1990 PLP 2353 (MLD)

NASIR ASLAM ZAHID, J.‑‑This petition was originally filed by deceased Rehmatullah and Muhammad Afzal. During the pendency of the petition, Rehmatullah died and his legal representative Malik Fida Hussain was brought on record as a petitioner pursuant to orders passed by this Court. There were two private respondents, namely, respondent No.5 Moosa son of Suleman and respondent No.6 Punhu son of Ahmad Chakko. During the pendency of the petition respondent No.5 Moosa died and his legal representative Suleman has been brought on record as a respondent.

2. The petitioners have challenged the cancellation of the lease of agricultural lands in their favour mainly on the ground that prior to such cancellation, no notice was given to them as required by section 24 of the Colonization of Government Lands Act, 1912. We have heard Mr. S. Saeeduddin Nasir, learned counsel for the petitioners and Mr. K. M. Nadeem, learned Assistant Advocate‑General, who has appeared on behalf of official respondents Nos.1 to

4. Respondents Nos.5 and 6 have been called absent.

3. The lands in question were leased out to the petitioners in 1959 on hardship basis. By order dated 31‑7‑1965, the grants in favour of the petitioners were cancelled by Revenue Officer, Kotri Barrage, Hyderabad, on the ground of infringement of the conditions of grant, namely, that the area in question was not brought under cultivation as required by the conditions of the grant. The main grievance of the petitioners in this petition has been that prior to cancellation of the grants no notice was given to the petitioners under section 24 of the Act, 1912. The petitioners challenged the cancellation but by order dated 22‑1‑1973 the Additional Revenue Commissioner dismissed their appeal. A further appeal was filed by the petitioners, which was converted into a revision by the Board of Revenue and, by order dated 26‑10‑1976, the case was remanded for decision on merits. The Additional Commissioner, on remand, by order dated 11‑3‑1978, rejected the appeal. Being aggrieved, a revision was filed by the petitioners before the Board of Revenue, which also met the same fate inasmuch as the revision was dismissed by order dated 27‑6‑1982 of the Board of Revenue. Being aggrieved, the petitioners filed the present Constitutional petition.

4. Mr. K. M. Nadeem, learned Assistant Advocate‑General, who has appeared on behalf of the Department and the official respondents, has frankly conceded that on record of the Department there is no evidence that any notice was given to the petitioners and it can be taken as an admitted position that no prior notice was given to the petitioners by the Revenue Authorities before the grants were cancelled by order dated 31‑7‑1965 of the Revenue Officer.

5. Under section 24 of the Colonization of Government Lands Act 1912 prior notice to the grantee/allottee is required before his grant is cancelled. The petitioners were heard at the appellate and revisional stages but in view of the statutory requirement in section 24 of the Act, subsequent hearing to the petitioners at the appellate and revisional stages cannot cure such initial defect. Mr. K.M. Nadeem, learned Assistant Advocate‑General, has rightly submitted that a distinction is made between matters which require a statutory notice to be given to a party before any adverse order is passed against him and where an order suffers from violation of principles of natural justice. According to the learned Assistant Advocate‑General, in cases where there is a statutory requirement for a prior notice, and adverse orders are passed without such notice, hearing by the appellate or revision authority would not cure the initial defect but in cases where there is no such statutory requirement but the grievance is that principles of natural justice have been violated inasmuch as the party against whom the adverse order is passed was not given a prior notice, a hearing to the party at the appellate or revisional stage will cure the initial defect. The learned Assistant Advocate‑General has referred to the decision of the Supreme Court in the case of Zaibtun Textile Mills Ltd. v. Central Board of Revenue reported in PLD 1983 SC

358. At page 382 of the report it has been observed as follows:‑‑ 'The question whether the lack of hearing at the initial stage would vitiate the order even if there is a subsequent hearing afforded to the affected party at the appellate or review stage, depends upon the question whether the rule of natural justice is incorporated in the governing statute or is being merely imported on the basis of the common law rule. It is well‑established that if the law under which action is taken by an authority expressly provides for notice then non?-compliance with such provision would render the action taken or order passed in pursuance of the powers conferred by such law as void, but if there is no express provision to that effect, then' the requirements of the rule of natural justice would be sufficiently fulfilled and the defect resulting from not hearing the affected party would stand cured by the subsequent hearing." In that judgment reference was also made to another judgment of the Supreme Court in the case of Government of Pakistan v. Indo‑Pakistan Corporation Ltd. reported in PLD 1979 SC 723.

6. Admittedly, in the present case, no prior notice had been given to the petitioners before the grants were cancelled. There being a statutory requirement for a prior notice under section 24 of the Act of 1912. which requirement was not fulfilled in this case, the orders cancelling the grants of the petitioners are liable to be set aside. The subsequent hearings at the appellate and revisional stages do not cure the initial defect of prior notice having not been given to the petitioners before cancellation of their grants.

7. In the circumstances, these petitions are allowed and the impugned orders are declared to have been passed without lawful authority and to be of no legal effect. In case the department wants to take any fresh action against the petitioners, a prior show‑cause notice should be given as required by section 24 of the Act. There will be no order as to costs. A.A./R‑147/K????????????????????????????????????????????????????????????????????????? Petition accepted.