1986 PLP 435 (MLD)

Nemo for Respondents Nos. 1 to

4. Ch. Muhammad Nazir Ahmed for Respondent No.5. Date of hearing: 20th January, 1986. Through this Constitutional Petition, Mushtaq Ahmad petitioner wants this Court to declare the orders, dated 26‑2‑1976 and 16‑4‑1978 passed by Additional Settlement Commissioner (Lands)/A.C., Toba Tek Singh; respondent No.5, to be without lawful authority and of no legal effect.

2. The petitioner's case is that he is a claimant displaced person. On 11‑2‑1965 proposal for allotment of Khasras Nos.l/1, 1/2, 10/2 of Square No.16 and Khasra No.7/1 measuring 2 Kanals and 13 Marlas of Square No.17 was made on register R.L‑II in the name of the petitioner. On 22‑6‑1974, the petitioner moved the Additional Settlement Commissioner, respondent No.5 for allotment of these Khasra numbers to him. The application was sent to Naib‑Tehsildar (Colonies) for enquiry who made a report to the effect that the petitioner was in possession of land and was entitled to transfer thereof in his favour. On 17‑2‑1976 Muhammad Ishaq respondent No. l on behalf of his father Phool. Khan applied for transfer of land. On 26‑2‑1976, respondent No.5 transferred Kills No.10/2 of Square No.16 and Kills No.17/1 of Square No.17 measuring 1 Kanal and 14 Marlas to Muhammad Ishaq and three other respondents Nos.1 to 4, the successor‑in‑interest of Phool Khan and the remaining land was ordered to be auctioned. It was also observed that the petitioner being out of possession was not entitled to the transfer of the land. The Additional Settlement Commissioner, however, did not dispose of the application of the petitioner on that date while disposing his application on 16‑4‑1978, respondent No.5 observed that since on the application of Muhammad Ishaq respondent, an order relatable to the land in dispute had already been passed on 26‑2‑1976, therefore, the application was liable to be filed, hence this petition.

3. Learned counsel for the petitioner mainly contended that the impugned order, dated 26‑2‑1976 suffered from misreading/non‑reading of material documents which supported the case of the petitioner. Conversely, the learned counsel for Settlement Department has supported the impugned orders. It may be noted that respondents Nos.1 to 4 have been ordered to be proceeded against ex parts.

4. 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. I find that on the application of the petitioner, Naib‑Tehsildar (Colonies) had held inquiry. He recorded the statement of the witnesses and submitted his report on 12‑9‑1974 which is as under:‑- Strangely enough, while disposing of the impugned order not only the application of the petitioner was excluded from consideration but the reports of Tehsildar and Naib‑Tehsildar which were very much in favour of the petitioner were also not read. That being the position, I am of the view that the impugned orders suffering from non‑reading of evidence in favour of the petitioner. The impugned order, therefore, has to be declared to have been passed without lawful authority.

5. For what has been said above, the writ petition is accepted and the matter is sent back to Additional Commissioner (R) /Notified Officer, Faisalabad for fresh decision in accordance with law after giving the parties opportunity of being heard. The parties are left to bear the own costs. A.A ???????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.