1986 PLP 894 (MLD)

This writ petition has been filed by two sets of petitioners. One is petitioner No.l Syed Abdul Qasim who claims to be genuine original claimant against whose entitlement the land in question has been allotted. Then there are petitioners 2 and 3, namely, Wagha and Khushi Muhammad sons of Noor Muhammad who claim that they have purchased the land in village Sikandurpur allotted to aforesaid claimant in the year 1971 through a registered sale‑deed, Both the sets of the petitioners are aggrieved by the order of notified officer whereby the allotment has been cancelled; resumed and further ordered to be given to Mukhbars who are respondents 2, 3 and 4.

2. In so far as respondents 2 . 3 and 4 are concerned, registered post cards were issued for actual date of 'hearing for 24‑6‑1984. The intimation sent through registered post cards which have not been received back unserved carries the presumption of service. These respondents 2 to 4 also failed to appear on 24‑6‑1984 when this case was adjourned for an actual date of hearing for today in view of the fact that the department could not produce the record. Respondents 2 to 4 do not appear to be interested in defending themselves. Therefore, they have to be proceeded ex parte. This is apart from what the learned Legal Adviser for the Settlement Department says that respondents 2 to 4 are fictitious and put up persons as they have never appeared before the revenue/Settlement authorities despite a so‑called order being in their favour to claim any benefit with the result that the order of the notified officer has not so far been implemented in their favour.

3. The interim proceedings dated 22‑1‑1980 would show that the record was produced before this Court on that day and it was submitted that no notice was issued to petitioner No.l, Syed Abdul Qasim. It is further the case of petitioner No.1 that service of any' summon or notice is not proved to be effected on him. He says that cancellation of allotment could not be done for the simple reason that in the Mukhbari application no address of petitioner No.l is given and his parentage is also wrongly mentioned as Hassan Muhammad instead of Syed Zaheer Haider. In the impugned order also, the land which is being cancelled is of one Abdul Qasim son of Hassan Muhammad which is not the identity of the petitioner. In support of this submission, petitioner No.l has filed a copy of the national identity card which shows that the petitioner was employed as a cashier in the Auditor‑General of Pakistan (Revenue) Office from where he has retired. It is. further submitted that according to this identity card, the date of birth of petitioner No.l is 1st January, 1920. The particulars are Syed Qasim Son of Syed Zaheer Haider was living in an official quarter and according to the learned counsel now he has his own house. It is further contended by the learned counsel for petitioner No.l that he has been defrauded by unscrupulous persons. He does not accept that he had sold this land to petitioners 1 and 3 and that the sale‑deed, if any, being relied upon by them, according to him, is fictitious, forged and bogus. In respect of the land in other village Ujla, this was claimed to have been obtained through sale by Zafar Mahmood, Zafar Ahmad, Amir Hussain and lmran Ali sons of Fateh Muhammad and Zafar Masood son of Bashir Ahmad Bhatti. It is further explained that Fateh Muhammad and Bashir Ahmad Bhatti are real brothers. In so far as latter category of so‑called purchasers is concerned, their fate was sealed by the order of notified Officer under attack in this writ petition and all the parties are one in Saying that they have not assailed that order in their own rights any . The chapter in so far as they are concerned thus stands Closed .

4. On behalf of petitioners 2 and 3, their learned counsel Syed Munir Hussain argues that they are bona fide purchasers through registered sale‑deed from the original claimant Syed Abdul Qasim and that mutation had been sanctioned and they are recorded in the revenue record also as owners.

5. On behalf of the Settlement Department, their learned Legal Adviser Ch. Muhammad Nazir Ahmad Khan states that this is one of the known cases of fraud. He further submits that this case ought to be remanded to notified officer as that there is a threadbare examination of merits and demerits of either party's case and thereafter a just decision could be arrived at.

6. I have considered the submissions made from all the sides. I feel that in a Mukhbari application where particulars of a claimant by way of his parentage was not correctly given nor his address for service mentioned, the result would be no better than non‑service on real affected persons. In these circumstances, there could be no faithful compliance with the proviso to section 10 of the Displaced Person (Land Settlement) Act which ordains that under this section no order shall be passed to the prejudice of any party without giving giving to the persons affected an opportunity to be heard. This requirement does not appear to have been met qua the claimant.

7. Next comes the question of petitioners 2 and 3 who claim to b vendees, Their right to be heard is dependent upon the fact whether they are vendees or not because a pretending vendee would not b covered by expression "bona fide purchaser". The position of petitioners 2 and 3 have also to be examined by the notified officer in order to determine whether they are persons who will be adversely affected in view of the order he may pass or proceedings he is going to take. It is pointed out to me .that there is civil litigation already pending between petitioner No. 1 ‑ and other vendees of village Oils. That litigation is beside the point for the purpose of these proceedings because they have not come to this Court in its Constitutional jurisdiction to assail the impugned order of the notified officer. Be that. as it may, these are matters to be sorted out by the affected parties between themselves that all the same the notified officer has ample authority to look into the question of fraud, if that fraud be material for the purpose of determination of the questions, he is called upon to decide by virtue of section 1J/11 of the Displaced Persons (Land Settlement) Act. There appears to be no fetters or bar standing in the way of the notified officer from examining the question of genuineness or bogus nature of a sale transaction for the purpose of gaining the overall picture of the bona fide conduct of the parties in obtaining the land or in its disposal.

8. All the learned counsel appearing for the parties are at this stage one in saying that the proper order to be passed in this case i to remand it to the notified officer who shall go into depth, hold inquiry. record evidence of the parties and when give a determinative adjudication. It will be open for the parties to raise all the pleas available to them in support of their contentions. I may, however, observe that the notified officer shall, inter alia, go into the following questions:‑‑ (i) whether the claimant is a genuine person and not an impersonator; (ii) whether and to what extent the so‑called vendees are bona fide purchasers and if at all they were party to fraud; and (iii) further whether Mukhbari application itself was validly submitted by genuine persons.

9. In view of what has been stated above, I would accept this writ petition, set aside the impugned order of the notified officer to the extent of petitioners and remand the case to the notified officer for fresh disposal in the light of observations made above. In the circumstances, there shall be no order as to costs. M . Y . H Petition accepted.