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Writ Petition No, 827i'R of 1980, decided on 11th June, 1983.
‑‑ Art. 199‑Writ petition ‑Disposal on admitted facts and docu ments‑Disputed facts, held, cannot be gone into writ jurisdiction.
‑‑ S. 2‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10, 11 & 14‑A‑Constitution of Pakistan ( 1973), Art. 199 Mukhbari application‑Unsigned and undated‑Made against a dead claimant allottee who was proceeded ex parts without implead ing his legal heirs and land cancelled from his name and allotted to informer by Settlement authorities four and a half years after repeal of Evacuee Laws--Settlement authorities held, had no jurisdiction to cancel land confirmed to claimant allottee and re‑open matter- Order of allotment in name of informer without lawful effect- Proceeding against dead person a nullity‑Mukhbari application against dead person not pending proceeding within meaning of S. 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
1980 C L C 1370 ; P L D 1979 Kar. 706 ; 1981 S C M R 899 and Shattab Khan v. A. C./Collector, Kasur and another N L R 1981. U C 28 rel.
‑‑ Ss. 10, 11 & 14‑A ‑‑ Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑Constitution of Pakistan (1973). Art. 199‑Mukhbari application against dead allottee‑Manipolation of informer in connivance with Settlement staff‑No date or signature of informer appearing either on application or on wakalatnama attached therewith in order to defeat Evacuee Property and Displaced Persons Laws (Repeal) Act‑Order of allotment in favour of informer obtained fraudulently and ex parte against dead allottee without impleading his heirs‑Order of allotment, held, without lawful authority.
Sh. Nazir Ahmad and Sh. Mazhar‑ul‑Haq for Petitioners.
A. N. Qaisrani for Respondent No. 1.
Mian M. Dilawar Mahmood for Respondent No. 2.
Sh. Muhammad Hanif for Respondent No. 3.
Date of hearing : 11th June, 1983.
This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby, Muhammad Nawaz and 4 others, the petitioners want this Court to declare the order, dated 29th November, 1978 passed by Settlement Commissioner (Lands) Punjab, Lahore, to be without lawful authority and of no legal effect.
2. The facts leading upto this petition, in brief, are that on 10th November, 1965 the disputed land measuring 2 kanals and 6 marlas situated in village Taraf Ismail, Multan was proposed for allotment to Rehmat Ali by Mian Abdul Razzaq Assistant Settlement Commissioner, Multan, as he then was and confirmed by learned Additional Settlement Commissioner (Lands) on 13th November, 1965 at Khata No. 41 of Rehmat Ali (since deceased 1. Thereafter a joint Mukhbari application (certified copy Annexure 'D') purporting to have been filed by Muhammad Iqbal, Ahmad Saeed, Khushi Muhammad and Muhammad Sharif, father of respondent No. 2, Arif Mohsin, Mst. Hajiran and Msr. Rehmi against Arif Khan, Rehmat Ali, claimant allottee the father of the petitioners Nos. 3 to 5) and 7 others was moved before Settlement Commissioner with the power of Chief Settlement Commissioner, Lahore. It is to be noted that the application does not bear the date and signature thumb‑impression of Muhammad Sharif, the concerned Informer. On this application, Abdul Razzaq, Settle ment Commissioner, respondent No. 1, the same Officer, who had proposed the allotment in favour of Rehmat Ali claimant allottee on 10th November, 1965 cancelled the allotment from the name of Rehmat Ali claimant allottee vide impugned order and further ordered the same to be allotted to Muhammad Sharif Informer, the father of Bashir Aliinad, respondent No. 2 against his unsatisfied claims, Resultantly, the allotment in favour of Rehmat Ali claimant allottee was canceled on 16th December. 1978 and the and was confirmed in favour of Muhammad Sharif, on 8th January, 1979. It has been alleged by Muhammad Nawaz and Dr. Muhammad Hayat Zafar, petitioners Nos. 1 and 2 that they had purchased the disputed land from the heirs of Rehmat Ali through registered sale‑deed, dated 15th June, 1967 and have raised constructions thereon.
3. The learned counsel for the petitioners has raised the following points;-----
(1) That Mukhbari application is false, collusive and was entertained by Settlement Department much after the repeal or Rehabilitation haw; through Ordinance XIV of 19')4 In fact no application against the claimant allottee was pending on the file of Settlement Authorities on 1st July, 1974‑
(2) That the application being against Rehmat Ali, a dead person, and the legal representative not brought on the record of the Settlement Commissioner, the application and the proceeding therein were nullity in the eye of law.
(3) That although Rehmat Ali was dead on 10th November, 1965 when the allotment was proposed in his name, yet the Informer by fraudulently impleading Rehmat Ali, a dead person, in Mukhbari application obtained an ex parte order of the cancellation of his allotment.
As against this, the learned counsel for respondents Nos. 2 and 3 have supported the impugned order. They submitted that the petition involves disputed questions of facts and as such is not maintainable ; that respondents Nos. 3 to 5 are not the sons of Rehmat Ali/claimant allottee ; that the peti tioners Nos. 1 and 2 have not purchased the disputed land inasmuch as despite denial of transaction in the reply they did not place on the record registered sale‑deed in their favour ; that original Mukhbari application titled Iqbal and others v. Eidu and others' was filed much before 1st July,1974 and that Mukharri application (Annexure 'D') was taken from that case then filed.
Mr. Abmad Nawaz Qaisarani, the learned counsel for Settlement Department after consulting the relevant file has frankly admitted that there is nothing on the file to show that Mukhbari application or proceed ings therein were pending on the file of Settlement Commissioner on 1st July, 1974 ; that Mukhbari application on the record is neither dated nor bears the signature/thumb‑impression of Muhammad Sharif, the Informer ; that the Wakalatnama attached with the proceedings does not have the signature of Muhammad Sharif and that Mukhbari application was filed against a dead person.
4. I have considered the arguments advanced by the parties in the light of the record annexed with at the time of institution of writ petition. Since it is a writ petition and the disputed facts cannot be gone into by this Court, I propose to dispose of the petition on the admitted facts and documents. From the statement of facts detailed above, it is very much clear that the following facts, that the disputed land was proposed and con firmed against the claim of Rehmat Ali ; that on 10th November, 1965 and' 13th November, 1965 when the land was proposed and confirmed, Rehmat Ali was already dead.; that Mukhbari application was filed‑ against a dead person ; that in the Mukhbari application, the fact that Rehmat Ali was at dead person was not disclosed ; that the summons were issued against a person and then he was proceeded ex parte ; that throughout the Mukhbari proceedings which concluded on 29th November, 1978 when the impugned order was passed, the legal heirs of claimant allottee were not brouht one the record ; that it was not the case of the Informer that Rehmat Ali died' without legal heirs; that certified copy Annexure D' at page 14 is a true copy of Mukhbari application available in the relevant file ; that this applica tion which culminated in the impugned order is undated ; that this applica tion is not signed/thumb marked by Muhammad Sharif, the concerned Informer, father of respondent No. 2 and that Wakalatnama attached with Mukhbari proceedings does not bear the signature/thumb‑impression of Muhammad Sharif, are the admitted facts of the case.
On the basis of these admitted and undisputed facts and documents, I am inclined to hold that the impugned order has been passed without lawful authority for three reasons
(1) That since the impugned order was passed after 4 years of the repeal of Evacuee Laws, including Displaced Persons (Land Settle ment) Act, 1958, and the Mukhbari application Annexure D' is undated, therefore, in the circumstances the onus shifts to the respondents to show that Mukhbari application was filed before 1st July, 1974 and was a "pending proceeding" within the mean ings of section 2(2) of the Evacuee Property and Displaced Persons (Repeal) Ordinance, 1974/Act, 1975. This section may be repro duced with advantage;
Section 2. Repeal of Certain Laws.‑(1) "The following acts and regulations are hereby repealed namely :‑------
(i) the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956).
(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956).
(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957).
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958).
(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958).
(vi) ............................................................................
(vii) ...................................... ......................................
.
(2) Upon the repeal of the aforesaid Acts and Regulations, all pro ceedings, which immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Pro vincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of:' such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed in the cases transferred under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."
The plain reading of this provision of law indicates that Settlement Laws having been repealed, no power vested in respondent No. 1 to cancel the order, dated 13th November, 1965 whereby the land was confirmed claimant allottee and that he could only proceed with and adjudicate appli cation pending on his file, on 1st July, 1974. In the case in hand, there is nothing to show that the application on the basis of which respondent No. 1 had invoked his jurisdiction to proceed with and passed the impugned order was a pending proceedings on 1st July, 1974. The learned counsel for the respondents Nos. 2 and 3 took up the plea that Mukhbari applica tion Annexure D' was in fact taken from the file of case 'Muhammad 1qbal and others v. Eidu and others', which was very much pending on the file of Settlement Commissioner on the target date, therefore, respondent No. 1 was quite competent to proceed with on the strength of Annexure D' and pass the impugned order. Although there was nothing on the record of this writ petition to show that the above‑referred case was actually pending on 1st July, 1974 yet in the larger interest of justice l gave two opportunities to the respondents to place on record the certified copies of that case and to substantiate the plea but they have miserably failed show that Mukhbari application, proceedings therein were pending before the Settlement Commissioner on 1st July, 1974. For all these reasons, I am constrained to hold that the Settlement Commissioner, respondent No. 1 possessed no jurisdiction to reopen the matter and cancel the same. The same view has been taken in cases reported as 1980 C L C 1370, P L D 1979 Kar. 706 and 1981 S C M R 899.
2. That admittedly Mukhbari application under' sections 10 11 and 14(1xA) of Displaced Persons (Land Settlement) Act was filed against Rehmat Ali who was already dead. It is now well‑settled that any proceeding taken against dead person would be nullity. Therefore, Mukhbari appli cation against a dead person could not be deemed to be a "pending proceed ing" within the meaning of section 2(2) of the repeal Ordinance/Act. On this score alone, it can be safely held that no legal and valid Mukhbari application was on the file of Settlement Commissioner/ Settlement Authorities on 1st July, 1974 and as such respondent No. 1 had no jurisdiction to re‑open question of the allotment/confirmation in favour of Rehmat Ali, the dead person. Reliance may be placed on Shattab Khan v. A. C./Collector, Qasoor and another (N L R 1981 U C 28). The observations made therein by his Lord ship Nasim Hasan Shah, J. may usefully be reproduced;
"The Mukhbari application under section 10/ 11 of the Displaced Persons (Land Settlement) Act was filed against Shattab Khan, who was already dead, Any proceedings taken against a dead person is a nullity. Consequently, the proceedings taken against Shattab Khan vide application, dated 10th June, 1974 had no legal validity in the eye of law and could not be deemed to be pending proceedings The proceedings that can be taken notice of are the proceedings taken in pursuance of the application submitted on 26th November, 1975 to bring the petitioners on record. In the said application, too as already noticed, they were described as the legal heirs of Shattab Khan whereas in fact they were the legal heirs of Kamlu deceased. Be that as it may, the present petitioners were ordered to be implead ed as parties vide order, dated 6th March, 1976. Thus the proceedings against them can be considered to have been initiated either on 26th November, 1975 when the application to bring them on the record was made, or on 6th March, 1976 when the said application was granted. See in this connection Chan Oil Mills v. Muhammad Zakria & Co. P I LID 1958 (W. P.) Kar. 510 and Reliance Bank Ltd. v. United Bank of India Ltd. P L D 1971 Dacca 1. By both these dates, however, the Displaced Persons (Land Settlement) Act, 1958 stood repealed and no reliance could be placed on any of its provisions. Hence the proceedings taken against the petitioners, culminating in the order passed by respondent No. 1 on 6th March, 1976 are without lawful authority and of no legal effect."
To my mind, the case of the petitioners stands on better footing inasmuch as in this case the legal representatives were not brought on the record through out the proceedings before the Settlement Commissioner.
3. That the proceedings culminated in impugned order are apparently nothing but result of Muhammad Sharif, the father of respondent No. 2, the alleged Informer's successful manipulation in connivance with Settlement staff. It is worth notice that in pursuance to order of O. S. D., dated 25th October, 1980 the following note has been given on the Mukhbari application, the certified copies thereof and even on the impugned order. (Note. Asal derkhawast Mukhbari Mashkook hai), Further, copy of Mukhbari application Annex. D' does not bear any date. The same is without signatures/thumb‑impression of Informer. The Wakalarnama attached wit Mukhbari application is not signed by Muhammad Sharif Informer. Although Rehmat Ali was dead yet application was given against hi without impleading his heirs and in this way, an order for ex parte proceed ings was obtained. The natural flow of these circumstances leads to the irresistible conclusion that purposely and collusively no date was put on the application in order to defeat the Evacuee Laws (Repeal) Ordinance an thereby the impugned order was obtained fraudulently. Strangely enough, the Settlement Commissioner, respondent No. 1 did not take any notice of these infirmities affecting his jurisdiction to take cognizance of the matte which were very much apparent on the face of record. For all these three reasons, the contentions raised by the learned counsel for the petitioners do not hold any water.
6. The upshot of the discussion is that this petition is allowed and the order of Settlement Commissioner, dated 29th November, 1978 is declared to have been passed without lawful authority and is, therefore, of no legal effect.
M. Y. H. Petition accepted.
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