1988 PLP 1321 (MLD)

Some land was allotted at Khata No.142 of R.L.11 village Tung Kalan Tehsil and District Gujranwala in the name of Mst.Noor jahaa Begum. This was cancelled by the Additional Settlement Commissioner exercising powers of the Chief Settlement Commissioner under section 10/ 11 of the Displaced Persons (Land Settlement) Act, 1958 on 1‑9‑1969. Thereafter, a part of the land was allotted to the petitioners Nos.1 and 2 on 27‑9‑1969 at Khata Nos.285 and 286 of $..L.

11. The land earlier allotted in favour of Mst.Noor Jahan Begum at Khata No.142 was finally restored by the S.C./CSC with the result that the allotment in favour of the petitioners fell through. This is vide order dated 14‑3‑1979. The petitioners, relying‑on Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others P L D 11'79 S C 846, applied to the respondent No.1 for allotment saying that since their claims having once been adjusted and then the land taken away from them in the ensuing litigation, their case would be deemed to be pending and they would be entitled to allotment from the available land. The application was rejected on 16‑3‑1981. Hence, this Constitutional petition.

2. Learned counsel for the petitioners has reiterated submission and has also referred to a memorandum of the Member, Board of Revenue, Settlement and Rehabilitation Commissioner dated 5‑2‑1981 wherein on the declaration of an area allotted to claimants as non‑evacuee it was directed by the learned Member, Board of Revenue that the claims having been adjusted petitioners should be allotted lard from the available area. Learned counsel ha: also filed list of the available land verified by the Officers concerned.

3. Learned counsel for respondent No.2 has vehemently submitted firstly that the allotment in favour of the petitioners was void ab initio because it had been made in spite of the stay order in favour of the original allottee. Secondly, that the petitioners have an alternate remedy of applying for cash compensation. Thirdly, that since the petitioners have not approached the Member, Board of Revenue therefore, the petition is pre‑mature and fourthly that there were no pending proceedings for allotment in favour of the petitioner; because they had been once allotted land, and that it was subsequently cancelled, is immaterial. He has relied on P L D 1979 Quetta 75 and I' L D 19 79 Kar.100. He has also submitted that the judgment of the Supreme Court relied upon by the learned counsel for the petitioners is not applicable to the facts of the case. Lastly that the High Court has no jurisdiction to pass an executive order of allotment.

4. The contentions of the learned counsel for the respondent No.2 have no force whatsoever. The allotment‑ in favour of the petitioners has been cancelled and the land has been restored to the original allottee would amount to that the adjustment of the claim of the petitioners was wrongly made and, therefore, their claim would remain "pending", and that is precisely what the repealing Statute Act XIV of 1975 provided for that pending proceedings be concluded under the, repealed statute. It is submitted, while the order was being dictated, that the petitioners case will be like that of thousands of other claimants whose claims have not been adjusted. The submission only shows that the Settlement Authorities have not been efficient enough to settle the claims of unfortunate displaced persons for over 26 years period. Moreover, the case of petitioners is distinguishable because their claim was adjusted and then land taken away. So, their case had remained pending in the melting post of the Settlement Authorities. The second contention that the petitioners have alternate remedy of claiming cash compensation is neither adequate nor admissible now. The third contention has no merit either because the respondent No.1 was acting on behalf of respondent No.2 and in any case the matter is going to be remitted to the respondent No.2. The third contention is without force for the reason given earlier in connection with the first contention and is clinched by the judgment of the learned Supreme Court of Pakistan relied upon by the learned counsel for the petitioners. Learned counsel for the respondent No.2 is quite in error that the High Court passes an executive order if it directs that allotment be made as required by law. Such an order is eminently judicial in accordance with the Constitutional mandate. The contention raised by the learned counsel for the respondent No.2 that after the Repealing Act all available land has been transferred to the Provincial Government and the latter is required to pay over a hundred crores of rupees to the Central Government and, therefore, there is no available land to be allotted in consequence of `pending' cases is off the mark. Figures however impressive cannot take the place of law. The land which will be given to the Provincial Government for which it may have to pay to the Central Government will be that land which will be `available' after disposal of `pending' cases under the Repealing Law as laid down in the Statute itself (Act XIV of 1975). Therefore, if the land is liable to disposal in `pending' cases, that would not form part of `available land' transferable to the Provincial Government nor the latter would be liable to pay for it to the Central Government. The unfortunate petitioners who have been thrown away from their homes by the Hindus on the creation of the country are asking what is due to them under the law and it has taken 37 years for the Officers who were invested with authority to do the needful. Enough and it is more than enough. Therefore, this petition is accepted with costs. Respondent No.2 is directed to satisfy the `pending' claim of the petitioners from `available' land as verified by the Assistant Commissioner or from any other 'available land. The petition is thus disposed of. M.Y.H./4059/L Petition accepted.