1986 PLP 557 (MLD)

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑ Constitutional jurisdiction, exercise of‑‑Allotment of land to non‑Mukhbar in preference to Mukhbar, held, would be without lawful authority and could be set aside by High Court in exercise of constitutional jurisdiction. Rana Muhammad Sarwar Khan for Petitioner. Ch. Muhammad Nazir Ahmad for Respondents. Nemo for Respondents Nos.1 to

3. Date of hearing: 11th February, 1986. Through this Constitutional Petition, Muhammad Siddique, petitioner wants this Court to declare the order, dated 4‑10‑1977 of Additional Settlement Commissioner (Lands), Gujranwala respondent No.4 to be without lawful authority and of no legal effect.

2. The petitioner's case is that he is a claimant displaced person. His claim was pending in District Sahiwal. He got it transferred to village Chakian Kalan, Tehsil and District Gujranwala. On his application that one Mst. Saleh had secured bogus allotment, the land from her name was cancelled and out of the land so cancelled, land equivalent to 310 P.I. Units was allotted to him. Since his remaining claim equal to 800 P. I. Units had already been sent from this village to Tehsil Hafizabad for satisfaction and were not adjusted there, therefore, he prayed that the remaining cancelled area be kept reserved and his units may be requisitioned from Tehsil Hafizabad. Feeling aggrieved, Bashir Ullah and others the beneficiary of Mst. Saleh filed appeal which was dismissed. They filed revision which was also dismissed. They then filed Writ Petition No.1137/R of 1969 in the High Court which was dismissed on 21‑11‑1969.The High Court, however, observed that the Settlement Commissioner or the Chief Settlement Commissioner should hold enquiry and take further action in accordance with law. On this the Settlement Commissioner (L), vide‑order, dated 13‑11‑1973 cancelled allotment of Mst. Saleh Bibi at Khata No.55/51 of village Chakian Kalan in exercise of his powers under section 10/11 of Displaced Persons Land Settlement Act, 1958 on the ground that the same had been secured by her through fraud and misrepresentation. Bashir Ullah and others also filed Writ Petition No.1056/R of 1973 against the petitioner which was dismissed on 28‑7‑1975. They then filed petition for Special Leave to Appeal against the order passed in Writ Petition No.1056/R/73 which is still pending as stated by the parties.

3. On 11‑7‑1973, Dr.Fazal Ilahi respondent No.2 filed Mukhbari application against Mst. Saleh before Additional Settlement Commissioner, Gujranwala who forwarded the same to the Settlement and Rehabilitation Commissioner (Lands), Lahore who consigned it to record as infructuous, on 24‑11‑1973 on the ground that the land allotted to Mst. Saleh at Khata 55/51 village Chakian Kalan had already been cancelled from her name. Thereafter the Additional Settlement Commissioner, vide order, dated 24‑8‑1977 reserved the remaining area of the land cancelled from the name of Mst. Saleh Bibi till the units of the petitioner were received from Tehsil Hafizabad. The petitioner was trying to secure his entitlement certificate back from Tehsil Hafizabad when the Additional Settlement Commissioner respondent No. 4 allotted the remaining area to Ilahi Bakhsh the predecessor‑in‑interest of Mst. Begum, Dr.Fazal Ilahi and Mst. Hafeez Begum respondents 1 to 3 as a Mukhbar on 4‑10‑1977, hence this petition.

4. The learned counsel for the petitioner mainly contended that since the disputed area was kept reserved by the Additional Settlement Commissioner on 24‑8‑1977 till the units of the petitioner were received from Tehsil Hafizabad therefore, he could not allot and confirm the same to Ilahi Bakhsh, the predecessor of respondents Nos.1 to 3 and that since the Mukhbari application filed by Dr. Fazai Illahi son of Ilahi Bakhsh had already been rejected by the Settlement and Rehabilitation Commissioner on 24‑11‑1973, therefore, Ilahi Bakhsh could not be allotted and confirmed the disputed land as a Mukhbar. The learned counsel for the Settlement Department has not been able to controvert the submissions made by the learned counsel for the petitioner. It may be noted that Mst. Begum, Dr.Fazal Ilahi and Mst. Hafiz Begum respondents Nos. l to 3 have been ordered to be proceeded against ex parte.

5. 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 petitioner. There can be no two opinions that since the earlier Mukhbari application of Dr. Fazal Ilahi son of Ilahi Bakhsh had already been consigned to record as infructuous on 24‑11‑1973, by Settlement and Rehabilitation Commissioner, therefore, Ilahi Bakhah who had not filed any Mukhbari application in his own name, could not be allotted and confirmed the disputed land as a Mukhbar. I find that the impugned order has also been passed illegally, opposed to the rule of natural justice, and arbitrarily inasmuch as the Additional Settlement Commissioner had ordered the disputed area to be kept reserved until the units of the petitioner were received from another village but without waiting for that and without notice to the petitioner, the Additional Settlement Commissioner respondent No.4 hurriedly transferred the disputed land to Ilahi Bakhah the predecessor‑in‑interest of respondents Nos.1 to

3. This order was passed at the back of the petitioner. For all these reasons, I am convinced that the impugned order is illegal, unjust, arbitrary and opposed to the rule of natural justice and without? lawful authority.

6. For what has been said above, the petition is accepted. The impugned order is declared to have been passed without lawful authority and is of no legal effect. The parties are left to bear their own costs. A. A.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.