' These two writ petitions (W.P. No,159-R/1984 and W.P. No,160-R of 1984) involving common question of law are being disposed of together by a single judgment.
2. The grievance in each case is that petitioners being refugees/claimants for agricultural land from non-agreed areas of India, their claims, allotments and entitlements were covered by Registration of Claims (Displaced Persons) Act read with Martial Law Regulation, 89 as amended by Martial Law Regulation, 91, also called as Scrutiny of the Claims (Evacuee Property) Regulation of 1960/1961.
3. The two petitioners who are brothers had got verified claims in respect of their lands abandoned in non-agreed areas of India and against these some allotments of evacuee lands obtained. On the promulgation of the aforesaid Martial Law Regulation their entitlement stood reduced with the obvious result that the land under allotment in excess of the revised entitlement to that extent also stood cancelled. In this very connection competent authorities had framed a scheme for the disposal of excess land which was called as "Surrendered Land Scheme" framed under the relevant paragraphs of Martial Law Regulations 89 and 91. The area in excess of the revised entitlements of the claimants from non-agreed areas which stood cancelled by operation of law was, at first, to be offered for purchase to those claimants from whose entitlement it stood cancelled and surrendered. In both cases there were `Mukhbari' applications moved by Inavat Begum, respondent in two writ petitions, alleging that the claimants had obtained allotment in Sindh, but have not surrendered the land allocated to them in Bhakkar. The Notified Officer by his order dated 31-5-1983 ordered that if the allotments in the names of Taj Muhammad and Maqsood Ali Khan had not been surrendered and resumed in favour of the State or if these persons had not exercised opt ion to purchase the area and instead had kept the said area illegally and clandestinely, then it should be cancelled from their allotments and the area so cancelled should be given to Inayat Begum, if she had unutilized available entitlement.
4. This is not the end of the matter. The Tehsildar on 9-4-1984 purporting to exercise the powers of Notified Officer even went to the extent of cancelling the entitlement against which the area had to be retained by the claimants in view of the revised claim and entitlement. This action of the Tehsildar is being objected to on two grounds; (1) that he being not a Notified Officer, could not deal with the matter and; (2) that to the extent that entitlement was reduced and revised, he could not have interfered with the case because that would be in conflict with the scheme of the Martial Law Regulations, 89 and 91 as amended.
5. The matter need not hold this Court for long for the obvious defects which have been noticed in the exercise of jurisdiction by the Notified Officer, vide his impugned order dated 31-5-1983. A bare reference to section (2) of Act (XIV of 1975) would visibly bring out that all matters of which cognizance could be taken by a Notified Officer had to be finally disposed of by him. The ultimate paragraph of the impugned order of the Settlement Commissioner as a Notified Officer proceeds on suppositions and after qualifying the order with ifs and buts', he left the matter strangely for determination by an unspecified authority alien to the law. In so doing, the Notified Officer has clearly acted in breach of the law creating him. Even otherwise, he failed to record the findings which went to the root of the matter for a just decision which he was bound to render after due application of his mind to the material on the record and after perusal of the relevant settlement files, registers, documents and attending circumstances of the case. The impugned orders, therefore, suffer from visible vitiative infirmity which renders them of no legal effect.
6. Similarly, his observation that the lands which may be resumed from the claimants may be allotted to Mst. Inayat Begum if she had entitlement, also suffers from obvious incongruity. The finding that an informant should have available valid unutilized entitlement was a pre-condition for passing such an order or conferring informant benefits in terms they were granted in these cases. He also failed to consider the nature of the alleged excess land which had undergone a change of character by operation of law since the year 1961. Such land had not to revert to the evacuee pool but became the Provincial Government land as is evident from a perusal of Martial Law Regulation, 89/91. A further question which escaped notice was whether in respect of land which stood cancelled by operation of law any `Mukhbari' application for cancellation of non- existent allotment was at all competent on behalf of a `Mukhbar'. These legal aspects are not in dispute between the parties. The functionaries below thus, left undecided questions which went to jurisdiction and were germane for a lawful adjudication. In this case there is also visible lack of due application of mind on the part of Notified Officer. He has failed to exercise jurisdiction vested in him by law in keeping with the dictates of statutes under which he was purportedly acting. This Court would not ordinarily substitute its own findings for those of the Tribunal below or record findings of fact which the functionaries below failed to record though they were bound to record those findings. In the case of Syed Azmat Ali v. The Chief Settlement and Rehabilitation I Commissioner, Lahore etc. PLD 1964 SC 260, Supreme Court had held:-- "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial Authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior Authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or Authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the Authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
This dictum also ought to govern a case where the findings necessary for a just and lawful decision were not recorded by a Tribunal of exclusive jurisdiction.
7. For the reasons recorded above, the impugned orders in each case passed by the learned Notified Officer on 31-5-1983 and the consequential order of the Tehsildar dated 9-4-1984, are hereby held to be without lawful authority and of no legal effect. The cases are remanded to the Member, Board of Revenue (S&R) for disposal in accordance with law.
8. In the remand all the crucial questions shall be examined and decided, specially the quantum of revised claim of the claimants, the surrendered land and whether or not in respect of the same, option had been exercised by the claimants or any instalment paid. If it was not so done whether or not it could be now done during the extended period by the heirs of one of the petitioners in W.P.
No,159-R of 1984 and by the petitioner in the other case, (W.P. No,160-R of 1984). The locus standi of an informer and whether such a person can be conferred informant benefits in respect of allotment and land covered by Martial Law Regulations 89/91, would be paramount questions to be resolved as a preliminary issue. All other points which may properly arise for consideration and are germane for the resolution of the controversy before the Notified Officer for a proper decision, will be fully adverted to, adjudicated upon and decided finally. The parties shall be given proper opportunity to substantiate their pleas and the proceedings undertaken must reflect keenness to reach the truth and do justice to the parties in accordance with law.
9. In the peculiar circumstances of the case, there shall be no order as to costs.