Facts leading to this Constitutional petition are that Mst. Amtul Batool, respondent No. 2, filed claim forms Nos. 14805 and 14806 for verification of the land vested in the name of her father Walayat Khan in Patiala State in India. The claim was verified for 641 Kanals 8 Marlas equivalent to 7761 Produce Index Units. Khata No.507 of RL-11, Tehsil Chunian, District Lahore was prepared in the name of Walayat Khan and an area measuring 441 Kanals 4 Marlas was allotted in lieu of 2585 Produce Index Units on 14-12-1952. On the report of the Tehsildar, the allotment was checked by the Rehabilitation Authorities in 1958 and was found to be regular and covered under para. 47 of the West Pakistan Rehabilitation Settlement Scheme which provided that "those persons only, whose names are actually recorded in the Records of Rights of the prescribed territory and who have migrated to Pakistan, will be eligible for allotment of land under the Rehabilitation Settlement Scheme up to the extent of their own shares. Such refugee claimants; whose parents continue to enjoy possession of their land in the prescribed territories in India will be allowed to retain as tenants under the said scheme their share of the property in India according to Shariat Law in anticipation of their succession to such property. The land so retained by such claimants will not be allotted in the rehabilitation settlement to anyone else." This paragraph was deleted in 1959 and instead instructions were issued on 25-1-1960 whereunder it was provided that the displaced persons whose parents were still in possession of their properties in India, may, if they so like, purchase the land in their possession and in accordance with the general principles enunciated in the Scheme for the sale of land resumed under Martial Law Regulation No.6 etc., copy of which is annexed as Annexure `B' with this petition. Further, instructions seem to have been issued on 8-6- 1961 vide Memorandum No.1579-61/1099-R(S).. On 28-9-1960, the petitioners are stated to have filed an application before the Additional Rehabilitation Commissioner (Touring and Inspection) to the effect that the father of the respondent No.2 in whom the land vested was still in India and allotments made in pursuance of para. 47 of the Rehabilitation Settlement Scheme were no more operative. The aforesaid provision having been deleted, the Deputy Rehabilitation Commissioner (Land), Lahore cancelled the allotment but rejected the prayer of the petitioners to be treated as "informants" inter alia for the reason that the matter was already known to the Rehabilitation Department as was apparent from a note of the RL-11 dated 10-3-1959, vide order dated 6-3--1962.
On 26-7-1962, the Chief Settlement and Rehabilitation Commissioner sent a memorandum to the Additional Deputy Commissioner (C), Lahore with reference to the latter's Memorandum NoADCC/1963, dated 19th May, 1962 to the effect that "the Chief Settlement and Rehabilitation Commissioner, West Pakistan is pleased to order that Mst. Amtul Batool may be allowed to exercise option to purchase of the land which is found to be taken under her self--cultivation only which may be determined of her personal satisfaction". The petitioners had challenged the order of the Deputy Settlement and Rehabilitation Commissioner dated 6-3-1962 whereunder they had not been accepted as informants. This appeal was accepted by Mr. Ata Mohy-ud-Din Khan, Additional Rehabilitation Commissioner, Lahore vide order dated 27-8-1963 finding the petitioners to be entitled to be treated as informants and directed that after giving the option to purchase the land to the respondent the rest of the available land be allotted to the petitioners according to their entitlement. This is vide order dated 27-8-1963. The Chairman, Allotment Committee, on 27-12-1963 directed reservation of area, measuring 133 Kanals 1 Marla as in possession of the respondent No.2 under self-cultivation and directed issuance of a notice of 15 days for purchase of the same. On the same date, he proposed the rest of the area, measuring 298 Kanals 14 Marlas, in favour of the petitioners. The respondent No.2 had challenged the order of the Additional Settlement Commissioner treating the petitioners as informants on 27-8-1963 by means of a Revision Petition No. 88 which was dismissed in default on 30-5-1964. On 30-7-J9&: the Deputy Settlement Commissioner ordered that the area reserved for the respondent No.2 for purchase having not been applied for and paid, the same be allotted td the petitioners informants. The respondent No.2 challenged this order by means of an appeal which was dismissed by the Additional settlement Commissioner on 30-10-1964. This order was challenged by the respondent No.2 by means of a Revision Petition No.379 of 1969 which was accepted and case was remanded for fresh decision after hearing the parties vide order of the Settlement Commissioner dated 12-2-1965. Earlier order of the learned Settlement Commissioner dismissing the Revision Petition No.88 of the respondent No.2 in default on 30-5-1964 seems to have been recalled and the revision petition was dismissed as barred by time on 12-2-1965. The respondent No.2 filed a Writ Petition No.344/R of 1965 praying for the maintenance of the allotment in her favour and for a declaration that the allotments in favour of the petitioner were without lawful authority. This writ petition was dismissed by a learned Division Bench of this Court comprising Abdul Hamid and Jamil Asghar, ii, on 23-4-1965.
Respondent No.2's father Walayat Khan died in India on 5-5--1965. The respondent No.2 challenged the order of dismissal of her writ petition by the learned Division Bench by means of a Civil Petition for special leave to appeal which was granted and Civil Appeal No.62/68 was filed in the Supreme Court of Pakistan. When it came up for hearing before their Lordships of the Suprme Court of Pakistan, the learned counsel for the respondent No.2 stated that since the appeal was filed, the Rehabilitation and Settlement Commissioner, Lahore Division, Lahore, in Revision No.379 of 1964, has reopened the case and remanded it to the Additional Settlement Commissioner to give a fresh decision after hearing the parties. The appeal has, therefore, become infructuous. It was accordingly dismissed vide order dated 25-1-1973. The remand case seems to have gone before one authority to another and, finally, it came before Syed Ishrat All. Settlement Commissioner (Land). Photostat copy of order sheets shows that the respondent No.2 was directed to give full address of the petitioners alongwith a registered envelope on 24-11-1976 and the case was adjourned to 11-12-1976. However, on 27-11-1976 an application was filed on behalf of respondent No-2 that for service of notice of Jamil Asghar, petitioner No.1, notice in a newspaper m1y be published on her expenses. The application was allowed the same day. When the case was taken up on the adjourned date of hearing, i.e. 11-12-1976, it was recorded that Jamil Asghar, petitioner No. 1, in spite of publication in the newspaper, was not present and, therefore, ex parte proceedings be taken. The case was adjourned for arguments to 18-12-1976. Record from the lower Court was called for but the same was not received. The matter was, finally, disposed of aforementioned learned Settlement Commissioner vide his order dated 3- VY! Whereunder the respondent No.2 was allowed to purchase the allotted t-- at the rate of Rs.8 per Produce Index Unit. As regards Jamil Asghar pititoner No.1, it was stated that he "did Trot appear in spite of repeated notices to proclamation newspaper and thus they are not entitled to be declared documents. In addition to this the entire matter was in the knowledge of the and Rehabilitation Authorities in 1958 and thus the information submitted by them was not new one This order of the learned Settlement Commissioner dated 31-3-1977, has been challenged by the petitioners through this Constitutional petition.
2. Learned counsel appearing for the petitioners has raised a number of contentions including the one that from the order sheets of the learned Settlement Commissioner it is quite clear that even though the learned Settlement Commissioner had directed that complete address with registered envelope should be supplied by the respondent No.2 for the service of the petitioners but nothing of the kind was done and instead an order was obtained that the service be affected through publication which was neither legal, nor was in fact done. He has submitted that there is nothing on the record, including the documents produced by the respondent No.2 annexed with her written statement to show that petitioners Nos. 2 and 3, who were party to the proceedings before the Settlement Commissioner, were ever issued any notice, or, were served. In this view of the matter it is contended that the impugned order of the learned Settlement Commissioner, having been passed in the proceedings against the petitioners without any notice or affording an opportunity of being heard to the petitioners, is liable to be declared as without lawful authority and of no legal effect. Learned counsel has, further, submitted that the petitioners are prepared to give up their claim in respect of the area measuring 133 Kanals 1 Marla ealier reserved for purchase in favour of respondent No.2 in order to avoid prolonged litigation.
3. Learned counsel for the respondent No.2 has contended that the petitioners cannot be treated as informants because they filed the application on 28-9-1960 whereas the information regarding the allotment was already with the Rehabilitation Authorities, as is apparent from the note incorporated on the RL--11 on 10-3-1959. This being so, notwithstanding the confirmation of land in their favour as informants, they have no right to maintain this Constitutional petition. He has placed reliance on Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 and Yousuf Ali v.
Muhammad Aslam Zia and 2 others PLD 1958 SC 104. Learned counsel has also contended that as the petitioner No.1 was pursuing the case of the petitioners Nos. 2 and 3 as well and the petitioner No.1 hating been rightly proceeded ex parte, the petitioners Nos.2 and 3 are also bound by the result of these proceedings. He has, finally, submitted that since after the impugned order of the Settlement Commissioner allowing purchase to the respondent No.2, the latter had paid the price of the area in question to the extent of Rs.20,680, in the Government Treasury, and, thereafter, a mutation had also been sanctioned in her favour vide order dated 21-9-1977.
4. After hearing the learned counsel for the parties and perusing the record with their assistance, it is quite clear that petitioners Nos.2 and 3 were neither issued any notice, nor, afforded any opportunity of being heard before the impugned order was passed in the remand proceedings.
They were party to the proceedings and their rights in the allotment, whether validly made or otherwise have been adversly affected in their absence. They have a right to maintain the Constitutional petition and urge that they have been condemn unheard, which is against law and justice. To this extent, the impugned order is unsustainable at all. Ex parte proceedings against Petitioner No.1, tenuously based as those are, need not in the way of petitioner No.1 when the proceedings have to be taken for hearing the petitioners Nos.2 and 3. Therefore, the impugned order is delcared to be without lawful authority and of no legal effect and the case is remitted to the learned 141c mher, Board of Revenue (Rehabilitation & Settlement Wing) Lahore for entrivtment of the matter to an officer of competent jurisdiction for rehearing after notice to all the parties concerned, and fresh decision in accordant, with law. In the circumstances of the case, the parties shall bear their own costs.