HASSAN MAHMUD Versus SETTLEMENT DEPARTMENT
This judgment will dispose of Writ Petitions Nos.5-R-2000, 8-R-2000, 11-R-2000, 19-R-2000 and 5-R-2003 as they involve identical question of law and fact.
2. Briefly stated the facts of these writ petitions are that: Hassan Mahmud, petitioner in Writ Petition No.5-R-2000 is a displaced person from India holding Claim No.9311 verified by the Central Record Office Lahore for agricultural land abandoned by him in Mauza Rohi Chhana Tehsil and District Nabha, Nabha State, East Punjab India, in respect of which Entitlement Certificate to the extent of 4685 Produce Index Units has been issued in his favour and against this verified claim evacuee agricultural land measuring 2880 Kanals, 10 Marlas situated in Mauzal Sarishta Thal Jhandi Tehsil Layyah had been allotted and confirmed at RL-II No.195 vide order dated 6-10-1956 passed by the Assistant Rehabilitation Commissioner (Lands).
3. In W.P. No.8-R-2000: Abdul Khaliq, petitioner, was also a refugee from India who filed his Claim Form No.3238 and after verification the Central Record Room, Lahore had issued him an Entitlement Certificate for 5953 PIUs and against these units agricultural land measuring 3664 Kanals situated in Mauza Maui Garh, Tehsil Layyah had been allotted and confirmed, in his favour at RL-II No.83 vide order dated 24-12-1959 of Assistant Rehabilitation Commissioner) (Lands).
4. The background of W.P. No.11-R-2000 is that one Muhammad Ashiq, a refugee from India has filed his claim form which was verified by the Central Record Office, Lahore and against his verified claim agricultural land was allotted" in his favour in Mauza Sharista Thal Jhandi, Tehsil and District Layyah. The said allottee sold his land to one Naseer Ahmad son of Nawab Din, Caste Gujjar, resident of Chak No.336/TDA Tehsil and District Layyah and from whom the present petitioner Ghulam Rasool had purchased the agricultural land measuring 80 Kanals from Khata No.309 of Mauza Sarishta Thal Jhandi.
5. In W. P. No.19-R-2000, the brief facts are -that the petitioner Noor Muhammad was also a displaced person from India who filed his claim form for allotment of land abandoned by him in India in Mauza Yaq6obpur Tehsil and District Anbala (East Punjab) India. After the verification of his claim form, an Entitlement Certificate had been issued by the Central Record Office to the extent of 3952 PIUs and an agricultural land measuring 2416 Kanals had been allotted in his favour in Mauza Sumra Thal Kalan, Tehsil and District Muzaffargarh vide RL-11 No.149 on 9-9-1970 by the Deputy Settlement Commissioner (Lands).
6. Brief facts of W.P. No.5-R-2003 are that evacuee land measuring 1600 Kanals against verified Claim No.153 had been allotted in Mauza Docharkha Thal Jhandi in the name of Mst. Ghafoori wife of Abdul Majeed on 9-1-1970 and thereafter, on Mukhbari application of Hamid Ali Khan etc., successor-in-interest of Ch. Abdul Khaliq the said land was cancelled from the name of said Mst. Ghafoori and the same was confirmed/allotted in favour of the informant vide order dated 24-7-1979 and accordingly the adjustment of the land was duly made by the TDA in exchange of right of return of the allottees in Mauza Sammra Thal Kalan while giving reference to RL-II No.162 adjustment was made in Mauza Docharkha Jhandi by EACO Layyah vide order dated 30-4-1979. After the said order Muhammad Aslam Khan and Muhammad Akram Khan predecessor-in-interest of present petitioners Nos.2 to 6 had purchased 35 acres of land from the allottee through registered Sale-Deed No.2598, dated 15-7-1979. Petitioner No.7 had purchased landed property measuring 664 Kanals from Hamid Ali Khan etc. through decree of Civil Court dated 7-6-1980. The A.C./Deputy Settlement Commissioner (Lands) vide his impugned order dated 31-8-1999 declared that the adjustment of the land on the basis of RL-II Nos. 149 to 162 be cancelled as the same had been obtained on the basis of forged- and bogus claim form. The said order has been assailed by the petitioner through the instant writ petition.
7. The land allotted to the evacuees (displaced persons) against their verified claim forms was fallen in the area of Thal Development Authority where Thal Development Act, 1949 prevailing. The allottee applied to the Assistant Colonization Officer for the adjustment of land on the basis of their right of return and the A.C. referred their cases to Secretary (Settlement and Rehabilitation), Board of Revenue, Punjab, Lahore, seeking further verification of the claims of allottees who responded that the allotments against the verified claims of the evacuees had been made by the District authorities and since the record is also with them it was not possible for him to verify whether the allotments were generally made or not and directed the EAC Layyah to get the same verified from District authorities concerned. Feeling aggrieved, the writ petitioners have filed different Writ Petition Nos.172-R of 1983, 255-R of 1983, 257-R of 1983, 258-R of 1983 and 259-R of 1983, challenging the letter issued by the Secretary, Board of Revenue. These writ petitions were accepted by the High Court vide order dated 21-11-1983 passed in Writ Petition No. 172-R of 1983 and it was observed in Para No.4 of the judgment which reads as under:--
"So far as these petitions are concerned it is quite clear that after the verifications of their claims the petitioners were made allotments by the Rehabilitation authorities. The allotments had become final and vested absolutely in the petitioners by operation of law. After many years their rights are not liable to be interfered with. This being so, .the adjustment has to be made on this basis by the competent authority under TDA. The probe intended to be made by Board Comparison with India is a far cry. Therefore, notwithstanding the aforesaid Memo. dated 27-2-1983, the concerned authorities including the Thal Development Authority shall proceed on the basis of allotments made in favour of the petitioners many years ago as final and proper vesting in them absolutely and the TDA shall make the adjustment in lieu of their allotments under the adjustment scheme. The petitions are allowed but in the circumstances there shall be no order as to costs."
8. In view of the above-referred judgment of this Court and according to the decision of Board of Revenue, the E.A.C. Layyah vide order dated 21-5-1987 allowed adjustment of land in various Chaks of Tehsil and District Layyah in favour of the writ petitioners/evacuee persons and also directed for confirmation of proprietary rights in the names of petitioners in the Revenue Record and in this respect mutations had also been attested.
The applications under section 12(2), C.P.C. have also been filed by the Board of Revenue, Punjab, which were dismissed in default by the Court vide order dated 5-7-1995. During the pendency of these C.Ms. in this Court, some different persons made complaints to Chief Minister Punjab against the allotment of land made in favour of, said evacuee persons who ordered for an inquiry and under the direction of Commissioner D.G. Khan, the inquiry with regard to the allotment of land had been made and the Assistant Commissioner Layyah vide his orders dated 31-8-1999 and 9-10-1999 declared the allotments as fraudulent and bogus and ordered for the registration of a criminal case against the allottees.
10. The petitioners have called in question the vires of orders dated 31-8-1999, 9-10-1999 and 15-10-1999 passed by the respondents, and inquiry report dated 7-10-1999 through the instant petitions.
11. Learned counsel for the petitioners contended that claim forms have been verified by the Central Record Room, which were declared valid by this Court vide order dated 21-11-1983 passed in W. P. No.172 R-1983. Further added that Evacuee Property and Displaced Persons, Laws (Repeal) Act, had been repealed in 1974-75 and after the repeal of the evacuee laws, the Rehabilitation authorities being functus officio were not competent to pass any order of cancellation of land. Further argued that the original allottees as well as purchaser of the land have not been afforded an opportunity of being heard by the Inquiry Officer, hence, the allottees and the purchaser were condemned unheard.
12. On the other hand, learned counsel appearing on behalf of respondents has vehemently opposed the arguments addressed by the learned counsel for the petitioners and supported the inquiry proceedings and the impugned orders.
13. I have heard the learned counsel for the parties and perused the record.
14. There is no cavil with the fact that the land had been allotted in favour of the displaced persons from India within the area of T.D.A. and at the, time of adjustment of land as their right of return the Colony officers instead of making any adjustment, referred the matter to the Secretary (Settlement and Rehabilitation), Board of Revenue, Punjab, Lahore for verification of the claim forms. It is also admitted position that the record of the claim forms was not available with the MBR. The register of RL-II was under the control of District, Administration and he wrote a letter to EACO to verify the claim form from District Administration.
15. Sections 10 and 11 of the `Displaced Persons (Land Settlement) Act, 1958 empower the Chief Settlement Commissioner and his delegatory to resume the land obtained by the allottees on the basis of fraud and misrepresentation but after the enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 no person was enjoying the powers of Settlement Commissioner/Assistant Settlement Commissioner. Under the law the Notified Officers were appointed who enjoyed the limited jurisdiction to decide the pending matters and where no such proceedings were pending there arose no question of proceedings under the Displaced Persons and Land Settlement Act. In this context, reliance can be made to the case of Fateh Muhammad v. Deputy Commissioner T.T Singh (PLD 1989 Lahore 473)
16. The Assistant Commissioner or the Deputy Commissioner under no capacity could reopen the past and closed matters and were not competent to cancel the allotment already made by the Settlement authorities in any order passed by the Revenue functionaries and reopening of such matters would be without lawful authority and of no legal effect and liable to be set aside. Reliance is placed on case of Farman Ali reported as PLD 1984 Karachi 62 and Muhammad Sarwar v. Muhammad Ali (2002 SCMR 829).
17. Learned counsel for the department when confronted that how the impugned orders would be deemed to be pending cases could not respond. From the perusal of the record and bare reading of the impugned orders it reveals that A.C. Layyah had passed the order as Deputy Settlement Commissioner (Lands) The powers under settlement laws were no more, with the Colony/Revenue Officers; it was only the Notified Officer who could enjoy the powers but that, too, with regard to the pending cases before the Settlement authorities at the time of repeal of evacuee laws and the matters pending before the High Court and the Supreme Court. These cases in any manner cannot be treated as pending cases. The allotments had been made against claim form of the allottees and the adjustment under the Thal Development Act against their right -of return had also been made and these were the past and closed transactions.
18. The most important feature of the case is that; the original allottees and subsequent purchasers as well as occupants of the land were not issued notices by the Assistant Commissioner while passing the impugned orders and all the parties have been condemned unheard, thus, the impugned inquiry/orders being void and coram-non judice are not sustainable in law.
19. For the foregoing reasons, these writ petitions are accepted and the impugned orders dated 31-8-1999, 9-10-1999 and 15-10-1999 as well as inquiry report dated 7-10-1999 are declared to have been passed illegally and without lawful authority, hence, set aside. The cases are remanded to the Chief Settlement Commissioner, Punjab for decision afresh after affording an opportunity of being heard to all the concerned parties, in the light of the observations made in the order of this Court. However, he will be at liberty to hear these cases either himself or entrust the same to any Notified Officer for final disposal. The jurisdiction for re-opening the cases shall also be determined before passing the final order.
H.B.T./H-42/L Petition accepted.