1980 PLP 736 (CLC)

The petitioners' case is that they, claiming through the original right holder Noor Muhammad alias Noor Bakhsh who was their father and who had died in India before the Partition, filed four separate claims bearing Nos. 372, 145., 147 and 370, but as their names had not been recorded by way of mutation of inheritance in India, their claims were not verified by the Record Room. They, thereupon, filed a Claim No. 1345 in the name of the said Noor Muhammad. The claim was verified and land was allotted under Khata Nos. 87 and 303!87, situate in village and Tehsil Chiniot, Disirict Jhang, vide R. LII, Annexures 'A' and Wand Farad-e-Haqiat Annexure 'C'. Thereafter, mutation in favour of the petitioners as heirs of the original right-holder was recorded on 20-11-1952, vide Annexure 'D'. The petitioners cultivated and developed the land. In 1965, however, an appli cation was moved under sections 10 and 11 of the Displaced Persons (Land Settlement) Act and at the instance of the. Enforcement Staff, a criminal case was also registered but that case was withdrawn under section 494, Cr. P. C. on 30-10-]

969. In the meant me, however, the proceeding under sections 10 and 11 had been adjourned by the Additional Settlement Commissioner on 1-10-169, for summoning certain record. On 12-10-1970, the allotment of the land in question was cancelled from the names of the petitioners. Hence this writ petition.

2. One of the grounds taken is that the petitioners had not been served and as such the impugned order passed ex parte was without lawful authority. The impugned order says that the petitioners had not appeared in spite of the publication of the notice. The comment dated 11-1-1971 received in this writ petition gives more details of the attempt by the authority to serve them. It says, however, that Muhammad Hussain one of the petitioners had been attending the proceeding until 1-10-1969, that notices had been issued per registered post and also through the process-server and that the latter had reported on 30-5-1370 that the petitioners had refused service. The publication had been made in the daily "Shots", Sargodha on 23-5-1910. The question whether the petitioners bad been served is one of fact which should have been agitated before the Settlement authorities. The petitioners could have moved an application for re-hearing of the matter on the plea of lack of service, upon acquiring knowledge of the impugned order so that the contention as to the absence of service could have been examined. The proviso subsection to of section 11 of the Displaced Persons (Land Settlement Act, 1958, bars the passing of an order without giving the person affected thereby a reasonable opportunity of being heard. No decision of the Chic Settlement Commissioner acting under section 11 could be attributed validity unless the said condition has been fulfilled. If, therefore, the petitioners could satisfy the authority that they had not received any notice, then they were entitled to a re-hearing. Learned counsel, however, submits that the authority was not clothed with any such power of re-hearing. 1 do not agree principle in such a situation has been amply discussed in Mst. Shah anan Begum v. Mst. Shabbir Fatima and another (P L D 1972 Lah. 546), and Muhammad Mirza v. Mst. Khurshid Begum (P L D 1972 Lah. 603). In the first cited case, there was the. question of restoration of a revision petition dismissed in default. Section of the Act gives powers to restore only appeals dismissed in default but doe3 not speak of a revision. Nevertheless, it was held that such power is. to be "deemed to be in the nature of inherent powers of the statutory functionary concerned while dealing with a quasi-judicial mattes." The second case concerned the setting aside of an ex parte order made under to, West Pakistan Urban Rent Restriction Ordinance, 1959, in which the contention that the setting aside was in the nature of a review for which there was no provision in the Ordinance, was repelled with. the observation that "the applications for claiming a re-hearing on the ground of earlier absence doe to some sufficient cause are not in the nature of a review" and that "an application to claim are-hearing being in the nature of a prayer to cum natural justice will always be available." The point was made very clear in the following further observation: "The theory of finality of orders and judgments has no effect on the right of a defendant to claim are-hearing of matters which have been decided against him ex parte, if he can show a good or sufficient cause for his absence on the relevant date." I find that as early as 1964, the Supreme Court had in Muhammad Farooq Imam v. Claims Commissioner, Lahore and 2 others (PL D 1964S C 585), held: "We are unable to hold that the ex parte decision of the case is due to default on the part of the appellant. Under the circumstances we are of the opinion that the appellant is entitled to an opportunity of being heard before the case is decided." See also my own judgment' reported in P L D 1975 Lah. The petitioners not having taken the proper remedy on a question of fact, cannot now be permitted to raise the contention which is against the facts recorded in to impugned order and which cannot be resolved except by an enquiry.

3. As regards the merits of the matter, the impugned order records that . the allotment secured in Chiniot had been bogus. The departmental comment shows that the authority had acted on the reports received from the Central Record Office and that the petitioners had also secured allotment to the full satisfaction of their claim in Chak No. 108, Shumali, Tehsil Shahpur, District Sargodha. I have checked up from the record brought by the officials of the Central Record Office. In that record, the original title-holder's name is entered as Noor-ul-Hasan son of Karim Bakhsh, caste Sheikh, and his entitlement was: Bighas Biswas (i) Ownership area . . 4 2 (ii) Mortgaged area . . 4 2 Total :

8 4 This area is entered in the Register Haqdaran at Serial No. 72, in respect of claim Nos. 147, 370, 145 and

372. On the s`2t." Claim No. 1345, two areas had, however, been entered i. e., 8 Bighas, 4 Biswas of Noor-ul-Hasan son of Karim Bakhsh and 25 Bighas of one Noor Muhammad son of Nabi Bakhsh, caste Beopari. When afterwards claim form No. 12090 was received in respect of the entitlement of the said Noor Muhammad son of Nabi Bakhsh, his claim was verified and in the result only the area of 8 Bighas 4 Biswas remained in the name of Noor-ul-Hasan son of Karim Bakhsh. A report to this effect was made by the Central Record Office on 5-8-1966. According to the record of the Central Record Office, this is the only area in the name of Noor-ul-Hasan son of Karim Bakhsh.

4. Learned counsel for the petitioners submits that the Settlement Authority has riot only taken away the land allotted against 25 Bighas, but also the land allotted against 8 Bighas, 4 Biswas, that the petitioners have no land allotted ;n their name in Chak No. 108, Shumali, Tehsil Shahpar, that the allottees of that land must be some other persons and that the petitioners have been left with no land whatsoever in respect of their claim.

5. The petitioners have given in the present writ petition the name of the original title-holder as "Noor Muhammad alias Noor Bakhsh", whereas his name, as entered in the record of the Central Record Office, is Noor-ul Hasan son of Karim Bakhsh, caste Sheikh Reopari. It is contended that in spite of this apparent difference in the name the original title-bolder is the same. This is, however, a matter to be considered and decided by the Settlement authority, because if the petitioners are heirs of Noor-ul-Hasan son of Karim Bakhsh, then they are entitled to allotment to the extent of 8 Bighas, 4 Biswas of land.

6. Learned counsel prays that as the petitioners have remained in occupation of the other land allotted to them against 25 Bighas and had deve loped the same should be re allotted that land also as excess land. Is cc no-justification for claiming that land.

7. In the result, the impugned order dated 12-10-1970, whereby the entire land of the petitioners had been cancelled is held to be without lawful authority and of no legal effect. The notified officer shall re-examine the case of the petitioners as to their entitlement to allotment of land against 8 Bighas, 4 Bi'swas entered in the name of Noor-ul-Hasan son of Karim Bakbsh. There shall be no order as to costs. K. M. A. Petition dismissed.