P L D 1975 Lahore 696 (PLP)

Bashir Zafar for Respondent No.

1. Nemo for the Remaining Respondents. Date of hearing : 27th January 1975. An area measuring 306 kanals 8 marlas for 723 Produce Index Units in lieu of Claim Form No. 42744 of one Khairati at R. L. 11, Khata No. 306, of Village Ucba Pind, Tehsil Ferozwala, District Sheikhupura, was proposed in his favour on 5-8-1964. A mutation No. 6 of the aforesaid Khairati was sanctioned in favour of his daughter, Mst. Rasooli, on 2-9-1964. The area was ultimately confirmed on the aforesaid khata on 29-9-1964. The area was subsequently sold to Muhammad Amin, the petitioner by means of a Registered Sale-Deed dated 13-1-1966. A Mutation No. 309 of sale was sanctioned in favour of the vendee-petitioner by the Assistant Collector Grade-II on 19-8-1967, and. an entry to that effect was also made on the above-mentioned khata of RL-II. Respondent No. 1 filed an appeal against the order of confirmation dated 29-9-1964 on 31-3-1967 against the afore mentioned Khairati, Khairati, having not appeared, ex parte proceedings were taken. The respondent No. 1, was found still entitled to the allotment for 415 units. The Additional Settlement Commissioner (Lands), came to the conclusion that there were no units of the then respondent, i.e., Khairati in the village, therefore, the allotment in his favour was improper. He, con sequently, accepted the appeal, cancelled the allotment on Khata No. 306 of Khairati, and directed the area to be allotted to the due claimant. This is vide order dated 14-5-1968. The vendee-petitioner filed a revision petitionbefore the Settlement Commissioner who observed that the question for decision was whether any decision could be given on a revision petition filed by the vendee when the original allottee was not a party. He came to the conclusion that no such revision petition could proceed and, thus, dismissed the same vide order dated 17-12-1968. The vendee-petitioner has come to this Court under Article 98 of the late Constitution of the Islamic Republic of Pakistan (1962).

2. Learned counsel appearing for the petitioner has submitted that the vendee-petitioner had the right to maintain a revision petition before the Settlement Commissioner, because it was he who was being affected by the impugned order of the Additional Settlement Commissioner dated 14-5-1968, in so far as that the land standing in the name of Khairati had been sold in favour of the petitioner and it was he who would be deprived of the land if the title of the predecessor-in-interest were to be extinguished by the impugned order of the Additional Settlement Commissioner (Lands), dated 14-5-1968. Thus, it is submitted, the petitioner had a right to maintain the revision petition. He relies on Sayed Zulkiqar All Shah and 16 others v. Ch. Muhammad Hassan D. S. C., West Pakistan and another (P L D 1971 Lab. 108). Learned counsel for the petitioner has also submitted that the order of the Additional Settlement Commissioner dated 14-5-1968, was illegal in so far as that the appeal against the confirmation dated 29-9-1964. was not filed until 31-3-1967, and the Additional Settlement Commissioner, exercising powers under a special statute, did not have the jurisdiction to condone such an inordinate delay. Further. It is submitted that the appeal was incompe tent, for having been filed against Khairati, when the latter had already died and a mutation of his inheritance had been sanctioned in favour of his daughter Mst. Rasooli as far back as 2-9-1964. Therefore, it is submitted that the appeal against the dead person without impleading his legal reprehensive could not have been accepted. It is also submitted that there is misreading of evidence on the record in so far as that it was observed that there was absence of claim or units of Khairati in the village, because a perusal of the Khata No. 306 RL II would show that the units had been received from Village Mari Khurdi Kalan, Tehsil Ferozwala, District Sheikhupura, and there is another reference on RL II No. 40 of Village Gbazi Kakka, Tehsil Ferozwala, District Sheikhupura produced as Annexure 'A' with this petition which would show that under the orders of Sub-Divisional Magistrate dated 16-12-1963, 722 units of Khairati had been transferred to the estate in question namely, Village Ucha Pind, Tehsil Ferozwala, District Sheikhupura.

3. Learned counsel for respondent No. 1 has submitted that the initial allotment made in favour of Khairati was altogether a bogus affair. There was no person of the name of Khairati, nor, his alleged daughter Mst. Rasooli ever existed, and that the alleged power of attorney in favour of Sadiq Ali who secured allotment in the first instance and, then, sold the so allotted land to the petitioner is, too, a fraudulent transaction. It is contended that Khairati bad no units pending in the estate and, even if he' had, the respondent No 1, being the sitting allottee of the estate would have preference under the Rehabilitation and Settlement Scheme.

4. The question requiring determination in this petition is whether a vendee from an allottee can maintain a revision petition if his predecessor-in -interest's allotment had been cancelled. A decision of this question will depend upon as to whether the vendee purchasing land from the allottee, would have proprietary interest in the land and, if the title of his predemsor-in-interest, the allottee is extinguished, it is he who would be affected in his proprietary interests. Therefore, before he could be deprived of his proprietary rights, he would be entitled to be heard under the general principle of natural justice audi alteram partem, that no body can be condemned without being heard. So has been held in a number of judicial pronouncements of the highest authority. In the case of Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), the late M. Shababuddin, J., held that "it cannot be disputed that it is, a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or pro perty without having an opportunity of being heard and making his defence". It was, further observed, that the aforesaid "rule of justice is not confined to proceedings before Courts but extends to all proceedings, by whosoever held, which may affect the person or property or other right of the parties concern ed in the dispute. As a just decision in such controversies is possible only it the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form". This exposition of law has never been deviated by the Courts of Pakistan. This being an established principle of law that no body can be deprived of his rights of person or property without being heard, it is axiomatic that if he is so deprived, he can go to a higher forum for redress. Thus, if the vendee-petitioner could not have been legally deprive of his rights without being heard by the Additional Settlement Commissioner he could obviously go to the Settlement Commissioner in revision and claim redress of his- grievance. The original file of the case referred to by the learned counsel for the petitioner Sayed Zulfiqar Ali Shah and 16 others v. Ch. Muhammad Hassan D. S. C., West Pakistan and another, was called and it was seen that in this case the vendee filed the Settlement Revision in this Court which was accepted. The names of the original allottees were men tioned as vendors in the holy of the petition, but, the Settlement Revision had been filed by the vendees in their own name and the original allottees were not impleaded as parties. The Settlement Revision, as aforesaid, was accepted by a learned Division Bench of this Court and the judgment was upheld by the Supreme Court of Pakistan when Civil Petition for Special Leave to Appeal No. 283 of 1970, was dismissed on 9-12-1970. This judgment is reported as Deputy Settlement Commissioner and another v. Syed Zulfiqar Ali Shah and others (1971 Law Notes 17 (S C)). Thus, it is obvious that the Settlement Commissioner acted without lawful authority in refusing to proceed with the revision petition of the vendee petitioner.

5. In view of the order proposed to be passed, no comment is being made on the contentions raised by the learned counsel for the parties on the merits of the case. These would be dealt with at appropriate tune by the relevant authority. Respectfully following the above-mentioned judgments, this petition is accepted, the order of the Settlement Commissioner dated 17-12-1968 is declared to have been passed without lawful authority and of no legal effect. The case shall go back to the Settlement Commissioner for disposal after hearing the vendee-petitioner, the vendor and the respon dent No.

1. In the circumstances of the case, there shall be no order as to costs. K. B. A. Petition accepted.