1993 PLP 423 (MLD)

Date of hearing: 10th November, 1992. An.evacuee agricultural land measuring 435 Kanals 7 Marlas was purchased by the petitioner is an open auction on 24‑1‑74 for an amount of Rs.1,35,000 including Khasra No.1717 measuring 16 Marlas. Entire sale price was deposited by the petitioner and his partner and proprietary rights were conferred on the petitioner which were duly reflected in the Revenue Record including the Jamabandi for the year 1975

76. Subsequently respondents Nos.4 and 5 submitted an application after repeal of evacuee laws for cancellation of Khasra No.1717 measuring 16 Marlas on the ground that this Khasra is a part of Abadi and is in their possession for the last 100 years, therefore could not have been auctioned. This application was submitted to respondents Nos.l and

2. Although respondent No.2 had no concern with the Wazirabad Sub‑Division wherein the property in dispute is situated, assumed jurisdiction in the matter illegally and submitted a report to the Deputy Commissioner, Gujranwala on 17‑7‑1980 for the cancellation of the auction proceedings to the extent of Khasra No.1717. He also suggested that respondent Nos.4 and 5 may be directed to approach the Urban Settlement Authorities . namely Deputy Settlement Commissioner (Urban) respondent No.3 for getting the proprietary rights in the said khasra. The Deputy Commissioner‑, Gujranwala on the basis of that report approved the suggestion made by respondent No.2 on 23‑7‑1980 " without issuing any show‑cause notice to the petitioner and without giving him an opportunity of being heard and even without applying his mind independently to the facts and circumstances of the case. This order as well as the proceedings on the basis whereof this order was passed and the threatened consequential proceedings have been challenged through this Constitutional petition.

2. Sh. Abdul Aziz Advocate, learned counsel has appeared 'for the petitioner whereas Mr. M.Z. Khalil, Advocate, has appeared on behalf of respondents Nos.2 and

3. Rana Muhammad Arshad Khan, Addl. A.‑G. appears on behalf of respondent No.1. None appears on behalf of respondents Nos.4 and 5, hence they are proceeded against ex parte. Learned counsel appearing for the petitioner has raised the following contentions:‑‑ (i) After` the repeal of evacuee laws, the proceedings as well as the impugned order are coram non judice‑ (ii) that the impugned order could not have been passed without giving an opportunity of being heard to the petitioner inasmuch as the property in question is owned and possessed by him and the respondents Nos.1 to 3 have absolutely no jurisdiction to deal with the matter. Mr.M.Z. Khalil, Advocate, learned counsel for respondents Nos.2 and 3 and Rana Muhammad Arshad Khan, Addl. A.‑G. appearing on behalf of respondent No.l are not in a positiom to successfully controvert the arguments addressed by the learned counsel for the petitioner.

3. I have considered the arguments addressed by the learned counsel for the parties and have also perused the record. It stands established that Khasra No.1717 was.put to auction and was purchased by the petitioner alongwith other land as back as on 24‑1‑

74. He has paid the full sale price and has also acquired proprietary rights therein. Respondents Nos.4 and 5, therefore, could not have moved an application after repeal of the evacuee laws before respondents Nos.1 to 3 who had absolutely no jurisdiction in the matter for cancellation of the property in question. Reliance in this behalf can be placed on the case of Mst. Umar Bibi and another v. Officer on Special Duty, Central Record Office, Lahore and 3 others (PLD 1986 Lah. 109). Even otherwise the impugned order has been passed without notice to the petitioner ‑ and the application as well as the proceedings on the basis whereof the order in .A question has been passed and consequential proceedings have to take place are totally coram non judice. Respondent No.l appears to have not applied his mind judiciously and independently to the facts and circumstances of the case while approving the suggestion/noting by the lower staff. On this score as well the order passed by respondent No.l is totally without jurisdiction. Reliance in this behalf can be placed on the case of Fazal Dad v. The Member, Board of Revenue PLD 1977 Lah.

264. In view of the above, this writ petition is accepted, impugned order and the proceedings are declared to be illegal and without lawful authority and are set aside. The parties shall bear their own costs. AA./A‑98/L Petition accepted.