ABDUL QADIR and others vs THE SETTLEMENT COMMISSIONER and others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---These appeals through leave of the Court are directed against the judgments of the High Court in separate cases arising out of land settlement matters. Leave to appeal was jointly granted in Civil Appeals Nos. 5 & 6 of 1987 because they arose out of the same case.

2. ' The facts and points noted therein are as follows:-- "The relevant facts are that one Nathu son of Ali Sher, who migrated to West Punjab after the disturbances of 1947 and settled down in Gujranwala District, got a claim verified for some agricultural land abandoned by him in District Ambala (East Punjab). However, being a non- allottee in District Gujranwala he got his claim transferred to District Hyderabad in the year 1957, where it was settled. It is alleged that notwithstanding the fact that he had obtained settlement of his claim in Hyderabad in its entirety his heirs managed to obtain another allotment, after his death, in village Hardo Rattali and Jaiokee, Tehsil and District Gujranawla. The land so obtained was subsequently sold to 22 persons. One Muhammad Amjad and the heirs of Nazir Ahmed filed a Mukhbari application under sections 10 & 11 of the Displaced Persons (Land Settlement) Act complaining about this fraudulent allotment. A delegate of the Chief Settlement Commissioner held an inquiry into the matter and being satisfied that the facts in the Mukhbari application were correct proceeded to resume the allotment made in favour of Nathu. This order was challenged by 20 out of the 22 vendees in a writ petition before the High Court. It appears that 10 of them had no notice at all of the proceedings conducted by the delegate of the Chief Settlement Commissioner under sections 10 & 11 and only the remaining 10 had notice of it. However, the learned Single Judge hearing the writ petition dismissed the same holding that the fraud was so apparent that even if all of them did have notice of the proceedings they could not say anything to disprove it and affording a hearing to them would only be an exercise in futility. This order of the learned Single Judge was challenged by the vendees by an Intra Court Appeal and a learned Division Bench of the High Court accepted the appeal of the ten vendees who did not have any notice of the proceedings but dismissed the appeal of the other ten vedees who did have notice of the said proceedings. The vendees whose appeal has been dismissed have challenged the said order in this Court by a petition for leave (C.P. No, 433 of 1978), while the informants too have challenged (through C.P.No,553 of 1978) the order of the Division Bench allowing the appeal of the ten vendees who were not served with any notice of the proceedings.

3. ' We observe that the appeal of the ten vendees who had notice of the proceedings has been dismissed inter-alia on the ground that the allottment of the land in favour of Nathu was secured after his death. However, the appeal of the ten vendees, who did not have notice of the proceedings was allowed, inter-alia, on the ground that if they had been heard they could yet show that the allotments made to Nathu "were not in fact fraudulent". But the question is that if the vendees, who were not heard, could displace the finding of the delegate of the Chief Settlement Commissioner on this point and could show that the allotment made to Nathu was not fraudulent would not the said finding also enure to the benefit of the remaining vendees who did have notice.

4. ' We, therefore, feel that as the possibility exists of inconsistent findings being recorded with regard to the same issues, the matter has to be considered further."

5. ' The same point of law on which leave to appeal was granted in CAs-5 & 6 of 1987 was noted while granting leave to appeal in CA-101/89. The order granting leave to appeal reads as follows: ' The petitioners seek leave against the judgment of the Lahore High Court, dated 4-74983 passed in Intra Court Appeal No, 152/83, arising out of a dispute over some land measuring 232 Kanals and 11 Marlas, in village Ichhogil Tehsil and District Lahore. The said land was firstly allotted to respondents Nos. 4 & 5 by the Settlement Department on 28-12-1972, which they subsequently sold to the petitioners vide Mutation No, 667 attested on 3-5-1973. The original allotment of the land was cancelled on a Mukhbari application dated 27-11-1976 by Risaldar Malik Muhammad Ghaus respondent No,2 and the land in dispute was allotted to Lt.-Col. Malik Muhammad Hayat respondent No,

3. On the basis of the subsequent allotment the possession of the land was delivered to respondent No,3 by the Border Area Committee, on 4-1-1978. The petitioners challenged this order through a Writ Petition No, 19/78 before the Lahore High Court, which was dismissed vide order dated 22-5-1978. Their Intra-Court Appeal before a Division Bench of the Lahore High Court, Lahore was also dismissed vide impugned judgment. Hence this leave.

6. ' The learned counsel for the petitioners contended that the petitioners were not afforded an opportunity to cross-examine the Patwari while his statement was recorded on 4-1-1978. The petitioners being owners in possession at the relevant time through purchase in good-faith, on payment of considerable amount, "their rights must have been taken into consideration but alteration of the date from 5-1-1978 to 4-1-1978 in their absence would amount to miscarriage of justice. This fact was not considered by the learned High Court while passing the impugned judgment. A persual of the records shows that the petitioners were not impleaded as party in the cancellation proceedings as such no order of cancellation can be passed and the order so passed can be of no legal effect. Thus the contention of the learned counsel requires consideration of this Court. Furthermore, the learned counsel told at the Bar that a Civil Appeal No,5 of 1987 bearing identical facts is already pending before this Court.

7. ' In the circumstances we, therefore, grant leave in this petition. Appeal should be heard with CA.

8. No, 5/87 on the present record".

9. ' We have heard the learned counsel for all the contesting parties in these appeals. In so far as the facts of the two sets of cases are concerned an interesting situation has developed. While the learned counsel appearing for the appellants in the first set of appeals (in CA-6/87) has supported the point of view that if a party has nothing to urge and it would be impossible for him to succeed even if a case is remanded for re-hearing so as to afford an opportunity of hearing which may have been denied in earlier round of litigation, the case should not be remanded. And that after affording opportunity of hearing to the party concerned by the forum where the point was raised the case should be detided saving the parties from agony of prolonged litigation, expense and anxiety. The same learned counsel appearing in the third appeal; namely, CA.-101/89 had to oppose the proposition noted and explained above.

10. ' We heard the said learned counsel in the two connected appeals CA-5 and 6 of 1987. We heard the counsel for other two contesting parties; of whom had been granted leave to appeal for examination; as to whether, the case should be re-opened so as to afford opportunity of hearing to one of the parties. Specific questions were asked to them with regard to facts and circumstances of the cases directed towards a preliminary inquiry: as to whether any difference would be made if the cases are remanded for fresh trial so as to afford opportunity of hearing to the parties. It was discovered that even on concerned parties' own showing the verdict will again be the same going against the said parties. Similar was the result on preliminary examination of the facts and circumstances in Civil Appeal No, 101 of 1989. And after the preliminary hearing on merits we came to the conclusion that even if the cases are re-heard the result would be the same. We also examined the merits of the case for which purpose leave to appeal was granted in Civil Appeal No, 5 of 1987 and came to the conclusion that the approach of the settlement authorities was unexceptionable.

11. ' It may be remarked that right of opportunity of hearing is not merely a technical right. It has often been observed by the superior Courts that it is linked with tangible, factual and legal aspects of the case and it would depend upon the facts and circumstances thereof as to whether the observance of the technical rule of audi alteram partem by a lower forum and ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice. If the forum before which such a question is raised is able to examine the merits as we have done in this case and/or as was done by the High Court in one case, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings; which as an end product also causes injustice and misery in so far as the delay, expense and anxiety is concerned. Accordingly with the foregoing remarks while two appeals fail and are dismissed (CAs Nos. 5 of 1987 & 101 of 1989); the third one (CA-6 of 1987) is allowed.

12. ' Before closing this order it needs to be observed that if the parties in these cases who have been allotted land for any reason finally lose the allotment as well as the ownership/possession of the land, the same may be offered to the vendees/parties in these cases, if they then establish not only their bona fides but also that they had paid the adequate consideration.