1983 PLP 1492 (CLC)

"Khata came up today. As per proposal and in the absence of any objection, the same is confirmed." Accordingly, an area measuring 690 kanols 19 marlas was purportedly confirmed in the name of these persons in the manner above‑noted.

5. The petitioner's grievance in all these writ petitions is that despite the fact that purportedly an order of confirmation by way of paper trans. action was passed on 22nd February, 1965 on the R. L. II Khatta No. 6l of the said village, no steps were taken for having this order implemented either by way of taking over possession or entries in the revenue record. The first step in this direction was reflected only in a report made by the Patwvri in roznamcha waqiaiti on 4th May, 1976 on an application dated 16th January, 1976 to that effect being made by Muhammad Hussain to the Assistant Commissioner. This development came to the notice of the petitioners to their good luck and immediately they rushed to the High Court by way of various writ petitions.

6. The main arguments in these cases have been addressed by Ch. Muhammad Nazir Ahmad, learned counsel for the petitioners in half a dozen of writ petitions and the other learned counsel have mainly adopted the same reasoning in addition to making their other submissions as were relevant to the facts of each case.

7. I would summarise the chief objections of the petitioners as follows :‑ (a) that the land under the temporary allotment of the petitioners on guzara basis with them war, excluded from allotment under the West Pakistan Rehabilitation Settlement Scheme by virtue of Para. 4‑A (I) (ix) and thus unless these lands were 5rst lawfully cancelled by a competent authority from the names of the peti tioners, the same were excluded from allotment under the said Scheme, therefore, the order of the D. S. C. (Land) passed in this case without taking the preliminary steps as ordained by law is wholly void and coram non judice. (b) that the impugned order is also void for the simple reason that a land which already stands allotted to a person could not be re‑allotted to a claimant or any other person without first law fully cancelling the previous allotment. There were no steps taken to cancel the petitioner's allotment, therefore, re‑allotment of an already allotted land was wholly without jurisdiction and a complete nullity in law. (c) that even if there was jurisdiction to cancel the petitioner's allotments, the same could not have been done without observing the rule of audi alterom portem. There was no notice given to the petitioners nor they were associated with the proceedings or given an opportunity to defend themselves. The impugned order was void and a nullity in law which did not adversely affect the rights of the petitioners It is further submitted that in case of some of the petitioners even proprietary rights have been conferred by the Ministry of Kashmir Affairs on their depositing the requisite purchase price in accordance with the policy on the subject. The bona fides of the impugned allotment are additionally being challenged on the basis of the circumstances brought on the record that the very claimants who are respondents in these writ petitions, in the year 1968, were through appeals and revisions agitating the matter of grant of land on the plea that the whole of their entitlement was unsatisfied. The learned counsel submits that had the allotments made in 1965 in their favour been really a valid transaction, the respon dents in 1968 could not have themselves taken up the stand that their units which are supposed to have been consumed in 1965 allotment were unsatisfied and that land should be given against them.

8. On behalf of the respondents/claimants; the learned counsel has very frankly conceded in favour of those cases which according to him are straight forward and where the question of very allotment in their favour is genuine and not in dispute. This appears to have sealed the fat, in most of the writ petitions. However, he has raised specific objections in respect of some of the writ petitions which I propose to deaf with later on in this judgment.

9. Apart from the concession being made by the learned counsel for the respondents in this case, I have considered the submissions made by the learned counsel for the petitioners in support of the writ petitions and I. have come to the conclusion that they merit to be sustained for the following reasons ; ‑‑ (a) A plain reading of para. 4‑A (I) (ix) of the West Pakistan Rehabilitation Settlement Scheme framed under section 6(t) of the Pakistan Rehabilitation Act, 1956 and under section 7(I) of the Baluchistan British Regulation, 1950 which has been continued in force under the Displaced Persons (Land Settlement) Act, 1958, clearly spells out that the category of land allotted on temporary basis to J & K refugees will not be allotted under the Rehabilita tion Settlement Scheme and will remain excluded from the Scheme. It follows therefore that the allotment at R. L. 11 Khata No. 61 made in favour of the respondents in the year 1965 by virtue of the Rehabilitation Settlement Scheme was an ac wholly without jurisdiction and void. The D. S. C. concerned would have the jurisdiction to make the allotment only after he was satisfied about the jurisdictional facts that the land which he A was purporting to allot at the Khata was not of the category which was excluded from Rehabilitation Settlement Scheme. perusal of the said R. L. II Khata would show‑ that he was no even conscious of the fact whether the land which was allotte on guzara basis to the petitioners was being re‑allotted by him. His impugned order, therefore, which was passed in oblivion on the mandatory provision of the Scheme would render it void and without jurisdiction. Reliance in this respect may b placed on the following decisions :‑‑ (i) On 14tuhammod and others v. Sher Muhammad and an other P L n 1979 S C 985. (ii) Mst. Sokina Bibi and another v. Mamia and 2 others P L D 1977 Lah. 202. (iii) Allah Lok and 1 others v. Sardar Irshadul Hassan and 7 others P L D 1982 Lab. 831. (iv) In so far as the second argument of the petitioners which is based on re‑allotment of the land without canceling the earlier allotment is concerned, this on the face of it is valid and must be sustained. In this respect it must be observed that the Scheme of the Rehabilitation Laws throughout has been, with few exceptions in special category cases, that where an allotment was made in favour of a person, it had to continue in force unless the same was cancelled in exercise of powers specifically con ferred on a functionary to cancel the same. In the present case no functionary has consciously cancelled the allotment of land made in favour of the present petitioners. Therefore, it cannot be assumed that the petitioners' land stood cancelled by implication. As already observed above, the learned officer who made allotment in favour of the respondents in the year 1965 was not even aware of the fact that the land already stood allotted in favour of the petitioners. Therefore, on proper analysis, no question of canceling the lands of the petitioners ever arose. However, the legal effect of the steps taken by the learned D. S. C. would be that his impugned order would amount to re‑allotting the land without first lawfully canceling the earlier allotments. This could not have been done. Support for this view can be found from the following decisions of this Court :‑ (i) Ghulam Nizam‑ud‑Din Sabri v. Khan Farzand Ali Khan P L D 1961 Lah. 19. (ii) Sh. Barkat Ali v. M. S. Zaman and 2 others P L D 1968 Lab. 770. (c) The third ground pertains to non‑observance of rule of natural justice based on the maxim of audi alterarn partem. The record clearly shows that before passing the impugned order, no notice was Riven to the petitioners nor they were allowed any opportu nity to be associated with the proceedings nor heard. There c' be little doubt that the order of allotment made in favour of an the respondents in these cases had the prejudicial effect of depriving the petitioners of allotments held by them on guzaro basis. Therefore, the impugned order which was passed without hearing them was clearly violative of the rules of natural justice which are to be read into every enactment. Reference may be made to the following decisions :‑ (i) Abdur Rahman v. Collector and Deputy Commissioner P L D 1964 S C 461. (ii) Abdul Wadud Khan v. Chief Land Commissioner etc. P L D 1983 S C

183. The impugned order, therefore,. was void and would be of no effect on the rights of the petitioners.

10. It remains to deal with the point raised by the learned counsel for the respondents regarding the bona fide nature of the allotment made in favour of some of the petitioners. I consider it unnecessary to go into this question in view of the finding which have already been recorded on other matters which go to the jurisdiction and competence of the Officer to pass the impugned order. I have however, on the persuasion of the learned counsel, perused the representation which the respondents were making before the Rehabilitation Authorities for allotment of land to them in satisfaction of their pending units but it does not advance their case.

11. Now 1 propose to deal with the other objections by the learned counsel for the respondents. The main objection of the learned counsel for the respondents was based on the principle of ]aches in respect of Writ Petitions Nos. 147/R‑79 and 334/R‑

82. Taking up the former writ petition, according to the learned counsel, copies in this case were obtained by the petitioner in the year 1976 but the writ petition was filed in the year 1979. This shows inaction and laches on his part. I have seen Annexure 'F' to the writ petition which is a certified copy of the impugned order of the D. S. C. This copy was applied for on 24th November, 1978 and was supplied on 26‑11 in the same year. The writ petition was filed on 6th February, 1979. That shows institution within 90 days of the receipt of the copy find from the date of the knowledge. This to my mind would not constitute excessive laches. The petitioner in para. 6(g) of his writ petition has asserted this very position which stands uncontroverted by affidavit of the respondents. Therefore, both on the factual aspects and in the face of in controverted affidavit, the writ petition does not suffer from laches and is not liable to be thrown out on that ground.

12. There is a similar objection by the learned counsel in respect of Writ Petition No. 334/R‑

82. I have perused Annexure 'D' to the :aid writ petition with the assistance of the learned counsel. l find that the objec tion is misconceived because the petitioner has only filed a plain copy of the impugned order. Therefore, the assumption that he had obtained the copy in 1976 which burdened him with the knowledge of the impugned order way back in that year lacks factual basis. The circumstances lead ing to the filing of this writ petition in 1982 have been listed in para. 9 of the writ petition. There is no counter affidavit filed by the respondents to controvert the same. This writ petition has been admitted today and is being disposed of by consent together with the other writ petitions However, the fact remains that the element of wilful negligence or delay E has not been established against the petitioner.

13. In so far as other factual controversies sought to be raised by the learned counsel for the respondents touching upon the merits of the case of some of the petitioners, I am afraid that would not be within the scope of these proceedings for the reason that where an order has been passed to the prejudice of a party ab initio incompetently and without jurisdic tion, this Court would not turn itself into an original or appellate Court and decide the dispute after permitting the parties to canvass their res pective merits involving factual controversies requiring elaborate inquiries. This was a function properly to be performed by a competent Rehabili tation Authority after considering the material before it and granting an opportunity to the parties to raise their respective contentions or to defend themselves.

14. In the last analysis, the allotment made in favour of the res pondents shall be null and void to the extent of the area allotted to the petitioner in each writ petition. However, if some area is still left out which is not under allotment of the petitioners, that would not be affect ed by the present decision.

15. The writ petitions, therefore, are accepted and the impugned order of the D. S. C. (Lands), Sialkot dated 22nd February, 1965 is declar ed to be without lawful authority and of no legal effect on the rights of the petitioners. There would in the circumstances of the case be no order as to costs. M. Z M. Petition accepted.