' MUHAMMAD ALI MAZHAR, J.---This constitution petition has been brought to challenge the order dated 1-6-2002, passed by the respondent No,4 in Miscellaneous Application No,Nil of 2002 with further prayer to issue directions to the respondents Nos.1 to 3 and 5 to mutate the names of the petitioners as owners of land in question in pursuance of an order dated 14-9-2000, passed by the respondent No,3.
2. Concisely, the facts of the case are that predecessor-in-interest of the petitioners, Muhammad Faseehuddin, being a displaced person was allotted/transferred agricultural land measuring 59-10 acres, situated in the Mohari Motiram of Deh Razidero, Tappo Belharo, Taluka Gambat, District Khairpur, from the settlement department under Rehabilitation Scheme as per entitlement certificate dated 8-4-1960. It is further stated that in pursuance of aforesaid entitlement certificate and Parchi Takseem Khatoni, the physical possession of land measuring 44-30 acres was handed over to Muhammad Faseehuddin, who had expired on 18-6-1999 but during his life time, he had invested huge amount for development of aforesaid land and regularly paying land revenue/Dhall and after his death, petitioners are regularly paying the land revenue/Dhall to the concerned department. After the death of Muhammad Faseehuddin, petitioners being his legal heirs are in exclusive possession as owners and this fact has been confirmed by Mukhtiarkar, Gambat in his report and sketch of land prepared by the Survey Superintendent, Khairpur. It is further stated that Muhammad Faseehuddin during his life time and after his death, the petitioners are moving applications to the respondent No,3 for mutation of aforesaid land in their names in the record of rights from time to time as such by an order dated 14-9-2000, passed by the respondent No,3, he accepted and verified the possession and ownership of the petitioners and also accepted the case of mutation, but he observed that since the matter is old it will be Subject to confirmation by the Member (RS&EP) Board of Revenue Sindh, Karachi. After expiry of 35 years, the respondent No,7, Fateh Muhammad on 22-12-2000, moved a miscellaneous application against the petitioner No,5 and respondent No,6 for cancellation of sale agreement in respect of aforesaid land executed between the petitioner No,5 and the respondent No,6 and for allotment of the said land to him on the harapship basis but he was neither in possession of any portion of the land nor he was Hari of the same. It is further stated that impugned order passed by the respondent No,4 is illegal and without jurisdiction, who failed to consider and appreciate that the land in question was an evacuee land which was legally transferred/allotted to the predecessor-ininterest of the petitioners from the Settlement department under rehabilitation scheme as per entitlement certificate dated 8-4-1960 and Parchi Takseem Khatoni in satisfaction of his claim.
3. The learned Assistant A.G. Represented the official respondents. The respondents Nos.6 and 7 were served through publication in daily Kawish, Hyderabad dated 25-8-2004 and Daily Khabroon, Sukkur dated 23-2-2005 and summons were also issued to cause their appearance but no body appeared to represent them and matter is pending since 2002.
4. The learned counsel for the petitioners argued that the impugned Order passed by the respondent No,4 is illegal and without jurisdiction. The land in question was an evacuee property, which was lawfully allotted to the predecessor-in-interest of the petitioners vide Entitlement Certificate dated 8-4-1960 and this entitlement was also accepted by the respondent No,3 vide Order dated 14-9-2000, which shows that he verified the possession and ownership of the petitioner in respect of the land in question and also issued certain directions for mutation of land in favour of the petitioners and since the respondent No,4 is the subordinate authority, therefore, he could not have any jurisdiction to bypass the Order passed by the respondent No,3. He further argued that respondent No,7 had no locus standi to move any application to the respondent No,4 after expiry of long period of 35 years. The respondent No,4 had failed to consider that the predecessor-in-interest of the petitioners, was not party in the proceedings, by virtue of which an Order dated 27-10-1997 was passed and no opportunity was afforded to him while he was alive at that time. Even otherwise, the aforesaid Order did not affect the ownership rights of the petitioners and the Order dated 27-10-1997 was only meant to strike dow n the unauthorized/illegal entries from the revenue record and not to affect the genuine claim of the claimant. In the Order dated 14- 9-2000, the respondent No,3 had recommended the case of petitioners f9r mutation of their names in respect of land in question to the respondent No,2 but the respondent No,4 in the impugned Order has misconstrued and misinterpreted the Order dated 27-10-1997. It was further averred that after repeal of Displaced Persons (Land Settlement) Act, 1958 by virtue of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, neither the respondent No,3 nor the respondent No,4 had any powers to cancel the entitlement/ownership of the land of the petitioner because it was never a pending case but it was a past and closed transaction, therefore, the petitioners being legal heirs of late Muhammad Faseehuddin are entitled to the mutation in view of the Order dated 14-9-2000. In support of his arguments, the learned counsel referred to following case-law:-- ' 2002 SCM R 1470 (Pakistan Transport Company Ltd. v. Walayat Khan). Issue of allotment of evacuee land had attained finality and it could not be reopened long after the repeal of Evacuee and Settlement Laws with effect from 1-7-1974. In fact it was a past and closed chapter. Assistant Commissioner was neither competent nor authorized to deal with the case as there was no pending proceedings before him nor remanded by the High Court or Supreme Court on cut off date. Assistant Commissioner had acted without jurisdiction. His act in law was coram non judice and nullity in the eyes of law. Displaced Persons (Compensation and Rehabilitation) Act, 1958 does not grant unlimited powers to Settlement Authorities to bring all properties within their jurisdiction on their own findings.
' 2001 SCM R 1423 (Mrs.Bakhtawar v. Abdul Majeed). The petitioner claimed her right over a portion of a property which had already been transferred in the year 1968 in the names of respondent.
Petitioner applied to the authorities in the year 1993, application of the petitioner was allowed and disputed portion of the property was transferred in favour of the petitioner. High Court, in constitutional jurisdiction set aside the order of the authorities. Validity. Property having stood transferred as back as 18-1-1968, the same had become past and closed transaction and no proceedings with regard to its correctness or otherwise could be initiated. Leave to appeal was refused.
' 2003 SCM R 616 (Ussama Tariq v. Administrator Residual Properties (Revenue) Lahore Division).
Jurisdiction of notified officer would be limited under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as under section 2(2) of the Act. Notified officer except completion of residual work was not competent to extend his jurisdiction to any property not available for the disposal under the scheme. He would have no jurisdiction to go into the question of legality or otherwise of any allotment made by Settlement authorities under Evacuee Laws before repeal of such laws where such an allotment had attained finality: ' 2003 SCM R 629 (Mst.Basha Begum v. Additional Commissioner (Revenue) Lahore). Notified officer was not competent to reopen the matter finalized under a relevant Statute before the repeal of Evacuee Laws. Case was not pending before any forum in the terms of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The limit of power would not be extended to the cases which had attained finality under the Statute. If an authority had no jurisdiction in the matter under the law jurisdiction could not be conferred on such authority by an order of the Court.
5. The learned A.A.-G. Referred to chronological statement of facts and comments filed by the respondents Nos.4 and 5 and admitted that vide order dated 14-9-2000, the Deputy Commissioner had passed the order which is still pending and case was recommended to Member (RS&EP) Board of Revenue, Sindh. He further argued that the respondent No,4 simply declared respondent No,7 as Hari and not the owner of the land and when the land will be mutated in the names of the petitioners, they may file case against respondent No,7 under Tenancy Act for their ejectment under harap right. At last, he supported the impugned order.
6. At the outset, we would like to thrash out the preliminary objection concerning the jurisdiction. On 28-1-1975, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was promulgated, which was made effective from 1-7-1974. By virtue of section 2 of the aforesaid Act, following Acts and Regulations were repealed:--
(i) The Registration of Claims (Displaced Persons) Act, 1956 (III of 1956) ;
(ii) The Pakistan Rehabilitation Act, 1956 (XLII of 1956).
(iii) The Pakistan (Administration of Evacuee Property) Act, 1957. (XII of 1957) :
(iv) The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958);
(v) The Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);
(vi) The Scrutiny of Claims (Evacuee Property), Regulation, 1961; and
(vii) The Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971.
' Subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 provides as under:-- "Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and -all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
7. The case of the petitioner is that vide entitlement certificate dated 8-4-1960 and parchi takseem khatoni dated 5-6-1965, the predecessor of the petitioner was allotted agricultural land measuring 59-10 acres situated at Deh Razi Dero, Gambat, District Khairpur and due to aforesaid entitlement certificate and parchi takseem khatoni, the physical possession of land measuring 44-30 acres was handed over to him. It is further a case of petitioner that during life time the predecessor of the petitioner was regularly paying land revenue/dhal and after his death the petitioners are regularly paying the same. It is further stated that the petitioners are in possession for last 37 years, which fact was admitted by Mukhtiarkar Gambat. The order 14-9-2000, passed by Deputy Commissioner and DIRC Khairpur reflects that the petitioner No,5 moved an application for the mutation of land in question and he observed in the above order that in the light of evidence produced by the applicant it was proved that applicant was in undisputed physical possession of agricultural land 44-30 acres, since the date when it was handed over by the Settlement Department. So far as the mutation is concerned, he stated that the action for ensuring mutation of 44-30 acres of agricultural land in favour of late claimant Muhammad Faseehuddin will be considered after confirmation by the Board of Revenue Sindh. It appears from aforesaid order that the right of the petitioner was duly acknowledged but since it was an old matter, therefore, the question of mutation was left to be decided subject to confirmation by the Member, (RS&EP) Board of Revenue, Karachi, Sindh.
8. It is also a matter of record that when Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 was promulgated, there was no pending proceeding, therefore question of deciding the same by the notified officer does not arise in this case. The impugned order was passed by the respondent No,4 in the year 2002 when the question of allotment of land had become a past and closed transaction. In this view of the matter, we are fully fortified by the dictum laid down by the Hon'ble Supreme Court (supra) in which it was held that issue of allotment of evacuee land had attained finality and it could not be reopened long after the evacuee laws with effect from 1-7-1974.
The jurisdiction of notified officers would be limited for completion of residual work was not competent to extend his jurisdiction to any property not available for the disposal under the scheme. He would have no jurisdiction to, go into the question of legality or otherwise of any allotment made by Settlement Authorities under the Evacuee Laws before repeal of such Laws where such an allotment had attained finality. The limit of power would not be extended to the cases which had attained finality under the Statute and if an authority had no jurisdiction in the matter under the law, jurisdiction could not be conferred on such authority by order of the Court.
9. It appears that impugned order has been passed on a Miscellaneous Application No, Nil filed by respondent No,7 against the petitioner No,5 and respondent No,6 in which, he claimed to be a sitting tenant and opponents were trying to dispossess him unauthorizedly and authority has relied upon an order passed by Deputy Commissioner Khairpur on 27-10-1997, but he overlooked subsequent order dated 14-9-2000, passed by Deputy Commissioner Khairpur in which the order dated 27-10-1997 was fully considered, the right of the petitioners was duly acknowledged and the matter of mutation was simply deferred for the time being on the ground that it is an old matter, therefore, the mutation will be subject to the confirmation by the Member (RS&EP) Board of Revenue. So at the best, the only formality which was required to be fulfilled prior mutation was the confirmation of entitlement by the Member (RS&EP) Board of Revenue, Sindh. The respondent No,4 had failed to consider the right and entitlement of the petitioner in view of the entitlement certificate and parchi takseem khatoni and has also overlooked the order passed by Deputy Commissioner Khairpur on 14-9-2000, in which it was clearly stated that entitlement of the petitioners was confirmed and acknowledged by the Mukhtiarkar Gambat in his report, the sketch of land was prepared by 'Survey Superintendent Khairpur and the claim of the petitioners predecessor was also verified from the original record. All these important aspects have been overlooked and ignored by the respondent No,4 when he passed the impugned order and he erroneously held that grant of land under katcha land grant policy will be considered by the competent authority at the time of open Katchehry and disregarded the petitioners entitlement.
10. Where the order passed by court below suffers from any jurisdictional defect or violates any provision of law and if the error is so glaring and patent that the same may not be acceptable, invocation of constitutional jurisdiction is justified and or when finding is based on insufficient evidence, misreading of evidence, erroneous assumption of facts, non consideration of material evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable view on evidence has been taken, this court can interfere in its constitutional jurisdiction. Relief can be granted to the citizens of the country under Article 199 of the Constitution, against infringement of any provisions of Iaw or of the Constitution as it is an omnibus Article. If the citizens are deprived of the guarantee given to them under the Constitution, illegally or not in accordance with law, then provision of Article 199 of the Constitution can always be invoked for redress or where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, this court in exercise of its constitutional jurisdiction has ample power to grant relief to the aggrieved party. Reference can be made to PLD 2001 SC 149 and PLD 2004 SC 271.
11. As a result of above discussion, the impugned order dated 1-6-2002, passed by respondent No,4 is set aside and mutation of land in question in the names of petitioners may be processed by the competent authority in terms of order dated 14-9-2000, passed by Deputy Commissioner and DIRC, Khairpur. Petition stands disposed of accordingly.