Through the titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, infra relief has been solicited by the petitioners: "It is, therefore, very humbly prayed on behalf of petitioners that this Hon'ble Court may very graciously be pleased to:- i) declare that impugned Certificate Bearing No. 1045/2017, dated 14.04.2017, under Section 23 of the Administration of Evacuee Property Act, 1957, alongwith the impugned judgment dated 03.04.2017, in favour of pro-forma respondents made by Respondent No. 1, without providing any opportunity of hearing of petitioners may kindly be set-aside and declared as illegal, unjust, and unfair. ii) restrain official respondents from implementation or further proceedings for depriving land of petitioners in light of the impugned Certificate Bearing No. 1045/2017 dated 19.04.2017, under Section 23 of the Administration of Evacuee Property Act, 1957, alongwith the impugned judgment dated 03.04.2017. iii) restrain official respondents along with proforma respondents for any interference of land of petitioners till the final disposal of the above mentioned writ petition."
2. Brief facts as per petitioners are that the Deputy Commissioner Rehabilitation-Respondent No. 1 against true facts and law issued the impugned certificate Bearing No. 1045/2017 dated 14.04.2017, while exercising powers as visualized under Section 23 of the Administration of Evacuee Property Act, 1957 followed by the impugned judgment dated 03.04.2017, in favour of proforma respondents pertaining to land comprising Survey No 1412, 1415, 1413, 1411, 628, 629, 1165, 1418, 1417, 1416, 1414 situated in village Nagni Kaisarkot and survey numbers 67, 68, 20, 63, 49, 33, 31, 29, 50, 26, 52, 62, 61, 53 511, 55, 32, 81, 80, 82, 79, 73, 72, 69, 65, 64, 71, and 74 situated in village Harian Chorian Tehsil Chakar District Jehlum Valley. It is averred that the predecessor-in-interest of the petitioners, late Sheikh Abdul Ghani, claimed ownership of Survey Nos. 63, 49, 3, 31, 29 and 30. measuring 37 kanals 7 marlas, situated in village Harian Chorian Tehsil Chakar District Jehlum Valley on the basis of allotment: The petitioners claiming that proforma-respondents without impleading party to predecessor of petitioners, late Sh. Abdul Ghani, obtained the impugned certificate dated 14.04.2017, followed by the impuped judgment dated 03.04.2017, thus, the instant constitutional petition.
3. The respondents failed to file written statement as well as they did not appear before the Court, hence, were proceeded ex-parte.
4. Mr. Akhlaq Hussain Mughal, the learned counsel for the petitioners vehemently contended that the petitioners are the sole owner of the above mentioned land comprising Survey Nos. 63, 49, 33, 31, 29 and 30 total land measuring 37 kanal 7 marlas situated in village Hrian Ghorian Tehsil Chakar District Jehlum Valley, which was illegal and without legal justification, Respondent No. 1 issued the impugned Certificate Bearing No. 1045/2017 dated 14.04.2017 under Section 23 of the Administration of Evacuee Property Act, 1957 alongwith impugned judgment dated 03.04.2017 in favour of the proforma-respondents without providing an opportunity of hearing to the petitioners. The learned counsel forcefully contended that the impugned Certificate dated 14.04.2017 alongwith the impugned judgment dated 03.04.2017 is liable to be set-aside, as the same has been passed against the law and facts.
5. Ex-parte arguments heard. Record perused.
6. A perusal of file/record reveals that Naseeb-ud-Din S/o Kamal Din alongwith others applicants/proforma respondents moved an application regarding issuance of Certificate under Section 23 of the Administration of the Evacuee Property Act, 1957 alongwith the request for correction of revenue record (new) before Deputy Commissimier Rehabilitation Jehlum Valley alleging therein that the applicants as well as proforma-respondents are the possessors and owners of the land comprising Khewat No. 211, measuring 87 kanal 15 marla situated at village Nagni Kaiser Kot Khewat No. 01 land measuring 120 kanal 05 marla, situated at village Harlan Chorian. The learned Deputy Commissioner after hearing ex-parte arguments, accepted the aforementioned application, vide impugned judgment dated 03.04.2017 and declared that the applicants/legal heirs and proforma-respondents would be entitled to get the Certificate under Section 23 of the Administration of the Property Act, 1957, hence, the said Certificate regarding the abovementioned land of two villages were issued in favour of proforma-respondents herein on 14.04.2017.
7. The claim of the petitioners herein are that they are the sole owner of the land comprising survey numbers 63, 49, 33, 31, 29, total land measuring 37 kanal 7 marlas situated in village Harian Chorian Tehsil Chakar District Jehlum Valley, whereas, the Respondent No. 1 has illegally and wrongly passed the order for issuance of Certificate under Section 23 of Administration of Evacuee Property Act, in favour of private proforma-respondents through the impugned judgment. The petitioner took a stance that the petitioners had not been arrayed as party before the Deputy Commissioner Rehabilitation, hence, ex-parte order, without hearing the petitioners was passed, which under law is not maintainable in any manner.
Audi Alter am partem is a golden universal principle of natural justice which postulates that no one can be punished or for that matter no adverse order can be passed at the back of a person.
Section 24 A of the General Clauses Act requires that every order decision must be exposed in full attire of reasoning and rational. Furthermore such like hasty decisions are also violation of Constitutionally Fundamental right No. 19 i.e. Right to fair trial and due process of law.
Allotment in favour of the petitioners is oozing from record, impugned decision and certificate are bad in law to the extent of the claim of the petitioner(s). A driblet of an illegality is suffice to pollute the ocean of justice, thus, the law has drawn the borderline, there is no grey area, neither illegality can overlap and step in other side nor it can take colour of legality by any way.
8. Copy of revenue record i.e. "Misl-e-Haqiyat" attached with the petition shows that the claiming piece of land is under the possession and ownership of the petitioners. The record further reflects that the application entertained by the Deputy Commissioner Rehabilitation Jehlum Valley was beyond the period of limitation as the same was filed on 28.02.2014, after almost post passing 67/68 years.
9. In light, of what has been stated above, instant writ petition is accepted, the impugned order passed by Deputy Commissioner Rehabilitation dated 03.04.2017 is partly set-aside to the extent of survey numbers 63, 49, 33, 31, 29 already allottee to the father of the petitioners (who himself filed instant writ petition in his life time). As the impugned decision is inoperative upon the rights of the petitioners, hence, the impugned Certificate Bearing No. 1045/2017 dated 14.04.2017 to the extent of above-mentioned surey numbers i.e. 63, 49,33, 31, 29 is also partly set-aside.
The petition stands accepted.