1993 PLP 201 (CLC)

Ch. Muhammad Rafique Khan for Respondents Nos.l and

2. Nemo for Respondent No.3. Date of hearing: 7th October, 1989. The facts necessary for the disposal of this petition are, that the land measuring 205 kanals and 9 marlas allotted to the petitioner in the year 1961, was allotted second time in the name of Subedar Ghulam Muhammad, respondent No.3, by the Border Area Allotment Committee, respondent No.l, in the year 1964. The petitioner, on coming to know of the second allotment. agitated the matter before the relevant authorities. Finally, the Settlement Commissioner (Lands) Border Cell, Lahore, respondent No.2, vide order dated 13‑8‑1975 upheld the second allotment observing, that the petitioner who was allotted the disputed land in the year 1961, did not take over its possession and that the land was thus allotted to the respondent in the year 1964 and that the petitioner did not agitate against the said order till 1973. This led to the filing of the present Constitution petition.

2. Learned counsel for the petitioner has challenged the aforementioned finding of the learned Settlement Commissioner (Lands) referring to a copy of Register Haqdaran Zameen (Annexure `B') and a copy of the Khasra Girdawari (Annexure `C'). These two documents show that the petitioner remained in possession of the land in question till 1974 when respondent No.3 obtained the possession on the basis of the second allotment made in his favour. The petitioner has thus successfully refuted the finding of the learned Settlement Commissioner (Lands) that the petitioner had not taken over the possession of the land after allotment in the year 1961. The second allotment was made in the year 1964 but possession pursuant thereto was not taken till 1974 and as such, there was no occasion for the petitioner to agitate against the said allotment especially when the said allotment was admittedly made without any notice to the petitioner and without cancelling the first allotment made in his favour.

3. Learned counsel for the Border Area Committee. however, submitted that the petitioner had committed the breach of the conditions of allotment as he had paid only two instalments. Learned counsel for the petitioner, on the other hand, submitted that even if the petitioner had paid two instalments for the said non‑payment the allotment could not be cancelled without providing an opportunity of hearing. In support of this submission, reliance was placed on para. 10 of West Pakistan Border Area Regulation, 1959. Para. 10 reads as under:‑ "The allotment shall be liable to be cancelled for breach of the conditions mentioned in this Schedule provided the allottee is given an opportunity of being heard before the allotment is cancelled." In view of above, the allotments made in the name of the petitioner could not be cancelled without providing an opportunity of hearing to the petitioner/allottee. Admittedly, neither any such hearing was provided nor even the first allotment was ever cancealled. Without cancelling the first allotment, no second allotment could be made in favour of respondent No.3. The allotment made in favour of respondent No.3, as such cannot be sustained. The order allotting the land in dispute to respondent No.3 as well as order dated 13th August, 1975 of the Settlement Commissioner (Lands) Punjab are, therefore, declared to have been made without lawful authority and hence of no legal effect. This petition, therefore, succeeds and is hereby accepted. There will be no order as to costs as respondent No.3 has not contested this petition. H.B.T./Q‑7/L Petition allowed.