1986 PLP 2573 (MLD)

2. The dispute relates to land measuring 19 Marlas comprising of Khasra No.1798 of village Dulls, Tehsil and District Gujranwala. This Khasra number together with Khasra No.4112/1812/1/1 measuring 5 Marlas was originally transferred to one Abdur Razzaq son of Maula Bakhsh and confirmed in his name at Khata No.30 of RL‑II (Urban) of village Dulla mentioned above. Abdur Razzak sold this parcel of land through registered sale‑deed, dated 9‑1‑1967 to the petitioners for a sum of Rs.7,

000. Mutation 4421 pertaining to this sale was sanctioned on 31‑1‑1961. The petitioners thereafter, built a house on the disputed land. The facts of sale was duly incorporated in the Jamabandis of the abovementioned village and the land in dispute was shown as 'Ghair Mumkin Makan' in the Jamabandis for the years 1969‑70 and 1973‑

74. The petitioners are shown owners in possession in the abovementioned Jamabandis.

3. The said land was, however, agricultural at the time of partition as is apparent from the Jamabandi for the year 1946‑47 a copy whereof has been annexed with this petition as Annexure. 'D'.

4. On 7‑9‑1976, one Muhammad Siddiq, Settlement Inspector of the office of the Deputy Settlement Commissioner (Urban Wing) Gujranwala made a report that one Mst. Hafizan Bibi had applied for transfer of house No. B‑13‑1398 but her form which was not entered in the C . S . C . II Register was lying undisposed of. On this report noting was made by the office of the Settlement Commissioner in which it was stated that "the form of aforementioned Mst. Hafizan Bibi has been lying undisposed of though filed in time." It was also reported that "this is 'available property' under Scheme No. VIII and it has not been transferred to anyone." Further, averment in the report is that "there is no assessment in the record of the Department regarding this property." The learned Deputy Settlement Commissioner, Gujranwala, by his order, dated 15‑9‑1976, accepted the report after recording the statement of Mst. Hafizan Bibi and directed transfer of the property in dispute in her favour.

5. The petitioners feeling aggrieved by this order have come up against it through the present constitutional petition.

6. The learned counsel for the petitioners raised the following contentions:‑ First, that the property in dispute was agricultural land in the year 1946‑47 and had been 'rightly transferred to the predecessor‑in‑interest of the petitioners under the Land Settlement Act and that the dealing of this property by the Urban Wing of the Settlement Department was wholly without jurisdiction. Secondly, that in any case on 15‑9‑1976 the Deputy Settlement Commissioner could not have passed any order as by then the Evacuee Property and Displaced Persons Laws had been repealed and there was no jurisdiction with Settlement Department with regard to property which had been finally transferred; Thirdly, that the impugned order is otherwise also illegal as it has been passed without notice to the petitioners and at their back; Fourthly, that according to the report of the office of the Deputy Settlement Commissioner the property had no assessment record which also supports the contention of the petitioners that the property was "agricultural land" and it had been rightly transferred as such; and Lastly, that the property in dispute having already been transferred to the predecessor‑in‑interest of the petitioners it was not an "available property" within the scope of Scheme No. VIII and the transfer order is, therefore, wholly without jurisdiction.

7. No one has appeared to contest this petition on behalf of respondent No.2 who has been proceeded against ex parte. The contentions raised on behalf of the petitioners are, therefore, going unrebutted.

8. Otherwise also the contentions raised on behalf of the petitioners have force and are well‑supported by documents on record. The impugned order which had been passed on an assumption based on the incorrect report of the subordinate staff of the office of the Deputy Settlement Commissioner, Gujranwala that the property in dispute was "available property" and liable to be transferred under Scheme No.VIII cannot, therefore, be upheld.

9. The impugned order as is apparent from its very tenor having been passed at the back of the petitioners also offends against the, principles of natural justice and the provisions of law on the subject and cannot be sustained on this score as well.

10. In view of the foregoing discussion, this petition is accepted and the impugned order passed by the Deputy Settlement Commissioner (Urban) Gujranwala, dated 15‑9‑1976 is quashed. Since the respondent has not appeared to contest this petition, there will be no order as to costs. H.B.T. Petition accepted.