MUHAMMAD AMIN vs SENIOR MEMBER, BOARD OF REVENUE, SIND, HYDERABAD

ORDER

1. ' SHAFIUR RAHMAN, J.-The petitioner whose allotment of Government Land measuring about 64 acres in Deh Rari, Taluka Golarchi, District Badin was cancelled, seeks leave to appeal against the judgment of the Sind High Court, dated 3-11-1/82 whereby his constitutional petition challenging the cancellation of the allotment was dismissed in limine.

2. ' In accordance with the Rules framed under section 62 of the Sind Revenue Code, 1879 the petitioner was granted on peasant tenure land measuring 64 acres in Ghulam Muhammad Barrage on a fixed price of Rs, 250 per acre recoverable in 20 equated annual instalments bearing interest at the rate of 3 % per annum. There were other conditions with regard to the cultivation over the land, the residence of the granted and planting of trees and maintenance of four sheep, or one cow or one buffalo on the land. The petitioner claims to have deposited at the time of the grant on 9-5-1961 1/10th of the price, that is, Rs, 1,600 and to have executed Qabuliat. However, he claims that no ijazatnama vas issued by the Collector as there was a ban imposed which was lifted in 1962. The petitioner for the first time moved the authorities in 1981 for the issuance of the ijazatnama Or permission to pay the instalments. The revenue officer obtained a report and found that the allotment papers were untraceable. He got an inspection of the land carried out and finding that the petitioner was not in possession, had not satisfied any of the conditions of the allotment and was in serious default cancelled the allotment on 27-8-1981. The petitioner challenged this cancellation initially before the Additional Commissioner and the Board of Revenue and finally in the High Court in its constitutional jurisdiction, but failed.

3. ' The learned counsel for the petitioner has taken up three grounds for maintaining this petition. It is contended that as the grant had been duly arid properly made, it could not be cancelled in terms of section 24 of the Colonization of Government Lands Act, 1912 which stood extended to the property in dispute by West Pakistan Ordinance No, XXXIX of 1969. The breaches alleged against the petitioner were all rectifiable and as such an opportunity to rectify them should have been afforded to him. Secondly it is contended that if on any ground the statutory protection be of no avail to the petitioner the principles of natural justice required that he should have been given an opportunity to . Explain his position with regard to the alleged breaches of the conditions of the grant. He contested on facts the findings that he had not taken possession of the land, . Was not cultivating it or had committed breach of any of the conditions made the basis for resuming the land. For the first time before us he had filed certain additional documents not earlier relied upon, like copies of Khasra Girdawari to demonstrate that the findings of fact recorded are not correct.

4. Finally it was contended that a number of other persons similarly placed and similarly in default have been dealt with favourably and their allotments were allowed to remain intact while the petitioner has been discriminated against.

5. We find that in order to invoke the protection of section 24 of the Colonization of Government Lands Act it was necessary for the petitioner to plead and prove the existence of a written order or the Collector as required under subsection (4) of section 10 of that Act or section 60 of the Sind Revenue Code. It is not shown to us that under the Scheme under which he was allowed land no such permission or authority was needed to take possession of the land. It is only the tenant conforming to the requirements of section 10 who can plead the statutory protection of section 24.

6. The petitioner has not been able to substantiate it. His own case was that after the acceptance of the grant by him an ijazat nama had to issue from the Collector which had not issued. He could not, therefore, claim any authority for having possession of the land.

7. ' It is true that notwithstanding the absence of statutory provision he would be entitled in law to the observance of the principles of natural justice. It places a heavy burden on the petitioner himself to explain and show how he failed to discharge the numerous obligations during the period 9-5-1961 to 1981, that is, for 20 years when, as the terms of the grant show, there were a number of duties to be performed by the petitioner as grantee and he had to report to the Collector at every stage about the due discharge of such obligations including the payment of instalments. There is no explanation by the petitioner and we do not find any on record. The inspection of the spot revealed that the petitioner had neither taken up as residence nor was cultivating the land himself. In fact a part of the land was encroached by some other persons. With this background of facts it cannot be said that the petitioner has been deprived of a reasonable opportunity of showing cause in the matter of cancellation of the grant, ' As regards the discrimination, we find that it is not possible to hold a roving inquiry to come to a conclusion at this stage that other identical cases were dealt with differently so as to confer a right on the petitioner to claim as of right a reversal of the order. The facts of each case appear to be distinguishable. We do not find any merit in the petition and the leave to appeal is refused.