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Writ Petition No. 1501-R of 1977, decided on 14th January, 1986.

-.--Ss. 2 & 3--Constitution of Pakistan (1973), Art. 199--Natural justice, principles of--Violation--Allotment of land--Cancellation of--Cancellation of allotment in favour of party, held, could not be effected without prior notice to such affected party--Absence of notice would render such cancellation against principles of natural justice--High Court would in exercise of constitutional jurisdiction set aside order passed in violation of principles of natural justice.

Hussain Bakhsh and others v. Settlement Commissioner and another P L D 1969 Lah. 1039 ref.

Ch. Muhammad Hassan for Petitioners.

Ch. Aftab Rasool Maher for Respondent No. 3.

Date of hearing: 14th January, 1986.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against orders, dated 29-6-1977 and 14-6-1972, respectively passed by the Settlement Commissioner with powers of Chief Settlement Commissioner (Lands), Lahore and Additional Settlement Commissioner (Lands), Sialkot.

2. The dispute relates to land measuring 3 Kanais and 5 Marlas bearing Khasra No. 60 of village Pindi Khurd, Tehsil Shakargarh, District Sialkot. The case of the petitioners as set up in this petition is that the land of the aforementioned Khasra number alongwith some other land was allotted to Noor Ahmad, the predecessor-in-interest of the petitioners long ago, where after on 14-6-1952 it was confirmed in his name, vide RL-11 No. 25 of the aforementioned village. Notwithstanding the above position and without the cancellation of the confirmed allotment, the said Khasra number was confirmed in the name of respondent No. 3 on 23-8-1972 under the impression that it was an available piece of land. This allotment /confirmation in favour of respondent No. 3 was made without notice to the petitioners and without affording them opportunity of hearing. The petitioners on coming to know about the order of allotment in favour of respondent No. 3 filed an appeal which was treated as revision petition and was dismissed by the learned Settlement Commissioner by his' order, dated 29-6-1977. Hence the present constitutional petition.

3. The learned counsel for the petitioners raised the following contentions:-

that the order, dated 23-8-1972 was passed by the learned Additional Settlement Commissioner (Lands). Sialkot without notice to the petitioners arid without affording them an opportunity of hearing and was, therefore, riot only against the principles of natural justice but also violative of the provisions of law governing the subject;

that the said order of allotment in favour o['respondent No. 3 i, was otherwise void ab initio inasmuch as through the said order the land which already stood allotted and confirmed in the name of predecessor--in-interest of the petitioners was allotted without cancellation of the first allotment;

that the said order to the extent it affects the allotment of petitioners qua Khasra number in dispute is also illegal on the ground that it was made in favour of respondent No. 3 on an erroneous assumption that it was an available property;

that the averment of the petitioners in this petition asserting their title to the land in dispute as confirmed allottees has not been controverted by respondent No. 3 and no written statement has even been filed in this regard;

that the order of the learned Settlement Commissioner is also illegal in that it has been passed in disregard of the record which should have been called for passing any order;

that the reasons for the revision petition of the petitioners as barred by limitation are also not tenable inasmuch as the petitioners had no knowledge of the order which was impugned in the revision petition and which was passed admittedly at their back. Reliance in this regard has been placed on Hussain Bakhsh and others v Settlement Commissioner and another reported as P L D 1969 Lah. 1039;

that the petitioners have been in continuous possession of the disputed land as is apparent from the Khasra Girdawaris annexed with the petition as Annexures E/1 to E/5;

that the initial allotment in favour of the predecessor-in-interest of the petitioners is borne out also from Taqseem Khatoni copy of which is attached with this petition as Annexure 'C'; and

that in any case the order of the Settlement Commissioner suffers from legal infirmity as he did not care to examine the original record which it was incumbent upon him to do in the attendant circumstances of the case.

4. On the other hand, the learned counsel for the contesting respondent submitted that Khasra No. 60 is not shown as the one confirmed in the name of the petitioner's predecessor-in-interest as is apparent from Annexure 'D'. He also submitted that in Annexure 'D/1' this Khasra number has been mentioned but it has been scored out.

5. The learned counsel, however, conceded that no notice was given to the petitioners before the passing of the impugned order, dated 23-8-1972 but it was urged that since it was an available property no notice was called for.

6. In reply the learned counsel for the petitioners submitted that Khasra number in dispute viz. No. 60 duly finds mention in the Taqseem Khatoni as also in the Khasra Girdawari and in the copy of RL-II Register Annexure 'B'. He also submitted that the alleged deletion in Annexure 'D/1' is just scoring out without authenticity.

7. He also contended that this having been conceded that no notice had been given to the petitioners, it becomes abundantly established that the initial order was wholly without jurisdiction.

8. Having given consideration to the controversy involved, I am of the view that the contention raised on behalf of the petitioners about lack of notice to them before the passing of the impugned order has been established in view of the submissions made in this regard. The documents produced prima facie show that the disputed land had been allotted 'and later confirmed in the name of the predecessor-in-interest of the petitioners and it was, therefore, incumbent upon the Settlement authorities to have proceeded with the matter after notice to the petitioners even if it be assumed that there was any lacuna as regards their entitlement to hold the allotment of the said land.

9. This matter may have been decided by me but for the assertions made by the learned counsel for the contesting respondent about the land in dispute having not been allotted to the petitioner's predecessoer in-interest. By this plea a controversy of fact has been raised which can best be decided by the Tribunal of exclusive jurisdiction. I, therefore, consider that it is a fit case for remission and in view of my this conclusion, I would not like to comment on the other contentions which have been raised on behalf of the petitioners before me lest it may cause prejudice to any of the parties before the Notified Officer.

10. In view of the foregoing discussion, allowing this petition I quash the impugned orders, dated 29-6-197, and 14-6-1972 passed by the Settlement Commissioner with powers of Chief Settlement Commissioner (Lands), Lahore and Additional Settlement Commissioner (Lands), Sialkot and remit the case to the Notified Officer for adjudication afresh in accordance with law after notice to both the parties.

There will, however, be no order as to costs.

H . B . T . Petition allowed.

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