KASSIM Versus DEPUTY COMMISSIONER, SANGHAR
This appeal challenges a High Court judgment that set aside a Settlement Commissioner's order regarding the resumption of excess land allotted under the Rehabilitation Settlement Scheme. The core legal question concerns whether excess land allotted under the Minimum Four Acres Allotment Scheme can be resumed from a claimant without notice or an opportunity to explain their failure to exercise the purchase option, and whether such resumption automatically invalidates subsequent re-allotments. The Supreme Court held that while the principles of natural justice require that a claimant be heard before excess land is resumed, the High Court erred in automatically restoring the original allottees' rights. The Court ruled that the matter must be remanded to the relevant authority to determine if the original allottees had a satisfactory explanation for their delay in payment. The key principle laid down is that administrative actions affecting property rights require strict adherence to natural justice, specifically providing notice and an opportunity to be heard before resuming land; however, such procedural violations do not automatically entitle the defaulting party to retain the land if their delay lacks a valid justification.
- Does the resumption of excess land under the Rehabilitation Settlement Scheme require prior notice to the allottee?
- Can a court automatically restore an allotment after finding a procedural violation in the resumption process?
- Is an allottee entitled to retain excess land if they failed to exercise the purchase option within the prescribed time?
- Must administrative authorities provide an opportunity to explain delays before resuming land allotted under the Minimum Four Acres Allotment Scheme?
NASIM HASAN SHAH, J.‑ ‑This appeal, by leave of this Court, is directed against the judgment dated 5‑4‑1980 passed by a learned Single Judge of the Sind High Court whereby he accepted the Constitutional petition filed by respondents Nos.5 and 6 and set aside the order dated 10‑4‑1974 passed by the Deputy Commissioner and Settlement Commissioner (Land), Sanghar and restored the order dated 1‑3‑1974 passed by the Additional Deputy Commissioner and A.S. C . (L), Sanghar.
2. The relevant facts briefly are as follows;
3. One Hassan son of Kaloo, the predecessor of respondents Nos.5 and 6 was allotted Survey No.311/4, measuring 4 acres of Deh Dhamoi Taluka Shahdadpur on 31‑8‑1959 under the Minimum Four Acres Allotment Scheme. The true entitlement of Hassan son of Kaloo, in lieu of the land abandoned by him in India, amounted to 1.32 Acres but in view of the aforementioned Scheme, set out in Para 3(2) (Part II) of the Rehabilitation Settlement Scheme, the minimum units of allotment were fixed at 4 Acres in Hyderabad and Khairpur Division and even if a claimant on the basis of his verified claim was entitled to an allotment of less than 4 acres he could still be allotted 4 acres but the area given in excess of the entitlement to such claimant to enable him to make up the minimum of 4 acres was to be held on temporary basis which could be purchased by the said claimant at such rates and in accordance with such terms and conditions to be fixed eventually. A memorandum, in this connection, was issued on 12‑4‑1963 to the effect that the allottees to whom excess land had been allotted under the aforesaid Scheme and were desirous of purchasing the aforesaid excess area should exercise and convey their options in writing to the Deputy Commissioner/ Deputy Settlement Commissioner (Land) of the District concerned by 15‑6‑1963 and according to para 2 of the aforesaid Memo:‑
"If any claimant does not exercise his option to purchase the excess land by the prescribed date the excess area in his possession shall be resumed."
4. The last date for notifying the option for purchase of excess area was extended from time to time and the last date fixed in this connection was 31‑7‑1964.
5. It appears that respondents Nos.5 and 6 did not exercise their option to purchase the excess land within the stipulated period. Accordingly, the excess area was re‑allotted on 23‑9‑1969 to respondent No.4 by the Deputy Collector/ Deputy Commissioner, Shahdadpur. This area was subsequently sold by respondent No.4 in favour of the appellant herein. It may, however, be mentioned that neither before the Settlement authorities nor even before the High Court the appellant was made a party and the contest has been raging between respondent No.4 on the one side and respondents Nos.5 and 6 and their mother Mst. Sharifan, on the other. (In the Constitution Petition despite respondent No.4's averment that he had sold the area to the appellant herein, he was not impleaded as a party by respondents Nos.5 and 6 who had filed the Constitutional Petition in the High Court). Be that as it may the appellant being adversely affected by the order of the High Court, his petition for leave to appeal against the judgment of the High Court was entertained and he is now the appellant before us.
6. Reverting back to the history of the case it may be mentioned that NIst. Sharifan, the mother of respondents Nos.5 and 6 and widow of Jamaluddin (the son of Hassan son of Kalu, referred to in the outset of the petition) took steps to purchase the excess land. According to her she had remained in possession of the entire land and entertained the belief bona fide that her deceased husband Jamaluddin had complied with all the legal formalities to purchase the area over and above the entitlement under his verified claim. However, subsequently on learning that payment for the excess area had not been made by Jamaluddin deceased she was paying all the dues and did so by 9‑11‑1973. Thereafter, she applied for the issuance of the clearance certificate. At that stage, the respondents came to know that the disputed area (measuring 2.08 acres) had been allotted in favour of respondent No.4 on 23‑9‑1969. To get this allotment cancelled Mst. Sharifan and respondents Nos.5 and 6 filed a revision before the additional Deputy Commissioner/ Additional Settlement Commissioner (Land), Sanghar. The said learned Officer after hearing the parties accepted the said revision and by his order dated 1‑3‑1974 cancelled the subsequent allotment in favour of respondent No.4 and maintained the allotment of Mst. Sharifan and respondents Nos.5 and 6. According to him, the re‑allotment in favour of respondent No.4 never came to the notice of Mst. Sharifan and her heirs respondents Nos.5 and 6 as there was no order withdrawing the said area from their allotment and indeed the said area was, actually never withdrawn from their allotment by any formal order of cancellation.
7. Feeling aggrieved, respondent No.4 challenged the aforesaid order by, a further revision before the Deputy Commissioner/ Settlement Commissioner (Land), Sanghar. This revision was accepted by him vide his order dated 10‑4‑1974 and the order of the .additional Deputy Commissioner/ Additional Settlement Commissioner (Land), Sanghar dated 1‑3‑1974 was set aside.
8. Mst. Sharifan and respondents Nos. 5 and 6 feeling dissatisfied with the order dated 10‑4‑1974, preferred a Constitutional Petition in the Sind High Court to challenge it. This petition was heard by a learned Single Judge of the said learned Court and he was pleased to accept it on the ground that the terms of Para 2 of the Memorandum dated 12‑4‑1963 providing that if any claimant does not exercise his option to purchase the excess land by the prescribed date the excess area in his possession shall be resumed did not imply that the claimant aforesaid ipso facto incurred the liability of resumption of the excess area in his possession but that he incurred such a liability only if he could not explain his default. This implied that he had to be heard before the action which was prejudicial to him was taken. In this connection reliance was placed upon University of Dacca v . Zakir Ahmad P L D 1965 S C 90 wherein it was laid down that in all proceedings by whosoever 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 and that it was, therefore, obligatory that notice should have been issued to the affected parties to show cause why the excess area in his possession shall not be resumed. The learned Judge also observed that the minimum requirement of fairness was that the question whether the allotment of a claimant was liable to be resumed on his failure to exercise his option to purchase the excess area by the prescribed date should be decided by the Settlement authorities in his presence. According the order dated 23‑9‑1969 whereby the disputed land was re‑allotted to respondent No.4 was not valid as the land could not be considered to have been available for allotment in his favour because it had not been cancelled from the allotment of Mst. Sharifan and respondents Nos.5 and 6 after notice to them. Consequently, the re‑allotment of this area to respondent No. 4 was illegal and there was no impediment to accept the payment for the excess area from Mst. Sharifan and respondents Nos.5 and 6 on 19‑6‑1973. It was further held that upon acceptance of payment from Mst. Sharifan and respondents Nos.5 and 6 they would be entitled to the excess land in terms of the Rehabilitation Settlement Scheme. On this view of the matter, the order of the Settlement Commissioner dated 10‑4‑1974 was found to be without lawful authority and to be of no legal effect and the said order was, accordingly, set aside and that of the Additional Settlement Commissioner dated 1‑3‑1974 restored. Hence this appeal.
9. We have heard Mr. S.M. Sadiq, learned Advocate for the appellant in support of this appeal.
10. After having heard the learned counsel and examining the circumstances of this case we have reached the conclusion that the) learned Single Judge was right in holding that before the excess, area allotted in favour of Mst. Sharifan and respondents Nos.5 and 61 was re‑allotted to respondent No.4 (the predecessor‑in‑interest of the appellant herein) on 23‑9‑1969 it was necessary to hear the allottee to be affected by the aforesaid order. Hence the order dated 23‑9‑1969 re‑allotting the disputed land to respondent No.4 was not in accordance with law and was liable to be set aside. But we also think that the' conclusion drawn by the learned Judge of the High Court that the result from his finding that the order dated 23‑9‑1969 was bad in law was that the order of the Additional Settlement Commissioner dated 1‑3‑1974 (whereby not only the order dated 23‑9‑1969 re‑allotting the disputed land to respondent No.4 was set aside but the contesting respondents were held entitled to retain the excess land allotted to them under the Minimum Four Acres Allotment Scheme) stood restored does not appear to be correct
11. Undoubtedly, Mst. Sharifan and her son and daughter (respondents Nos.5 and 6) had neither exercised the option to purchase the excess land nor made any payment towards purchasing it by the prescribed date (in terms of Para 2 of Memorandum dated 15‑6‑1963). Accordingly, even if the excess area could only be resumed after issuance of notice and after hearing the claimants in explanation of the question why the payment had not been made in time, the excess land could only be given to them if they were able to give a reasonable explanation for not making the payment in time. In such a case of course, payment could be accepted from them even after the expiry of the prescribed date. But in case no proper explanation for failure to make the payment for the excess area was offered, there is no doubt that the excess area could be resumed. In this case, as some interest had been acquired by respondent No.4 in the meantime by the order dated 23‑9‑1969, we feel that the proper order in the circumstances, was to have set aside both the order of the Additional Settlement Commissioner dated 1‑3‑1974 and that of the Settlement Commissioner dated 10‑4‑1974 and to direct the Deputy Commissioner and the Settlement Commissioner (Land), Sanghar, to decide the question, in the presence of the parties concerned, whether Mst. Sharifan and respondents Nos.5 and 6 had satisfactorily explained the delay in exercising the option to purchase the excess land and in making payment thereof. If they were able to adduce a satisfactory explanation for the delay, then the order dated 23‑9‑1969 re‑allotting the excess area to respondent No.4 was not only liable to be set aside but the excess area could be allowed to be retained by the respondents. However, in case it was found that the explanation furnished by the said respondents for not exercising the option to purchase the excess land in time was not satisfactory, the amount paid by them for the excess area should have been returned to them and the order of re‑allotment of the excess area made in favour of respondent No.4 on 23‑9‑1969 should have been upheld.
12. This appeal is, accordingly, allowed and the order of the learned Single Judge of the High Court dated 5‑4‑1980 is set aside. The case is sent back to the Deputy Commissioner Sanghar, with the direction that he should entrust the same to the "notified officer" or to the relevant authority dealing with such cases at present with the direction that the matter should be decided afresh after hearing both the sides i.e. the appellant herein and respondents Nos. 5 and 6 in terms of the observations made in paragraph 11 above.
13. The upshot is that this appeal is allowed but with no order as to costs.
S.Q./K‑40/S Appeal allowed.