1996SCMR789 (PLP)

ZIA MAHMOOD MIRZA, J.

Petitioners seek leave to appeal against the judgment of a learned Single Judge of Lahore High Court, dated 6-12-1993 dismissing- their writ petition filed against the order of Deputy Settlement Commissioner (L) with the powers of Chief Settlement Commissioner, Daska whereby their 'Mukhbari' application against the allotment of Muhammad Sadiq, the predecessor-in-interest of respondents Nos. l to 6 herein was rejected.

2. Facts giving rise to this petition, briefly stated, are that Muhammad Sadiq, AJ&K refugee was allotted some land in village Kopra, Tehsil Daska, District Sialkot. Petitioners Nos.3 and 4 and Noor Alam, the predecessor-in- interest of petitioners Nos.1 and 2 filed a ' Mukhbari' application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 against the allotment of Muhammad Sadiq. It appears that Muhammad Sadiq did not turn up to contest the ' Mukhbari' application. He was, therefore, proceeded against ex parte and the application was accepted by the Additional Settlement Commissioner (L) by his order dated -15-4-1975 holding that Muhammad Sadiq was a fictitious person. His allotment was accordingly cancelled and it was further directed that the land in dispute be allotted to the petitioners/informers according to their entitlement. Pursuant to this direction, the land cancelled from the name of Muhammad Sadiq was allotted to the informers Noor Alain and petitioners Nos.3 and 4 against their entitlement. 36 Kanals 16 Marlas of land allotted to Noor Alain is stated to have been purchased by petitioners Nos. l and 2.

3. Muhammad Sadiq challenged the order of the Additional Settlement Commissioner dated 15-4-1975 in a Constitutional Petition (W.P. 802-R/76) which was accepted by the Lahore High Court on 24-11-1984 and the case was remanded to the learned Member, Board of Revenue to entrust it to any competent notified officer "to, re-examine/redetermine the matter afresh after affording an opportunity of hearing to both the parties".

4. In post-remand proceedings, the Notified Officer after taking the evidence adduced by the parties dismissed the ' Mukhbari' application vide order dated 6-7-1989 holding that "Muhammad Sadiq is a real person to whom the land was allotted temporarily for subsistence on the strength of Permit No.2966 and that he resided in Wazirabad from where he obtained his identity card also. There seems to be good truth in his statement that he is permanently residing there. Thus the enforced absence of Muhammad Sadiq or for that matter of his father, Amanat Ali does not, in anyway derogate from the reality of these men and consequently their claim for continued allotment of land in their favour is fully made out".

5. Feeling aggrieved, the present petitioners approached the High Court through Writ Petition No.148-R/1989 to assail the validity of the order of Notified Officer dismissing their ' Mukhbari' application. The only grievance made by the petitioners in the High Court was that they moved an application before the Notified Officer for summoning the record from the office of the Assistant Director, Registration, Faisalabad which application was not disposed of. The learned Judge in the High Court repelled this contention with the observation that "the case was remanded by this Court in 1984 and the application referred by the learned counsel for the petitioners was filed in 1988 and it is not shown whether the same was pursued. The application is relatable to the summoning of identity cards in order to show that respondent Muhammad Sadiq was a 'fictitious person and even if the record was not summoned it would not prejudice the case of the informer as there was already enough evidence to hold about the genuineness of respondent No.

1. The plea of the learned counsel assailing the order on the ground, stated above, is neither here nor there". The learned Judge further held that after the remand, parties were given ample opportunity to present their case and both the parties produced evidence, oral as also documentary, which evidence was duly considered by the Notified Officer when dismissing the ' Mukhbari' application. The learned Judge also referred to an earlier report dated 3-7-1976 submitted by the Settlement Officer, Sialkot in the previous writ petition filed by Muhammad Sadiq wherein the officer had explained that he had decided the ' Mukhbari' application ex parte against Muhammad Sadiq on the basis of the statements of the witnesses produced by the informers and there was no evidence in rebuttal on record. The officer had observed in that report "had the facts, now produced before me during the enquiry, been presented before me on 15-4-1975, my decision in the matter would have altogether been different from the one which 1 then took" and recorded a definite finding that Muhammad Sadiq was a genuine and not a fictitious person. It was accordingly held by the learned Judge in the High Court that "the previous litigation and the enquiry report dated '3-7-1976 submitted to this Court and the entire evidence referred to in the impugned order unmistakably show that ' Mukhbari' application is not maintainable either on merit or in law". Writ petition filed by the petitioners was thus dismissed vide the impugned judgment.

6. Learned counsel appearing for the petitioners reiterated before us the same grievance which was agitated by the petitioners in the High Court viz. that the petitioners had made an application before the Notified Officer for summoning the record from Assistant Director, Registration but the same remained undisposed of. According to the learned counsel, if the requisite record had been summoned, the petitioners could have established from that record that Muhammad Sadiq was a fictitious person and had no existence. This grievance, as noted above, was repelled by the learned Judge in the High Court and for good reasons. Learned counsel has not denied that although the case remained pending before the Notified Officer for about four years, the application in question was moved by the petitioners only when the matter was fixed for arguments. Be that as it may, question whether Muhammad Sadiq was a' fictitious person was purely one of fact which stood concluded by the finding recorded by the Notified Officer after appraising all the relevant evidence produced by the parties and it was not open to review in writ jurisdiction. Nonetheless, the learned Judge in the High Court satisfied himself by referring to all the material available on the record that the finding of the Notified Officer that Muhammad Sadiq was a genuine and real person who was allotted the land in dispute was justified.

7. Learned counsel also sought to contend that Assistant Commissioner, Daska who after the remand by the High Court passed the order dated 6-7-1989 was not a Notified Officer. On our query, learned counsel quite fairly conceded that the petitioners had not raised any objection before the Officer as to his competence nor was this question raised in the High Court. That being so petitioners cannot be permitted to agitate this question for the first time before us.

8. It was next contended by the learned counsel that petitioners Nos. l and 2 were not impleaded as parties in Writ Petition No.802-R/76 filed by Muhammad Sadiq against the order of the Additional Settlement Commissioner dated 15-4-1975 nor were they heard by the Assistant Commissioner, Daska in post-remand proceedings. This contention, too, does not appear to have been raised in the High Court and as such does not merit any serious consideration. It may, however, be observed that Noor Alam from whom the petitioners had purchased the land in dispute had all along been a party in the proceedings.

9. Upshot of the above discussion is that this petition has no merit and the same is accordingly dismissed. A.A./M-3213/S Petition dismissed