P L D 1973 Karachi 208 (PLP)

Shaikh Haider for Respondent No.

22. Muhammad Idris Qureshi for Respondent No.

23. Dates of hearing; 7th and 8th March 1972. The circumstances in which these Writ Petitions have been filed are as under :‑

2. The petitioners in Writ Petition No. 35/1968 hail from the Agreed Area. The petitioners had a verified claim of 5,073 index units of agricultural land which was transferred to Taluka Sinjhoro, District Sanghar on 6‑8‑1960, for the settlement of their claim. It is alleged that the papers were transferred from Sanghar to Sinjhoro on 13‑5‑1960 and an area of 149.45 acres was allotted by the Assistant Rehabilitation Commissioner Sinjhoro on 2‑3‑1961 in three villages, namely, Sarkikandi, Sinjhoro and Bitoor. A Khatoni was prepared on 2‑3‑1961 and the possession was given on 13‑4‑1961. It appears that the respondents Nos. 2 to 21 had applied for the allotment of the same land on 22‑2‑1961. The Settlement Commissioner, Hyderabad Division on 24‑2‑1961 had passed an order that the land would not be allotted to any one without further order. The lands however were allotted to the petitioners as the papers are alleged to have been received by the Assistant Rehabilitation Commissioner, Sanghar on 3‑3‑1961. The respondents Nos. 2 to 21 filed a revision application on 8‑3‑1961 before the learned Settlement and Rehabilitation Commissioner, Hyderabad Division, and the order of allotment in favour of the petitioners was set aside by his order dated 9‑5‑1961. A revision was filed by the petitioners before the Chief Settlement Commissioner which also came to be dismissed with the result that a writ petition was filed in this Court on the ground that the order passed by the learned Settlement and Rehabilitation Commissioner was without notice to the petitioners. The petition with the consent of the parties was allowed and the case was remanded to the learned Settlement and Rehabilitation Commissioner, Hyderabad Division for decision on merits after due notice to the parties. It was inter alia observed that; "It will be open to the contesting respondents to furnish the details of the other persons interested in the land in dispute. The learned officer will issue notice to theta also before passing any final order." The papers therefore went to the learned Settlement and Rehabi litation, Commissioner, Hyderabad Division, resulting in the order which has been impugned in these writ petitions. As both the writ petitions challenge the same order they will be disposed of by a composite judgment.

3. Mr. Ali Ahmad Fazeel, learned counsel for the petitioners in Writ Petition No. 35/1968, raised a number of con tentions. It was urged by him that the allotment had been made to the respondent No. 23 during the subsistence of the stay order granted by this Court in this very writ petition ; that in spite of the fact that the case was remanded for decision on merits with due notice to the parties and had to be decided finally, there were piecemeal orders inasmuch as the learned Settlement and Rehabilitation Commissioner laid down a formula and the allotment in favour of the respondent No. 23 came subsequently and again without notice to the parties. He also contended that the learned Settlement and Rehabilitation Commissioner was In error to have laid down a formula which militated with the policy of the Settlement Department which is to be found in the Settlement Scheme. As the matters stand it is not necessary to go into all these points.

4. It is patently made out that the learned Settlement and Rehabilitation Commissioner in spite of clear directions in the aforesaid judgment, did not choose to issue notice or assure the presence of all the persons interested in the dispute though it was expressly mentioned that they could also furnish other names for being joined in the proceedings. The record of the writ petition shows that there were 19 respondents and 6 petitioners. However, the order of the learned Settlement and Rehabilitation Commissioner shows that the respondents Nos. 5 to 14 in the writ petition were not at all given the notice of the proceedings. It also appears that Subhanullah, is mentioned both as a petitioner and a respondent. If all the parties were given notice of the allotment proceedings, in regard to the respondent No. 23, they would have had an opportunity to challenge the bona fides of his preferential entitlement which in view of the report submitted by the Settlement Department cannot be said to be beyond dispute. The fact therefore that some of the parties were not present during the hearing of the revision application and that none was there to contest the allotment in favour of the respondent No. 23, is sufficient to quash the said order as it offends the principles of natural justice. I will, there fore, allow the petitions set aside the impugned order and remand the case again to the Settlement and Rehabilitation Commissioner, Hyderabad Division, and he is directed to proceed with the matter in accordance with the order passed in the earlier writ petition. There will be no orders as to costs. The petitioners in Writ Petition No. 35/1968 namely, Jehan Khan and another, are further directed to continue submitting the statement of accounts they have been doing in pursuance of the order passed by this Court earlier till the matter is finally disposed of. S. A. H. Order accordingly.