2001 PLP 1608 (CLC)

(i) Jahan Dad son of Fordil 2306, dated 12‑12‑1972 13 ‑ 2 Marlas . (ii) Muhammad Mukhtar 2322, dated 19‑3‑1973 2 ‑ 5 Marlas (iii) Saleem Khan 2300, dated 19‑7‑1973 112 ‑ 3 Marlas (iv) Ghulam Khan, Aman Khan and Ismail Khan 2387, dated 31‑12‑1973 6 ‑ 6 Marlas (v) Ismail Khan and Muhammad Aslam Khan 2470, dated 7‑7‑1976 408 ‑ 0 Marla

4. Petitioners Nos. 1 to 6 pre‑empted the sale of land measuring 408 Kanals in favour of Ismail Khan, and Muhammad Aslam Khan, and obtained a decree in their favour on 4‑2‑1979, which was executed and Mutation No.2696 was sanctioned in their favour on 6‑1‑1980 and the decree was also incorporated in the Revenue Record. Similarly, petitioners Nos. 15 to 19 pre- empted the sale of land measuring 112 Kanals, 3 Marlas in favour of Saleem Khan and the pre‑emption decree was passed in their favour on 9‑12‑1975. The decree was executed arid Mutation No.2484 was attested in favour of petitioners Nos. 15 to 19 on 19‑4‑1976. The petitioners Nos. l to 6 and 15 to 19, the pre‑emptors, were put in possession of the lands so pre‑empted by them in the execution of the decrees passed in their favour.

5. Petitioners Nos. 15 to 19 sold part of the land pre‑empted by them to various persons as under:‑‑‑ (i) Muhammad Amin, 6 Kanals, 7 Marlas vide registered Abdul Majid and Miskeen. sale‑deed No.2327, dated 5‑7‑1916. (ii) Zumarrad son of Nawab 3 Kanals (iii) Sher Bahadur 3 Kanals Muhammad Amin (now dead) gifted his 1/3rd share to his wife Mst. Anwar Sultan, petitioner No.20 vide Mutation No.98 attested on 26‑5‑1982. Similarly. Abdul Majid gifted his 1/3rd share to his daughters namely Mst. Bibi Sairan and Mst. Bibi Sughran, petitioners Nos.21 and 22 Petitioners Nos.15 and 17 mortgaged their 4/9 share in the land measuring 112 Kanals, 3 Marlas, favour of the Agricultural Development Bank of Pakistan for a sum of Rs.16,000, vide Mutation Nos.191 and 192, attested on 19‑5‑1985 and obtained the loans.

6. Ghulam Khan and Ismail Khan sons of Ahmad Khan sold 3 Kanals and 3 Marlas of land to petitioners Nos.7 to 12 vide Mutation No.46, dated 26‑9‑1981, out of land measuring 6 Kanals, 6 Marlas purchased by them alongwith Aman Khan from respondent No.3, vide Mutation No.2387, dated 31‑12‑1973.

7. One Manzoor‑ul Haq moved a petition, as an informer under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, challenged the allotments in favour of respondent No.3, Subhan Shah Khan in the Districts Attock and Rawalpindi, alleging that some fake persons acting for Subhan Shah Khan had tampered with record and styling themselves as Special or General Attorneys and after having fabricated the powers of attorneys in various Districts, had got allotted these lands in the name of respondent No.3 whereas these allotments were secured through fraud and misrepresentation and liable to be cancelled. The Settlement Commissioner (Lands), Rawalpindi Division, vide his order, dated 8‑7‑1976 concluded that QPR V No.15145/72 was verified for 5100 Rural P.LUs. in favour of respondent No.3 Subhan Shah Khan and was issued for District Jacobabad (Sindh) and the addition of the word, "Cambelpur" was a forgery. He also placed reliance on a report received from Central Record Office, Lahore. It is also mentioned in the order that Subhan Shah Khan was summoned several times and finally a proclamation was issued in the newspaper for his service as well as for the service of the vendees of the lands from Subhan Shah Khan, who were made parties in the application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1959, moved by the informer Manzoor‑ul‑Haq but except Muhammad Nisar (petitioner in Writ Petition No.39/R of 1986) and Noor Wali, nobody turned up and ex parte proceedings were taken against all of them. It is further mentioned in the order that "However, the written statement of Subhan Shah Khan alongwith photostat copy of his affidavit, specimen signatures and photograph duly attested by Oath Commissioner, Karachi on 12‑8‑1975 has been received and the written application of Subhan Shah Khan duly signed by him narrates the fact that he got allotted 1133 P.I.Us. in Village Saggian, Tehsil and District Rawalpindi, out of his total P.I.Us. 5100 in accordance with his Entitlement Certificate which had been acquired by C.D.A. and about which he had to receive the payments". It is further mentioned in the order that Subhan Shah Khan further stated in his application that he did not get allotted any other land through any duplicate certificate or through any mutation or in any other District and had nothing to do with any such allotment. The Settlement Commissioner (Lands), Rawalpindi Division thus, concluded that respondent No.3 Subhan Shah Khan was issued QPR V Entitlement Certificate only for the District of Jacobabad (Sindh) and that he was not entitled to get allotment of any land in Rawalpindi Division and accordingly ordered the cancellation of all these allotments as the same were held to be the result of misrepresentation and fraud. The case for the allotment to the informer Manzoor‑ul‑Haq was directed to be considered in accordance with law and latest instructions and the Federal Investigation Agency was requested to register a case and deal with the culprits in accordance with law. It may also be mentioned here that the order dated 8‑7‑1976 passed by the Settlement Commissioner (Lands. Rawalpindi Division, referred above, does not contain the date on which the informer Manzoor‑ul‑Haq moved the application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act 1958.

8. The Settlement Commissioner, Rawalpindi Division, Rawalpindi, vide his order, dated 15‑12‑1984 while holding inquiries in regard to many other allotments secured by respondent No.3 in the Districts of Rawalpindi and Attock, held that vide order, dated 8‑7‑1976, his predecessor had cancelled allotments made in favour of Subhan Shah Khan in village Miyal, Tehsil and District Attock, and Deputy Commissioner/Additional Settlement, Commissioner of Attock and Rawalpindi were directed to ensure that all the allotments detailed in the order were cancelled. In the order dated 15‑12‑1984, the details of other allotments secured by respondent No.3 were also given and in some cases the Settlement Commissioner, Rawalpindi Division, did not proceed further due to pendency of Writ Petitions Nos.1120/R of 1976, 1531/R of 1976 and 323/R of 1977. It may be mentioned here that Writ Petition No. 1120/R of 1976 was dismissed for non prosecution on 13‑10‑1999 and the other two abovementioned writ petitions were also dismissed as not pressed on 13‑10‑1999.

9. The Additional Deputy Commissioner (Consolidation), Attock vide his memo. No. 1177‑ADC(C), dated 29‑7‑1985 asked the Assistant Commissioner/Collector, Attock, respondent No.2 for the implementation of the abovementioned orders, dated 8‑7‑1976 and 15‑12‑1984 passed by the Settlement Commissioner (Lands), Rawalpindi Division, Rawalpindi.

10. The petitioners through these petitions have challenged the legality of the orders, dated 8‑7‑1976 and 15‑12‑1984 of Additional Settlement Commissioner (R), Rawalpindi, Settlement Commissioner, Rawalpindi Division, Rawalpindi and also the order, dated 29‑7‑1985 of A.D.C. (C), Attock whereby a direction was issued to the Assistant Commissioner/Collector, Attork for implementing the above orders. The case of the petitioners in Writ Petition No.9/R of 1986 is that the petitioners successful pre‑emptors of land situated in village Islamgarh, Tehsil and District Attock and they have become owners on the basis of the pre‑emption decrees in their favour, the said decrees were duly executed, transfer mutations were accordingly attested, their names were incorporated in the Revenue Record and as such, valuable rights had been created in their favour but all the above proceedings were initiated and completed by the Settlement Commissioner, Rawalpindi, culminating in the above orders, dated 8‑7‑1976 and 15‑12‑1984, behind their back, without impleading them as party and without associating them in the inquiries and in the investigations. It is the case of all these petitioners that they have nothing to do with the allotment of respondent No.3 or the vendees from him and they are not a party to the fraud, if any, and had the petitioners been associated in the inquiries which were initiated by the Settlement Commissioner (Lands), Rawalpindi on the basis of so‑called application moved by Manzoor‑ul‑Haq under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, the petitioners would have been able to agitate their rights before the Settlement Commissioner, Rawalpindi, and could have established their better title as against' the informer. In this regard, it has been alleged that the petitioners (Writ Petition No.9/R of 1986) learnt for the first time in the first week of December, 1985 that respondent No.1/Settlement Commissioner (Lands), Rawalpindi Division, Rawalpindi had passed an order, dated 15‑12‑1984 under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, and came to know of the cancellation of the allotments in favour of Subhan Shah Khan, the petitioners applied for a copy of the order on 7‑12‑1985 which was furnished to them on 11‑12‑1985 and at that time they came to know of the previous orders, dated 8‑7‑1976 and the memo dated 29‑7‑1985 of the A.D.C. (C.), Attock, hence this Constitutional petition, which was instituted on 19‑2‑1986.

11. The case of petitioner Muhammad Nisar in Writ Petition No.39/R of 1986 is that he is a vendee from respondent No.3, Subhan Shah Khan of land measuring 151 Kanals, 19 Marlas situated in village 'Saka Abad, Tehsil and District Attock and although he was initially associated in the proceedings by the Settlement Commissioner, Rawalpindi Division, Rawalpindi, but later on, he remained un-represented and was condemned unheard.

12. I have heard the learned counsel for the petitioners, the learned counsel for respondent No. 4 Zameer Ahmad (in Writ Petition No.9/R of 1986). The other respondents have not turned up. They are proceeded against ex parte.

13. The learned counsel for the petitioners have mainly argued that the have been condemned unheard and, therefore, the impugned being violative of principle of natural justice of audi alteram partem, void. It has also been argued that the application under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, was not at the time when the said Act alongwith all other settlement laws repealed through Evacuee Property and Displaced Persons Laws Act (XIV of 1975), w.e.f. 1‑7‑1974, which saved the pending only and therefore, the impugned orders are without It has also beer argued that under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), the petitioners being occupants, during the relevant crops, are entitled to purchase the same at the relevant prescribed rates. In the end it is submitted that respondent No.1 illegally held that the Entitlement Certificate issued in favour of Subhan Shah Khan, respondent No.3, the allottee, was not introduced/transferred to District Attock and the findings in this regard are based on surmises and no evidence. It has been very vehemently argued that the Settlement Commissioner vide his order, dated 8‑7‑1976 recorded this finding merely on the basis of photostat copy of the Entitlement Certificate, without summoning the original record.

14. The learned counsel for respondent No.4 has not opposed the petitions as according to him, the respondent No.4 is not a vendee from Subhan Shah Khan, respondent No. 3 and the allotment in his favour has been saved through the impugned orders and even if these petitions are accepted to the extent of the present petitioners, the same would not effect him adversely.

15. The Petitioners of Writ Petition No.9/R of 1986 are the successful pre-emptors or successors-in-interest of pre-emptors, who successfully got the allottee s land situated in village Islamgarh, Tehsil and District Attock, transferred in their names on basis of pre-emption decrees whereby the sales effected by the allottee\respondent No.3 in favour of vendees were pre-empted by them, the pre-emption decrees were executed, transfer mutations on the basis of pre-emption decrees were attested in their favour by the Record and this shows that valuable rights had been created in their favour but in all the proceedings initiated and completed by the Settlement Commissioner, Rawalpindi Division, culminating in the above orders, dated 8-7-1976 and 15-12-1984, they were never associated in the inquiries and investigations, they were never impleaded as a party land the said proceedings were conducted behind their back without affording them an opportunity of being heard and, therefore, to their extent the impugned orders being violative of the principle of natural justice of audi alteram partem suffer from a basic illegality and are ate initio void because in my opinion these petitioners, under the circumstance, were a necessary party and they have a right to be heard, On this ground alone the impugned orders to the extent of these petitioners are liable to be set aside. Furthermore, the impugned orders do not show whether the application under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, moved by the informer Manzoor‑ul‑Haq was pending on 1‑7‑1974 and if the same was not pending on 1‑7‑1974 and was filed later on then what is its effect. The impugned order also does not show the pendency of any unsatisfied claim of the informer because after the repeal of the Settlement Laws, w.e.f. 1‑7‑1974, the informer can get benefit only of allotment of land to the extent of his unsatisfied pending claim, which has been resumed on the basis of the information given by him because at the time when the Displaced Persons (Lands Settlement) Act, 1958, was repealed, this was the only benefit which could be extended to the informer and informer 'cannot ask for any more benefits. If in inquiry it is revealed that informer had no unsatisfied verified claim then in that case the Settlement Authorities cancelling the allotment under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, are bound to conduct an inquiry in regard to the rights of the occupants, as envisaged in first proviso to section 3(I) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), under C which the occupants of such resumed lands who occupied the same continuously for four harvests immediately preceding Khareef 1973, are entitled to the first right of purchase as against the rest of the world, at prescribed rates, through an offer for sale to be made to them unless an order of ejectment has been passed against them in respect of such lands by a competent authority and the second proviso of the above said section of the same Act provides that such an offer shall be made to such an occupant only to the extent of such land which together with land already held by him does not exceed a subsisting holding within the meaning of Land Reforms Regulation, 1972. No such inquiry and investigations were conducted by the Settlement Commissioner while passing the impugned orders regarding the rights of the petitioners because it has been argued at bar by the learned counsel for the petitioners in both these petitions that the petitioners of these petitions also have the right to purchase the land in dispute under the law quoted above. It may be mentioned here that the petitioners of Writ Petition No.39/R of 1986 is also entitled to succeed as his rights flowing from the law quoted above have not been determined.

16. The contention of the learned counsel for the petitioners that the impugned orders were passed merely on the basis of the photostat copy of the Entitlement Certificate of the allottee has force and the Settlement while cancelling the allotment ought to have checked up the record thoroughly because as a consequence of the impugned orders, large number of vendees have been affected and are likely to loose their holdings. It may also be mentioned here that if through the checking up of the original record, it transpires that the Entitlement Certificate of the allottee was valid and lawfully endorsed for the satisfaction of the unsatisfied claim of the allottee, in this part of the country, then the Settlement Commissioner,' Notified Officer should not merely rely upon the stand taken by the allottee as his stand could be based on mala fide. In such a situation the Settlement Commissioner/Notified Officer will have to further check up the record of the allotments secured by the allottee throughout the country including the Province of Sindh and in such a situation the principle of first to come last to go would be made applicable because it is an admitted position that Entitlement Certificate of respondent No.3 was verified for 5100 Rural P.I.Us and, therefore, the allotment of land throughout the country equivalent to 5100 P.I.Us. would remain intact and cannot be said to be the result of fraud and misrepresentation and while applying the principle of first to come and last to go, the Settlement Commissioner/Notified Officer shall determine the dates of allotments in favour of respondent No.3 and in such an eventuality the allotment up to the period till 5100 P. I. Us. were exhausted would remain intact and the allotments secured beyond that period would be liable to be cancelled as excess allotment.

17. Before parting I may also observe that after repeal of the Settlement Laws it has become a common practice that the so‑called informers associate other persons also with them who were originally not the informers and they are merely associated because they have unsatisfied pending claims whereas the informers either do not have any unsatisfied pending claim or their unsatisfied pending claim is not to the extent of the lands likely to be resumed because of the information supplied by them. This practice is to be E totally discouraged as the same is illegal. It is to be kept in mind that any other person associated by the informer after the repeal of the Settlement Laws cannot get any benefit because of such an association as his claim cannot be termed as a pending case or a pending proceeding on 30‑6‑1974, within the meaning of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) It has also been noticed that many such informers later or obtain special power of attorney or general power of attorney from the claimants whose claims have not been satisfied as yet and pose to be acting on their behalf for securing allotment, This is totally an illegal practice and to determine as to whether he is an informer or not, the Notified Officer is under a duty to peruse and scrutinize the original record of application under sections 10 and 11 of the Displaced Persons (Land F Settlement) Act, 1958, and he has to see whether the application was moved, by the informer in his own capacity or in his capacity as general attorney or special attorney of other persons and the deeds of general power of attorney and special power of attorney should also be checked. All these exercises should be undertaken by the Notified Officer so that the lawful rights created by the statutes in favour of the occupants of lands in question as envisaged first proviso of section 3(i) of Act (XIV of 1975) are secured.

18. In view of the above discussion, both these Constitutional petitions are accepted, the impugned orders to the extent of the lands being held by the petitioners are set aside and the matter is remanded back to the Notified Officer, Attock who shall decide the matter afresh, keeping in view the above observations after allowing the parties an opportunity of being heard and after allowing them to produce evidence and he shall also check up the original record of transfer of the Entitlement Certificate of respondent No.3. There is, however, no order as to costs. Q.M.H./M.A.K./N‑75/L Petitions allowed.