2019 PLP 18 (CLCN)

CH. MUHAMMAD IQBAL, J.

Through this appeal, the appellants have challenged the validity of judgment dated 22.05.2015 whereby the learned Single Judge-in-Chambers allowed Writ Petition No.5-R/1986 filed by respondents Nos.1 to 14 while setting aside order dated 19.12.1985 passed by respondent No.36/Additional Commissioner (R)/S.C. (l)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala who cancelled the allotment of Atta Muhammad, resumed the same in favour of the state and also validated the allotment of the said land in favour of Mst. Sultana Begum etc.

2. Brief facts of the appeal are that some evacuee land situated in Qila Deedar Singh, Tehsil and District Gujranwala was allegedly allotted to the following persons; Name of the Allottee Land Allotted Khata No. Date of allotment Date of cancellation Ashraf Ali Zaida 97-K, 17-M 123 RL.II 01.09.1965 31.1.1972 -do- 20-K, 0-M 158 RL.II 6.6.1966 -do- Atta Mohammad 342-K, 15-M 168 RL.II 6.6.1966 19.12.1985 Payaray Khan etc. 552-K, 131 to 136 RL.II 1.9.1965 18.12.1969 Allah Wasaya 129-K, 6-M 162 RL.II 1966 18.12.1969 The alleged allotment of Ashraf Ali Zaidi was cancelled on 31.01.1972 by the Settlement Commissioner. Ch. Muhammad Ismail (vendee of the land from the allottee) challenged the said cancellation through Writ Petition No.273-R/1972 but he died during the pendency of the said writ petition, subsequently, the said writ petition was dismissed in default vide order dated 13.02.1980. Application for restoration filed by his legal heirs was also dismissed on 26.06.1983. The petition for leave to appeal was also dismissed by the Hon'ble Supreme Court of Pakistan. The legal heirs of Ch. Muhammad Ismail filed Writ Petition No.33-R/1990 which was dismissed as withdrawn. One Mst. Hajan Sunnat Bibi (vendee) filed application under section 12(2), C.P.C. to set aside the withdrawal order which was allowed vide order dated 08.11.2000. The said order was assailed before Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court remanded the case for decision afresh. The allotment of Payaray Khan etc. at Khata Nos.131-136 which was cancelled on 19.10.1966 by the competent authority and the said cancellation order remained intact upto Hon'ble Supreme Court of Pakistan. The land allotted to Allah Wasaya was also resumed in favour of the state on 18.12.1969 which resumption order was also upheld upto the Hon'ble Supreme Court of Pakistan.

3. Mst. Sultana Begum and others were allegedly allotted some evacuee land in Qila Deedar Singh detail where of is as under:- Name of Allottee Land Allottee Khata No. Date of allotment

1. Sultana Begum 1575/K-16/M 191 RLII 19.05.1968

2. Raj son of Ranjha 51/K-19/M 192 RLII 19.05.1968

3. Nazar son of Wallayat 114/K-14/M 193 RLII 19.05.1968

4. Mst. Shah Bibi 685/K-15/M 144/RLII 19.05.1968 She was allotted land measuring 1575 Kanals 16 Marlas against her alleged evacuee claim at Khata 191 RL-II vide allotment order dated 19.05.1968 by making amendment of Khatta RL-II 168 in record of Settlement Department. The above allotment of Sultana Begum was challenged by the vendee from Atta Muhammad etc. before the Settlement Authorities for removal of the anomaly of duel allotment of one and same land to two different claimants. The allotment of subsequent allottee Sultana Begum was cancelled on 11.02.1975. Feeling aggrieved whereof she assailed the cancellation order through filing writ petitions which was accepted and the case was remanded for fresh decision vide order dated 27.02.1976. One Khuda Bakhsh vendee from Peyary Khan also filed application under sections 10 and 11 of the Land Settlement Act, 1958 for the cancellation of allotment of Mst. Sultana Begum, which application was dismissed by the Settlement Commissioner vide order dated 20.04.1977. Against the above order he filed Writ Petitions Nos.925/R and 1446/R of 1977 which were accepted by this Court vide order dated 03.03.1980. Against the above order Mst. Sultana Begum filed Civil Petition No.645 of 1980 in the Hon'ble Supreme Court which was converted into appeal bearing C.A. No.653/1984 vide order dated 05.05.1984. Simultaneously Khuda Bakhsh also assailed the order dated 03.03.1980 by filing C.P. No.1429/1980 in which leave was also granted on 5.5.1984 and petition was converted into Civil Appeal No.655/1984. Both the above appeals were disposed of by Hon'ble Supreme Court of Pakistan as the same have become infructuous vide order dated 30.05.1991, as the matter of allotment of Atta Muhammad at Khata No.168 of RL-II was still pending adjudication before the Settlement Authorities. The Additional Settlement Commissioner vide order dated 19.12.1985 declared the allotment of said Atta Muhammad as illegal and cancelled the same, however, he allowed the subsequent vendees from first allottee to purchase the said land under their possession @ Rs.100/- PIUs. Against the above orders two writ petitions 5-R/1986, W.P. No.345/R of 1984 were filed by Mst. Fatima Bibi and one Writ Petition No.33-R/1990 was filed by one Shahid Ismail etc. This Court vide order dated 08.11.2000 declared the allotment of Atta Muhammad as illegal and the subsequent vendee from him have no legal right to retain possession of the cancelled land. Against the said order, two civil petitions were filed before the Hon'ble Supreme Court of Pakistan wherein leave was granted and the said petitions were converted into Civil Appeal (i.e. Appeals Nos.2731 to 2733 of 2001) which were allowed and case was remanded to this Court vide order dated 05.05.2008 for fresh decision. A Review petition was filed against the above order which was also dismissed as withdrawn vide order dated 17.02.2010. In the post remand proceedings of Writ Petitions Nos.5-R/1986, 345-R/1984 and 33-R/1990, the learned Single Judge-in-Chambers vide judgment dated 22.05.2015 accepted Writ Petition No.5-R/1986 and set aside the order dated 19.12.1985 passed by the Additional Commissioner (R)/S.C. (I)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala and validated the allotment dated 19.05.1968 of subsequent alleged allottee Mst. Sultana Begum. Hence, this Intra Court Appeal.

4. Learned counsel for the appellants submits that under section 3 of the Repeal Act, 1975, the Additional Settlement Commissioner rightly passed order by allowing the subsequent purchaser from the original allottee to purchase the evacuee land @ Rs.100 PIUs; that the appellants firstly purchased land from Atta Muhammad etc., but his allotment was cancelled as the same was a double allotment, later on, the Additional Settlement Commissioner gave opportunity to the occupant to purchase the land in their possession under section 3(1)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975 and the appellants purchased the land in their respective possession; that the learned Single Judge-in-Chambers misconstrued the provision of section 3 of the Repeal Act, 1975 and illegally set aside the order for sale of the land to the appellant; that allotment dated 19.05.1968 in favour of Mst. Sultana Begum, Raj, Nazar and Mst. Shah Bibi were also double allotments of the land which was not available for any allotment as the allotment of Atta Muhammad and other was still intact as the same was not yet cancelled by the competent authority at the time of its allotment to subsequent allottee whereas without lawful resumption of the said land, the same could not be re-allotted any further as such the subsequent allotment in favour Sultana Begum etc. is liable to be cancelled being bogus in nature.

5. Learned counsel appearing on behalf of the respondents states that very allotment of Atta Muhammad etc., was obtained by practicing fraud which allotment was void ab initio and same was liable to be ignored; that the order of allotment of Mst. Sultana Begum etc., was rightly passed by the competent authority against the genuine verified claim; further submits that the appellants purchased the land from the fraudulent allottees, as such the possession of the appellant over the land is that of an illegal occupant, and they are not entitled to get relief as embodied in Section 3 of the Repeal Act, 1975. Further asserted that land was not available to be sold out to the appellants as the same has already been allotted to Mst. Sultana Begum on 19.05.1968, as such, learned Single Judge-in-Chambers rightly passed judgment and has committed no illegality.

6. We have heard the arguments of the learned counsel for both the parties at full length and gone through the record with their able assistance.

7. Admittedly the impugned land comprising of Khata RL-II Nos.123, 131 to 136, 158, 162, 168 as well as Khata RL-II Nos. 144, 191 to 193 situated in Qila Didar Singh District Gujranwala was an evacuee land. The pictorial map of Qila Didar Singh is scanned herein below:- As per official record Qila Didar Singh was a Town Committee before partition of India as evinces from the letter of the Deputy Commissioner, Gujranwala dated 25.01.1935. Scanned copy of the said letter is reproduced as under:- Similarly the status of Town Committee of Qila Didar Singh was further upgraded as Municipal Committee vide official Gazette Notification dated 12.05.1961, scanned copy whereof is as under:- From perusal of above letter of the Deputy Commissioner as well as the Notification dated 12.05.1961 it can conveniently be said that the land comprising of the above said Khatta RL-II Numbers do fall within the limits of Town and Municipal Committee, Qila Didar Singh. Before dealing with the respective assertions and contentions of the parties as well as the legal and factual issues involved in the lis, it is appropriate to shed light on the plain provisions of law as well as the case law on the subject. For Settlement and Rehabilitation of the Evacuees, the Govt. of Pakistan issued many policies, guidelines and finally legislature enacted the Displaced Persons (Land Settlement) Act, 1958 to streamline, legalize the efforts and process of the Rehabilitation of the Evacuee claimants. Before and after the above enactment majority of the evacuees were settled during the process of rehabilitation. Under the guise of being evacuees certain ingenuine claimants fraudulently got allotted evacuee land. To eradicate such grotesque practice of fraudulent allotments Sections 10 and 11 of the Act ibid furnishes procedure to cater the situation. There was another aspect of the allotments of the evacuee lands that the claims of rural/agricultural PIUs were being adjusted against the urban properties beyond the entitlement of claimants and in order to curb such practice the Chief Settlement Commissioner finally issued Notification on 16.05.1973 declaring all the evacuee agricultural land situated in urban limits of Municipal Corporation Notified Area Committee, Municipal Committee and Tehsil Committee etc., in the entire province of Punjab to be building site and since the issuance of said notification all such agricultural land situated within urban limits was excluded from any allotment against the agricultural rural unit. The said notification is reproduced as under:- "In exercise of powers conferred upon me under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, IO, Mr. M. Aslam Awais, C.S.P., Chief Settlement and Rehabilitation Commissioner, Punjab do hereby declare all the available evacuee urban land, including the one not yet confirmed to any person against units or evacuee land which may become available in future, in all the Revenue Estates situated within the Urban limits of a Municipal Corporation, Municipal Committee, Notified Area Committee, Town Area Committee, Small Town Committee and Sanitary Committee, or a Cantonment, throughout the Province of Punjab, as building sites, for disposal under section 13 of the said Act." Ultimately the evacuee laws on the subject were also repealed through Evacuee Property and Displaced Persons Laws (Repeal) Act No.XIV of 1975 giving retrospective effect from 1st of July, 1974, whereafter the further allotment of the evacuee land was restricted with the exception that only the actively pending proceedings before the Chief Settlement Commissioner or the matter remanded by the Supreme Court or the High Court were to be decided by the Notified Officer as prescribed in section 2 of the Repealing Act, 1975. Whereas section 3 of the Repealed Act, 1975 prescribed the criteria for the Management and Disposal of Urban Evacuee Land. For ready reference, section 3 is reproduced as under:- "

3. Transfer of property. (1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal:- (a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and (b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972." Under the above provision of law all the evacuee properties/land against the paid consideration were transferred to the Provincial Government which was mandated to visualize the policies for disposal of the urban evacuee land. The Provincial Government under section 3(1)(a) of the Act ibid prepared a scheme for the transfer of the urban land named as "Scheme For the Management and Disposal of Available Urban Properties" promulgated on 13th of January 1977. An elaborate procedure is provided in paras 1, 6, 11, 12 and 30 of the above policy for the disposal of urban land. The vires of the above policy came under judicial scrutiny and Hon'ble Supreme Court of Pakistan in a case reported as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449) conclusively held that all the urban properties are to be disposed of through unrestricted public auction. Relevant paras are reproduced as under:- "In the instant cases, as record shows that on mere desire of the ten Chief Minister of Punjab, the Member (Colonies) BOR, Punjab doled out valuable "residual evacuee property" at a throw away price to the petitioner-School, knowing fully well that the subject property is not the State land and that the subject evacuee land could only be disposed off through open auction in terms of the Scheme, 1977 and otherwise, he was not at all competent to undertake such exercise, which authority under the Scheme, 1977 vested in the Member, Board of Revenue (Residual Properties)." Further there is no provision in the Evacuee Repeal Laws that the Evacuee land can be disposed of through any private treaty and a glorified modus oprandi for disposal of the evacuee land through unrestricted public auction has finally been selected as suitable for the best interest of the state as discussed in the case of Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1) as well as in C.P. No.709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab and 2 others v. Sagheer Muhammad Khan and others, where the Hon'ble Supreme Court of Pakistan vide order dated 02.01.2015 has settled that after the Repeal Act 1975, the urban evacuee property can only be disposed of through open auction, relevant portion thereof is reproduced as under:- "

7. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms." Moreover after issuance of notification dated 16.05.1973 by the Chief Settlement and Rehabilitation Commissioner, Punjab, no allotment can be made on the basis of any claim or unadjusted unit of the evacuee claimant. The Hon'ble Supreme Court of Pakistan in a reported case Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822) has discussed in detail the vires of notification dated 16.05.1973 and declared that after issuance of the above notification no urban evacuee land can be allotted on the basis of any evacuee claim or unsatisfied or unadjusted PIUs. As per the above notification, the evacuee agricultural land (urban) was declared building site and same has gone out of the rural agricultural compensation pool, whereafter the said evacuee land neither can be allotted against any claim nor sold to any sitting occupants through any private treaty. Reliance is placed on the cases of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Khair Din v. Mst. Salaman and others (PLD 2002 SC 677), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Khadim Hussain v. Abid Hussain and others (PLD 2009 SC 419) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). Further, it is made obligatory upon the state functionaries that any disposal of evacuee urban land as well as its letting or leasing out shall be made through transparent, unrestricted public auction to safeguard the sacred interest of the public as laid down in a recent judgment reported as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449), wherein the Hon'ble Supreme Court of Pakistan has held that under Paragraphs 1(d), 11, 12 and 30 of the Scheme for Management and Disposal of Available Urban Properties, 1977, the evacuee urban properties shall be disposed of (if needed) through unrestricted public auction. As discussed above it has abundantly been clear and conclusively settled that urban agricultural evacuee land could only be disposed of through unrestricted public auction and any slightest deviation from the law rendered such act as illegal and void as it is well settled law that when law requires a thing to be done in a particular manner, the same should be done in that very particular manner, otherwise not. Reliance is placed on "Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another" (2008 SCMR 1148).

8. Now attending to the question of double allotment of evacuee land against one claim of Atta Muhammad, it is pertinent to have glance at the entitlement of the claimant. The chequered episode of this case is that one Atta Muhammad was displaced evacuee from Ferozpur India who was holding verified claim of 2931 PIUs. He was allotted land measuring 238 Kanals 7 Marlas equal to 2018 PIUs in Khata RL-II No.8 in village Dilbagh Rai District Okara and the land measuring 185 Kanals equal to 1123 PIUs was confirmed in the name of his son Lal Khan in Chak No.17/SP Tehsil Pakpattan District Sahiwal and in this way the entire claim of said claimant Atta Muhammad stood satisfied in the year 1953 whereas as per record said Atta Muhammad died on 09.06.1957. One Javed Akhtar got prepared a general power of attorney in his favour on behalf of said Atta Muhammad and obtained allotment of evacuee land measuring 342-Kanals 15-Marlas at Khata No.168 RL-II situated in village Qila Deedar Singh, Tehsil and District Gujranwala on 06.06.1966. The said alleged attorney further alienated the allotted land measuring 315-Kanals to one Lt. Col. Akbar Khan and remaining land was sold to Dilshad Ahmad whereas the appellants being vendees from the first allottee are in actual physical possession of the said land. An inquiry was conducted in the year 1969/70 in order to ascertain the genuineness of allotment of Atta Muhammad and as a result of said inquiry his allotment was declared illegal being a double allotment as the allottee's entire claim had already been stood satisfied in the year 1953 and nothing was pending outstanding qua his claim whereas claimant died on 06.09.1957 before the passing of impugned allotment order dated 06.06.1966 and finally his allotment was cancelled vide order dated 19.12.1985 by the Additional Commissioner (R)/S.C. (l)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala. For ready reference, relevant portion whereof is reproduced as under:- "Abdul Rashid etc. vendees have requested that as they had spent a huge amount on the improvement of the disputed land, therefore, they were ready to purchase the same after depositing the expenses of the same in the Government Treasury, as they were entitled to the same. The excess allotment of land at Khata No.168/R.LII of Village Qila Deedar Singh, (Urban), Tehsil and District Gujranwala and the land of the said Khata which had been double allotted at Khata Nos.144/1, 191, 192 and 193 is hereby cancelled. Jamdar Amir Muhammad Khan has disappeared after appearing in the court and he has not given any proof of his pending units whereas the vendees at Khata No.168 of RL-II are again prepared to purchase to disputed land from the Central Government which is already in their possession. Therefore, they are allowed to purchase the same at the rate of Rs.100 per P.I.U in view of their entitlement and possession. They should deposit the sale price within thirty days of this order after excluding the period spent in obtaining the copy of this order in the Government Treasury and the land which is left out of the sold land at Khata No.168 of RL-II that should be put to auction under the law. First of all the claimant was allotted land measuring 238-K and 7-M on 29.06.1952 at Khata No.8 of RL-II of Village Dilbagh Rai, Tehsil and District Okara in lieu of 2018 units after that land measuring 185-K was confirmed in his name at Chak No.17/S-P, Tehsil Pakpattan in lieu of 1123 units on 7.3.1953 making a total units of Rs.3141 which shows that he got 210 units in excess of his entitlement. The A.C. Pakpattan should cancel these 210 Units which were later on allotted at Chak No.17/S-P. If the allottes/possesses of Chak No.17/S-P want to purchase the land of these units, the same should be sold to them at the rate of Rs.100 Per PIU, if otherwise the same should be disposed of by auction under the rule. As regards land relating to Qila Deedar Singh, the A.C Saddar Sub-Division, Gujranwala should give ownership rights to Khan Abdul Rashid Khan etc. bona fide purchasers/possesses of Khata No.168 of RL-II of Qila Deedar Singh at the rate of Rs.100 PIU after verification of units of every purchaser/possesses, keeping in view kind of land as entered in Khata No.168 of RL-II/revenue record for the year 1946-47.

9. Admittedly the above said order has never been challenged by allottee or the appellants vendees any further as such same has attained finality to their extent. Further the appellants during pendency of above proceedings before the Settlement authorities filed fresh application for the purchase of the evacuee land in their respective possession under section 3(1)(b) of the Repeal Act, 1975, and the Additional Commissioner (R)/S.C.(1)/Chief Settlement Commissioner, through above quoted order dated 19.12.1985, allowed the appellants to purchase the land in their respective possession @ 100 per PIU considering the said evacuee land as merely simple agricultural land , whereas, all such agricultural urban evacuee land are situated within the Municipal Limits of Qila Didar Singh since May, 1961. Further the appellant in para 2 as well as Note given in para 14 of the instant appeal have unambiguously and explicitly jotted down that the land under their possession is an evacuee urban land having attained the status of a fully developed urban area consisting of buildings, residences etc. as well as commercial buildings, as such land offered for sale @ Rs.100 PIU treating it merely as an agricultural land is an illegal approach of the Notified Officer. Whereas all the evacuee agricultural land falling within the limits of Municipal Committee has already been declared a building site vide Notification dated 16.05.1973 issued under the provision of Displaced Persons (Land Settlement) Act, 1958, which notification has also been validated by the Hon'ble Supreme Court but perhaps the said notification has escaped for the consideration of the Notified Officer who illegally allowed the sale of resumed land through private understanding against rural PIUs in blatant contravention of above notification and the plain provision of section 3 of the Evacuee Trust Properties and Displaced Persons Laws (Repeal) Act, 1975 as well as the policy of 1977 formulated for the disposal of the urban evacuee agricultural land.

10. The appellants also claimed to be bona fide purchaser as they purchased the land from alleged allottee namely Atta Muhammad through his general power of attorney and have protection of section 41 of the Transfer of Property Act, suffice it to say that as per available record said Atta Muhammad allottee died in the year 1957, whereas one Javed Akhtar got prepared a fake General Power of Attorney after his death and obtained allotment of the urban evacuee land in question against rural PIUs whereafter he sold out the same to the appellants. There is no doubt that the alleged allotment in the name of Atta Muhammad etc., was obtained through committing fraud and mis-representation by a fake General Power of Attorney, whereas the entire claim of said Atta Muhammad stood satisfied in District Okara and Sahiwal as back as in 1953, as such the allotment in favour of Atta Muhammad was result of blatant fraud and was void ab initio, which does not confer any right or title upon the fraudulent allottee or any subsequent purchaser from the said allottee. The subsequent vendee has to sail and sink with title of their vendor and they are debarred to claim any better title than that of their vendors. Moreover the appellants' stance of bona fide purchaser was initially turned down by the Chief Settlement Commissioner in his order dated 11.12.1985 which has never been challenged by the appellant and said order attained finality. Further appellant themselves moved application for purchase of the said land under Section 3 of the Repeal Act, 1975 as well as the Policy 1977 on the subject, meaning thereby they themselves abandoned or waived the claim of bona fide purchasers whereafter they are precluded to re-assert the pleas of bona fide purchaser as such the protection of Section 41 of the Transfer of Property Act is not available to subsequent purchaser. Moreover the appellant admitted in the para 2 as well as Note to Para 14 of the instant appeal that the impugned land fall within the urban limit of Municipal Committee which is a building site as such the same could not be offered for sale through any private treaty in the year 1985, as per law on the subject which law requires that all the urban property could only be disposed of through unrestricted open auction but contrary to the above, the Notified Officer committed glaring illegality by allowing the appellants to purchase the said land @ Rs.100 PIUs, as such the learned Single Judge in Chamber has rightly set aside the order of the Notified Officer dated 11.12.1985 to the extent of sale of the evacuee land to appellant through any private understandings. As such the impugned judgment of the learned Single Judge to this extent is maintained and captioned appeal shall be considered as dismissed.

11. Now coming to the case of allotment of Mst. Sultana Begum etc. who got allotted land against her claim on 19.05.1968 at Khata RL-II No.191 which Khata was carved out after introducing modification in Khata RL-II No.168, already allotted to one Atta Muhammad on 06.06.1966 prior to allotment of subsequent allottee. The allotment of first allottee (Atta Muhammad) remained intact in his name uptill 11.12.1985, as such the said land was not available for any further allotment till 1985 and it is settled law that ancient allotment prevail over the subsequent allotment until the first one is nullified by the competent authority. Moreover the Notified Officer Mr. Abdul Rauf Khan Niazi, the then Additional Deputy Settlement Commissioner/D.S.C (L) Gujranwala, to whom the passing of allotment order of Sultana Begum etc., was attributed has made an unequivocal clear statement on 23.01.1975 that his signatures appearing at Khata Nos.191, 192 and 193 of RL-II are fake and forged one as he had never created or signed the above Khata in settlement record, as such, entry of said Khata regarding allotment/confirmation of land in favour of Mst. Sultana Begum etc., has no legal force. The above deposition of the Notified Officer has never been controverted in the same or the subsequent proceedings by the subsequent allottees through any documentary evidence which vitiates the veracity of their allotment.

12. So far as the question of double allotment is concerned admittedly, the evacuee agricultural urban land was got allotted by Atta Muhammad etc. on 6.6.1966 which order was incorporated in the revenue record and the said land was further sold out to many persons who were/are in possession thereof, as such the said land was not available in the settlement pool since its allotment till resumption on 11.12.1985 and notified officer in balatant perversity of the record of settlement department, illegally allotted the urban land to Sultana Begum etc., on 19.05.1968 much prior to lawful resumption of the said land. Though the allotment of Atta Muhammad was subsequently found patently illegal fraudulent yet same remained intact in the official record till 1985 and land was not available in the pool as the possession of the said land was with subsequent vendees of the first allottee as such the said land was not available for any further allotment till its lawful resumption and its reversion to the pool, as such subsequent order of allotment in favour of Sultana Begum etc., was entirely farcical, fanciful, colourable and not sustainable in the eyes of law. Reliance can also be placed on the cases reported as Abdul Ghani v. Noor Muhammad and others (1984 SCMR 1192) and Mst. Irshad Begum and 2 others v. Muhammad Arshad and 62 others (PLD 2005 SC 347). For ready reference, relevant portion whereof is reproduced as under:- "

14. As the allotment made in favour of Yousuf Ali Khan had admittedly not been cancelled the subsequent allotment made in favour of the predecessor-in-interest of the respondents of the same land was void and had rightly been ignored. This is in line with the law laid down in by this Court Abdul Ghani v. Noor Muhammad and others (1984 SCMR 1192) wherein at page 1195 this Court observed as under:- "The question after the remand of the case before the learned Additional Settlement Commissioner, Sahiwal, who then heard the case, therefore, was to confirm or set aside the first order transferring the plot as a 'building site' to the appellant or the subsequent order of transfer of the same Khasra number as agricultural land in favour of the respondents. The nature of the property viz. disputed plot, was examined by the learned Additional Settlement Commissioner who after examining the record as per his order, dated 26.4.1973 held as under:- "The disputed land was a building site and was accordingly allotted to the petitioner (now appellant) by, the Settlement Commissioner, under Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under these circumstances its allotment under Land Settlement Act cannot be maintained." "By the above finding the P.T.D issued in favour of the appellant was maintained. In this view of the matter, it is unnecessary to examine the question whether on the issuance of a P.T.D. to the appellant the land was not available to be allotted as agricultural land to the respondents as in fact the said P.T.D. was not cancelled at any stage and the case was taken up only for the purpose of resolving the dispute arising out of two conflicting allotments operating side by side in the field." Whereas the learned Single Judge-in-Chambers through the impugned judgment has validated the allotment order dated 19.05.1968 in favour of Mst. Sultana Begum etc. despite the fact that admittedly said evacuee land had already been allotted to first allottee which was still intact in the name of Atta Muhammad (first allottee) as the same was not cancelled or resumed by any competent authority before making of its subsequent allotment order dated 19.05.1968 in favour of the Sultana Begum, as the said land was not available in pool of evacuee land till 19.12.1985 which factum alone nullifies the very allotment in favour of subsequent allottee, Mst. Sultana Begum and the same is not sustainable in the eyes of law. Moreover admittedly disputed land fell within the urban limit of Municipal Committee of Qila Didar Singh vide notification dated 12.05.1961 and under the Notification dated 16.05.1973 as well as section 3 of Repeal Act, 1975 and Paras 1(d), 11, 12 and 30 of Policy Scheme 1977, the said land could not be allotted against any agricultural claim. As such the above significant aspect has escaped from the consideration of the learned Single Judge in Chambers, who erroneously maintained the allotment of Sultana Begum etc. which findings are not in consonance with law on the subject as such the same are hereby set aside with the result that order of allotments at Khata Nos.191 RL-II, 192-RL-II and 144 RL-II dated 19.05.1968 is hereby declared as illegal and same also are hereby set aside accordingly.

13. Upshot of the above discussion is that the instant appeal is dismissed. The land allotted to Atta Muhammad etc., which is presently in possession of the appellants/subsequent purchasers as well as the land allotted to Sultana Begum etc., at Khata RL-II Nos.123, 131 to 136, 158, 162 and 168 and Khata RL-II Nos.144, 191, 192 and 193 as mentioned in tables given in Para Nos.2 and 3 of this judgment be resumed in favour of the state. The Notified Officer/Member Residual Properties is directed to immediately retrieve the possession of the said land in favour of the State for its disposal as per law. Office is directed to transmit the copy of this judgment to the Chief Secretary Punjab as well as the Chief Settlement Commissioner and the Notified Officer for compliance. MH/A-2/L Intra court appeal dismisse