1986 PLP 2084 (MLD)

" the order of respondent No.2, dated 24th January, 1981 is declared to have been made without lawful authority. As the order embodied in the letter Annexure "J" was passed by the learned Member, Board of Revenue (S&R) if advised, the petitioners may move him in the matter, in pursuance of the observation made in the order, dated 15th December, 1980 passed in W.P. No.906/R of 1980.

2. In pursuance of this order, the petitioners moved the Chief Settlement Commissioner. He referred the matter to the Settlement Commissioner (Land). The latter by his order, dated 19th October, 1983 under challenge in this writ petition, resumed the land. The operative part of his order is reproduced below:‑

I come to the conclusion that the land in dispute was never in possession of the applicants and on the very point the learned Member, Board of Revenue (S&R) Chief Settlement Commissioner had already given his views that the confirmation of the applicants be ignored. Later on another application of the applicants was rejected on 24th January, 1980 by the Deputy Commissioner, Gujranwala on the same views taken by the learned Member, Board of Revenue (S&R). I, therefore, reject the application and resume the land in dispute in favour of the State which should be disposed of under the law. Aggrieved Parties may approach the competent authority for purchase of same under the law."

3. I have heard the learned counsel for the petitioners and respondent Nos.4 to

6. The record of this writ petition as well as that of W.P. Nos.906/R of 1981; 482/R of 1972 and 57/R has also been examined. No one appears for the Settlement Department. Respondents Nos.1 to 3, therefore, have been proceeded against ex parte.

4. The impugned order is primarily rested on the ground that the land was not in possession of the petitioners' predecessor in interest, namely, Munshi son of Nathu. The learned Member Board of Revenue, had also directed that the confirmation in his favour be ignored and that the petitioners' application for withdrawal of this direction was turned down on 24th January, 1981. None of these grounds has any merit. It is evident from my order 30th March, 1982 that the order, dated 24th January, 1981, was set aside and it was further maintained: "By order, dated 4th November, 1976, passed in W.P. No.482/R of 1975, the allotment in favour of the petitioners' predecessor in interest has already been upheld. However, respondents Nos.3 to 5 are permitted to move the Chief Settlement Commissioner in the matter, in case he procured the allotment by forgery and tampering with record. In this respect, as observed above an inquiry was held and the allegations against the petitioners' predecessor‑in‑interest were found baseless. Seemingly the record of the inquiry held by the Assistant Commissioner with which the Deputy Commissioner had concurred, was the only material before the learned Member Board of Revenue, who passed the order Annexure 'J'. The learned counsel for the petitioners appears to be justified in inferring that the learned, Member confused Munshi son of Sundar with Munshi son of Nathu. It may be stated that the Chief Settlement Commissioner's order, referred to in the impugned order is Annexure 'J, aforesaid.

5. It is evident from para.10 of the judgment, dated 30th March, 1982 that the case was permitted to be reopened on the issue as to whether or not the petitioner's predecessor‑in‑interest obtained allotment by forgery and tampering with the record. However, the impugned order is silent in this behalf. In view of the judgment, dated 30th March, 1982 that aforesaid reasons which influenced the decision of the learned Settlement Commissioner were not available in law to set aside the allotment and resume the land. Since the land was allotted to Munshi son of Nathu, as an informer the question of his possession was hardly germane to the validity of his allotment. It is also to be noticed with concern that though claim of respondents Nos.4 to 6 had been completely rejected by me under the judgment aforesaid, yet the learned Settlement Commissioner chose to associate them with the inquiry before him.

6. There is nothing on the record to show that the allotment in favour of Munshi son of Nathu was the result of any ante‑dating or tampering with the record. The petitioners who purchased the land for valuable consideration vide sale‑deed, dated 9th June, 1975, are litigating for it for about last ten years. Earlier twice they had to approach this Court. There should be an end to this litigation particularly, when the proceedings have been initiated against them after the repeal of the evacuee laws. The law laid down in this behalf in Sher Afzal Khan and others v. Haji Razi Abdullah and others 1954 S C M R 228: ‑ " .Apart from .the reasons that found favour with the learned Chief Justice of the High Court with which we agree fully, we find that the undisputed fact remains that the P.T.D. issued in favour of the first respondent covered the whole property which remained in the field until the repeal of the Settlement Laws, which accordingly was past and closed transaction. We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated) in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such powers survives the repeal, No such provision was pointed out by the learned counsel. The exercise of jurisdiction, was, therefore, palpably coram non judice and wholly incompetent." For all these reasons, I see no good ground to remand the case to the Settlement authorities again.

7. This writ petition is, therefore, accepted, the impugned order declared to have been made without lawful authority and as of no legal effect. Consequently, the allotment of Munshi son of Nathu and its sale in favour of the petitioner stands restored. The parties are left to bear their own costs. H . B.T Petition accepted.