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Writ Petition No. 5434 of 1984, heard on 26th May, 1985.

(a) Provisional Constitution Order (1 of 1981)--

--Art. 9--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2--Transfer of land--Petitioner a petty claimant of both urban and rural verified clams but his claims remaining unsatisfied for long time--Land temporarily allotted to him taken away by State--Petitioner trying to be settled in accordance with law in lieu of his abandoned land verified by public authorities--Record showing that his case was recommended by Secretary Colonies but for misdirection of case by note of Audit Officer no allotment could be made to him, -Decision arrived by Secretary Colonies and approved by Member, Board of Revenue was only tentative whereas an inconsistent draft issued thereon rejecting his claim for all times to come--Petitioner', was not heard before his rights were determined and order of rejection of his claim communicated to him--Order declared without lawful authority and of no legal effect--Member, Board of Revenue directed to go through case in its entirety and then pass an appropriate order in accordance with law.

(b) Provisional Constitution Order (1 of 1981)--

--Art. 9--Natural justice--Nobody to be deprived of liberty or property or rights without being afforded an opportunity of hearing.

Awan Muhammad Hanif Khan for Petitioner.

M. Altaf Muhammad Khan for Respondent No. 1.

Ch. Muhammad Nazir Ahmad for Respondent No. 2.

Date of hearing: 26th May, 1985.

The relevant facts for the disposal of this petition are that the petitioner alongwith three others filed Writ Petition No. 9-R of 1973. The petitioner claims to have a valid claim. It is stated by him and his learned counsel that he has a claim for urban land to the extent of 75 units and rural 35 units. He was temporary allottee of some land which was exchanged with State land. In lieu thereof, he found out that there was Killa No. 12 of Square No. 40 still available for allotment. The aforementioned writ petition was allowed and it was directed that the petitioner be allotted the aforesaid land "if the same does not stand allotted to any other person and the claims of the petitioners also remain unsatisfied." This is vide order, dated 8-10-1974. The afore-referred to land was, however, allotted to one Ahmad Saeed Khan, since deceased, on 12-5-1979, he being the temporary allottee in possession thereof as stated by Muhammad Afzal, Patwari Halqa Chak No. 220/ R. B . , District Faisalabad. Ahmad Saeed Khan or his successors are not party to the proceedings.

2. Learned counsel for the petitioner stated that the petitioner then requested the authorities to give him some other land available in lieu of his being a temporary .allottee and holder of valid claims. He also made representations to the Chief Martial Law Administrator and the President. The representations were sent on to the Board of Revenue for necessary action.

3. Mr. M. Altaf Khan, Advocate, who appeared for the Board of Revenue, respondent No. 1, has produced File No. 301-12-00-1620 ('B' C-IV) allotment of land application of Fazal Ahmad etc. He referred to the communication, dated 15-10-1984 at page 39 of the file whereby the request of the applicant for confirmation of land was rejected on the ground that he "did not fulfil the conditions committed in Writ Petition No. 10 of 1966". This communication was sent to the Deputy Commissioner, Faisalabad, with a direction to inform the applicant accordingly. This has been challenged by the petitioner through this Constitutional petition.

4. Learned counsel appearing for the respondent No. 1 was asked to hand over the file from which he had read the aforesaid order. A perusal thereof would show that the Secretary (Colonies) on 1U-5-1984 dealing with the case, in view of the decision in Writ Petition No. 9-R of 1t 73 and the fact that the petitioner was a temporary allottee prior to 3 1-1958, concluded as follows:-

"No doubt the land has become the State land but the order of the High Court indicates that the land in question (3 Acres) may be confirmed to the petitioners. According to the

decisions of the Board of Revenue, dated 1-6-1982 the claimants who were allotted the land before 3-1-1958 are to be accommodated.

In view of the above, Assistant Commissioner; Faisalabad is to be advised to take further action."

This was submitted before 'the Member (Colonies), Board of Revenue. The letter ordered "A.O.C. may please report." The letter stated that "the claims of the petitioners which were verified in 1967-68 are lying in the Claim Branch instead of Chak No. 220/R.B. They do not fulfil the conditions committed in Writ Petition No. 10 of 1966. Hence they .are 'not entitled to the allotment of exchanged State land on claims." This-is vide Audit Officer (C)-I order, dated 1-8-1984. It may be noted that the case of the petitioner was being processed not with reference to Writ,- Petition No. 10 of 1966 but Writ Petition No. 9-R of 1973, as mentioned in the order of the secretary (Colonies). However, on receipt of the report of A . O. C . , the Secretary (Colonies) observed that, please clarify the value and weight of order passed by Hon'ble High Court in the case. Should we seek advice of Solicitor if the order is not to be implemented." This is dated 1-8-1984. The next day the Audit Officer stated that "in Writ Petition No. 9-R of 1973, Colonies Department is not a party. Therefore, there is no need to seek the advice of Solicitor." This is, dated 2-8-1984. The Secretary (Colonies) on 15-8-1984 noted as below:-

"Fazal Ahmad etc. are displaced persons from Jalundhar and sitting allottees of the land in question which was exchanged with State land on 3-1-1958. The land could not be confirmed to the applicants because the evacuee land became the State land. High Court and Settlement Department have already passed orders.

A.O.C. has vide para. 60 reported that claims of the applicants are lying pending in the Claims Branch and they do not fulfil the conditions mentioned in Writ Petition No. 10 of 1966. Hence they are not entitled to the allotment of State exchanged land on claims- There is no need to seek advice of Solicitor in this case.

It is not possible to agree to the allotment of land at present unless some decision is taken by the Government after Settlement Department is wound up in October, 1984.

Submitted for orders."

Member, Board of Revenue (Colonies), initialled the same. Thereafter, the impugned order was conveyed to the Deputy Commissioner, Faisalabad and to the petitioner on 15-10-1984, quoted above. Besides that the case as noted by the Secretary (Colonies) on 10-5-1984 was led in a different direction by its misconception by the Audit Officer with reference to Writ Petition No. 10 of 1966, when the case was being processed on the basis of the order in Writ Petition No. 9-R of 1973, the note of the Secretary (Colonies) which was approved by the Member, Board of Revenue (Colonies) was that "it is not possible to snake the allotment at present unless some decision is taken by the Government after Settlement Department is wound up in October, 1984." The decision was tentative for the time being. The draft issued has rejected the claim of the petitioner for all times to come. Now this draft is inconsistent with the order. Further, it is also to be noticed that the petitioner s case was being processed and was being recommended but at the end when it was rejected, the petitioner was not even heard before the order was communicated on 15-10-1984. In the circumstances of the case that the petitioner is a petty claimant of both urban and rural verified claims, was a temporary allottee of land which had been taken, away by the state and that all through these years he had been trying, to be settled in accordance with law in lieu of his abandoned land verified by the public authorities and the further fact that his case was recommended by the Secretary (Colonies) on 10-5-1984 and but for the misdirection of the case by the note of the Audit Officer, he w would have been made allotment there is no escape from the conclusion that the petitioner was entitled to and should be heard before his rights were/are to be determined as that is the elementary principle of law that nobody is to be deprived of liberty or property or rights without being afforded an opportunity of hearing.

5. In all the circumstances as narrated above, the order, dated) 15-10-1984 is declared to be without lawful authority and of no legal effect. The learned Member (Colonies), Board of Revenue, is directed to go through the case in its entirety and then pass an appropriate order in accordance with law. The petition is, accordingly, allowed) with no order as to costs.

M. Y. H .

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