1986 PLP 2308 (MLD)

‑‑‑Art. '199‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Constitutional jurisdiction, exercise of‑‑Order of Authority being violative of principle of natural justice and having been passed without lawful authority by not impleading necessary parties, held, would be struck down by High Court in exercise of constitutional jurisdiction. Ch. Hamid‑ud‑Din for Petitioners. Ch. Muhammad Abdullah for Respondent No.

2. Date of hearing: 26th October, 1985. The dispute between the parties relates to land measuring 28 Kanals forming part of Khasra Nos. 2645/2435/3,2, which alongwith some other area, was originally allotted to respondent No. 2, who is a displaced person from J & K State for 'Guzara' purpose. On 27‑8‑1964, subsequent to the respondents, allotment some land was allotted to Mst. Barkat Bibi, respondent No. 3, against her verified claim, vide RL‑II (Annexure 'A') which included the land in dispute. The land allotted to her, was sold away by her in favour of one Din Muhammad who further alienated to the petitioners. This transaction is evidence by Mutation No. 1976 sanctioned on 12‑3‑1965 (Annexure 'C').

2. The cause giving rise to the instant writ petition, arises out of an appeal preferred on 23‑8‑1972 by respondent No. 2 against the order, dated 27‑8‑1964 to which the petitioners were not arrayed as a party. This appeal was accepted by the learned Additional Deputy Commissioner, with powers of the Settlement Commissioner (Lands) and the allotment of Mst. Barkat Bibi, cancelled to the extent of the land in question. This cancellation has been brought under challenge through this writ petition.

3. The learned counsel for the petitioners has raised various contentions to assail the validity of the order, dated 16‑4‑1974. However, the objection which appears to be formidable is that the petitioners were neither served nor heard by the Appellate Authority. This factual position is not disputed by the learned counsel for the contesting respondent. His plea, however, is that the order, dated 27‑8‑1964, being wholly illegal and without lawful authority, even if, the petitioners were not impleaded as a party to the appeal, they had no right to be heard.

4. There is no merit in this submission. Similar argument was advanced before the Supreme Court in the case of Deputy Settlement Commissioner and another v. Syed Zulfiqar Ali Shah 1982 S C M R 638 and it was, held therein as under:‑ "The learned counsel contends that the allotments themselves being illegal, the transferees acquired no interest by their purchase and, as such, no notice was required to be served on them. Whether the allotments were valid or not is a matter to be decided by the Settlement Authorities in the presence of the transferees. So, we do not find any substance in this contention either."

5. The argument that the petitioners had the right to be heard and the Appellate Authority's failure to extend this right to them, renders the impugned order as wholly illegal and liable to be removed through judicial review, also finds support from Mukhtaran and another v. Mst. Nur Begum and another P L D 1972 Lah. 282 and Allah Ditta and another v. Raja Saeed Akhtar P L D 1973 Lah.

215. It is thus obvious that the petitioners, who had purchased the land about 10 years, before passing of the impugned order, were necessary party to the appeal but have been condemned unheard. The impugned order being violative of the principles of natural justice, is, liable to be set' aside.

6. This writ petition is accepted and the order, dated 27‑8‑1964 declared to have been passed without lawful authority. The case is sent back, to the learned Member, Board of Revenue (S & R Wing) for its entrustment to an officer nominated under section 2(2) of Act XV of 1975. The latter shall endeavour to dispose of the case expeditiously, preferably within a period of four months. It shall be open to the parties to raise any objection before that forum against one another, in' accordance with law. They are left to bear their own costs. A . A .????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.