1992 PLP 1809 (CLC)

3. The aforesaid vendees made sale in favour of present petitioners. It was on 24‑2‑1980 when one Abdur Rehman applied to the Chief Settlement Commissioner, Punjab for the purpose of seeking inquiry regarding the transfer of claim of original allottee to Bahawalpur and with regard to genuineness of the claim. Upon this application, the Chief Settlement Commissioner instituted inquiry and entrusted the same to the Settlement Commissioner. After conducting the inquiry, the Settlement Commissioner reported to the Chief Settlement Commissioner to the effect that in fact no claim was transferred to Mauza Sahilan and allotment secured through RL‑11 No.59 was fraudulent in nature and proposed its cancelleation. Upon this report, the Chief Settlement Commissioner recorded a note "ordered as proposed". In pursuance of this order the Additional Deputy Commissioner (General), Bahawalpur, cancelled the allotment made in favour of Muhammad Hassan.

4. The narrative of this litigation will not be complete without noting another chain of facts. The land in dispute was in possession of Central Jail, Bahawalpur at the time of allotment. On the initiative of Jail Authorities, the notification under Section 4 of the Land Acquisition Act (I of 1894) was issued and published in the Government Gazette, by the Government of Punjab on 12‑11‑1953. This notification was followed by a notification under Section 6 of the Act. However, it seems that acquisition proceedings were not taken further to logical end. The present petitioners, meanwhile filed a suit for possession in the Court of Senior Civil Judge, Bahawalpur against the Province of Punjab alleging therein that Jail Authorities, Bahawalpur had unlawfully dispossessed them. It is stated that the suit was decreed by the first Court and appeal by the, Province of Punjab is still pending adjudication before the first appellate Court. It is necessary to note over here that despite oral orders, neither the copy of plaint nor the copy of written statement nor the copy of judgment and decree in favour of petitioners was placed on the record of this Court.

5. The inquiry report of the Settlement Commissioner, the order of the Member, Board of Revenue and the order of the Addl. Deputy Commissioner (General) dated 25‑1.1‑1981 are subject‑matter. of assault in these petitions.

6. Learned counsel appearing on behalf of the petitioners advanced following arguments in support of these petitions. (i) That Evacuee Property and Displaced Persons Laws Repeal Act, (XIV of 1975) (hereinafter referred to as the Act) was promulgated on 28th January, 1975 with effect from Ist of July, 1974. According to the learned counsel, the Settlement Authorities became functus officio from the aforesaid date under Section 2 of the Act. The application was moved in the year 1980. On this application neither the Member, Board of Revenue nor the Settlement Commissioner nor the Additional Deputy Commissioner (General), Bahawalpur had an authority to initiate proceedings in respect of allotment in favour of Muhammad Hassan. Learned counsel strenuously argued that proceedings from inception to finish were without jurisdiction and so were without any lawful authority. (ii) It was then suggested that the Chief Settlement Commissioner had not passed any order by conscious application of mind. He had in fact mechanically endorsed the inquiry report of the Settlement Commissioner. No opportunity of hearing was provided to the petitioners who were bona fide purchasers. According to the learned counsel, as such the proceedings from beginning to finish were, in defiance of the principle of natural justice "that nobody should be condemned unheard". (iii) It was added that the petitioners were bona fide purchasers, as such they should not be made scapegoat for an act of Muhammad Hassan even if it was fraudulent and the land in dispute be sold to them under proviso to Section 3 of the Act. (iv) It was lastly stated that the Settlement Authorities had taken the statements of legal heirs of Muhammad Hassan as a gospel truth. Having made the sale in the year 1973, Muhammad Hassan and his legal heirs had lost interest in the disputed property and so Ali Akbar could have possibly made any sweeping statement. Such statement ought not to have been relied upon by the Settlement Authorities.

7. On the contrary, learned counsel appearing on behalf of respondents No.l to 4 vehemently supported the impugned order. It was stated that neither the claim of Muhammad Hassan was transferred by competent authority to Mauza Sahilan nor allotment was secured by him. As a matter of fact someone other than Muhammad Hassan had managed to take his claim to Mauza Sahilan and had successfully manoeuvred to obtain allotment of the land which was in possession of the Central Jail, Bahawalpur. According to the learned counsel it was pure and simple paper allotment. Learned counsel emphasised that this allotment is not creative of any right in favour of allottee and, therefore, the petitioners have no legal right to file these petitions.

8. I have heard the learned counsel for the parties at a considerable length and perused the record with their capable assistance. From the submissions of the parties noted above following questions emerge for consideration:‑ (i) Whether the report of the Settlement. Commissioner, Lahore, the order of the Chief Settlement Commissioner and resultant order of the Addl. Deputy Commissioner (General) dated 25‑11‑1981 are without jurisdiction and without any lawful authority. (ii) Whether the petitioners being bona fide purchasers are entitled to purchase the land under proviso to section 3 of the Act XIV of 1975.

9. Having noted the facts, the circumstances of the case, the arguments of the parties and the points for consideration, I herein proceed to determine these questions.

10. From the aforesaid resume of the case, it is quite clear to me that it is not the case of the petitioners that the possession of the property in dispute was given to Muhammad Hassan at the time of allotment by the Settlement Authorities. The petitioners have not taken the stance that in fact Muhammad Hassan had got his claim transferred to Mauza Sahilan and has obtained allotment. Even the petitioners did not embody the factum of possession of Central Jail, Bahawalpur in the petitions. Neither the mention of notification under section 4 nor notification under section 6 of the Land Acquisition Act (I of 1894) in favour of Central Jail was incorporated in the petitions. The question is whether on these facts the allotment of land in favour of original allottee vide RL‑11 No.59 was illegal and not creative of any legal right in favour of the allottee. It is a well‑settled principle of allotment of evacuee land that allotment is not a mere formality/paper transaction. The object of evacuee laws was to provide for restoration and maintenance of social and economic life of Pakistan and orderly settlement of persons who had taken refuge therein. On 12‑1.1‑1956, Pakistan Rehabilitation Act (XLII of 1956) was promulgated. Under section 6 of this Act and under section 7 (1) of the Balochistan Rehabilitation Regulation (II of 1950), the West Pakistan Rehabilitation Settlement Scheme was issued. This Scheme provided comprehensive and self‑contained mechanism for filing of claims, their verification, temporary allotment and final settlement. Thereafter the Displaced Persons (Land Settlement) Act (XLVII of 1958) was promulgated on 23‑9‑1958 in order to provide for the permanent settlement, of land and for matters incidental thereto or connected therewith. The Scheme of 1956 was continued under the Act of 1958. From the examination of Act (XLVII of 1958), in conjunction with the West Pakistan Rehabilitation Settlement Scheme, it is manifest that allotment is a mere formality. This was intended to compensate and settle the displaced persons who were uprooted in the aftermath of partition and came to Pakistan. These Acts were intended to settle them economically and integrate them in socio‑economic life of new born nation. This process of settlement was not for any covetous purpose. This question came up for consideration in Muhammad Munshi v. Baj Din and others 1992 SCMR

825. 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 petitioner filed C.P.S.L.A. 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 Ist May, 1951 even if to be treated as genuine without possession, it seems, lost all its value when the Department not only. made afresh allotment in favour of the respondents, but also either acknowledged 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 unable 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."

11. Guided by the rule laid down in Muhammad Munshi's case 1992 SCMR 825, I have no difficulty in coming to the conclusion that allotment in favour of original allottee vide RL‑11 No.59 was in fact a mere paper transaction and created no legal right in favour of the allottee.

12. Having concluded that allotment in favour of original allottee vide RL II No.59 was mere paper transaction, I now take up the second question.

13. Ali Akbar the son of the allottee appeared before the Settlement Commissioner and stated that neither his father nor he, had ever got their claim transferred to Mauza Sahilan in Bahawalpur. He further stated that they have secured allotment of their claim to the extent of 404 units in Shahdra, Lahore and for the remaining, they have applied for cash compensation. In order to meet the statement of Ali Akbar, learned counsel contended by saying that as the original allottee has made the sale of his land, this statement was ineffective. On merits the accuracy/authenticity of this statement was not challenged. Even the petitioners have failed to place on record the certified copy of orders of transfer, the copy of claim of the original claimant, and the copy of the statement of Ali Akbar for examination by this Court. From the tenor of arguments, it appeared that petitioners built their case on the language of proviso to section 3 of the Act XIV of 1975 and on the principle contained under section 41 of the Transfer of Property Act. As regards the contention that the petitioners are entitled to the benefit under proviso to section 3 of the Act XIV of 1975, it is sufficient to note that this right is conferred on the occupants of evacuee land which became available property 13 under Act XIV of 1975 and vested in the Province of Punjab. The case of the petitioners is that neither the allottee was given possession of the land at the time of allotment nor the petitioners had been in possession of the land in dispute. Clearly the petitioners are not entitled to purchase the land under the proviso to section 3 ibid. The next question remains is `as to whether the petitioners are bona fide purchasers and are entitled to the benefit under section 41 of the Transfer of Property Act'. This question came up for consideration in Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489), wherein it was held that where it was found that the vendor had no right, title or interest in the demised property, no protection can be given to him on the basis of section 41 of the Transfer of Property Act. The rule in this case was reiterated in Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199), Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027) and Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192). The rule/law enunciated by the Supreme Court of Pakistan is binding on this Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. Applying this principle to the facts and circumstances of this case, it is evident that the petitioners are vendees and are not entitled to claim any benefit under section 41 of the Transfer' of Property Act.

14. Even otherwise the petitioners have no case on merits. Ali Akbar the legal heir of the original allottee stated that neither he nor his father got the I claim transferred to Mauza Sahilan nor they secured allotment. In contrast to it, the petitioners have not placed on record any material whatsoever warranting any inquiry or any inference otherwise. They have even withheld the most essential documents from the perusal of this Court i.e. the entitlement p certificate of Muhammad Hassan, the copy of acquisition notification under section 4, the copy of notification under section 6 of the Land Acquisition Act, issued by the Government of Punjab, the copy of plaint, the copy of written statement and the copy of judgment and decree passed by the first Court. The conduct of the petitioners disentitles them to relief in Constitutional jurisdiction of this Court. Reference be made to Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another (PLD 1982 SC 413). In this case the respondent Said Akbar Abbasi, non‑claimant displaced person, was found entitled to the transfer of shop No.M/25‑F, Canning Road, Rawalpindi Cantt. The Deputy Settlement Commissioner, on 5‑12‑1959, issued a demand notice to him for payment of Rs.13,800 as price of the shop. Since he did not have the requisite amount, he entered into an agreement of association with the appellant whereby the latter was to pay the transfer price of the shop from a compensation book and the shop was to be transferred in her favour. The agreement of association was drawn on 23‑3‑1960 and was signed by both the parties. All the necessary documents were filed before the Deputy Settlement Commissioner who accepted the same on 1‑4‑1960. Thereafter the provisional transfer order was issued in favour of the appellant, price was paid and the P.T.D. was issued. The respondent started paying the rent of shop to the appellant. On 21‑10‑1963, the respondent filed application for fixation of fair rent. In this application the respondent acknowledged that he was a tenant under the appellant. However, sometime thereafter the respondent applied to the Deputy Director, Military Land for the cancellation of agreement of association and for transfer of shop to him. The learned Settlement Commissioner by order dated 9‑6‑1964 accepted the application holding that agreement of association was without consideration. As a result P.T.O. and P.T.D. issued in favour of the appellant were cancelled. Feeling aggrieved, the appellant applied on 31‑7‑1964 to the Chief Settlement Commissioner for cancellation of the aforesaid order. The Chief Settlement Commissioner by order dated 3‑6‑1965 declared the order of the Settlement Commissioner, a nullity. Against this order, the respondent filed writ petition which was accepted by the High Court by holding that the Chief Settlement Commissioner had no authority whatsoever to pass the ‑ impugned order. Against this, the appellant filed appeal which was allowed by the Supreme Court wherein it was held:‑ "As for the argument that the appellant should have challenged the order of the Settlement Commissioner by filing a writ petition and that this Court should not substitute its discretion for that of the High Court, suffice it to say that the High Court in exercise of its discretionary writ jurisdiction is not bound to interfere in all the circumstances and it would have been a proper exercise of its discretion if it had not interfered with the order of the Chief Settlement Commissioner in this case, even if it felt that the order of the Chief Settlement Commissioner as null and void was not strictly legal. However, the matter coming before this Court and leave having been granted the whole case has been re‑opened before us and this Court, in order to prevent failure of justice, can interfere with the improper exercise of discretion of the High Court and hold that a writ ought not .to have been issued in favour of the respondent in the circumstances of this case. For doing full justice in this case we hold accordingly." The rule laid down in Begum Shams‑un‑Nisa's case (PLD 1982 SC 413), was reiterated in Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691).

15. Applying these principles to the facts and circumstances of this case, it is quite clear that the petitioners have come to this Court with a motive to reap the harvest of fraud committed by anyone upon the Settlement Authorities while seek allotment through RL‑11 No.

59. This cannot be permitted in the constitution Jurisdiction. The land in occupation of Central Jail, Bahawalpur, in my humble view, was not allotted to the petitioners' predecessor‑in‑interest in any manner.

16. The upshot of whatever has been stated above is that these petitions are found to be without any merit and are accordingly dismissed. A.A./J‑19/L Petitions dismissed.