ABD-UL GHANI Versus MEMBER, BOARD OF REVENUE, SIND
1. The petitioner has challenged the order passed by the respondents Nos.2 and 3 mainly on the ground that it was passed without hearing him and affording any opportunity to present his case. Briefly the facts are that agricultural land bearing Survey Nos.94 (6‑24) and 95 (0‑11) measuring 6.35 acres situated in Deh Bazar, Tapo Konkar, Taluka Karachi, District Karachi East, was allotted to the respondents Nos.4 to 8 as legal heirs of the claimant Syed Alay Hassan displaced person in satisfaction of his claim. The respondent No.9 acting as attorney of the respondents Nos.4 to 8 on the basis of registered power of attorney obtained from the Deputy Collector of Karachi certificate for permission to sell the property. The petitioner through a registered sale‑deed executed by the respondent No.9 on 12‑8‑1975 purchased the said land for a consideration of Rs.14,000. The name of the petitioner was duly mutated in the record of rights on 3‑9‑1975. The respondents Nos.4 to 8 in addition to the land mentioned above obtained certain land in district Khairpur and the total P.I. Units including the land at Karachi come to 1238. Thus, they obtained land equivalent to 1238 P.I. Units in the Province of Sind. They also obtained allotment of land to the extent of 851 P.I. Units against their total entitlement of 871 P.I. Units in Province of Punjab. This land was sold by them to the respondents Nos. 9 to 16. The Settlement Commissioner, Land/Chief Settlement Commissioner, Punjab initiated proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act read with section 2 subsection (2) of the Evacuee Properties Repeal Act, 1975 on the basis of the information received by him that the respondents Nos.4 to 8 have obtained allotment by fraud and misrepresentation in the Province of Sind and Province of Punjab. The Settlement Commissioner passed an order dated 23‑11‑1978 whereby he cancelled the allotment of land in favour of respondents Nos.4 to 8 who filed Constitution Petition in the Lahore High Court, but the same was dismissed on 27‑6‑1979. Against this order Intra‑Court Appeal has been filed which is stated to be pending.
2. One Mansoor Ahmed, the respondent No.10 filed an application before the Member, Board of Revenue Sind, the respondent No.l, complaining that the allotment of the respondents Nos.l to 8 was obtained fraudulently. The respondent No.l marked this application for inquiry to the respondent No.2 who by the impugned order dated 19‑1‑1980 observed as follows:‑
3. "3. In view of the above facts, there is no doubt that the aforementioned allotment order was not issued on the basis of a legal and. valid entitlement certificate, legally received in Karachi, but on the basis of a forged paper. The Khatoni dated .18‑1‑1972 as well as the Mutation Order No. A.R.M. 155/73 dated 22‑9‑1973 are, therefore, nothing but nullity in the eyes of law.
4. The Deputy Commissioner (East) Karachi is requested to resume the above land by canceling allotment order and include it in the list of available Evacuee Lands for disposal in accordance with the scheme prepared under section 3 (1) (b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act 1975."
4. Consequently by the impugned order dated 16‑2‑1980 Deputy Commissioner (East) Karachi cancelled the allotment order in favour of claimant late Syed Aley Hassan in respect of the Karachi land and included it in the list of available evacuee lands for disposal according. to law.
5. Mr. Imam Ali Kazi the learned counsel for the petitioner has contended that the petitioner has purchased the land and has vested interest in it and as the impugned order has been passed without affording him any opportunity for being heard the orders are without jurisdiction and of no legal effect. From .the record it is clear that the petitioner has purchased the land under a registered sale‑deed and his name was duly mutated in the record of rights and the revenue record. He had thus acquired a valuable right and vested interest in the land and if any order was to be passed which 'was to affect his interest it was necessary that notice should have been given to him before passing such an order. It is an admitted position that 'the petitioner was not made a party before the respondents Nos.l, 2 and 3, nor any notice was issued at any stage to him by these respondents.
6. Mr. Ishtiaq Ali the learned counsel for the respondents Nos.11 to 16 has contended that it was not necessary to issue any notice to the petitioner and due to lack of notice the order does not suffer from any infirmity. In this regard the learned counsel has referred to Yar Mohammad and 3 others v. Settlement Commissioner (L) and 5 others 1985 S C M R 1346. This authority is distinguishable on facts which were completely different and the observations relied upon by the respondents cannot be applied to the facts of the present case. The learned counsel also referred to 1985 C L C 2569 but in any case it is not relevant and the observations relied upon do not support the respondents' contention. The learned counsel also referred to Syed Ghufam Ali v. Commissioner and Incharge Cell Settlement, Sanghar and 2 others, 1984 C L C 1729 where it was observed that "the petitioner and one Gianda who alleged to have obtained a bogus certificate on the basis of which the mutation was affected were the persons affected by the cancellation of the mutations and as such any order which is passed in respect of cancellation of the disputed survey numbers without notice to either of them shall be liable to be struck down on this ground." The learned counsel has contended that in the present case the notice was issued to the respondents Nos.4 to 8 and even if notice was not issued to the purchaser i.e. the petitioner, the impugned order will not be vitiated. In this judgment, quoted above it has not been held that if notice is issued to either of the persons affected by the cancellation, such order will be proper. In fact in the present case the respondents Nos.4 to 8 having sold the land to the petitioner had materially ceased to have been interested in it. The main person who is to be affected by such order of cancellation would the petitioner, a purchaser for valuable consideration, and therefore, he is the main party entitled to claim notice of such proceeding. It cannot be said that from the record it was not possible to find out the name of the recorded owner. A mere perusal of the record of rights, which ought to have been examined by the respondents Nos. 1, 2 and 3, would have shown that the land had already been sold and mutated in the name of the petitioner who was not a party before them. In these circumstances the orders passed by the respondents Nos.l, 2 and 3 are declared to have been passed without lawful authority and of no legal effect. However, the case is remanded to the respondent No.1 for holding proper inquiry after giving notice to all the parties including the petitioner. The parties to bear their own costs.
7. A.A./A‑284/K Case remanded.