' Writ Petition No 1552-R of 1977 concerning the same property shall also be disposed of by this order, as the question of law involved in the two is common.
2. The petitioners are purchasers of the land in dispute. It had been allotted to one Pultoo son of Ohosi against his claim in the year 1966 at Khatas Nos. 134 and 135 in village Eecho Gill, Tehsil Lahore. On 16th June, 1969 some modifications are stated to have been made by the Border Area Committee at Khata No,
131. Pultoo is stated to have sold some land to Saeed Ahmed vide Mutation No, 107 in the year 1971. Saeed Ahmed In turn sold the same land to the petitioners for a sum of Re.
55,000 vide Mutation No 698 dated let of October, 1973.
3. The land involved in the other petition (Writ Petition No, 1552-R 1977) was sold by Pultoo to Ghulam D n who sold it to Mohsan-ur-Rashid. He then sold it to Mst. Masooda Berjees and she further transferred it by way of sale to the petitioners in that petition.
4. The respondent No, 2 made a Mukhbari application alleging that the claim of Pultoo son of Ghosi was bogus. He however, did not implead any of the vendees in the case though they were necessary puttee. The petitioner No 1 on coming to know of the proceedings appeared in Court on 1st of November, 1977 and requested the respondent No, 1 that he be impleaded as a party and afforded an opportunity of being heard. Respondent No, .1 allegedly adjourned the case for 4th November, 1577 and asked the petitioner No, 1 to bring on that date his evidence oral as well as documentary. On 4th of November, 1977, the respondent No, 2 went to the village and is stated to have informed the petitioners that that area bad been cancelled by respondent No, 1 on 1st of November, 1977. He is also alleged to have contacted the Patwari to implement the order. The petitioners checked up the information and finding the same as correct filed the present writ petition. Similar allegations have been raised in the other petition also.
5. It is contended by the learned counsel for the petitioners that the impugned order is without lawful authority and of no legal effect inasmuch as that they being purchasers for value of the land allotted to Pultoo should have been afforded an opportunity of being heard. It is stated that as their names did appear in the revenue record the Border Area Committee should have impleaded them as parties and heard them before passing tie impugned order. The petitioners have also placed on record the entitlement certificate of Pultoo to controvert the finding of fact of respondent No, 1 that Pultoo Was a fictitious person. Reference was made to the mutation (Annexure 'C' at page 19 of the other case) to say that Pultoo was not a fictitious person as he was identified by Mr. Rashid Anwar, Tebsildar, himself on 26th June, 1969.
6. The learned counsel for the petitioners further submitted that the Border Area Committee had no jurisdiction to reopen a case already finalized, in view of the fact that the Displaced Persons (Len 1 Settlement) Act had been repealed and no case about the property in question was pending at the relevant time to be disposed cf. He also opposed the remand of the case to respondent No, 1 for fresh hearing for the same reason. It was prayed that the impugned order be declared to be without lawful authority and of no legal effect and the position as it existed earlier be restored.
7. It is to be noted that in view of the judgment of the Supreme Court in the case of Muhammad Khan v. Border Area Committee (1) Martial Law Regulation No, 9 (Zore 'B') is an independent central enactment. Therefore, this enactment must have its own effect independent of the Displaced Persons (Land Settlement) Act, It provides its own procedure and confers a power of A scrutiny on the Border Area Committee under pars 10. It has not been repealed and is still in force. In that view of the matter it cannot be said that the Border Area Committee had no authority after the repeal of the Displaced Person (Land Settlement) Act to scrutinise the allotment in question and pass an order thereon.
8. The objection that all evacuee properties having been acquired under section 4 of the Displaced Persons (Land Settlement) Act, the power to scrutinise vested only in the Settlement Authority, is also of no consequence. The allotments made under Martial Law Regulation No, 9 have neither been adopted under section 14 of the Displaced Persons (Land Settlement) Act nor B had they been brought under the control of Settlement Authorities as such. Those allotments, therefore, remained a specie apart and are still governed by Martial Law Regulation No,
9. The objection by the petitioners has therefore, no force.
9. It is admitted that the petitioners are vendees. Their names had also been incorporated in the revenue record. Respondent No, 1, therefore, (1) PLD 1965 SC 623 should have taken note of that fact before proceeding in the matter. It may be mentioned here that we hare noticed this omission on the part of the Settlement and Border Authorities in a large number of cases. It appears that they do not consult the revenue record before passing their orders. The result is that the valuable time of those authorities as well as of this Court is being wasted for, such cases have to be sent back for fresh inquiry.
10. It is also to be noted prima facie that Pultoo is not a fictitious person. He reportedly appeared before the Tehsildar and was identified by him. The petitioners have produced his entitlement certificate also. The same could have also been traced out by the Border Area Committee as well if it had applied its mind or made some efforts in this regard.
11. The outcome of the above discussion is that the impugned order, which had been passed ex parte, without application of mind, without consulting the relevant record and without affording an opportunity of being heard to the petitioners, whose names as venders tad been recorded in the Jamabandis, is declared to be without lawful authority and of no legal effect. The parties, however, are left to bear their own costs.