Find a Lawyer

Writ Petition No. 410 of 1967, decided on 1st July 1976.

--- S 24-Cancellation of transfer of suctioned land for failure to pay instalment-Notice to show-cause issued under signature of S. D. O. and not Collector-Held, without lawful authority and void ab intio-Proceedings or superstructure based on such notice in form of orders of higher authorities also void.

Yousuf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C (Pak.) 104 rel.

--Art. 199 read with Colonization of Government Lands (Punjab) Act (V of 1912), S. 24-Collector while resuming lot of area not passing conscientious order of his own and simply affixing his initials or signature on office noting -Such order. held. without lawful autho rity-Case remanded for fresh decision in accordance with law.

Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others P L D 1964 S C 829 fol.

Raja Said Akbar Khan for Petitioner.

S. M. Abdul Wahab for A. G. for Respondents.

Date of hearing : 1st July 1976.

The dispute in this case is about an area of 14 acres situated in Chak No. 128/10-R, Tchsil Khanewal, District Multan. This area was auctioned in favour of the petitioners as one lot (being lot No. 43) in June 1962, for a sum of Rs. 27,30. An advance payment of Rs. 9,100 was made at or before the time of auction and the balance was to be paid in three equal instalments. The petitioners paid the first instalment of Rs. 6,066.67 on 25-6-1963 ; the second instalment of Rs. 6, 066.33 on 30-1-1965 and the third and the last instalment, according to the learned counsel for the respon dents after allowing further time was due on 28-2-1965. Necessary notice Annex. "H" was issued to the petitioners on 31-5-1965 to show-cause as to why the lot in dispute should not be cancelled for their failure to pay the last instalment, but as the same was not heeded to the learned Collector cancelled the transfer of the land in dispute from the name of the petitioners on 10-7-1965 (Annex. "A").

2. At this stage it may be mentioned that, as a matter of fact, the petitioners had pure haled three lots bearing Nos. 35, 36 and 43. All these three lots were cancelled and as such, the petitioners filed three appeals which were heard on one and the same day by the same officer. Appeals with regard to lots 35 and 36 were accepted and the defect was allowed to be rectified after imposing certain penalties, but the appeal with regard to the lot presently in dispute, namely, lot No. 43, was rejected on 1-6-1966 vide Annex. "C".

3. The petitioners filed a revision, but without any success, as the same was dismissed by the learned Member, Board of Revenue on 14-2-1967 vide Annex. "E". The petitioners attempted a review which also met the same fate and was rejected on 1-8-1967 (See Annex. "G"). The petitioners have come up in writ petition against the aforesaid proceedings and orders to this court.

4. It was argued by the learned counsel for the petitioners that the basic notice in this case Annex. "H" was issued by S. D.O. Khanewal, who signed it "for Collector District Multan" and it was without lawful authority inasmuch as .an S. D. O. was neither a Collector nor was he Authorised to the powers of a Collector under section 24 of the Colonization of Colonization of Government Lands (Punjab) Act V of 1912. The contention seems to have merit. The point was raised before the learned Member Board of Revenue who turned it down with the observation that, "from the notice, a copy of which has been produced by the petitioners, it appears that it was, issued by the Collector, Multan. S. D. O. Khanewal, however, signed for Collector." This finding is based on misreading of the document and shall have to be declared as without lawful] authority. The notice Annex. "H" does not show that it was issued by the Collector, inasmuch as, it specifically recites. It has not been shown to me that an S. D. O. is a Collector or can exercise powers of a Collector under the aforesaid Act. Rather the apparent tenor of notion itself showed that the S. D. O. was not the Collector and that is why that he affixed his signatures on an endorsement

The copy shows that the portion regarding signatures reads as "(Sd,)-,S. D. O. Khanewal. The basic notice in this case thus having been issued by an incompetent Authority. was void ab initio and any proceedings or superstructure based thereon n the form of the orders of the higher authorities as laid down in Yousaf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C (pak) 104 will also be void. I hold accordingly.

5. Learned counsel then submitted that the Collector in the instant case while resuming the lot did not pass a conscientious order of his own and simply affixed his initials or signatures on an office-noting. This, according to the learned counsel, was not a conscientious application of mind as laid down by their Lordships of the Supreme Court in Ghulam Mohi-ud-Din v, Chief Settlement Commissioner and others P L D 1964 S C 829 I have gone through the relevant office-rioting in this respect, copy of which have been filed in the fork ,.; Annex. "VI", which reads as follows --

(Sd.) S. D. O.,

Khanewal

As the purchasers are intentionally avoiding payment of price, the lot may be cancelled.

(Sd.) H. V. C.

7-7-1965

May resume

(Sd.) H. V. C.

8-7-1965

(Sd.) Collector Multan.

10-7-1965."

A perusal of this material will show two things. Firstly the S. D. O Khane wal was not a Collector and that is why that he submitted the record to the Collector. Multan, for orders. Secondly, the Collector simply initialed or signed against his official designation when the case had been put up to him. In the case cited by the learned counsel for the petitioner, the Supreme Court at page 835 observed as follows :-

"The Deputy Settlement Commissioner (Policy) accordingly suggested that the house be got inspected again by the Settlement Commissioner (Policy) before passing any order.

This was evidently directed and the Settlement Commissioner (Policy) after inspecting the house on the 20th of August, 1960, reported that the house was indivisible and.. therefore, the order of the Settlement Commissioner transferring the whole house to the respondent No. 3 ' should be allowed to stand and all the petitions dismissed. The Chief Settlement Commissioner as already stated, without giving any reasons" of his own simply countersigned the report of the Settlement Com missioner (Policy) on the 16th of September 1960."

At page 840, their Lordships then held that

"A second inspection of the premises was, in the circumstances, sugges ted. This was done by the Settlement Commissioner (Policy), but the latter in his note only dealt with the question of the divisibility of the house and proposed that all the petitions should be rejected. Ins these circumstances, we are of the opinion that it behoved the Chief Settlement Commissioner to apply his own independent mind to the questions raised before him and to deal with the three revision petitions put up before him in accordance with law. By merely countersigning, on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him."

Respectfully following the aforesaid law, I hold that the Collector in the instant case also did not independently examine the case and there was n proper disposal of the case on this point. As a result of the defects herein before mentioned in the impugned orders, the same shall have to be declared as to be without lawful authority and of no legal effect against the petitioners and the case shall have to be remanded to the learned Collector for fresh decision in accordance with law.

6. Though this was sufficient to dispose of this case, but the learned counsel for the petitioners wanted to raise certain arguments regarding the inconsistency in the disposal of these cases, inasmuch as, with regard to lots Nos. 35 and 36, the learned Addl. Commissioner (Revenue) Multan had restored those lots to the petitioners giving them an opportunity to rectify the mistake whereas with regard to the present lot No. 43, he did not apply the same law on the same facts and same circumstances pertaining to the same parties. Certain objections were also taken with regard to the service of notice Annex. "H" and its validity contending that it could not constitute a notice under section 24 of the Act. As the findings recorded by me above in Paras. 1 to 5 are sufficient to dispose of the case, and the case has to be remanded to the Collector for fresh decision in accordance with law, I need not to attend to the rest of the submissions made by the learned counsel which can well be attended to by the Collector while deciding the case afresh.

7. The upshot of the above discussion is that the present writ petition is accepted. The impugned proceedings and orders are declared to he with out lawful authority and of no legal consequence against the petitioners and are hereby quashed and the case is remanded to the learned Collector for disposal in accordance with law after giving opportunity to the petitioners to defend themselves and raise such points and pleas which they may be advised to do. Order accordingly. There shall be no order as to costs.

S. Q. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.