Syed ALEY AHMAD vs MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT
This matter arises from a petition for leave to appeal directed against the judgments of the Lahore High Court concerning the cancellation of the sale of an evacuee land plot. The petitioner was initially allowed the sale of the plot by the Member, Board of Revenue, on 20-8-1980, but this order was subsequently cancelled on 9-2-1981 without affording the petitioner an opportunity of being heard. The Lahore High Court set aside the cancellation order on the grounds of violation of the principle of audi alteram partem and remanded the case back to the Member, Board of Revenue, for a fresh decision after hearing the petitioner. An intra-court appeal filed by the petitioner was also dismissed. Before the Supreme Court, the petitioner contended that the Member, Board of Revenue, had become functus officio and lacked jurisdiction to recall the earlier order. The Supreme Court held that the High Court took a fair view by remanding the matter, allowing the petitioner to raise all legal pleas before the Member, Board of Revenue, who was directed to pass a speaking order.
- Whether an order cancelling the sale of evacuee property passed without hearing the affected party violates the principle of audi alteram partem?
- Whether the Member, Board of Revenue becomes functus officio after passing an order of sale of evacuee land?
- Whether the High Court is justified in remanding a matter to the tribunal of origin to decide all legal and factual questions afresh?
ORDER
1. ' NASIM HASAN SHAH, J.--A plot of evacuee land was allowed to be sold to the petitioner by the order of the learned Member, Board of Revenue (Settlement & Rehabilitation Wing) dated 20-8- 1980. Subsequently, the same learned Member, Board of Revenue, cancelled the earlier order allowing the sale of the said plot on 9-2-1981. This last mentioned action was challenged by the petitioner through a writ petition before the Lahore High Court. The writ petition was allowed by a learned Single Judge vide judgment dated 12-2-1983 in terms that the learned Member, Board of Revenue, was directed to hear the petitioner and pass a fresh order in so far as the impugned order dated 9-2-1981 was passed without hearing the petitioner and the principle of audi alteram partem was not complied with.
2. ' The petitioner was not fully satisfied with the said order inasmuch as he considered that the order allowing the sale of the plot in dispute in his favour had become final and that the learned Member, Board of Revenue had no jurisdiction to modify or cancel the said order. The learned Division Bench hearing the inter-court appeal, however, dismissed it on the ground that this question too could be raised before the Member, Board of Revenue to whom the case had been remanded for decision afresh. The petitioner has now come to this Court seeking leave to appeal against the aforesaid two judgments of the Lahore High Court.
3. ' We have heard Mr.Muhammad Asif Jan, learned Advocate for the petitioner. He submits that the learned Member, Board of Revenue, had become functus officio after allowing the sale vide his order dated 20,8-1980 and could not deal with the matter thereafter. Hence the subsequent order dated 9-2-1981 was without jurisdiction and as the learned Member, Board of Revenue, could not deal with this matter; therefore, the order of remand to him was not justified.
4. ' The Department had taken up the position before the High Court that the order dated 20-8-1980 was obtained by the petitioner by fraud and misrepresentation and that even otherwise the learned Member, Board of Revenue, could not have allowed the sale of the disputed land as the same could only be disposed of through an open public auction, under the terms of the law. Hence such an order could not be allowed to stand.
5. We feel that the High Court has taken a very fair view of the whole situation. The entire matter will be re-opened before the Member; Board of Revenue, where the petitioner will be at liberty to take any plea available to him under law whereafter the learned Member, Board of Revenue, shall decide the matter by a "speaking order". In the meanwhile, the petitioner's poss ' This petition is disposed of accordingly.