1994 PLP 1667 (CLC)

Muhammad Rafiq Iqbal for Petitioner. Abdul Sattar Najam, A.‑G., with M/s Muhammad Tahir and Pervaiz Malik for Respondents. Date of hearing: 20th November, 1993. Talib Hussain petitioner was granted Lot No. 5 in Chak No.6/3L Tehsil Shdrkot, District Jhang under'B'ara Scheme by the Collector Jhang, in the year 1950. This lot was cancelled from his name by the learned Collector vide order dated 20‑12‑1967 pursuant to the direction of the Board of Revenue conveyed vide Memo. No. 1169‑66/1854 dated 7‑6‑1966, as the Reclamation Officer had reported that the allottee had reclaimed area to the extent of 63.78% as against the requisite percentage of 80%. The case of the petitioner was that he by the time of hearing of the matter by the Collector had in fact reclaimed more than 80% of the land. This aspect of the matter was not gone into and ultimately order was passed cancelling the lot as another Memo dated 16‑9‑1967 of the Board of Revenue had directed that the position as obtaining at the time of issuance of the aforementioned letter be taken into account. The order dated 20‑12‑1967 was unsuccessfully appealed against. The appeal was dismissed by the learned Commissioner vide order dated 14‑5‑1968. The revision before the learned Member, Board of Revenue also failed vide order dated 13‑2‑1969. All these orders were then assailed in this Court by filing constitution petition.

2. The position taken before this Court was that the position as obtaining at the time of hearing by the Collector should have been noticed as was directed by the learned Commissioner in cases of similar nature. In this connection reliance was placed on the orders of the learned Commissioner Sargodha Division dated 8‑2‑1967 and 17‑9‑1968. In one. of these orders, it was observed that "it would be more appropriate if fresh reports were called for before passing the impugned order. I am, therefore, inclined to accept the contention taken by the counsel for the appellants and remand the case for fresh decision". Moreover, default being rectifiable, the position obtaining could be noticed.

3. In view of the above there is force in the contention of the learned counsel that petitioner should have been given the same treatment as was done in case of similar grantees. The Halqa Patwar is present. He states that the land has been totally claimed and the petitioner has been in possession throughout. In these circumstances, it will be just and appropriate that the petitioner is granted the same treatment as was extended to other grantees mentioned in the order dated 28‑2‑1967.

4. For the reasons given above, the impugned orders cannot be sustained and are declared to have been passed without lawful authority. The matter thus stands remanded to the learned Collector, Jhang for fresh decision in accordance with law. Parties are left to bear their own costs. H.B.T./T‑65/L Order accordingly.