M. JAVED BUTTAR, J. This judgment shall dispose of Writ Petition. No. 9/R of 1986 and Writ Petition No. 39/R of 1986, as common questions of law and facts are involved in both these petitions.
2. The relevant facts are that Subhan Shah Khan, respondent No. 3 was a claimant displaced person from Haider Abad DUkan. He had a verified claim for agricultural land for 5100 P.I.Us. Central Record Office Lahore issued QPR V Nos. 347/43270/2748 on 31.8.1959 for 5100 PlUs. This QPR was cancelled on 6.6.1963 and a renewed Entitlement Certificate QPR V Nos. 15145/72, Book No. 2748 Form No. 43720 equivalent to 5100 PlUs was issued on 3.7.1968. On the basis of this new QF'R, despondent No. 3 secured following allotments in the District Attock:-
(i) Land measuring 151 kanal 19 marlas in lieu of 396 PlUs settled on R.L. II No. 4, confirmed on 20.5.1971, in village Saka Abad, Tehsil and district Attock. This land is subject matter of Writ Petition No. 39/R/86 as the petitioner therein namely Muhammad Nisar is the vendee of this land from respondent No 3 Subhan Shah Khan.
(ii) Land measuring 548 'kanal 4 marlas in lieu of 1676 PIUS, confirmed. On 15.2.1972 in village Islamgarh, Tehsil and District Attock. This land is subject-matter of Writ Petition No 9/R/86.
3. Respondent No. 3 thus secured the allotment of the above lands in District Attock in lieu of 2072 Ms. He sold 541 kanals 16 marlas of his holding in village Islamgarh, Tehsil and District Attock, to various persons as under:- Name of the Purchaser Mutation and date Land
(i) Jahan Dad son of Fordil 2306 dated 12.12.72 13-2 marla
(ii) Muhammad Mukhtar 2322 dated 19.3.73 2-5 marla
(iii) Saleem Khan 2300 dated 19.7.73 112-3 marla
(iv) Ghulam Khan, Aman Khan and Ismail Khan2387 dated 31.12.73 6-6 marla
(v) Ismail Khan and Muhammad Aslam Khan2470 dated 7.7.76 408-0 marla
4. Petitioner No. 1 to 6 pre-empted the sale of land measuring 408 kanal in favour of Ismail Khan, and Muhammad Aslam Khan, and obtained a decree in their favour on 4.2.1979, which was executed and mutation No. 2696 was sanctioned, in their favour on 6.1.1980 and the decree was also incorporated in the revenue record. Similarly, petitioners No. 15 to 19 pre-empted the sale of land measuring 112 kanals 3 marlas in favour of Saleem Khan and the pre-emption decree was passed in, their favour on 9.12.1975. The decree was executed and mutation No. 2484 was attested in favour of petitioners No. 15 to 19 on 19.4.1976. The petitioners No. 1 to 6 and 15 to 19, the preemptores, were put in possession of the lands so pre-empted by them in the execution of the decrees passed in their favour.
5. Petitioners No. 15 to 19 sold part of the land pre-empted by them to various persons as under:--
(i) Muhammad Amin, Abdul Majid and Miskeen6 kanals 7 marlas vide Registered sale deed No. 2327 dated, 5.7.1976.
(ii) Zumarrad son of Nawab 3 kanals
(iii) Sher Bahadur 3 kanals and 17 mortgaged their 4/9 share in the land measuring 112 kanals 3 marlas, in favour of the Agricultural Development Bank of Pakistan for a sum of Rs. 16,000/-, vide mutation No. 191 and 192, attested on 19.5.1985 and obtained the loans.
6. Ghulam Khan and Ismail Khan sons of Ahmed Khan sold 3 kanals and' 3 marlas of land to petitioners Nos. 7 to 12 vide mutation No. 46 dated 26.9.1981, out of land measuring 6 kanals 6 marlas purchased by them alongwith Aman Khan from respondent No. 3, vide mutation No. 2387 dated 31.12.1973.
7. One Manzoor-u1-Haq moved a petition, as an informer under Section 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, challenged the allotments in favour of respondent No. 3, Subhan Shah Khan in the Districts Attock and Rawalpindi. Alleging that some fake persons acting for Subhan Shah Khan had tampered with record and styling themselves as Special or General Attorneys and after having fabricated the powers of attorneys in various Districts, had got allotted these lands in the name of respondent No. 3 whereas these allotments were secured through fraud and misrepresentation and liable to the cancelled. The Settlement commissioner (lands)
Rawalpindi Division, vide his order. Dated 8.7.1976 concluded that QPR V No. 15145/72 was verified for 5100 Rural PIUS in favour of respondents No. 3 Subhan Shah Khan and was issued for District Jacobabad (Sindh) and the addition of the word, "Camblepur" was a forgery. He also placed reliance on a report received from Central Record office Lahore. It is also mentioned in the order that Subhan Shah Khan was summoned several times and finally a proclamation was issued in the newspaper for his service as well as for the service of the vendees of the lands from Subhan Shah Khan, who were made parties in the application under Section 10 and 11 of the. Displaced Persons (Land Settlement) Act, 1958, moved by the informer Manzoor-ul-Haq but except Muhammad Nisar (petitioner in writ petition No. 39/R of 1986 and Noor Wali, no body turned up and ex-parte proceedings were taken against all the them. It is further mentioned in the order that "however, the written statement of Subhan Shah Khan alongwith photo stat copy of his affidavit, specimen signatures and photograph duly attested by Oath Commissioner Karachi on 12.8.1975 has been received end the written application of Subhan Shah Khan duly signed by him narrates the fact that he, got allotted 1133 PIUs in village Saggian, Tehsil and District Rawalpindi, out of his total PIUs 5100 in accordance with his Entitlement Certificate which had been acquired by C.D.A. And about which he had to receive the payments:". It is further mentioned in the order that Subhan Shah Khan further stated in his application that he did not get allotted any other land through any duplicate certificate or through any Mutation or in any other District and had nothing to do with any such allotment. The Settlement Commissioner (Lands, Rawalpindi Division, thus, concluded that respondent No. 3 Subhan Shah Khan was issued. QPR V Entitlement Certificate only for the District of Jacobabad (Sindh and that he was not entitled to get allotment of any land in Rawalpindi Division and accordingly ordered the cancellation of all these allotments as the same were held to be the result of misrepresentation and fraud. The ease for the allotment to the informer Manzoor-ul-Haq was directed to be considered in accordance with law and latest instructions and the Federal Investigation Agency was requested to register a case and deal with the culprits in accordance with law. It may also be mentioned here that the order dated 8.7.1976 passed by the Settlement Commissioner (Lands) Rawalpindi Division, referred above, does not contain the date on which the informer Manzoorul-Haq moved the application under Section 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958.
8. The Settlement Commissioner, Rawalpindi Division, Rawalpindi, vide his order dated 15.12.1984 while holding inquiries in regard to many other allotments secured by respondent No. 3 in the districts of Rawalpindi and Attock, held that vide order dated 8.7.1976, his predecessor had cancelled allotments made in favour of Subhan Shah Khan in village Miyal, Tehsil and District Attock, and Deputy Commissioner/Addl: Settlement Commissioner of Attock and Rawalpindi were directed to ensure that all the allotments detailed in the order were cancelled. In the order dated 15.12.1984;the details of other allotments secured by respondent. No. 3 were also given and in some cases the Settlement Commissioner, Rawalpindi Division, did not proceed further due to pendency of Writ petition No. 1120/R of 1976, 1531/R/76 and 323/R/77. It may be mention here that Writ Petition No. 1120/R/76 was dismissed for non-prosecution on 1 .13.10.1999 and the other two above mentioned Writ Petitions were also dismissed as not pressed on 13.10.1999.
9. The Additional Deputy Commissioner (Consolidations) Attack vide his memo. No. 1177-ADC (C) dated 29.7.1985 asked the Assistant Commissioner/Collector, Attock, respondent No. 2 for the implementation of the above mentioned orders dated 8.7.1976 and 15.12.1984 passed by the Settlement Commissioner (Lands) Rawalpindi Division, Rawalpindi.
10. The petitioners through these petitions have challenged the legality of the orders dated 8.7.1976 and 15,12.1984 of Addl: Settlement Commissioner (R) Rawalpindi, Settlement Commissioner Rawalpindi Division, Rawalpindi and also the order dated 29.7.1985 of A.D.C. (C) Attock whereby a direction was issued to the Assistant Commissioner/Collector Attock for implementing the above orders. The case of the petitioners in Writ Petition No. 9/R/86 is that the petitioners are successful preemptores of land situated a village Islamgarh, Tehsil and District Attock and they have become owners on the basis of the preemption decrees in their favour, the said decrees were duly executed, transfer mutations were accordingly attested, their names were incorporated in the revenue record and as such, valuable rights had been created in their favour but all the above proceedings were initiated and completed by the Settlement Commissioner, Rawalpindi, culminating in the above orders dated 8.7.1976 and 15.12.1984, behind their back, without impleading them as party and without associating them in the inquiries and in the investigations. It is the case of all these petitioners that they have nothing to do with the allotment of respondent No. 3 or the vendees from him and they are not a party to the fraud, if any, and had the petitioners been associated in the inquiries which were initiated by the Settlement Commissioner (Lands) Rawalpindi, on the basis of so-called application moved by Manzoor-ul-Haq under Sections10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, the petitioners would have been able to agitate their rights before the Settlement Commissioner, Rawalpindi, and could have established their better title as against the informer. In this regard, it has been alleged that the petitioners (W.P. No. 9/R/86) learned for the first time in the first week of December 1985 that respondent No. 1/ Settlement Commissioner (Lands)
Rawalpindi Division, Rawalpindi, had passed an order dated 15.12.1984 under Section 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, and came to know of the cancellation of the allotments in favour of Subhan Shah Khan, the petitioners applied for a copy of the order on 7.12.1985 which was furnished to them on 11.12.1985 and at the time they came to know of the previous orders dated 8.7.1976 and the memo dated 29.7.1985 of the A.D.C. (C) Attock, hence this constitutional petition, which was instituted on 19.2.1986.
11. The case of petitioner Muhammad Nisar in Writ Petition No. 39/R/86 is that he is a vendee from respondent No. 3, Subhan Shah Khan of land measuring 151, canals 19 marlas situated in village Saka Abed, Tehsil and District Attock and although he was initially associated in the proceedings by the Settlement Commissioner, Rawalpindi Division, Rawalpindi, but later-on, he remained unrepresented and was condemned unheard.
12. I have heard the learned counsel for the petitioners, the learned counsel for respondent No. 4 Zameer Ahmed (in writ petition No. 9/R/86). The other respondents have not turned up. They are proceeded against ex-parte.
13. The learned counsel for the petitioners have mainly argued that the petitioners have been condemned unheard and therefore, the impugned order being violative of principle of natural justice of audi alteram partem are ab-initio, void. It has also been argued that the application under Section 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, was, not pending at the time when the said Act alongwith all other settlement laws was repealed through Evacuee Property and Displaced Persons Laws (Repeal), Act XIV of 1975, w.e.f. 1.7.1974, which saved the pending proceedings only and therefore, the impugned orders are without jurisdiction. It had also been argued that under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal)
Act XIV of 1975, the petitioners being occupants, during the relevant crops,. Are entitled to purchase the same at the relevant prescribed rates. In the end it is submitted that respondent No 1 illegally held that the Entitlement Certificate issued in favour of Subhan Shah Khan, respondent No. 3, the allottee, was not introduced/transferred to District Attock and the findings in this regard are based on surmises and no evidence. It has been very vehemently argued that the Settlement Commissioner vide his order dated 8.7.1976 recorded this finding merely on the basis of photo state copy of the Entitlement Certificate, without summing the original' record.
14. The learned counsel for respondent No. 4 has not opposed the petitions as according to him, the respondent No. 4 is not a vendee from Suban Shah Khan, respondent No. 3 and the allotment in his favour has been saved through the impugned 'orders and even if these petitions are accepted to the extent of the present petitioners, the same would not effect him adversely.
15. The petitioners of W.P. No. 9/R/86 are the successful pre-emptores or successors-in-interest of pre-emptores, who successfully got the allottee's land situated in village Islamgarh, tehsil, and District Attock, transferred in their names on the basis of pre-emption decrees whereby the sale effected by the allottee/respondent No. 3 in favour of vendees were pre-empted by them, the pre- emption decrees were executed, transfer mutations on the basis of .Pre-emption decrees were attested in their favour by the revenue authorities and the said transfers were incorporated in the revenue record and this shows that valuable rights had been created in their favour but in all the proceedings initiated and completed by the Settlement Commissioner, Rawalpindi Division, culminating in the above orders dated 8.7.1976 and 15.12.1984, they were never associated in the inquiries and investigations, they were never impleaded as a party and the said proceedings were conducted behind their back without -offending them an opportunity of being heard and therefore, to their extent the impugned orders being violative of the principle of natural justice of audi alteram partern suffer from a basic illegality and are ab initio void because in my opinion these petitioners, under th circumstances, were a necessary party and they have a right to De heard. On this ground along the impugned order to the extent of these petitioners are liable to be set aside. Further more, the impugned orders do, not show whether the application under Section 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, moved by the informer Manzoor-ul- Haq was pending on 1.7.1974 and if the same was not pending on 1.7.1974 and was filed later-on then what is its effect. The impugned order also do not show the pendency of any un-satisfied claim of the informer because after the repeal of the Settlement Laws, w.e.f. 1.7.1974, the informer can get benefit only of allotment of land to the extent of his un-satisfied pending claim, which has been resumed on the basis of the information given by him because at the time when the Displaced Persons (Lands Settlement) Act, 1958, was repealed, this was the only benefit which could be extended to the informer and informer cannot ask for any more benefits. If in inquiry it is revealed that informer had no un-satisfied verified claim then in the case the Settlement Authorities cancelling the allotment under Section 10 and 11 of the displaced Persons (Lands Settlement) Act; 1958, are bound to conduct an inquiry in regard to the rights of the occupants, as envisaged in Fist Proviso to Section 3(1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975; under which the occupants of such resumed lands who occupied the same contiguously for four harvest immediately preceding ' Khareef' 1973, are entitled to the first right of purchase as against the rest of the world, at prescribed rates, through an offer for sale to be made to them unless an order of ejectment has been passed against them in respect of such lands by a competent authority and the Second Proviso of the above said section of the same Act provides that such an offer shall be made to such an occupant only to the extent of such land which together with land already held by him does not exceed a subsisting holding within the meaning of Land Reforms Regulations, 1972. No such inquiry and investigations were connected by the Settlement Commissioner while passing the impugned orders regarding the rights of the petitioners because it has been argued by the learned counsel for the petitioners in both these petitions that the petitioners of these petitions also have the right to purchase the land in dispute under the law quoted above. It may be mentioned here that the petitioners of Writ Petition No. 39/R/86 is also entitled to succeed as his rights flowing from the law quoted above have not been determined.
16. The contention of the learned counsel for the petitioners that the impugned orders were passed merely on the basis of the photo state copy of the Entitlement Certificate of the allottee has force and the Settlement Commissioner while cancelling the allotment ought to have checked up the record thoroughly because as a consequence of the impugned orders, large number of vendees have been effected and are likely to loose their holdings. It may also be mentioned here that if through the checking up of the original record, it transpires that the Entitlement Certificate of the allottee was valid and lawfully endorsed for the satisfaction of the un-satisfied claim of the allottee in this part of the Country, then the Settlement Commissioner/Notified Officer should not merely reply upon the stand taken by the allottee as his stand could be based on ma/a fide. In such a situation the Settlement Commissioner/Notified Officer will have to further check up the record of the allotments secured by the allottee throughout the country including the Province of Sindh and in such a situation the principle of first to come last to go would be made applicable because it is an admitted position that Entitlement Certificate of respondent No. 3 was verified for 5100 Rural PIUs and therefore, the allotment of land throughout the country equivalent to 5100 PIUs would remain intact and cannot be said to be the result of fraud and misrepresentation and while applying the principle of first to come and last to go, the Settlement Commissioner/Notified Officer shall determine the dates of allotments in favour of respondent No. 3 and in such an eventuality the allotment upto the period till 5100 PIUs were exhausted would remain intact and the allotments secured beyond that period would be liable to be cancelled as excess allotment.
17. Before parting I may also observed that after repeal of the Settlement Laws it has become a common practice that the so-called informers associate other persons also with them who were originally not the informers and they are merely associated because they have un-satisfied pending claims whereas the informers either do not have any un-satisfied pending claim or their un-satisfied pending claim is not to the extent of the lands likely to be resumed because of the information supplied by them. This practice is to be totally dis-couraged as i:he same is illegal. It is to be kept in mind that any other person associated by the informer after the repeal ,of the Settlement Laws .Cannot get any benefit because of such an association as his claim cannot termed as a pending case or a pending proceeding on 30.6.1974, within the meaning of Section 212) of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975. It has also been noticed that many such informers later-on obtain special power-of-attorney or general power-of- attorney from the claimants whose claims have not been satisfied as yet and pose to be acting on their behalf for securing allotments. This is totally an illegal practice and to determine as to whether he is an informer or not, the Notified Officer is under a duty to peruse and Scrutinize the original record of application under Section 10 and 11 of the Displaced Persons (Lands) Settlement Act, 1958, and he has to see whether .The application was moved by the informer in his own capacity or in his capacity as general attorney or special attorney of other persons and the deeds of general power-of-attorney and special power-of-attorney should also be checked. All these exercises should be undertaken by the Notified Officer so hat the lawful rights created by the statutes in favour of the occupants of lands in question as envisaged in first proviso of Section 3(i) of Act XIV of 1975 are secured.
18. In view of the above discussion, both these constitutional petitions are accepted, the impugned order to the extent of the lands being held by the petitioners are set aside and the matter is remanded back to the Notified Officer Attock who shall decide the matter afresh, keeping in view the above observations after allowing the parties an opportunity of being heard and after allowing them to produce evidence and he shall also check up the original record of transfer of the Entitlement Certificate of respondent No. 3. There is however, no order as to costs.