1986 PLP 415 (MLD)

Date of hearing: 17th November, 1985. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question order, dated 29th July, 1976 passed by the learned Settlement Commissioner (Lands), Lahore exercising the powers of Chief Settlement Commissioner, Punjab, Lahore.

2. The facts necessary for the purposes of this petition, briefly stated, are that respondent No.1 filed a Claim Form bearing No.8457 in Chak No.65/5‑L, Tehsil Okara, District Sahiwal (now District Okara) for land abandoned by him in village Baghar, Tehsil Fatehabad, District Hissar. This claim was verified. Temporary allotment against this claim was obtained by the said respondent on 23‑9‑1955 which was confirmed on 27‑10‑1955.

3. Another person with the same name and parentage as that of respondent No.1 but with caste 'Teli' who is arrayed as respondent No.4 got same land verified against Claim No.656 filed in Village 68/12‑L, Tehsil Nankana, District Sheikhupura. He also got allotment on the said verification which was later confirmed. Respondents Nos. 5 to 10 are vendees from the aforementioned respondent No.4. The petitioner made a Mukhbari application before the Settlement Authorities alleging double allotment of the same land abandoned in India. This application was taken cognizance of by a learned Settlement Commissioner, Lahore (Mien Waheed‑ud‑Din Rathore), exercising the powers of Chief Settlement Commissioner, who dismissed it by order, dated 25‑6‑1974. Before passing this order statements of three witnesses had been recorded by the learned Settlement Commissioner.

5. On 25‑6‑1974, the date of dismissal of the aforesaid Mukhbari application, the petitioner made an application for recall of the order of dismissal of his application. On this application the learned Settlement Commissioner on the same date issued notice to the respondent for 18th of July, 1974. Further proceedings were taken by the learned Settlement Commissioner on this application which are reflected in the orders certified copies of which are annexed with this petition as Annexures G to G/12. On 14‑7‑1976 respondents Nos. 5 to 10 made an application in these proceedings for dropping of the same and filing of the case. This application was accepted by the learned Settlement Commissioner by his order, dated 29th of July, 1976 and he dropped the proceedings and consigned the case to record.

6. Feeling dissatisfied with the above order, the petitioner has come up to this Court in the present constitutional petition.

7. The learned counsel for the petitioner contended that on 25‑6‑1974 the application for recall of order of the same date by which the petitioner's Mukhbari application was, dismissed had been made and on it the learned Settlement Commissioner ‑had issued notice. By this process, it has been urged, the proceedings had become pending before the learned Settlement Commissioner which required determination. These proceedings by virtue of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 stood transferred to the nominated officer for disposal in accordance with law.

8. The learned counsel for the petitioner next contended that from the orders copies of which have been annexed with this petition ‑it appears that the Mukhbari application had been restored and proceedings were being taken 'thereon and as such the Mukhbari application shall be deemed to have been revived and required adjudication on the merits of the case. It was in the same context urged that nevertheless assuming that' Mukhbari application had not been restored the application for restoration thereof was pending and merited to be decided on the facts as the order of dismissal of Mukhbari application, dated 25‑6‑1974 did not decide the case on merits. ????

9. The learned counsel for the respondents, on the other hand, submitted that application for restoration has been decided, vide the impugned order by which it has been held that the same was misconceived.

10. The learned counsel for the respondent next contended that the application for restoration having been dismissed there was nothing pending as on the date of repeal of the Evacuee Laws and no adjudication on merits of Mukhbari application could be made.

11. In reply the learned counsel for the petitioner submitted that a perusal of the order, dated 25‑6‑1974 clearly shows that nothing has been decided as regards the merits of the Mukhbari application and by the impugned order restoration application has also not been properly dealt with.

12. Having given consideration to the controversy involved, I am of the view that the learned Settlement Commissioner while passing the impugned order had not looked into the record and his observations such as "The Court on receipt of the said application ordered that the notices to the respondents be issued for 18‑7‑1974. Since then no action on this application was taken. This application given by the petitioner for setting aside the proceedings in default was given under wrong notion ??? do not find support from the record as is apparent from Annexures G to G/12. The learned Settlement Commissioner had taken proceedings on the application for restoration although those proceedings are jumbled up and have caused confusion in that in the order, dated 28‑10‑1975 (Annexure G/3) the learned Settlement Commissioner while ordering service on the respondents through proclamation also directed the production of evidence. Again by order, dated 7‑2‑1976 (Annexure G/5) notices were directed to be issued to the respondents and simultaneously the ‑statement of a Patwari on merits of the case had been recorded. By order, dated 19‑4‑1976 (Annexure G/7) it was ordered that evidence shall be produced on the next date. The recording of evidence on merits of the case was obviously uncalled for without there being any order of restoration of Mukhbari application of the petitioner.

13. The tenor of the impugned order of the learned Settlement Commissioner also shows his in application of mind to the provisions of law governing the subject viz. section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It has been correctly, pointed out by the learned counsel for the petitioner that if the restoration application of the petitioner be deemed to have been allowed then the Mukhbari application of the petitioner stood restored as on the date of its dismissal viz. 25‑6‑1974 and, therefore, adjudication on merits of the case was called for and if the application for restoration was not allowed then the proceedings on that application were pending and it was incumbent upon the Settlement Commissioner to have decided the same specifically.

14. In view of the foregoing discussion, I would allow this petition and declare that the order of the Settlement Commissioner, dated 29th of July, 1976, has been passed without lawful authority. Setting aside the said order I would remit the case back to the competent officer for first deciding the application of the petitioner for restoration and thereafter if an occasion arises to decide the Mukhbari application of the petitioner in accordance with law.

15. In the attendant circumstances of the case there will be no order as to costs.??????????? A.A????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.