1984 PLP 2955 (CLC)

(a) Colonization of Government Lands (Pupjab) Act (V of 1912) ‑‑ Ss. 10(2) & 24‑Constitution of Pakistan (1962), Art. 98‑Allotment of land made by an authorised officer under provisions of Colonization of Government Lands (Punjab), Act, 1912 and under Tube‑well Scheme, for period of 20 years, on basis of condi tions contained in Notification No. 3837‑54/4107‑C, dated 21st October, 1954‑Possession of allotted land also delivered to allottees‑Collector under directions from Commissioner proceed ed to cancel such allotments of State land without any prior notice or any semblance of an enquiry in presence of affected persons on sole ground that notice under S. 24, Colonization of Government Lands (Punjab) Act, 1912 was not necessary‑Held, Collector was required to have acted in accordance with principles of natural justice‑Persons sought to be effected must at least would have been made aware of nature of allegations against them and should have been given a fair opportunity to put forward their own cases before any order adverse to their interests could be passed- Order of Collector, therefore, was passed in gross violation of rules of natural justice and allottee were condemned unheard, for they had been made to loss rights in allotted land of whatever nature they were without having been heard‑Order of Collector was declared to be without lawful authority and set aside. Province of East Pakistan v. Noor Ahmad and others P L D 1964 S C 451; Commissioner of Income‑tax East Pakistan v. Fazal‑ur‑Rehman P L D 1964 S C 410 ; University of Dacca v. Zakir Ahmad P L D 1965 S C 19 ; Mst. Zinat Bibi and 3 others v. Commissioner, Lahore Division, Lahore and 3 others P L D 1976 Lah. 820 and Noora etc. v. Mst. Sahib Bibi etc. 1980 C L C 1617 ref. (b) Natural justice, principles of‑ ‑‑ Principles of natural justice deemed to be taken as part of every statute unless its application not expressly excluded -Order passed without notice and without hearing affected parties was void and no legal sanction could be attached to superstruc ture placed on such a void order. (c) Natural justice, principles of‑ ‑‑Decision of important matter without hearing concerned parties, by itself was arbitrary and unreasonable. Paul Jackson in his Book "Natural Justice" and John v. Rees (1969 2 W L R 1294, 1335) fol. This judgment will dispose of Writ Petitions Nos. 1184 of 1967 (Bahadur v. Collector, Jhang), 1185 of 1967 (Ghulam Muhammad v. Collec tor, Jhang), 1186/67 (Muhammad Ismail v. Collector, Jhang etc.), 1187/67 (Sultan Mahmood v. Collector, Jhang etc.), 1188/67 (Muhammad Khan v. Collector, Jhang etc.),1189/67 (Allah Ditta v. Collector, Jhang etc.), 1205/67 (Fateh Muhammad etc. v. Collector Jhang, etc.), 1234/67 (Ghulam Muhammad etc. v. Deputy Commissioner/Collector, Jhang etc.), 1236/67 (Gulzar Hussain Shah etc. v. Collector, Jhang etc.), 1283/67(Akbar Ali v. Collector of Jhang etc. 1313/67 (Jalal v. Collector, Jhang etc.), 1419/67 (Nabi Bakhsh etc. v. Collector, Jhang etc.). 1420/67 (Muhammad Hussain etc. v. Collector Jhang etc.), 1546/67 (Saghir Hussain v. Government of Pakistan), 1661/67 (Abdul Ghafoor etc. v. Deputy Commissioner (Collector) Jhang etc.), 506/68 (Muhammad Hanif etc. v. Government of West Pakistan etc.) 645/48 (Talib Hussain etc. Collector Jhang etc.) and 759/68 (Ahmad Bakhsh etc. v. Government of West Pakistan etc., as identical questions of fact and law arise for decision in all three writ petitions.

2. Briefly stated, the facts as gathered from the record in the above‑mentioned writ petittions are as under :‑ Writ Petition No. 1184 of 1967.‑On 4th February, 1966 Bahadur, petitioner, was allotted 15 acres of land in Chak Ghumnana, Tehsil and District Jhang for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with and subject to the terms and condi tions laid down in the Statement of Conditions, dated 21st October, 1954. Possession was also delivered to the allottee who is stated to have improved upon his land. Vide order, dated 1st July, 1967 the learned Collector proceeded to cancel the allotted land and ordered its resump tion. The ground for cancellation was that the original allotment was irregular as the same could not have been made in view of the letter, dated 6th May, 1965 of the Board of Revenue, West Pakistan. Writ Petition No. 1185 of 1967.‑Fifteen acres of land in Chak Ghum nana, Tehsil and District Jhang, was allotted to the petitioner for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with the Terms and Conditions in the Notification of Board of Revenue bear ing No. 3837‑54/4107‑C, dated 21st October, 1954 possession was also delivered to the allottee. The land was stated to be arid and banjar and was subsequently improved upon by petitioner. However, on 1st July, 1967 the Collector Jhang, proceeded to cancel the allotment and ordered its resumption on the ground of an irregularity attaching to the original allotment in view of the letter of Board of Revenue, dated 6th May, 1965. Writ Petition No. 1186 of 1967.‑Muhammad Ismail, petitioner, was allotted 15 acres of land in Chak Ghumnana, Tehsil and District Jhang, for a period of 20 years under the Tubewell Scheme Colombo Plan m accordance with terms and conditions laid down by the Board of Revenue in its Notification, dated 21st October, 1954. Possession of the allotted land was taken by the petitioner and thereafter it is stated that with labour and money, the allotted land was brought under cultivation. The petitioner is stated to have complied with all the terms and conditions of the allotment. However, surprisingly, the land was cancelled on 1st July, 1967 by the learned Collector, Jhang, without prior notice to the altottee. Writ Petition No. 1187 of 1967.‑On 10th May, 1965, 15 acres of land in Chak Ghumnana, Tehsil and District Jhang was allotted to Sultan Mahmood, petitioner, for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with the subject to the terms and conditions laid down in the Statement of Conditions, dated 21st October, 1954 embodied in the Notification of Board of Revenue bearing No. 3837‑54/4107‑C. Possession too was delivered to the allottee who is stated to have brought the land under cultivation and effected improve ments thereon. Vide order, dated 1st July, 1967 the learned Collector District Jhang, under a letter the Board of Revenue, dated 6th May, 1965 proceeded to order cancellation of the land allotted. Writ Petition No. 1188 of 1967.‑On 10th May, 1965 Muhammad Khan, petitioner, was given allotment of land measuring 15 acres in Chak Ghumnana, Tehsil and District Jhang, for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with and subject to the terms and conditions laid down in the Statement of Conditions, dated 21st October, 1954 embodied in the Notification of Board of Revenue, bearing No. 3837‑54/4107‑C. The petitioner was allowed to take posses sion of the land in question in the year 1965. The laud allotted to the petitioner was stated to by arid and banjar. The petitioner made it cultivable by leveling the same with tractors, installed electric motors for tubewells and improved the land considerably through use of modern agricultural equipment and fertilizers. Vide order, dated 1st July, 1967 without issu ing any notice to the allottee, the allotment was stated to have been cancelled. Writ Petition No. 1189 of 1967.‑Allah Ditta, petitioner, was allotted 15 acres of land on 23rd August, 1965 in Chak Ghumnana, Tehsil and District Jhang, for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with and subject to terms and conditions laid down in the Statement of Conditions embodied in the Board of Revenue's Notification No. 3837‑54/4107‑C. It is stated in the writ peti tion that a sum of Rs.30,000 had been spent by the allottee in making improvements on the land. However, without any prior notice. the learned Collector, Jhang, proceeded to cancel the allotment vide order, dated 1st July, 1967. Writ Petition No. 1205 of 1967.‑Allotment of land situated in Chak Kauriana, Tehsil and District Jhang, made on 26th November, 1965 by the Collector, Jhang, in favour of Fateh Muhammad and Amir, peti tioners, for a period of 20 years, under the Tube well Scheme Colombo Plan in accordance with and subject to the terms and conditions laid down in Statement of Conditions embodied in the Board of Revenue's Notification No. 3837‑54/4107‑C, dated 21st October, 1954 has been can celled vide order, dated 1st July, 1967 by the Collector, Jhang, on the ground of irregularity attaching to the original allotment. It is stated in the writ petition that under the allotment, possession was also delivered to the allottees. The allottees in compliance with the conditions of allot ment made improvements by spending a huge amount of money. The order of cancellation is stated to have been passed without any inquiry and a prior notice to the allottee. Writ Petition No. 1234 of 1967.‑Ghulam Muhammad and 11 others, petitioners, were allotted State land for a period of 20 years with effect from 20th November, 1965 and 30th June, 1966 on the basis of the State ment of Conditions embodied in Notification No. 3837‑54/4107‑C, dated 21st October, 1954. All the terms and conditions are alleged to have been complied with. However, learned Collector, vide his order, dated 1st July, 1967 proceeded to cancel the allotment made in favour of the petitioners on the basis of a letter of the Board of Revenue, dated 6th May, 1965 on the ground that under the aforesaid letter the land in dispute could not be allowed under the Tube well Scheme. Writ Petition No. 1236 of 1967.‑Gulzar Hussain Shah and Nazir Ahmad. petitioners, were allotted two lots of land under Tubewell Scheme on 23rd August, 1965 and 26th November, 1965 for a period of 20 years. The terms and conditions of allotment are contained in the Statement of Conditions issued by the Board of Revenue in its Notification No. 3837‑54/4107‑C. Possession was also delivered to the allottees who, in performance of their allotment duties, brought the land under cultivation which was previously arid and banjar. Vide order, dated 1st July, 1967 the Collector Jhang, respondent No. 1, has ordered resumption of the allotted land after canceling it. Writ Petition No. 1283 of 1967.‑Akbar Ali, Iftikhar Hussain, Ghulatn Mustafa and Muhammad Hanif, petitioners, were allotted State land measuring 15 acres each under the Tubewell Scheme on co‑operative basis on 26th December, 1965 for a period of 20 years under terms and conditions of lease contained in the Notification No. 4717‑C, dated 8th of September, 1952 issued by Governor of the former Punjab in exercise of powers under subsection (2) of section 10 of the Colonization of Govern ment Lands (Punjab) Act, 1912. Possession of the allotted land was delivered to the petitioners. Major portion of the land allotted was banjar which was brought under cultivation by the petitioners with lot of expenses and hard labour. In this process of bringing the land under cultivation, the petitioners spent various amounts. However, on 1st June, 1967 the learned Collector proceeded to cancel their allotment. Writ Petition No. 1313 of 1967.‑‑On 14th December, 1965 Jalal Din, petitioner, was allotted land measuring 15 acres, situated in Chak Ghumnana, Tehsil and District Jhang, for a period of 20 years by Col lector, District Jhang, under the Tubewell Scheme Colombo Plan. Possession was delivered to the allotee who is stated to have improved upon its quality by making it cultivable through use of tractors and instal lation of electric motors for tube‑wells and improved the land consider ably by use of modern agricultural equipment and fertilizers. In this process a sum of Rs.10,000 is stated to have been invested by the peti tioner. Without prior notice, the learned Collector on 1st July, 1967 proceeded to cancel the allotment on the ground that the same could not have been made under letter, dated 6th May, 1965 issued by the Board of Revenue. Writ Petition No. 1419 of 1967.‑Nabi Bakhsh, petitioner, was allot ted land on 4th February, 1.964 for a period of 20 years in Chak Kuriana, Tehsil and District Jhang under Tubewell Scheme Colombo Plan by the Collector. Possession was also delivered. It is stated in the writ petition that the petitioner effected improvements on the allotted land acting under its terms and conditions. However, the learned Collector without issuing any notice, vide order, dated 1st July, 1967 acting under the letter of the Board of Revenue, proceeded to order cancellation of the land. Writ Petition No. 1420 of 1967.‑Muhammad Hussain and Muhammad Ilyas, petitioners, were allotted State land for a period of 20 years under Tubewell Scheme Colombo Plan in Chak Kuriana, District Jhang, on 4th February, 1966 by the Collector. Possession too was delivered in pursuance to the allotment order. It is stated in the writ petition that a sum of Rs.30,000 had been spent by the petitioners in improvement made upon the land by making it cultivable. Without any notice, the Collector, Jhang, proceeded to order cancellation on 17th July, 1967 on the basis of certain irregularities attaching to the allotment on the basis of a letter of Board of Revenue issued on 6th May, 1965. Writ Petition No. 1546 of 1967.‑Land measuring 120 kanals in Khasra No. 1343‑Min and 1295 Min in village Ghumnana, Tehsil and District 1hang, was allotted by the Collector, on 10th May, 1965 under the provisions of Colonization of Government Land (Punjab) Act, 1912, to the petitioner. The possession of the land was also delivered to the petitioner on 17th May, 1965. The land in question was un-commanded. It is stated in the writ petition that the petitioner had to sink his own tubewell and spent a huge amount on its installation. The quality of land allotted is stated to have improved as the result of installation of the tubewell. Before expiry of 20 years for which the allotment was to continue, the Collector, vide his order, dated 1st July, 1967 ordered resumption without any prior notice. Writ Petition No. 1661 of 1967 :‑The petitioners were allotted land in Chak Kuriana, Tehsil and District Jhnag, for a period of 20 years under the Tubewell Scheme on co‑operative basis in accordance with the terms and conditions laid down in the Statement of Conditions, dated 21st October, 1954, on 4th November, 1965 and 30th June, 1966. The land is stated to have been improved upon by the petitioners. Vide order, dated 1st July, 1967, learned Collector, Jhang, cancelled the allotment on the ground that the original allotment under Tubewell Scheme on co‑operative basis was irregular in view of letter No. 8954 64‑1298‑0 (G)‑1, dated 6th May, 1965. The petitioners have filed the present writ petition for seeking the declaration that the order, dated 1st July, 1967 passed by the Collector is null and void. Writ Petition No. 506 of 1968.‑Muhammad Hanif etc. petitioners, were allotted land measuring 240 Kanals in Khasra Nos. 1293 and 1295 in village Ghumnana Tehsil and District Jhang by the Collector of the District vide order, dated 10th May, 1965 under the provisions of the Colonization of Government (Punjab) Act, 1912. The possession of the land was delivered to the petitioners on 17th May, 1965. It is stated in the writ petition that after the allotment and delivery of possession, the petitioners improved upon the allotted land by spending labour and amount therein. Vide order, dated 1st July, 1967, learned Collec tor, Jhang cancelled the allotment and ordered its resumption in accor dance with the direction given by the learned Commissioner, Sargodha Division, Sargodha which decision in turn was based on letter No. 8977/ 64‑1298‑C (G) 1, dated 6th May, 1965 of the Board of Revenue. It was stated in the order of the Collector that the allotment made to the petitioners under the Tubewell Scheme on co‑operative basis was patently irregular. In view of this irregularity attaching to the allotment of the land in favour of the petitioners, the learned Collector proceeded to order cancellation forthwith of the land allotted. The petitioners who felt aggrieved by the. above stated order of the Collector, District Jhang, filed writ petition in this Court under its constitutional jurisdiction to get the order, dated 1st July, 1967 quashed after being declared to have been passed without lawful authority. Writ Petition No. 645 of 1968.‑Talib Hussain, petitioner, was allotted land in Chak Ghumnana, Tehsil and District Jhang for a period of 20 years under the Tubewell Scheme Colombo Plan in accordance with the terms and conditions by the Collector, Jhang on 23rd August, 196j. Possession was also delivered to the allottee. Thereafter, it is stated in the writ petition that the petitioner by spending a huge amount impro ved upon the quality of land allotted to him and made it cultivable. However, on 1st July, 1967, the learned Collector, Jhang, proceeded to cancel the allotment and ordered its resumption on the ground that the original allotment was irregular in view of the letter of Board of Revenue, dated 6th May, 1965. Writ Petition No. 759 of 1968.‑Ahmad Bakhsh petitioner was allot ted land measuring 120 Kanals in Khasra No. 1470‑Min Shumali in Chak Ghumnana, Tehsil and District Jhang, vide order of the Collector, dated 5th February, 1966 under the Colombo Plan (Tubewell) Scheme. Posses sion was also delivered under the allotment. Vide order, dated 1st July, 1967 the Collector, District Jhang proceeded to cancel the allotment on the ground that the same could not have been allotted in view of the letter of the Board of Revenue on 8th May, 1965. 3. 1 have heard learned counsel appearing for the petitioners and Mr. Farooq Baidar, learned Assistant Advocate‑General who entered appearance on behalf of the respondents. The various writ petitions above referred to were admitted about 17 years ago and status quo was ordered to be maintained on 21st March, 1984. Mr. Farooq Baidar, learned A.A.‑G. asked for time to seek instructions from the authorities as to the fate of the present petitions. The land was allotted for a period of 20 years which period in normal course was going to expire within 2/3 years. In view of this, the case was adjourned to third week of April, 1984 to enable the learned Assistant Advocate‑General to seek further ins tructions from the Department. However, when on 17th April, 1984 the matter could not be finalized, request for further adjournment was made by the learned Assistant Advocate‑General. On 28th April, 1984 the case was finally adjourned to 2nd May, 1984. The learned A.A.‑G. appearing for the respondents in all the writ petitions was directed by the Court to seek instructions finally from the authorities. However, on 2nd May, 1984 the learned A.A.G. once again requested for time. Since the matter pertained to the year 1966‑67, further adjournment of the writ petitions was not considered appropriate and consequently, learned counsel for the petitioners and the learned Assistant Advocate‑General have been heard.

4. With the assistance of the learned counsel appearing for both the parties, I have perused the record of each writ petition. Learned counsel for the petitioners have contended that the allotment of State land was made in favour of the petitioners by the Collector under Tubewell Scheme, for a period of 20 years on the basis of conditions contained in Notification No. 3837‑54/4107‑C, dated 21st October, 1954. Possession of the allotted land was also delivered to the allottees. Learned Collector, Jhang acting under a direction of the Commissioner, Sargodha Division, Sargodha, proceeded to cancel the allotment of State Lands made under the above Scheme without issuing any notice to the petitioners/allottees. It has been contended that case of any alleged basic irregularity attaching to their allotments which could have formed the basis for resumption of the allotment, the Collector was bound under the law to issue notices to the allottees and after affording them reasonable opportunity of hearing could proceed to make any order. Learned counsel have contended that any adverse order detrimental to the interest of the allottees could not have been passed without holding an inquiry in which the allottees to be associated. Whether or not, the basic allotment suffered from any defect was not within the knowledge of the allottees. The allotment was made by an authorised officer under the provisions of the Colonization of Government Land Act, 1912. Possession was also delivered to the allottees and thereafter the various allottees are stated to have brought the land under cultivation in accordance with the terms and conditions of the allotment. Obviously, this process must have involved expense and labour by the allottees. They could not be deprived of their valuable rights in the allotment of land by a unilateral order of the Collector with out any notice or enquiry. Learned counsel have contended that the allottees were entitled to a notice under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 before the allotment could be cancelled‑and resumption ordered by the Collector. The order, dated 1st July, 1967 passed by the Collector depriving the allottees of their lands offends the basic elementary principle of natural justice under which no person can be condemned unheard. Reliance is placed on the cases of Province of East Pakistan v. Noor Ahmad and others (PLD1964SC451), Commissioner of Income‑tax, East Pakistan v. Fazalur Rehman (PLD1964SC410), University of Dacca v. Zakir Ahmad (P L D 1965 S C 19), Mst. Zinat Bibi and 3 others v. Commissioner, Lahore Division, Lahore and 3 others (P L D 1976 Lah. 820) and Noora etc.'v. Mst. Sahib Bibi etc. (1980 C L C 1617) By an Omnibus order, dated 1st July, 1967, the learned Collector, Jhang has cancelled the allotments of 67 persons without any prior notice or any semblance of an inquiry in the presence of affected persons on the sole ground that notice under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 is not necessary. By this order, the interests of the allottees have been seriously affected. The least that was required of the Collector was that he should have acted in accordance with the principles of natural justice which by now, in view of the law declared by the superior Courts of this country, are deemed to have become part of every Statute unless its application has been expressly excluded. It is by now well settled on the basis of along line of authorities that an order passed without notice and without hearing the affected parties is void and no legal sanction attaches to the superstructure placed on such a void order. The general consensus of judicial opinion seems to be that in order to ensure elementary and essential principles of fairness, the person sought to be affected must at least be made aware of the nature of allega tions against him and that he should be given a fair opportunity to put forward his own case before any order adverse to his interests could be passed. In the present case, the Collector acting under a direction issued by the Commissioner of the Division has proceeded to pass the order of cancellation without any notice to the affected persons. This is obviously in gross violation of the Rules of natural justice. The allottees have been condemned unheard, for they have been made to lose rights in the allotted land of whatever nature they are without having been heard.

5. Learned counsel further contended that the order, dated 1st June, 1967 has been passed under the direction of the learned Commissioner of the Division. The Collector has not independently examined the cases of various allottees on their own merits. The order has been described by the learned counsel to by a dictated order. The learned Assistant Advocate- General has half‑heartedly defended the action of the Collector in making the impugned order without notice. However. when faced with the sub missions advanced on behalf of the petitioners relating to the violation of the rules of natural justice, on the ground that no one can be condemned unheard, learned Assistant Advocate‑General could not give a satisfactory reply.

6. A perusal of the order passed by learned Collector Jhang makes it crystal clear that no opportunity was given to the allottees before their allotments were cancelled so much so, admittedly, no notice had been issued. The order, therefore, being in violation of the rule of naturals justice is absolutely void and cannot be allowed to stand. The order, dated 1st July, 1967 smacks of arbitrariness. The allottees have been made to suffer by the act of the allotting authority. Once an allotment had been made in their favour, they acquire certain rights therein. They could not be deprived of the allottees rights without any notice having been issued asking them to explain the grounds on which action is propo sed to be taken against. them. Without hearing how could facts be established? To decide without hearing, important matter is in itself arbit rary and unreasonable. Paul Jackson in his Book "Natural Justice" has quoted following passage from John v. Rees ((1969) 2 W L R 1294, 1335). "When something is obvious` (it may be said), `why force everybody to go through the tiresome waste of time involved in framing char ges and giving an opportunity to be heard ? The result is obvious from the start. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not ; of unanswerable charges which, in the event, were completely answered ; of inexpli cable conduct which was fully explained ; of fixed and unalterable determinations that, by, discussion, suffered a change. Now are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.',' As the learned Collector has acted contrary to the elementary Rules of natural justice and has not afforded opportunity of hearing to the petitioners, the resultant order is absolutely void and without jurisdiction.

7. Consequently, accepting the above writ petitions, the order, dated 1st July, 1967 is set aside and is declared to have been passed without lawful authority and of no legal effect. As the order, dated 1st July, 1967 has beets set aside, on the principle of violation of Rules of natural justice only this order shall not debar the authorities to proceed in the matter in accordance with law after issuance of a notice to the affected al lottees.

8. In the circumstances of the case, parties are directed to bear their costs. M.Z. M. Petition accepted.