P L D 1976 Lahore 820 (PLP)

The disputed Ihatas Nos. 752, 753 and 754, situate in Chak No. 86 R. B., Tehsil and District Sheikhupura, were allotted to Shah Muhammad, Ghulam Muhammad and Fateh Din on 16th June 1906, and Mutations Nos. 128, 129 and 130 were sanctioned. The original numbers of these ihatas were different and were changed to the present numbers in the Settle ment of 1910‑11.

2. The area of Ihatas Nos. 752 and 753 is 11 marlas 6 sarsais each while that of Ihata No. 754 is 6 marlas. These ihatas are in occupation of the petitioners, who according to the Patwari and Tehsildar have construct ed pacca houses on them. 1hatas Nos. 752 and 753 are said to have been resumed by the order of the Collector dated 2nd December 1946 and mutation in favour of the Provincial Government was sanctioned on 28th April 1947 by A. C. II. This mutation was entered in the jamabandi for the year 1950‑

51. The original mutation has not been produced. In column No. 6 of the jamabandt for the year 1950‑51 (Exh. R. 4/1), "house" is described while the name of the tenant in column No. 4 is shown as Ghulam Muhammad son of Fateh Din, Jan Muhammad son of Fateh Din and Abdul Majid son of Ghulam Nabi. Vide my order dated 17th November 1975, I directed Tehsildar. Sheikhupura, to produce the order of resumptipn, passed by the Collector. He along with the Patwari has appeared with the record, and stated that no file containing the order passed by the Collector on 2nd December 1946 is available. Ihata No. 754 is again a house and petitioner Mst. Zainab Bibi along with others is mentioned as tenant in the jamabandi for the year 1962‑

63. In Col. 14 of this excerpt the Patwari has reported that owners mentioned in column (the number is not legible) have abandoned their residence for the last 20 years and nobody is in possession, therefore, the ihata should bn confiscated. This report was made on 7th October 1961, which was approved by the Girdawar on 9th October 1961, and a mutation was sanc tioned on 19th October 1961, whereby the ihata (its tenancy) was confis cated in favour of the Government. By his order the Commissioner gave approval for the sale of these ihatas on 21st February 1964 in favour of Muhammad Amin respondent vide Annex. 'F'. The petitioners are proprie tors as their predecessors‑in‑interest were given land in the Chak.

3. It is alleged by the petitioners that respondent No. 4 in league with the village Patwari who in fact was residing in his ihata, manoeuvred to get a malicious report to the effect that the petitioners have abandoned residence in the estate. On his report the Assistant Collector Second Grade (Tehsildar, Sheikhupura) sanctioned mutation on 19th October 1961, resuming Ibata No

754. The petitioners and their ancestors have been in possession of the ihatas in dispute for more than a period of sixty years and have built permanent residential houses, spending huge amount. All these proceedings have been taken surreptitiously. On coming to know of the sale in favour of respondent No. 4, who came to take possession of the property, the petitioners moved this Court under Article 98 of the Constitution of Islamic Republic of Pakistan (1962).

4. Ch. Muhammad Hassan counsel for respondent No. 4 has raised the following four preliminary objections :‑ (i) The petition is incompetent, for, only two of the heirs of Shah Muhammad, deceased, to whom Ihata No. 754 was allotted, namely, Mst. Zainab Bibi and Ghulam Rasool, have filed this writ petition, while his other heirs have not joined hands. (0) Abdul Majid is a trespasser and has no locus stand! to file this petition. (iii) This petition is incompetent because alternate legal remedy was available by way of appeal and revision, which has not been availed of by the petitioners. Mutation for confiscation was sanctioned on 19‑10‑1961, while approval for sale was accorded by the Commissioner in 1964. (iv) The petition suffers from laches, for, resumption in case of one ihata was made in 1946‑47, while that of the other two in 1961. The order of the Commissioner giving approval to the sale was passed in 1964, whereas the writ petition was filed in 1966. Ch. Khalil‑ur‑Rehman learned counsel for the petitioners controverted the contentions in the following manner I He submitted that all the heirs of deceased Shah Muhammad need not approach the Court because the property having changed hands on account of inheritance to the progeny of Shah Muhammad, persons other than the petitioners Mst. Zainab Bibi and Ghulam Rasool, may not be having their share in this property on account of their family settlement and thus may not be the aggrieved parties and in any case no adverse order is being passed against their interest ; such an order of course could only be passed had they been impleaded as respondents, being necessary party. This is not the case.

6. So far as Abdul Majid petitioner is concerned he cannot be called a trespasser as he is brother of Mst. Zainab Bibi and nephew of Fateh Din.

7. As regards the alternate legal remedy the objection is irrelevant, for, the basic orders are without lawful authority having been passed behind the back of the petitioners. Reference is made to Yousaf All v. Muhammad Aslam Zia and others (P L D 1958 S C (Pak.) 104). Farldsons Ltd. v. Government of Pakistan (P L D 1961 S C 537) and Kundan Bibi and 4 others v. Walayat Hussain (P L D 1971 Lah. 360). In the absence of order of resumption, passed in 1946, by the Collector, it can be presumed that the resumption of the ihatas has not been made in accordance with section 24I of the Colonization of Government Lands (Punjab) Act, 1912, which provides the resumption of the tenancy as the extreme penalty, but it could only be imposed after issuing a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the; notice and .the tenant has failed to comply with such notice. Similarly the salutation sanctioned in 1961, forfeiting the ihatas of 19th October 1961, on ,the report of the Patwari is without lawful authority.

8. Lastly the question of laches in this case would be hardly relevant, ifor, all actions are mala fide and behind the back of the petitioners. The preliminary objections have thus no force and are repelled.

9. Coming to the merits learned counsel for respondent No. 4 con fended that some of the heirs of the original allottees of the ihatas from amongst the petitioners have other thatas in this estate and actually all have migrated to Bahawalpur and Samundri. Be that as it may, so long ,as the petitioners are owners in the estate and ihatas in dispute were duly allotted to their predecessors‑in‑interest and pacca houses have been con itructed by them, the resumption without adverting to section 24 of the Colonization of .Government Lands (Punjab) Act, 1912, is an act without lawful authority. Learned counsel for respondents Nos. 1 to 3, Mr. Pervaia ,Alamgir, frankly conceded that he is unable to support the contentions raised by respondent No. 4 since the record produced by the Tehsildar and the Patwari clearly goes against him.

10. Allegations of malice and violation of principle of natural justice ‑vitiate all orders which cannot be sustained. The petition succeeds. The arders are set aside. No costs. $, A, H, Petition allowed.