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- Ss. 10 & 11 read with Civil Procedure Code (V of 1908), O. I, r. 10 and Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. I (2)--Mukhbari application against dead person-After repeal of Act impleading legal heirs in Mukhbari application instituted against dead person-Legal heirs sought to be made party to proceedings long after repeal of Displaced Persons (Land Settlement) Act (XLVII of 1958)-Held Mukhbari application incompetent and no action prejudicial to legal heirs to be taken in pursuance thereof-Held further, Settlement. Department can seek redress of grievances in any court by instituting appropriate proceedings -Provisional Constitution Order (1 of 1981), Art. 9.

Ch. Azim-ud-Din for Petitioner.

Ch. Muhammad Nazir Ahmad for Respondents.

Date of hearing: 1st December, 1982.

This writ petition has been filed on the precise legal ground that the Mukhbari application filed on 78th June, 197.4 despite its inherent defects was instituted against a dead person.

2. The learned counsel for the petitioners has relied on the deci sion reported as N L R 1980 Civil 870 ( ) for the proposition that the proceedings instituted against a dead person is a complete nullity in law and that in a case the successor-in-interest of such a dead person was brought on record at a point of time when the law stood repealed, then on the basis of such incompetent proceedings, no action could validly be taken. The submission is that if the application .had been competently instituted and it had become a pending proceedings by virtue of Act XIV of 1975, then if in the meantime a respondent had died, the legal representatives, could be brought on the record and the competency of the proceedings in no manner would .be affected. A further proposition of law which has been relied upon is, that in so fax as the successor-in-interest of a deceased are concerned, the proceedings will be deemed to commence against them from the date when they were brought on record and notice was given to them. Seen in this light, it is contended that the legal heirs were sought to be made party to the proceedings long after the repeal of the Displaced Persons (Land) Settlement Act and since there were no pending proceedings, the exercise did not have the backing or sanction of law.

3. I have considered the submissions. There can be little dispute about the broad submission and it is also supported by the precedent cited.

4. However, on behalf of the Settlement Department, their learned Legal Adviser Ch. Muhammad Nazir Ahmad Khan has sought to take up a clear stand in the following terms. He submits that the intention of the Settlement Department was not to assume jurisdiction where the law denied it to them. In other words they had no intention to flout the law but he claims for the Department the right to have resort to such remedies at law which may be available to them should the Department come to the conclusion that it was an illegal usurpation or fraudulent claim to the evacuee property. He, therefore, frankly conceded in the peculiar circumstances of this case that no action would be taken against the petitioners in pursuance to the Mukhbari application dated 28th June, 1974 but at the same time he maintains that the Department being the custodian of the property it even under the repealed law is bound to keep the record straight and to examine the matter for the limited purpose of ascertaining whether the disputed proceedings or the resultant orders obtained are based on fraud He, therefore, further states that the petitioners have no locus standi to object to the Department's seeking remedies in proper forums of law should they stand so advised; it being an inalienable right of the Department. To elaborate he submits that it may be possible that the Department may decide to file a writ or a civil suit to seek redress.

5. I have considered the submissions of both sides. I think in so far as the petitioner's contention regarding in competency of the Mukhbari application is concerned, the matter rests beyond dispute. This is also fair stand taken by the learned Legal Adviser that in the peculiar fact and circumstances of this case the Mukhbari application would not be competent. The writ petition is therefore, liable to be accepted to the extent that no action prejudicial to the petitioners shall be taken in pursuance to the aforesaid Mukhbari application dated 18th June, 1974, which was instituted against a dead person. However, I would also like to make it clear that acceptance of this writ petition would not have the effect of depriving the Department of seeking their redress of grievance should they approach any Court by instituting appropriate proceedings.

6. In the light of what has been stated above, the writ petition is accepted, the impugned proceedings are declared to be without lawful authority and of no legal effect. However, there will tie no order as to costs.

.Petition accepted.

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