Brig. HAYAT AHMED Versus MEMBER, AUQAF AND SETTLEMENT BOARD OF REVENUE, SIND
1. ABDUL RAZZAK A. THAHIM, J.‑‑ The petitioner by this Constitutional petition has challenged the orders of respondents Nos. 1 and 2, dated 23‑12‑1983 and 30‑3‑1983, on various grounds.
2. The relevant facts are that respondent No. 3, Ex‑Havaldar, Muhammad Azim Khan was allotted Survey No. 812, measuring 24‑12 Acres and portion from Survey No. 580, measuring 21‑08 Acres, in Deh Samaki, Tapo Haleji, Taluka and District Thatta, out of Defence Forces quota from Rabi 1960‑61, vide `A' Form No. D‑33. This grant was cancelled by Revenue Officer, Kotri Barrage, Hyderabad, on 9‑6‑1976, from Rabi 1975‑76, due to non‑payment of instalments. The same land was subsequently alongwith other Survey Numbers was allotted to the petitioner from Rabi 1980‑81, vide M.F.R.O. Hyderabad's letter No. A/102/KB, dated 10th January, 1980, and petitioner paid all the dues on 22‑6‑1980, and respectively. The land was mutated in the name of petitioner. Thereafter, respondent No.4, after making full payment of the cost of the land, got his name mutated in the records of rights, it is stated that he managed to get notice dated 15‑12‑1980, and paid four instalments on 31‑12‑1980, and eleven instalments on 4‑1‑1981.
3. The Revenue Officer by an order dated 9‑6‑1976, (Annexure `B') cancelled the land of respondent No.4. The order is as follows:‑
4. "Following Defence Forces Grants of Taluka Thatta as detailed below already cancelled provisionally from Rabi 1975‑76, on account of non‑payment of instalments on due date vide this Office order No. AF‑SC‑1 6097, dated 31‑12‑1975, are hereby cancelled finally from Rabi 1975‑76, on non‑payment of instalments."
5. In the list, the name of respondent No.4 appears at serial No. 10 and it is stated in the order that cultivation if any, during cancellation period, to be treated as unauthorised. This order of Revenue Officer was challenged by respondent No.4, by way of appeal before the Commissioner, Hyderabad Division, who by an order, dated 30‑3‑1983, cancelled the order of the Revenue Officer, and restored the grant in favour of respondent No.4. This order of the Commissioner, was challenged by the petitioner by way of revision and learned Member, Board of Revenue, Auqaf and Settlement, by an order, dated 23‑10‑1983, maintained the order of the Commissioner and appeal of the petitioner was dismissed.
6. We have heard Mr. Ahmed Yousuf Ali Rizvi for the petitioner at length. It is contended by the learned counsel that petitioner was granted land and he has paid all instalments and the order by which the land was cancelled by the Commissioner is barred by limitation and is not in accordance with the law when `A' Form was issued in favour of the petitioner and Khata was mutated. On the other hand, Mr. Sayeed A. Shaikh appearing for respondent No.4, contended that land of Havaldar Muhammad Azim was illegally cancelled and no notice of the cancellation was given to respondent No.4. It is also argued by the learned counsel that Revenue Authorities gave a notice to respondent which is dated 15‑12‑1980, and within time, he paid all the 15 instalments in time,
7. 1n this dispute the Commissioner, Hyderabad Division, heard the parties at length arid had gone through the relevant file of the Barrage of Thatta and Revenue Officer, Kotri Barrage, and recorded the statements of concerned clerks of Barrage Office. He observed as under:‑
8. "In the instant case, the learned counsel for the appellant has basically challenged the order, dated 9‑6‑1976, passed by Revenue Officer, Kotri Barrage, Hyderabad, under which he has cancelled the grant of the, appellant from Rabi 1975/76 due to non‑payment of barrage instalments. The policy for cancellation of Barrage grants as laid down in para. 10‑A of Standing Order No. 10 is reproduced below:‑
9. 'The grants will be cancelled once a year on 15th June. The Barrage Mukhtiarkar should submit five copies of the list of grants suggested for cancellation in the prescribed form arranged by P.W.D. and Talukawar every year. The Revenue Officer/Assistant Revenue Officer, will pass orders provisionally cancelling grants from next Rabi on these lists and return one copy to the Barrage Mukhtiarkar. After the list is received by the Barrage Mukhtiarkar the notice informing the grantees about cancellation of the grants will be prepared and served by the Barrage Mukhtiarkar through their Kotars within one month from the date of cancellation. After 31st December, the Barrage Mukhtiarkar will submit the list (2 copies) showing therein the provisionally cancelled grants in which arrears have been paid up in the interim period upto 15 December. These grants will :hen be struck off from the copies of four provisional cancellation lists submitted by the Barrage Mukhtiarkar. The Revenue Officer/Assistant tievenue Officer will then forward these list, of absolute ca7celiation to the Executive Engineer (in duplicate) and the Taluka Mukhtiarkar.'
10. As it is obvious from the above provision that service of provisional cancellation notice upon the grantee is mandatory. Unless this first step is taken, all further actions with regard to cancellation of grant are premature and have no legal effect."
11. The Member, Board of Revenue has also framed the points of determination even at the revisional stage as under:‑
(i) Whether service of Provisional Cancellation Notices on the defaulter ex grantee is mandatory. If yes, whether the Provisional Cancellation Notices were served upon the respondent before cancellation of his grant on 9‑6‑1976.
(ii) Whether the Revenue Courts are competent to hear appeal, revision and review in respect of the lands which are reserved for Defence Personnel and allotted by M:F.R.O. through Barrage Department.
(iii) Whether the Revenue Courts are competent to interfere in case any fraud has been detected or the office files have been tampered with and by detailed judgment dismissed the revision on cogent grounds.
12. Mr. Ahmed Yousuf Rim, appearing for the appellant has not been able to show office copy of the notice or copy of the notice served on the respondent No. 4, at this stage even. The respondent No. 4, has admitted notice, dated 15‑12‑1980, which has not been controverted by the Revenue Authorities. Mr. Rizvi also submitted that appeal before the Revenue Commissioner was barred by limitation but in the judgment of the Commissioner, it‑appears that this point was not taken. Not only this, but since there is no evidence about the service of notice, then only question is that of knowledge. We may also point out that notice as the record shows was served on respondent No.4, on 15‑12‑1980, and in response to the notice, he paid the amount and also filed appeal. According to the policy as given by the Commissioner in his judgment, cancellation could only be provisional subject to notice and in this case there is no evidence about the service of notice. These all points are of a disputed facts and in exercise of the A Constitutional jurisdiction, we fear we cannot go into these details. Moreover, there are two concurrent findings of the Commissioner and the Revisional Authority i.e. Board of Revenue. We do not find any illegality or irregularity in these judgments. We refer to the latest case of Supreme Court, Messrs Muhammad Azim Khan v. Muhammad Amin, reported in 1987 S C M R 2015. For the reasons stated above, we dismiss this Constitutional petition with no order as to costs.
13. H.B.T./H‑38/K
14. Petition dismissed.