' AMIR HANI MUSLIM, J.--- Through this petition, the petitioners have impugned the order, dated 13- 8-1991 passed by the Additional Deputy Commissioner, Hyderabad on the application of the attorney of respondents Nos.5 and 6 whereby he has cancelled the allotment of the petitioners holding therein that the respondents Nos.5 and 6 were the lawful claimants of the land comprising of Survey No,457/2 to 4 measuring 12 acres in Deh Bhit Shah Taluka Matiari, Hyderabad (hereinafter referred to as the "said land").
2. The petitioners have pleaded that one Azizo son of Shera, the predecessor-in-interest of the petitioners, was the claimant/displaced person from agreed area from India and in lieu of his agricultural land he was given the said lands by the Settlement and Rehabilitation Authorities vide Khatooni No,43 on 29-12-1959. The petitioners further claim that before issuance of Khatooni, Azizo was also put in possession by the Rehabilitation Tapedar in terms of the Mashirnama dated 10-12- 1959. Entry in RL-II was made in favour of the said Azizo on 31-12-1959. On 27-9-1971 mutation order was passed by the Assistant Settlement Commissioner, Hala, in favour of Azizo and on 11-4-1974 the mutation was effected in favour of Azizo by the Taluka Mukhtiarkar. The land in dispute was permanently settled against the claim of Azizo who became absolute owner.
3. Somewhere in March, 1980 Azizo gifted the land to the petitioners pursuant to which the land was mutated in favour of the petitioners. The petitioners claim that on 7-5-1991 notice was issued in the name of Azizo by the Additional Deputy Commissioner, Hyderabad for appearance. The petitioner No,1 appeared before the Additional Deputy Commissioner and he was informed that the respondent No,4 has made an application against him. The petitioner No,1 appeared and made application for supply of copy of the application/complaint on the basis of which notice of his appearance was ordered.
4. According to the petitioners, the petitioner No,1 was neither supplied copy of the application nor - was intimated of further date of hearing. The petitioners further claim that they were not afforded opportunity to participate in the proceedings before the Deputy Commissioner and on the back of petitioner No,1 the impugned order was passed by the learned Deputy Commissioner Settlement, Hyderabad, which is subject-matter of these proceedings.
5. The petitioners plead that on 29-3-1993 the petitioner No,1 received another notice from the office of Assistant Commissioner, Matiari, directing him to hand over possession of the land in dispute to the respondents Nos.5 and 6. Learned counsel for the petitioners claims that the impugned order of the Additional Deputy Commissioner was bad in law as it was without jurisdiction inasmuch as the predecessor-in-interest of the petitioners was lawful claimant and owner of the land comprising of 457/2 to 4 measuring 12 acres, located in Deh Bhit Shah as land in dispute was permanently settled against the claims of Azizo.
6. No proceedings of any nature were either initiated by the respondents or by any other person before any forum challenging the title of the predecessor - in - interest of the petitioners, till the cut off date which was 1-7-1974, which repealed the applicability of the Ordinance (XV of 1974) by virtue of the Act XIV of 1975 promulgated on 28-1-1975.
7. He further submits that section 2 of the Act (XIV of 1975) creates bar in regard to taking cognizance of matters pertaining to the claims under the different statutes which include, Registration of Claims (Displaced Persons) Act, 1956, Pakistan Rehabilitation Act of 1956, the Pakistan (Administration of Evacuee Property) Act, 1957, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Displaced Persons (Land Settlement) Act, 1958, the Scrutiny of Claims (Evacuee Property) Regulations, 1961 and the Price of Evacuee property and Public Dues (Recovery)
Regulations, 1971, after the cut off date i,e, 1-7-1974, except the proceedings, which were pending before the competent authorities on the cut off date.
8. The learned counsel for the petitioners further pointed out that the respondents Nos.5 and 6 were never in possession of the land as compared to the position of the Azizo, who was put in possession of the land on 10-12-1959 by the Rehabilitation Tapedar pursuant to the Mashirnama and even otherwise, they were not entitled to seek allotment in view of the bar contained under paragraph No,12 of the Settlement Scheme. It was further urged by the learned counsel that paragraph 10 of the said Scheme further provides that no allotment can be considered as finally confirmed unless the payment of all the Government dues including Taccavi has been fully made. The learned counsel submitted that on their own showing the respondents Nos.2 and 3 in their application to the Additional Deputy Commissioner, were seeking permission for payment of the remaining Government dues, which by itself was sufficient ground to attract the bar under section 20 of the Act (XIV of 1975).
9 . It has been submitted by the learned counsel for the petitioners that clauk 22) of the Settlement Scheme requires that the allotment cannot be finally confirmed unless the payment of Rehabilitation fee as mentioned in the clauses provided therein has been fully paid. He submitted that the respondents Nos.5 and 6 in view of the fact that they were never in possession of the land in dispute, could not have approached the Additional Deputy Commissioner, Hyderabad, that too, after the cut off date, to seek any relief of the nature.
10. Mr. Hasan Mehmood Baig, has further argued that the very jurisdiction exercised by the Additional Deputy Commissioner under the garb of Notified Officer never vested in him and in this respect he has relied upon the case of Umar Hayat v. Jahangir reported in 2002 SCM R 629. Mr. Hasan Mehmood Baig, has also drawn our attention to further two documents one the order passed on an injunction application by the IIIrd Senior Civil Judge, Hyderabad in Suit No,139 of 1993 filed by the respondents Nos.2 and 3 against the petitioner No,1 and others, which was dismissed against which order, we were informed that the appeal was also preferred but that too was met with same fate. Our attention was also drawn to an order of the Assistant Commissioner passed on 21-4-1993 pursuant to the proceedings initiated under section 145, Cr.P.C. At the instance of respondent No,2 wherein the factum of possession in regard to the land in dispute was held to rest with the petitioners. The grievance of the learned counsel for the petitioners is that during pendency of the status quo order in this petition, the petitioners were unlawfully dispossessed by the respondents Nos.2 and 3, who are successors-in-interest of the respondents Nos.5 and 6.
According to him the Commissioner was appointed by this Court, who has inspected the site and submitted his report to which report, objections were preferred by the petitioners. However, no orders were passed by this Court on the said report of the Commissioner. Learned counsel has further submitted that the very application of the respondents Nos.2 and 3, on the basis of which the Additional Deputy Commissioner has passed the impugned order, does not mention the Survey number 457/2 to 4 which is the subject-matter of these proceedings.
11. As against this Mr. Allah Bachayo Soomro, learned counsel for the respondents Nos.2 and 3 has submitted that. The claim of the petitioners was, based on the forged documents and, therefore, they are not entitled to seek any of the reliefs in exercise of writ jurisdiction by this Court. He filed a statement with a number of different documents in Court today, which will in no way improves the case of the respondents. The respondents Nos.5 and 6 on their own showing admit non-payment of the Government dues and, therefore, the application was made by the respondents Nos.2 and 3 to the Additional Deputy Commissioner for allowing them to make balance payment and according to the learned counsel for the respondents Nos.2 and 3 such an application was justifiable in law. According to the learned counsel, the Additional Deputy Commissioner, Hyderabad, has the authority in law, to entertain an application of the successor-in-interest of respondents Nos.2 and 3 and the order impugned in these proceedings does not warrant interference as there was no legal defect in the impugned order. He further submitted that the title of the petitioners was based on the forged entries and Additional Deputy Commissioner in law, was justified to take cognizance and entertain application of the respondents Nos.2 and 3, who were the successor-in-interest of the respondents Nos.5 and 6. Mr. Allah Bachyo Soomro, has also submitted that his clients were in possession of the land in dispute but this fact has not been mentioned in the application of the respondents Nos.2 and 3. He has cited a number of judgments; including the cases of Shamroz Khan v. Muhabbat Khan reported in 1989 SCM R 819, Muhammad Baran v.
Member, (Settlement and Rehabilitation) Board of Revenue, Punjab reported in PLD 1991 SC 691, Bashir-ud-Din v. Government of N.-W.F.P. Reported in 1995 CLC 1394 and Mst. Azam Jehan Ara Begum v. Commissioner, Sargodha Division reported in 2004 M LD 1053; in order to show that the impugned order of the Additional Deputy Commissioner, Hyderabad, was competently passed.
12. Mr. Masood Noorani, learned A.A.-G. Has not supported the arguments of Mr. Hassan Mehmood Baig and has submitted that the Additional Deputy Commissioner, Hyderabad, was not a Notified Person/Officer to determine the issue of the allotment between the parties as after the cut off date such dispute cannot be determined by the Additional Deputy Commissioner or for that purpose by any other forum except the Civil Court.
13. Mr. Abdul Aziz Shaikh, learned counsel for the respondents Nos.5 to 9 submits that he adopts the arguments of the learned A.A.-G. And does not support the arguments of Mr. Allah Bachayo Soomro, Advocate.
14. We have heard the learned counsel and have perused the record.
15. We would not like to travel into the disputed facts addressed by the parties. The only question, which requires determination, is that whether the Additional Deputy Commissioner, Hyderabad, was competent to entertain the application of respondent No,2 after the cut off date. Admittedly after the repeal of the Ordinance (XV of 1974) what was only saved was the pending proceedings. It is admitted fact that the Survey No,457/2 to 4 was not the subject-matter of proceedings before any forum on the cut off date. An attempt has been made by the learned counsel for the respondents Nos.2 and 3 to show that the land in question was subject-matter of the pending proceedings and in this regard he has placed before us the copies of the orders passed by this Court in Constitutional Petition No,443 of 1967 and Constitutional Petitions Nos.97 and 98 of 1985.
16. We have perused the orders passed by this Court in the said petitions and we find that land bearing City Survey No,457/2 to 4 were not the subject-matter of both the proceedings referred to hereinabove and, therefore learned counsel for the respondents Nos.2 and 3 was not correct in relying upon the orders passed in the said petitions, which, ex facie do not cover the land, which is subject-matter of this petition. We have further noticed that the copy of Khatooni produced by the petitioners shows an area of 12 acres of Survey No,457/1 to .4 and that appears to be a mistake. The petitioners do not claim their entitlement on Survey No,457/1 which area is 4 acres 10 Ghuntas and is separate and the measurement of such area was also not only indicated in the copy of Khatooni produced by the learned counsel for the respondents Nos.2 and 3 through statement but is also confirmed in the impugned order which shows that the entire area of City Survey No,457/1 to 4 is 16 acres and 10 Ghuntas. The area of 457/1 is 4 acres and 10 Ghuntas whereas the area of Survey No,457/2 to 4 is 12 acres. The proceedings in this petition relate to Survey No,457/2 to 4 which has no nexus to Survey No,457/1 which were subject-matter of the Constitutional Petition No,443 of 1967 and Constitutional Petitions Nos.97 and 98 of 1985. Additionally the judgments 'passed in the aforesaid petitions are not 'judgments in rem but are judgments in personum' and would only bind the parties to the proceedings. The petitioners were not party to the aforesaid proceedings. We have also noticed that the very application in 1993 made by the attorney of the respondents Nos.5 and 6 to the Additional Deputy Commissioner does not mention the factum of possession of the land in dispute. The precondition for allotment is that the party must have possession of land as provided under the provisions of Paragraph 12 of the Settlement Scheme.
17. We have also noticed that the land in dispute (Survey No,457/2 to 4) was not subject-matter of the application of the attorney of the respondents Nos.5 and 6. In fact the attorney never approached the Additional Deputy Commissioner for seeking extension of payment in respect of the land in dispute but Additional Deputy Commissioner, Hyderabad, has erroneously passed the impugned order without hearing the petitioners who were recorded allottees before him. We do not endorse the action of the Additional Deputy Commissioner inasmuch as the order otherwise was without jurisdiction as it was passed without affording opportunity to the petitioners.
18. The law does not authorize the Additional Deputy Commissioner to determine the issue of double allotment after the cut off date, once the proceedings have been shown to have finalized prior to cut off date under the settlement law. The judgment cited by the learned counsel for the respondents Nos.2 and 3 are distinguishable on facts. The learned counsel for the respondents Nos.2 and 3 has not given any specific date on which his clients or their predecessor-in-interest were in possession of the land in dispute. He referred to the different documents of 1960 and claimed that his clients were in possession pursuant to the said documents. If for the sake of arguments, it is accepted that the petitioners Nos.5 and 6 were in possession, the respondents Nos.5 and 6 or the respondents Nos.2 and 3 have not disclosed the date of their dispossession and have not pleaded as to how the petitioners and or their predecessor-in-interest came in possession of the land in dispute. Admittedly the factum of possession as per the record rests with the petitioners and it was only the last order of the Assistant Commissioner, which he has passed pursuant to the impugned order, directing the Mukhtiarkar to put the respondents Nos.2 and 3 in possession. Even this order establishes that the petitioners were in possession of the land in dispute on the date of the last order of the Assistant Commissioner. There is no other material which reflects that the respondents Nos.5 and 6 were ever in possession of the land in dispute to qualify allotment in terms of the provisions of Article 12 of the Act referred to hereinabove. Allotment coupled with possession has the sanction of law and not otherwise.
19. We restrain ourselves to dilate upon further on the question of the title and or possession of either party as it might prejudice them during trial before the appropriate forum but at the same time while holding that the impugned orders of the Additional Deputy Commissioner were violative of the bar created under section 2 of the Ordinance (XIV of 1975) we allow this petition and all the subsequent orders and or actions taken by the Revenue Authorities or any other forum shall stand reversed as if impugned order was never passed. It would be open to the respondents Nos.2 and 3 to approach the appropriate forum for redressal of their grievance in regard to the question of alleged forgery or fraud committed by the petitioners but at the same time the entries in favour of the respondents Nos.2 and 3 or their successors-in-interest shall be reversed by the Revenue Authorities in favour of the petitioners or their successor-in-interest. The petitioners may approach the Revenue Authorities for possession of the land in dispute.