1. ' The petitioners Nos. 1 and 2 are claimant displaced persons. Petitioners Nos. 3 to 8 are the heirs of Syed Mabmood Hassan, who was also a claimant displaced person. Against their verified claim all these three persons were allotted land. Survey Nos. 271, 275, 276, 284 and 267 were allotted to the petitioner No, 1 on 23-1-1960, whereas Survey No, 273 was allotted to the petitioner No, 2 on 14-3.1962 and Survey Nos. 269, 270 and 274 were allotted to S. Mahmood Hassan on 22-3-1962. All these lands are situated in Deh Bhalsro District Sanghar. On promulgation of M. L. R. 89/91 petitioner No, 1 surrendered Survey No, 267 for which she exercised her requisite option and paid instalments. It has been stated that the lands were permanently settled in favour of the said petitioner including Syed Mahmood Hassan and clearance certificate was issued. S. Muhammad Hassan died on 16-10-1974 leaving behind his legal heirs who are petitioners Nos. 3 to 8 It is alleged that one Syed Shakir Hussain acted as attorney of the petitioners Nos. 1 and 2 as well as Mahmood Hussain and after his death one Syed Mahmood Owais acted as their attorney till 21-1-1975. Thereafter the petitioners appointed Syed Akhtar Hussain and Syed Muhammad Owais as their attorneys. On 8.4-1975 their attorney Syed Muhammad Owais appeared before the Deputy Settlement Commissioner Hyderabad in connection with Revision Petition where he was informed by the Tapedar that allotments in favour of the petitioners Nos. 1 and 2 and late Syed Mahmood Hussain have been cancelled by the impugned order dated 28-3-1975. Immediately on 9-4-1975 he applied for its copy and filed the present petition. The petitioners have stated that on examining the record of the respondent No, 1 it transpired that respondents Nos. 2 and 3 made an application dated 25-1-1975 against the petitioners No, 1 and 2 Syed Mahmood Hussain. Notice of this application was issued to them on an address at Tando Adam which process was received by an attorney alleged to have been so constituted on 19-3-1975. It is alleged that the said attorney participated in the proceedings on behalf of the petitioners and late Syed Mahmood Hussain and in his presence the order was passed. It has been stated that the entire proceedings were fake, and fraudulent. The respondents No, 2 and 3 have filed their counter-affidavits in which it has been pleaded that the property in dispute was owned by one Jasoomal Hindu who had mortgaged this property to one Nandi Ram for Rs, 200. This mortgage was redeemed, and proper entries were made in the record, but due to mistake this property was declared as evacuee property. An application was, therefore, filed praying that the property may be released to Jasumal. As a consequences of this application the Custodian passed an order on 17-3-1950 where it was stated that the land was allotted under misapprehension. It was in pursuance of this order that the impugned order has been passed.
2. ' Mr. Mushtaq Memon, the learned counsel has contended that the respondent No, 1 had no jurisdiction to order the restoration of the land or even to entertain the application after the repeal of the evacuee laws. This contention has reference to the provision of Act XIV of 1975 which was enforced with effect from 1-7-1974. The learned counsel has referred to host of authorities namely PLD 1975 Quetta 104; PLD 1977 Lah. 955; PLD 1975 Kar. 120; PLD 1979 Kar. 706; PLD 1975 Quetta 62; PLD 1980 Lah. 639; NLR 1980 U C 54; 1981 SCMR 899. According to the learned counsel the remedy available to the petitioner was only to approach the civil Court.
3. ' Mr. Maroof Ali Khan, the learned counsel has contended that it is not a case, where any fresh investigation has been started, but it was a pending case, and therefore, the respondent No, 1 was competent to decide it. In this regard reference has made to the order passed by the Custodian on 17-3-1950 which reads as follows :- "It is clear that the lands in this case have been allotted under a misapprehension. The mortgage in favour of the evacuee is shown to have been redeemed. I forward the application to the.
4. Rehabilitation Commissioner for such action as he may think fit to take. Unless the allottees can be given other land the only thing to do would seem to be that the applicant should be given the rent for the land."
5. During the pendency of this petition at the instance of the petitioner, a report was called from the Mukhtiarkar, Shandadpur which reads as follows:- Regd. Post/A. D. 79 No, Sett/1105 of 1975 Shandadpur, dated, 27/5.
6. To, The Additional Registrar, High Court of Sind and Baluchistan, Karachi.
7. Subject : Petition No, 324/75 filed by Mst. Khursheed Khatoon and others.
8. Reference : Your Letter No, Nil, dated 22-5-1975.
9. ' In continuation of this office Letter No, HM/933 of 3-5-1975 I submit my further report as under:- ' Some papers relating to the land involved in the petition have been traced out from the old record. In the copy of the order passed by the Custodian E. P.. Karachi on the application of Jassumal it had been suggested by the Custodian to the Rehabilitation authorities that the rent of the land should be paid to the applicant (Jassumal) till the allottees are given alternative lands. A copy of the order of the Custodian E. P., Karachi is enclosed.
10. ' There is an endorsement bearing No, 1564 dated 3-4-50 from the Deputy Rehabilitation Commissioner, Nawabshah addressed to the Mukhtiarkar Shandadpur giving directions not to allot lands of Jassumal and to provide alternative land to refugees and payment of rent to the applicant (Copy enclosed). On this reference the then Mukhtiakar Shandadpur called for report of the Assistant Mukhtiarkar, Tando Adam. The Assistant Mukhtiarkar in reply to the above quary of the Mukhtiarkar, Shandadpur submitted his report on 8-4-1950 stating that he would exchange the land and 'that the allottees be directed to pay the rent (Lease money) to the Khatedar (Jassumal)
11. (Copy enclosed).
12. ' The Deputy Commissioner, Sanghar while restoring the land to Shrimati Hethi Bai and Shamli Bai daughters of the late Jassumal has held in his order dated 28-5-1975. That the Revenue authorities Shandadpur recovered rents from the allottees and paid it to Jassumal at that time (Copy enclosed), but this office does not maintain any record regarding rent (Lease money) it is private concern of the parties. However, from the statements of Hethi Bai and Shamli Bai and neighbouring Zamindars i. e. Rahimullah son of Karimdino Khan Rajput, Gul Muhammad son of Ahmad Khan Khoso and Muhammad Khan son of Kadir Bux Khoso recorded earlier on 12-5-1975 it transpires that they were receiving lease money from the lessees, but the names of the lessees have not been stated by the ladies in their statements.
13. ' MUKHTIARKAR, SHAHDADPUR ' Copy submitted to the Deputy Commissioner, Sanghar for information.
14. ' From the order of the Custodian and the report of the Mukhtiarkar it seems that Jasumal had made an application on 26-1-1950. This application is in the file summoned from the Custodian, in which the Custodian by order dated 27-1.1950 asked the Deputy Custodian to hold a brief enquiry and submit a report. It seems that the order was passed by the Custodian on 17-3-1950. However, there is nothing on the record to show that the report had been submitted, but in the order it is mentioned that the lands in this case have been allotted under a misapprehension. This may perhaps be a remark on the basis of investigation that may have been made by the Deputy Custodian. This order, therefore, stated that the allotment made at that time was under a misapprehension and the mortgage was shown to have been redeemed. This clearly shows that there was no mortgage but treating the land under the mortgage of a Hindu it was allotted to other persons. The order further directed that unless the allottees can be given other lands, the alternate course was that Hindu Jassumal should be given the rent of the land. From the report, it seems that the Revenue Authorities have recovered the rent from the allottees and paid it to Jassumal. It, therefore, seems that from the very inception, the property has been subjected to allotment under miss apprehension and mistake which was rectified by the Custodian. Thereafter no proper steps were taken except that the legal heirs of Jassumal are alleged to have received the lease money from the allottees. From the aforestated facts and if the contention of the respondent is taken to be correct, at best it can be said that the land was cleared by the Custodian in 1950 and thereafter the allotment made by the Rehabilitation authority was not proper. In these circumstances the case had completely been closed and there was no pending proceeding entitling the respondent No, 1 to exercise jurisdiction directing the petitioner to hand over the possession to the respondents.
15. ' The learned counsel for the respondents have contended that even if the respondent No, 1 may not have jurisdiction to injustice has been done to the petitioners and, therefore, in view of Raunaq Ali's case (1) the Court should not exercise its constitutional jurisdiction and grant a discretianary relief. In the present case it is clear that the respondent No, 1 did not have the jurisdiction to pass the order. If that would have been the only ground probably I would have been inclined to apply the principle laid down in Raunaq Ali's case. In the present case, it has been clearly demonstrated that the impugned order has been obtained by fraudulent means. Mr. Abbasi the learned counsel for the respondent has contended that this is a disputed question fact and therefore, cannot be agitated in the present proceedings. The facts brought on record are that respondents made an application, notice of which was served on the Petitioner No, 1 and 2 and Syed Mahmood Hussain.
16. Syed Mahmood Hussain has died. The notice was issued to the petitioners, on 14-3-1975 by Mukhtiarkar. It was addressed to the petitioner No, 1 and deceased Mahmood Hussain. The address given is Bombay Bazar Tando Adam, whereas in all other documents their address is shown to be at Karachi. This notice was received on 20-3-1975 by Masood alleged to be the attorney of the petitioners Nos. 1, 2 and Syed Mahmood Hussain under a power of attorney executed on 19-3-1975, at Karachi. The said attorney appeared before respondent No 1 on 21-3-1975 through an Advocate and as it appears from the impugned order supported the respondents. The order was announced on 28-3-1975 directing the petitioners to physically restore the property. The entire process from issuing notice till the passing of the order seems to be so well planned and manoeuvred that it bears on doubt that the order was obtained by fraudulant means. Syed Mahmood Hussain died on 16-10-1974, therefore, neither a notice could be served on him nor he
(1) PLD 1973 SC 236 ' could appoint an attorney on 19-3-1975. This clearly establishes that the entire power of attorney was forged. In view of these facts I am not inclined to allow the impugned order which is patently without jurisdiction to continue. Another reason which has compelled me to come to this conclusion is that after the impugned order was passed on 28-3-1975 addendum was made by a subsequent order dated 9-4-1975 whereby Survey No, 284/A8, 269 and 273 were added in the order dated 28-3-1975. The reasons for issuing this additional order is that these numbers had been omitted through "oversight". The file of respondent No, 1 has been summoned in which the application dated 25-1-1975 filed by Shirimati Hathi Bai and Shirimati Shamli Bai on the basis of which action was initiated is on the record. In this application prayer has been made in respect of Survey Nos. 270, 271, 274, 275, 276, 277 and 267, 268. In the application made to the Custodian by Jassumal reference has been made to the same survey numbers. The order of the Custodian dated 17-3-1950 also refers to these survey numbers. It therefore, seems clear that in 1950 Jassumal and thereafter his legal heirs have not agitated in respect of Survey Numbers 284/AB, 269 and 273. The additional order passed by the respondent No, I on 9-4-1975 on grounds of omission due to oversight is completely false. It was passed without any notice to any party and is patently illegal, without jurisdiction and lacks bona fides and propriety. For these reasons, the impugned order is declared to be without lawful authority and is set aside. It will however be open to the respondents Nos. 2 to 4 to seek their remedy through proper Court of law.