By this judgment we shall dispose of Writ Petitions Nos. 2379 and 2380 of 1975, 210 and 211 of 1977 and 1132 and 1133 of 1977, which have similar facts and involve the same question of law.
2. There are two sets of owners who own land jointly in there respective Khatas in Mauza Hussain Garb, Tahsil Okara, d1strict Sahiwal. Notices under a scheme were issued to them by the Ass1stant Land Commissioner for partition of their land in exercise of his powers under notification dated the 20th October, 1972. Apparently, for lack of response from the petitioners he sanctioned a scheme on the 7th October, 1972. Some appeals filed by the co-sharers were dismissed on the 30th December, 1972. Revision petitions were also rejected by the Land Commission on the 1 5th October, 1973. It is' stated by learned counsel that the order of the Land Commission was duly implemented and excess area was resumed.
3. Some land was also sold to, the petitioners in Writ Petition No 1132 of 1977 and some others who were not party to this litigation. Nasim Kausar and four others who also claimed to be co-sharers in the land involved in Writ Petition No. 2380 of 1975 also challenged the order for the reason that they were not heard.
4. In the year 1975 the Chairman Federal Land Commission took proceedings under para. 29 of the Land Reforms Regulation, 1972. He heard some of the parties and vide his order dated the 22nd August, 1975, sent the case back to Assistant Land Commissioner to prepare a fresh partition scheme and send it back to him for a final decision. Notices were consequently issued to some of the co-sharers. It is stated by the learned counsel that the vendees were not intimated. He further states that Ali Zamir minor (Writ Petition No. 2379 of 1975) and Nigbat Sultana mother of Ali Zamir were never notified.
5. The case of the respondents on the other hand is that the notices were sent and that substituted service was also effected by a citation in Daily 'Musawat'. Be that as it may it is denied that the Federal Land Commission had neither impleaded these two persons as a party or did he notify any other vendees before passing the order dated the 22nd August, 1975.
6. The Ass1stant Land Commissioner took up the matter as directed and framed his scheme of partition. - He, however, did not give a notice of the same to the co-sharers as required by the notification dated the 28th September, 1972, para. (d) of which reads as follows :- "On receipt of a direction made under clause (c), the Ass1stant Land Commissioner shall prepare scheme of partition based on Produce Index Units of the land in question and announce it in the revenue estate, as well as send copies of the scheme of partition to all the co-sharers asking them to file objection, if any, within 15 days from the date of service of the notice on them."
7. Admittedly; no notice under this provision was sent to any of the co-sharers or the vendees who had also become co-sharers subsequently. The Member Federal Land Commission fixed the matter for the 10th July, 1976 and without notice of the scheme or an opportunity to raise objections passed the final order which has been challenged in Writ Petition No. 210 of 1977 and Writ Petitions Nos. 1132 and 1133 of 1975.
8. The facts as given above reveal that the Federal Land Commission as well as the Ass1stant Land Commissioner failed to notify some of the co-sharers and subsequent vendees before passing order on the 22nd of August, 1973. The final order dated the 10th July, 1976, was ,also passed in violation of clause (d) of the notification dated the 28th of September, 1972, referred to in para. 6 above. We are, therefore, constrained to set aside the impugned A order and direct that the petitioners shall be afforded a right firstly to prepare a scheme and on their default to do so they will have the right to object to any scheme prepared by the Ass1stant Land Commissioner or the Member Federal Land Commission, if he elects to do to, in accordance with the noti--fication dated the 28th September.
9. It may be further mentioned that Sardar Sami Hayat learned counsel has given an undertaking that in case a scheme is prepared by his clients the land already sold to the vendees shall be allowed to -be retained by them and any land resumed. Under the provisions and settled on the tenants will not be d1sturbed. The same consideration shall be kept in view if the scheme is to be prepared by the officials and no objection to maintain that position will be raised: The petitions succeed as said above. These cases shall be sent back to the Federal Land Commission to consider and decide them in accordance with the notification dated the 28th September, 1972, and in the light of the above observations.