1997 PLP 1460 (CLC)

Through this petition the petitioner seeks quashment of the order dated 3‑3‑1982 and 18‑5‑1982 passed by respondent No.2, whereby out of his total land measuring 13 Kanals, 5 Marlas, which was gifted to him by his father through a Tamleek Nama, a piece of land measuring 5 Kanals, 9 Marlas was adjusted in favour of respondent No.3.

2. Notice was issued to the respondents as back as in the year 1985. Respondents Nos. l and 2 have placed a letter on file that they do not want to contest the present writ petition. Respondent No.3 in spite of service had not appeared in Court, therefore, she was proceeded against ex pane vide order dated 4‑12‑1995. .

3. The petitioner himself has submitted written arguments in support of his contentions, wherein it is stated that he was not provided any opportunity of hearing, while the mutation of his land was sanctioned in favour of respondent No.3 regarding the land measuring 5 Kanals, 9 Marlas, situated in Rectangular No.33/37, Killa No. 1/2, as depicts further from the Survey Map Annexure‑D.

4. The case of the petitioner is that the holding of the petitioner's father was less than 15 Acres, therefore, the provision of Thal Development Authority Act, 1949 do not apply in this case and his land could not be acquired, therefore, the orders passed by respondent No. 2 are void and of no legal effect.

5. Respondents Nos.l and 2 have not contested the present writ petition. Respondent No.3, in whose favour the disputed land had been mutated, has been proceeded against ex parte as in spite of service she has not appeared in Court to oppose the writ petition.

6. The averments of the petition have not been rebutted by the respondents. The assertion of the petitioner is supported by the documents placed on record. Admittedly, the land in the name of the petitioner's father was less than 15 Acres. Section 21 of the Thal Development Act, 1949 provides as under:‑ "Framing of a scheme for development of any local area or part thereof placed a limitation on powers of Authority in matter of acquisition of land which was less than 15 Acres and created a vested right against acquisition. "

7. In this regard the petitioner has relied upon the judgment reported as Hakim Abdur Rahim Khan and others v. West Pakistan Government Through the Secretary, Resettlement and Claims, Lahore and others (PLD 1986 SC 96), wherein it is held that "Benefit of slab system as contained in section 21(2) (iii) & (iv), held, created a vested right against acquisition in favour of land owners of which they could not be divested of. Authority while calculating was bound to give effect to such benefit." 7‑A. In the present case the petitioner has been deprived from the land measuring 5 Kanals, 9 Marlas in an arbitrary manner without providing him, opportunity of hearing and against the law as laid down in section 21 of the Thal Development Act, 1949 and the judgment referred to above.

8. For the reasons stated above the impugned orders dated 3‑3‑1982 'and 18‑5‑1982 passed by respondent No.2 are declared illegal, void and the same are hereby quashed. Respondent No.2 is accordingly directed to restore the land measuring 5 Kanals, 9 Marlas in favour of the petitioner, which was given to him by way of Tamleek Nama by his father. This petition is accordingly allowed A with no order as to costs. A.A./A‑137/L Petition accepted.