal shall be disposed of in accordance with law. In the case in hand, the order dated 22-5-2000 is passed by Additional Deputy Commissioner(G)/Deputy Settlement Commissioner, Faisalabad, who was neither a Notified Officer nor authorized by any superior Court to decide the matter, as such, was not competent to decide the application in question.

13. Accordingly, we do not find any merit in the petition which is dismissed and leave to appeal refused. M.H./A-456/S Petition dismissed.