1988 PLP 2289 (CLC)

Naveed Saeed Khan for Petitioners. Muhammad Rafiq Khan Chaudhry for Respondents. Date of hearing: 10th November, 1987. This writ petition has been filed by the petitioners on the legal grievance that they could not be lawfuly subjected to proceedings arising out of repeated Mukhbari applications. Moreso, when an earlier Mukhbari application was decided in their favour.

2. The persons at whose instance the impugned proceedings are taken i.e. Faqir Muhammad, Barkat Ali and Jamal Din sons of Allah Bakhsh have given an application (C.M. No.1331 of IS87) for being impleaded as party to the writ petition. This request is being objected to by the petitioners on the ground that the applicants cannot claim to be Mukhbars as their' Mukhbari application was rejected by the order of Mian Waheed‑ud‑Din Rathore, Settlement Commissioner (L) with powers of Chief Settlement Commissioner vide order, dated 25th February, 1977 which is Annexure 'B' to this writ petition. There was a further observation made by that officer that if they so wished they could apply and become party to pending Writ Petition No. 784/11 of 1975 before the High Court.

3. Ch. Muhammad Rafiq Khan, Advocate admits that the applicants filed Writ Petition No. 373/11 of 1978 of their own. This writ petition was withdrawn by the clients of Ch. Muhammad Rafiq Khan, Advocate on 4‑12‑1979. The result was that the order dated 25th February, 1977 continued to hold the field. Learned counsel for the applicants submits that Writ Petition No. 784/11 of 1975 had been decided on 30th October, 1978 to which they had got themselves impleaded as a party. I have checked up the record of Writ Petition No. 784/11 of 1975 which shows that the applicants never got themselves impleaded as a party to those proceedings. Mr. Rafiq Khan states that his clients got themselves impleaded as a party not in writ petition as required by the Settlement Commissioner in his order dated 25‑2‑1977 but in remand proceedings. The question, however, remains that the order dated 25‑2‑1977 sealing the fate of the applicants continued to occupy the field. However, since the impugned proceedings are being taken purportedly on the Mukhbari application of the applicants, they could apply to be proper parties and thus are impleaded as respondents and are being heard though they have approached this Court belatedly on a day when the main writ petition is fixed for hearing.

4. The Mukhbari application filed by Abdus Salam, etc, having been dismissed on 27th May, 1980 by a Notified Officer in pursuance of remand order passed in Writ Petition No.784/R of 1975, nothing then remains in the field against the petitioners. I have asked the learned counsel for the applicants as to why he failed to assail that order in remand arising out of Writ Petition No.784/R of 1975. He has tried to create some confusion regarding the disposal of the case in remand. I entertain no doubt with respect to this fact that the order, dated 27th May, 1980 was' passed by a Notified Officer with the powers of Chief Settlement Commissioner in pursuance of remand order made by the High Court. The opening words of the order read as follows:‑ "The above‑titled case has been remanded from the Hon'ble High Court on the petition of Mst. Hussain Bibi, etc."

5. I have seen the record of Writ Petition No.784/R of 1975 which shows that indeed this was Hussain Bibi's writ petition which was remanded by Hon'ble Mr. Justice Abdul Shakurul Salam vide order dated 30th October, 1978. There can thus reasonably to no manner of doubt left that the matter decided on 27‑5‑1980 in remand was the same as ordained by the order of the High Court in Writ Petition No:784/R of 1975 dated 30th October, 1978.

6. The sum total effect of this is that the order dated 25‑2‑1977 passed by Mian Waheedud Din Rathore, Settlement Commissioner occupied the field and remained operative. The grievance of the petitioners is that the clients of Ch. Muhammad Rafiq Khan instead of getting the order dated 27‑5‑1980 set aside, have got a notice issued from another officer and the petitioners were summoned to appear before the Notified Officer on 9‑8‑1980 in the matter of same Mukhbari application which was not available to them.

7. I have asked Ch. Muhammad Rafiq Khan, Advocate to show any order whereby the order of Mian Waheedud Din Rathore dated 25‑2‑1977 had been specifically set aside by any functionary with lawful authority. Counsel admits that no specific order has been passed setting aside the order dated 25‑2‑1977. However, he wants to place different interpretation on the effect of the aforesaid order. After having perused the order, I entertain no manner of doubt with the observation of the Settlement Commissioner that no relief could be given to the petitioners on the basis of this Mukhbari application, the fate of the clients of Ch. Muhammad Rafiq Khan was sealed and the application stood disposed of unless that order was got set aside or the procedure pointed out by the Notified Officer was followed. None of these things happened. I do not think Faqir Muhammad, etc. in these circumstances can be allowed to persecute the petitioners having no locus standi in the matter. The impugned proceedings, having commenced on the basis of an application given and order passed after the repeal of the Act and despite other Mukhbari application having been decided in favour of the writ petitioners, the Mukhbari proceedings at the instance of the respondents became a closed chapter vide order dated 25‑2‑1977. the assumption of jurisdiction by the Notified Officer amounts to excess of jurisdiction. The respondent is thus restrained from doing that which he is not permitted by law to do. The writ of prohibition is accordingly issued restraining the Notified Officer from taking any proceedings in the matter. The writ petition is accepted in the above terms. The proceedings being taken at the instance of the respondents on an application instituted after the repeal of the Act, being void and incompetent are declared to be without lawful authority and of no legal effect. There shall be no order as tc costs in the circumstances of this case. H . B . T . / H‑71 / L ‑‑‑‑‑‑ Petition accepted.