Petitioner in the instant writ petition has sought the indulgence of this Court to declare the judgment of Settlement Commissioner, Dera Ismail Khan Division (herienafter to be called as Respondent No. 1) dated 1-2-1995 being unlawful, without jurisdiction, void, without .Lawful authority and of no legal effect. By the said judgment the order of E.A.C. Revenue/Deputy Settlement Commissioner (Lands), Dera Ismail Khan (hereinafter to be called as respondent No.2) dated 13-6- 1993 passed in exercise of suo motu jurisdiction was set aside and transfer through Auction proceedings by Assistant Commissioner /Deputy Settlement Commissioner, Dera Ismail Khan (hereinafter to be called as respondent No.9) dated 3-1-1979 was restored.
2. Facts behind this writ petition are, briefly, that the predecessor-in---interest of the petitioners namely Sirajuddin alias Sirajoo s/o Hafeeza, a displaced person having a verified claim of 44 Produce Index Unit, was allotted an area of 12 Kanals and 19 Marlas of land bearing Khasra Nos. 115, 401, 404, 426 and a part of Khasra No.437 (to the extent of 2 Kanals, 8 Marlas out of total 3 Kanals, 18 Marlas) situated in Village, Dewala, Tehsil and District Dera Ismail Khan vide LR-11 No.65 duly approved and allotted by Assistant Rehabilitation Commissioner, Dera Ismail Khan vide his Endst./Order dated 9-3-1961. Necessary entries id the settlement record were also directed vide Daily Diary of 5-7-1961. Out of the aforesaid Khasra Nos., the land bearing Khasra No.437 which was subsequently amalgamated with Khasra No.434 and renumbered as 310 measuring 4 Kanals, 5 Marlas, is the subject--matter of present litigation. The allotment order for the rest of property bearing Khasra Nos. 115, 401, 404 and 406 aforementioned is undisputedly still intact. This is also established from the record that Khasra No.437 was proposed to be allotted to one Mst. Bashiran widow of Naseeb Khan on 8-12-1960 vide LR-11 No.54 but the proposal was not accepted and cancelled by order of Assistant Rehabilitation Commissioner, Dera Ismail Khan. On the promulgation of Evacuee Property and Displaced Persons Laws (Repeal Act) of 1975 known as Act- XIV of 1975, in the year 1979 the then respondent No.9 put to auction Khasra No.437 (new Khasra No.310) measuring 4 Kanals, 5 Marlas the predecessor-in-interest of respondents Nos.3 to 8 was transferred this land through an auction purchase for a nominal consideration of Rs.1,000. The auction was conducted and approved on 3-1-1979 and a Robcar was issued on 23-1-1979 for giving it effect in the Revenue Record, consequently mutation No.610 was attested on 30-1-1979 in favour of predecessor-in-interest of respondents Nos.3 to 8.
3. In the year 1993 respondent No.2 in exercise of his suo motu powers issued a notice for cancellation of auctioned transfer order dated 3-1-1979 and mutation No.610 attested on 30-1-1979 against respondents Nos.3 to 8 as their predecessor, the transferee under auction purchase had died by then. On the next date of hearing petitioners submitted an application for impleadment as necessary party on the strength of allotment order dated 9-3-1961 in favour of their predecessor. In response to the said notice Sibghatullah Qazi in his own cause as well as duly appointed General Attorney for other legal heirs of Qazi Saeed Muhammad arrayed as respondents Nos.3 to 8 in this petition, made appearance before respondent No.2 on 14-4-1993. The general power of attorney dated 27-9-1986 executed in his favour was also produced on the subsequent date i.e. 20-4-1993 when directed by Court to file written statement to the notice served upon them and also replication of the present petitioner for impleadment as party to the proceedings and the case was adjourned for the said purpose to 25-4-1993. The said attorney absented himself in the onward proceedings. He was issued repeated summons but he denied its execution. On the report of Naib Quasid dated 24-5-1993 they were proceeded ex parte. The application of petitioner for impleadment as party was also allowed the same day and ex parte evidence was called as Court witnesses in the Court of respondent No.2. One Khaliq Dad Khan, Senior Clerk in the office of Rehabilitation Dera Ismail Khan appeared with relevant record and examined as C.W./l, Muhammad Amir, Patwari Halqa, 'Dera Ismail Khan alongwith record as C.W./2, Gut Janan Khan Naib Saddar Kanoongo Dera Ismail Khan with record as C.W./3 and Abdul Wahid Khan one of the petitioner as A.W./l. On the-- assessment of evidence and record produced before him, respondent No.2 passed a detailed judgment dated 13-6-1993 with the result that the Auction proceedings dated 3-1-1979, its approval and subsequent mutation No.610 attested on 30-1-1979 in favour of the predecessor in interest of respondent No.3 were cancelled and the allotment order dated 9-3-1961 in favour of the predecessor in interest of the petitioners was restored to the extent of 3 Kanals, 2 Marlas in Khasra No.437 (new No.310) and its remaining part measuring I Kanal, 3 Marlas was restored to Central Government.
4. Respondent No.3 preferred a revision petition to the Additional Commissioner, Dera Ismail Khan Division which was subsequently entrusted to respondent No.1 by order of the Member, Board of Revenue dated 25-9-1994 and ultimately disposed off on 1-2-1995 and it was held that since the Displaced Persons (Land Settlement) Act, 1958 was repealed through Evacuee Property and Displaced Persons Laws (Repeal Act) of 1975, the Deputy Settlement Commissioner (Respondent No.2) was divested of powers to hear the evacuee property cases and the order and judgment of respondent No.2 dated 13-6-1993 was set aside and the auction purchase and subsequent mutation in the name of predecessor-in-interest of respondent No.3 was restored.
5. It was contended by the learned counsel for the petitioners that since the disputed land was allotted to the predecessor of petitioners as displaced person against a verified claim vide a valid order dated 19-3-1961 the competent authority after due enquiry and process was not available to the Provincial Government for onward allotments. The auction proceedings conducted on 3-1-1979 were carried out without any notice to them although in the official record of the Settlement and Rehabilitation do contain the order of allotment in the name of predecessor of petitioner, as produced by C.W./1 as Exh.C.W.I/2. It was further contended that allotment in the name of predecessor of petitioners was made by Assistant Commissioner, Dera Ismail Khan exercising the powers of Deputy Settlement Commissioner duly empowered by Notification No. F.1(1)/64 SEI, dated 12th February, 1964 issued under Displaced Persons (Land Settlement) Act, 1958: On repeal of the said Act by Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975 the Secretary to Government of N.-W.F.P. Rehabilitation and .Settlement Department and Additional Deputy Commissioners were granted certain powers under section 3(1) of the Act ibid vide Notification.
No.4693, dated 29th March, 1977. The Notification ibid was modified vide Notification No.6876 dated 10th August, 1977 and Revenue E.A.C. Of the Dera Ismail Khan District was substituted for Additional Deputy Commissioner. These Notifications still hold the field. Respondent No.2 being successor of functionaries under the Displaced Persons (Land Settlement) Act 1958 on coming to light the illegal auction purchase on 3-1-1979 issued a suo motu notice to beneficiaries thereunder and after holding a detailed enquiry passed the order dated 13-6-1993. It was also contended that respondent No.1 has passed an arbitrary order i.e. 1-2-1995 which is evident on the face of it. The points mentioned as (ii) and (iii) in the said impugned judgment though argued before -him were left undecided. Lastly it was contended that on the promulgation of Act-XIV of 1975 Scheme No.2 was enforced on 16-6-1976 for the disposal of those lands which were found available in that pool, but since the disputed land were already disposed of in 1961, therefore, the same were not available for disposal under the said Scheme in 1979. In these circumstances it was submitted that the impugned order dated 1-2-1995 is illegal, arbitrary, fanciful, without jurisdiction and of no legal effect and is liable to be struck down under Constitutional jurisdiction of this Court.
6. The learned counsel for the respondents 3 to 8 while opposing the counsel for petitioners strongly supported the impugned order of Respondent No. l and argued that no payment has been shown by predecessors of petitioners and even if an allotment order was made in his favour the same was not acted upon because it 'was not given effect in revenue papers. To substantiate his arguments he referred to copy of Jamabandi for the year 1967-68 Exh.C.W.2/1 showing Mst.
Bashiran W/o Nasib Khan as owner. The same entries also appear in Jamabandi for the year 1970- 71 Exh.C.W.2/2, in the subsequent jamabandies prepared in 1979-80 Exh.C.W.2/3 of 1983-84 Exh.C.W.2/4, and of 1987-88 Exh.C.W.2/5 the predecessor of respondents 3 to 8 has been recorded as owner in ownership column. He contended that alleged allotment order dated 9-3-1961 is a forged document which was never produced to Revenue Staff and no mutation was entered upon it. Had it been a valid document petitioner should have approached the concerned authorities when the land was put to auction in 1979. Even the instant proceedings were initiated under the suo motu powers in 1993 after more than 14 years of auction purchased by predecessor of respondents and petitioners were subsequently joined in it on their request, for impleadment as party. It was also contended that only the Chief Settlement Commissioner or his authorized Officer was competent to transfer/allot' property from the compensation pool as envisaged under section 10 of Displaced Persons (Comp. & Rehb.) Act, 1958 while allotment order dated 9-3-1961 has been shown to be approved by A.R.C. The learned counsel referred to section 2(2) of the Evacuee Property and Displaced Persons Act 1975 whereby only pending proceedings were allowed to be disposed of by an authorized officer of the Provincial Government, but since there were no proceedings pending regarding disputed land, respondent No.2 was "functus Officio" to usurp suo motu power and passed an order dated 13-6-1993. Respondents Nos.3 to 8 are the heirs of auction purchaser of the disputed land and in its possession since 1979 without any interference, their title at this belated stage cannot be called in question by petitioners as well as by respondent No.2. The learned counsel also referred to an application and an order overleaf of the then Assistant Commissioner/Deputy Settlement Commissioner dated 6-2-1984 to the effect that any claim in respect of suit land could not be entertained under existing Rehabilitation Repealed Act i.e. Act XIV of 1975. But this order was also set aside in a very slip-shod manner by respondent No.2 in his order dated 13-6-1993. In these circumstances, the learned counsel prayed for dismissal of writ petition.
7. The learned counsel for respondent No. l and 2 while supporting the stand taken by counsel for respondents Nos.3 to 8 also contended that petitioners could not be granted any relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as the functionaries under Displaced Persons (Compensation and Rehabilitation) Act, 1958 are not in existence. Even if the impugned order is found arbitrary and of no legal effect no legal direction could be made for re- adjudication of the matter.
8. After going through the record with the assistance of the learned counsel for the parties, the following are glaring features of the case.
(i) The land in dispute bearing Khasra No.437 as explained above was allotted to the predecessor of petitioner vide document Exh.C.W.I/1 and a Robcar Exh.C.W.2/6 was also issued for giving it an effect in the Revenue Record.
(ii) The aforesaid allotment was neither given any effect in the Revenue Record nor cancelled by a competent authority.
(iii) The rest of the lands allotted vide Exh.C.W.1/1 undisputedly still intact and only the disputed land bearing Khasra No.437 was reported to be available for disposal without notice to petitioners and resultantly disposed of through open auction. The predecessor of respondents Nos.3 to 8 was granted the same being highest bidder on 3-1-1979.
(iv) The auction purchase was not challenged by any one including the petitioners till a suo motu notice was issued by Respondent No.2 in the year 1993.
(v) Respondents 3 to 8 though appeared through General attorney in response to the said notice but without filing their reply or otherwise defending themselves absented from the proceedings resulting in a decision against them i.e. 13-6-1993.
9. Respondent No.1 has disposed of the revision petition of respondents Nos. 3 to 8 on the ground that EAC/DSC, Dera Ismail Khan had no jurisdiction to hear the case due to repeal of Displaced Persons (Land Settlement) Act, 1958 and the aforesaid glaring facts were not considered all.
Although in his own judgment he has mentioned that arguments were addressed on the following points:----
(a) Whether the piece of land in question put to auction was actually available in compensation pool, as Siraju had not deposited the settlement fee? And
(b) Whether the land was purchased for nominal price and the element of fraud was predominant in the entire transaction, therefore, the order of AC/DSC, Dera Ismail Khan dated I-1-1979 esd void ab initio?
10. The findings on the aforesaid points were essential for determination of question of jurisdiction.
Had it been held that disputed land was not available in compensation pool for allotments as alleged by petitioner, then the subsequent auction proceedings or its transfer to predecessor of respondents Nos.3 to 8 was not legal, without any justification and not protected under section 2(2) of Act-XIV of 1975. As observed in the case of "Sher Afzal Khan and others v. Qazi Abdullah and others" reported in 1984 SCM R 228.
11. The impugned judgment of respondent No. l is also self-contradictory in the sense that had respondent No.2 no jurisdiction to adjudicate the dispute, then how respondent No. l entertained a revision against the order of respondent No.2 when Act-XIV of 1975 does not provide for such powers.
12. As stated above, respondents 3 to 8 after surrendering before the jurisdiction of respondent No.2 placed on record a General Power of, attorney but without putting any defence absented themselves without any reasons and seems to be watching the proceedings from outside the Court, and as an order was passed against which they rushed to the Court of Respondent No. l with a revision. This conduct of respondents 3 to 8 may cause a presumption that they had nothing to offer in defence of their title. If they could not defend their title, the transfer order in their favour must be a collusive and fraudulent. By now it is well established that fraud vitiated the whole proceedings and as held in "Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan" reported in PLD 1975 SC 331 that an order obtained on fraud is a voidable order and the Court or a Tribunal of limited jurisdiction under inherent powers can suo moto set aside the same.
13. Respondent No. l has not decided the matter in aid of justice rather injustice has been done by setting aside a well reasoned judicious order through technicalities without considering the aim and purpose of section 2(2) of the Act XIV of 1975, which empowers respondent No.2 as Notified Officer to enquire into a fraudulent and collusive transaction/deed.
14. For the reasons stated above by setting aside the order of respondent No. l dated 1-2-1995 being illegal, arbitrary, fanciful and of no legal effect, remand this case back to him to decide the same afresh in the light of observations made above and if he comes to a conclusion that the matter requires further probe, the same should be entrusted to a Notified Officer under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. No order as to costs.