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Writ Petition No.1276/R of 1978, decided on 20th May, 1986.
‑‑‑Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑Allotment of land; cancellation of‑‑Mukhbari, application against dead allottee‑‑Consequences of‑‑Mukhbari application against dead allottee admittedly being nullity, any subsequent prejudicial action taken against legal heir of such deceased allottee, sought to be made party in Mukhbari proceedings with mala fide intention, long after repeal of Evacuee Laws, held, would not validate ab initio void proceedings.
1983 C L C 2459 and 1983 C L C 2550 ref.
‑‑‑Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑Allotment of land, cancellation of‑‑Order passed by Notified Officer against co‑allottee‑‑Legality of‑‑Land in dispute having been allotted to deceased alongwith his respective family members‑‑Any order of Notified Officer wrongly assuming jurisdiction in matter, adverse to beneficiaries of allotment holding vested right in disputed land passed without impleading and without affording opportunity of being heard to such beneficiaries, held, would be illegal.
‑‑‑Art.199‑‑Evacuee Property and. Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑Constitutional jurisdiction, exercise of Notified Officer wrongly assuming jurisdiction in matter, passed order adverse to petitioner without impleading and affording opportunity of being heard to petitioner‑‑Such order passed violating rules of natural justice, was declared illegal by High Court in exercise of. constitutional jurisdiction.
Sh. Abdul Aziz for Petitioner.
Ch. Nisar Ahmad for Respondents Nos.3 to 6.
Date of hearing: 20th May, 1986.
This writ petition is directed against the order of a notified officer, dated 28‑7‑1977 whereby he purported to cancel the allotment from the name of a Jammu & Kashmir refugee in exercise of his powers under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958.
2. The brief facts of the case are that an area of 96 Kanals of land was allotted in the name of Muhammad Ali and his five family members in village Sanidanwala, Tehsil Daska District Sialkot by an order of A.R.C. (Land), dated 2‑5‑1959. There is no dispute between the two learned counsel in so far as this aspect of the matter is concerned.
3. On 30th March, 1974, a Mukhbari application was given by respondents Nos. 3 to 6 against Muhammad Ali son of Phoola and Mst. Aisha Bibi describing her as wife of Muhammad Ali. The notified officer accepted the Mukhbari application on 28‑7‑1977, cancelled the allotment and declared the property to be evacuee trust property.
4. At the hearing before this Court, both the learned counsel agreed that Muhammad Ali allottee had died in the year 1958. It appears that Muhammad Ali had given an application for allotment during his lifetime but it was finalised after his death.
5. On behalf of the petitioner who is stated to be the wife of deceased Muhammad Ali, it is being argued that Mukhbari application against a dead person is nullity. It is further submitted that the petitioner was not aware of the proceedings nor she ever moved any application for being impleaded as a party, but it was respondents who firstly produced a fictitious lady by the name of Aisha Khatoon showing to be wife of Muhammad Ali and subsequently moved an application on behalf of the petitioner with ulterior purposes.
6. Respondents Nos.3 to 6 are not the category of informers holding any claim and thus are not entitled to any benefit in respect of the land in dispute and no order in their favour has been passed by the notified officer giving them any benefit.
7. In so far as the proposition that a Mukhbari application against a dead person is nullity is concerned, there is ample case-law on this point. Reference may be made to 1983 C L C 2459 and 1983 C L C 2550. The mere fact that an application was sought to be moved on behalf of. Mst. Sardar Begum after the repeal of the Act allegedly by the respondents with mala fide intention would not legally alter the position because even if a legal heir was sought to be brought on record after the repeal of the Act, it could not validate the ab initio void proceedings.
8. Another important feature of the case is that the allotment was in the name of Muhammad All and his five family members. That being the admitted position of the case. I entertain no doubt in my mind that beneficiary of the allotment was Muhammad Ali as well as 5 family members. Therefore, it was incumbent upon the notified officer before assuming jurisdiction and trying to pass an order adverse to the petitioners to hear all of them and to afford them an opportunity to defend themselves. This unfortunately was not done. This also brings about a vitiative infirmity in the impugned proceedings.
For all that what has been stated above, the impugned proceedings and the order passed by the notified officer is hereby declared to be without lawful authority and of no legal effect. There shall, however, be no order as to costs.
H.B.T.
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