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Constitutional Petition No. 1036 of 1973, decided on 26th January, 1980.

-- S. 11-Maxim : Audi alteram partem-Natural justice, principle of--Allotment of excess land withdrawn without giving petitioners opportunity of hearing-Such order, held, passed in violation of principle of natural justice-Order set aside in circumstances of case-Constitution of Pakistan (1973), Art. 199-[Muhammad Hussain Munir and others v. Sikander and others P L D 1974 S C 139 held not applicable]. [Maxim].

Muhammad Hussain Munir and others v. Sikander and others P L D 1974 S C 139 held not applicable.

11-Memorandum No. 2195-62/3794-R (L) dated 18 May, 1962 issued by Chief Settlement Commissioner-Held, has force of law

Petition No. 505 of 1965 and L. P. A. No. 219 of 1968 rel.

S. M. Raza for Petitioners.

A. K. Lakhan for Respondent No. 4.

Date of hearing : 9th January 1980.

The Petitioners are claimant displaced persons from erstwhile Bharat pur State which is included within the agreed area and have verified claim (Fard-e-Haqiat). The following lands were allotted to petitioners Nos. 1 and 3 and Khwaja Atiqul Hassan, now respresented by Salma Ameed Ghori and Mst. Umida Begum deceased whose legal heirs are of record.

Name of Petitioners Entitlement Area allotted Excess

Petitioner No. 1 9-12 11-15 2-3

Petitioner No. 2 (Salma 9-12 11.15 2.1

Ahmed Ghori)

Petitioner No. 3 9-12 10.35 1-25

Petitioner No. 4 (Umda

Regum since deceased

whose legal heirs are

16-29 18-34 2-25

on. record)

------

7.32

2. The khatonies were issued and informed and clearance certificates were issued in respect of the allotted lands including excess area by Rehabilitation Mukhtiarkar, Shahdadpur, District Sanghar on 1st October 1958.

3. It is the case of the Petitioners that they had exercised their option of purchase of excess land as far as back as 1962 in accordance with the provisions contained in Memo No. 2195-62/3794-R (L) of the Chief Settlement and Rehabilitation Commissioner, Pakistan dated 18th May 1962 under which landlord allottees were given option to purchase the excess land. A reference to the aforesaid memorandum would show that such option had to be exercised and conveyed in writing to the Deputy Commissioner (Deputy Settlement Commissioner) (Land) of the District by 31st August, 1962 and under a subsequent Memo dated 23rd December, 1-963 the last date for exercise of the option was extended to 31st August, 1968. Since there is assertion on the part of the Petitioners about exercise of option for purchase of excess land in 1962 which has not been contested it is presumed that the fact has been correctly stated. The fact with regard to exercise of option was also mentioned by the Petitioners in their applications dated 2nd April 1970 addressed to the A. R. M. and A. S. C. (Lands), District Sanghar.

4. It is further the case of the petitioners that Khwaja Waliul Hassan Ghori, even deposited first installment towards purchase price of excess agricultural land in respect of each survey number. Although this was not done under any order of the authorities concerned, it could be consi dered as an indication of the desire of the petitioners to purchase the excess land and further supports the contention that they had exercised the option. A. R. M. Sanghar, had recommended to the Addl. Deputy Commissioner and Add]. Settlement Commissioner (Lands) Sanghar, in his letter dated 31st December 1970 that the Petitioners may be permitted to purchase the excess land. However, since no orders were passed appli cation for purpose of excess area was repeated on 2nd January 1971. It is further contended on behalf of the Petitioners that Khwaja Waliul Hassan as attorney for Syed Ayub Ali and Azizul Hasan had applied for purchase of the excess land on 10th April 1971 on the basis of their claims which were in respect of area of 7.32 acres but the application was rejected on the ground that they had claimed more than the area of 7.32 acres, which amounts to misreading of the record.

5. The Petitioners, therefore, challenge the orders of the Addl. Deputy Commissioner and Addl. Settlement Commissioner (Lands)' Sanghar, dated 1st April 1971 under section l l of the Displaced Persons (Comp. & Rehab.) Act, 1958 and also the order dated 2nd May 1972 allot ting the disputed land to Mst. Asia Kbatoon, Respondent No. 4.,

6. The Petitioners' appeal before the Settlement Commissioner (Land) Sind was dismissed and therefore they have filed the instant petition. The main grounds raised by the petitioners are as under

(i) The Petitioners have exercised their option to purchase the excess land in 1962 and having filed the last application on 2nd January 1971, the order dated 2nd May 1972 is illegal for the reasons that

(a) no notice was given to the petitioners and therefore there was violation of the principle of natural justice ; and

(b) the order is in contravention of the provisions of law contained in Memo No. 2195-62/3 794-R (L) of the Chief Settlement and Rehabilitation Commissioner, Pakistan.

7. It has been argued that the fact that the application of the Intervener dated 10th April 1971 for purchase of excess land had been rejected even in spite of their having a better claim proves the mala fides of the impugned orders. It has also been emphasized that since the land was permanently settled and the petitioners had been in possession of the same since, 1957, the impugned order is against equity.

8. With regard to ground No. I as already stated the fact that the Petitioners had exercised option for purchase of the excess land, has not been even controverter and there are further indications on the record that the option was exercised before 31st August 1963, as the assertion is that it was exercised in 1962. There is also sufficient material on record to show, that applications were made from time to time indicating the desire of the Petitioners to purchase the excess land. The impugned order with regard4 to withdrawal of allotment of excess land and also the impugned order; with regard to allotment of the same to Respondent No. 4, were orders adverse to the Petitioners and therefore before passing the same the authorities concerned should have given them an opportunity of being heard by giving them notice. The principle of natural justice as appearing in the maxim: Audi alteram partem applies to all cases of authorities s and therefore, in the instant case the principle applies passing such order with full force. It is well settled that the memorandum and directives is sued by the Settlement Authorities have the force of law.

9. Mr. S. M. Raza, learned counsel for the petitioners pointed out that even in the applications made for purchase of the excess land it was clearly mentioned by the Petitioners that they had exercised the option under memorandum No. 2195-62/3794-R (L) of the Chief Settlement and Rehabilitation Commissioner, Pakistan, dated 18th May, 1962 under which the landlord allottees were given option to purchase excess land. He has further pointed out that even the decision of this Court in Petition No. 505165 with regard to the aforesaid memorandum being binding on the authorities had been mentioned. In that decision the cancellation of the grant of excess land was held to be illegal and it was decided that in view of the provisions of the memorandum the grant on the basis of exercise by the Petitioner of his option to purchase the excess land should not have been cancelled by the Settlement Authorities. The aforesaid decision was taken in Letters Patent Appeal before a Division Bench of this Court in L. P. A. No. 219/68 but the same was dismissed with costs.

10. It has been argued by Mr. Lakhan, learned counsel for respon dent No. 4 that since Waliul Hassan, attorney of the petitioners, had appeared and made an application on behalf of the Interveners for pur chase of the property after the order of withdrawal of allotment in res pect of excess land, the petitioners could be said to have notice of such order. The withdrawal from allotment was ordered on 1st April 1971 and application by Khwaja Waliul Hassan on behalf of Syed Ayub Ali and Azizul Hasan, was filed on 10th April 1971. However, even if for the sake of argument it is conceded that the application was made after coming to know about the withdrawal of allotment 9 days earlier it cannot be considered to be sufficient compliance with the principle of natural justice of hearing a party before passing adverse orders.

11. It has further been argued by the learned counsel for the Respondent No. 4 that the authority withdrawing the allotment of the land in question and allotting the same to respondent No. 4 had the power and jurisdiction to pass order which had been done after consi dering the entire case as is apparent from, the contents of' the impugned order. He has further contended that a mere erroneous decision whether oh question of fact or even of law does not attract the writ jurisdiction of the High Court He has relied upon the decision of the Supreme Court in Muhammad Hussain Munir and others v. Sikandar and others in Civil Appeal No. 1/73 (P L D 1974 S C 139). However, that decision would not appear to be applicable to the facts of the present case in as much as if the memorandum already referred to, issued by the Chief Settlement and Rehabilitation Commissioner, Pakistan, is considered by passing the impugned order with drawing allotment of excess land and the order allotting it to respondent No. 4, was clearly without jurisdiction and therefore, illegal and of no effect. As already stated there has, been misreading of record for instance with regard to the area, claimed by the Interveners and the ignoring of legal pleas raised by the petitioners when pointing out the exercise of option and even pointing out the decision of the High Court in a similar matter.

12. In view of the circumstances stated above the writ petition is allowed and the orders of the Additional Deputy Commissioner and Additional / Settlement Commissioner lands) Sanghar, dated 1st April 1971 and 2nd May 1972 which were clearly without lawful authority and are of no legal effect, are therefore, hereby quashed. Since the order of respondent No. I dated 17th August 1973 dismissing the appeal was on the basis of void order the same is also hereby quashed. The allotment of excess land to respondent No. 4 is declared to be illegal and ultra vires, as the petitioners have a legal right to purchase the excess area. Respon dents No. 1 arid 2 are hereby directed to take action accordingly.

M, A. K. Order accordingly.

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