' The petitioners, Abdul Ghani and others, have filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the respondents whereby the impugned order of Assistant Commissioner (L), respondent No. 1, dated 27-5-1975 has been challenged as the same being without lawful authority and of no legal effect.
2. The case of the petitioners is that their predecessor-in-interest, namely, Ghulam Muhammad, was allotted a piece of land measuring 114 Kanals and 13 Marlas in the year 1964, vide R.L.II (Annexure 'A') against their verified units in village Ladhar, Tehsil and District Lahore, and accordingly Khatauni (Annexure 'B') was also issued to the petitioners' predecessor-in-interest. The whole land in the ownership of the petitioners' predecessor-in-interest was mortgaged with Agricultural Development Bank of Pakistan and a loan was obtained for installation of a tubewell.
The petitioners state that they installed a tubewell in Khasra No. 3157 by spending a sum of Rs.50,000. After the death of Ghulam Muhammad, all the petitioners inherited his property and Mutation No., 1208 was duly sanctioned vide Annexure 'C'.
3. It is submitted by learned counsel for the petitioners that the whole land including the disputed land namely, Khasras Nos. 3157, 3158, 3167 and 3180 measuring 32 Kanals always remained in the ownership and possession of the petitioners and they have been enjoying the income from the said land without any interruption from any quarter. It is vehemently contended that the petitioners are claimant displaced persons and the disputed land was confirmed in their favour in 1964. It is next contended that respondent No. 1 had no jurisdiction whatsoever to slice away Khasra Nos.
3157, 3158, 3167 and 3180 measuring 32 Kanals from the total entitlement of the petitioners and to give the same to the respondent without issuing any notice to them and without providing them an opportunity of being heard. Learned counsel maintains that the impugned order, dated 27-5-1975 (Annexure 'E') is patently without jurisdiction and does not affect the legal rights of the petitioners.
4. It appears from the record that respondent No. 2 Hassan Muhammad, applied for the purchase of the disputed land from the Central Government on the basis that he was a tenant in possession of the land in question and that he was ready to pay the price of the land at the rate of Rs.10 per produce index unit. On this application, respondent No. 1 without applying his judicial mind to the facts of the instant case and without impleading the petitioners as a party in the case, proceeded to sell the disputed land to respondent No. 2 and accordingly he issued an order to respondent No. 2 that he should deposit a sum of Rs.2,580 for the purchase of the land in question on 27-5-1975. It is clear from the impugned order (Annexure E) that the petitioners were not a party before respondent No.1 nor the said respondent conducted any investigation in the matter as to whether the land in question was lying available for its sale or not. He did not bother to even record the statement of respondent No. 2.
5. Learned counsel for the petitioners has attacked the vires of the order, dated 27-5-1975 and has submitted that the petitioners were not a party before respondent No. 1 and as such, the order cannot affect the lawful rights of the petitioners. It is submitted that the land in question was confirmed to the petitioners as back as 1964 and since then they have been in cultivating possession of the same without any intervention by any quarter. Learned counsel states that Annexure 'A' is the copy of R.L. II showing the total area allotted to the petitioners. Learned counsel has placed heavy reliance on Annexure 'B' which is a copy of Khatauni which in turn gives the numbers of the disputed land namely, Khasra Nos. 3157, 3158, 3167 and 3180 to show that the same Khasra numbers are in the ownership and possession of the petitioners. Annexure 'C' shows that on the death of Ghulam Muhammad, the petitioners inherited the disputed property as his legal heirs.
Khatauni Paimaish pertaining to the disputed Khasra numbers, copy of Khasra Girdawari, copy of Khatauni Ishtemal, copy of mortgage-deed and copy of register Haqdaran relating to the year 1965-66 in respect of the disputed Khasra numbers have been heavily relied upon by the petitioners to show that the disputed land is owned and possessed by the petitioners to the exclusion of all others. Mr. A.R. Shaukat, learned counsel for respondent No. 2, in reply to argument of learned counsel for the petitioners has tried to argue that cancellation order, dated 18-5-1964 was passed by the Deputy Settlement Commissioner whereby the disputed land was taken away from the ownership of the petitioners and that no appeal or revision was ever filed by the petitioners so far as the aforesaid order is concerned. It is submitted by learned counsel that respondent No. 2 was rightly sold the disputed land and he has paid the entire transfer price and has become the full-fledged owner.
6. After hearing the learned counsel for both the parties, I am of the view that the impugned order, dated 27-5-1975 cannot be sustained for variety of reasons. To begin with, the impugned order, dated 27-5-1975 (Annexure E ) shows that the learned Assistant Commissioner (L) Lahore proceeded to accept the application of respondent No. 2 without applying his judicial mind to the facts and circumstances of the instant case. He did not try to probe into the matter as to whether the land in question was at all available for sale or not. If the learned officer had looked into the revenue record like Khasra Girdawaris, Jamabandis, R.L. II. Etc. Etc., he would not have passed the impugned order. The entire Settlement as well as the Revenue record shows that the disputed land vested exclusively in the ownership of the petitioners and they were in the cultivating possession of the same. This being the position in 1975 when the impugned order was passed, the disputed land was not in the ownership of the Central Government of Pakistan so as to enable respondent No. 1 to effect its sale in favour of respondent No.
2. There is considerable force in the argument of learned counsel for the petitioners that they have been deprived of their property without being impleaded as a party and without giving them an opportunity of being heard. Learned counsel for respondent No. 2, when confronted with this situation, he had no substantial answer to that. His contention, as stated earlier, was that an order as back as 18-5-1964 was passed by the Deputy Settlement Commissioner, Lahore, whereby the disputed land was cancelled from the names of the petitioners. This argument is of no avail to the respondent for the simple reason that the copy of the impugned order, dated 18-5-1964 has not been produced by the respondent No.
2. In fact, there is no legal existence of this so-called order pertaining to the property in question.
There is absolutely no mention in the Settlement as well as in the Revenue record about this order having been passed by the Deputy Settlement Commissioner cancelling the disputed land from the names of the petitioners at any stage. Thus, no legal sanctity could be attached to such type of order which is not available before the High, Court for its scrutiny, neither it was produced before respondent No. 1, nor the same was shown at any stage of the case. This being so, this is clearly a void order which does not exist in the eyes of law and the same could be easily ignored for all practical purposes. This is clearly a case of excess of jurisdiction on the part of respondent No. 1, inasmuch as he has exercised the jurisdiction which never vested in him.
7. The upshot of the above discussion is that the impugned order, dated 27-5-1975 passed by respondent No. 1 (Annexure 'E') is set aside by declaring the same as having been passed without lawful authority and of no legal effect. The parties are left to bear their own costs. The writ petition is accepted.