Find a Lawyer

Writ Petitions Nos.690/R, 813/11 of 1977 and 689/11 of 1978, decided on 14th May, 1986.

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Allotment of land, cancellation of Rules of natural justice, violation of‑‑Order of Settlement Authority cancelling allotment of land on Mukhbari application; passed without impleading and without notice to bona fide purchasers of such land for valuable consideration, held, was liable to be struck down‑‑High Court, accepting constitutional petition set aside order of Settlement Authority and remitted case for decision in accordance with law after hearing petitioners/ bona fide purchasers, who were entitled to be heard.

S. Zulfiqar Ali Shah, etc. v. Ch. Muhammad Hassan Settlement Commissioner W. Pakistan, etc. P L D 1971 Lah. 108 ref.

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑Allotment of land, cancellation of‑‑Service of notice‑‑Proof‑‑Respondents failed to establish service of notice of appearance on petitioners through newspaper by producing any tangible proof‑‑Such publication of notice even if assumed to have been made, held, would be of no consequence without first resorting to service of notice through direct process‑‑In absence of any proof of service of notice on petitioners either through publication or direct process, petitioners would be deemed to have been condemned unheard.

Muhammad Siddiq v. Officer Incharge, Central Record Office, Lahore etc. 1984 S C M R 319 ref.

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Allotment of land, cancellation of‑‑Settlement Authority in its order for cancellation of allotment neither gave any finding about alleged excess allotment nor determined as to what was actual entitlement of Allottee and that if there was any excess allotment to actual entitlement, then which allotment was liable to be cancelled‑ such non‑speaking and vague order, held, 'was liable to be set aside.

‑‑Art.199--‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑Allotment of land, cancellation of‑‑Jurisdiction 'If Notified Officer‑‑Notified Officer appointed for one Division to deal with allotment of land and Mukhbari applications in that Division, 'held, td no jurisdiction to probe into allotment pertaining to a different Division.

----‑Art .199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Allotment of land, cancellation of‑‑Constitutional jurisdiction, exercise of‑‑Matter of controversy between parties requiring detailed inquiry which might be done by taking evidence of parties‑‑High Court in absence of complete record of Settlement Department remitted case to forum of exclusive jurisdiction for adjudication afresh in accordance with law.

Islam Ali Qureshi for Petitioner.

Ahmad Nawaz Qaiserani for Respondents Nos.1 and 2.

Khadim Nadim Malik for Respondents Nos.4 and 5.

Dates of hearing: 13th and 14th May, 1986.

By this judgment, I propose to deal with Writ Petition No.690/R of 1977 titled Muhammad Akram Khan etc. v. The Settlement Authority, Writ Petition No.813/R of 1977 titled Rahim Bakhsh, etc. v. Settlement Commissioner, Multan, etc. and Writ Petition No.689/R of 1978 titled Ghulam Hussain v. Additional Commissioner, etc. as all the three of them are directed against the same order of the Settlement Commissioner (Land), Multan Division, Multan, dated 15‑3‑1977 and a supplementary order of the said Officer passed on the same date.

2. The facts necessary for the purposes of this Judgment briefly stated are that one Abdul Ghani son of Nabi Muhammad held verified claims Nos.315 and 316 with a total of 3,521 Produce Index Units as detailed below:

Milkiyati Bila Rehn-------------57 PIUS

Milkiyati Rehn-----------------2796 PIUS

Zair Maroos------------------- 668 PIUS

These units were taken to District Dera Ghazi Khan which is a non‑congested area. On the basis of the above verified units Abdul Ghani, respondent No.3 herein, was allotted land in various villages as under:‑--

Before the above allotments were made in favour of Abdul Ghani respondent he had been allotted land in Tehsil Depalpur, District Sahiwal (now District Okara) which according to the petitioners was in village Katcha Pucca and was cancelled before the transfer of units to District D.G. Khan. Land allotted in favour of Abdul Ghani respondent as above through sales trickled down to the petitioners in the three writ petitions under consideration as under:‑----

All the petitioners in the three writ petitions claim to be bona fide purchasers for valuable consideration and in possession of their respective areas which they have cultivated and brought under plough with hard labour and huge expense as these were allegedly mostly unculturable at th‑e time of purchase.

The respondents have, however, asserted on the factual plane that in addition to the allotments made in the name of Abdul Ghani, respondent in the District of Dera Ghazi Khan, as detailed above, Abdul Ghani was also allotted land equivalent to 264 produce index units in Village Phulerwan Kamboh, Tehsil Depalpur, District Sahiwal (now District Okara) against RL No.342 which allotment is allegedly still existing

It has also been asserted that allotment was obtained by Abdul 6hani in village Mahtabwala, Tehsil Depalpur, District Sahiwal (now District Okara) equivalent to 547 produce index units.

The respondents also allege that land equivalent to 161 produce index units was also confirmed in favour of Abdul Ghani in Mauza tiazara Pundit Jiwan Ram, Tehsil Minchinabad, District Bahawalnagar against RL‑II No.15.

Mst. Ahmadi Begum and Haji Amir Hassan, respondents arrayed Nos.4 and 5 in Writ Petition No.690/R of 1977, at Nos.6 and 7 in "it Petition No 813/11 of 1977, and at Nos.2 and 3 in Writ Petition 689/R of 1978 made a Mukhbari application under sections 10/11 of Displaced Persons (Land Settlement) Act, 1958 for cancellation of the allotment of agricultural land confirmed in the name of Abdul Ghani son of Nubi Muhammad deceased in the Districts of Sahiwal, Bahawalnagar and Dera Ghazi Khan alleging that .these allotments have been secured by misrepresentation and fraud and highly excessive area has been allotted to him with full ownership even against Milkiyati Rehn and Zair Maroos units without payment of prescribed dues. This application was made to the Chief Settlement Commissioner on 14‑2‑1974 with the further prayer to allot the land to them that may be cancelled from the name of Abdul Ghani. It was also stated in the said application that the allotments obtained by Abdul Ghani had been mutated in favour of respondents Nos.2 to 5 in the said application to save the allotments from cancellation.

None of the present petitioners were impleaded as respondents although the mutations of sale in their favour had been effected long before the filing of the Mukhbari application and their names, existed in the relevant record.

The Mukhbari application of the respondents remained with the Chief Settlement Commissioner and according to the impugned order it was processed for some time by the Deputy Secretary (Rural) to the Chief Settlement Commissioner, whereafter, it was entrusted to the (Consolidation), Multan Division exercising the powers of Settlement Commissioner (Land), Multan for disposal.

The learned Settlement Commissioner (Land), Multan Division, by his impugned orders both, dated 15‑3‑1977, directed that the excess allotments made in Dera Ghazi Khan in the name of Abdul Ghani be cancelled and that the area so vacated be allotted to the Mukhbars against their unsatisfied claims which are said to be pending partly in D . G . Khan and partly in Sahiwal.

Feeling dissatisfied the petitioners in the three writ petitions have come up to this Court in the present, constitutional petitions.

3. The learned counsel for the petitioners in Writ .Petition No.690/R of 1977 contended.---

(i) that the learned Settlement Commissioner, Multan was only a Notified Officer for Multan Division and, therefore, could not probe into the allotments in favour of Abdul Ghani which fell in two Divisions and that this matter could only be dealt with by the Deputy Secretary (Rural), Board of Revenue, Punjab (Settlement Rehabilitation Wing), Refers to Notification No.296 (Misc.) Admin. 170/74 issued in the Gazette Punjab Extraordinary on 16‑11‑1974 in pursuance of Evacuee Property and Displaced (Repeal) Ordinance, 1974;

(ii) that there is no specific finding given by the learned Settlement Commissioner in the impugned order in respect of non‑payment of mortgage money.

This finding, it was submitted, is otherwise erroneous as the mortgage money had been deposited on 5‑6‑1965, which fact could be ascertained from the record of the Department and a further sum had been deposited by the petitioners which in fact is duplication of deposit under orders of the Settlement Commissioner himself passed on 30‑12‑1976. It was also asserted that this finding of the learned Settlement Commissioner is otherwise also violative of section 14‑A of the Displaced Persons (Land

Settlement) Act and the proviso added thereto subsequently; and

(iii) that possession of the land in dispute is admittedly with the petitioners since 1974 and no ejectment order had been passed against them till the enforcement of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 and, therefore, they were entitled to the purchase of the said land as provided by section 3 of the said Ordinance, since repealed by the Act of 1975 which aspect of the matter has not at all been adverted to by the Settlement Commissioner.

4. The learned counsel for the petitioners in Writ Petition No.831/R of 1977 raised the following contentions:‑

(a) that the petitioners were neither made a party to the proceedings before the Settlement Commissioner nor were they given notice nor an opportunity of being heard. He contended that such an order passed against the petitioners who are bona fide purchasers for valuable consideration is a nullity and cannot affect the rights of the petitioners. Reliance was placed in support of the above contention on S. Zulfiqar Ali Shah, etc. v. Ch. Muhammad Hassan. Settlement Commissioner W. Pakistan, etc. reported as PLD 1971 Lah. 108;

(b) that the basis of the impugned order is that the allotment had not been obtained by the claimant himself or through his Mukhtars or through his successors‑in‑interest so far as these pertain to District Dera Ghazi Khan and since it is also not known whether the mortgage money had been paid. This finding, he urged, is wholly without any legal basis as there was no requirement that the allotment should have been obtained in the presence of the claimant, his Mukhtar or successors‑in‑interest and that as provided by para 68‑A of the Rehabilitation Settlement Scheme the only thing to be seen for making an allotment against units is the correctness of entitlement;

(c) that there is no reason at all given for directing cancellation of the allotments and. no findings have been given nor any inquiry made as to the actual entitlement of Abdul Ghani and about the alleged excess allotment; and

(d) that it is well settled that in cases of excess allotment that the actual entitlement it is the last allotment which has to be cancelled. There is no determination as to which was the last allotment and even on the own showing of the learned counsel for the Department the allotment in a village of Tehsil Minchinabad of District Bahawalnagar had been made in 1973 which obviously is about 10 years after the allotments made in Dera Ghazi Khan which were made during the years 1961‑64.

5. The learned counsel for the writ petitioners in Writ Petition No.689/R of 1978 adopted the submissions made on behalf of the petitioner in .the other writ' petitions and further contended that so far as the petitioners of this writ petition were concerned the mortgagee rights had been converted to proprietary rights as far back as 27‑5‑1970 which is apparent from Annexure E/1 of the writ petition. He also contended that the petitioners had acquired rights by purchase for valuable consideration as far back as 1966 and their condemnation without hearing is highly unjustified and illegal.

6. On the contrary, the learned counsel for the Department submitted that the petitioners in W.P. No.690/R of 1977 did appear and were heard in the proceedings culminating in the impugned order. As regards others it was contended that they did not appear despite publication of notice in the daily "Nawa‑i‑Waqt" issued before the date of hearing. He has placed on record just a photostat of some publications which does not even give the name of the newspaper in which it was published. The learned counsel, however, conceded that the order passed is not a speaking order and that there is no determination of the exact excess allotment as compared with the actual entitlement.

On the jurisdictional point, the learned counsel for the Department contended that since the allotment of one Division only was in dispute it could be decided by the Settlement Commissioner, Multan as I3era Ghazi Khan then fell within this Division.

7. The learned counsel for the Mukhbar respondents, namely Mst. Ahmadi Begum and Haji Amir Hassan very candidly submitted that neither the correct entitlement of Abdul Ghani had been determined through the impugned order nor the excess allotment was brought out and that the order being not a speaking order the case is one which needs to be remanded for effectual adjudication of the controversy involved to bring an end to this protracted litigation.

8. The learned counsel for the petitioners, in reply, contended that it has not been correctly asserted by the learned counsel for the Department that the disputed allotment of Abdul Ghani was only of D.G. Khan District.

9. The learned counsel for the petitioners in W.P. No.813/R of 1977 further submitted that apart from the position that no newspaper in which the alleged notice in the name of the respondents had been published had been brought on record and only a photostat on a plain paper has been produced which does not establish the publication of notice, publication in a newspaper otherwise also without first resorting to service through the direct process has been held to be of no consequence. He referred to Muhammad Siddiq v. Officer Incharge, Central Record Office, Lahore etc. reported as 1984 SCMR 319.

10. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioners have force. It has been successfully established by the petitioners in W.P. No. 813/11 of 1977 and W.P. No.689/R of 1978 that the impugned orders had been passed at their back without notice to them and without affording them an opportunity of hearing. In fact it was the duty of the Mukhbar to have impleaded the petitioners in his application when their names existed in the relevant record as purchasers for the last about 10 years, Apart from the fact that publication of notice against them in the newspaper has not been established by production of any tangible proof the said publication even if assumed to have been made would be of no consequence on the principle laid down in 1984 SCMR 319, especially when the Department despite being in possession of the relevant record has neither shown that the publication allegedly made was in fact made in some newspaper nor have they shown from the record that any direct notice was issued to any of the petitioners. The impugned order is, therefore, liable to be struck down on this ground alone.

11. Yet another important aspect of the matter which has prevailed with me to set aside the impugned order is the admitted fact at all ends that the impugned order is not a speaking order, that it has given no finding about the alleged excess allotment, that it has not determined as to what was the actual entitlement of the said Abdul Ghani and that if there was any excess allotment than the actual entitlement then which allotment was liable to be cancelled. The finding in the impugned order that it is also not known as to whether the mortgage money has been paid for the area allotted against such right is again a vague finding and in the light of the documents placed oh record as Annexures M and N which are Treasury Challans of deposits made on 5‑6‑1965 and 30‑12‑1976 as the mortgage money the finding appears to be without basis and thus cannot be maintained.

12. Before parting with the case, it may also be observed that the contention of the learned counsel for the Department that the Settlements Commissioner, Multan was competent to decide the matter as the disputed allotments related to District Dera Ghazi Khan only is not well‑founded. A perusal of the Mukhbari application clearly shows that allotments of Abdul Ghani which were disputed as obtained fraudulently and by misrepresentation and which were questioned through the said Mukhbari application pertain to all the three Districts viz. Sahiwal (now District Okara). Dera Ghazi Khan and Bahawalnagar. The impugned orders, therefore, are liable to be struck down as having been passed without jurisdiction.

13. I would have decided the controversy between the parties myself but for want of complete record of the Department and in view of the fact that it requires a detailed enquiry into factual disputes between the parties which may require leading of evidence by them I think that this is a fit case in which matters in dispute should be remitted to the forum of exclusive jurisdiction for adjudication afresh in accordance with law after setting aside the impugned orders. This course has not only been suggested by he learned counsel for the Mukhbar respondents but is also acceptable to the petitioners.

14. In view of the foregoing discussion allowing these petitions, I set aside the impugned orders of the .learned Settlement Commissioner (Land), Multan Division, Multan both, dated 15‑3‑1977 and remit the case to the learned Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing), with a direction to either decide the matter himself H' competent to do so or entrust it to the Notified Officer who is competent to decide the controversy in which the allotments in dispute now spread over three or more Divisions of the Province.

The parties have been directed to appear before the learned Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing), Lahore on 30‑6‑1986.

In the attendant circumstances of the case, the parties are left bear their own costs.

HJ.B.T Petitions allowed.

Find a Lawyer Near You

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