1998 PLP 1607 (CLC)

Malik Muhammad Sadiq Channar for Respondent No.4 Date of hearing: 19th March, 1998 This writ petition is directed against the order, dated 9‑6‑1985 of Member (Colonies), Board of Revenue, Punjab, Lahore, whereby the petitioners' four revision petitions were dismissed.

2. The facts, in brief, are that the petitioners applied for the conferment of proprietary rights for the land in dispute, which was under the lease of petitioners' father, under Notification, dated 3‑9‑1979 in Mauza Inayatpur, Tehsil Ahmadpur East. The petitioners' applications were rejected by the Assistant Commissioner/Collector, Ahmadpur East, on 13‑3‑1983 on the basis of report of Tehsildar, without, issuing any notice to the petitioners and giving them any opportunity of being heard. The petitioners' appeals were dismissed by Additional Commissioner (Revenue), Bahawalpur Division, Bahawalpur, on 1‑4‑1985 as being barred by time by not accepting the petitioners' plea of ignorance of the date of decision and not considering the fact that the petitioners were behind the bar in a case under section 307, P.P.C. and the revision petitions as mentioned above, were dismissed by the Member (Colonies), Board of Revenue, Punjab, Lahore, on 9‑6‑1985. Hence, this Constitutional petition. Member (Colonies), Board of. Revenue, Punjab, Lahore, while dismissing the petitioners' revision petitions on merits has observed that the petitioners being sub‑tenants have no claim over the land. Learned counsel for the petitioners has referred to sub‑paragraph "fourthly" of para. 13 of the Notification, dated 3‑9‑1979, according to which the cultivating sub‑tenants under a lessee are eligible for the conferment of proprietary rights. Reliance in this regard is placed on Rustam and another v. Government of the Punjab (1984 SCMR 274), wherein it has been held that sub‑tenants are entitled to transfer, if qualified and if no one else is eligible to obtain the same under sub‑paras. firstly, secondly and thirdly of para. 13 of Notification, dated 3‑9‑1979. Reliance is also placed on Province of Punjab through Collector, Sahiwal v. Jan Muhammad and another (1991 SCMR 182), Member (Colonies), Board of Revenue, Punjab, Lahore and others v. Ramzan Shah and another (1992 SCMR 1163), Bashir Ahmad v. Member (Colonies), Board of Revenue, Punjab, Lahore and 2 others (1995 SCMR 1058) and Mushtaq Ahmad and others v. The State and others (1995 MLD 1005). Lastly, it is submitted that the order of Collector is coram non judice, as the same was passed behind the back of the petitioners without giving them opportunity of being heard. Reliance in this respect is placed on Ghulam Muhammad and others v. Administrator, TDA and another (1991 CLC 1417).

4. On the other hand, while opposing this petition, the learned counsel for respondents Nos.l to 3 has submitted that as the lessee under whom the petitioners were sub‑tenants did not fulfil the terms and conditions of his lease and did not make the land under his lease cultivable, therefore, the petitioners, who are sons of the lessee, are not eligible for the conferment of proprietary rights.

5. Learned counsel appearing on behalf of respondent No.4, the informant, has submitted that the land being sought by the petitioners was originally allotted to the petitioners' father Noor Muhammad under ten years' Temporary Cultivation Scheme for the period from 1970 to 1979 and he did not comply with the terms and conditions and did not make the land cultivable and Noor Muhammad applied for the conferment of proprietary rights in 1979, his application was marked to Tehsildar, who wrote a detailed report that Noor Muhammad was not eligible for the conferment of proprietary rights as 90 per cent. of the land under lease of Noor Muhammad was lying uncultivable, therefore, the application of Noor Muhammad was dismissed on 2‑4‑1981 and the petitioners remained silent. They did not apply in time and are not entitled to conferment of proprietary rights.

6. The record, however, shows that petitioners applied for the purchase of proprietary rights in time on 23‑12‑1979.

7. Prima facie, the petitioners being sub‑tenants seem to be eligible to the conferment of proprietary rights under the abovesaid Notification of 1979 and they applied for the conferment of proprietary rights not as the legal heirs of their deceased father but in their capacity of sub‑tenants of the land in their occupation but without making any comments on the merits, I am inclined to set aside the orders of the forums below on the ground that the petitioners were not granted any opportunity of being heard by the Collector while passing the impugned order, dated 13‑3‑1983/16‑3‑1983 and, thus, being violative of the principle of audi alteram partem, the same is illegal and void and consequently all subsequent orders also stand washed away. In view of the above discussion, this petition is accepted. . The orders, dated 9‑6‑1985, 1‑4‑1985 and 13‑3‑1983/16‑3‑1983 passed by Member (Colonies), Board of Revenue, Punjab, Lahore, Additional Commissioner (Revenue), Bahawalpur Division, Bahawalpur, and Assistant Commissioner/Collector, Ahmadpur East, respectively, are set aside and the petitioners' applications shall be deemed to be pending before the Assistant Commissioner/ Collector, Ahmadpur East, who shall decide the same afresh in accordance with law keeping in view the law referred to above 'and observations made by this Court. A.A./A‑252/L Case remanded