On 29-1-1989 the applicant filed the suit for declaration, permanent injunction and cancellation of order of Member, Board of Revenue dated 1-1-1989 in the Court of Senior Civil Judge, Mehar.
2. The case of the applicant was that a piece of plot measuring 4600 sq. Feet' situated in Mehar Town was lying vacant, which was owned by the Government therefore, he moved an application before the Deputy Commissioner/respondent No,4 for allotment of the said plot. The Respondent No,4 vide Order dated 31-1-1987 allotted the said plot A to the applicant. In pursuance of the said allotment order the applicant deposited Rs,18,400. The respondent No,4 sent the papers to Commissioner, Hyderabad Division/respondent No,3 for confirmation of the allotment order. The respondent No,3 confirmed the allotment order vide letter dated 21-2-1988. Therefore the record was mutated in the name of applicant. The applicant started construction when in the month of August, 1988 he received a letter dated 6-8-1988 from respondent No,4, by which the plot of the applicant was cancelled under the orders of respondent No,3. The applicant filed appeal before the Member, Board of Revenue/respondent No,2. The respondent No,2 vide order dated 1-1-1989 set aside the order of the respondents Nos.3 and 4 about the cancellation of plot but further set aside the order dated 31-1-1987 passed by the respondent No,4 and order dated 31-2-1988 passed by the respondent No,3, under which the plot in question was allotted to the applicant. The applicant was dissatisfied with the said order, therefore, he filed the suit.
3. The respondent No,6/Assistant Engineer, Highway, Mehar filed the written statement, in which he claimed that the suit plot belonged to Highway Department. The respondent No,7/Town Committee, Mehar also filed the written statement claiming that the suit property was near the shopping Centre and supported the order of the respondent No,2.
4. Out of pleadings of the parties, the trial Court framed following 6 issues:--
(1) In whom does the suit plot vest?
(2) Whether Deputy Commissioner had rightly granted the suit plot?
(3) Whether there are already constructions in the line on the same road?
(4) Whether orders dated 21-2-1988 of Commissioner Hyderabad Division and the order dated 1-1- 1989 of Member, Board of Revenue are mala fide?
(5). Whether the plaintiff is entitled to the relief claimed? (6) What should the decree be?
5. The parties led evidence in support of their respective claims. After considering the evidence and hearing the parties' Counsel, the learned Senior Civil Judge, Mehar vide judgment dated 21-5-1989 and decree dated 23-5-1989, decreed the suit of the applicant. The respondent No,7 was dissatisfied with the said judgment and decree, therefore, he preferred an appeal before the District Court, which was transferred to 1st Additional District Judge, Dadu. The appellate Court after hearing the parties' counsel set aside the judgment and decree of the trial Court and dismissed the suit of the applicant vide judgment dated 22-11-1992 and decree dated 29-11-1992. The applicant was dissatisfied with the said judgment and decree, therefore, he has preferred the present revision application.
6. I have heard the Advocate for the applicant, Additional A.G. For respondents Nos.1 to 6, Advocate for respondent No,7, and perused the record of this case very carefully.
7. The learned Advocate for the applicant has stated that the plot in question was granted to the applicant but the same was cancelled without providing any opportunity of hearing to the applicant; that the applicant had challenged the 'orders of the respondents Nos.3 and 4 before the respondent No,2, who had set aside the orders of the respondents Nos.3 and 4, but further cancelled the allotment order; that the said order of respondent No,2 was illegal, ultra vires, as a vested right was created in favour of the applicant, which cannot be taken away in the present manner. He has relied upon the case of Mitho Khan v. Member, Board of Revenue (PLD 1997 Karachi 299).
8. The learned Additional A.G. And Advocate for respondent No,7 did not contest the matter by stating that they had instructions not to contest the matter.
9. I have gone through the impugned order of respondent No,2 dated 1-1-1989 and find that the respondent No,2 was justified in setting aside the orders of the respondents Nos.3 and 4, by which the allotment order was cancelled on the application of respondent No,6, as the said orders were passed without hearing the applicant. The impugned order further reveals that the respondent No,1 went one step ahead by setting aside the order of the respondent No,4 dated 31-1-1987 and order of the respondent No,3 dated 31-2-1988, by which the applicant was allotted the plot in question. No reasons whatsoever have been furnished by the respondent No,2 for setting aside the said order.
The said question was not agitated before the respondent No,2, but an appeal was filed with regard to the setting aside of the orders of the respondents Nos.3 and 4, by which the allotment order was cancelled. Further the respondent No,2 remanded the case to the respondent No,4 to decide the case afresh. When the matter was remanded to the respondent No,4 then he should have been given power to examine the entire case and would have passed appropriate orders after considering the cases of parties and hearing them. The respondent No,2 had exceeded the jurisdiction vested in him at that time. It is further pointed out that the plot was already allotted to the applicant, he had paid the entire fees of the plot. In pursuance of that, the record was mutated in the name of applicant, as such, after the completion of all the requirements of law the plot in question was no more a Government plot, but it became a private property. As such, the respondents Nos.2 to 4 could not have cancelled the plot in the above manner and that too without hearing the applicant.
9-A. Furthermore, the learned Additional A.-G and Advocate for the C respondent No,7 have not contested the matter, meaning thereby that they are not supporting the order of the respondent No,2.
10. In the light of what has been stated above, the impugned judgment and decree of the learned 1st Additional District Judge, Dadu are set aside. The judgment and decree of the trial Court are maintained. The revision application is allowed. These are the reasons of my short order dated 10- 1-2005.