1986 PLP 619 (MLD)

Mat. Sakina and another v. Mamla and 2 others P L D 1977 Lah. 202; Muhammad Khan and 2 others v. Karim Bukhah and 2 others P L D 1977 Lah. 747; Jan Muhammad and others v. Sher Muhammad and another P L D 1979 S C 985 and Allah Lok and 2 others v. Sardar Irshadul Hassan and 7 others P L D 1982 Lah. 831 ref. Afrasiab Khan for Petitioner. Ch. Muhammad Abdullah for Respondents. Date of hearing: 24th November, 1984. Muhammad Sadiq son of Amanat Ali, caste Rajput, resident of District Gujranwala, a refugee from the State of Jammu and Kashmir, migrated to Pakistan in the year 1947. Later, Amanat Ali, his father, also joined the family in Pakistan. Land measuring 91 Kanals 14 Marlas comprised in fields Nos. 1662, 1663, 1690, 1692, 1693, 1695, 1696/2, 1697, 1698 situated in village Kopra, Tehsil Daska, District' Sialkot, was allotted to the said Muhammad Sadiq as a Jammu and Kashmir refugee in lieu of Free Ration Scheme on 30‑12‑1963. Effect to this temporary allotment was given In the Revenue Records. Possession is also stated to have been delivered to the allottee. Allotted land went under consolidation. As a result of consolidation of holding in the revenue estate Kopra, land measuring 59 Kanals 10 Marla bearing Khasras Nos. 16/5, 2, 3, 4, 17/10/1, 16/17, 14, 23/3, 16/6/1 was given to Muhammad Sadiq, temporary allottee. Land comprised in Fields Nos. 1662, 1663, 1690, 1692, 1693, 1695, 1696/2, 1697, 1698 54 Kanals 1 Marlas out of the temporary allotment of Muhammad Sadiq was given to one Rehman Ali son of Hakam Din by A.R.C. (Lands), Daska. Amanat Ali, father of Muhammad Sadiq preferred an appeal against the above stated order before Ch. Afzal Muhammad P.C.S., Deputy Rehabilitation Commissioner (Lands), Sialkot (Appeal No. 72 D.S.C. of 1964). Appeal was allowed and allotment was restored to the temporary allottee. On 30‑3‑1974, respondents moved a petition under sections 10 and 11 of the Displaced Persons (Land Settlement) Act 1958, since repealed, before the Settlement Officer with powers of Chief Settlement Commissioner. This petition was accepted, ex parte, on 15‑4‑1975 (Annexure G) It was found vide impugned order dated 15‑4‑1975 that Muhammad Sadiq was not a real person but a fictitious name in whose favour temporary allotment was said to have been made. Recalling the allotment from the name of Muhammad Sadiq the learned Assistant Settlement commissioner, Sialkot through the same order directed allotment of the land in the name of Noor Alam, etc. Impugned order dated 15‑4‑1975 has been assailed in constitutional jurisdiction by Muhammad Sadiq, the said temporary allottee. On 3‑6‑1976, this Court made the following order:‑

"It is contended by the learned counsel that the petitioner is the allottee and that he had throughout been living in Wazirabad. According to the impugned order, the petitioner was a fictitious person, while the benefits from the allotted land were bring derived by Muhammad Iqbal, Rehmat, Muhammad Khan and Noor Hussain. Let the petitioner make an application to the Settlement Officer/ Additional Settlement Commissioner, Sialkot, who shall enquire into the matter and submit a report within a month. Notice of this enquiry shall be given to the contesting respondents Nos. 2 to 7 also. Case to come up on the 8th of July, 1976." The matter was inquired into by the Settlement Officer, Sialkot and his report dated 3‑7‑1976 received in office has been placed on file. The inquiry was held, in the presence of the parties, and the conclusions of the inquiry are found in para. 10 of the report. It reads:‑

"It would not be impertinent to state in this connection that when I had decided this case in favour of the respondents on 15‑4‑1975, the report of the process‑server had been received on the summons sent to Muhammad Sadiq to the effect that no man with the name of Muhammad Sadiq resided in the village. At this report, a proclamation was made in the newspaper requiring him to appear in my Court on 17‑3‑1975, but on the failure of the petitioner to appear in the Court, even on that date, ex parts proceedings were ordered. On the date of decision, viz. 15‑4‑1975, Noor Hussain and Rehman Khan gave their statements that no man of the name of Sadiq really resided in Village Kopra and that they were getting the produce of the land unshared by any body. In the absence of any rebuttal the statements of these two witnesses were accepted uncritically and I held that Muhammad Sadiq was not the real person, but was just a fictitious name, Had the facts, now produced before me during the enquiry, been presented before me on 15‑4‑1915, my decision in the matter would have altogether been different from the one which I then took." It was found that Muhammad, Sadiq was a genuine and not a fictitious person. It was further found that he was allotted the land in dispute as temporary allottee in lieu of Free Ration Scheme.

2. I have heard the learned counsel for the parties and examined the available material. Learned counsel appearing for the petitioner Muhammad Sadiq, contended that it is established on record beyond any shadow of doubt that the petitioner was a bona fide refugee and in that capacity was allotted land in lieu of Free Ration Scheme. Temporary allotments made to a Jammu and Kashmir Refugee in lieu of Free Ration Scheme stand protected under para. 4‑A of the Rehabilitation Settlement Scheme and cannot be allotted to any other person. Reliance has been placed upon the rule of law laid down in Mst. Sakina and another v. Manila and 2 others P L D 1977 Lah. 202; Muhammad Khan and 2 others v. Karim Bakhsh and 2 others P L D 1977 Lah.

747. Jan Muhammad and others v. Sher Muhammad and another P L D 1979 S C 985 and Allah Lok and 2 others v. Sadar Irshadul Hassan and 7 others P L D 1982 Lah.

831. Learned counsel stated, that the respondents who were related to Rehman Ali through a fake report of the process server managed ex parte proceedings against Muhammad Sadiq temporary allottee and got the land allotted to them against their verified claim. Muhammad Sadiq writ petitioner was not served at all either in person or through substituted service. Had he been afforded opportunity of hearing, he would have demonstrated to the satisfaction of Additional Settlement Commissioner (Lands) that not only that the allotment was correctly made but he was a genuine bona fide displaced person from the State of Jammu and Kashmir. The proceedings initiated under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 were kept in complete darkness and efforts were made to keep the proceedings ire secrecy from the writ petitioner. In this manner not only the officer conducting the proceedings under sections 10 and 11 of the Act was defrauded but the petitioner also was deliberately kept out of the arena. The impugned order dated 15‑4‑1975 holding that Muhammad Sadiq was a fictitious person, was passed ex parte without affording an opportunity of hearing to the writ petitioner. Learned counsel stated that earlier D.R.C. In his appellate order dated 3‑8‑1964 had found in favour of the allotment. This order must have concluded the question about the genuineness of the writ petitioner's allotment. Inquiry report dated 3‑7‑1976 by the same Officer who had passed the impugned order dated 15‑4‑1975 clearly showed that the order dated 15‑4‑1975 was incorrect and was based on insufficient material supplied to the Court by the respondents in the ex parte proceedings. Order dated 3‑8‑1964 supplemented by the detailed inquiry report dated 3‑7‑1976 proved beyond doubt that Muhammad Sadiq was a genuine temporary allottee and was deprived of his rights through the managed ex parte proceedings. Since the land was allottee to Muhammad Sadiq, he could not be deprived of it in the manner in which the Additional Settlement Commissioner, Sialkot had proceeded on 15‑4‑1975.

3. Ch. Muhammad Abdullah Khan, learned counsel who appeared for respondents supported the impugned order. He stated that the writ petitioner has not produced the original Purchi allotment or Roznamcha Patwari to show that the land was allotted to him Mere entries in the revenue records or Purchi Ishtimai, in the absence of a valid allotment order supporting the change in the revenue records was hardly sufficient to sustain a finding in favour of the writ petitioner qua the making of the allotment in his favour. Learned counsel also stated that the writ petitioner, despite service of process, effected on his known given address, failed to put in appearance in proceedings before the Additional Settlement Consequently, ex parte proceedings were rightly Learned counsel submitted that writ petitioner of the revenue estate and the land allegedly him was being enjoyed by the tenants/ occupants.

4. It is correct that the original Purchi of allotment has not been placed on record. It is also correct that Roznamcha waqiati furnishing the basis for change in the revenue records on the basis of temporary allotment chit has not been produced, but then entries in the revenue records, record Muhammad Sadiq as temporary allottee of the land in dispute. Even Purchi Ishtimal prepared after consolidation in the revenue estate also shows that the land in dispute was allocated to Muhammad Sadiq temporary allottee. Order dated 3‑8‑1964 by the learned Deputy Rehabilitation Commissioner (Lands) in appeal filed by Amanat Ali, father of Muhammad Sadiq temporary allottee, also supported the fact of allotment in favour of Muhammad Sadiq. Report dated 3‑7‑1976 made by the Settlement Officer, Sialkot who also made the impugned order dated 15‑4‑1975 is a fairly detailed report and goes to support the stand taken by Muhammad Sadiq qua his temporary allotment of the land in dispute. In this view of the matter, the contention raised on behalf of the respondents that Muhammad Sadiq is not the allottee or that he is not a genuine person cannot be lightly accepted. It is further apparent from the record that the ex parte proceedings initiated against the writ petitioner, culminating in order dated 15‑4‑1975 were erroneous. On the basis of some material produced in ex parte proceedings, learned Additional Settlement Commissioner, Sialkot, vide order, dated 15‑4‑1975 found Muhammad Sadiq to be an ungenuine person. The same officer, as stated above, has contradicted himself in the subsequent report dated 3‑7‑1976. From all this material, one thing becomes clear that the impugned order dated 15‑4‑1975 passed ex parte against Muhammad Sadiq, a temporary allottee of the land in dispute cannot be sustained. It offended the principle of natural justice inasmuch as no reasonable opportunity had been afforded to him in defending proceedings initiated against him under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, where his allotment was under question on the basis of alleged fraud and misrepresentation. Observation made in order dated 15‑4‑1975 by the Additional Settlement Commissioner Sialkot, recalling the allotment from the name of Muhammad Sadiq and ordering its allotment in favour of the respondents, was obviously an order suffering from improper exercise of jurisdiction. Writ is allowed, the impugned order dated 15‑4‑1975 passed by the learned Additional Settlement Commissioner (Lands), Sialkot is declared to be without lawful authority and of no legal effect. H . B . T . Writ issued.