UMAR DIN Versus MEMBER (COLONIES), BOARD OF REVENUE

This Constitutional petition assails the order, dated 25th November, 1978 (Annexure `J) passed by the learned Member (Colonies), Board of Revenue, whereby he excluded the land allotted to the petitioners as Gujranwala Cantonment Oustees from the schedule pertaining to Gujranwala Oustees Scheme and thereby cancelled the allotments of land in question already made in favour of the petitioners.

2. The petitioners are admittedly displaced persons from the Gujran wala Cantonment inasmuch as their land situate in the area now forming part of Gujranwala Cantoment had been acquired for defence purposes.

3. The Government decided to allow State agricultural land in old Colony districts of Punjab including Jhang district to the oustees from Gujranwala Cantonment for their re‑settlement. Consequently, the Re settlement Officer, Gujranwala, issued permits viz. Permit No. 1289, dated 7th June, 1973 in favour of Umar Din petitioner and Permit No. 1291 of even date in favour of Muhammad Hanif respondent for the allotment of State land measuring 12J Acres each in the Jhang District. Obviously, these permits were issued on the basis of the entitlement certificates already issued in favour of the petitioners by the Land Acquisition Collector, Gujranwala Cantonment.

4. After obtaining allotment permits from the Re‑settlement Officer, Gujranwala, the petitioners approached the Collector, Jhang, for allotment of land to them. The Collector, Jhang, reported to the Board of Revenue that Charagah land in excess of 39 Acres was available in Chak No. 181/JB, Tehsil and District Jhang, which, if included in the schedule for Gujran wala Cantonment oustees, could be allotted to the petitioners. The Board of Revenue after considering the report of the Collector, Jhang, accorded approval to the inclusion of Charagah land in excess of 39 Acres situated in Chak No. 181/JB, Tehsil and District Jhang, in the schedule of Gujranwala Cantonment oustees and directed that the allot ment of such land could be made to the petitioners. It was so done by the Board of Revenue vide memo. No. 361/78‑241‑C‑III, dated 22nd January, 1978 (Annexure `B').

5. After 'the receipt of the approval from the Board of Revenue, Umar Din petitioner was allotted 99 kanals and 10 marlas of land in Chak No. 171/JB, aforesaid vide Annexure 'C' while Muhammad Hanif was allotted 100 kanals and 10 marlas of land vide Annexure `D'. These allotments were made on 18th July, 1978.

6. On 29th July, 1978 Umar Din and Muhammad Hanif petitioners were delivered possession of land in question through reports Nos. 409 and 410, respectively, of Roznamcha Waqiati of the village Patwari. Copies of such reports are Annexures E and F.

7. It appears that one Major Farid Khan (respondent No. 3 who has since died and is represented through Abdul Waheed his legal representa tive) assailed the order, dated 22nd January, 1978 of the Board of Revenue, through a Constitutional Petition (W. P. No. 1448/78) before this Court, but the same was dismissed. After the dismissal of his writ petition, the said Major Farid Khan filed a review petition under section 8 of the Board of Revenue Act, 1957 before the Board of Revenue, seeking review of the order, dated 22nd January, 1978. The said review petition also failed and the petitioners were informed through memo. No. 3502‑78/2993‑C‑III, dated 21st August, 1978 (Annexure `G') that their review petitions had been filed after consideration.

8. Subsequently, however, the Deputy Commissioner, Jhang, through his memo. No. 21084/CB, dated 11th October, 1978 (Annexure `H ) reported to the Board of Revenue that Chak No. 181/JB, Tehsil and District Jhang, had two Abadis viz. Abadi Gharbi Kitchianwali and Abadi Sharqi Bhojianwali but the entire 200 kanals of land allotted to the petitioners was located near Abadi Sharqi Bhojianwali and that after the allotment of this land to the petitioners, the Gujranwala Cantonment oustees, there remains only 64 kanals and 9 marlas of Charagah land for the said Abadi while an area of 264 kanals and 9 marlas from Charagah land was available in Abadi Gharbi Kitchianwali. He thus proposed in his report that one lot of 100 kanals each could be allotted to each of the two petitioners in Abadi Gharbi Kitchianwali and Abadi Sharqi Faujian wali. After receipt of this report, the Board of Revenue, through memo. No. 4154‑78/3788‑C‑II1, dated 25th November, 1978 (Annexure 'J') the impugned order, directed the cancellation of the Charagah land of Chak No. 181/JB from the schedule of land reserved for allotment to Gujran wala Cantonment oustees and asked the Deputy Commissioner, Jhang, to settle the oustees on some other State land available within the schedule in his district.

9. The validity and vires of the aforementioned impugned order passed by the Hoard of Revenue, are challenged inter alia on the grounds that;---‑

(i) the power of review once exercised could not be exercised for the second time ;

(ii) there is no power of suo motu review available to the Board of Revenue ;

(iii) Board of Revenue cannot pass any order adverse to a person without affording opportunity of show cause to him ;

(iv) Deputy Commissioner, Mang, in his report did not recommend the cancellation of allotments made to the petitioners in Chak No. 181/JB. He recommended that one of the two petitioners could be allotted land in Abadi Faujianwali of the said Chak while the order could be allotted in Abadi Kitchiabwali: and

(v) Major Farid Khan, at whose instance the allotment of the peti tioners has been cancelled and the impugned order has been made had no locus standi to challenge the allotment made in favour of the petitioners as it was a matter between the State and the Gujranwala Cantonment oustees."

10. Section 8 of the Board of Revenue Act, 1957 empowers the Board to review its orders and judgments. Section 8 ibid reads :‑

(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be pro duced by him at the time when the decree was passed or the order was made, on account of some mistake or error apparent on the face of the record (or for other sufficient reason) desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circum stances of the case require.

(2) Every application for a review of a decree or order under sub section (1) shall be made within ninety days from the date of that decree or order."

11. A careful analysis of the provisions of section 8 supra leads to a conclusion that power of review can be exercised by the Board of Revenue, only upon an application filed by a person who considers him self aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed and the order was made. The Board has no powers of suo motu review. The Board can only review a decree passed by it or an order made by it and pass such decree or order as the circumstances of the case require after giving notice to the parties effected thereby and after hearing them Every application for review of a decree or order can be mad only within 90 days from the date of that decree or order.

12. In the circumstances of the under consideration cast, however, as detailed above, the Board of Revenue passed the impugned order in exercise of suo motu powers of review on the report of the Deputy Com missioner, Jhang and not on the application of any affected party inasmuch as the review petition filed by the affected party was previously considered and filed. The Board also failed to bear the petitioners whose allotment has been cancelled through the impugned order before passing the said order in exercise of its power of review.

13. In this view of the matter, the impugned order is not in accord ance with the provisions of section 8 of the Board of Revenue Act, 1957 and it gravely suffers from at least two legal infirmities. Firstly, that the impugned order has been passed without there being an application by an effected party and secondly, that it has been passed without hearing the petitioners whose allotment of land has been cancelled. The impugn ed order is thus not only violative of the provisions of section 8 of the Board of Revenue Act, 1957 but also offends against the principle of natural justice as enshrined in the maxim. audi alteram partem.

14. It has been held in Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others (P L D 1971 S C 61) that it is well settled that the neglect of the plain requirements of a statutory enactment, which pres cribes how something is to be done, will invalidate the thing being done in some other manner.

15. In The University of Dacca v. Zakir Ahmad (P L D 1965 S C 90) it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. The rule applies even though there may be no positive words is the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this require ment is to be implied into as the minimum requirement of fairness.

16. Similarly, in Syed Abul A'la Maudoodi v. The Government of West Pakistan (P L D 1964 S C 673) it was ruled that the principle of natural justice requir ing a hearing to be granted to a person before being condemned, applies not only the judicial or quasi‑judicial proceedings but also to adminis trative proceedings provided that the relevant statute does not exclude its application and requires the administrative authority concerned to base its decision on determination of facts.

17. It has been argued on behalf of the Board of Revenue, that the Board of Revenue while ordering inclusion of the Charagah land situated in Chak No. 181/J.B., in the schedule of Gujranwala Cantonment oustees, acted on a mistaken report and subsequently when correct factual position was brought to its notice, the Board passed the impugned order. It has, therefore, been urged that extraordinary writ jurisdiction, in such circum stances, cannot be exercised in favour of the petitioners because the impugned order does not work an injustice to the petitioners. Reliance has been placed, on Nawab Syed Raonaq Ali etc. v. Chief Settlement Com missioner and others (P L D 1973 S C 236) wherein it was found that it must be shown that the order sought to be set aside had occasioned some injustice to the parties, if it does not work in injustice to any party, rather it cures a manifest illegality, then the extraordinary writ jurisdiction ought not to be allowed to be invoked. Jamroze Khan v. Member, Board of Revenue N.‑W.F.P. (1979 S C MR 311) has also been relied upon on behalf of the Board of Revenue. In this case, it was held that change brought about in the revenue record being clearly illegal, the Collector was fully entitled to rectify position with a view to undo damage caused to interests of the respondents. Muhammad Ishaque v. Secretary to Government of Punjab, etc. (1982 S C M R 186) has also been cited on behalf of the Board of Revenue. In this case, it was found that where the petitioner had no right to protect his promotion which was against law and liable to be set aside, fact of petitioner having not been afforded a hearing by the Secretary concerned, was of no consequence.

18. The high authorities sought to be relied upon by the learned counsel for the Board of Revenue, are in fact distinguishable on merits in view of the circumstances of the under consideration case. The inclu sion of Chragah land in excess of 39 acres situated in Chak No. 181/J.B., in the schedule of Gujranwala Cantonment oustees, can by no stretch of imagination be considered as an illegality. It cannot, therefore, be said that the impugned order aims at curing a manifest illegality as envisaged in Raonaq Ali's case. The impugned order cannot, also be said as a measure to rectify any illegality in regard to change brought about in the revenue record.

19. Similarly, inclusion of the land in question in the schedule of Gujranwala Cantonment oustees and subsequent allotment of this land to the petitioners was not an act which could be considered as against law and liable to be set aside justifying on affording of opportunity of hearing to the petitioners before ordering cancellation of their allot ment.

20. On behalf of respondent No. 3, it has been simply urged that the said respondent being resident of Chak No. 181/J.B., had the locus standi to initiate action for keeping the Charagah land of the village intact and that the present constitutional petition was premature inasmuch as the Collector has yet to pass the final order in compliance with the directions contained in the impugned order of the Board of Revenue. No doubt, respondent No. 3 is resident of Chak No. 181/J.B. and by some stretch of imagination, he may be interested that Charagah land of that village is kept intact so that the same is available in' future for common purposes but there is no substance in the plea that the present constitu tional petition is premature. The Board of Revenue, through the impugned order has passed final orders in regard to the exclusion of the land allotted to the petitioners from the schedule of Gujranwala Oustees Scheme and has also directed the Deputy Commissioner, Jhang, to settle the petitioners on some other State land available within the schedule instead of Charagah land in his district.

21. The upshot of the above discussion is that the Board of reve nue had no jurisdiction to pass the impugned order as the same purports to have been passed in exercise of suo motu review jurisdiction of the Board whereas by virtue of the provisions of section 8 of the Board of Revenue Act, 1957 no such power vests in the Board. The order is also illegal because it has been passed in utter disregard of the principle of natural justice that no one should be condemned unheard as embodied in the maxim, audi alteram partem.

22. In view of these conclusions, the order, dated 25th November, 1978 (Annexure `J') passed by the learned Member (Colonies), Board of Revenue, excluding the land in question from Gujranwala Oustees Scheme and cancelling the allotment of the said land in favour of the petitioners is held to be illegal, without lawful authority and thus a nullity in the eye of law and of no legal effect. The writ petition is accordingly allowed with no orders as to costs.

M. Y. H. Petition allowed