' In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan the petitioner has prayed for the following relief:---
(a) To declare that order/action of respondents Nos.3 and 4 impugned in the petition are without lawful authority and of no legal effect and do not confer any right or title or interest in respondents Nos.5 to 17 and mutation affected is void.
(b) To declare that the petitioner is lawful owner of lands that vests in him absolutely under law notwithstanding anything contained in any other law and that stands permanently settled to him.
(c) To prohibit and restrain respondents Nos.1 to 17 meddle with lands in petition by allotment, sale, gift, alienation or otherwise or deal with the property themselves, through anybody else, servants, subordinates, through any agency, by any process and in any manner, directly or indirectly whatsoever."
2. Briefly stated the petitioner was a claimant/displaced person of agricultural lands from non- agreed (exempted) area of Hyderabad Daccan (India). Regarding verification and determination of his claim in paras.2 and 3 of the petition he stated as follows:--- "2. That in due process of law, the petitioner filed his claim for agricultural lands abandoned in Hyderabad Daccan Estate, Bharat, that was duly verified under Registration of Claim (D.P.) Act, III of 1956, entitlement determined under the W.P. Rehabilitation and Settlement Scheme created with the Supplementary Scheme prepared under section 6 of the Pakistan Rehabilitation Act of 1966, that were duly adopted under the Displaced Persons (LS) Act, 1958, required Settlement Certificates (Q.P.R.V.) issued by the Central Record Office, Lahore, against which allotment in satisfaction of his entitlement on Q.P.R.V. Made.
3. That the O.P.R.V. Of the petitioner for 1207 P.I. Units, part of which were settled in Taluka Shandadpur District Sanghar' and only 741 P.I. Units (equivalent to 26-28 acres) settled in Deh Amli Taluka Khipro, District Sanghar and the necessary entries in the Register of Rights namely R.L. II made and Q.P.R.V. Was issued, Photostat copy of certified copy of Q.P.R.V. And R.L. II are produced and marked as Annexures 'A & B'.
3. According to him the present petition is confined only to the allotment settlement of 26-28 acres in Deh Ali, Taluka Khipro for which Khatooni was issued. Photo copy of Khatooni has come on record as Annexure 'C'. During Martial Law regime in 1958 under M.L.R. 84 of 1960 all claimants from non- agreed areas were required to fill in prescribed form, written statement relating to all the true facts of their original claims. The petitioner also fulfilled this requirement. On 2-8-1961 M.L.R. 84 was reconstituted as M.L.R. 89 of 1961, under which revised entitlement certificate was to be issued but the claimants from Hyderabad Daccan Estate, Kashmir and Junagarh etc. Were exempted and no revised entitlement was issued to them. Therefore the petitioner acquired all permanent rights as per allotment in his favour. It is his case that his lawful mutation was unlawfully changed in favour of respondent No,5 (vide photo copy Annexure 'D'). When the petitioner learnt about this fact he made enquiries and came to know certain facts which are enumerated in para. 10 of the petition and are reproduced here in below:---
(i) That the clearance certificate said to have been issued by the Deputy Commissioner respondent No,3 in the name of respondent No,5 and acted upon by respondent No,4 is fabricated and forged document that was never issued by respondent No,3 nor respondent No,5 had any claim with the respondent No,3 to give respondent No,5 any right to have these lands mutated in his name.
(ii) That however, the Deputy Commissioner respondent No,3 by his Rubkari No,EFB/32/1996 Sanghar, dated, 29-5-1996 has certified that Mukhtar (respondent No,5) never had any claim with the respondent No,3 having mutated R.L. H or issued clearance certificate to respondent No,5 do not arise. Original Rubkari is produced and marked as at Annexure 'E'.
(iii) That the bogus allotted respondent No,5 on the basis of the unlawful mutation in the record-of- rights authorized one Muhammad Yamin respondent No,6 to sell out the lands only on forged power-of-attorney executed by him in favour of respondent No,6.
(iv) That respondent on the strength of alleged power-of-attorney sold out the entire lands in petition (i,e, 26-28 acres) to several persons figuring as respondents Nos. 7 to 17 details of the sales are given in the attached schedule which may be read as part of this petition. Photo-copies of 7 registered deeds are produced and marked as Annexures F-I to 7."
4. The petitioner alleged that he has been seriously prejudiced by the illegal and unlawful order/action of the respondents Nos.3 and 4.
5. Notice of this petition was given to the respondents. Learned Advocate-General filed comments on behalf of respondents Nos.1 to 4. These comments bear signature of Deputy Commissioner, Sanghar wherein, inter alia, it was admitted that the land in dispute stood granted in the name of the petitioner but as per report of Mukhtiarkar Khipro the possession is with the respondents Nos.7 to 17. It was also denied that any clearance certificates was issued in the name of Mukhtar son of Phooey Khan. The actual contesting respondents are respondents Nos.7 to 17 but they have not filed any comments or counter-affidavit.
6. I have heard learned counsel for the parties at length and perused the record.
7. Mr. S. Qaseem learned counsel for petitioner contended that the petitioner was condemned unheard as no notice was served on him. Mr. Riaz Ahmed Shaikh learned counsel for respondents Nos.5 to 17 submitted that the petitioner has rushed to this Court without exhausting alternate remedies available to him as he could have filed appeal or revision before the...
8. On careful examination I find considerable force in the submissions of the learned counsel for the petitioner. His claim was not affected by M.L.R. 89 of 1961 as his entitlement became absolute in view of section 16 of Displaced Persons (Land Settlement) Act, 1958. Therefore he is owner in possession of the lands in question and he has been condemned unheard. Furthermore the mutation in his favour was cancelled in violation of rule 7-A of Displaced Persons Rules, 1959. In the judgment reported as Mst. Uimar Bibi, etc. v. O.S.D. Central Record Office, Lahore and others PLD 1986 Lah. 109, it was held as follows:-- "It must also be observed that the impugned action cannot also be justified on the plea that the revenue authorities would be making changes in the revenue records. This would amount to a dubious device not sanctioned by law. The revenue record entries are to faithfully follow the entries and orders of the settlement authorities in the prescribed R.L. II Registers as per Rehabilitation Settlement Scheme. The revenue authorities possess no powers or authority to intermeddle or interfere with allotments under the Land Settlement Act and in the absence of such an authority they inherently lack jurisdiction to go behind the allotments made by the Settlement Authorities or go against Settlement Records on any pretext or pretended plea in the facts of this case. In the present case, it stands admitted that the allotment in favor of the predecessor-in-interest of the petitioners was made by a competent Rehabilitation/Settlement Authority. It is not a case where no allotment had factually been made at all."
9. At page 111 (para. 4) of the above- cited case it was further held as follows:-- "This brings me to the legal position relatable to the complete want or absence of jurisdiction in the respondents to initiate the impugned proceedings to the detriment of the petitioners despite the repeal of the evacuee laws was back in the year 1974 I would here like to rely on my own decision in the case of Mst. Lqbal Siddiqui v. Assistant Settlement Commissioner (Urban) and others (PLD 1984 Lahore 291) in which the effect of repeal of evacuee laws by Act XIV of 1975 have been fully discussed and elaborated in the light of law laid down by the Supreme Court of Pakistan. In the circumstances of the present case, I have no hesitation in holding that neither the Officer on Special Duty, General Record Office had jurisdiction or power to entertain an application with respect to a claim for the first time nine years after the repeal of the evacuee laws in the year 1974 nor was he competent to move the district revenue authorities or the notified officers to assume jurisdiction or take action on the basis of his impugned Robkar.
' I am equally clear that respondents on the basis of incompetent Robkar were completely powerless to circumvent the mandate of law and to assume jurisdiction in the matter of allotment which had attained finality under the Displaced Persons (Land Settlement) Act either as revenue authorities or as notified officers or even by virtue of the scheme framed under Act XIV of 1975 for the purpose of disposal of available lands. The jurisdiction assumed and powers sought to be exercised were thus, clearly acts corum non judice and ab initio void."
10. In view of the cited case-law as observed earlier the actions of the respondent No,3 were illegal.
Accordingly this petition is allowed as prayed.