2004 PLP 510 (YLR)

S. 13

Constitution of Pakistan (1973), Art.199

Constitutional petition-- Consolidation scheme

No one shall be condemned unheard

Failure to provide opportunity of hearing to all landowners-- Disposing of the matter on `executive side'

Consolidation scheme confirmed in the year 1995, was annulled by Board of Revenue in the year 2002

Grievance of the petitioners was that they had not been heard by the Board of Revenue before passing the order

Validity

Apart from well-entrenched and settled principles of natural justice that one should not be condemned unheard in a matter, likely to adversely affect his rights and interest, there was a specific provision in law i.e. S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960 on the subject-- All those persons who were likely to be affected by the order were to be given opportunity of hearing under proviso to S.13(4) of West Pakistan Consolidation of Holdings Ordinance, 1960

By denying adjournment and opportunity of hearing to the petitioners, the provisions of law and principles of natural justice were disregarded by Board of Revenue

Board had wrongly treated the case and disposed it of on `executive side' as the matter fell within the judicial realm-- Rights having so accrued in favour of the parties as a result of judicial determination by the appellate revisional forum could not be trampled on nor ignored through executive dispensation

Order passed by Board of Revenue was set aside and the matter was remanded to the Board for decision afresh after giving opportunity of hearing to all the parties

Petition was allowed accordingly. Ch. Muhammad Abdul Saleem for Petitioners. Iqbal Ahmad Khan and Akhtar Ali Kureshi, A.A.-G. for Respondents. Date of hearing: 3rd July, 2003 Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, memorandum dated 12-10-2002 issued by the learned Member (Consolidation), Board of Revenue, Punjab, Lahore, whereby he proceeded to annul the consolidated scheme of Chunian Otar. Tehsil Chunian, District Kasur which had admittedly been confirmed in the year 1995, has been assailed. The grievance inter alia of the petitioners herein is that while passing the order/the impugned memorandum, the petitioners and many other landowners were not heard in the matter.

2. The learned counsel for the respondents on the other hand contends that petitioner No. 1 who himself is an Advocate had appeared before the learned Member on 4-10-2002 when he filed Wakalatnama on behalf of rest of the petitioners. It is however quite candidly stated by him that he did make a request for adjournment on that date and was declined by the learned Member which culminated into passing of the impugned order.

3. Apart from the well-entrenched and settled principle of natural justice that no one should be condemned unheard in matter, likely to adversely affect his rights and interest, there is a specific provision in the law i.e. section 13 of Consolidation of Holdings Ordinance, 1960. Proviso to subsection (4) of section 13 of the Ordinance 'envisages that a reasonable opportunity of hearing is to be given to all those persons who are likely to be affected by the order. By denying adjournment and opportunity of hearing to the petitioners, the above provision of law and the principle of natural justice was disregarded by respondent No.1 in the matter. He was also wrong in treating the case and disposing it of on "executive side" as the matter fell within the judicial realm inasmuch as per clause (xii) of the impugned memorandum itself as many as 125 appeals/revisions had been filed qua the scheme out of which 105 had already been decided. The rights so having accrued in favour of such parties, as a result of judicial determination by the appellate/revisional forum, could not be trampled nor denuded through executive dispensation. The order thus on both these counts, is unsustainable in law. It is declared so as of no legal effect. The result however would be that the matter will be deemed pending before the Member (Consolidation), Board of Revenue, Punjab, Lahore who would hear and decide the same judicially by affording opportunity of hearing to all concerned who are likely to be affected by the result of the same. Let the petitioners and the respondents who are represented before this Court, cause their presence before the learned Member on 30-7-2003. Needless to reiterate that the presence of other owners in the estate will also be secured by the learned Member before passing any order in the matter. The writ petition is accordingly accepted to the extent indicated and observations made above. No order as to, costs. M.H./S-699/L Case remanded.