MUHAMMAD SHARIF vs SETTLEMENT COMMISSIONER and others

ORDER

' CH. IJAZ AHMED, J.--- The petitioner has sought leave to appeal against the judgment of the Lahore High Court, dated 19-10-2000 wherein constitutional petition filed by the petitioner was dismissed and orders of the respondents Nos.1- and 2 were upheld.

2. The necessary facts out of which the present petition arises are that land in question was originally owned by four sons of Noor Din, namely, Siraj Din, Noor Hussain, Chiragh Din and Nawab Din who had sold the land measuring 23 Kanals, 3 Marlas to Tarlok Nath and Dina Nath vide registered sale-deed dated 6-11-1933.

Muhammad Ishaque/the minor son of Siraj Din, one of the vendors filed a suit for declaration under customary law on 16-11-1934 on the ground that the sale would not affect his reversionary rights in the land in question.

The learned trial Court dismissed the same vide judgment and decree dated 27-3-1935. His appeal was also dismissed by the learned District Judge Sialkot vide judgment and decree dated 30-7-1935. Vendors did not challenge the said sale till 1947. The land in question was recorded as evacuee property in the special Jamabandi of the year 1947. After partition of Sub-Continent and creation of Pakistan, non-muslims/ evacuee owners migrated from Pakistan to India. After partition and migration of non-evacuees, Nawab Din/one of the vendors had taken the possession of the property in question in 1947 and he was also shown as occupant under the Rehabilitation Commissioner. Muhammad Younis son of Noor Hussain/one of the vendors was born on 7-8-1942. The said Muhammad Ishaque son of Siraj Din and Muhammad Younis filed suit for declaration under the customary law that the sale would not affect the reversionary right in the land. The suit was ex parte decreed by-the trial Court vide judgment and decree dated 22-1-1949. Mutation No,6596 was also attested in their name in view of said decree in the Revenue Record. The decree was also given effect in the Revenue Record on 27-12-1952. Petitioner filed an application under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 before the Additional Settlement Commissioner. The learned Additional Settlement Commission after inquiry sent the case to the Settlement Commissioner (Legal) along with his recommendations for redemption of the land in question. The Settlement Commissioner vide order, dated 25-5- 1972 suggested that the land in question be disposed of under the Settlement Laws being available property holding the same as evacuee. Respondent No,3 being aggrieved filed Constitutional Petition No,447/R of 1972 in the High Court. The learned High Court had granted status quo order. The respondent No,3 had not impleaded the petitioner as respondent in the said writ petition. The petitioner filed an application for impleadment along with the. Application for modification of order of status quo. Both the applications were accepted and order of status quo was modified and Settlement Authorities were permitted to take legal action in the matter. Section 14(1)(A) was enacted on 28-7-1973 through Act XL of 1973. The provision of the said Act have given right of transfer of the land to the informant. Petitioner submitted application before the Additional Settlement Commissioner with the prayer that the land in question be allotted to him against the pending urban units who entrusted the same to the Deputy Settlement Commissioner Land Sialkot who vide order, dated 13- 10-1973 in view of Notification No,1697-73/1567, dated 16-5-1973 forwarded the case to the Deputy Settlement Commissioner Urban for necessary action as the land in question had been declared as potential building site who dismissed the same vide order, dated 3-11-1973. Petitioner being aggrieved filed Constitutional Petition No,1249/R of 1976. The learned High Court had disposed of Constitutional Petition No,447/R of 1972 and Writ petition No,1249/R of 1976 vide order, dated 14-1-1980 being premature. The Deputy Settlement Commissioner treated the land in question as evacuee vide order, dated 17-5-1980 and refused to allot the same to the petitioner on the ground that the land in question had been declared as potential building site, therefore, could not be allotted as agricultural land. Respondent No,3 Muhammad Younis and Zulfiqar filed a revision petition before the Settlement. Commissioner without impleading petitioner as respondent, however, petitioner was impleaded as respondent on filing application under Order I, rule, 10, C.P.C. The Settlement Commissioner accepted the same vide order, dated 27-7-1980 wherein property in question was declared as Muslim property.

Petitioner being aggrieved filed Constitutional Petition No,677/R of 1980 before the Lahore-High Court which was dismissed vide impugned judgment. Hence, the present petition.

3. The learned counsel for, the petitioner submits, /hat Settlement Authorities had decided the case against the petitioner in violation of their policy letter dated 18-2-1974, and the same mistake was committed by the learned High Court. He further submits that vested rights accrued to the petitioner cannot be taken away retrospectively through notification. He further urges that notifications have always prospective effect and not retrospective effect. He further maintains that impugned judgment is not in consonance with the law laid down by this Court.

4. The learned counsel for the respondents supported the impugned judgment and stated that impugned judgment was passed by the learned High Court in accordance with the dictum laid down by this Court in the following judgments:--

(i) Muhammad Ramzan's case 1997 SCMR 1635, (ii) Bashir Ahmad's case 1991 SCMR 377 and (iii) Mirza Zafar Ali's case 2005 SCMR 985.

5. We have considered the submissions made by counsel for the parties and perused the record. The question of law has been settled by this Court after considering all the case-law on the subject in Mirza Zafar Ali's case (supra). The relevant observation is as follows:-- "In Muhammad Ramzan and others v. Member (Rev.)/C.S.S. And others 1997 SCMR 1635 it was held as under:-- "The ratio decided 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 cases to 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."

' The proposition was also discussed in Malik Iftikhar Ahmad v. Assistant Commissioner and others 1994 PSC 102; Province of Punjab through Member (Settlement and Rehabilitation), Board of Revenue Punjab, Lahore v.

Mst. Qaiser Jehan Begum and others 2003 SCMR 870 and Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214.

' In the light of the foregoing discussions, we are of the considered view that the D.S.C. (Land) in exercise of power as Notified Officer had no jurisdiction to make an allotment of the land which had acquired the status of building site for A satisfaction of the claim of informant and the allotment made by the Notified Officer in terms of section 14(1-A) of the Displaced Persons Land Settlement Act, 1958 without giving effect to the Notification, dated 16-5-1973 would be without jurisdiction which could not be validated in the writ petition."

6. It is a settled law that judgment of this Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of B Constitution. The learned High Court had decided the case in terms of the dictum laid down by this Court in various pronouncements mentioned herein above and also in paragraph 7 of the impugned judgment. Even discretionary in character. Keeping in view the circumstances mentioned otherwise it is a settled law that constitutional jurisdiction is hereinabove, we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in Nawab Syed Raunak Ali's case PLD 1973 SC 236. It is an admitted fact that Settlement Authorities and High Court had concurrently decided the case against the petitioner. This Court does not, normally, go behind the finding of fact recorded by the learned High Court, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of any principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physical impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the findings recorded by the High Court are not sustainable on the record and should be interfered with by us. This would be notwithstanding that a different view might also be possible.

7. For what has been discussed above, we find no merit in this petition which is dismissed and leave to appeal is refused.