1999 PLP 360 (CLC)

Khan Muhammad Bajwa for Respondents Nos.4 and

5. Date of hearing: 3rd September, 1997. This judgment shall dispose of Writ Petitions Nos. 311/R of 1985, 86/R of 1986, 246/R of .1994 and 1239 of 1996 in all of which the controversy and the disputed land is the same.

2. It appears from the record that originally an area of land measuring 15 Kanals was allotted and confirmed at Khata No. 17 RL‑11 of Village Dhulley Tehsil and District Gujranwala to Abdullah son of Kaka on 3‑11‑1965. That allotment was cancelled on appeal filed by one Mushtaq Hussain by the order of the Settlement Commissioner on 21‑2‑1996. The dispute, however, relates to the transfer of land measuring 34 Kanals and 14 Marlas stated to have been made by the Revenue Assistant/Deputy Settlement Commissioner on 20‑6‑1966. This land was sold by the legal heirs of Abdullah who had since died to Mst. Surraiya Begum through a registered deed of sale, dated 8‑3‑1972.

3. On 6‑12‑1972, respondents Nos.2 to 5 in Writ Petition No.86/R of 1986 challenged the aforesaid order of allotment by filing an appeal which was accepted on 4‑4‑1977 by the Settlement Commissioner, Lahore who came to the conclusion that the allotment was bogus and the allotment order had been forged and fabricated.

4. Aggrieved by the said order of the Settlement Commissioner, Lahore, Mst. Surraiya Begum filed a Constitutional Petition No.89/R of 1978 which was accepted by the learned Single Judge of this Court on 12‑10‑1983 who remitted the case to the Notified Officer for decision afresh after hearing the parties.

5. In post remand proceedings, the case was taken up by the Notified Officer who vide his order, dated 21‑9‑1985 upheld the allotment in favour of Abdullah partly but excluded certain areas from the allotment. The appellants before the Settlement Commissioner as also Mst. Surraiya Begum, the purchaser of the allotted land have come to this Court by filing Writ Petitions Nos. 311/R of 1985 and 246/R of 1994 and 1239 of 1996 respectively. The claim of the former is that the order of allotment in its entirety should be declared to be unlawful and of no legal effect while Mst. Surraiya Begum has challenged the aforesaid order to the extent of exclusion of certain areas from the allotment. Through Writ Petition No.1239 Mst. Surraiya Begum has challenged the subsequent action of Commissioner, Gujranwala Division Gujranwala whereby Khasra No.313 or 313/2 has been excluded from the allotment of Abdullah.

6. The other petition viz. Writ Petition No.86/R of 1986 has been filed by Shah Muhammad and others who claim that the allotment of the part of the disputed land is illegal and unlawful being Ghair Mumkin and not transferable in law. It was also asserted that the petitioners have built houses over the disputed land which cannot be taken away from them.

7. The main contention raised by Syed Jamshed Ali, the learned counsel for the petitioners is that the impugned order runs counter to the remand order of this Court in Writ Petition 89/R of 1978. This contention of the learned counsel has merit. Under the remand order, the Notified Officer was required to decide after thorough inquiry as to whether the order of allotment in favour of the predecessor‑in‑interest of respondents Nos.3 to 5 was, in fact, passed by the Revenue Officer/Deputy Settlement Commissioner on 20‑6‑1966 and whether the signatures appearing thereon were forged. This all important question did not receive due consideration from the Settlement Commissioner who instead of holding the inquiry went by the question of onus to prove and he held that no evidence was produced by the petitioner to substantiate the allegation that the allotment was genuine. This approach of the Notified Officer is not‑only erroneous but also contrary to, the direction issued in the order of remand. If some of the parties had not appeared before the Notified Officer, he was bound to hold an inquiry and satisfy himself about the genuineness of the signatures on the letter of allotment by, at least, examining the Assistant Revenue/Deputy Settlement Commissioner who is alleged to have passed the order of allotment and signed it on 3‑11‑1965. It is strange that no effort was made by the Notified Officer to ascertain this fact nor did he examine any witness. The impugned order is, therefore, clearly not sustainable and has to be struck down and the matter will have to be remitted to the Notified Officer who shall pass a fresh order keeping in view the direction given by this Court in its order, dated 12‑10‑1983 while disposing of Writ Petition No.89/R of 1978 whereby the case had earlier been remanded to him.

8. Mr. S.M. Masood, the learned counsel appearing for Mst. Surriya Begum, has raised an objection as to the locus standi of some of the petitioners to challenge the allotment in favour of Abdullah mainly on the ground that those petitioners were not parties in the post remand proceedings. It is open to canvass this proposition before the Notified Officer who under the law has to take notice of all the pleas raised by the parties. In view of what has been stated above, all these petitions are allowed; the impugned orders are declared to be illegal and unlawful and the case is remitted to the Notified Officer concerned for decision afresh keeping in view the directions contained in the order of remanded passed by this Court in Writ Petition No.89/R of 1978 on 7‑4‑1977. No order as to costs Q.M.H./M.A.K./M‑827/L Case remanded