2002 PLP 214 (CLC)

3. Further, the learned counsel appearing for the Settlement Department is unable to show what fraud or misrepresentation the petitioners have committed to 'warrant initiation of proceedings against them. The powers under sections 10 and 11 are to be used very sparingly and only in case where the Settlement Authorities are satisfied after examination of record that they have been defrauded, it is highly improper to reopen a case under those provisions merely in the hope of detecting a fraud in the course of the proceedings.

4. For the reasons given above, I am satisfied that the proceedings now pending against the petitioners under sections 10 and 11 of the Land Settlement Act in the Court of respondent No.2 are without lawful authority which are accordingly declared as such and quashed. The parties may, however, bear their own costs." It appears that Khan Bahadar, respondent No.2, had submitted an application before the Deputy Commissioner with powers of Additional Settlement Commissioner (Land) on 14‑2‑1974 under sections 10 and 11 of the Displaced Persons (Land) Settlement Act, 1958 qua her allotment which petition was accepted by the Additional Commissioner (General)/Additional Settlement and Rehabilitation Commissioner (Land), Bahawalpur on 15‑3‑1977. He purported to cancel the allotment of the petitioner. That order was challenged through Writ Petition No.48/R of 1977, which was disposed of as a result of the consent arrangement between the parties that the matter be remanded to the Chief Settlement Commissioner/Board of Revenue, Punjab, Lahore for re-deciding the case allowing a reasonable opportunity to the parties who will be at liberty to raise all contentions open to them under the law. It is in pursuance thereof that the impugned order has been passed.

3. The learned counsel for the petitioner contends that the allotment of the petitioner was valid in law which has been cancelled by relying upon the material which never formed part of the case as evidence on record. It is contended that respondent No. l has relied upon the material including Jamabandi of 1957‑58 which was produced by respondent No.2 along with his written arguments after the hearing had been concluded. According to him, the petitioner was condemned unheard who had no opportunity of rebutting such material. Reliance is placed on Iftikhar Hussain anti others v. Mian Irshad Ali and others 1987 SCMR 2059 that the allotment of garden in favour of the petitioner was valid in law.

4. Learned counsel for respondent No. 2 contends that the allotment was obtained by illegal means inasmuch as petitioner was not in possession of the garden/land for 5 years in terms of 2nd proviso to clause (24) of the Supplementary Scheme No‑

2. He supports the order passed by respondent No.1 and contends that fraud vitiates any proceedings and order.

5. The relevant and, operative part of the order passed by the respondent No.1 is as follows:‑‑

"The respondents have not been able to rebut the allegation that their claim form was not validly transferred from Rahimyar Khan to Bahawalpur. Assuming that these were transferred validly, without prejudice to the outcome of the case, even these allotments said to have been made in 1956 were not reflected in the Khasra Girdawari for a period of five years and also in the Jamabandi of 1957-58. The entry in the Jamabandi was made in 1962 for the first time and that does not prove that the respondents were in possession of the land allotted to them. Dr. Ahmad Jamal Ullah by virtue of his position as Deputy Director, Agriculture and as Member of Garden Allotment Committee after his transfer to Bahawalpur in 1962 seems to have managed the allotment of the property under dispute. Since the allottees did not have a claim for urban gardens and have not been found to be in possession of the allotted area five years prior to 1960, therefore, the concession contained in the Chief Settlement Commissioner's Memo. No.975/R‑60‑IRP, dated 20‑2‑1960 could not have been allowed to them. These allotments smack of fraud and are suggestive of using official position to one's own advantage." The grievance of the petitioner qua the same couched in paragraph No.8 of the writ petition is as under:‑‑ "

8. That the petitioner adduced documentary evidence in this case by tendering number of documents i.e. Jamabandi for the year 1961/62 etc. as is evident from the application, dated 5‑7‑1984, copy of which is attached as Annexure 'U'. No evidence was led by the Informer against her about alleged fraud or on the point of her temporary allotment and her 5 years continuous possession of suit land. Onus was on the respondent No.2 who miserably failed. Later on dramatically under guise of filing written arguments on 1‑6‑1991 he attached copy of alleged Jamabandi for 1957‑58 and bogus copy of Khasra Girdawari as Annexures ' D' and ' E' to the said written arguments on 1/2‑6‑1991 behind the back of the petitioner and without any notice to her and without any opportunity to rebut the said documents. Copies of the said inadmissible and bogus documents are attached as Annexures 'V' and `W'. The case had long been closed for arguments and on 1‑6‑1991 the respondent No.2 had no right to place any new document in such secret manner. Vide order, dated 26‑9‑1984, the date 28‑9‑1984 was the last date to file any document. Copy of the said written arguments and order are attached (Annexures `W/1 and W/2' respectively). Sawal form is also attached as Annexure `W/3')." No written statement has been filed by respondent No.2 to controvert the above assertion made in the writ petition whereas the reply in the comments by respondent No.1 is evasive.

6. The basis for the order passed by respondent No.1 is the Jamabandi of 1957‑58 which was produced by respondent No.2 along with his written arguments whereafter the case was decided. It is the grievance of the petitioner that she had relied upon the jamabandi of 1961‑62 in which she was shown in possession of the property in dispute but by ignoring the same reliance was placed on a Jamabandi of 1957‑58 which was never confronted to the petitioner nor had come on record as piece of evidence during the proceedings of the case. The grievance so made is not without merit and justification inasmuch as the petitioner was entitled to be aware of the material likely to be made basis for any adverse finding. The petitioner has a legitimate grievance that an adverse order prejudicial to her rights and interest has been passed by respondent No‑1 without affording her opportunity for explaining/ rebutting the above material. In Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 the under-mentioned passages taken from standard treatises on Administrative Law were quoted with approval:‑‑ "The general principle is that an ad-judicatory body is to decide the matter on the basis of materials placed before it in the course of proceedings. It cannot take extraneous matters into consideration; it can not bas its decision on any material unless the person against whom it is sought to be utilized has been given an opportunity to rebut or explain the same. If the adjudicator is going to rely on any material evidence or document for basin his decision against the individual, then the same must be placed before him for his comments and rebuttal. It is regarded as a fundamental principle of natural justice that no materials should relied on against a party without giving him an opportunity of explaining the same. The right to know the materials on which the authority is gin to take a decision is part of the right to defend oneself. The principle can be seen operating in several judicial pronouncements where non‑disclosure of the evidence to the affected party has been held to be fatal to the hearing proceedings." (Underlined by me for its relevance). The principle so enunciated stems from the basic principle of natural justice as to fair opportunity of hearing between the parties. In Administrative Law by H.W.R. Wade and C.F. Forsyth, Eighth Edition, 2000 at page 506, the following passage has been quoted from Lord Denning:‑‑ "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what has been given and what statements have been made him; and then he must be given a fair opportunity to correct or contradict them." In the present case, the grievance of the petitioner that finding has been recorded by respondent No. 1 against her on the basis of material which was brought on record on conclusion of the proceedings and she had no opportunity of rebutting the same, is not without substance. The right to be apprised of the adverse material and right to rebut and controvert the same has been denied to her. The adjudication so made by respondent No. 1 does not fulfill the requirements of and is in negation of the principles of natural justice. For recording a finding' as to the commission of fraud, there has to be a clear basis for the same and definite finding in clear terms ought to have been recorded by affording full opportunity to the petitioner. Keeping in view the constraints of writ jurisdiction, it is not proper for this Court to embark upon an inquiry into factual realm or appreciation of the evidence. The course of appropriately open in the circumstances is to declare the order, dated 19‑10‑1991 as illegal and without lawful authority and to remit the matter to the notified officer for deciding the same fresh after affording due opportunity of hearing to both the parties. This petition is accepted in the above terms. No order as to costs. Q.M.H./M.A.K./R‑81/L Petition allowed.