' S. A. NUSRAT, J.-This petition is directed against the orders of the Member, Federal Land Commission (hereinafter referred to as "the first respondent") and the Additional Chief Land Commissioner, Hyderabad (hereinafter referred to as "the second respondent") passed respectively, on 15-10-1974 and 28-8-1974, and the dispute relates to 829.14 acres of land situated in Dehs Sangai, Thorolo, Faraho and Kapoori in Taluka Tando Bago, District Hyderabad. The said orders came to be passed in the background of the precedent facts as under:
2. The respondent No, 4 was a Government servant and had retired from service in the year 1967. In lieu of agricultural land inherited by him from his father in India, his claim was verified for 6,305, acres on 21-10-1957 and consequently he was allotted 973.39 acres of land, sometime in 1958, in Taluka Tando Bago, District Hyderabad. He was put in possession of the land and Revenue record was duly mutated in his favour. On the promulgation of M. L. R. 89/91 in the year 1961, the respondent No, 4 was issued a revised Entitlement certificate under which he could retain only 144.26 acres of land. He was also entitled to purchase the remaining 829.14 acres of land. The respondent No, 4, therefore, exercised his option for the purchase of the surrendered land and continued to remain in its possession. The Deputy Commissioner and the D. R. C. Hyderabad granted sanction for the purchase of the surrendered land to the respondent No, 4 on 29-9-1962, who had to pay the purchase price in instalments. The petitioners entered into an agreement with the respondent No, 4 on 29-9-1962 for the purchase of his surrendered land measuring 829.14 acres. In pursuance of the aforesaid agreement and for the consideration shown thereunder, the petitioners were delivered possession of the land by the respondent No, 4, who also executed a registered general power of attorney in favour of the petitioners as provided in the agreement. The petitioners paid Rs, 1,91,689, towards the instalments for the purchase of the land and interest thereon to the Government, in addition to the amount directly paid to the respondent No,
4. After the promulgation of Land Reforms Regulation, 1972, the respondent No, 4 filed the requisite declaration and included therein the surrendered land, which was purchased by the petitioners in terms of the agreement dated 29-9-1962. It is alleged that such declaration was filed by the respondent No, 4 out of abundant caution, although he did not possess or own any agricultural land having transferred the same in terms of the agreement to the petitioners. The declaration of the respondent No, 4 was scrutinised by the Deputy Land Commissioner, who by his order dated 2- 9-1972, granted a declaration that "the rights of the purchasers should stand protected in view of paragraph 7(1)(b) of the Regulation. "The respondent No, 3 objected to the declaration filed by the respondent No, 4 in respect of the disputed land by filing an appeal before the Land Commissioner, Sind, which was dismissed on 29-5-1973, with the observation that since the land was being managed by the petitioners, who were enjoying possession and "Mutassarrifi" and were also paying instalments and land revenue, the rights vested in them as purchasers deserved to be protected.
The respondent No, 3, thereupon filed a revision application, before the Additional Chief Land Commissioner, Sind, on which the learned Officer took suo motu action and passed the impugned order dated 28-8-1974, accepting the appeal and holding that since the disputed land was not fully paid up, no proprietary right came to be conferred on the respondent No, 4, namely Khanzada Sidi Yaqoot, who alone was then party to the proceedings up to that stage, to the exclusion of the petitioners. The respondent No, 3, however, was also not given any benefit under the said order. The petitioners and the respondent No, 3 filed cross respondent No, 3 filed cross revision applications against the said order of the Additional Chief Land Commissioner dated 28-8-1974, which were dismissed by a Member of the Federal Land Commission, sitting singly, as per second impugned order dated 15-10-1974. One of the contentions raised by the petitioners before the learned first respondent was, that the petitioners were not heard by the learned second respondent while passing the impugned order and thus the principle of natural justice was violated. The petitioners had also pressed into service a circular letter issued by the Prime Minister's Secretariat, Federal Land Commission bearing No, F. 14(12)/FLG/73 dated 20-8-1973. According to the said circular, in cases of sale agreements, if the .Prior permission of the Collector was not obtained, all such transactions were to be re-opened and thoroughly scrutinized by the Land Commissioners and if they were found to be genuine, the same could be confirmed in spite of the fact that the permission of the Collector was not obtained.
3. Mr. All Ahmed Fazeel, learned counsel for the petitioners, contended that the learned first respondent had misconstrued the provisions of the circular dated 20-8-1973 on the ground that the same was not applicable to the case of the petitioners as "the sale was in fact never effected".
The circular letter in question appears at pages 190/200 of the Sind Land Reforms Manual, Volume-I (1974 Edition) is as under:- "Circular Letter No, SLC-7861/72/4525.
' Dated 10th December, 1974.
' Subject: Permission of Alienations to the Allottees of Land under M. L. R. 89/91.
' The matter respecting transfers of land acquired under M. L. R. 89/91, was taken up with the Federal Land Commission.
(2) The decision of the Federal Land Commission taken in this regard as conveyed vide their letter No, F-7(4)/FLC/73, dated 20th August, 1973, is reproduced below:- "In cases of sale or sale agreement, where the prior permission of the Collector was not obtained, all such transactions to be re-opened and thoroughly scrutinised by the Land Commissioner and if they are found to be genuine, they may be confirmed in spite of the fact, that the permission of the Collector was not obtained. However, gifts made by the grantees of land under M. L. R. 89/91, should be treated as void and all such lands should be resumed immediately and a compliance report sent to the Federal Land Commission.
(3) Sind Land Commission has been pleased to declare that the above order of the Federal Land Commission should be complied with."
4. We have gone through the order of the learned first respondent dated 15-10-1974, in which it has been found by the said learned Officer, prima facie in connection with the circular dated 20th August, 1973, reproduced hereinabove, that the same was not applicable as in the case of the petitioners the sale itself was, in fact, never affected. The circular, however, does not refer to the completed sale but talks of all such transactions where only sale agreements had been executed and prior permission of the Collector was not obtained. The learned first respondent, therefore, clearly fell into A error by misconstruing the provisions of the circular and rejected the contention of the petitioners with regard to the application of the same without applying his mind. As regards contention of the petitioners that they were not afforded any opportunity of hearing by the second respondent, the learned Member held that the respondent No, 1 (who is respondent No, 4 herein) had executed a general power of attorney in favour of Choudhry Muhammad Rafique, father of Mahfoozur Rehman, petitioner No, 1 herein. The impugned order of the second respondent, however, shows that Chaudhry Muhammad Rafique, had appeared as attorney of the respondent -No, 4, with Hassan Mahmood Baig, Advocate and, therefore, firstly he did not appear on behalf of the petitioner No, 1, and in any case, there is no finding that Rafique Ahmed was also appointed as attorney by the remaining petitioners Nos, 2 to 11. There is yet one more infirmity which attaches to the orders passed by both the respondents Nos, 1 and 2. Admittedly, the second respondent had taken suo motu action on the revision application of the third respondent. This was done under paragraph 11(1) of the Sind Land Reform Rules, 1972. Sub-paragraph (3) of rule 11 reads as under:- "(3) The Chief Land Commissioner or a Land Commissioner, as the case may be, shall not pass any order under this rule revising or modifying an order affecting any person without affording such person an opportunity of being heard."
' In view of the provisions contained in paragraph 3 of rule 11 (referred t above) it was incumbent upon the respondents not only to have issued notice to the petitioners but also given them opportunity of being heard. The petitioners had entered into agreement dated 29-9-1962 with the respondent No, 4 and the latter had put them in possession of the disputed land in pa performance of the contract. The petitioners had also paid large amount o account of instalments towards the cost of the land and interest. The petitioners had thus acquired vested right in the disputed land and as such they were entitled to notice and hearing in the matter by the second respondent which was denied to them. The compliance of the rule being a pre-condition for the exercise of suo motu revisional jurisdiction, the impugned order passed by the- respondent was without jurisdiction and void. The subsequent order passed by the learned first respondent is equally ineffective as the same was itself based on a void order and the jurisdictional defect attaching to the first order could not be cured by the grant of hearing to the petitioners. Reference in this connection, if any, may be made to the judgment of the Supreme Court in case of Atta Muhammad Qureshi V. Settlement Commissioner (1).
' In the result both the impugned orders deserve to be quashed.
5. The upshot of the above discussion is that the impugned orders passed by the first respondent and the second respondent dated 15-10-1974 and 20th August, 1974, respectively, are declared as having been passed without lawful authority and of no legal effect. However, since the main complaint of the petitioners before us is confined to non-observance of the provisions contained in Circular No, F-14 (12)1 FLG/73 dated 20-8-1973, we would direct the learned second respondent to dispose of the revision application of the respondent No, 3, bearing SROR No, 1005/1973-74, by impleading the petitioners and after giving notice and affording opportunity of hearing to the parties concerned. The petition is allowed as indicated above with no order as to costs.
(1) PLD 1971 SC 61