1987 PLP 2021 (SCMR)

SHAFIUR RAHMAN, J.‑‑By two separate petitions the two informers seek leave to appeal against the judgment of the Lahore High Court, dated 17‑11‑1986 whereby a constitutional petition filed by one of the purchasers of the allotted land was allowed and the decision on second Mukhbari application, allegedly filed by the two petitioners on 29‑6‑1974 was held to be without lawful authority.

2. There is a controverted claim by the two petitioners as to which of them was the real informer in the case. However, that is a point which need not be gone into in view of the legal question on which the decision proceeds.

3. One Muhammad Aslam got allotted against his verified claim land measuring 122 Kanals 6 Marlas in village Kamonki, Tehsil and District Gujranwala. On a report from the Director of Enforcement, Evacuee Property, an inquiry into the genuineness of the allotment and the entitlement of Muhammad Aslam was held. The allotment was found to be in order by order, dated 30‑7‑1969.

4. It appears that Muhammad Aslam sold a bulk of the area allotted to him in village Kamonki in favour of Tajammal Hussain, the writ petitioner. Again an application was filed under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 with respect to this allotment. An inquiry was held ex parte and cancellation of the allotment was ordered. The purchaser moved an application before the Settlement Commissioner for the recall of the order on the ground that he had been condemned unheard. The succeeding Settlement Commissioner/ C.S.C. held that he enjoyed coordinate jurisdiction and could not recall the order earlier passed cancelling the allotment ex parte. This brought the purchaser to the High Court in constitutional jurisdiction.

5. The learned Judge in the High Court allowed the petition holding that in view of the Circular of the Chief Settlement Commissioner, dated 2‑7‑1977, proceedings could not be initiated on an application filed on 29‑6‑1974. He also held that the genuineness of the allotment had already been examined by the same authority and there was nothing new to be inquired into.

6. Aggrieved by this decision of High Court, the two petitioners, who claim to be informers in their own right, seek leave to appeal and their case is that the Chief Settlement Commissioner could not refuse to exercise jurisdiction where the requirements prescribed by law were established and further that there was material on the record to establish that the allotment was not genuine.

7. The circumstances in which the Chief Settlement Commissioner came to issue the impugned circular require some mention. The Displaced Persons (Land Settlement) Act was repealed as from 1‑1‑1974. However, the pending proceedings were saved to be dealt with under the repealed laws. The circular which followed provided as hereunder: ‑ "It has been brought to the notice of Chief Settlement Commissioner/ Member Board of Revenue (Settlement and Rehabilitation) Punjab, that most of the applications under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (now repealed) presented almost in the last week of June, 1974, have now been taken up by the Courts concerned without recording the valid reasons for the period from June, 1974 to 1976/77. With a view to avoid any possible chances of further fraud in collusion with the officials of the Settlement Department, the Chief Settlement Commissioner/ Member Board of Revenue, Punjab, has been pleased to order that no proceedings should be initiated on such applications and they should be consigned to record. You are, therefore, requested to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue (Settlement and Rehabilitation), Punjab."

8. The application filed by the petitioners is dated 29‑6‑1974 and the first order dealing with it was passed on 23‑12‑1974 about six months thereafter. There is nothing on the record to efface the suspicion attaching. The only question to be examined is whether such a circular as was passed by the Chief Settlement Commissioner is in accordance with law and governs the case.

9. Seeing to the totality of the case, we find that the Settlement Commissioner/ C . S.C., has declined to interfere with the order passed by his predecessor even after coming to the conclusion that it was not a legal order. The High Court has sustained that finding of the Settlement Commissioner that the earlier order of his predecessor was not in accordance with law for want of jurisdiction. There are two strong reasons; firstly, this question of entitlement and genuineness of the allotment had already been examined at the instance of Director Enforcement and it was not proper to vex the allottee twice in respect of the same allotment on the same ground. Besides, the Chief Settlement Commissioner had passed a regulatory order which was an effort on his part to prevent further fraud in making and continuing proceedings on suspect applications. The High Court was justified in coming to conclusion that this circular prevented the reopening of the question of genuineness of allotment at the instance of the petitioners who filed their applications on 29‑6‑1974.The circular cannot be declared to be ultra vires or in conflict with the law. It advances and serves the object of the law i.e. to keep the allotment work free from fraud and false representation and it is in that context that certain inquiries had been directed not to be undertaken as they compound evil rather, than remedying it. We do not consider this be a fit case for the grant of leave to appeal. Hence leave is refused. S.Q./A‑101/S Leave refused.