1983 PLP 2935 (CLC)

Ch. Muhammad Yaqoob Sindho for Petitioner. Ch. Muhammad Nazir Ahmad Khan and Ch. Muhammad Abdullah for Respondent No.

2. Memo for Respondent No.

3. K. M. Virk for Respondent No.

4. Mubammad Ghani for Respondent No.

5. Date of hearing: 13th April, 1983. This order will dispose of Writ Petitions Nos. 695/8-81, 263/8.82, 4118-82 and 44/8 of 1982.

2. I propose to deal first with Writ Petition No, 695/8 of 1981 which has been filed by a claimant displaced person Hassan Muhammad. It is not disputed that he is a genuine claimant. 1t is also snot disputed that he and his deceased brother were equal right holders and that the brother's entitle ment has not come into the field from Central Record Office. His brother died during the disturbances or before independence.

3. Brief facts relating to this claimant are that he was allotted land in village Dhala Wagha in district Sheikhpura on 15th November, 1963. He is alleged to have gifted this land to Muhammad Amin who ire turn sold it to Din Muhammad on 6th January, 1973. The gift was made on 19th March 1971. On 19th June, 1975 Hassan Muhammad challenged this transaction by way of a civil suit which is stated to be still pending before a learned Civil Judge at Ferazewala. It so happened that one Sabir Hussain who is also now a petitioner before me in Writ Petition No. 44/8-82 filed a Mukhbri Application before a notified officer which was conveniently conceded to by Din Muhammad and Munir Ahmed. The result was that these two gentle men consented that the allotment may be cancelled. This speaks in volumes against the bona fide of a beneficiary of the gift as well as subsequent sale and I need not waste my breath on this aspect of the matter any further.

4. However, Hassan Muhammad aggrieved by this order of the notified officer dated 27th July, 1976 cancelling the allotment on the concession of two persons Din Muhammad and Munir Ahmed approached this Court by way of Writ Petition 1208;8-77. Din Muhammad also did not wish to lag behind and he too also filed subsequently Writ Petition No. 184/8-79. The relief claimed by the former was that the order passed by notified officer be quashed as he had not been associated with the proceedings nor heard. Whereas the relief claimed in subsequent writ petition was that he was in possession of the land and, therefore it be sold to him. Both these writ petitions were disposed of by the High Court by a consolidated order dated 5th June, 1979 and the cases were remanded to the notified officer. It was further made clear in this order that no relief was being granted in respect of land of Muhammad Amin in village Alipur Tiba. .

5. After the remand, the learned notified officer by an order dated 30th November, 1981 cancelled the allotment and forfeited it in favour of the State after recording the following findings :- (i) that the Mukhbri Application which laid the foundation for the proceedings was a forged and fabricated application instituted after the repeal of the Displaced Persons Land Settlement Act, 1958. (ii) that the claim of Hassan Muhammad has not even proved to be transferred froth Sahiwal to Sheikupura district n nary to that a effect was being found in the relevant register despite the fact that it was also established that no allotment was made to Hassan Muhammad in Sahiwal district. According to him, the claim was still deemed to be pending in Sahiwal. (iii) that Sabir Hussain Shah was not entitled to any benefit of this Mukhbri as the Mukhbri Application was not competent and he was not having any entitlement unsatisfied. The passing of the aforesaid order by the notified officer has given a cause of grievance to all the parties and that is the reason why four writ petitions are before this Court.

6. Learned counsel appearing in support of this writ petition has raised the following points :- (i) According to counsel. on the showing of the notified officer himself that the forged Mukhbri Application had been filed after the target date, the foundation for the assumption and exercise of jurisdiction was not laid. I have no hesitation in sustaining this objection for the simple reason that proposition is so well-based and well under stood that it does not require elaborate comments. However, I may observe here that under the scheme of taw the jurisdiction of a notified officer is dependent upon the existence of jurisdictional facts and one of the important facts is that the proceedings should have been inherited by that notified officer on being pending before a specified functionary before the repeal of the Act. On his own showing, therefore, that the application was not pending before specified functionary under the Displaced Persons Land Settlement Act, 1958, the notified officer would appear to have no jurisdiction in the matter. It is also well-known that any finding recorded by a person lacking jurisdiction is not of any value.

7. The argument of the learned counsel for the Settlement Department Ch. Muhammad Nazir Ahmed that the defect of jurisdiction should be deemed to have been cured because the case was remanded by the High Court in the course of previous writ petition on close scrutiny does not appear to be justi-9ed. The writ petition was instituted before the High Court by the person who had suffered a legal grievance which was that an order has been passed to his prejudice without his knowledge and without hearing him. The High Court sustained the objection and sent the case back to the learned notified officer for proceeding in accordance with law. The remand order of the High Court, therefore, cannot be reasonably construed as conferring jurisdiction on a functionary who otherwise did not/C possess any jurisdiction. I am not inclined to construe the order of the High Court in such a manner which would have the result of blessing the illegalities because that could not be the intention of the order of High Court. The objection, therefore, is overruled.

8. The point of assumption of jurisdiction on the part of notified officer actually clinches the whole matter and I am, therefore, not called upon to deal with other findings which have been recorded for the reason that he had no jurisdiction in the matter. Nothing stated or done by he has backing of law and the order being void will not adversely effect any body's right or interest. I would, therefore, accept this writ petition aside the impugned order of the notified officer dated 30th November, 1981. However, I may observe before parting with the case that in so far as the litigation going on between him and alle8ed vendees concerned that is no a dispute which concerns this Court in the present proceedings. They are civil proceedings pending and they will have their natural course and the parties will be free to raise all grounds available to them.

9. Now taking up Writ Petition No. 41/R of 82, apart from the legal lacuna already noticed in the order of notified officer that he lacked juris diction in the matter and, therefore, order passed by him is coram non Judice, further consideration which support the case of the petitioner is that the' remand order of the High Court was only with respect to the allotment in village Dhala Wagha and the learned Judge who remanded the case had made it clear that no relief was being granted in respect of Muhammad Amin petitioner or in respect of allotment made in the village Alipur Tiba. It is thus crystal clear that the allotment of village Alipur Tiba was beyond the scope of proceedings before the notified officer. Therefore, he could no order the cancellation of that land.

10. I may observe at this stage that the stand taken by Ch. Muhammad Nazir Ahmed learned legal adviser for the Settlement Department at the first instance has been very fair. He has stated categorically that he was unable to support the order in so far as notified officer has taken the view that the claim has not been transferred from Sahiwal to Sheikhupura district. According to him Rtd. Lt.-Gen. Muhammad Azam Khan the then Rehabilitation Minister had given clear instructions that the claims of claimants should be transferred by the Rehabilitation authorities themselves from congested districts to non-congested districts. Therefore, in the light of it, it was quite possible that the Rehabilitation authorities at their own had transferred the claim and, therefore, the presumption would be that the claim was transferred in normal course and presumption attaching to official acts may be drawn in the facts and circumstances of the case. I am inclined to agree with the submission being made in view of other special features of the case.

11. The next contention of Ch. Muhammad Nazir Ahmed is that the order of notified officer was rather unfair and unjust because he has deprived the claimant Hassan Muhammad from the bigger chunk while thrusting on him a smaller allotment. However, he wishes to support the order of the notified officer to the extent of resumption in favour of the department of land in village Alipur Tiba. According to him the land of Alipur Tiba should be given to State for the reason that Hassan Muhammad does not claim it and others have no right to get it. I will deal with these conten tions in later part of the judgment.

12. Continuing with the case of Muhammad Amin, it is to be noticed that allotment was made against the claim of Hassan Muhammad bearing claim form No. 7006 according to the notified officer. There is no dispute regarding correctness of this claim. That being the position, I fail t appreciate how the notified officer who did not possess jurisdiction in the matter can cancel this allotment. Now at this stage even if the allotment sale is denied then in view of fact that the land had been sold through registered sale-deed and was also witnessed by a mutation and the possession is also with the vendee, it is for claimant to challenge the sale through proper proceedings before a civil Court. In this view of the matter, I thin that the argument of the learned counsel for the department cannot prevail in the face of preponderance of evidence pointing out to the contrary and also for the reason already noticed that the notified officer completely lackey jurisdiction 'in the matter. This writ petition is, therefore, liable to be accepted.

13. Now I will take up Writ Petition No. 263;11 of 1982 filed by Din Muhammad claiming to be a vendee from donee Munir Ahmed. This writ petition lacks bane fides. These two gentlemen appeared before the notified officer during the earlier proceedings under section 10/11 and conceded the bogus and fraudulent nature of the claim and wanted it to be resumed which he did. It was Hassan Muhammad who came to this Court, agitated the matter and his writ petition was accepted and the case was remanded. The petitioner two years later filed a writ petition on the ground that he wants to purchase this land. The desire to purchase the land and to retain the allotment are two different things. Therefore, never resiled from the position that he conceded ,the allotment to be bogus but under a different provision of law wanted to retain it by paying price to the Chief Settlement Commissioner under the Repealing Act. In view of the fact that the allotment of Dhala Wagha and klipur Tiba are well in tact the question of purchase would hardly arise- The civil litigation are not relevant for the purpose of this writ petition because these involve private civil transaction between the parties.

14. Lastly I would like to take up the case of so-called Mukliber Sabir Hussain who has approached this Court by way of Writ Petition. No. 44/R of

82. As regards him, the finding of fact has been recorded by the notified officer that the Mukhbri Application was fabricated and forged and was filed after the repeal of the Act. According to the learned counsel this is very unfair that the notified officer has recorded this finding which had not bee recorded earlier by any authority. I do not think that in a case of fraud o suppression of material facts any moral principle is involved. The adjudi cating officer is to observe the law. On a fraud being discovered, a tribuna is bound to take notice of it and after giving an opportunity to the parties g to defend it is to make an honest inquiry and then to decide the matter. All these requirements appear to have been met in the facts and circumstance of petitioners case. At any rate, I am not inclined to devote more time t the case of Sabir Hussain for the simple reason that he has not been other wise found entitled to retain the land. Learned counsel also wants t challenge this finding of fact in spite of it that no evidence was led before the notified officer or referred to before me in the course of hearing of were petition. I wish him well but I find myself unable to come to his aid. I conclude that this writ petition is incompetent, I have, therefore, no -hesitation in dismissing the same. Before parting with the case, I may advert to an interesting point being raised the learned counsel for the Settlement department. He argues that if the entire order of the notified officer is without jurisdiction then his order to the effect that the Mukhbri Application was incompetent is also without jurisdiction I am afraid, the argument is not well-based for the reason that every tribunal or the Court leas the jurisdiction to decide tried question of its own jurisdiction and that is precisely what has been done in this case. It is impossible for a notified officer to record a finding regarding his jurisdiction unless he was first to ascertain whether he was dealing with a matter which was pending proceedings or not. So this objection of the learned counsel for the Settlement Department fails. I have already deal with the argument of the learned counsel for the department regarding the effect of High Court's remand of the case to the notified officer, Let m make it further clear that the remand order of the High Court on ground of non-hearing does not have the effect of conferring of jurisdiction on the officer which he did not possess under the law. It was open to the notified officer to pass any lawful order after hearing a necessary party including the order i.e, that the Mukhbri Application was incompetent. The net result is that Writ Petitions Nos. 695/11 of 1981 and 41/R of 1982 are accepted and Writ Petitions Nos. 263JR-82 and .44/11-82 are dis missed. K. M. A. Order accordingly.