1989SCMR432 (PLP)

Feroze Khan v. Ali Haider 1987 S C M R 197 rel. Syed Iftikhar Ahmad, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants. Respondent No.l: Ex parte. A. R. Shaukat, Advocate. Supreme Court and Manzoor Elahi, Advocate -on‑Record for Respondent No.2., Date of hearing : 15th June, 1988. ZAFFAR HUSSAIN MIRZA, J.‑‑Leave to appeal was granted in this case to determine the question of law, whether under the Rehabilitation Scheme an order of transfer of unsatisfied units from one estate to another, when both of them fall within the same Patwar Circle, is necessary.

2. The appellant, who claims through Mst. Assu, had challenged the cancellation of her allotment by the Additional Settlement Commissioner, vide. his order dated 22nd September, 1969, under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, on the ground that the units of Mst. Assu were never transferred from Jandiala Baghwala to village Chhichirali and hence the allotment in the latter village was obtained by fraudulent means. The appellant relied upon paras.7 and 11 of Part II of the Rehabilitation and Settlement Scheme, and also a judgment given by Mr.I.U. Khan, Rehabilitation Commissioner (Land), to the effect that no formal orders are necessary for transfer of units from one village to the other if both villages are situated within the circle of the same Patwari. The learned Single Judge of the Lahore High Court repelled the contentions raised by the appellants as hereunder: "However, none of these paragraphs do away with the necessity of an order of transfer of unsatisfied units of allottees or non‑allottees, as the case may be, from one estate to any other. Surely it is not the Patwari of a estate who can be given the arbitrary power of taking the unsatisfied units to the other estate and to satisfy them there. There must be some sort of order of transfer as provided by paragraphs 12, 13 and 13‑A of the Scheme. In the absence of any order of transfer no exception can be taken to the impugned judgment and order, according to which it has been found that the allotment in village Chhichirali has been fraudulently go obtained without transfer of the units of Mst. Assu from village Jandiala Baghwala." It was pointed out to us by the learned counsel for. the respondents that in a recent case, reported as Feroze Khan Ali Haider (1987 S C M R 197), Court has settled the question of law for determination in this case. It is indeed correct that in that case, the very same judgment of Mr. I.U. Khan was examined and it was pointed out that according to instructions contained in para.13 of Part II of the Scheme the procedure provided for transfer of units from one estate to another in the same Tehsil or District is to be complied with. As regards the judgment of Mr. I.U. Khan the legal effect of the same was expounded and it was held that the proposition laid down there did not have the force of statutory instructions, so as to override the requirements of para. 13 of Part 11 of the Scheme. In view of our recent decision, which has come since the date leave was granted in this case, we feel it is not necessary to examine the legal question again. Following the dictum laid down therein, we find no ground to disagree with the view taken by the learned Judge of the High Court in the impugned judgment. This appeal is accordingly dismissed but as the point of law was settled subsequent to the filing of the petition in this case, we make no order as to costs. M.I./N‑102/S Appeal dismissed.