P L D (PLP)

2. The facts of the case are that the disputed land was granted to the petitioner under Sale Scheme. He failed to pay more than 3 consecutive instalments and his grant was cancelled by the Assistant Land Commissioner, Nara Valley with effect from kharif, 1968‑69, vide his order No. 697, dated 17‑2‑1968. He preferred an appeal to the Deputy Land Commissioner. Tharparkar, which was rejected by him as time barred vide his order dated 3‑2‑1969. The petitioner preferred a revision petition to the Land Commissioner, Hyderabad, who vide his order dated 31‑12‑1971 upheld the revision and restored the grant to the petitioner. The Land Commissioner further directed that the petitioner should pay up the arrears of instalments of sale price together with the penal interest up to 31‑7‑1970 and that in case of default the disputed land should be disposed of by public auction after getting its possession from the petitioners under the provisions of para. 34 of the Sale Scheme. The disputed land had, however, been put to auction on 9‑5‑1969 and respondent Noor Akbar had offered the highest bid. The Land Commissioner, Hyderabad, confirmed the auction of the disputed land in favour of the respondent vide his order dated 8‑4‑1971. The petitioner approached the Land Commissioner for restoration of the land to him but he was advised by the Land Commissioner vide his letter dated 2‑9‑1971 to seek remedy from Chief Land Commissioner. Sind, as the Land Commissioner had already confirmed the auction of the land in favour of the respondent and the petitioner has, therefore; submitted the present revision petition.

3. The counsels for the parties urged the following points A‑‑‑Counsel for the petitioner (i) The petitioner had been allowed by the Land Commis sioner, Hyderabad, vide his order dated 31‑12‑1969 to pay up the arrears by 31‑7‑1970 and the petitioner had paid the arrears of Rs. 560 outstanding against him on 10‑4‑1970. There were no dues against him and as such the land should have been restored to the petitioner and the auction .of the respondent should not have been confirmed. (ii) No notice was issued to the petitioner to pay up more dues if any outstanding against him. (iii) Noor Akbar is a big Zamindar of an other deh and has 2000.00 acres of land on lease. The petitioner is a sit ting hari. B‑Counsel for the respondent (i) The revision petition is time barred as the original order confirming the auction was passed in April 1971 and the present petition has been filed on 7‑9‑1971. There is no provision in Land Reforms Rules for condonation of such delays. (ii) The respondent is not a big Zamindar. The respon dent had purchased the land in open auction and had paid up the instalments.

4. I have considered the arguments of the parties. The grant of the petitioner had been restored to the petitioner by the Land Commissioner, Hyderabad, vide his order dated 3i‑12‑1969. The order of the Land Commissioner clearly implied that in case there was a default thereafter, fresh proceedings should be initiated for re‑cancellation of the grant of the petitioner, which included service of notices under paras. 33 and 34 of the Sale Scheme. Since the grant of the petitioner had been restored to him by the Land Commissioner, Hyderabad, vide his order dated 31‑12‑1969, the auction held earlier than the restoration had lost its force and there was no justification to confirm it. If there was a fresh default in payment of subsequent instalments, action should have been taken afresh and petitioner should have been allowed opportunity to rectify the default by paying up the arrears as required, by para. 33 of the sale scheme and he should also have been heard before cancelling the grant and then fresh proceedings should have been taken for auction of the land. The confirmation of the previous auction of the disputed land which was held on 9‑5‑1969, in favour of the respondent vide order dated 8‑4‑1971 of the Land Commissioner, Hyderabad is not, therefore, proper and is set aside.

5. The land was granted to the petitioner under the sale scheme as he was a sitting tenant of the land. The scheme of the land reforms involve preference to the sitting tenants of the land in grant of the land and according to the scheme the persons other than the tenants could take up the land if it is surplus to the requirements of the tenants. The scheme also affords certain safeguards to the purchasers against indiscriminate resumption of their grants vide para. 33 of the Scheme, which requires, affording of proper opportunity of being heard and service of a written notice before ordering any, penalty of resumption of the land for breach of the conditions of the grant. In any case, the resumption of the land has to be ordered only when the breach is not capable of rectification. In the present case, the petitioner had defaulted in payment of instalments amounting to Rs. 452.40 up to the date of cancellation of his grant i.e. 17‑2‑1968 and he paid up a sum of Rs. 560 on 29‑5‑1970 t. e. before 31‑7‑1970 as allowed to him by the Land Commissioner, Hyderabad, vide his order dated 31‑12‑1969. A sum of Rs. 904.80+penallnterest had also fallen due against him after the date of cancellation of his grant and up to 31‑7‑1970. He paid this amount in two instalments on 30‑3‑1971 and 14‑5‑1971. If the petitioner had failed to clear all the arrears before 31‑7‑1970, it was a fresh default on his part and the proper course would have been to serve him with a notice under para. 33 of the scheme afresh for the default to afford him a chance to pay up the dues. Since the default in payment of the instalments was rectifiable, there was no justification to deprive the petitioner of the land on that account. The land already stands restored to the petitioner vide the order dated 31‑12‑1969 of the Land Commissioner, Hyderabad and the restoration should, therefore, hold good so long as he fulfils the conditions of the grant. In case of any breach in the conditions of the grant, action should be taken under para. 33 of the scheme afresh. Order accordingly.