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Constitutional Petitions Nos. 168 and 169 of 1976, decided on 12th September, 1984.

---Art. 9--Constitutional petition--Record-of-rights--Deputy Commis sioner/Collector ordering correction in record of rights--Petitioners afforded proper opportunity of being heard--Order impugned under writ jurisdiction without availing of remedies by way of appeal/revision- Dismissed being without any substance.

G.M. Qureshi for Petitioners.

Muhammad Ali Shaikh for Respondent No. 1.

Nemo for remaining Respondents.

Date of hearing: 12th September 1984.

The above two Constitutional petitions have been filed to challenge the order of Deputy Commissioner Dadu dated 7th April, 1976, whereby he had cancelled the allotment of Survey Nos. 558 and 578 which stood in the name of allottees Jaggoo and Baggoo and mutated the same in the name of claimants Kazi Kaleemullah, Fazlullah and Mst. Memoona Bibi, who are respondents Nos. 2, 3 and 4 respectively in each of the two petitions.

2. The facts of the case of Constitutional Petition No. 168 of 1876 are that Survey No. 558 situated in Taluka Dadu was allotted by the Land Settlement Authorities to petitioner Jaggoo son of Bahawal on 10-5-1963. He sold this survey number to petitioners Rasool Bux, Buxal and Lai Bux sons of Rahim Dad by a registered sale-deed on 14-11-1974. On the basis of this sale-deed mutations were effected in favour of the petitioners Nos. 1, 2 and 3 on 20-5-1975 in the record of rights.

3. Respondent No. 1 Muhammad Paryal, who claimed to be hari of this land, made an application to the Deputy Commissioner on 1-3-1976 disclosing therein that the survey number in dispute i.e. S. No. 558 was wrongly allotted to Jaggoo and that the purchasers were trying to oust him from the said land. On this application the Deputy Commissioner issued notices to the petitioners and perused the record from which it transpired that the survey number in dispute had already been trans ferred by the Land Settlement Authorities to respondents Nos. 2, 3 and 4 on 27-7-1980 i.e. three years prior to the allotment in favour of Jaggoo. The Deputy Commissioner, respondent No. 5 cancelled the mutations in favour of Rasool Bux, Buxal and Lal Bux sons of Rahim Dad and ordered that the record be corrected and mutated in the name of prior transferees namely respondents Nos. 2, 3 and 4. This order has been challenged by the three sons of Rahim Dad, Jaggoo and Badruddin (who is also purchaser from Jaggoo).

4. The facts in the other petition namely Constitutional Petition No. 169 of 1976 are also the same except that the survey number in dispute is 578 situated in Taluka Dadu which was allotted by Settlement Authorities to Baggoo (brother of Jaggoo) in the year 1963. He sold this survey number to Rahim Dad, petitioner No. 1 on 5-10-1974 by a registered sale-deed. Mutations in favour of Rahim .Dad were entered in record of rights on 20-5-1975. These mutations were also cancelled by the impugned order dated 7-4-1976 on the same application of Muhammad Paryal respondent No. 1. In both the cases the petitioners had filed appeals before Additional Commissioner-cum-Settlement Commissioner (Land) Hyderabad but the same were dismissed by one order dated 24-4-1976 on the ground that the appeal was not maintainable.

5. Mr. G.M. Qureshi has challenged the impugned order of respondent No. 5 dated 7-4-1976 mainly on the ground that after repeal of the Settlement Laws, the Settlement Authorities had no jurisdiction to cancel the allotment of evacuee land as they had become functus officio.

6. The argument is without any substance, because the Deputy Commissioner, while passing the impugned order was exercising powers as a Collector under the Land Revenue Act, 1967 for correction of mutations in the record of rights. He was not exercising powers as a Land Settlement Commissioner. Under the revenue law the Deputy Commissioner was entitled to order correction of record of rights whenever it was brought to his notice that an existing mutation is incorrect or is based upon fraud or is otherwise liable to be corrected. He, therefore, did not exercise any power under any of the repealed Settlement laws.

7. The fact is that the survey numbers in dispute were already allotted to respondents Nos. 2, 3 and 4 in the year 1960. The same survey numbers i.e. 558 and 578 were transferred to Jaggoo and his brother Baggoo respectively in the year 1963 i.e. after 3 years of the first transfer in favour of respondents Nos. 2, 3 and 4. The prior transfers were not cancelled. Hence the subsequent transfers of the same survey numbers to Jaggoo and Baggoo were ineffective, inoperative and void ab initio. The Deputy Commissioner only took notice of this illegality and in exercise of powers vested in him as Collector under the Land Revenue Act, ordered that the record of rights be corrected in the name of the persons who were the rightful transferees from the Settlement Authorities and which transfer had not been cancelled or varied by any authority.

8. The next objection of Mr. G.M. Qureshi against the impugned order is that the petitioners were not afforded proper opportunity of being heard. This objection is also without any substance. In Consti tutional Petition No. 168 of 1976 in which the petitioners are three sons of Rahim Dad, namely Rasool Bux, Buxal and Lad Bux and two more persons namely, Jaggoo the vendor of Survey No. 558 and Badruddin. Now the notice which is Annexure 'I' to the Petition was issued in the name of Rasool Bux, Buxal, Lal Bux, the sons of Rahim Dad and to Muhammad Paryal and Badruddin. The main contesting parties were three sons of Rahim Dad who were duly notified about the date of hearing and the impugned order shows that the representatives of the purchasers were also present. In any case it shall be presumed that the purchasers were duly served in the normal course and were afforded an opportunity of being heard. The fact that these purchasers had also filed an appeal before Additional Settlement Commissioner, further shows that they were present before the Deputy Commissioner when the impugned order was passed on 7-4-1976.

9. The same two objections have been taken in respect of the mutations of Survey No. 578 in Constitutional Petition No. 169 of 1976. The title of the petition shows that petitioner Baggoo is represented through his attorney Muhammad Yar but in the other petition his brother Jaggoo is represented by his attorney Muhammad Paryal. This Muhammad Paryal was one of the persons to whom notices were issued of the date of hearing on which the impugned order was passed. Now Rahim Dad petitioner in this petition is father of petitioners Nos. 1, 2 and 3 in the other petition. Notice was duly issued to his three sons. The impugned order shows that representatives of the purchasers were present which show that Rahim Dad was also represented before the Deputy Commissioner by his three sons. The impugned order further' shows that Muhammad Paryal and Badruddin were in fact attorneys of Jaggoo and Baggoo. These two attorneys were also issued notices. The petitioners in this case had also filed appeal before Additional Commissioner (Land Settlement), Hyderabad.

10. I am, therefore, satisfied that proper opportunity was given to all the petitioners in both the petitions and that they had availed of this opportunity, appeared before the Deputy Commissioner and had contested the case. They cannot now take the plea that no proper notice was issued to them.

11. The above objections are liable to be dismissed for the further reason that the petitioners should have availed of the remedies available to them under the Land Revenue Act. The impugned order of the Collector regarding correction of mutations was appealable to the Commissioner. They had further opportunity of filing revision or appeal before the Board of Revenue, in case the order of Commissioner had been unfavourable to them.

For the above reasons I hold that these petitions have no substance. Both the petitions are dismissed with no order as to cost.

M. I. Petitions dismissed.

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