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Appellate Side No. 22 of 1956‑57,. decided on 1st March 1957: District Peshawar.

Act, 1948‑Sale sanctioned by Collector not against public interest‑Should be upheld.

Mutation‑ Order should not be passed without hearing parties.

Kh. Abdur Rahim for Petitioners.

Inayat Ullah Khan for Respondents.

The dispute in this case relates to an alleged sale of some land which took place in December 1948, and was entered in the register‑of mutations at No. 2181. This mutation was rejected on the ground that the Kabul River Project was to apply to this area. The Kabul River Project (Control and Prevention of Speculation Inland) Act, 1948, had been passed but had not been applied to the village in dispute. This village was included in the Schedule of the Act by a notification of the Provincial Government issued in 1952. The effect of the inclusion in the Schedule is a matter of dispute between the parties. The petitioners allege that this inclusion could not be with retrospective effect. The respondents, on the other hand, allege that the inclusion of the village in the year 195.2, would be as effective as it would have been if it had been included at the time when the Act was placed on the Statute Book. I need not decide this dispute in the present case, because the decision has to depend on the issue which will be dealt with in the succeeding paragraph.

The sale transaction was admitted by the vendor, the predecessor‑in‑interest of the present respondents, on 23rd December 1948. The sale in question will become effective if a duly appointed Collector sanctions it under the said Act of 1948. An order was passed by the Assistant Commissioner, Naushera, on 22nd June 1955, granting such sanction in respect of the sale in dispute. The present respondents appealed to the Commissioner and he decided on 17th November 1956, that the order of the Assistant Commissioner dated 22nd June 1955, was ineffective because he had not been invested with the powers of a Collector under the said Act of 1948. It has now been made clear that the Commis sioner's assumption was not correct, because the Assistant Commissioner of Naushera had been given the necessary powers under notification No. 10935‑Rev,/XVI‑D‑152, dated the 3rd October 1950.

The question whether the sale itself deserved to be sanctioned under the said Act is not very material from my point of view, because if the inclusion of the village in the Schedule of the Act in 1952 has been given retrospective effect, there was no reason why a sale, which had actually taken place, should not be sanctioned by the Collector. The decision of the Collector on this subject should be upheld by higher officers unless there was anything to indicate that the sanction would be against the public interest. This aspect of the case was not raised by the present respondents before the Commissioner when he heard the appeal. The respondents had merely stated that the order was passed without hearing them.

In the above circumstances, I do not see any reason why the Collector's order dated 22nd June 1953, should be made ineffective. I accept the present appeal against the Commis sioner's order dated 17th November 1956 to that extent.

When the Collector had passed the above mentioned order, he had also directed that this mutation should be duly' attested. The mutation in question had already been attached to the jamabandi of the village. The Patwari, therefore, wrote out a new mutation No. 2609 on 28th June 1955. The Revenue officer passed an order on it sanctioning the mutation in accordance with the order of the Assistant Commissioner dated 22nd June 1955. This order sanctioning the mutation was passed without hearing the present respondents.

I have little hesitation in accepting the position that the order of the Revenue Officer on mutation No. 2609 is by way of an order reviewing the order rejecting the previous mutation No. 2181. The law requires that such an order reviewing the previous order should not be passed without hearing the parties who would be effected by the new order. Thus, it is clear that the order sanctioning mutation No. 2609 is defective. The Commissioner's order dated 17th November 1956, requires that this mutation should be rejected. I accept the present appeal to the extent that the Commissioner's order on this point should be changed in such a way that the Revenue Officer's original order passed on mutation No. 2609 should be set aside and that he should be required to pass a fresh order after hearing the present respondents, the successors‑in‑interest of the original vendor.

It may be that the Revenue Officer needs the permission of the Collector for reviewing a previous order like the one rejecting mutation No. 2181. This formality need not be gone through, because my decision of to‑day may be accepted by him as an adequate permission for ‑reviewing the original order of rejection.

K.M.A. Appeal accepted.

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