' HAMID FAROOQ DURR NI, J.---The petitioners 255, in number have assailed the order of Deputy Set lement Commissioner, Abbottabad pas ed on 13-10-2003 on the _grounds, inter alia, that the same was mala fide an without jurisdiction, therefore, was wit out lawful authority and of no legal effe ct upon the rights of the petitioners. Thro gh the order impugned the learned Dep ty Settlement Commissioner, Abbottabad had accepted the application under se tions 10/11 of Land Settlement Act, 1958 filed by respondent No,5.
2. The facts relevant for the purposes of matter in hand are that one Dalu son of Nabu, a refugee from India and resident of Warbartan Nankan , District Sheikhupura at the relevant time, was allotted land, inter alia, in village Chhehjihian, Tehsil and District Haripur in the year 1972. The said allotment was made through RI-H No,1 confirmed on 22-3-1972. The allottee further alienated the land for valuable consideration in favour of the petitioners through different mutations attested during two years subsequent to the confirmation of allotment. The possession of the land was also transferred in favour of the petitioner. Upon the transfer of ownership in their favour the petitioners had raised construction over the said land. Purportedly, one Muhammad Mohsan son of Muhammad Akram resident Of awalpindi, through his general attorney, applied to the Revenue Officer/Deputy Settlement Commissioner, Hazara Division at Abbottabad, on 22-5-1974, informing the authority that respondent No,6 was allotted land in excess of 3000 units to his claim. It was further stated that the applicant had a claim pertaining to District Hazara and he had most of units unallotted at the relevant time. It was prayed through the application that upon cancellation of the allotment to the extent of excess units made in favour of respondent No,6 the land falling therein be allotted in the name of the applicant.
3. The learned Deputy Settlement Commissioner proceeded with the case and on completion of enquiry cancelled the alleged excess land of 3660.70 units measuring 1294 Kanals, 19 Marlas originally allotted to respondent No,6. The said excess land, inter alia, comprised of an area of 595 Kanals, 18 Marlas in village Chhehijihan, Tehsil and District Haripur.
4. Learned counsel for the petitioners argued that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which came into effect on 1-7-1974, the Deputy Settlement Commissioner/respondent No,1 was not seized of the jurisdiction to entertain the application of respondent No,5 and consequently could not pass any order thereon. The respondent No,1 was obliged, under the law, only to decide the pending cases after coming into force the said repeal Act. He further stated that the application filed by respondent No,5 was itself of dubious character as all along the proceedings the applicant/respondent No,5 never appeared personally before the authority. He further argued that as the petitioners were lawful transferees of the property in dispute against valuable consideration, they had vested right to be heard before passing any order in detriment to their interest. He further alleged that respondent No,1, while undertaking the exercise culminating in passing of the impugned order, dated 13-10-2003, did not attend to the entire facts as available on the record and had passed an arbitrary order, albeit, ex parte against respondent No,6. The said order, in turn, had devastingly affected the valuable rights and interests of the petitioners. He prayed that in the light of the facts available on record as well as the law on the subject the impugned order was liable to be set aside.
5. Learned counsel appearing for respondent No,5 controverted the submissions made on behalf of the petitioners and stated that during the proceedings before the Deputy Settlement Commissioner a publication of notice to respondent No,6/allottee was made in the newspaper on 7-2-2000. The said respondent in spite of the publication did not appear to join the proceedings. He asserted that it was the original allottee who was to contest his case and the petitioners claiming to be the transferees from the original allottee, had no concern with the proceedings before the Deputy Settlement Commissioner. Similarly, the petitioners had no basis to file the petition before this Court. He also reiterated that the protection under the Transfer of Property Act was not available to the petitioners as they were transferees of evacuee property. The learned counsel further attempted to argue that the case of the petitioners required enquiry and, recording of evidence, therefore, the matter was not to be decided through a petition in constitutional jurisdiction. He submitted that the petitioners had failed to challenge the impugned order before the hierarchy provided for the purposes of appeal and revision. They were, therefore, estopped to bring the petition in hand.
6. The original record of the proceedings before respondent No,1 was summoned which, inter alia, contains a photstat copy of application by respondent No,5 praying for cancellation of an excess B area allotted to respondent No,6 and allotment of the same in favour of the applicant/respondent No,5. Pertinently, this application does not bear any date of filing though an endorsement, dated 22-5-1974 by D.0 which is barely legible, appears thereon. The corresponding order sheet bearing the first order, dated 10-6-1974, issued by Additional Settlement Commissioner Land Hazara, along with orders for issuance of notice to the parties and subsequent orders, dated 19-6-1974, 26-6-1974 and 10-7-1974, is also a photo copy and not the original. It is to be noted that on 10-7-1974 none of the parties appeared and the matter was consigned in the light of an order issued by the Board of Revenue. There is another photo copy of an application dated 16-4-1996, by respondent No,5, praying for initiating proceedings upon his above noted application. Upon this application the first order was passed by the Revenue EAC Abbottabad on 11-11-1999, initiating proceeding of the former application. The order sheets show that the proceedings went on while on 21-2-2000 the respondent No,6 was proceeded against ex parte. On 16-3-2001, as the applicant was also not present, he was summoned for the next date. Similarly, after appearing on 12-4-2001 the applicant was again absent on 17-5-2001 and 6-6-2001. On the said dates no action adverse to the applicant/ respondent No,5 was taken. It also transpires from the record that on 29-8-2001 none was present, the Presiding Officer was on leave and 17-9-2001 was fixed as next date through reader's note. On 22-10-2001 the enquiry file from the Deputy District Officer Judicial was received and an order, for further proceedings on 23-10-2001, was passed. It is pertinent to note that on 22- 10-2001 no notice for appearance was issued to respondent No,6. The proceedings went on and on 8-4-2002, as none was present, the notice to the parties was ordered to be issued for 20-4-2002.
The record, however, is silent regarding issuance of any notice in respect of respondent No,6. The record of proceedings before the Deputy Settlement Commissioner also reveals that during the proceedings the relevant Revenue Record was summoned more than once but the petitioners whose particulars were duly recorded as transferees of disputed land in the said record, were not cared to be summoned. The proceedings thus taken were ex parte as far as respondent No,6/allottee was concerned and were also at the back of the petitioners/transferees.
7. The non-availability of original applications under sections 10/11 of the Act ibid, purportedly filed by respondent No,5 before the Settlement Authority and the absence of reason for the said non- availability, casts doubt regarding maintainability of the application. The crucial date, as provided by the Act ibid, for closing doors on the Settlement Authorities to decide fresh matters was 1-7-1974.
The endorsement on the application, though not fully readable and shown to have been made on 22-5-1974, also adds to the doubt as to whether the application was filed before the crucial date?.
The corresponding order sheet, which is not available in original, also does not complement the application by respondent No,5. In the circumstances it is yet to be determined in the light of section 2(2) of the Act ibid that the case of applicant/respondent No,5 was pending or was otherwise on the crucial date. The cases not pending on the crucial date before any forum in the Settlement hierarchy could not be competently reopened by the notified officer. Reliance is placed on a judgment reported as 2003 SCM R 629.
8. Dealing with the objection raised on behalf of the respondent regarding the competency of petitioners to file the petition in hand, it would not be unsafe to hold that as the allotment in favour of respondent No,6 was confirmed and the petitioners were subsequently transferees against valuable consideration from the original allottee, they were entitled to notice before cancellation of the allotment. The Revenue Record before the DSC/ respondent No,1 was fully depictive of petitioners' title and interest in the disputed property. Reliance in this regard is placed on judgments reported as 2004 SCM R 1232, 1982 SCM R 638 and 2005 M LD 80. As regards the maintainability of petition in hand, suffice to state that the functionaries, while deciding the rights of individuals before them, are obliged to keep in view the principles of natural justice. In the present case the respondent No,1 has failed to provide an opportunity of hearing to the petitioners and others concerned, therefore, it is held that the order impugned was passed in an unjust manner. In the above circumstances, this Court could entertain the cause of the petitioners through Constitutional petition. Judgment reported as PLD 2004 SC 271 is relied upon in the said context.
9. In the light of what has been discussed above and the available record, the petition in hand is accepted. The impugned order of DSC/respondent No,1, dated 13-10-2003 is set aside and the proceedings ensuing therefrom are also set at naught. The matter is, however, remitted to respondent No,1 for decision afresh after providing an opportunity of hearing to the petitioners and also to the other persons concerned.