Find a Lawyer

Writ Petition No, 828‑R of 1968, decided on 31st May, 1981.

‑‑‑Art 199 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 19 & 20‑‑Review‑Settlement and Rehabilitation Commissioner re‑opening case on miscellaneous application and reviewing his order without issuing notice to petitioners‑Such order, held, without lawful authority and of no legal effect.‑[Natural justice, principles of].

Hamid Ali Khan Sherwani for Petitioner.

Muhammad Ilyas Khan for Respondent No. 2.

Date of hearing : 27th May, 1981.

This Writ Petition has been directed against the order dated 18‑6‑1968 of the Settlement and Rehabilitation Commissioner, Camp Sheikhu pura. The admitted facts are that respondent No. 2 moved a miscellane ous application (Annexure D') dated 14‑4‑1968, before the Additional Settlement Commissioner, Lahore, praying therein that the land measuring 921 kanals, allotted to one Mangli son of Shah Notta on 22‑3‑1958, against Khata No. 141 R. L. 11 situate at Chak No.' 19/G. B., Tehsil and District Sheikhupura, which was cancelled as a result of setting aside of the order dated 15th of January, 1959 of the D. R. C. (L) by an order dated 12th January, 1968, of the Settlement and Rehabilitation Commissioner, Lahore (Aunexure ‑G') be restored to him as the same has been cancelled on the erroneous assumption that the Martial Law Authorities have included the land in question for confiscation.

2. The learned Settlement Cet1rtissioner vide his ex parte order dated 18‑6‑1968, and without issuing notice to the interested parties was pleased to accept the application and ordered that unless and until there were specific orders regarding cancellation of the land, the land of respondent No. 2 should be restored to him. The learned Settlement Commissioner also observed in the impugned order that the copy of the Martial Law Order produced before him did not show that the land in question was included, in the list of lands to be confiscated. The observ ations of the learned Settlement Commissioner are contrary to the report of the Judge Advocate‑General Headquarters, Rawalpindi Cantt. to whom an application was sent by the petitioner on 8th of October, 1968, to confirm whether the land in Khata No. 141, was included in the confiscatory order of the Special Military Court or not. The reply received by the petitioner from the Judge Advocate‑General, a copy of which has been placed on record, and has also been referred to in the interim order dated 4th of November, 1968 of my learned brother K. E. Chauhan, J. as he then was and now a Judge of the Supreme Court, reads thus

The proceedings reveal that land in Khata No. 141 Chak No. 19 GB formed part of the charge under CMLAR‑49 against convict Murad Khan. The accused was found guilty on this charge. The Special Military Court consequently confiscated 2860 Units at RL 11 No. 141 of Chak 19 GB on 1‑7‑1960.

3. Learned counsel for the respondent has not placed any docu ment to rebut the report of the Judge Advocate General or a copy of the Martial Law order purported to be produced before the Settlement Commissioner on the basis of which he passed the impugned order on 18‑6‑1968,

4. Learned counsel for the petitioner has contended that irrespec tive of the factual controversy whether the land was included or not included in the list issued by the Martial Law Authority indicating confiscation of the land in dispute, the impugned order dated 18th June. 1968 of the learned Settlement and Rehabilitation Commissioner, Lahore is ex facie without lawful authority, inasmuch, as on the basis of a miscellaneous application, the learned Settlement Commissioner was not competent to re‑open the case behind the back of the affected persons including the petitioner and that in any case, a miscellaneous application was not competent in law for seeking review or modification of the earlier order dated 12th of January, 1968 (Annexure G') which attained finality and was not open to interference by means of a mis-ceallaneous application.

5. The learned counsel for the respondent frankly conceded that the order dated 18‑6‑1968 of the learned Settlement and Rehabilitation Commissioner was without lawful authority. 1 am also inclined to agree with his views. The learned counsel for the respondent, however, submit ted that in any case, the respondent is bona fide purchaser from Mangli the original allottee and, therefore, should not be allowed to suffer for no fault of his. 1n the alternative the learned counsel for the respondent submitted that it is a fit case to be remanded for enquiry and decision to the authorities for disposal afresh in accordance with law. The learned counsel for the petitioner has opposed the prayer of the respondent for remanding the case or the ground that in paragraph 6 of the writ petition read with its ground (c), the petitioner specifically pleaded that the purchase of land in dispute, by respondent No. 2 from Manali was based on fraudulent representation and that there was neither any registered deed executed by the said Mangli in favour of the respondent nor any mutation indicating the transfer made in favour of the respondent and that no such document has been placed even on the record of this Court by the respondent. On the contrary, he has given an evasive reply in ground (c) of the written statement wherein it has been merely stated that respondent No: 2 is at all not affected by any action taken against Mangli and Martial Law Order itself excludes the land from the name of respondent No. 2. The learned counsel for the respondent was also unable to make any statement at the Bar regarding the quantum of transfer price in consideration of which the alleged sale transaction was executed by the said Mangli in favour of respondent No. 2.

6. I am therefore, inclined to agree with the arguments of the learned counsel for the petitioner and I am of the ‑ view that this is not a fit case for remand.

7. In view of the above, it is hereby declared that the impugned order dated 18‑6‑68 (Annexure F) of respondent No. 1 is without lawful authority and of no legal effect. The Writ Petition is accepted with costs.

M.Y.M. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.