FATEH MUHAMMAD vs MUSHTAQ AHMAD AND 9 Other

ORDER

AKARAM ELAHEE CHAUHAN, J.-The dispute in this case is about an ihata bearing No. 126/1, situated in Chak No. 31E/GB, Tehsil Toba Tak Singh, District Faisalabad. The allotment of this was cancelled from the name of Fateh Muhammad son of Ali Bakhsh (hereinafter called the original allottee) the predecessor-in-interest of the respondents by means of Mutation No. 316 on 16-12-1954, on the alleged ground of non-payment of dues to the Government.

2. The original allottee filed an appeal but without any success as the same was dismissed by the learned Collector on the ground of limitation on 14-11-1959.

3. The original allottee then filed a revision which brought fruit and was accepted by the learned Commissioner on 26-12-1962, on the ground that the order cancelling the allotment of ihata from his name had been passed in violation of the statutory, provisions by not following the procedure laid down therein. According to the learned Commissioner, the cancellation order for the aforesaid reason was a nullity and of no legal effect.

4. The petitioner whose name is also Fateh Muhammad but who is son of Boota filed a revision petition which was accepted by the learned Member, Board of Revenue on 12-4-1963, The learned Member, Board of Revenueset aside the order of the Commissioner and restored that of the Collector, with the result that the cancellation of the ihata from the name of the original allottee was maintained.

5. The respondents at that stage filed a writ petition being W. P. No. 93/64, which was accepted by the High Court on 7-11-1974. The High Court declared the order of the learned Member, Board of Revenue as without lawful authority and restored the order of the Commissioner. The High Court held that while making an order for resumption of the allotment of the ihara from the name of the original allottee the statutory provisions of section 24 of the Colonization of Government Lands (Punjab) Act (V of 1912), were not followed, which required a statutory notice to be sent to the delin- -quent concerned before taking any action against him.

6. The present petitioner has come up in a petition for special leave to appeal against the same to this Court.

7. Learned counsel for the petitioner argued that the portion of the ihata in dispute had been allotted to his client on 25-7-1958, who deposited the sale price on 8-8-1958 and got the necessary registered document in his favour on 23-1-1959, where after he raised some construction over that portion. In these circumstances he submitted that the High Court was not justified in questioning the order of the learned Member, Board of Revenue. The plea has no merit. At the time when the petitioner got the document of sale registered in his favour from the department, the appeal of the original allottee was pending before the Collector and obviously any allotment made to the petitioner was subject to the result of that litigation. If the petitioner despite the knowledge of the appeal went ahead to raise any construction the faultentirely his own and it cannot be said that the petitioner altered his position due to any conduct and representation of the respondents concerned.

8. The next point argued was that the appeal of the original allottee before the Collector was hopelessly time-barred and in these circumstances the Commissioner or the High Court were not justified in giving the relief to him. The contention also has no force because once there had taken place a violation of section 24 of the Act and the statutory notice required therein had not been issued to the original allottee, before cancelling his allotment, then the order of cancellation was rightly held to be a nullity and void. Learned counsel submitted that the defect or failure to issue the requisite notice under section 24 stood cured by the subsequent finding of appeal, etc. By the originalallottee where he was heard by all subsequent authorities. The contention has no merit.

Subsequent hearing in cases of failure to issue a statutory notice cannot cure the inherent defect aforesaid as laid down in Mst. Sardar Begum v. Sultan Mahmood and 5 others (1). The judgment of the High Courr. Based on the aforesaid concept of the case in the circumstances which is ba hereinbefore explained cannot be taken exception to.

9. The result is that this petition has no merit and is dismissed.