1992 PLP 298 (CLC)

W.P. No.188/R‑82 129 Kanals 12 Marlas 30‑7‑1957 W.P. No.290/R‑82 106 " 5 " 2‑6‑1957 W.P. No.291/R‑82 113 " 7 5‑3‑1962 W.P. No.292/R‑82 " 30 " Through decrees dated 18‑3‑1980 of Civil Court in suits of pre‑emptions.

3. These petitioners submitted 'applications in 1975 to the Ministry of Kashmir Affairs for the purchase of land allotted to them. It was on 31‑10‑1977 when the applications were accepted and the petitioners were directed to deposit the price of land determined by the Ministry of Kashmir Affairs. Accordingly they paid the price and so became owners of the land

4. The dispute erupted on 10‑5‑1980 when one Mian Fazal Hussain, herein respondent in all the petitions, submitted a joint application alleged therein that neither the petitioners were refugees from occupied Jammu and Kashmir State, nor they had verified claims and so the allotments secured by them were fraudulent in nature; that the land allotted to the petitioners was situated in urban‑area and so could not be granted to them for maintenance purposes. This application was addressed to the Settlement Commissioner (Land), and was withdrawn by the applicants on 14‑1‑1981 and so was dismissed as having been withdrawn. This was not the end of the matter. The cudgel was now taken by one Manzoor Hussain, herein respondent No.6 in W.P. No.188/R‑82, who submitted an application to the same effect to the Deputy Commissioner, who on 5‑8‑1980 sent a confidential memorandum to the Settlement Commissioner (Land) Lahore to the effect that the allotments in favour of the petitioners were with respect to land which was urban in nature and so the orders of allotments in their favour were null and void. He recommended that the cases be registered against the present petitioners. The learned Settlement Commissioner in reply to this memorandum also sent a secret message permitting the Deputy Commissioner to take appropriate action. Equipped with this guidance, the Deputy Commissioner proceeded to pass order dated 10‑4‑1982 by which he cancelled the allotment of the petitioners, and Rabokar was issued to the same effect on 27‑4‑1982. These are subject‑matter of challenge in these four writ petitions.

5. The learned counsel appearing on behalf of the petitioners impeached the validity/propriety of the impugned order on the following grounds:‑ Firstly, that the Deputy Commissioner passed these orders absolutely in a clandestine and surreptitious manner. Neither the petitioners were summoned nor any opportunity of bearing was provided to them. As such these orders were in defiance of the principle of natural justice "Nobody shall be condemned unheard." Secondly, that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Settlement Authorities became functus officio from 1‑7‑1974 and so the matters concerning allotments became past and closed transactions. These transaction could not be reopened by the Settlement Authorities after the target date noted above; Thirdly, that the allotments were made to the petitioners as refugees from Jammu and Kashmir State as maintenance grants that the sale transactions were made by the Ministry of Kashmir Affairs; that the applications were given under the provisions of Sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. It was contended that these allotments were excluded from compensation pool under para. 4‑A of the West Pakistan Rehabilitation Settlement Scheme, 1956 and so provisions of Displaced Persons (Land Settlement) Act, 1958 including Sections 10 and 11 thereof were not applicable to the facts of these cases. Reliance was placed on Ghulam Muhammad and another v. Ahmad Khan and another (PLD 1991 SC 391). Fourthly, that the order passed by the Deputy Commissioner was stereotype in nature and passed without application of mind. As such, according to the learned counsel these orders were devoid of any legal efficacy.

6. The learned counsel (Mr. Muhammad Rafique Khan) appearing on behalf of Mian Fazal Hussain, respondent, supported the stand taken by the petitioners and stated that he had withdrawn the application and so there was no warrant for continuing the proceedings.

7. The learned counsel Sh. Abdul Aziz, appearing on behalf of respondent Manzoor Hussain, stated that he had also given application to the same effect alleging therein that the land allotted to petitioners was situated in Rasul Nagar, which was an urban area. According to him this land could not be granted to the petitioners and so the initial orders of allotment in favour of the petitioners were totally illegal and bereft of legal authority. He placed reliance on the rule laid down in Abdur Rahim etc. v. Hassan Muhammad etc. (NLR 1984 S C J 6) and Muhammad Baran and others v. Member (Settlement & Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 SC 691).

8. The learned counsel appearing on behalf of official respondents stated with fairness that he was not in a position to support the impugned order as it was passed without jurisdiction.

9. I have heard the learned counsel for the parties at considerable length. From the examination of impugned orders, it is crystal clear that the Deputy Commissioner has passed the order without applying his mind to the facts and the circumstances of the case by relying upon the report of the Addl. Deputy Commissioner (G). The orders are not speaking orders by any standard. The facts are not disputed that the petitioners were allotted the land in the capacity of refugees from Jammu and Kashmir for maintenance purposes; that this land was sold by the Ministry of Kashmir Affairs to them; that they had been in possession of the land allotted to them. In such circumstances these allotments could not have been undone by stroke of pen without undertaking any inquiry in respect of factual allegations. Even the Deputy Commissioner did not address himself to discover or find out the law under which he initiated proceedings and passed the impugned orders. Such order in my considered view is totally without jurisdiction and cannot V sustained. It is a well‑settled principle of law that the orders passed without jurisdiction are liable to be struck down in constitutional jurisdiction of this Court, which is intended to keep various functionaries of the State within the defined orbit of their authority.

10. In the light of foregoing reasons I have no difficulty in reaching the conclusion that the orders passed by the Deputy Commissioner in all the four cases were wholly without jurisdiction. These are declared as such and are thus quashed.

11. Before closing this judgment I feel it necessary to examine the contention of the learned counsel for Manzoor Hussain, respondent, that the land allotted to petitioners was situated in urban area and could not be allotted to them. This is a mixed question of law and facts and cannot be examined in constitutional jurisdiction of this Court at this stage. However, this does not foreclose this question as in Shamrooz Khan v. Muhabbat Khan (1989 SCMR 819), it was held:‑ "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others (PLD 1975 SC 331). On no principle, known to the constitutional jurisdiction, the power of the Tribunal to adjudicate any matter within its jurisdiction could be pre‑empted by the High Court in the words in which it has been done. The custodian of the record is the best Judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court. This judgment was followed in S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation and Secretary to Punjab Govt). and others (1990 CLC 1174) and was further reiterated in Muhammad Baran and others v. Member (Sett. & Reh.) Board of Revenue, Punjab and others (PL D 1991 SC 691).

12. In the light of rule laid down in the above noted authorities, it is quite clear to me that respondent, Manzoor Hussain, in W.P. No. 188/R‑82, can seek his grievance redressed before the appropriate forum under the law. Any observation made in this order shall not affect such determination. With the above observations these writ petitions are accepted. There shall be no order as to costs. AA./M‑3146/L Petitions accepted.