1995SCMR735 (PLP)

MANZOOR HUSSAIN SIAL, J.‑‑‑This appeal by leave of this Court calls in question the validity of the order dated 22‑10‑1991, passed by the Lahore High Court (Multan Bench) whereby Writ Petition No. 400 of 1983, filed by the appellants was dismissed.

2. The facts in brief relevant for the disposal of this appeal are, that Muhammad Sharif, the predecessor‑in‑interest of the appellants on 16‑10‑1951 purchased under registered deed from one Gul Muhammad land measuring 427 Kanals situate in Moza, Lohanch, District Leiah. The vendor was a big landlord and owner of 20,273 Kanals of agricultural land in that revenue estate. Out of this land he sold to several persons including Muhammad Sharif some parcels of land from time to time. The Thal Development Authority also acquired major portion of his land through notifications issued under the provisions of the Thal Development Act and it was the land found returnable to him, which became available for being given to the vendees from him.

3. The appellants maintain that in the year 1954 the respondent No.2 accepted Muhammad Sharif as owner of the land, on the basis of the transaction of sale of 427 Kanals of land made by Gul Muhammad vendor in his favour on 16‑10‑1951. He determined the area to be acquired as 298 Kanals and 2 ,Marlas and returned 104 Kanals to Muhammad Sharif. The land so returned to him was adjusted/allotted in Chak No. 357‑A, TDA comprising Rectang9e No. 85, Killas Nos. 3 to 5 measuring 24 Kanals. A Fard Taqseem was also issued in respect of the land so allotted on 22‑3‑1954. The land was Banjar Oadim, which was made cultivable by Muhammad Sharif and after his demised by the appellants. They planted garden thereon and built residential houses by investing large amount of capital and labour. The appellants further maintain that in the year 1977 fresh proceedings were taken by respondent, No.2 and Gul Muhammad was held owner of 20,321 Kanals 17 Marlas out of which 15,204 Kanals of land was acquired and area measuring 5117 Kanals was shown returnable to him. These proceedings, it is claimed were taken behind the back of the vendees from Gul Muhammad.

4. The respondent No.2 on 16‑5‑1977, adjusted the entire returnable land to Gul Muhammad viz. 5117 Kanals 2 Marlas, in favour of first eight vendees from him and ignored the rest of vendees including Muhammad Sharif the predecessor‑in‑interest of the appellants. As the sale in favour of the appellants was shown at serial No.14, the entire returnable land stood exhausted after adjusting it in favour of first eight vendees from Gul Muhammad. On appeal, by the appellants, the Commissioner, Multan, vide order dated 12‑12‑1981, remanded the case to respondent No.2 for fresh decision. On 2‑3‑1983, the respondent No.2 passed ex pane order against the appellants and confirmed the land in dispute in favour of respondents Nos. 4 and 5 on the same day.

5. The appellants invoked 'the Constitutional jurisdiction of the High Court through Writ Petition No. 400/1993, which was, however, dismissed vide impugned order passed on 22‑10‑1991.

6. Leave to appeal in. this case was granted on 15‑6‑1992, by this Court, inter alia to consider, whether the principle of seniority in adjusting the claims of the vendees, followed in this case, was justified and covered by the provisions of relevant law and if this principle is indeed visualised by it, whether it violates the fundamental right of equal protection of the law guaranteed to all the citizens by Article 25 of the Constitution.

7. After hearing learned counsel for the parties and going through the documents on the file, we find substance in the argument advanced by learned counsel for the appellants that Muhammad Sharif, was allotted/adjusted land measuring 104 Kanals, comprising rectangle Nos.84 and 85 on 22‑3‑1954, as per Mutation No. 1154, which is apparent from copy of "Fard Taqseem", but the same was cancelled/ignored by respondent No.2 on 16‑5‑1977, while restarting adjustment proceedings, without notice to appellants. The appellants specially raised this contention in para. 7 of the Writ Petition, but the learned Single Judge of the Lahore High Court did not advert to this aspect of the case. Learned counsel for the respondents, could not successfully controvert the factum of the allotment of 104 Kanals of land to Muhammad Sharif, the predecessor‑in‑interest of the appellants and the cancellation thereof without notice to him. It is also true that the respondent No.2 gave no reasons in the ex parte order dated 2‑3‑1983, as to how the allotment of land equal to 104 Kanals made in favour of Muhammad Sharif was validity revoked. We have also noticed that the question as to whether the vendees of the land from Gul Muhammad, prior to notifications were to be treated as owners for the purpose of determining land returnable to them, has also been not attended to, in the impugned orders. Moreover, it is neither discernible from the impugned orders, nor has been pointed out by learned counsel for the respondents from the provisions of the relevant law, as to how the principle of seniority in adjusting the claims of the vendees was followed, when land of the vendor Gul Muhammad was acquired, not by one notification but by various notifications issued from time to time and pertaining to different parcels of land.

8. In these circumstances, we set aside the order dated 2‑3‑1983, of the respondent No.2. as also the order dated 22‑10‑1991, of the learned Lahore High Court, accept this appeal and remand the case to the respondent No.2 for fresh decision after providing opportunity of hearing to all the parties concerned. There shall, however, be no order as to costs. A.A./H‑194/S ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.