GHULAM RASOOL Versus SETTLEMENT AND REHABILITATION COMMISSIONER

ABDUL SHAKURUL SALAM, J.‑‑ The dispute relates to urban land measuring 16 Kanals and rural land measuring 116 Kanals 5 Marlas allotted to the appellant since deceased and represented by his heirs. These allotments were made from 1951 onwards until 1962. One Umar Din filed two Mukhbari applications against the aforesaid allotments but the Deputy Settlement Commissioner dismissed both the applications. Umar Din then filed review applications which were dismissed for default on 16‑4‑1964. Thereafter, he filed two revision petitions and an Additional Settlement Commissioner cancelled the allotment of urban land on the ground that that could not have been made to the appellant in lieu of his rural claim. As regards the allotment of rural land, he directed that as the classification of the land made at the time of allotment was incorrect, the land should be reclassified and reduced if necessary. This is vide order dated 19‑11‑1964. The allottee appellant filed two revision petitions which were dismissed by the learned Settlement Commissioner vide order dated 16‑8 1965. This order was challenged through a Constitutional petition but the same was dismissed by a learned Single Judge vide order dated 14‑10‑1966. Hence this L.PA.

Learned counsel for the appellant has contended that the allotments made in favour of the appellant having not been challenged in appeal or revision iii due curse, had bee‑,me final and could not be cancelled subsequently. He has also contended that in view of the instructions of the Chief Settlement Commissioner, for wrong classification allotments were not to be interfered with after ages.

3. During the pendency of the appeal, Umar Din, the informer, had filed an application to be impleaded as a party. The application was dismissed by a learned Division Bench of this Court on 27‑5‑1974. However, the learned Bench took note of the contention of the learned counsel for the applicant that he being conversant with the facts of the case and able to assist the Court at the time of arguments, the applicant or the counsel may be present in Court when the case heard and if they/he finds that any statement is being made. which is not factually correct they/he can point out to the Court bearing the matter. Umar Din fled another application (C.M. No.6‑79) for being roil leaded as a party and notice was issued in this application on 17‑6‑1980. The case has came up for final hearing today

4. Before proceeding with the matter, we would like to dispose of the last mentioned application, viz. C.M.No.6‑79 filed fey Umar Din. This application is for being impleaded as a party to the appeal. Such an application was already p made and dismissed by the learned Division Bench of this Court on 27‑5‑1974. ,After six years similar application can hardly be entertained. Therefore. his application to be impleaded as a party is dismissed.

5. Coming to the merits of the appeal, it appears that Bashir Ahmad and Nazir Ahmad had got themselves impleaded as a party to the appeal vide order dated 23‑10‑1975, of course, subject to all just exceptions. The ground urged in support of the application for which these persons were impleaded as party was that during the interregnum, the urban land has been sold in auction and they had purchased it. Alongwith their application, they had filed photostat copies of the bid sheets as well as the record of the Excise and Taxation Department showing that the urban land claimed by the appellant was treated as building sites much before Partition vide record of the year 1946‑47. If the urban land claimed by the appellant was building sites prior to Partition, it could not have been possibly allotted to the appellant in lies of the claim for rural land left behind. The initial allotment is favour of the appellant was apparently made on the wrong assumption hat the land was rural land available for allotment as rural agricultural land. Since there was a basic mistake about the nature of the property, the allotment mad‑‑ in favour of the appellant was void ab initio. In any case, after the land has been bound to be urban under the orders impugned in the appeal, it has been auctioned under the Displaced Persons 6 compensation and Rehabilitation) Ad: of 1958 as far back as 1968. The appellant has never questioned or challenged the auction of that land.

The contention of the learned counsel for the appellant that since he has challenged the order of cancellation of his allotment, the auction of the land is of no effect, misses the point that the land has been disposed of independently as urban building sites by the authorities created under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and the authorities were acting quite correctly in so far as the land was from pre‑Partition days, urban building sites. Even if the land was not liable to be auctioned having been allotted to the appellant, once that fact had been brought to the notice of the appellant through the application filed in this Court along with which the record was produced showing that the land was building sites and has been auctioned under the Displaced Persons (Compensation and Rehabilitation) Act of 1958, it was the duty of the appellant to have challenged the auction proceedings. He has not done so for the last 13 years. He cannot hope to avoid the disposal of the property. properly made under the relevant statute creating rights in favour of the purchasers in public auction, brought to his notice, without challenging the auction proceedings, simply by saying that since he had challenged an earlier order of cancellation of the allotment from his name, that is enough. Rights created in favour of the auction‑purchasers which had become final can hardly be interfered with in the circumstances of the case, after a lapse of more than 13 years. For the foregoing reasons, the appellant had no right to the allotment of the urban building sites in lieu of his rural claim and has lost all claims to it when it has been disposed of as building sites under the relevant statute without demur on the part of the appellant for more than 12 years.

6. Coming to the allotment of rural land measuring 116 Kanals 5 Mamas made in favour of the appellant by the public authorities in the early part of Rehabilitation viz. 1951‑52, to reopen the matter after more than a decade for recalculating the units with reference to the classification of soil was not only contrary to the specific instructions of the Chief Settlement Commissioner on whose behalf the Additional Settlement Commissioner was exercising the delegated powers but that was also impermissible for the reason that tic allotment was made by public authorities themselves and the appellant allottee had no hand therein. The allotment was never challenged through appeal nor ever revised by the authorities. That had become final under the law. The settled refugee should have been allowed to heave a sigh of relief and say to himself: "This is my own, my second native land", as observed by the great Judge of his land, Mr. Justice M.R. Kayani in Abdul Ghafoor and thirty others v. The Rehabilitation Commissioner, West Pakistan, Lahore P L D 1958 Lah. 48 at 57. The fact that the judgment was reversed on appeal on a point of law does not diminish the strength of the principle. In any case, under the latest law, Act XIV of 1975, the heirs of the appellant will be entitled to be offered the few Kanals of land on re‑classification of the soil. Therefore, there is no reason in law or justice to unsettle the settled refugees. Hence, the orders of the Settlement Authorities to the extent that they purport to interfere in the confirmed allotment of the appellant of the rural land measuring 116 Kanals 5 Marlas are declared to be without lawful authority and of no legal effect. To this extent, the order of the learned Single Judge is modified. Since the respondents have not appeared to oppose the appeal, there shall be no order as to costs.

H.B.T./G‑161/L I.C. Appeal partly allowed.