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Constitutional Petition No. D‑572 of 1982, decided on 12th November, 1985.

‑‑‑Art.9‑‑Constitutional jurisdiction, exercise of‑‑Finding of fact arrived at in arbitrary manner‑‑Finding in respect of petitioner being of unsound mind arrived at by Judicial authority without holding any enquiry‑ Petitioner was not given opportunity of hearing‑‑No material available on record on basis of which authority could arrive at such conclusion‑ Finding of fact arrived at by such Judicial authority in such arbitrary manner, held, called for interference by High Court in exercise of its constitutional jurisdiction.

P L D 1980 Lah. 15 ref.

Abdul Naseer Khan for Petitioner.

Date of hearing: 29th October, 1985.

.‑‑The petitioner has called in question the order, dated 9‑8‑1981, passed by the Senior Member, Board of Revenue Sind, Hyderabad (the respondent No. l), whereby grant of land made in favour of the petitioner was cancelled.

The facts of the case are, that the petitioner had applied for grant of land on Harap condition in Deh Kinjhar bearing Survey No. 177 comprising of 16 Acres, to the Revenue Officer, Kotri Barrage, Hyderabad on the ground that he was an old resident of Deh Kinjhar and a farmer by profession. The petitioner also possessed no other land and was actually residing on the land in question. The respondent No.2 then asked the Barrage Mukhtiarkar, Tando Muhammad Khan to make a site inspection and submit his report. Thereafter, after perusal of such report submitted by the Barrage Mukhtiarkar and hearing the petitioner and other applicants in open Kutchery held on 27‑12‑1979, the respondent No.2 divided the land in question late four portions; comprising of 4 Acres each, and granted claim to four persons, including the petitioner and the respondent No.3. Thus, Survey No.177/3 went to the share of the petitioner and Survey No. 177/4 was granted to the respondent No.3. The petitioner was not satisfied with the decision of the respondent No.2 and filed appeal against it before the Additional Commissioner, Hyderabad Division, Hyderabad. In that appeal he disputed the grant of Survey No‑177/4 to the respondent No.3 as according to him he was himself entitled to it. The grounds stated by the petitioner were that the respondent No. 3 was originally a resident of Deh Bah rampur T,aluka Tando Muhammad Khan which was situated at a distance of about two miles from Survey No.177 and that he was already holding agricultural land comprising of a total area of about 16 Acres in Deh Bahrampur. The other objection of the petitioner was that the respondent No.3 was already holding sufficient agricultural land in Chak No.5 Kamalpur Taluka of District Lyallpur (Punjab). The petitioner also contended in the appeal that he had prior right over the respondent No.3, as the petitioner was actually living on Survey No.177/4. The respondent No.3 also filed appeal before the Additional Commissioner was vide his order, dated 16th July, 1980, rejected both the appeals. Thereafter, both the petitioner as well as the respondent No.3 filed revision before the Board of Revenue, Sind at Hyderabad which were disposed of by its Senior Member, the respondent No.1 vide his order, dated 9‑8‑1981. In the revision, the petitioner had reiterated the same grounds before the learned Senior Member. In the revision filed by the respondent No.3, one of the grounds taken by him was that the learned Additional Commissioner had failed to take judicial notice of the fact that the petitioner was not in a fit mental condition to be granted Survey No.177/3. The learned Member then held, without going into the merits of the petitioner's case, that the petitioner who was present at the time of the hearing of the revision did not appear to be of sound mind, therefore, the grant of Survey No.177/3 in his favour may be cancelled and fresh disposal of the land be made according to the policy in force. The revision of the petitioner was thus rejected. Thereafter, the petitioner filed a review petition before the learned respondent No.1 which was also rejected vide his order, dated 10‑1‑1982, with the observations that there was no new ground advanced or any error which could be found apparent in his earlier order. Thereafter, the petitioner filed another review before the learned respondent No.1, but the second review was also rejected vide order, dated 16‑5‑1982. Under such circumstances, the instant petition has been filed.

The contention of Mr. Abdul Naseer Khan the learned counsel for the petitioner before us was that the impugned order was arbitrary and highly unjust as the petitioner had been deprived of the grant of land on unfounded and baseless grounds. The learned counsel contended that there was no evidence before the learned respondent No.1 that the petitioner was of unsound mind. The learned counsel further pointed out that the respondent No.1 was himself not definite about the mental condition of the petitioner as he has himself observed in the impugned order, dated 9‑8‑1981, that the petitioner appeared to be of unsound mind.

After hearing the arguments of the learned counsel and perusal of the impugned order, we are inclined to agree with the petitioner's counsel. It is clear from the order that the learned Member has failed to give any reasons for his conclusion that the petitioner was of unsound mind and such a conclusion appears to have been drawn by him without. even holding a proper enquiry in the matter or giving an opportunity of hearing to the petitioner. It also appears from the order that no material was available on record of the case on the basis of which the learned Member could arrive at such a conclusion. The power of revision conferred on the Board of Revenue is clearly a judicial one as it requires adjudication up on the rights of parties, therefore, any finding of fact which is arrived at in such an arbitrary manner, calls for interference by this Court in the exercise of writ jurisdiction. See P L D 1980 Lah. 15.

Under such circumstances, we allow this petition and declare the impugned order and the subsequent orders passed thereafter, in review as without lawful authority and of no legal effect. We further quash such orders and remand the case to the Board of Revenue, Sind for disposal of the petitioner's revision in accordance with law.

The parties are left to bear their own costs.

H . B . T . Petition allowed.

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