1984 PLP 1409 (SCMR)

SHAFIUR RAHMAN, J.‑‑ Khawaja Gul Muhammad who is the petitioner in both these petitions, seeks leave to appeal against the judgment of the Appeal Bench of the Lahore High Court, dated the 11th of January, 1982 whereby the cancellation of his allotments on a constitutional petition filed by the respondents was affirmed. The facts forming the background of these two petitions are that Ali Hussain, a refugee from Azad Jammu and Kashmir, filed his claim form in Gujranwala District and his verified claim was received there. He obtained allotments to the extent of 960 P.I. Us. in three different villages of Gujranwala District and got 2,000 P. I. Us transferred to Tehsil Kahuta, District Rawalpindi. The petitioner had a verified claim of 1935 P.I. Us against which proposals were made in village Kallar Syedian and Kallar Budhar in Tehsil Kahuta. However, as there was some clerical discrepancy in the particulars of his claim form, it was sent for re‑verification but in the meantime the allotment made to him was got confirmed against the transferred units of Ali Hussain who sold it to Dr. Israr Hussain from whom the respondents‑writ petitioners purchased it. The petitioner challenged the allotments made against the claim of Ali Hussain and an Additional Settlement Commissioner on 3‑1‑1966 remanded the matter to the Deputy Settlement Commissioner for looking afresh into the competing claims of the petitioner and the predecessor‑ill‑interest of the writ petitioners namely Ali Hussain. A revision petition was filed against the remand order which was disposed of in terms of the agreement entered into by the petitioner and the respondents. The petitioner tried to challenge the decision of the Settlement Commissioner on compromise but failed in the High Court vide order, dated 2‑8‑1966 in Writ Petition No.924‑R/1966. Proceedings were in the meantime started against Ali Hussain in Gujranwala district where his claim form had been filed and had been received first after verification. The Deputy Commissioner who was the Additional Settlement Commissioner exercising powers of the Chief Settlement Commissioner, Gujranwala by his order, dated 13‑10‑1971 held that this Ali Hussain had a verified claim of only 296 units which had been by forgery and interpolation increased to 2960. It was also held that by forgery he had got 2,000 P.I. Us of the forged claim transferred to Tehsil Kahuta. Proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 he passed the following orders in the case‑ "This case clearly attracts the provision of sections 10/11 of the Displaced Persons Land Settlement Act, 1958. It is, therefore, ordered that land allotted at Khata No.24 of R.L.II of village Burj Dhalla against 500 units and at Khata No.4 of R.L.II of village Kot Ali against 172 units shall stand cancelled forthwith and the D.C./Additional Settlement Commissioner (L) Rawalpindi may be moved for taking up proceedings under sections 10/11 of the Land Settlement Act for the lands allotted in Kahuta Tehsil against 2,000 bogus units which were sent alongwith Robkar bearing No. 163/Q/Sett. dated 5‑10‑1964. So far as land proposed to Ali Hussain against 296 units at Khata No.5 of R.L.II register of village Dharowal, Tehsil Wazirabad is concerned, it is further ordered that this land should not be confirmed to the claimant until police investigation is finalized in respect of the fraudulent allotments obtained in various villages. Tehsildar should take over the possession of the cancelled land in the said two villages of Wazirabad Tehsil and also prepare files to recover undue benefit derived by the unauthorized persons. A criminal case should be got registered with the police against all the four respondents etc. by A. C., Wazirabad." When this order was received in Rawalpindi District a Robkar issued whereby the allotments made to Ali Hussain which had come to the hands of respondent was cancelled without affording a notice or hearing to them. It was then that the respondents filed two constitutional petitions challenging the cancellation of the allotments made to them and the allotments made to petitioner thereafter and both these consti tutional petitions were allowed on the ground that the cancellation without hearing them was void and further that Civil Court had held them to be the rightful allottees‑owners of the land on the basis of compromise entered into between the petitioner and the respondents on 16‑4‑1966 before the Settlement Commissioner. The appeals of the petitioner also failed. Hence these two petitions. These petitions came up for hearing before this Court in January, 1983 when an order was passed directing a notice to the respondents to show why on the findings recorded by the Settlement Authorities the proceedings be not remanded to the appropriate notified officer of Rawalpindi district for concluding the inquiry under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 as ordered by Deputy Commissioner/ Additional Settlement Commissioner exercising powers of Chief Settlement Commissioner in Gujranwala vide his order, dated 26‑11‑1971. Ali Hussain has appeared with an application and wants to be impleaded as a party in the proceedings. In view of the order that we propose to make it would not be necessary to implead him. However, he can in the proceedings that will be taken in Rawalpindi District pursuant to the ramand order proposed to be passed by us get an opportunity of putting across his point of view before the notified officer. Raja Muhammad Anwar has appeared on behalf of the respon dents‑writ petitioners and has been heard. It is clear from the order reproduced above passed by the delegate of Chief Settlement Commissioner that an inquiry having been held in Gujranwala District a similar inquiry with regard to the transfer of units and allotments made against it should take place in Tehsil Kahuta, District Rawalpindi. This inquiry, we find, was never undertaken and instead of inquiring, into the matter and passing an order, the allotment made to Ali Hussain which had come to the hands of respondents was summarily cancelled. This cancellation was rightly held to be without jurisdiction as the persons concerned, that is, Ali Hussain and the transferees were not heard in respect of it. It would be deemed to be a pending proceedings as the order passed by the delegate of the Chief Settlement Commissioner remained incomplete without such inquiry being concluded. The respondents have claimed indefeasible rights in the allotment made to Ali Hussain on the grounds that there was a compromise between them and the petitioner, that they were bona fide purchasers for value, that in the meantime the law has been repealed and they are entitled to purchase the land. We do not propose to examine these questions because that would be somewhat premature when the very allotment and the basis for it in Rawalpindi District is yet to be examined and a determinative order has yet to be passed. In the circumstances, we convert these two petitions into appeal, accept them and set aside the judgment of the High Court and remand the proceedings to the notified officer under subsection (2) of section 2 of Act No. XIV of 1975 for disposing of finally the inquiry as envisaged by the order of the delegate of the Chief Settlement Commis sioner in his order, dated 13‑10‑1971 after hearing all the parties concerned including the respondents before us. No order is made as to costs. S. Q. Case remanded.