1991 PLP 2154 (MLD)

Date of hearing: 15th July, 1991. The validity/propriety of the order of Deputy Settlement Commissioner (Land), Wazirabad dated 4-12-1976 passed in exercise of power as delegatee of the Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 is called in question in Constitution Petitions bearing Nos.320-R/77 and 321-R/77. These are, therefore, being disposed of by a single judgment.

2. The facts of W.P. 320-R/77 are that on 15-3-1968 All Muhammad (herein respondent No.2) was allotted 112 kanals 17 marlas situated in the revenue estate of Rukh Singhpura in lieu of 99 units by means of RL-II

98. This land included the land in dispute bearing old khasra No.349 (and new khasra No.967) measuring 8 kanals. The petitioners Nos.1 to 5 purchased the aforesaid land from Ali Muhammad in consideration of Rs.7,000 through an oral sale incorporated in mutation register his mutation No.31 was attested on 17-4-1968 by the Assistant Commissioner-II. Wazirabad.

3. The facts of W.P. No.321-R/77 are that Haji Saleh (herein respondent No.2) was allotted agricultural land measuring 3,218 kanals 6 marlas in revenue estate of village Rukh Singhpura Tehsil Wazirabad District Gujranwala. This happened vide RL-II Khata No.95 in lieu of Claim No.6039/14 on 28-6-1965. Respondent No.2 made the sale of a parcel of land measuring 1,206 kanals 13 marlas in favour of petitioners Nos.1 to 5 and Mukhtar Ali by means of registered sale-deed dated 17-3-1967. Respondent No.2 made the sale of remaining land measuring 2011 kanals 13 marlas in favour of respondents Nos.3 to 24 in consideration of Rs.25,000 by means of registered sale-deed dated 4-4-1967 and Mutation No.15 in respect of this sale was attested by Assistant Commissioner Salhoke on 21-6-1969.

4. Feeling aggrieved with the aforesaid allotments, the Forest Department filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (Act XLVII of 1958) (hereinafter referred to as an Act) alleging therein that the area allotted to Ali Muhammad and Haji Saleh was notified as protected Forest under section 38 of the Forest Act vide Notification No.5886-FT (FIA) 56/1466 dated 11-2-1957; that the Chief Settlement Commissioner, and Government of the Punjab, seeing the necessity of Forests in the country, had made the sale of land to applicant; that the area allotted to the aforenoted persons had been made and is in the possession of the Forest Department since partition; as such could not be allotted to Ali Muhammad and Haji Saleh.

5. After making an enquiry into the allegations contained therein, the learned Assistant Commissioner in exercise of power as a delegatee of the Chief Settlement Commissioner under sections 10 and 11 of the: Act, accepted the application by coming to the conclusion that the land in dispute was in possession of the Forest Department prior to its allotment in favour of allottees; that the land could not be allotted to them.

6. In impeaching the correctness of the impugned order, Mr. Ijaz Feroze and Mr. Ghulam Sabir, Advocates appearing on behalf of the petitioners raised following points:

(1) It was contended that the allotment in favour of Ali Muhammad and Haji Seleh, had attained the finality under section 22 of the Displaced Persons (Land Settlement) Act, 1958. Neither the Forest Department challenged the order in appeal nor in revisional jurisdiction. As such the order could not be interfered with in sections 10 and 11 of the Act, which only dealt with a situation when the allottee had secured the allotment by practising fraud or by making misrepresentation to Settlement authorities. It was urged that the application of Forest Department did not disclose such allegations. As such the application was incompetent and the Assistant Commissioner had no authority whatsoever to entertain the application and render the impugned decision. (2) It was next argued that the instructions issued by the Deputy Secretary (Rural) vide No.6029-64-985-R(K) dated'8-3-1965 were ultra vires of the power of statutory functionary and thus without any lawful authority. On the basis of these instructions, the statutory authorities could not be restrained from making allotment. Reference was placed on Inayat Bibi (Mst.) v. Chief Settlement Commissioner etc. P L D 1978 Lah. 252.

7. On the contrary, learned counsel for the respondents Nos.3 to 24 supported the impugned decision. Objection was taken that the petitioners have come to Court with unclean hands in order to grab the property of the Government of Punjab being used as protected Forest as such the petitioners were not entitled to grant of relief in discretionary/extraordinary jurisdiction of this Court.

8. I have heard the learned counsel for both the sides at considerable length and perused the record. From the perusal of RL-11 98 in favour of Ali Muhammad it appears that the units of claimant came to revenue estate Rukh Singhpura on 15-8-1967; that the proposal was made on 1-3-1968 and the confirmation was made on 15-3-1968. RL-11 carries a writing in purple colour that 99 units had been received for confirmation vide order of the Deputy Settlement Commissioner dated 15-3-1968. The remaining portion was written with a pencil and was not reproduced in certified copy (annexed with the petition). This is a position of RL-II 98.

9. From the examination of RL-II 95 in favour of Haji Saleh it appears that the land in dispute was in possession of Forest Department. This note was recorded by Patwari in purple colour on 28-6-1965. On the same date the Deputy Settlement Commissioner recorded the order of confirmation of proposal in favour of Haji Saleh. From these facts, it clearly stands established that before the order of confirmation in favour of Ali Muhammad and Haji Saleh, the land allotted to them was in possession of the Forest Department and was having Forest over it. The finding of the learned Addl. Settlement Commissioner/Deputy Settlement Commissioner (L) Wazirabad is based upon in uncontrovertible facts and is not open to exception.

10. Having agreed with the factual findings rendered by the Addl. Settlement Commissioner/Deputy Settlement Commissioner (L), Wazirabad, the only question left for decision is whether such land was available for allotment and whether the orders of allotment created any legal vested right in favour of the petitioners.

11. Before I proceed to answer it is necessary to state that the allotment of evacuee land to refugees coming from India is not a mere formality/paper transaction. The object of rehabilitation (evacuee laws) was to permanently settle and compensate the displaced persons coming after the partition of sub continent into Pakistan from India. The newly-born Muslim State was faced with gigantic task of settlement of uprooted Muslims who were driven out by Hindu majority of India from their earth and homes and pushed to Pakistan. This process had passed through different phases i.e. the temporary allotment, the quasi-permanent allotment and finally permanent settlement. On 23rd September, 1958 Displaced Persons (Land Settlement) Act (XLVII of 1958) was promulgated with aim to permanently settle the refugees/displaced persons from India in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India. The West Pakistan Rehabilitation Settlement Scheme prescribed by the Rehabilitation Commissioner, West Pakistan, under section 6(1) of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) and under section 7(1) of the Balochistan Rehabilitation Regulation, 1950 (II of 1950) as amended was continued under the Act of 1958. This scheme provided in details the rules regarding the filing of claims, the verification of claims, temporary allotments and permanent allotments, and the question of inheritance in respect of claims submitted by the refugees. The relevant provisions of this scheme dealing with the question in hand are clause 4-A in Chapter-II, clauses 60, 61, 61 A, 62, 63 and

64. From the survey of these clauses it becomes abundantly clear that the land reserved for expansion of village abadis and other public purposes, was excluded from the operation of West Pakistan Rehabilitation Scheme under sub-clause (iv) in clause 4-A, while from the analysis of the remaining provisions it becomes clear that the allotment was not to be a mere paper transaction and was made for the purpose of permanent settlement of refugees on land allotted to them. This question came up for consideration in Muhammad Munshi v. Baj Din and others 1981 Law Notes SC

646. In this case the respondents' father was allotted land on temporary basis on 30-5-1951. He remained in possession since his temporary allotment. Meanwhile the petitioner was allotted the same land on 15-6-1961. It was in year, 1974 when the respondents became aware of allotment in favour of the petitioner, and accordingly filed settlement revision which failed on the question of want of jurisdiction. Respondents filed Constitution petition which was accepted by the High Court and subsequent permanent allotment made in favour of the petitioner was set aside. The petitioners filed C.P.S.LA. before the Supreme Court. Leave was refused. It will be instructive to quote the relevant passage from this judgment which is as follows:

"The allotment of 1st May, 1951 even if to be treated as genuine without possession, it seems, lost all its value when the Department not only made a fresh allotment in favour of the respondents, but also either knowledge their possession or transferred the same to them. The petitioner did not object to the allotment of 30-5-1951 for nearly 24 years. Learned counsel is enable to explain this aspect of the conduct of the petitioner. We cannot presume that it was without any reason, which it appears, if the petitioner would have disclosed, he might have otherwise lost the case. In these circumstances, therefore, we .do not consider it a fit case for grant of special leave to appeal."

12. Applying the rule enunciated by the Supreme Court in the aforenoted precedent to the facts of the case, it is clear that there was note in RL-II to the effect that the Forest Department was in possession of the land; that the allotment in favour of Haji Saleh and Ali Muhammad was a mere paper transaction. I have no doubt in my mind that these orders of allotment did not create any legal vested right in favour of the allottees. These orders are master-piece of abuse of authority and lack of application of mind by statutory functionaries in implementing Evacuee Laws. The petitioners are vendees from the allottees who did not have any legal vested rights in their favour. As such these petitioners stand in no better footing than original allottees.

13. In the light of foregoing critical analysis I have no difficulty in coming to the conclusion that these petitions are totally devoid of merits and have been filed to grab the property of Forest Department being used for public purposes. This cannot be permitted in Constitutional jurisdiction. The hallmark of this extraordinary jurisdiction is to foster justice between the parties and is not to help the person who comes to Court with unclean hands and wants to seek the help of Court in furthering his avaricious tendencies and nefarious designs. I am quite clear that these petitioners have come to Court with such designs. In result, these petitions are found to be totally devoid of merit and are dismissed. The petitioners shall ,pay the costs of proceedings to respondents. A.A./A-1399/L Petitions dismissed.