These are three connected writ petitions all of which are directed to assail the validity of the order of a notified officer Mr. M.A.Razzaq, dated 15-8-1978 whereby he cancelled the Khatas allotted in the name of claimant Muhammad lqbal and resumed ,certain areas after coming to the conclusion that there was excess allotment obtained by the claimant. The three connected writ petitions, it may be mentioned, are W.P. No.972/R-79, W.P. No.944/R-78 and W.P. No.258/R of 1980 and they are being disposed of by a single order because common questions of law and fact are involved and they are directed against the same impugned order. The petitioners in each case are the vendees of the land from the original claimant Muhammad lqbal.
2. A large number of contentions have been raised on behalf of the parties from either side. The validity of the impugned order of the notified officer/ Settlement Commissioner has been mainly challenged on the ground that in the case of Writ Petition No.972/R-78 he did not apply his conscious mind as to the desirability of the cancellation of the excess area from any particular Khata. In respect of Writ Petition No.944/R-78 the principal grievance is that the petitioners who were vendees since before the institution of the Mukhbari proceedings and have been duly recorded as owners in the revenue record were not impleaded to the proceedings or heard by the notified officer before passing the impugned order to their detriment. Reliance in this behalf is being placed on the mandatory proviso to section 10 of the Displaced Persons (Land Settlement)
Act, 1958. At the time of the admission of this writ petition, a report had been called for from the Department in which it was conceded that the petitioners in Writ Petition No.944/R-78 could not be impleaded as party during the proceedings because no record showing the title in the disputed property of the writ petitioners was produced before the notified officer.
In so far as Writ Petition No.258/R-80 is concerned, the grievance is similar to that raised in Writ Petition No.944/R-78 that the petitioners were not heard before the order to their detriment was passed.
3.The impugned order of the notified officer has been read andthe record had been perused.
Another principal contention which require to be noticed in these cases is the allegation that the Mukhbari application purporting to be in the name of late Professor M.A. Ehsan was an dated and was smuggled into the record. Reliance for that purpose being placed on Annexure 'B1 to Writ Petition No.944; i:-78 which is photostat certified copy issued by the Board of Revenue. On behalf the heirs of late Professor M . A . Ehsan, however, it is being contend that the original record may contain some material to justify the conculsion whether this Mukhbari application was instituted before the repeal the Act or was subsequently filed.
4.There is yet another feature and that is that there was indeed a Mukhbari application filed by Professor NI.A.Ehsan which was dispost of by an Additional Settlement Commissioner, Lahore Division by order dated 25-8-1976. Unfortunately, none of the learned counsel is possession of a copy of the Mukhbari application which culminated the order of the Additional Settlement Commissioner, dated 25-8-1971 The precise allegation is that there was only one Mukhbari application and that related only to Mauza Boga. However, on behalf of the learn counsel for respondents Nos. 2 to 6 in W.P.No.972/R-78 it is be asserted that the original record may contain the signatures of the authorised Deputy Commissioner/ Additional Settlement Commissioner/ Chi Settlement Commissioner, Gujranwala. Learned counsel for the respondents has shown me a copy of a certified copy of the Mukhba application by Professor M.A.Ehsan produced from his custody. I has compared it with Annexure 'B' W.P. No.944/R-78 which is a certifie copy of the same application.
The question whether the .Origin application does or does not contain the signatures of any authorise officer, dated 11-3-1974 is not for me to decide in these proceeding! In keeping with the desire of respondents 2 to 6 (the heirs of la Professor M . A . Ehsan) , I think I should leave this aspect of the matt( for the purpose of inquiry by the notified officer.
5. A perusal of the impugned order of the notified officer does not show conscious application of mind to all the questions which wet germane for an honest decision nor the contentions of the respect parties have been noticed with due care and disposed of either way entertain no doubt in my mind that whenever public power is vested a functionary it must be exercised bona fidely, honestly and objective] if justice is to be done to the citizens of a State. There is not a war to be found in the impugned order even discussing d plea raised c behalf of the respondents to those proceedings who are agitating the: grievance before this Court on that account. It is nobody's case the petitioners were mute and did not say anything in defence. The question of jurisdiction of not flied officers was dependent upon the fulfilment of a condition precedent that the proceedings they had decide finally should be such as were lawfully pending on proper] institutedproceedings since before the repeal of the Displaced Persor (Land Settlement) Act, 1958. On satisfaction of this jurisdiction, requirement the notified officers could lawfully assume and exercise jurisdiction to decide the dispute on merits. The notified officers as a imperative necessity have to attend to the question of their own jurisdiction which could not be assumed on assumption, hazy notions or under colour or on the basis of forged and fabricated record. There is nothing in the impugned order of the notified officer to show his awarenessthis essential requirement or application of his mind to these jurisdiction; himself to the question of competently instituted dlukhbari application. Mr. Khawaja, who was a counsel appearing in the proceedings below, states at the Bar that this and many other questions were agitated but conveniently brushed aside. A case of failure to exercise jurisdiction is thus made out.
6.It is well-settled that when the questions have been left undecided by a tribunal below or the proceedings have not been conducted in accordance with law or the parties have been denied a right to be heard or to defend themselves, it is proper for this Court to remand the case to the functionaries below. I am conscious of the fact that considerable time has elapsed and normally this Court does not favour a remand but in the facts and circumstances of these cases since the grievances of grant of opportunity to be heard is made out. I am not minded in this case to convert myself into Court of original jurisdiction and dispose of the Mukhbari proceedings.
7.For the removal of doubts I wish to make it succinctly clear that no observation made by me in this order is to be treated by the notified officer as sealing the fate of either party. The proceedings in remand must be held with open mind and a fair opportunity must be C provided to all sides to raise any contentions or rebut those which are against them and then the case must be decided in accordance with the contentions raised and the law correctly applied. However, some of the omissions which are mentioned above are to be duly attended to because that is a moot point between the parties. There is no opposition being offered to this remand order being passed by any of the parties before me.
8. 1 would accordingly, while setting aside the impugned order, declare it to be without lawful authority and of no legal effect and would direct the learned Chief Settlement Commissioner to either personally hear these cases or entrust them to an officer at a responsible level who shall dispose them of within a perio of four months. In view of the circumstances I am sparing the parties the costs.
The parties are directed to appear before the learned Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore, exercising the executive/administrative powers on 1-12-1985 who shall then decide about the disposal of these cases.