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Writ Petition No. 120‑R of 1979, decided on 1st March, 1986.

‑‑‑S. 2‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Mukhbari application‑‑Cancellation of land‑‑Land cancelled from name of petitioner as a result of Mukhbari application‑ ‑Mukhbari proceedings showing that Additional Settlement Commissioner had ordered that petitioner be served through separate registered A/D notice but office issued a joint notice in utter disregard of order‑‑On report of postman that petitioners were not available, Additional Settlement Commissioner, after publication of notice in daily paper, proceeding ex parte and passing order of cancellation of land‑‑Held, effective measures were not adopted by Additional Settlement Commissioner for service of notice of Mukhbari application on petitioners and no care was exercised to obtain their correct address and that he had not given any cogent reasons for his satisfaction that petitioners could not be served in ordinary usual manner, petitioners as such were condemned unheard‑ Order of cancellation was declared to be without lawful authority and of no legal effect and case remanded for decision afresh in accordance with law after hearing parties.

A.R. Shaukat for Petitioners.

Abdul Majid Khan with Ch. Muhammad Nazir Ahmad for the Settlement Department.

Nemo for the Remaining Respondents.

Date of hearing: 1st March, 1986.

Through this Constitutional Petition Khushi Muhammad and 3 others, the petitioners want this Court to declare the orders, dated 5‑2‑1978 and 17‑1‑1979 passed by Additional Settlement Commissioner (L) and Settlement Commissioner, Lahore, respondents Nos. 1 and 2, to be without lawful authority and of no legal effect.

2. The dispute relates to the transfer of land to the extent of 1350 P.I. Units situated in village Junike, Tehsil and District Kasur. The disputed land was originally allotted to Fateh Muhammad, father of the petitioner who was a claimant displaced person. His claim was verified and his entitlement in the terms of P.I. Units was calculated at 8760 inclusive of 25% usual Beshi. Thereafter, the land measuring 945 Kanals equivalent to 7806 P.I. Units was confirmed in his favour on 14‑7‑1962 by D.R.C. On 3‑1‑1952, one Haji Muhammad Sadiq had got some land of Fateh Muhammad transferred in his favour by the order of Additional Commissioner (Reh.) which was, however, set‑aside by Additional Settlement Commissioner on 1‑12‑1960 and entire land verified by the Central Record Office remained intact in the name of Fateh Muhammad, father of the petitioner. The respondents filed writ petition which was also dismissed. The L.P.A. filed by them was also dismissed. The learned Supreme Court, remanded the case to Settlement Commissioner for fresh decision. On the death of Fateh Muhammad, the land was mutated in favour of the petitioner on 12‑10‑1970. It so happened that Haji Jamal Din, predecessor‑in‑interest of respondents Nos. 3 to 13 filed application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act 1,958 against the petitioners. The Additional Commissioner vide ex parte order dated 5‑2‑1978 cancelled the land to the extent of 1350 Units from the name of the petitioners. The petitioners filed application before Settlement Commissioner, Lahore for setting aside the ex parte order dated 5‑2‑1978, which was dismissed on 17‑1‑1979, hence this petition.

3. Learned counsel for the petitioners mainly contended that the Mukhbari application was decided at the back of the petitioners without providing them opportunity of being heard. Conversely, the learned counsel for the respondents have supported the impugned order.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that in the Mukhbari proceedings the Additional Settlement Commissioner had ordered on 11‑8‑1978 that the respondents therein (present petitioners) be served through separate registered A/D. notices. Strangely enough the Office issued a joint notice to the petitioners in utter disregard of the order dated 11‑8‑1978. The Postman reported on the envelope that:‑--

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On this the learned Additional Settlement Commissioner directed that respondents therein (present petitioners) be served through publication of notices in a daily paper West Pakistan and after the publication of the notices in the said paper, the learned Additional Settlement Commissioner, proceeded ex parte and passed the impugned order. I feel that effective measures were not adopted by the Additional Settlement Commissioner for the service of the notice of Mukhbari application on the petitioners. He did not care to see that his order dated 11‑8‑1978 was not complied with; that although the report was to the effect that;

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he did not care to obtain the correct address of the petitioners and that he has not given any cogent reason for his satisfaction that the petitioners could not be served in ordinary and usual manner. That being the position I am of the view that the petitioners have virtually been condemned unheard.

5. For what has been said above, the impugned order is declared to have been passed without lawful authority and of no legal effect. The case is remanded to Additional Commissioner (R)/Notified Officer, Lahore for fresh decision in accordance with law after giving the parties opportunity of being heard. The parties are left to bear their own costs.

M. Y. H. /766/L Case remanded.

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