' Land measuring 781 kanals 8 marlas was allotted to petitioners Nos. 1 and 2, against their verified claim under Khata No, 8 of R. L. H; for I village Pira Fateh Hall, Tehsil Talagang, District Attock. The allotment was confirmed on 12th June, 1973. By means of sale-deed dated 2nd April, 197o they transferred this land to petitioners Nos. 3 and 4.
2. It appears that out of this land an area measuring 137 kanals 17 marlas was earlier allotted on temporary basis, to Abdul Karim respondent who is a displaced person from Jammu and Kashmir State. On 21st June, 1973 he moved an application before respondent No, I that the land held by him, without its cancellation was illegally allotted to petitioners Nos. 1 and 2. Respondent No, 1, who was vested with the powers of the Chief Settlement Commissioner, referred the matter to the Tehsildar and the Assistant Commissioner, Talagang for enquiry. He considered the report of the Enquiry Officer, recorded the statement of Raja Muhammad Akram the then Assistant Commissioner, who already confirmed the allotment in the name of petitioners Nos. 1 and 2, heard the parties and came to the conclusion :- " It is proved beyond any reasonable doubt that the leaf containing Khata No, 8 in favour of Muhammad Ibrahim Khan etc. Respondents Nos. 1 and 2 was not a part of the Register R. L. Pira Fateh Hall, on 27th August, 1974, when the register R. L. II, was sealed and kept in safe custody. It is also clear that the proposal at Khata No, 8 was neither proposed by the then A. C.
0. Mr. Fazal-e-Hayat, nor it was confirmed by the then A. C. Raja Muhammad Akram. This is clearly a case of forgery and fraud, done at the instance of the respondents."
' Thus by his order dated 28th December, 1976 respondent No, 1 cancelled the petitioners' allotment, restored the allotment held by Abdul Karim respondent and directed that the remaining land be disposed of in accordance with the policy of the Government.
This order has been assailed by the petitioners through the instant writ petition.
3. The first submission of the petitioners' learned counsel was that the Displaced Persons (Land Settlement) Act. 1958 was repealed with effect from 1st July, 1974 by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and under section 2 (2) of the Repealing Act, only the pending cases or the cases remanded by the High Court and the Supreme Court, could be heard by the Officer notified by the Provincial Government under the said Act. It was urged that after the repeal of the Displaced Persons (Land Settlement) Act, it was not within the competence of respondent No, 1 to entertain the application of Abdul Karim respondent, hold an enquiry and cancel the petitioners' confirmed allotment. It was thus submitted that the impugned order was passed without jurisdiction. The learned counsel also questioned the validity of the ex parte proceedings conducted against petitioners Nos. 1 and 2. His submission was that no notice was issued to them, but a proclamation was published in a newspaper for their appearance for 24th November 1976. In the submission of the learned counsel, before resorting to substituted service, it was necessary for respondent No, 1 to have seen that an effort, was made, for their personal service ; they could be served through citation, only if there was no possibility of their personal service. It was also contended that the impugned order rests on the statement of M. Fazal-e-Hayat, A. C.
0. Talagang, which was recorded by the Enquiry Officer in the absence of the petitioners, and they were not given any opportunity to cross-examine this witness.
4. It is quite evident from the record that the petitioners' allotment was cancelled by respondent No, 1 on the sole ground that it had been procured by fraud. Thus while exercising the powers of the Chief Settlement Commissioner, respondent No, 1 did not act under the provisions of the Displaced Persons (Land Settlement) Act, but proceeded under the inherent powers, which vest in every tribunal, on whom fraud is practised, to undo such fraud. In Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others (1) after discussing some case law on the subject it has been laid down that seems to us that while there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud, vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud.....................................
' The argument of the petitioners' learned counsel that the impugned order suffers from jurisdictional error is thus misconceived.
5. His other two submissions, however, appear to be well grounded. For the validity of the substituted service, it is necessary that petitioners Nos. 1 and 2 may have either refused or avoided or kept out of the way, to accept service of the notices issued to them. There is, however, nothing on the record to show that any effort was made to serve them personally. Service by citation, in a newspaper, thus cannot be upheld.
6. The learned counsel for the respondents, however, came forth with the submission that petitioners Nos. '1 and 2 having disposed of their entire holding in favour of petitioners Nos. 3 and 4, were no, longer interested in the case and that, therefore, their non-appearance was not of any consequence.
7. It is not possible to agree with this reasoning. The land was originally allotted to petitioners Nos. 1 and 2. The impugned order is wholly directed against them. They were thus a 'necessary party and an adverse order passed against them without serving them in accordance with law, cannot be sustained.
8. The petitioners' other objection is all the more formidable. As per record, the proposal for allotment in question, was made by M. Fazale-Hayat, A. C.
0., Talagang. He was examined by the Enquiry Officer on 15th November, 1976 and the entries in the R. L. II Register attributed to him were not owned by him. It is to be' noticed that in no small measure the decision of respondent No, 1 has been influenced by this statement. It could not be controverted that the A. C.
0. Was not examined in the absence of the petitioners. Obviously his statement cannot be used against the petitioners, without allowing them an opportunity to cross-examine him.
(1) PLD 1975 SC 331
9. For all these reasons this writ petition is accepted, the impugned order set aside and the case is remanded to respondent No, 1, who 'shall hold a fresh enquiry and pass an order in accordance with law. It shall be open to both the parties to raise any plea in those proceedings.
' The parties are left to bear their own costs.