1999 PLP 10 (CLC)

2. The petitioners' predecessor‑in‑interest, Ahmad Noor Khan (their father) owned agricultural/urban land in village Kayer, District Ajmair, India. He died there leaving behind the petitioners as his successors‑in‑interest. After migration from India to Pakistan the petitioners filed their claim which was processed and accepted and entitlement certificate for 3888 units was issued jointly. They were allotted land in village Haveli Bahadur Shah, District Jhang in the year 1960 measuring about 2132 Kanals and 7 Marlas.

3. By operation of paragraph 5 of Martial Law Regulation 89, their entitlement was reduced to 2216 units. A matter of identical nature regarding application of paragraph 5 of the Martial Law Regulation 89 came up for consideration before a Division Bench at Karachi of West Pakistan High Court Qamar Ara Begum etc. v. Chief Settlement Commissioner PLD 1966 Kar. 535 and it was observed that every claimant is entitled to get his entitlement under para.5 of the said Regulation and their claim should have been separately considered for the purpose of para.5 of M.L.R.

89. It was observed that "according to the definition of word "claimant" and the language of para.5 of the said Regulation it is abundantly clear that the rights of the claimant are to be separately considered for purpose of issuance of entitlement under it".

4. This judgment of the High Court and another judgment in Writ Petition No.521 of 1966 decided on 18‑2‑1972 received attention of the Government of Pakistan and instructions were issued vide memo. dated 14‑5‑1974 that "the entitlement of every claimant obviously meant entitlement in respect of each claimant separately in his own right and for that matter the cut provided under para. 5 of M.L.R. 89 should apply to each individual claim and not to those preferred jointly. In the circumstances this division letter, dated 26/27‑3‑1971 is hereby withdrawn with the request that separate entitlement certificates against joint QPR‑‑1/URI Forms may be allowed".

5. The case of the petitioners is that in pursuance of the aforesaid instructions the individual entitlement of all the heirs of late Ahmad Noor Khan was worked out and the reduction of 1672 units applied to them was rectified as per Annexure "E", dated 26‑4‑1975. Admittedly the allotment of land measuring 1054 Kanals and 17 Marlas was cancelled due t6' cut in their entitlement from their names but they claim to have continued their possession over the allotted land.

6. The petitioners agitated before respondent No.2 for restoration of their wrongful resumption of 1054 Kanals and 17 Marlas but their case was not considered in its true perspective and memo., dated 13‑6‑1983, lacked application of mind. They made representation, dated 16‑11‑1983 and were informed on 3‑1‑1984 with reference to their representation, dated 16‑11‑1983 that "under para. 9, of M.L.R. 89 surrendered land vests in the Colony Department of the Provincial Government. This Department is, therefore, unable to render any assistance. " It is this order/letter which has been assailed by the petitioners in this petition.

7. Learned counsel for the petitioners contends that by misapplication of paragraph 5 of Martial Law Regulation 89 the entitlement of the petitioners was reduced as a result whereof, their allotment was substantially decreased although they were under the law entitled to have their separate individual entitlement and allotment against each. It is further contended that once the legal position had become clear by pronouncement of judgment as reported in PLD 1966 (W.P.) Kar. 535 and pursuant instructions of the Government of Pakistan, the petitioners were entitled to restoration of the land illegally resumed from them. The grievance of the petitioners is that their case was not considered in the light of law applicable and prevailing and have been deprived of their valuable right on a superficial approach to the matter and that if the petitioners had been afforded an opportunity before passing any order as communicated through letter, dated 3‑1‑1984, they would have explained their case.

8. The contention of the learned counsel that the entitlements of the petitioners are to be separately considered for the purpose of para. 5 of Martial Law Regulation 89 is supported by the judgment of Karachi Bench supra) as also the instructions issued by the Government of Pakistan and it appears that paragraph 5 of Martial Law Regulation 89 was not correctly applied while reducing their entitlement. If the individual entitlement of each of the petitioner is taken into account their allotment was prima facie valid and there could be no question of surrender/resumption of 1054 Kanals and 17 Marlas from their names. If at some stage the legal position was obscure the same became quite clear after the judicial pronouncement and the instructions of the Government. The Government functionaries were thereafter, obliged and bound to act in accordance with law and if some wrong had been done to the petitioners, the same was liable to be rectified. The order of respondent No.2 besides being violative of the principle of Audi alteram partem having been passed without notice and hearing them is also illegal for the reason that it is the result of non- application of judicious mind to the subject‑matter of the case.

9. In sub and substance the grievance of the petitioners at this stage is quite limited; I.e., applications for redresal of grievance and representations, have not been considered by application of judicious mind to the same and that they are entitled to be heard by respondent before passing any order.

10. The grievance of the petitioners as summed up is not wholly unjustified. Every citizen is entitled to be treated in accordance with law at enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. At the same time it is the duty of statutory functionaries to act in accordance with law and redress the grievances of the citizens accordingly. There is no allegation of any misrepresentation or fraud as to the entitlement of the petitioners. The only dispute was as to the application of paragraph 5 of M.L.R 89 which as per contention of the petitioners was wrongly applied in this case as a result of which they were deprived of a substantial portion of their allotment. Be that as it may, respondent No. l who was approached by the petitioners through representation voicing their grievance and redressal of the injustice done to them is obliged to deal with their case by applying judicious mind to the same and decide after notice and hearing them in accordance with law. Since the communication, dated 3‑1‑1984 impugned in this petition as a result of some order passed in the secrecy of the office of the respondent was without any notice or hearing the petitioners, the same is not proper and lawful disposal of their representation. In view of the above, respondent No. l is directed to decide the representation of the petitioners afresh by giving them notice and hearing in accordance with the law. Since the matter is quite old, it shall be decided within a period of two months. The petition is accepted in the above terms. No order as to costs. A.A./F‑57/L Order accordingly.