1997 SCMR 1635

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Muhammad Bashir Khan Jehangiri, Munawar

Ahmad Mirza and Khalil-ur-Rehman Khan, JJ

MUHAMMAD RAMZAN and others---Appellants

versus

MEMBER (REV.)/CSS and others---Respondents

Civil Appeals Nos., 195 to 206 and 1049 to 1054 of 1995, decided on 25th June, 1997.

(On appeals from the judgment dated 27-6-1994 of the Lahore High Court passed - in
W.Ps. Nos. 142-R/93, 146-R/93, 147-R/93, 148-R/93, 69-R/94, 251-R/93, 124-R/94,
125-R/94, 126-R/94, 237-R/93, 156-R/94, 14-R/94; 166-R/92, 117-R/92, 184-R/92,
81-R/93, 82-R/93 and 83-R/93 order dated 16-1-1994 passed by the Lahore High Court in
above six Writ Petitions).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 13, 11 & 10---Evacuee Property and Displaced Persons Laws (Repeal), Act (XIV
of 1975), S. 2---Scheme for Management and Disposal of Available Urban Properties,
1977, paras, 1 (c) (d), 6 & 11---Notification No.1697 73/1567-R(L) dated 16-5-1973
issued by Chief Settlement Commissioner, Punjab---"Available properties" and "building
sites"---Definition---Transfer of "house", "shop" and "building site" having
construction---Sale by auction---Procedure---Neither nature of land could be converted
nor any proceedings be treated as pending---Allotment to informants concerning land
which had been declared as a "building site" could not be made after issuance of
notification dated 16-5-1973---On the issuance of notification dated 16-5-1973 by Chief
Settlement Commissioner, Punjab every agricultural urban land which had not been
adjusted or allotted or utilized till then against verified claims ceased to be available for
transfer---Mere fact that some matter regarding adjustment of specified land was under
consideration or had not been carried out, would not bring the grievance within the
provision of S.2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act,
1975---Notified Officer, thus, had no jurisdiction to allot, or transfer the land or grant
alternate land against unadjusted verified units---Notified Officer being not competent to
recall or bypass his previous decision, order of allotment of alternate land passed as such
was vitiated on that score---Claimants with unsatisfied entitlement could, however, resort
to any other remedy if available under the law but were not entitled to obtain allotment of
urban land in satisfaction of pending units as alternate land/measure or
otherwise---Conduct of the Notified Officer who had allegedly assumed power which
was not vested in him, did not appear to be above board and was prima facie mala fide
which called for probe and suitable departmental action against persons responsible for
concealment of facts and wanton abuse of power by the Chief Settlement
Commissioner---Order passed by Notified Officer suffered from total lack of jurisdiction
and were coram non judice---High Court ought to have interfered with the illegal order
passed by Chief Settlement Commissioner in purported exercise of his powers as Notified
Officer.

The terms "available properties" and "building sites" were defined in paragraphs 1 (rc)
and 1(d) of the Scheme for the Management and Disposal of Available Urban Properties,
1977. Paragraph 6 provided that an available building site on which a person in
possession had raised a permanent construction and applied for its transfer may be
transferred to him alongwith an area which did not exceed three times the constructed
area on the transfer price and where any person having made a permanent construction on
a building site did not apply for transfer, it should be disposed of through unrestricted
public auction alongwith the construction. The value of such construction shall be
determined by the Deputy Administrator and paid to such a person out of the auction
proceeds by such authority as may be specified. Paragraph 11 of the Scheme also
provided for auction of the building site.

These very provisions thus contemplate holding of an inquiry before auctioning the
building site to determine whether any construction has been made by any person and
whether he has applied for its transfer and also to assess the value of the construction
raised so that if he has not applied for the transfer of the building site, the assessed
compensation is awarded to him. During such an inquiry the person in possession can
submit the form seeking its transfer as no time limit can be fixed for submission of the
form so as to deprive him of the right to seek transfer.

The Notification No. 1697-73/1567-R(L), dated 16-5-1973 issued by Chief Settlement

and Rehabilitation Commissioner, Punjab has unambiguously declared "available
evacuee urban land" including the one not yet confirmed to any person against units, as
"building sites" for disposal under section 13 of the Displaced Persons (Land Settlement)
Act, 1958. Bare reading of this notification clearly displays that same was executory in
nature and became operative immediately on its issuance. This had the effect of
converting anutilized agricultural urban land in entire Punjab to be "building site".
Allotment to informants concerning land which had been declared as a 'building site"
could not be made after issuance of notification dated 16-5-1973.

Any allotment order for adjustment against produce index units procured by private
persons was completely devoid of lawful authority.

Neither nature of land could be converted, nor proceedings treated as pending even under
direction of Courts if same tended to contravene existing law.

In the present case specified land had been allotted to some of the appellants prior to the
date of notification dated 16-5-1973 and they were unsuccessful in getting its possession
and effecting mutation concerning the same in their favour. In majority of cases,
applications seeking grant of "alternate land" were submitted to Chief Settlement
Commissioner after repeal of evacuee laws, rather towards beginning of year 1992. In
certain matters directions were also obtained from High Court for ensuring expeditious
disposal of the grievances agitated by the claimants-respondents whose verified claims
despite strenuous follow-up, had not been satisfied. In one of the cases when writ petition
was filed before High Court the Settlement Department made categoric concession for
providing alternate land to respondent and said petition was accordingly disposed of on
14th July, 1992. Therefore, it had to be seen that when claims were not satisfied or
direction issued by superior Court regarding subject-matter which inherently suffered
from want of jurisdiction, were not complied with on concession for allotting alternate
urban land to claimants against unsatisfied produce index units even if any concession
was made by the Department, otherwise having no authority specially after repealing Act,
could be legitimately sustained.

Held, Chief Settlement Commissioner was competent to issue notification for converting
agricultural land into "building sites" and consequently notification dated 16-5-1973 was
valid. Therefore, on the issuance of said notification every agricultural urban land which
had not been adjusted, allotted or utilized till then against verified claims ceased to be
available for transfer. Additionally, Evacuee Property and Displaced Persons Laws
(Repeal) Act, 1975, became effective from the first day of July, 1974. Hence the status of
evacuee property as existing on such date could not be changed or converted subsequent
to promulgation of said enactment. The authority for disposal of the property or residual
work was merely to be restricted to finalize rehabilitation process. Therefore, when
repealing Act was promulgated there did not exist-any agricultural urban land, which
could be adjusted against unsatisfied verified claims of produce index units. The
claimants with unsatisfied entitlement could resort to any other remedy if available under
the law, but were not entitled to obtain allotment of urban land in satisfaction of pending
units as alternate land/measure or otherwise.

Besides, it was mandatory condition for grant or allotment of land that proceedings must
be pending, which could be dealt with and finalized by the "Notified Officer" within the
four corners of law and jurisdiction vested in him. Undoubtedly in the present case,
claims of respondents had not been fully adjusted or lands allocated to them for being
transferred in their favour was not available for one or the other reason. Therefore, on the
promulgation of the "Notification"; dated 16th May, 1973 no agricultural urban land
existed or was available for disposal. Moreover the date when the repealing Act became
operative there was no land available for adjustment against produce index units. Mere
fact that in some matters regarding adjustment of specified land were under consideration
or had not been carried out would not bring the grievance within the purview of section
2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or
transfer the land or grant alternate lands against unadjusted verified units.

Repealing Act XIV of 1975 does not contain any provisions for exercising powers of
review. Therefore, Chief Settlement Commissioner, the Notified Officer was not
competent to recall or bypass his previous decision. Therefore, the order for allotment of
alternate land was vitiated on this score as well.
After issuance of Notification, dated 16-5-1973 and promulgation of Repeal Act, 1973,
Chief Settlement Commissioner, Punjab or Notified Officer did not possess any power to
make allotment of any agricultural land in the urban areas of Punjab. No one in the
Settlement Department was, therefore, competent to transfer or consent for giving any
land muchless an "alternate land" for adjustment of produce index units, specially when
they did not even assert possession over any portion of such land. Additionally, by virtue
of notification, dated 16th May, 1973 entire agricultural urban land was declared as
"building sites" and subsequently on account of repealing enactment all unutilized
properties by operation of law were transferred to the Government of Punjab in the
consolidated pool, which could only be disposed of in accordance with procedure
prescribed under regular schemes. Besides, none of the "building sites" could be
legitimately transferred even under the scheme framed by the Punjab Government, except
such portion upon which construction had been raised by the claimants and other
adjoining land not exceeding three times the constructed area. Even under the scheme
presently in force limit of granting agricultural urban land was considerably restricted.
The "Notified Officer" flagrantly 1 disregarding the law granted alternate land, to the
claimant against verified produce index units which otherwise did not belong to
Settlement Department. It is noticeable that "Notified Officer" had illegally assumed
powers which were not vested in him. His conduct did not appear to be above board and
was prima facie mala fide. This certainly called for probe and suitable departmental
action against persons responsible for concealment of facts and wanton abuse of power
by the Chief Settlement Commissioner.

Disposal of petition by High Court based on illegal and tainted concession of Settlement
Department was devoid of lawful authority and subsequent direction for its
implementation was equally coram non judice and as such it had no binding effect.

The orders passed by the "Notified Officer" suffered from total lack of jurisdiction and
were coram non judice. Private appellants who had been objecting to the adjustment of
respondents' claim had ostensible cause, reasonable justification and fear of being
prejudiced, therefore, in all fairness were aggrieved party.

Bashir Ahmad and others v. Punjab University Academic Staff Association and others
1991 SCMR 377; Syed Saifullah v. Board of Revenue, Balochistan through Member
R.J.T. and 4 others 1991 SCMR 1255; Member, Board of Revenue, Punjab Settlement
and Rehabilitation Wing/Chief Settlement Commissioner, Punjab, Lahore v. Muhammad
Mustafa and 74 others 1993 SCMR 732; Ch. Altaf Hussain and others v. The Chief
Settlement Commissioner, Pakistan, Lahore and others PLD 1965 SC 68; Muhammad
Ashraf Khan and others v. Administrator (RP), Settlement Commissioner, Lahore and
ethers 1987 SCMR 1358; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and
others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Muhammad
Swaleh v. PLD 1964 SC 97; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.)
104; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Major Syed Walayat Shah v.
Muzaffar Khan and 2 others PLD 1971 SC 184; Chittaranjan Cotton Mills Ltd. v. Staff
Union PLD 1971 SC 197; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976
1
Blatantly, deliberately, obviously.
SC 208; Sultan Ali v. Khushi Muhammad PLD 1983 SC 243; Azad Jammu and Kashmir
Government through Chief Secretary and 4 others v. Sardar Muhammad Ibrahim Khan
1983 PCr.L.J. 682; Shahul Hamid v. Tahir Ali 1980 SCMR 469; Province of the Punjab v.
Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Fazal Din v. Lahore
Improvement Trust, Lahore and another PLD 1969 SC 223 ref.

The High Court, therefore, ought to have interfered with the illegal orders passed by
Chief Settlement Commissioner, purporting to exercise powers of Notified Officer.

(b) Void order--

---- Impact.

Muhammad Swaleh's case v. PLD 1964 SC 97; Yousaf Ali v. Muhammad Aslam Zia PLD
1958 SC (Pak.) 104; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Major Syed
Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184; Chittaranjan Cotton
Mills Ltd. v. Staff Union PLD 1971 SC 197; Khuda Bakhsh v. Khushi Muhammad and 3
others PLD 1976 SC 208; Sultan Ali v. Khushi Muhammad PLD 1983 SC 243; Azad
Jammu and Kashmir Government through Chief Secretary and 4 others v. Sardar
Muhammad Ibrahim Khan 1983 PCr.L.J. 682; Shahul Hamid v. Tahir Ali 1980 SCMR
469; 1993 SCMR 732 and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari
PLD. 1997 SC 351 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disposal of

Constitutional petition by High Court based on illegal and tainted concession of
Authorities was devoid of lawful authority and subsequent directions for its
implementation was equally coram non judice and as such had no binding effect.

A.R. Shaukat, Senior Advocate Supreme Court for Appellants (in C.A. No. 195 of 1995).

Mirza Naseer Ahmad, Advocate Supreme Court with Syed Afzal Haider, Advocate
Supreme Court for Respondents Nos. 3 to 10 (in C.A. No. 195 of 1995).

Ch. Khalil-ur-Rehman, Senior Advocate Supreme Court for Appellants (in C.A. No. 196
of 1995).

Nemo for Respondents (in C.A. No. 196 of 1995).

A.R. Shaukat, Senior Advocate Supreme Court for Appellants (in C.A. No. 197 of 1995).

Nemo for Respondents (in C.A. No. 197 of 1995).

A.R. Shaukat, Senior Advocate Supreme Court for Appellants (in C.A. No. 198 of 1995).
Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents (in C.A. No. 198 of
1995).

Muhammad Zainul Abedin, Advocate Supreme Court for Appellants (in C.A. No. 199 of
1995).

S.M. Masud, Advocate Supreme Court for Respondents (in C.A. No. 199 of 1995).

Raja Irshad A. Khan, Advocate Supreme Court for Appellants (in C.A. No. 200 of 1995).

Ch. Qadir Bux, Senior Advocate Supreme Court for Respondents (in C.A. No. 200 of
1995).

Hamid Ali Mirza, Advocate Supreme Court for Appellants (in C.A. No. 201 of 1995).

Nemo.for Respondents (in C. A. No. 201 of 1995).

Hamid Ali Mirza, Advocate Supreme Court for Appellants (in C.A. No. 202 of 1995).

Mirza Naseer Ahmad, Advocate Supreme Court with Syed Afzal Haider, Advocate
Supreme Court for Respondents (in C.A. No. 202 of.1995).

Hamid Ali Mirza, Advocate Supreme Court for Appellants (in C.A. No. 203 of 1995).

Mirza Naseer Ahmad, Advocate Supreme Court with Syed Afzal Haider, Advocate
Supreme Court for Respondents (in C.A. No. 203 of 1995).

Hamid Ali Mirza, Advocate Supreme Court for Appellants (in C.A. No. 204 of 1995).

Malik Saeed Hassan, Senior Advocate Supreme Court for Respondents (in C.A. No. 204
of 1995).

Raja Dilshad Ahmad Khan, Advocate Supreme Court for Appellants (in C. A. No. 205 of
1995).

Nemo for Respondents (in C.A. No. 205 of 1,995).

Ehsanullah Khan Lillah, Advocate Supreme Court with Ch. Mehdi Khan Mehtab,
Advocate-on-Record for Appellants (in C.A. No. 206 of 1995).

Nemo, for Respondents (in C.A. No. 206 of 1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants (in C.A. No. 1049 of 1995).

Nemo for Respondents (in C.A. No. 1049 of 1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants . (in C. A. No. 1050 of 1995).

Muhammad Zainul Abedin, Advocate Supreme Court for Respondents (in C. A. No. 1050
of 1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants (in C.A. No. t051 of 1995).

Awan Muhammad Hanif, Advocate Supreme Court for Respondents (in C.A. No. 1051 of
1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants (in C.A. No. 1052 of 1995).

Sh. Anwarul Haq, Advocate Supreme Court for Respondent No.3 (in C.A. No. 1052 of
1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants (in C.A. No. 1053 of 1995).

Sh. Anwarul Haq, Advocate Supreme Court for Respondent No.3 (in C.A. No. 1053 of
1995).

Sh. Abdul Aziz, Advocate Supreme Court for Appellants (in C.A. No. 1054 of 1995).

Sh. Anwarul Haq. Advocate ‘supreme Court for Respondent No.3 (in C.A No.1054 of
1995).

Dates of hearing: 5th, 6th and 7th May, 1997.

JUDGMENT

MUNAWAR AHMAD MIRZA, J,---By this consolidated judgment, we propose to

dispose of eighteen Appeals bearing Nos.195 of 1995 to 206 of 1995, and 1049 of 1995
to 1054 of 1995, as questions of law involved in these matters are mostly identical,
though each case has its own chequered history.

2. Government of the Punjab has filed five Appeals bearing No.201, 202, 203, 204 and
206 of 1995. The remaining appeals have been filed by the persons who on the basis of
their continuous and uninterrupted occupation are claiming right to receive the land in
question under different Settlement schemes issued by the Punjab Government.

3. Facts necessary for understanding the controversy in each appeal are given
hereunder:--

(a) Civil Appeals Nos. 195 of 1995 and 202 of 1995:

The appeal filed by the Province of Punjab pertains to land measuring 623 Kanals, 1-2
Marlas and a part of this land is being claimed in Appeal No. 195 of 1995 filed by private
persons. The land in question was allegedly got deceitfully allotted by late Siraj Din, the
predecessor-in-interest of the respondents.

Muhammad Ramzan and others, appellants in Civil Appeal No. 195 of 1995 claim that
they are in possession of the land detailed in paragraph II (1) of the Appeal, situated in
village Harbansupra Tehsil and District Lahore, since the days of their forefathers. They
filed a suit for permanent injunction restraining the Settlement Authorities from disposing
of said land through open auction, or to deal with it in any other manner and refrain from
interfering with their lawful possession. They also submitted an application for grant of
temporary injunction in the same terms. This application was rejected by the learned
Civil Judge vide order dated 25-5-1985 and the same was maintained by the learned
Additional District Judge on appeal, vide order dated 14-3-1988. The Revision Petition of
these appellants was accepted vide judgment dated 12-12-1988 and the injunction as
prayed for was granted.

Siraj Din, predecessor-in-interest of the present respondents in both the appeals submitted
a claim which was verified for 7750 produce index units (urban) on 6-5-1968 for District
Sukkur, Sindh. This claim was transferred to Lahore (Punjab) on 17-7-1969 and the
Additional Settlement Commissioner refused to make any allotment against said claim
but the Settlement Commissioner on appeal allotted land measuring 623 Kanals, 12
Marlas at RL-II No.4 of village Shivpura Kalan, Tehsil Cantt., District Lahore on 6-4-
1973.

In the Memo. of Appeal No. 195 of 1995 following assertions have been categorically
made:--

"(vii) The following allotments were undeniably obtained against the alleged entitlement
of Siraj Din son of Kaley Khan:--

(a) An area measuring 919 Kanals situated in village Jandiala Sheikhan Tehsil and
District Sheikhuprura was allotted at Khata No.22 of RL-11 in favour of Siraj Din. This
confirmed land was sold in favour of Nasrullah Khan etc. vide Mutation No.83, dated
13-6-1970.

(b) An area measuring 341 Kanals 18 Marlas was confirmed in favour of Siraj Din in
Mauza Shahdara Tehsil and District Sheikhupuia. The land was sold in favour of
Muhammad Ismail etc. through Mutation No.5460 dated 26-9-1973.

(c) An area measuring 9 Kanals, as held by Member Board of Revenue, was also allotted
in favour of Siraj Din in Gujrat.

It thus is significant that the allotment of land was already obtained much in excess of the
alleged entitlement of Siraj Din which was sold for consideration as back as on
13-6-1970 and 26-9-1973. There was, as such, no entitlement pending satisfaction at the
credit of Siraj Din."
Surprisingly there is an evasive reply as above averments have not been specifically
controverted in the rejoinder.

Siraj Din (predecessor-in-interest of respondents) on 19th May, 1992 submitted an

application to Ch. Talib Hussin, Member, Board of Revenue, Settlement Wing/Chief
Settlement Commissioner asserting that on submission of application for implementing
allotment; it transpired that on account of above referred enquiry relating to certain bogus
transfers enquiry was pending and some of the parties had obtained stay orders from the
Court. It was further revealed that said land had already been allotted to Sharaf Din and
Daulat Khan who sold the same to one Riaz Ahmed and Bilqees Barkat. Whereas on a
Mukhbari application the allotment made in favour of Sharaf Din and Daulat Khan was
cancelled on 4-6-1978 by the then Chief Settlement Commissioner. The Writ Petition
(Writ Petition No.789/R of 1978) filed against the same was remanded for fresh decision
on 10-11-1985.

It is pertinent to mention here that in remand proceedings, Additional Commissioner

Revenue/Settlement Commissioner (Lands), as 'Notified Officer' passed an order
rejecting the request of Siraj Din (respondents' predecessor) as well as Pir Muhammad
son of Hidayat; Wali Muhammd and Sher Muhammad sons of Allah Diya, claimants in
other connected appeals, to make alternate allotments. The order, dated 3-5-1986, inter
alia, reads as under: --

"Agricultural land situated in the revenue estate of Mauza Shivopura Kalan, District
Lahore was ordered to be allotted to the above-said petitioners vide orders dated
23-1-1973 and 6-4-1973 but the same were not implemented due to the litigation pending
in the Civil Court. The decree holder Ch. Riaz Ahmad succeeded to get the land mutated
in his favour in the Revenue Record.

A Mukhbari application under section 10/11 of Settlement Act was filed against the
allotment to Sharaf Din etc. by Mr. Qazi Mushtaq Ahmad etc. The said application was
decided against the allottees and their allotment was ordered to be cancelled by Mr. M.A.
Razzaq, Settlement Commissioner on 8-6-1978. Then an application was submitted by
the petitioners in this Court that their allotment orders may be implemented. But the
Honourable High Court issued status quo order on 9-7-1978 in Writ Petition No.789-R of
1978 filed by Bilqees Barkat etc. Ultimately this Writ Petition has succeeded and order of
the Settlement Commissioner is set aside by the Honourable High Court vide orders
dated 10-11-1985.

In the above circumstances when the question of implementation of orders dated

23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for
alternative allotment. After repeal of Evacuee Laws this Court is not the proper forum
and their request is not maintainable. With these observations this petitions is rejected."

The respondent further asserted that said land had been disposed of through plots, and on
certain portions the purchasers have already raised construction. These respondents,
therefore, prayed that alternate land be allotted to them in village Dhana Singhwala or
Harbanspura, Lahore Cantt. because large area of Government land is still available there.
Chief Settlement Commissioner Punjab recorded statement of Siraj Din and vide order
dated 8-6-1992 summoned the record on 25-6-1992 for further proceedings. A Writ
Petition (No. 132/R of 1992) in the Lahore High Court Lahore, against aforesaid interim
order was filed seeking direction for allotment of alternate land which was, however,
disposed of on 28-6-1992 with the following observation:--

"On Court's call Rana Muhammad Arshad Khan learned Additional Advocate-General
has appeared on behalf of the learned Member Board of Revenue, the only respondent in
the case. Mr. Elahi Bakhsh Vijdani learned counsel for the petitioner is also present. They
have been heard. The admitted position is that the matter is still pending adjudication
before the Board of Revenue. The concerned Officer had been summoned with record by
the learned Member Board of Revenue. Grievance of the learned counsel is that it is duty
of the Settlement Department to provide land against the verified claim of the petitioner.
Be that as it may, learned Member Board of Revenue, Punjab, shall decide the matter
pending before him as early as possible on merits according to law. With these
observations this petition stands disposed of."

The Chief Settlement Commissioner then vide order dated 29-7-1992 observed that it was
not feasible to annul all the sales and demolish the constructions already raised and,
therefore, urban land measuring 614 Kanals, 12 Marlas in village Harbanspura, Tehsil
Cantt. District Lahore, was allotted to him against 6140 produce index units as alternate
measure. The appellants in Civil Appeal No. 195 of 1995 on gaining knowledge of said
allotment Order, filed a Constitution Petition (Writ Petition No. 142-R of 1993) in Lahore
High Court, Government of Punjab also felt aggrieved and challenged said order of
allotment through separate Writ Petition No. 125-R of 1994 which came up for
consideration alongwith other petitions relating to adjoining land having similarity of
circumstances and were decided through common judgment dated 27-6-1994, which has
now been assailed in these appeals.

(b) Civil Appeals Nos. 196 203 and 205 of 1995:

The controversy in these three appeals relates to land measuring 585 Kanals and 15
Marlas situated in village Harbansupra, Lahore Cantt., more particularly described in the
order dated 21-9-1992, impugned in these matters.

Respondent No. l Pir Muhammad son of Hidyat in lieu of the land left over by him in
India, got his claim verified for 7076 produce index units from Central Record Office,
Lahore. Subsequently on reverification/revalidation claim was enhanced to 7750 produce
index units for Sukkur District (Sindh). Later Settlement Commissioner, Lahore, by
means of order dated 23-1-1973 passed in Appeal No.97 of 1973 transferred said claim
for its adjustment against urban land in Lahore District. Admittedly, land equivalent to
1800 produce index units was allotted to respondent in Mauza Shahdara, District
Sheikhupra, which was duly transferred in his favour. Remaining produce index units
were adjusted by allotment of land measuring 585 Kanals and 15 Marlas (RL-II-5) in
village Shivpura, Lahore Cantonment Record reveals that respondent No. l (Pir
Muhammad) had filed an application before competent authority for sanctioning mutation
of abovereferred land in his favour and granting him proprietary right over it. During this
process it came to his knowledge that said land was already allotted to Sharaf Din and
Daulat Khan who sold it to Riaz Ahmad who in turn transferred the same to Bilqees
Barkat. A Mukhbari application was moved against said Sharaf Din and Daulat Khan,
whereupon proper enquiry was held and their original claims stood rejected thus
allotment of land made in their favour was cancelled by Chief Settlement Commissioner
on 4-6-1978. Mst. Bilqees Barkat was directly affected as she was statedly a bona fide
purchaser of the said land, so she challenged above order of cancellation of allotment
before High Court through Writ Petition No.789/R of 1978 which was allowed on
10-11-1985 and case was remanded for fresh decision. During remand proceedings,
respondent Pir Muhammad and others (respondents in the connected appeals) also
requested for grant of alternate land because the land falling within Shivpura Kalan
vested in Park View Society which was disposed of through plots to various persons and
purchasers had already raised construction over a large portion of said land. Request for
alternate land made by respondents (i) Pir Muhammad, (ii) Late Siraj Din (respondents in
Appeals Nos. 195 of 1995 and, 202 of 1995) and (iii) Wali Muhammad and Sher
Muhammad sons of Allah Diya (respondents in appeals Nos. 199 and 201 of 1995) was
rejected vide order dated 3-5-1986. Operative portion is reproduced below:-

"In the above circumstances when the question of implementation of orders dated
23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for
alternative allotment. After repeal of Evacuee Laws this Court is not the proper forum
and their request is not maintainable. With these observations this petition is rejected."

In such background of circumstances respondent No. l having failed to get transfer of

land allotted to him on 23-1-1973 submitted an application before Chief Settlement
Commissioner, Lahore, on 19th May, 1992, for granting alternate land in Mauza
"Dhanasinghwala" or Mauza Harbansupura", Lahore Cantt. It was asserted in the
application that there was double allotment of land measuring 585 Kanls and 15 Marlas
granted to respondent No. l at Shivpura Kalan, Lahore Camt., in pursuance of Order,
dated 23rd January, 1973. Besides, Mst. Bilqees Barkat who obtained said area of land
from claimants Daud and others had instituted Writ Petition No. 789-R of 1978 whereby
through interim order, dated 4th March 1980, Lahore High Court restrained the
Settlement Department from implementing the allotment order existing in favour of
respondent. Eventually this petition was decided vide judgment, dated 10th November,
1985 and matter remanded to settlement authorities for decision afresh. It was asserted
that respondent Pir Muhammad had been effectively pursuing his claim for
implementation of allotment order dated 23-1-1973, but on account of influence exercise
by the appellants and Mst. Bilqees Barkat he could not succeed in getting mutation or
securing possession, therefore, he pressed for allotment of an alternate land. It is
important to mention, that respondent did not disclose in application dated 19-5-1992 that
his request for alternate allotment was also rejected on 3-5-1986, relevant portion
whereof has been reproduced above.
From the material brought on record it appears that interim order for summoning relevant
file was passed by the Notified Officer, when respondent filed Writ Petition No. 161-R of
1992 and directions were issued to dispose of the matter regarding implementation of
allotment at the earliest. Thereafter, without, any intimation to private appellants or
public notice, Chief Settlement Commissioner purporting to exercise powers of 'Notified
Officer' decided the matter on 21-9-1992, whereby alternate land measuring 585 Kanals
and 15 Marlas in village Harbansupura, Lahore Cantt. was allotted to respondent. The
occupants, who are appellants in Civil Appeals Nos.203 and 205 of 1995, throughout this
period have been continuously pursuing their claim and superior right of obtaining land
in Harbanspura, Lahore Cantt., on the grounds of its continuous uninterrupted occupation
from the time of their fore-fathers. Additional Deputy Commissioner-cum-Collector,
Lahore Cantt., while implementing order dated 21-9-1992 requested the Member, Board
of Revenue Punjab that respondents Pir Muhammad, late Siraj Din son of Kaley Khan
and Wali Muhammad and Sher Muhammad sons of Allah Diya (respondents in other
connected matters) have fraudulently procured the land by concealment of facts and
prima facie was not evacuee property. The relevant observations are mentioned below for
ready reference:--

"It is further pointed out that all these allotments appear to have been obtained by the
fraudulent persons in the absence of original claimants. How the double allotment has
also been obtained in village Harbanspura without the knowledge of the original claimant
i.e. Allah Diya and two other claimants recorded in para. 1.

The above facts indicate that double allotments have been obtained by the fraudulent
persons without the knowledge of original claimants by concealing the actual facts of
allotment already made, since they have not appeared in person before the learned Chief
Settlement Commissioner nor any effort seems to have been made to procure their
personal attendance. The fraudulent persons are liable to be prosecuted legally. The
double allotments obtained by them in village Harbanspura are, as such, liable to, be
cancelled. It is also pointed out that the Hon'ble Supreme Court has already held in their
judgment dated 9-2-1991 declaring that the land falling in village Harbanspura would go
to the Provincial Government. (Annexure 'C').

In view of the above decision of the Hon'ble Supreme Court the land falling in village
Harbanspura cannot be treated as evacuee property and available for allotment. An
enquiry was also entrusted by the Federal Government, Ministry of Religious Affairs, in
the year 1980-81 to the then Assistant Commissioner (Saddar) Lahore in respect of the
land of village Harbanspura who submitted a comprehensive report with his finding that
these lands were not evacuee and as such not available for allotment.

Member, Board of Revenue-cum-Notified Officer on 9-1-1993 suspended the

aforementioned order pertaining to implementation of allotment in this case and matters
concerning Pir Muhammad, Wali Muhammad and Sher Muhammad (respondents in
connected appeals). The occupants Haji Imam Din and others, however, challenged the
order dated 21-9-1992 of 'Notified Officer' through Writ Petition No. 196-R of 1994; the
same was also challenged before High Court by appellants Muhammad Ilyas and others
through Writ Petition No. 156-R of 1994, Whereas Government of Punjab also feeling
aggrieved from said decision preferred Writ Petition No. 126-R of 1994. All the
abovereferred petitions alongwith other connected matters were rejected by Lahore High
Court by common judgment dated 27-6-1994. It is important to mention here that
appellants Muhammad Ilyas and others (C.A. No. 205 of 1995) while narrating facts
expressly made following assertions:--

"That the respondent No. l had only according to his own versions an entitlement of 5858
units after 1/4th deduction of 7750 P.I. Units while only in Shahdara urban land vide
allotment dated 2-2-1972 and 8-3-1971 at Khatas Nos.463 and 476 he obtained allotment
of 5583 units already and further got allotment in Karachi, D.G. Khan and Rahimyar
Khan etc., and had no units to obtain present allotment in Harbanspura as he had already
exhausted his claim. The order of transfer of units from Sukkur to Lahore is fraudulent
bogus and the order dated 17-9-1969 in this respect is a fraud committed on the record.
There is no such order dated 23-1-1973, as the claim of the respondent No. l was declared
at that time as bogus by then Claim and Settlement Commissioner (Lands) with power of
Chief Settlement Commissioner on 6-7-1972 and District Authorities were directed not to
make any allotment against the claim including the claim of the respondent No. l and
further directed to withhold the mutation regarding the sale etc., and hence as a matter of
fact the order of allotment dated 23-1-.1973 could not be passed as shown by the
respondent No. l."

Respondents in rejoinder have given evasive reply without specifically refuting these
averments.

Anyhow through these three Appeals Nos. 196, 203 and 205 of 1995, orders dated
27-6-1994 passed by the High Court and order dated 21-9-1992 of 'Notified Officer' have
been challenged.

(c) Civil Appeals Nos. 199 and 201 of 1995 .

The dispute in these two appeals relates to land measuring 443 Kanals and 5 Marlas
situated in Harbanspura, Lahore.

Allah Diya father of the respondents Wali Muhammad and Sher Muhammad had put up
claim for the land abandoned by him in India, which was finally verified to the extent of
5897 produce index units (urban). This claim was initially pending for allotment of land
in Sukkur (Sindh). Later by virtue of order dated 23-1-1973 passed by the Settlement
Commissioner (Land), Lahore, in Appeal No. 100 of 1993, said claim was transferred for
adjustment at Lahore and land measuring 443 Kanals, 1 Marla in village Shivpura Kalan,
Tehsil Cantt. Lahore was allotted to him. Multifarious nature of litigation started over
land allotted to respondents. It transpired that said land had been already allotted to Riaz
Ahmed, Abdul Hamid, Nadir Khan and several other persons. The transferees also filed
writ petition before Lahore High Court, whereby Settlement Department was restrained
from disposing, alienating said land or parting with its possession in any manner. It will
be seen that Writ Petition No. 789-R of 1978 was decided on 10-11-1985, remanding the
case to Settlement Authorities for fresh decision. It is admitted position that during this
period several developments had taken place, whereby land had been acquired by the
Defence Housing Society, Lahore Cantt. and allotted to numerous persons. The
respondent Allah Diya, father of private respondents, therefore, was unable to obtain
possession of land allotted to them. During the remand proceedings keeping in view
aforementioned circumstances the respondents Wali Muhammad and Sher Muhammad
requested the Notified Officer to grant the alternative land but this prayer was rejected
vide order dated 3-11-1986 in the following terms:--

"…..In the above circumstances when the question of implementation of orders dated
23-1-1973 and 6-4-1973 is not possible for me, the petitioner at this stage requested for
alternative allotment. After repeal of Evacuee Laws this Court is not the proper forum
and their request is not maintainable. With these observations this petition is rejected."

The order in detail has been reproduced hereinabove. The respondents were not
successful in obtaining possession of land allotted to them vide order dated 23-1-1973.
Therefore, they eventually on 18-5-1992 submitted an application before Member, Board
of Revenue/Chief Settlement Commissioner, Punjab, giving detailed background and
prayed for alternative land to the extent of their verified claim in village "Dhana
Singhwala" or 'Mauza Harbanspura", Lahore. Chief Settlement Commissioner summoned
the record and obtained the report of Patwari after recording statement of the respondents.
As in other cases, interim order was challenged before the High Court, whereupon
direction was made for expeditious disposal of the application filed by respondents. The
'Notified Officer' without any intimation to occupants or public notice granted and
confirmed allotment of land measuring 443 Kanals, 5 Marlas comprising of 67 Qitas in
village Habranspura, Tehsil Cantt. District Lahore, in lieu of verified claim of
respondents vide order dated 29-8-1992 with directions that the mutation of
Tebdeeli-e-Haqooq Malkiat be effected in favour of present respondents. The Additional
Deputy Commissioner/Collector (Cantonment) addressed a letter to Member, Board of
Revenue, explaining impossibilities of carrying out mutation as directed by Notified
Officer, whereupon further action was suspended.

The Appellants in Civil Appeal No. 195 of 1995 claim to be occupants of said land from
the time of their fore-fathers, felt aggrieved of the abovementioned order challenged the
same before the High Court through Writ Petition No.69-R of 1994. The Government of
Punjab also separately instituted Writ Petition No. 185-R of 1994 challenging above
decision of Notified Officer. These Writ Petitions alongwith similar matters were
disposed of by the Lahore High Court through common judgment dated 27-6-1994. The
appellants Ch. Hamid etc. and Provincial Government of Punjab being dissatisfied from
order of Notified. Officer, dated 29th August, 1992 relating to allotment of land to
respondents and of the judgment of High Court dated 27-6-1994, have filed these two
appeals.

(d) Civil Appeals Nos. 197 and 206 of 1995:

The dispute culminating2 in filing of Civil Appeals Nos. 197 and 206 of 1995, relates to
230 Kanals of land in village Harbanspura, Tehsil Cantt. District Lahore, which has been
granted to respondent No. I (Major Muhammad Nawaz Khan) against verified claim for
2547 produce index units vide order dated 24-12-1992 passed by Chief Settlement
Commissioner purporting to exercise powers of the 'Notified Officer'. The appellants
claim that area of land granted to respondent No. l in Harbanspura Lahore Cantt. has been
under their continuous uninterrupted occupation for last more than 100 years. They have
been asserting their right over said land with a view to protect their possession. Even
Civil Suit was filed by the appellants towards May, 1985 seeking declaration and
permanent injunction. The application for interim stay was initially rejected by the Civil
Judge and Additional District Judge, Lahore. However, Civil Revision No.726-D of 1988
filed by the appellant was accepted by Lahore High Court vide order, dated 12th
November, 1988 granting interim stay in their favour. Relevant portion of said order is
reproduced below:--

"After hearing, learned counsel for both the parties, 1 am convinced that the petitioners
have raised substantial questions to be tried by the learned trial Court in the suit and they
have established existence of prima facie case in their favour. The order of learned
Custodian dated 24-10-1962 and the order dated 13-9-1966 passed by respondent No.3 is
sufficient to hold that the petitioners at least have an arguable case. They are admittedly
in possession of the land, therefore balance of convenience is also in their favour. If their
possession is disturbed during the pendency of the suit it would certainly be the
petitioners who could suffer irreparable loss in case temporary injunction is not granted.'
It was further observed that 'the revision petition' is therefore, accepted, the impugned
orders are hereby set aside. The respondents are restrained from disposing of the suit land
through open auction to deal with the same in any manner and from interfering and
disturbing the possession of the petitioners till the disposal of the suit by the trial Court."

However, in the meantime, respondent No. l on 10-3-1971 obtained allotment of land

measuring 254 Kanals and 8 Marlas at R.L.-II, Khata, No.582 in village Amar Sidhu,
Tehsil Cantt. District Lahore by the order of Additional Settlement Commissioner. But
this order could not be implemented because out of said land an area to the extent of 230
Kanals had already been allotted to Mst. Akhtar-un-Nisa, Nazir Ahmed and Rahim
Bakhsh and revenue entries were also duly recorded in their favour during year 1973.
However, land measuring 24 Kanals 10 Marlas in Mauza Amar Sidhu, Lahore was duly
recorded in favour of respondent No. l who, however, kept pursuing his claim before the
Settlement Authorities and applied for allotment of alternative land but without any
success. The respondent filed a Writ Petition No.250-R of 1992 before Lahore High
Court, whereby the directions were made to expeditiously examine his grievance.
Eventually Chief Settlement Commissioner purporting to exercise powers as 'Notified
Officer' transferred 230 Kanals of land at village Harbanspura in favour of the respondent
No. 1 vide order dated 24-12-1992. The appellants on getting knowledge of the said order
which was passed behind their back and without any intimation to them, challenged it
through Writ Petition No. 148-R of 1993. The Government of Punjab was also aggrieved
of the aforementioned order of allotment of 230 Kanals to respondent in village
2
End, concluded, finalize, terminate, close.
Harbanspura, Lahore Cantt. Therefore, Constitution Petition No. 14-R of 1994 was
instituted before Lahore High Court attacking validity of said order. Both these petitions
alongwith other connected matters were rejected by common judgment, dated 27th June,
1994. Through present appeals aforementioned judgment, dated 27th June, 1994 of
Lahore High Court and order, dated 18th October, 1992 of Chief Settlement
Commissioner Punjab/Notified Officer has been assailed.

(c) Civil Appeal No. 200 of 1995.

Appellants Muhammad Ramzan and others (Civil Appeal No.200 of 1995) claimed
continuous and uninterrupted cultivatory possession of land located within village
Harbanspura, Lahore Cantt, allotted to respondent No. l by Chief Settlement
Commissioner vide order, dated 18th October, 1992.

According to the appellants they throughout pursued their lawful right and legitimate
interest over above area of land. It was asserted that appellant since the time of their
fore-fathers had cultivatory possession over said land; copies of Jambandi and Khasra
Girdavri have been produced to supplement their stand. A suit seeking declaration and
injunction was filed against Settlement Authorities wherein eventually Lahore High Court
on 12th November, 1988 issued temporary injunction directing the Settlement
Department to restrain from disposing said land through open auction or in other manner
or interfering with the possession of occupants.

It is the case of appellants that respondent No.1 Mirza Shamim Ahmed Baig on the basis
of entitlement certificate showing verified claim for 782 produce index units manipulated
transfer of land in village Harbanspura.

Record indicates that Mirza Shamim Ahmed Baig was originally allotted agricultural land
in village Keerkot, District Lahore. This area was also statedly allotted to one Nawab
Altaf Ali Khan. However, dispute was resolved and said land was eventually confirmed
in the name of Qamar Aftab Ali Khan on 8-8-1972. The order granting agricultural land
to the petitioner in village Keerkot was, however, recalled. Respondent Mirza Shamim
Ahmed Baig continued pursuing the matter before different forum and eventually filed
writ Petition No.2523 of 1991 in-pleading Defence Cooperative Housing Society, Lahore
Cantt, but the same was not pressed on the basis of assurance given by the Settlement
Department to allot alternate land. It appears that some delay was caused in granting land
to respondent as undertaken in the above matter, therefore, again writ petition was
instituted by said Mirza Shamim Ahmed Baig wherein directions were issued to the
concerned department for complying with its commitment. Ultimately Chief Settlement
Commissioner (Ch. Talib Hussain), Punjab, purporting to exercise powers as Notified
Officer vide order dated 18-10-1992 allotted an area of 78 Kanals and 2 Marlas in village
Harbanspura, Cantt. Lahore to respondent Mirza Shamim Ahmed Baig by way of
alternate land towards satisfaction of his verified claim. Appellants challenged above
decision of the Chief Settlement Commissioner before Lahore High Court through Writ
Petition No. 147-R of 1993, which came up alongwith several other petitions of similar
nature concerning land in Harbanspura. All these matters were decided by Lahore High
Court through common judgment dated 27-6-1994. The Chief Settlement Commissioner
has based allotment of alternative land on the order of the Lahore High Court, dated 14th
July, 1992 whereby factually Petition No.2523 of 1991 was disposed of on the concession
made by respondent department and subsequent decision of the same Court for
implementing such commitment. The order dated the 18th October; 1992 allotting the
alternative land has been assailed through Civil Appeal No.200 of 1995.

4. Mr. Hamid Ali Mirza, Advocate, learned counsel for the Government of the
Punjab/appellant in the five appeals filed by the Government, urged the following
contentions:--

(i) The Chief Settlement and Rehabilitation Commissioner Punjab exercising powers
under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement)
Act, 1958 has vide notification dated 16-5-1973 declared all the available evacuee urban
land, including such area which had not yet been confirmed to any person against verified
produce index units, located within urban limits of Municipal Corporation, Municipal
Committee, a Notified Area Committee, Town Area Committee, Small Town Committee,
Sanitary Committee or Cantonment throughout Province of Punjab as "Building Sites".
The land subject-matter of transfer to respondents against verified claims was, not
available for allotment by way of alternate measures. The orders of Chief Settlement
Commissioner were, therefore, void ab initio. In support of the proposition, reliance was
placed on Bashir Ahmad and others v. Punjab University Academic Staff Association and
others (1991 SCMR 377), Syed Saifullah v. Board of Revenue, Balochistan through
Member (RJT) and 4 others (1991 SCMR 1255) and Member Board of Revenue, Punjab
(Settlement and Rehabilitan Wing) Chief Settlement Commissioner, Punjab, Lahore v.
Muhammad Mustafa and 74 others (1993 SCMR 732).

(ii) Notification dated 16-5-1973 (supra) was self-executory and had the effect of
converting the nature of land specified therein to be 'Building Sites' on its very issuance.
Thus the order contained in the notification stood implemented and was not reversible
without any act of the Legislature.

(iii) The claim on the basis of which allotment was being sought was filed in respect
of the land abandoned in Jawahir Pur, District Delhi, India. It was reported that the entire
estate of Jawahir Pur, District Delhi was acquired in the year 1908-1909 and the land
owners were paid the compensation and since then said Revenue Estate ceased to exist in
the Revenue Record. The claims of Siraj Din and 32 others claimants so filed in respect
of the said abandoned land were rejected. These claims were subsequently, however, got
verified on the analogy of Schedule IV of the Registration of Claim (Displaced Persons)
Act, 1956 and these claimants got allotments of agricultural land in different Districts in
lieu of said verified claims. One Habib Khan submitted applications under sections 10
and 11 of the Displaced Persons (Land Settlement) Act against allotments obtained by the
claimants of non-existing Jawahir Pura estate and Sardar Hidayatullah Mokal, Settlement
Commissioner with powers of Chief Settlement Commissioner (Lands) vide order dated
6-7-1972 required the authorities to submit complete details of all such allotments of land
against the claims got verified in lieu of land statedly abandoned in Jawahir Pur and
Jharara estates of Delhi District. He further directed the District Authorities to stop
making further allotments of land against these claims. It was argued that in view of the
restraint order dated 6-7-1972 passed by the Chief Settlement Commissioner, the
allotments obtained in village Shivpur Kalan by the respondents in the year 1973 were
illegal and unauthorised.

(iv) The order dated 23-2-1978 of the then Settlement Commissioner is of no avail as the
same is contrary to order of the Supreme Court in Civil Petition for Leave to Appeal
No.609 of 1975. Thus no allotment could be obtained without first holding discreet 3
enquiry into the genuineness of the claims. It may pertinently be pointed out that order
dated 6-7-1972 passed by Sardar Haidayatullah Khan Mokal in the capacity of Chief
Settlement and Claims Commissioner was challenged in the High Court by filing writ
petition (No. 458/R of 1972) by 33 claimants. The writ petition was dismissed on
8-7-1974 by the High Court and the petition for leave to Appeal No.609 of 1975) filed by
those very claimants including the respondents was also dismissed by the Supreme Court
vide order dated 2-7-1976 observing as under:-- '

'In case inquiries made by the Chief Settlement Commissioner reveal that fraud has been
practiced by the petitioners on the claims registering authorities or the Rehabilitation and
Settlement Authorities the transactions by which verification of claims and allotments of
land have been obtained will, in their entirety, become void ab initio and non set in law.
The contention that under the Registration of claims Act claims already verified cannot
be reviewed has, therefore, no substance.'

(v) The order dated 2-7-1976 passed by the Supreme Court in Civil Petition for
Leave to Appeal No. 609 of 1975 was not noticed by the Settlement Commissioner while
passing the order dated 23-2-1978 which order even otherwise cannot stand the test of
law.

(vi) All the private respondents were undisputedly allotted lands at different places
during 1973 as alternate land in lieu of the land got earlier allotted under specific orders
of Settlement Officers. The officers/authorities under Settlement Laws had become
functus officio and had no jurisdiction subsequently to effect any change or grant/allot
any land by way of alternate land. Learned counsel explained that no allotment could
legally be made in the year 1992 on moving the applications during year 1992 seeking
allotment of alternate land on the plea that the applicants had not been able to get
possession of the land earlier allotted to them.

(vii) Firstly the Repealing Ordinance 1974 and then Act XIV of 1975 repealed the all
evacuee laws, therefore, status of land which existed on the date of repeal of Evacuee
Property and Displaced Persons Laws (Repeal) Ordinance 1974 or Act XIV of 1975
remains intact. The nature of land, therefore, could not be changed, altered or substituted
by Notified Officer. The land available as 'Building Site' can, therefore, be disposed of
only in accordance with relevant scheme framed under aforesaid Act. The action of Chief
Settlement Commissioner (Ch. Talib Hussain) purporting above cases of granting
3
Tactful, careful, diplomatic, judicious.
alternative land was, therefore, devoid of lawful authority and of no legal effect.
Evidently by operation of law with the repeal of evacuee laws, land in the urban area
exclusively vested in the Provincial Government and could only be disposed of in
accordance with the schemes framed under the repealed law. Neither the applications
submitted in the year 1992 nor the orders obtained from the High Court for disposal of
such applications could be made basis for treating the said applications as pending case,
nor the observations made for making allotments of available land could provide legal
justification for making the allotments. Reliance was placed to the observations made in
the case of Muhammad Mustafa (supra) and Malik Muhammad Sarfraz Khan Tiwana,
Advocate v. Settlement Commissioner (Industries) Lahore and others (PLD 1989 SC 580
at 583).

5. These very contentions were either adopted or contentions to the similar effect were
urged by the other learned counsel appearing for the appellants in the connected appeals.

6. Mirza Naseer Ahmed, Advocate Supreme Court with Syed Afzal Haider Advocate
Supreme Court Ch. Mehdi Khan Mehtab, Advocate-on-Record, Mr. S.M. Masud
Advocate Supreme Court Ch. Qadir Bux, Advocate Supreme Court Malik Saeed Hussain,
Advocate Supreme Court Mr. Zainul Abedin, Advocate Supreme Court Awan
Muhammad Hanif, Advocate Supreme Court and Sh. Anwarul Haq, Advocate Supreme
Court learned counsel appearing for private respondents, opposed the appeals and' urged
as under:--

10 That respondents in the above appeals were genuine claimants who had been duly
issued entitlement certificates after due verification. Therefore, they had legal right for
allotment of land against their verified claims.

(ii) The department was unable to provide physical possession or to arrange mutation
in the Revenue Record concerning said property in favour of respondents/claimants.
Therefore, legal proceedings were initiated and their unsatisfied claims are to be deemed
to be pending. Thus subsequent allotment of land in village Harbanspura by way of
alternative measures by Notified Officer is proper and justified'.

(iii) Appellants in Appeals Nos. 195 to 200 and 205 of 1995 had no locus standi to file
the present proceedings even if they are occupants. Their petitions were rightly dismissed
by the Lahore High Court and appeals filed by them equally merit dismissal.

(iv) Notification dated 16-5-1973 converting agricultural/urban land into building site'
was not acted upon by the department, therefore, the same was legitimately ignored. In
any case an omnibus4 notification without specifying the particulars of the land to be
declared building site is not contemplated by law. The notification is, therefore, invalid in
law.

(v) Without prejudice to the above, even if notification dated 16-5-1973 was validly
issued the same could not survive the repealing Act of 1975. Therefore, it ceases to be
4
Compilation, collection, anthology, edition.
operative. Notified Officer was, therefore, competent to regulate disposal of the urban
agricultural land for satisfaction of verified claims.

(vi) Allotment was made to the respondents in Civil Appeal No.204 of 1995 in
pursuant to the directions made by the Supreme Court in Civil Petition for Leave to
Appeal 1243 of 1983, which read as under:--

"…….. in view of the amendment added to section 14(1-A) to the Displaced Persons
Settlement and Rehabilitation Act, 1974, if there is any land available in the Province,
may be given to the petitioner. "

Similar directions were made by the High Court in different cases to make allotments in
lieu of pending claims/units. The orders passed by the Chief Settlement Commissioner in
compliance with the directions made merit to be maintained so as to maintain the majesty
and supremacy of law.

((vii)In case of Civil Appeal No.200 of 1995, department had given a categoric statement
of granting land on the basis whereof Writ Petition No.2523 of 1991 was not pressed and
disposed of on 14-7-1992. Subsequently directions were issued by the High Court for
implementation of the said order and the Punjab Government as well as Settlement
Authorities have not challenged validity of the said allotment, so the same cannot be
challenged by the appellants as they lack necessary locus standi.

7. Apart from abovereferred appeals there are six other matters comprising Civil Appeals
Nos. 1049 to 1054 of 1995. The facts and legal aspects in all these matters are identical.
Appellants in all these matters were claimants/displaced persons who were issued
entitlement certificates after verification of their claims. Respective details of the appeals
is mentioned below:--

Out of verified claim of the appellants only 2010 P.I.Us. were adjusted. Therefore, the
appellants have been pursuing various remedies for procuring agricultural urban land
against said unsatisfied claim. The Deputy Settlement Commissioner/Notified Officer by
means of order dated 30-3-1992 passed an order whereby land measuring 121 Kanals, 5
Marlas situated in Revenue Estate of Harbanspura, District Lahore, was transferred in
their favour. The respondents challenged said grant through Writ Petitions Nos. 117/R of
1992, 116/R of 1992, 184/R of 1994, 81/R of 1993, 82/R of 1993 and 84-R of 1993
which were eventually decided by a common judgment dated 16-1-1994 and matters
were remanded to Notified Officer for disposal afresh. Afore-referred judgment of Lahore
High Court has been challenged by appellants through Civil Appeals Nos. 1049 to 1054
of 1995.

8. Learned counsel for the appellants strenuously urged that claim of appellants was
pending matter. Therefore, the notification dated 16-5-1973 had no applicability.
According to him under section 2(2) of Evacuee Property and Displaced Persons Laws
(Repeal) Act, 1975 (Act XIV of 1975), appellants are entitled for grant of alternate land,
which according to him, has been rightly granted. 1t was further urged that the order
allotting the land was initially passed much prior to 16-5-1973. Therefore, the notification
declaring the land as 'building site' did not have any retrospective effect as regards the
case of the appellants are concerned.

9. Learned counsel for respondents contended that allotments having' been made of the
urban land, in satisfaction of the produce index units further allotment as alternative
measure could not legally be obtained or made on the plea that possession of the allotted
land could not be obtained. The plea that in these cases allotment was made prior to the
date of Notification has no legal significance. The notification dated 16-5-1973 was
self-executory and became operative on its issuance. Therefore, all agricultural urban
land stood converted into 'building site' which can be transferred from said date only
under regular scheme in the prescribed manner. It was further contended that said land
constituting 'building sites' under aforesaid notification cannot be utilized for alternative
measures to satisfy any claim of the appellants. It was canvassed that if the claim of the
appellants was not satisfied or remained unadjusted relief only to the extent admissible
under law can be obtained, i.e. cash compensation. It will be seen that same pleas as were
urged in the connected appeals were repeated in these appeals as well.

10. Before dealing with respective contentions of the parties, it appears appropriate to
state the position of law.

11. The displaced persons from India were required to file claims in respect of the land
abandoned by them' in India. The claims for the agreed areas were verified on the basis of
the Revenue Record received from India while claims for non-agreed areas were invited
and verified under the Registration of claims (Displaced Persons) Act, 1956. Evacuee
Agricultural Land in rural areas was allotted under the Rehabilitation Settlement Scheme
issued in the year 1952 and then in 1956 and the Rural Supplementary Scheme No.I
issued in 1957. The urban agricultural land was allotted under Urban Supplementary
Scheme No.II to the West Pakistan Rehabilitation Settlement Scheme prescribed under
section 6(l) of the Pakistan Rehabilitation Act for allotment of agricultural land to
claimants on the basis of claims verified in Schedule IV to the Registration of Claims
(Displaced Persons) Act, 1956. There were other Schemes for other categories of
displaced persons. Martial Law Regulations Nos.89 and 91 were also issued. These may
not be noticed being not relevant for the purposes of instant appeals.

12. It is pertinent to note at this stage that under the Rehabilitation Settlement Scheme for
allotment of rural, agricultural land as well as the Supplementary, Scheme No.II for
allotment, ceiling on allotment of land, urban or rural, under the respective Schemes was
fixed for the conjected districts which included Lahore District and whatever Units were
left unsettled beyond the ceiling had to be taken out for settlement and adjustment in
some other District. No claimant could keep the excess Units in the District and the plea
that said excess Units remain pending so far as settlement in that District is concerned, is
without merit.

13. The Displaced Persons (Land Settlement) Act, brought on the statute book and
enforced in 1958 provided for transfer or disposal of land or other property out of the
Compensation Pool comprising of all lands generally or any class of land or all land
situated in a specified area or any particular land acquired by the Central Government by
publishing a notification under section 4 of the Act and on publication of such a
notification the right, title and interest of any evacuee or persons claiming through him in
the said land extinguished and the land so acquired vested wholly and absolutely in the
Central Government or in the Provincial Government as the case may be free from all
encumbrances.

14. Section 15 of the Displaced Persons (Land Settlement) Act provided that a displaced
person to whom any land has been allotted by a Rehabilitation Authority under a Scheme
shall be settled permanently on the land on payment of prescribed fee; and the land on
which a displaced person is permanently settled came to vests absolutely in such person
by virtue of section 16 of the Displaced Persons (Land Settlement) Act, thus, the
settlement means, settlement in accordance with the Schemes framed under the
Rehabilitation Act or the Schemes framed under the Displaced Persons (Land Settlement)
Act. No right could, therefore, be claimed over and above those conferred and recognized
by the aforesaid Schemes.

15. The other noticable aspect of the land in dispute is the position of the land during the
time that the Displaced Persons (Land Settlement) Act was on the statute book and also
after its repeal. Section 2 (3) of the Displaced Persons (Land Settlement) Act defined
"Land" as follows:--

"' Land' means evacuee property consisting of land held for agricultural purposes or for
purposes subservient to agriculture or for pasture including gardens, unserveyed land and
trees or buildings and other structures standing thereon and includes all rights of evacuee
in such land, but does not include:--

(a) Property as defined in sub-clause (b) of clause (2) of section 2 of the Registration of
claims (Displaced Persons) Act, 1956 (111 of 1956), or in sub-clause (d) thereof; or

(b) Such evacuee land as many be declared by the Chief Settlement Commissioner as a
building site. "

Section 13 of the Displaced Persons (Land Settlement) Act provided that any evacuee
land declared by the Chief Settlement Commissioner to be a "building site" in pursuance
of sub-clause (b) of clause (3) of section 2 shall be disposed of in accordance with the
provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1980. The
Chief Settlement Commissioner in exercise of the powers so vesting in him under
sub-clause (b) of clause (3) of section 2 of the Displaced Persons (Land Settlement) Act
issued notification dated 16-5-1973. This notification reads 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, 1, 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 the Punjab, as building sites, for
disposal under section 13 of the said Act."

16. The evacuee urban land in all the Revenue Estates situated within the urban limits of
a Municipal Corporation, Municipal Committee etc. etc. throughout the Province of
Punjab as such was declared "building sites" for disposal under section 13 of the
aforesaid Act. This was the position of the urban evacuee land at the time when the
evacuee laws including the Displaced Persons (Land Settlement) Act, 1958 and Displaced
Persons (Compensation and Rehabilitation)' Act, 1958 were repealed by the repealing
Ordinance, 1974 which was then made Act XIV of 1975. Upon repeal of the aforesaid
Acts and Regulations, all proceedings which immediately before such repeal were
pending stood transferred for final disposal to such officers as may be notified by the
Provincial Government and all cases decided by a High Court or Supreme Court after
such repeal which had been remanded to any such authority in the absence of such repeal
were to be remanded to the Notified Officers and any proceedings transferred, remanded
to a Notified Officer were required to be disposed of in accordance with the provisions of
the relevant repealed Act or the Regulation. This was so provided by section 2 and
subsection (3) of section 2 of the Act XIV of 1975.

17. Section 3 of Act XIV of 1975 provided that all properties both urban and rural,
including agricultural land, other those attached to charitable, religious or educational
institutions whether occupied or unoccupied, which may be available for disposal
immediately before the repeal of the laws or which may become available for disposal
after such repeal as a result of a final order passed under subsection (3) of section 2 stood
transferred to the Provincial Government on payment of price and in case of urban
property a scheme for their disposal was to be prepared by the Provincial Government
and the rural properties were to be disposed of by the Board of Revenue under a Scheme
to be prepared by the Provincial Government. Section 3, as regards agricultural land,
further provided that agricultural land occupied by any person continuously for four
harvests immediately proceeding Khareef 1973 shall first be offered for sale to such
person unless an order of ejectment has been passed against him in respect of the land but
only that much land shall be offered to such person as does not together with the land
already held by him, exceed a subsistence holding within the meaning of Land Reforms
Regulation, 1972. The other provisions pertaining to allotment to a displaced person from
Jammu and Kashmir State may not be noticed being not relevant.

18. The Government of the Punjab Province then prepared and prescribed Scheme for the
management and disposal of available urban properties (See PLD 1977 Punjab Statute
page 62). Certain provisions of the Scheme were amended 1 in 1985 (See PLD 1985
Punjab Statute page 6). The terms "available properties" and "building sites" were
defined in paragraphs 1 (c) and 1(d) of the Scheme, 1977. Paragraph 6 provided that an
available building site on which a person in possession has raised a permanent
construction and applied for its transfer may, be transferred to him alongwith an area
which does not exceed three times the constructed area on the transfer price and where
any person having made a permanent construction on a building site did not apply for
transfer, it should be disposed of through unrestricted public auction alongwith the
construction. The value of such construction shall be determined by the Deputy
Administrator and paid to such a person out of the auction proceeds by such authority as
may be specified. Paragraph 11 of the Scheme also provides for auction of the building
site.

19. These very provisions thus contemplate holding of an inquiry before auctioning the
building site to determine whether any construction has been made by any person and
whether he has applied for its transfer and also to assess the value of the construction
raised so that if he has not applied for the transfer of the building site, the assessed
compensation is awarded to him. During such an inquiry the person in possession can
submit the form seeking its transfer as no time limit can be fixed for submission of the
form so as to deprive him of the right to seek transfer. This was so held by this Court in
the case of Ch. Altaf Hussain and others v. The Chief Settlement Commissioner, Pakistan,
Lahore and others (PLD 1965 SC 68).

20. With this background we proceed to examine broad aspects directly affecting validity
of allotment orders passed by the 'Notified Officer', which are subject-matter of scrutiny
in these appeals. The Notification No. 1697-73/1567-R(L) dated 16-5-1973 issued by
Chief Settlement and Rehabilitation Commissioner, Punjab has unambiguously declared
"available evacuee urban land" including the one not yet confirmed to any person against
units, as "building sites" for disposal under section 13 of the Displaced Persons (Land
Settlement Act, 1958. Bare reading of this notification clearly displays that same was
executory in nature and became operative immediately on its issuance. This had the effect
of converting unutilized agricultural urban land in entire Punjab to be "building site".
Validity of said notification and competency of authority issuing it came for consideration
before this Court in several matters. In the case of Bashir Ahmed and others v. Punjab
University Academic Staff Association and others (1991 SCMR 377) it was held that
allotment to informants concerning land which had been declared as a 'building site"
could not be made after issuance of notification dated 16-5-1973. The relevant
observations are reproduced below:--

"The order dated 25-3-1974 passed in favour of the predecessor-in-interest of the

petitioners was challenged through Writ Petition No.402-R of 1976 by the Punjab
University Academic Staff Association and the University of the Punjab whereby the
informants were allotted the land becoming available by the setting aside of the
allotments to Badar-ul-Hassan anal Qureshi Mahmud Ahmad on 10-4-1974 as the land
had in the meanwhile been sold to the University Authorities on 29-3-1974 under section
10(2) of the Displaced Persons (Land Settlement) Act, 1958. It was alleged that the
Additional Settlement Commissioner (respondent No.2) was incompetent in law to make
the allotment to the informants as the land in question had been declared as a building site
by the Notification, dated 16th May, 1973. This writ petition was allowed by the
impugned judgment of the High Court dated 6-4-1988. Hence this petition for leave.
Mr. Shahzad Jehangir has been heard on behalf of the petitioners, who has submitted that
the decision of the High Court is wrong. But we are of the opinion that the High Court
was right in holding that in the face of the Notification dated 16-5-1973 declaring the
urban lands within the Municipal limits etc. as 'building sites' no allotment of such lands
on the basis of the claimants units, whether urban or rural, could be made."

21. It may be seen that after repeal of evacuee laws, no provisions were made for
allotment of land against any pending verified P.I.Us. Therefore, this Court while
examining effect of abovereferred notification and repealing Act ruled that any allotment
order for adjustment against P.I.U. procured by private persons was completely devoid of
lawful authority. Relevant observation supporting this view appear in case of Syed
Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991
SCMR 1255) and are reproduced here under:--

"8. With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested
in the Provincial Government against price paid for it. Thereafter, its disposal had to take
place according to the Scheme to be framed by the Provincial Government. The Scheme
framed by the Provincial Government made no provision for allotments to be made
against the pending verified produce index units. For this reason the allotment made after
1975 in favour of the persons from whom the appellant was claiming was wholly without
jurisdiction and lacking in authority: Notwithstanding that it was made on the direction of
the Board of Revenue, it could not be recognized in law nor could it be allowed to stand
on record. It was void ab initio. Consequently, its removal even by an illegal order would
not suffer from any infirmity but would rather re-establish the legal and the correct status
of the property. On this view of the matter the decree of the Civil Court could also not
remain intact.

9. We find, therefore, though for reasons somewhat different recorded by the High Court
that the dismissal of the two writ petitions and the acceptance of the Revision Petition
was the requirement of law and justified in the circumstances of the case. The appeals
have no merit and are dismissed with no order as to costs."

22. Adverting to provisions of Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975, it will be seen that section 3 regulates transfer or disposal of property which
may be "available for disposal" immediately before the repealing Act. Besides, section 2
(2) of the aforementioned enactment further controls and restricts the powers or
jurisdiction exercisable by the 'Notified Officer' for regulating property or matters which
may be 'pending' when evacuee laws were repealed. Evidently important feature for
allotment of any kind was subject to 'pendency of proceedings' and 'availability of land'
pertaining to specific classification. This pendency of proceeding is not co-related with
failure of authorities to satisfy any verified claim of a displaced person/claimant. The
distinction between pendency of units/claims and "pending proceedings" have been
discussed in the case of Member, Board of Revenue, Punjab (Settlement and
Rehabilitation Wing) Chief Settlement Commissioner, Punjab, Lahore v. Muhammad
Mustafa and 74 others (1993 SCMR 732). It has also been specifically elucidated that
neither nature of land could be converted nor proceedings treated as pending even under
direction of superior Courts if same tends to contravene existing law. The relevant
observations are as under:--

“3. The learned counsel for the appellant has pointed out that the proceedings pending in
the case could be taken only to be those instituted on an application under sections 10 and
11 of the Act and not the satisfaction of the pending claim as such. The application under
sections 10 and 11 of the Act having not succeeded at any stage had concluded. If the
respondents had succeeded in those proceedings, their entitlement under the law (Act
XXXVI of 1974) could have extended to the resumed land to the extent of their claim
pending for allotment and if the resumed land had already been allotted to some other
person, the allotment to the extent of such land will be effected by way of choice from the
available land for allotment in the same Province. Failing these two alternatives, they
were entitled to cash award of such amount as the Chief Settlement Commissioner may
decide. An unsuccessful informer could not claim these rights under the law.

4. The respondents/writ petitioners being unsuccessful in their application under sections

10 and 11 of the Act could not on the basis of either the repealing law or Act XXXVI of
1974 seek benefit of allotment from an available land. It is only on their being successful
in their application that they could claim adjustment against the resumed land or the other
alternative available land. The pendency of the claim itself did not amount to pending
proceedings. In congested Districts, there was a ceiling on allotment and whatever units
were left unsettled, beyond the ceiling, had to be taken out and settled in some other
District. One could not keep the excess units in the District and then claim that it
remained pending so far a settlement in that District was concerned.

5...................................................................................... .......................................................
...............................

......................................................................................

6. On examination of the facts of the cases and the law laid down therein we find that
none of them deals with the situation like the present one i.e., an informer being
unsuccessful and yet succeeding in getting a direction from the High Court. Where the
direction given by the High Court is manifestly against the law it cannot be allowed to
remain. "

23. Now carefully examining the details of each case in hand, it would be quite apparent,
that specified land had been allotted to some of the appellants prior to the date of
notification dated 16-5-1973 and they were unsuccessful in getting its possession and
effecting mutation concerning the same in their favour. In majority of cases, applications
seeking grant of "alternate land" were submitted to Chief Settlement Commissioner after
repeal of evacuee laws, rather inwards beginning of year 1992. In certain matters
directions were also obtained from Lahore High Court for ensuring 'expeditious disposal
of the grievances agitated by the claimants/respondents whose verified claims despite
strenuous follow-up, had not been satisfied. In one of the cases when Writ Petition
No.2523 of 1991 was filed before Lahore High Court the Settlement Department made
categoric concession for providing alternate land to respondent Mirza Shamim Ahmed
Baig and said petition was accordingly disposed of on 14th July, 1992. Therefore, it has
to be seen that when claims were not satisfied or direction issued by superior Court
regarding subject-matter which inherently suffered from want of jurisdiction, were not
complied on concession for allotting E alternate urban land to claimants against
unsatisfied produce index units even if any concession was made by the Department,
otherwise having no authority specially after repealing Act, could be legitimately
sustained. The ratio decidendi in cases reported in 1991 SCMR 377, 1991 SCMR 1255
and 1993 SCMR 732 postulates that Chief Settlement Commissioner was competent to
issue notification for converting agricultural land into "building sites" and consequently
notification dated 16-5-1973 was valid. Therefore, on the issuance of said notification
every agricultural urban land which had not been adjusted, allotted or utilized till then
against verified claims ceases to be available for transfer. Additionally, Evacuee Property
and Displaced Persons Laws (Repeal) Act, 1975, became effective from the first day of
July, 1974. Hence the status of evacuee property as existing on such date could not be
changed or converted subsequent to promulgation of said enactment., The authority for
disposal of the property or residual work was merely to be restricted to finalize
rehabilitation process. Therefore, we find no difficulty in observing that when repealing
Act was promulgated there did not exist any agricultural urban land, which could be
adjusted against unsatisfied verified claims of produce index units. The claimants with
unsatisfied entitlement could resort to any other remedy if available under the law, but
were not entitled to obtain allotment of urban land in satisfaction of pending units as
alternate land/measure or otherwise.

24. Besides, it was mandatory condition for grant or allotment of land that proceedings
must be pending, which could be dealt with and finalized by the "Notified Officer" within
the four corners of law and jurisdiction vested in him. Undoubtedly in all the matters
under consideration, claims of respondents had not been fully adjusted or lands allocated
to them for being transferred in their favour was not available for one or the other
reasons. Therefore, without much comments relying on the instructive observations in
cases of Member, Board of Revenue v. Muhammad Mustafa and others (1993 SCMR
732), Syed Saifullah v. Board of Revenue, Balochistan and others (1991 SCMR 1255)
and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner,
Lahore and others (1987 SCMR 1358) we are inclined to hold that on. the promulgation
of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or
was available for disposal. Moreover the date when the repealing Act became operative
there was no land available for adjustment against produce index units. Mere fact that in
some matters regarding adjustment of specified land were under consideration or had not
been carried out would not bring the grievance within the purview of section 2(2) of Act
XIV. of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land
or grant alternate lands against unadjusted verified units.

25. There is yet another aspect whereby Chief Settlement Commissioner vide order dated
3-5-1986 (reproduced hereinabove) has unambiguously declined request for granting
alternate land to claimants (i) Pir Muhammad, (ii) Siraj Din, (iii) Wali Muhammad and
(iv) Sher Muhammad, respondents in Civil Appeals Nos. 195, 196 199, 210, 203 and 205
of 1995. This was not challenged by said claimants, therefore, it had attained finality.
Repealing Act XIV of 1975 does not contain any provisions for exercising powers of
review. Therefore, on the strength of principles laid down in cases of Hussain Baksh v.
Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) and Muzaffar Ali v.
Muhammad Shafi (PLD 1981 SC 94) Chief Settlement Commissioner, the Notified
Officer was not competent to recall or bypass his previous decision. Therefore, the order
for allotment of alternate land was vitiated on this score as well.

Now we will proceed to deal with other aspect regarding consequence of order passed by
authority having no jurisdiction in the matter. Question relating to legality and impact of
void order and for disregarding the same when nullity, has been considered by this Court
on numerous occasions. Pivotal5 question which needs attention is whether impugned
orders concerning allotment of land passed by Notified Officer are mala fide or suffer
from total lack of jurisdiction or have been passed in disregard to existing law and tends
to frustrate provisions of evacuee laws and schemes framed thereunder, therefore, be
deemed as nullity. In case of Muhammad Swaleh (PLD 1964 SC 97) this Court ruled, that
if circumstances disclose that order pre-eminently provides right to either party is nullity
the same should be ignored. In the case of Yousaf Ali v. Muhammad Aslam Zia (PLD
1958 SC 104) the Court did not attach finality to the orders which were passed by an
authority in excess of its jurisdiction or suffered from want of jurisdiction and were found
to be devoid of lawful authority and nullity. It was observed in these matters that edifice
constructed on the basis of void order crumbles alongwith same, and did not require to
be set aside through appeals or any other proceedings. In the case of Mansab Ali v. Amir
and 3 others (PLD 1971 SC 124) it has been observed that elementary principles of law
require mandatory condition regarding exercise of jurisdiction by a Court, Tribunal or
Authority must be fulfilled, otherwise all, proceedings drawn by such forum would
suffers from total want of jurisdiction, otherwise action taken and decision rendered by
said forum shall have no legal effect. Similar view was taken in case of Major Syed
Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184) wherein it was held
that orders passed by tribunal having no jurisdiction are not sustainable and all successive
proceedings based upon the same are equally illegal and devoid of lawful authority. In
Chittaranjan Cotton Mills Ltd., v. Staff Union (PLD 1971 SC 197) it was observed that
"where the Court is not properly constituted; all the proceedings must be held to be coram
non judice and, therefore, non-existent in the eye of law. There can also be no doubt that
in such circumstances it could never be too late to admit and give affect to the plea that
the order was a nullity" and thus impugned order was set aside. The above discussed
proposition was elaborately discussed in case of Khuda Bakhsh v. Khushi Muhammad
and 3 others (PLD 1976 SC 208) wherein action and orders were found to be coram non
judice and nullity in the eye of law. After surveying case-law this Court in a recent
judgment reported in PLD 1997 SC 351 (Province of the Punjab through Secretary,
Health Department v. Dr. S. Muhammad Zafar Bukhari) also dealt with the effect of
orders which are void and coram non judice, and propounded that same may not be
carried out.

5
Essential, key, crucial.
26. Learned counsel for the respondents have greatly stressed upon directions which were
issued by superior Court for ensuring expeditious disposal of the grievances made by the
claimants regarding non-adjustment of their produce index units or failure to grant them
alternate land. It was also emphatically canvassed that in one of the cases department had
made concession. Therefore, directions of the High Court existed for providing alternate
land. They accordingly asserted that Notified Officer stood protected and his orders were
not assailable. It is indeed well-settled that consent can neither vest nor taken away
jurisdiction which otherwise did not vest in any authority or forum. Reference, however,
be made to the observations in the cases reported in PLD 1983 SC 243, (Sultan Ali v.
Khushi Muhammad), 1983 PCr.L.J. 682, (Azad Jammu and Kashmir Government
through Chief Secretary and 4 others v. Sardar Muhammad Ibrahim Khan) and 1980
SCMR 469 (Shahul Hamid v. Tahir Ali). It is noteworthy that after issuance of
notification dated 16-5-1973 ands promulgation of repeal Act, 1975 Chief Settlement
Commissioner Punjab or Notified Officer did not possess any power to make allotment of
any agricultural land in the urban areas of Punjab. No one in the Settlement Department
was, therefore, competent to transfer or consent for giving any land muchless an
"alternate land" for adjustment of produce index units, specially when they did not even
assert possession over any portion of such land. Additionally, by virtue of notification,
dated 16th May, 1973 entire agricultural urban land was declared as "building sites" and
subsequently on account of repealing enactment all unutlized properties by operation of
law were transferred to the Government of Punjab in the consolidated pool, which could
only be disposed of in accordance with procedure prescribed under regular schemes.
Besides, none of the "building sites" could be legitimately transferred even under the
scheme framed by the Punjab Government, except such portion upon which construction
had been raised by the claimants and other adjoining land not exceeding three times the
constructed area. Even under the scheme presently in force limit of granting agricultural
urban land was considerably restricted. The "Notified Officer" flagrantly disregarding the
law granted alternate land, to the claimant against verified produce index units which
otherwise did not belong to Settlement Department. It is noticeable that "Notified
Officer" had illegally assumed powers which were not vested in him. His conduct does
not appear to be above board and is prima facie mala fide. This certainly called for probe
and suitable departmental action against persons responsible for concealment of facts and
wanton abuse of power by the then Chief Settlement Commissioner, (Ch. Talib Hussain).

27. Reverting to merits it may be seen that in case reported in 1993 SCMR 732 it was
held that direction given by the High Court when against law cannot be allowed to hold
field. Similarly in a recent judgment of this Court reported as PLD 1997 SC 351
(Province of the Punjab v. Dr. S Muhammad Zafar Bukhari) while examining
implementation of judgment passed by the High Court, its noncompliance by concerned
authorities on the ground of same being coram non judice was not disturbed. It would be
profitable to reproduce the relevant portion as under:--

"12. This brings us to the question of implementation of the judgment dated -29-4-1989
of the High Court which judgment as held above is a 'judgment per incuriam' which was
sought to be enforced by initiating contempt proceedings. The question is whether
indictment for disobedience to a judgment per incuriam can be obtained or in other words
can a person be found guilty of disobedience of an order which is nullity in the eye of
law. On this question cases cited in Halabury's Laws of England 4th Edition, Volume 9,
para 55, are; 'R. v. Hollis (1819), 2 Stark. 536; R. v. Soper (1825), 3 B & C 857. Wherein
it was held that 'a person cannot be found guilty of disobedience to an order of justices if
the order was made in a matter in which they had no jurisdiction.' The comments
recorded at page 100 of volume 17, Corpus Juris Secondum on the subject may be
reproduce as under:

'In proceedings to punish for contempt for violation of, or failure to obey, a decree or
order, various matters have been held to constitute good defence. Thus, it has been a good
defence in such proceedings that the decree or order is indefinite and uncertain or that the
act required to be performed would be nullity.'

On the same principle, learned Judge of the Division Bench in the case of Abdul Haleem
v. Qurban Hussain (PLD 1965 Lah. 570) observed, "it is true that presumption attaches to
orders of superior Courts that they are with jurisdiction but no such presumption attaches
to. an order of subordinate Court. In the circumstances, Mir Bahadur Ali, Superintendent
of Police, did not commit any contempt of Court by disobeying the order which had no
legal force. "Again Munir, CJ, in the case of Mian Sultan Ali Nanghiana v. Nur Hussain
(PLD 1949 Lah. 301 (F.B) held that order staying proceedings before the Election
Commissioner being without jurisdiction was void and that being so no contempt of High
Court was committed by the members by disobeying it.

13. Seen in the light of dictum laid down in these cases the appellant Government was
right in pointing out to the High Court that its judgment being contrary to the judgments
of the Supreme Court and the law laid down by it cannot be got implemented by invoking
power of contempt of the Court. Learned Judge of the High Court without adverting to
this question, insisted unfortunately on the implementation of the direction issued in the
judgment. The implementation of the judgment would have amounted in acting contrary
to law laid down by this Court. The promotion to which the respondent officer was
legally entitled had been made by issuing the necessary notification promoting and
appointing him as Associate. Professor would be illegal. The justice has been done
initiation of contempt proceedings any further and the orders, dated 8th and 29th October,
1995 requiring the appellant Government to act contrary to law are unwarranted in law."

28. Thus, following the dictum in aforequoted cases and looking to glaring disregard of
law and earlier decisions of this Court, we are inclined to hold that disposal of petition by
Lahore High Court based on illegal and tainted concession of Settlement Department is
devoid of lawful authority and subsequent direction for its implementation is equally
coram non judice, as such has no binding effect.

29. As a sequel to above discussion we are satisfied that the orders passed by the 'Notified
Officer' which have been impugned in all these appeals suffered' from total lack of
jurisdiction and were coram non judice. Private appellants who have been objecting to the
adjustments of respondents' claim had ostensible cause, reasonable justification and fear
of being prejudiced, therefore, in all fairness were 'aggrieved party as held in the case of
Fazal Din v. Lahore Improvement Trust, Lahore, and another (PLD 1969 SC 223). The
High Court, therefore, ought to have interfered with the illegal orders passed by Chief
Settlement Commissioner, purporting to exercise powers of Notified Officer. '

In view of our above conclusions, the appeals filed by Government of Punjab as well as
by the private persons are accepted to the extent that the lands which were subject-matter
in the above cases were not available for transfer either as agricultural urban land or as
agricultural land since all these lands were within the Municipal limits of Lahore and
were declared as building site in view of the notification dated 16-5-1973 issued by the
Chief Settlement Commissioner under the provisions of Displaced Persons Land
Settlement Act, 1958. It is, however, left open that if any of the appellants in Civil
Appeals Nos.1049 to 1054 of 1995 was entitled under the Scheme framed after repeal of
evacuee laws, the same may be agitated if so available under the law before the
authorities concerned. There will be no order as to costs.

M.B.A. /M-27/S Order accordingly