1988 PLP 1336 (MLD)

This petition is directed against a notice dated 13‑5‑1980 issued by the Mukhtiarkar, Tando Adam, to the petitioner No.1. The translation of the above notice reads as follows:‑ "NOTICE To Bahadur Ali s/o Nawab Ali Rajput Claimant Deh Belharo Taluka Tando Adam c/o Sohrab Khan s/o Shah Ali Khoso Deh Belharo. Whereas Niaz Muhammad and others have made an application before Deputy Commissioner Sanghar against you for cancellation of your allotted land situated in Deh Belharo, Hurbari and others as being double allotment and also for ejectment of possession of the land which is in your occupation, which application has been received for enquiry and report in our office, therefore, you are hereby informed through this notice that you should present alongwith your documentary proof m the office of undersigned within the 3 days' period after receipt of this notice and in failure your allotment will be cancelled and you will be forcibly ejected from the land. This is for your information. Sd/‑13‑5‑1980. Mukhtiarkar Tando Adam."

2. The case of the petitioners is that petitioner No.1 was a claimant and in satisfaction of his claim he got suit agricultural land transferred. In support of the alleged claim he produced Annexures B-1 B-2 , B-3 and B-5 . It is also the case of the petitioner No.1 he sold certain land out of the above land in favour of the petitioners Nos.2,3 and 4 by the time when the above notice was received, the petituioner filed the present petition. Respondent Nos.9 to 11, who areare represented by Mr.Abdul Naseer Khan pon their own application were impleaded as parties to the above petition. Their case is that factually the petitioner No.1 Bahadur Ali, is a fictitious person and that factually there has not been any allotment in his favour and the alleged r documents produced by the petitioner No.1 are fictitious and forged.

3. In support of the above petition Mr.Syed Nasiruddin, learned counsel for_. the petitioners, has urged that the question, whether petitioner No.1 was a fictitious person or had no allotment as alleged by the above respondents Nos.9 to 11 cannot be adjudicated upon by the Mukhtiarkar or by the Deputy Commissioner as after the repealed of the settlement laws with effect from 1‑7‑1974 these questions are to be decided by a Civil Court. In furtherance of his above submission, he has referred to the following cases:‑ (i) Mst.Iqbal Siddiqui v. Assistant Settlement Commissioner (Urban) and others, reported m P L D 1984 Lah. 291. (ii) MstAnwar Bai v. Deputy Settlement Commissioner, Karachi and 2 others, reported in P L D 1979 Kar. 706. (iii) An unreported judgment of a Division Bench of this Court dated 16th October, 1984 given in a Constitutional Petition No.D‑1001 of 1982 (Ghulam Muhammad and 4 others v. The Deputy Commissioner, Sanghar and 5 others), to which I was a party.

4. The ratio of the above cases seems to be that after the enforcement of Evacuee Property ad Displaced Persons Laws Repeal) Act (XIV) of 1975, the Settlement Authorities ceased to have any jurisdiction as to the merits of a transfer under the Settlement Scheme except in the pending cases in terms of section 2(2) of the repealing Act. On the other hand Mr.Abdul Naseer Khan, learned counsel for the respondents Nos.9 to 11, has vehemently contended that even after the above repealing Act, the Revenue Authority has the power to go into the question, whether a person who claims to be a transferee is a transferee or not. In support of his above submission, he has referred to the case of S.A.Almas Ali v. Additional Settlement Commissioner (Industries) and others, reported in 19W C L C 1627, in which a learned Single Judge of the Lahore High Court held that the High Court while exercising constitutional jurisdiction cannot go into the question, whether the documents relied upon by the petitioner are forged or genuine. It was further held that the Member, Board of Revenue was not estopped from realizing the prices of a evacuee property transferred against a ‑ bogus compensation book and to hold an enquiry in respect thereof.

5. It will be advantageous to reproduce para. 2 of the above unreported judgment of a Division Bench of this Court, to which I was a party, which reads as follows‑.‑ "Mr.Syed Nasiruddin, learned counsel for the petitioners has contended that since no proceedings were pending on 1‑7‑1974, in terms of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV) of 1975, no enquiry can be held and no order can be passed as to the genuineness of the transfer in favour of the predecessor‑in‑inters of the petitioners. He has also urged that the order of the Deputy Commissioner dated 10‑6‑1973 in favour of Mst.Hakeeman had mod the finality as no other proceedings were filed against the above order. On the other hand Mr.UsmRashid Advocate for the Private respondents Nos.4 and 5 has submitted that there cannot be any civil to the proposition that respondent No.3, or any other official respondent has no power to go into the question of genuineness of the claim of the petitioners predecessor‑in‑interest or as a matter of fact into the genuineness of the claim of respondents Nos.4 and 5 but respondent No.3, under the West Pakistan Land Revenue Act, 1967 for the purpose of maintaining the revenue records can hold enquiry."

6. A perusal of the above para indicates that a distinction is made between holding an enquiry as to the genuineness of the claim or the allotment made by the Settlement Department and holding an enquiry for the purpose of the revenue record under the West Pakistan Land Revenue Act, 1967. It has been pointed out that after the above repealing Act (XIV) of 1975, the Deputy Commissioner or any other officer is not competent to go into the question of genuineness of the transfer but he can hold an enquiry under the West Pakistan Land Revenue Act for the purpose of mutation and no further.

7. I am bound by the above judgment of a Division Bench. The Mukhtiarkar cannot go into the question of double allotment is he indicated in the impugned notice. However, the Revenue Authority has the power to hold enquiry for the purpose of maintaining of revenue record. 8: The impugned notice is, therefore, without jurisdiction. The petition is allowed and impugned notice is declared without lawful authority and of no legal effect with no order as to costs. H.B.T./B‑76/K Petition allowed.