P L D 1967 Lahore 173 (PLP)

INAMULLAH KHAN, C. J.‑This is a Letters Patent Appeal against the order of a learned Single Judge, dated the 29th of February 1960. The dispute relates to an area of two acres and 21 ghantas which is claimed to be a garden. The allotment of this area was confirmed in favour of the respondent on 23‑11‑1957. On 17‑9‑1958, without notice to him (respondent) the allotment of the said area was cancelled by the Rehabilitation Commissioner, Khairpur: This order was challenged by the respondent by means of a writ petition, before the learned' Single Judge, who set aside the said order on the ground that the allotment order, dated 23‑11‑1957, could not be upset without notice to him (the respondent before us).

2. The main ground on which the allotment in favour of the respondent was set aside by the R. C., was that the instructions dated 30‑4‑58 (Annexure "A"), which fixed the priority amongst various claimants will not be observed if allot ment is allowed to stand in the name of the respondent. It was further observed that in the instant case the respondent having not left any garden land in India was not entitled to a prefer ential claim over the appellants who had left garden land in India. The learned Single Judge did not accept this ground of the Rehabilitation Commissioner for setting aside the allotment order of 23‑11‑1957, and held that the instructions (dated 30‑4‑58) (Annexure "A") could not have been given retrospec tive effect. According to the learned Single Judge, the order, dated 23‑11‑1957, in favour of the respondent had already attained finality and could not be upset in the way in which it was done by the R. C.

3. Sheikh Aftab Hussain, learned Advocate for the appel lants raised two contentions before us. He contended in the first place that (a) there was already an instruction dated 23‑11‑1956, by the R. C., whereby the priority amongst the various claimants for allotment of garden land had been fixed and according to the said earlier instruction as well, the allot ment to the respondent was illegal; (b) in the second place, it was submitted that even if there was no instruction prior to 30‑4‑58, the instructions dated 30‑4‑58, required the Rehabilita tion Department to re‑open the case if the priorities for allot ment, as given in the said instructions, were not observed and that there was no illegality in issuing retrospective instructions of the present kind. We have heard the learned Advocate for the appellants at some length.

4. In the circumstances of this case, the first point that has to be determined is as to whether the order, dated 23‑11‑1957, allotting the garden land in favour of the respondent had attained finality. It is conceded by the learned Advocate for the appellants that no revision or appeal was filed by any one against the order, dated 23‑11‑1957. The R. C., it seems, of his own, set aside the allotment order in favour of the respondent, dated 23‑11‑1957, by his order, dated 17‑9‑1958, in keeping with the instructions issued on 30‑4‑

58. It is not disputed before us that the R. C., when he passed the order dated 17‑9‑1958, had not called upon the respondent to show cause why his allotment order, dated 23‑11‑1957, be not cancelled. In these circumstances, what has to be seen is as to what is the effect of section 15 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act). The relevant provision of that section is clause (3) which reads as:‑ "(3). A displaced person to whom any land has been allot ted by a Rehabilitation Authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1) shall all be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government: The admitted position is that the respondent was allotted this land under the Scheme as defined in clause (7) of section

2. Mr.Aftab Hussain, learned Advocate for the appellants, Mr. however, contended that this provision of the Act will not be applicable inasmuch as the R.C., by his order, dated 17‑9‑1958, set aside the allotment order in favour of the respondent before the promulgation of the Act which came into force on 23‑9‑1958. It is true that if the allotment order was set aside by a competent authority, before the promulgation of the Act, the respondent cannot take benefit of sub‑clause (3) of section l5 as reproduced above. We are of the view that the order, dated A 17‑9e19o8, having been passed without notice to the respondent, violated the principles of natural justice and was, therefore, in excess of the jurisdiction of the R. C. and was a nullity. For the proposition that an order which violates principles of natural justice is in excess of jurisdiction, reference can be made to Abdul Rehman Pasha v. C. S‑ & R. C. (P L D 1961 Lah. 12). The learned Advocate for the appellants in this connection submitted that in the circumstances of this case, there was no question of notice to the respondent. He submitted that it. Would have been futile to give notice to the respondent n view of the clear instructions dated 30‑4‑58, which could always be issued ex pane by the Rehabilitation Commissioner in his plenary jurisdiction. We do not agree. Assuming without deciding that arte, the point still remains such instructions could be issued ex perte the point still remaining that when these instructions were to be applied to the case of a particular allottee, he should have been heard by the R.C., because it is possible that he may have taken various pleas with regard to his own case. As for example (as was being suggested b regard learned counsel for the respondent) he may have taken the objection that on a true construction of these instructions, they were not retrospective in character, or that there was no jurisdiction to issue instructions of a retrospective type, or that Para. 6 of Chapter I of Part II of the Scheme as it stood on 18r3‑57, when West Pakistan Rehabilitation Settlement Scheme was originally promulgated, had become a part of the Scheme by virtue of having been adopted in Para. 4(f) of Part I of the Scheme and could not be changed by relying upon para. 23 of Part I of the Scheme which authorised the R. C.,‑only to issue orders consistent with the Scheme, or that the letter dated 30‑4‑1958, itself contemplated that it was merely a preliminary decision and according to its own wording a separate action was being taken or was still to be taken to amplify the Rehabilitation Settlement Scheme and that till the Scheme was actually amplified the letter had no binding effect. It is possible that after hearing the allottee or allottees concerned, the R.C., who was the officer concerned may not have made the instructions in question as retrospective or might have declared that the existing allotments were not to be disturbed or that the letter in question was in conflict with Para. 4 ( f ) of Part I of the Scheme which said that gardens of area less than three or four acres are not to be treated as gardens; (but were to be treated as simple agricultural while the letter in question purported to reverse that decision again include them in the category of gardens etc. etc. It will thus appear that in these circumstances it cannot be argued that it was not necessary for the R: C. to hear the opposite side while passing order, dated 17‑9‑1958.

5. As indicated earlier, the learned Advocate for the respondent has urged before us that the instructions issued by the R. C., were in violation of Para. 4(f ), Part I of the Scheme. It is not necessary for us to go into that question in view of our finding that the order, dated 17‑9‑1958 is in excess of the jurisdiction of the R.C., ashaving been passed without hearing the respondent. As the said order is a nullity, the result is that the allotment order, dated 23‑11‑1957, in favour of the respondent remained operative in the field and matured into an indefeasible permanent settlement under subsection (3) of section 15 of the Act.

6. For the reasons given above, we dismiss the appeal but there would be no order as to costs. K. M. A. Appeal dismissed.