Through this writ petition the validity of an order dated 6-6-1978, passed by respondent No. 1 whereby the Mukhbari application filed by the petitioners against respondents Nos. 2 to 6 was dismissed, has been questioned.
2. Briefly put, the facts of this case are that during the years 1959 to 1962, land measuring 3081 Kanals and 2 marlas, situate in Chak Donni Chand, Tehsil and District Gujranwala, was allotted to 36 families represented by the petitioners, as J & K Refugees for their maintenance. It is the case of the petitioners that without cancelling their allotments and giving them an opportunity of being heard, the land was allotted to respondents Nos.4 to 6 particulars whereof are as under:-- Total Area Khata No.Date of allotment Respondent No. 4 2040K-1M5 18-12-1967 Respondent No. 5 289K-10M8 28-5-1968 Respondent No. 6 265K-15M6 & 7 27-12-1967 Respondent No. 4 alienated the entire land allotted to him in favour of respondents 2 and 3, by way of sale. The facts of this sale are that on 20-4-1973, respondents 2 and 3, filed a suit for declaration and permanent injunction against respondent No. 4, to the effect that the latter sold the entire land in their favour for a consideration of 1,84,095 and passed on its possession to them, the vendor agreed to get either the sale deed executed or mutation sanctioned in favour of the vendees within seven days; but he failed to comply with the commitment. The decree prayed for was for declaration that respondents 2 and 3 were owners in possession of the land. As consequential relief a permanent injunction was sought to be issued against respondent No. 4 restraining him from interfering with their possession over the land in dispute or obstructing the sanction of the mutation of sale in their names. This suit was decreed on 25-7-1973, in pursuance of the statement made by respondent No. 4. Admitting their claim.
3. On 26-9-1973, the petitioners filed an application before the Deputy Commissioner, Gujranwala, to the effect that they were in possession of the land, for the last 20 years as temporary allottees being J & K Refugees, and their allotments were never cancelled; the khatas prepared showing the land allotted to the respondents Nos.4, 5 and 6 were a forgery and that the decree passed in favour of respondents 2 and 3, against respondent No. 4, was the result of fraud and collusion. On the basis of this application under the orders of the Deputy Commissioner who held the powers of the Additional Settlement Commissioner (Land), the Extra Assistant Commissioner (Revenue) conducted an inquiry and submitted his report to him that the entries of khatas Nos. 5 to 8 were apparently bogus; the land confirmed to the respondents had already been allotted to the J & K Refugees. He also expressed doubts about the genuineness of their claims. He, however, suggested that the petitioners should submit an application under section 10/11 of the Displaced Persons (Land Settlement) Act, for the redress of their grievances.
4. It was under these circumstances that the petitioners filed the application which was disposed of by respondent No.1. During the course of the enquiry, the petitioners produced copies of the Jamabandis for the years 1968-69, 1972-73, and khasra girdawaris, to establish that the land continuously remained in their possession. The consolidation proceedings of Chak Duni Chand were completed on 31-12-1967, and treating the petitioners as allottees, khatas were prepared in their names. In this respect they also examined Munshi Nazir Ahmad Girdawar Consolidation. By this evidence the petitioners endeavoured to establish that orders cancelling their allotments were never passed before 31-12-1967, otherwise these would have been implemented during consolidation proceedings. In order to prove that the petitioners were temporary allottees of the land, they produced Abdul Shakoor P.W.1, Clerk Rehabilitation Department, J & K Refugees, who in his statement supported the petitioners, Wazir Muhammad. Naib Daftar Qanungo who appeared as P.W.4 on behalf of the petitioner deposed that R.L.II Register bore an entry in red ink against Khata No. 5 that the allotment of 36 J & K Refugee families was cancelled on 30-11-1967, on the ground of double allotment. This entry was not signed by any one. In addition to this the petitioners also produced some other evidence to prove that respondents' allotment was not genuine, which need not be discussed. Respondent No. 1, however, relied on the statement of Munir Hussain R.W. 1 who was Naib Qanungo and deposed that R.L.II Register was kept in safe custody. He also referred to the testimony of Sana Ullah retired H.V.C. Who identified the signature of Abdul Rauf Khan Niazi, the then Additional Deputy Commissioner (C), Gujranwala, on the R.L.II Register, who allotted the land to the respondents. Respondent No. 1 was of the opinion that the allotment of 36 families in question was cancelled on 30-11-1967 by the Additional Deputy Commissioner, (C), and the land later on confirmed in the names of the respondents. Accordingly by his order dated 6-6-1978, he upheld the respondents' allotments.
5. The learned counsel for the petitioners has submitted that they were allotted land in dispute for their maintenance as J & K Refugees during the years from 1959 to 1962. No order was passed cancelling their allotment; they were never served or heard. It was also contended that under clause 9 of para 4-A of the Rehabilitation Scheme, land allotted to J & K Refugees, stood excluded from the compensation pool and could not be settled on respondents Nos.4, 5 and 6. Relying on the Extra Assistant Commissioner's report dated 28-9-1973, the learned counsel further urged that the allotments procured by respondents 4 to 6 in their favour, were a forgery, and therefore, could not be sustained. It was forcefully contended that the evidence produced by the petitioners before respondent No. 1 was completely misread by him and in fact his finding that the petitioner's allotment was cancelled was not based on any legal evidence. ..
6. Neither respondents 4 to 6 nor the Settlement Authorities despite service put in appearance to oppose this petition. Only respondents 2 and 3 have contended the case and their learned counsel submitted that the file relating to cancellation of the petitioner's land was not available, and had been misplaced. He contended that though this record was not available yet there was sufficient material on the file to justify an inference that the petitioners were heard and the land was cancelled from their names in accordance with law. He also took up the plea that even if the petitioners were not heard earlier they were fully heard and opportunity to lead evidence given to them by respondent No. 1, during the hearing of their application under section 10/11 of the Displaced Persons (Land Settlement) Act, and that therefore, it was not open to them to attack the impugned order on the plea that they were not heard. Reference was also made by the learned counsel to the copy of the Register Dak Behi (Annexure `L'), maintained by the office of the Kanungo, Tehsil and District Gulranwala, which bears entry dated 30-11-1967, showing the despatch of a letter to the Tehsildar Jammu and Kashmir. The description of the letter as contained in the "Dak Behi", is reproduced as under:-- It was contended that an entry existed in the R.L.II Register against Khata No. 5, that the petitioner's allotment was cancelled by the Additional Deputy Commissioner (C), on 30-11-1967. On the basis of these submissions, the respondents' learned counsel pleaded the correctness of the findings arrived at by the learned Additional Settlement Commissioner, in his order impugned through this writ petition.
7. In order to find out as to whether before allotting the land to the respondents, the petitioners' allotments were cancelled, in accordance with law, I have thoroughly examined the entire record, which was requisitioned from the department. There is no order on the record cancelling the petitioners' allotments. In fact there is no material on the file to suggest that the petitioners were served with notices or were given any opportunity of being heard before depriving them of the land duly allotted to them. The learned counsel for the respondents conceded that the material concerning the cancellation order and the proceedings relating thereto was not on the record. As observed above he contended that the relevant file had been misplaced. As regards the entry against khata No.5 in the R.L.II Register, to the effect that the land allotted to 36 J & K Refugee families cancelled by the orders dated 30-11-1967, of the Additional Deputy Commissioner, it is to be notice, that Wazir Muhammad P.W. 4, clearly stated, that this entry did not bear the signatures of anyone. Similarly the entry-dated 30-11-1967, in the "Dak Behi" Register of the Kanungo does not establish that the petitioners' allotment was cancelled. No such inference can be drawn from this entry. Except these two documents, the respondents' learned counsel could not refer to any other piece of evidence.
8. The petitioners had valuable rights in the land allotted to them. They could not have been denuded to these rights without giving them an opportunity of being heard. The record does not show that any such opportunity was given to them. The submission made by the respondents learned counsel that the hearing given to them by respondent No. 1, while disposing of their application, satisfied requirements of law, is without any merit. The land allotted to the petitioners' could only be cancelled under section 11 of the Displaced Persons (Land Settlement) Act, which lays down that no order cancelling the allotment shall be passed without giving the person affected thereby a reasonable opportunity of being heard. In Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971 SC 61 at page 71), it has been laid down that:-- "The argument that the appellant had an opportunity of teeing heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice viz, audi alteram partem (nobody is to be condemned unheard). But, when as already stated above, an absolute requirement of the statute has been defied, the order passed is a nullity."
Even otherwise the opportunity of hearing given to the petitioners while disposing of their application under section 10/11 of the Act, cannot be a substitute for the hearing to which they were entitled before allotment of the land to the respondents.
9. From the present record it cannot be established that the petitioners were heard in accordance with law, before taking away the land from them. This ground alone is sufficient to set aside the impugned orders. Furthermore, the cancellation of the petitioners' allotments has also not been proved from the record produced before me. The allegation is that the relevant file was misplaced which is, however refuted by the petitioners. The order rejecting the petitioners' application, under these circumstances, cannot be sustained.
This writ petition is, therefore, accepted, the order dated 6-6-1978, passed by respondent No. 1, and so also the orders allotting the land to respondents Nos.4, 5 and 6, are set aside and the case is remanded to the learned Member, Board of Revenue (Settlement & Reh. Wing), for its entrustment to an officer empowered to hear it, who after hearing both the parties shall decide:--
(i) Whether or not order cancelling the petitioners allotments, was passed in accordance with law, before allotting the land to the respondents:
(ii) If so, were the petitioners given an adequate opportunity of being heard, before passing of such order.
If the answer to both the issues is against the petitioners, the respondents' allotments shall be restored. It shall be open to both the parties to raise any plea during the post-remand hearing of the case. This order, however, shall not be a bar for the department to proceed afresh against the petitioners, according to law, in case, they are found to be guilty of securing double allotments.
A.A./M-1663/L