1988 PLP 1156 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against Judgment, dated 25‑7‑1974 of the Lahore High Court; whereby a Constitutional Petition filed by the respondents side, which had arisen out of a displaced persons (land) settlement matter, was allowed and an order of remand passed by a Settlement Revisional Authority was set aside.

2. The appellants claimed to have built houses on the land in dispute and, although some of them were claimants and sitting allottees in the same village, they did not file any application for allotment/ transfer of the land in dispute, as they then thought that it was not rural land. There was some justification for this assumption on their part because, as stated by their learned counsel, land revenue had not been charged on the land for many years. It has also now been discovered from the records that the Settlement authorities also had at some stages entertained transfer applications/ forms even prior to 1970 (the crucial date in this case when ‑the land was allotted to the respondents side), on the assumption that it was urban evacuee land. These applications were filed by the appellants side‑‑some‑of them are even of 1966 and 1968. In the meanwhile the respondents side, who it seems, had not earlier claimed the land in dispute on the basis of either possession or occupation, succeeded in obtaining a transfer order from the Land Settlement Authorities in their favour in September, 1970.

3. The appellants side claiming to be not only in possession and occupation of the disputed land, but also having built structure thereon, challenged this transfer through appeal and mukhbari applications and succeeded in obtaining the remand order dated 10‑1‑1974. It was passed by an Officer exercising the powers of Settlement Commissioner (Lands) as also Chief Settlement Commissioner. The relevant findings by the said officer are reproduced below:‑‑ "The property admittedly is in possession of the petitioners and is a part of house which had been constructed thereon. Its status underwent a profound change in 1947 when the displaced persons settled there by constructing a number of small ramshakle houses. The learned DSC(L) Gujranwala should have taken the position prevailing on the ground before passing the impugned orders and at least heard the objections. The petitioners have been condemned unheard." As a result of these findings, the case was remanded, after setting aside the order of allotment in favour of the respondents. The mukhbari application was also disposed of "on similar ground" and .."on the above terms." This order was challenged by the respondents side in the High Court through a Constitutional Petition, which having been allowed, the remand order was set aside. Leave to appeal was granted to examine the validity of the impugned Judgment of the High Court vis‑a‑vis law and facts.

4. The order of remand of the Settlement Commissioner was based on four grounds:‑‑ (i) The property was treated as admittedly in possession of the appellants. (ii) Its status as agricultural land in 1947 having undergone change, the same needed to be re‑determined. (iii) In any case, the present appellants side might raise objections to the transfer of the land in dispute to the respondents side‑‑this would further mean that if they could raise objections regarding transfer to the respondents side, they could do so by asserting their own claim for transfer. (iv) That, in any case, the appellants had been condemned unheard.

5. It appears that the learned Judge in the High Court, instead of relying on the principle of audi alteram partem simpliciter without reference to the merits of the claim of the appellants side, considered it necessary to deal with the same on merits so as to avoid an exercise in futility by upholding a remand order on legal ground regarding lack of opportunity of hearing to the appellants. In the circumstances of the case, the learned counsel for the appellants has not been able to assail this approach because if the appellants are unable to show any basis for their own claim and or objection against respondents claim, for transfer of the land in dispute, then it might be only a theoretical exercise to remand the case. If no practical substantial advantage could at all be expected by the appellants by the exercise of remand proceedings, the order impugned in the High Court could be set aside for this reason.

6. On the question of examination of merits in the case, it has not been earlier disputed at any stage that the appellants side was in occupation of the land in dispute at all relevant times, particularly, before 1970, when it was allotted to the respondents side. The first ground in the remand order, therefore, does not stand repelled.

7. Regarding the second ground in the remand order, the High, Court gave a finding that the character of the land in dispute would, for purpose of allotment/ transfer, to treated as agricultural land. This very question regarding the land in dispute (Khasra No.293 measuring 5 Kanals 6 Marlas) came before this Court in Muhammad Sharif v. Mst. Bhurian etc. (CPSLA No.771 of 1974) which was dismissed on 29th July, 1975. It was held that this land was to be treated as agricultural land. The second ground for remand, therefore, would be deemed to have failed on account of subsequent judgments by the High Court and the Supreme Court. But at the time when the remand order was passed, it could not be said that this ground was flimsy as the same was net so treated when granting leave, in the petition for leave to appeal in this case, on 11th February, 1977.

8. The third ground in the remand order is highly relevant fox the present appeal. It has been discovered from the record that the appellants side had been making applications for the transfer of the land in dispute in various forms even before its allotment to the respondents side. Prima facie therefore, the order in favour of the respondents without disposal of those forms end without hearing the appellants in this behalf, could not be upheld either on the ground of legality or propriety. The only possible objection from the respondents side in this behalf could be that the applications submitted by the appellants side were not on proper forms nor was the property in dispute properly described and further that they were submitted before the Urban Settlement Authorities and not before the Land Settlement Authorities. All these objections are hyper‑technical. They could be removed by request or direction for the amendment of the forms‑‑see Ch. Altaf Hussain and others v. The Chief Settlement Commissioner, Pakistan, Lahore and 2 others (P L D 1965 S C 68); Begum B. H. Sayed v. Afzal Jahan Begum and another (P L D 1966 (W.P.) Lahore 967); and Sakhi Muhammad v. The Settlement Commissioner, Lahore (Law Notes 1966 Lah. 36) relied upon by the learned counsel for the appellants. The Urban Settlement Authorities, on receipt of applications, if they were sure that they related to and matter, could have sent them on to the Land Authorities, and, in any case they could ask the applicants to amend the applications and take them to the proper authorities. But they did not do so presumably for the reasons that the Urban Settlement Authorities, were also under misapprehension of the fact like the appellants: that the land in dispute was urban. In this context, therefore, the appellants could not have been penalized for making applications in the wrong forum or on wrong forms or describing the property wrongly. If the Settlement Authorities on the urban side had at proper time dealt with these applications and had held that they lay before the Land Settlement Authorities due to the character of the land, the applications could have been forwarded to the Land Settlement Authorities as an official act. And, in any case, if the same would have been returned to the applicants to be presented before the proper authorities on the land side in accordance with the well known principle underlying the rules of civil procedure, they would have been presented before the Land Authorities, in due time. The failure of the Urban Settlement Authorities in this behalf, which may be explainable on innocent hypothesis, cannot be made a ground for penalizing the appellants. Therefore, we do not agree with the submission that the appellants side was not applicant for the transfer/ allotment of the land in dispute before it was allotted to the respondents side. That being so, trey would have been well within their right if afforded opportunity of hearing at the time of allotment to the respondents side to object to this allotment and, at the same time, to seek transfer/allotment in their own favour. In that competition the party with better merit would have succeeded. The appellants side in this behalf also had a good prima facie case at least in the sence that other things being equal. they were occupants of the land in dispute while the respondents side were outsider. The third ground in the remand order, therefore, was obviously valid.

9. The last ground regarding the denial of opportunity of hearing to the appellants in the context of the foregoing discussion on the third and first ground, was also amply justified.

10. In the light of the above discussions, this appeal is allowed. The impugned judgment is set aside. The writ issued by the High Court is recalled. The order of remand, impugned before the High Court is restored. The case shall now go to the officer concerned, who shall decide the same in the light of the law discussed, preferably within six months.