This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls to question the order dated 11-5-1977 of the Additional Commissioner (Lands) with powers of the Chief Settlement Commissioner, Gujranwala, whereby the disputed allotment was declared to be void ab initio and. Therefore, all subsequent transactions were declared to be void and of no legal authority. The disputed land was ordered to be resumed and to be allotted to the Mukhbars against their verified claim, if any.
2. Briefly, the facts are that Reham Din son of Rehman, case Gujjar claimant was allotted various pieces of land against his claim No. 4880/4830 in the following villages as under:-- Name of villagesArea allottedTotal Unitsof Allotted land K M Wahlianwali 77 18 180 Dhodke 2394 0 6000 Athwal 20 2 136 Behladpur 32 4 181 Chak Chaudhry202 0 508 Nat 404 9 869 Dargahiwala not legible 640 Bhabar 238 17 645 Chak Doni Chand289 10 680 Total Allotment:3659 0 9139 Units.
3. The case of the petitioners is that out of the said allotted land, the petitioners purchased lands in village Wahlianwali, Athwal, Behladpur, Chak Chaudhry, Nati and Bhabar from various persons to whom the original allottee allegedly sold it from time to time. The petitioners also claimed to be in possession of the aforesaid land purchased, by them ever since its sale transaction based on various entries made in relevant Khasra girdawari and Jamabandis.
4. Learned counsel for the petitioners submitted that a Mukhbari application was filed by one Bagh A.I on 29-3-19/4 for the cancellation of the land allotted to Reham Din. This application was, however, dismissed for want of evidence vide order dated 7-9-1976 of the Additional Settlement Commissioner; Gujranwala. Subsequently, an other Mukhbari application was filed by Muhammad Saeed etc. Respondents Nos. 2 to 8, herein, against Reham Din, the original allottee before the Additional Settlement Commissioner (Lands), Gujranwala, with powers of the Chief Settlement Commissioner, who after holding an inquiry into the matter by order dated 11-5-1977 cancelled the entire allotment made to Reham Din, the original allottee being in excess of his entitlement and purported to be made against claim No. 4830 which was neither claimed by any person nor it was verified by the Central Record Office. In this background, learned counsel for the petitioners contends that the first Mukhbari application having been dismissed for lack of evidence, the second Mukhbari application was not competent. On the other hand, Ch. Muhammad Rafiq Khan, learned counsel for respondents Nos. 2 to 8 submitted that the second Mukhbari application was not hit by res judicata, inasmuch as, the parties in the first and second applications were not the same. Furthermore, the first Mukhbari application was only in respect of one of the allotments made in favour of Ahmad Din and not the entire allotment. I am, however, of the view that proceedings on the second Mukhbari application in the circumstances of this case would be hit by the general principles of res judicata. The same view was taken in somewhat identical circumstances in Bashir Ahmad v. Kamal-ud-Din (1981 SCMR 1180). It is wholly immaterial that the first Mukhbari application pertained to only one allotment and the subsequent Mukhbari application was in respect of the entire allotment of Reham Din.
5. Learned counsel for the petitioners next contended that the second Mukhbari application was filed against Reham Din notwithstanding the fact that he died before it was filed. This factum is not specifically denied by the contesting respondents in the written statement. On the contrary a plea was taken that "Muhammad Ameen, a legal heir of deceased Reham Din appeared before the trial Court and contested the case and therefore, in these circumstances the petitioner cannot be permitted to usurp the Government property in nine villages on mere technicalities." The same plea has been reiterated by Ch. Muhammad Rafiq Khan, learned counsel for the contesting respondents. This matter, however, stands. Concluded by a decision of this Court in Muhammad Sadiq v. Settlement Commissioner and others (1983 CLC 2550) and Zohra Bibi v. Additional Settlement Commissioner, Sheikhupura, (1983 C. L C 768), wherein it was held that Mukhbari proceedings instituted against a dead person are a nullity and the proceedings would be deemed to be instituted against the heirs, the day they are brought on the record. In the instant case, one of the legal heirs namely, Muhammad Ameen, participated in the second Mukhbari application after repeal of the Displaced Persons (Land Settlement) Act, 1958 and, therefore, the mere fact that one of the legal heirs participated in the proceedings would not cure the fatal defect in the second Mukhbari application.
6. Learned counsel for the petitioners also contended that the petitioners are bona fide purchasers for value from the original allottees and, therefore, even if the allotment in favour of the original allottee was defective. They are not liable to suffer any loss. This point stands concluded by the judgment of the Supreme Court in Manzoor Hussain v. Fazal Hussain (1984 SCMR 1027), wherein the right of such a purchaser is not recognised. In the precedent case, it was held that there is no room for the argument that the sale should be protected in terms of section 41 of the Transfer of Property Act, as sections 10 and 11 of Displaced Persons (Land Settlement) Act. 1958, govern the confirmation of allotment.
7. Be that as it may, the writ jurisdiction is discretionary. Its object is to foster justice and to right a wrong. A person cannot be permitted to invoke the discretionary power of this Court unless it has occasioned some injustice to the parties. The right of purchasers is not recognised by the Supreme Court in Manzoor Hussain's case (supra) and, therefore, the impugned order has not worked any injustice to the petitioners merely on the ground that they were purchasers. This being so, it is not a Fit case for quashing the impugned order in the exercise of discretionary constitutional jurisdiction of this Court. Refer Nawab Syed Raunaq A.I v. Chief Settlement Commissioner (PLD 1973 SC 236).
8. When confronted with this, learned counsel for the petitioners contended that if the title of the predecessor-in-interest of the petitioners was not inviolable, the petitioners would be entitled to purchase the land under the First Proviso to clause (1) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which provides that agricultural land occupied by a person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land. This plea cannot be directly adjudicated upon in these proceedings. The petitioners may, if so advised, in the first instance raise this issue in appropriate proceedings before the Member Board of Revenue/Chief Settlement Commissioner before invoking the constitutional jurisdiction of this Court. If such a grievance is raised, the competent authority shall decide the same after hearing the petitioners and respondents Nos. 2 to 8, herein, and in accordance with law. The parties shall be at liberty to raise their respective pleas in support thereof. With these observations, the writ petition is disposed of, but there shall be no order as to costs.
A.A./R-182/L