FAZAL-E-MIRAN CHAUHAN, J.--- This judgment shall dispose of the following writ petitions:--
(i) Muhammad Tariq v. M.B.R. And others Writ Petition No,4436 of 2006, (ii) Sajid Naseer Khan v.
M.B.R. And others Writ Petition No,4435 of 2006, (iii) Sajid Naseer Khan v. M.B.R. And others Writ Petition No,4437 of 2006, (iv) Sajid Naseer Khan v. M.B.R. And others Writ Petition No,4438 of 2006, (v)
Muhammad Tariq v. M.B.R. And others Writ Petition No,4439 of 2006, (vi) Muhammad Tariq v. M.B.R.
And others Writ. Petition No,4440 of 2006,as similar questions of law are involved in all these matters.
2. Briefly, the facts of the case are that;-State land measuring 106 Kanals, 16 Marlas was allotted to Ghulam Haider son of Muhammad Ramzan, situated in Chak No,397/JB Tehsil and District Toba Tek Singh, on 15-12-1956 under Grow More Food Scheme. The lease was cancelled on 2-4-1960 due to non-fulfilment of terms and conditions of tenancy. Ghulam Haider respondent No,3 submitted an application on 25-11-1974 for allotment of alternate land in lieu of previous tenancy. Alternate allotment of the land measuring 98 Kanals, 4 Marlas, situated in Chak No,397/JB, Tehsil and District Toba Tek Singh was allotted on 144-1990. On the same day, proprietary rights, were also granted to respondent No,3 by the District Collector, Toba Tek Singh. The petitioner purchased the aforesaid land from respondent No,3 and a Mutation bearing No,91 to that effect was sanctioned on 23-4- 1990. Thereafter, on receipt of certain complaints about the alternate allotment made in the year 1990 all such cases including the present case, were scrutinized by the Colony Department, Board of Revenue, Lahore, where it revealed that the alternate allotment was not genuinely secured. On receiving the report submitted by auditors colony, learned Senior Member Board of Revenue, vide order, dated 28-4-1993, decided to take cognizance of all such cases under subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act, 1912. In furtherance of the action decided to be taken, the learned Member, Board of Revenue, issued notice in the name of the petitioner (Muhammad Tariq purchaser) and (Ghulam Haider respondent No,3) to show cause as to why allotment made by District Collector, in the name of respondent No,3 allottee be not cancelled and the conveyance deed be resumed. As no body appeared in responce to the notice, said to have been served, proclamation was got published in the name of the petitioner in daily "Khabrain" Lahore on 16-6-1994, directing them to appear before the Member (Judl.III), Board of Revenue, Punjab, Lahore on 28-6-1994. Since nobody appeared despite the above said proclamation, therefore, they were proceeded ex parte by the Member Board of Revenue holding that for the reasons recorded in his order, dated 30-8-1994, respondent No,3 was not eligible for alternate allotment as he had not brought under cultivation any part of the tenancy and his lease was rightly cancelled by the Collector. Further observed that the order, dated 14-1-1990 of District Collector allotting the alternate land and granting proprietary rights with regard to the same, was declared to be ab inito, void and of no legal consequence, resultantly, the subsequent conveyance deed was declared to be based on fraud, misrepresentation and collusive and the order dated 14- 1-1990 of the District Collector was set aside and conveyance deed was rescinded by exercising his powers under subsection (2) of section 30 of Colonization of Government Lands (Punjab), Act, 1912 and the District Collector, Toba Tek Singh was directed to immediately resume the impugned State land measuring 98 Kanals and 4 Marlas, situated in Chak No,397/JB. Hence this writ petition.
3. Learned counsel for the petitioner states that; the petitioner, who is bona fide purchaser of the land, in dispute, has incurred heavy expenses and put in hard manual labour to make it cultivable.
The District Officer (Revenue) respondent No,2, by an ex parte order, dated 3-8-1994, without affording an opportunity of hearing to the petitioner, annulled the conveyance deed and resumed the land. The order, dated 30-8-1994 is uncalled for and unwarranted under the law, having been passed in an arbitrary and summary manner without giving any opportunity of hearing. Neither the petitioner was served with any show-cause notice, alleged to have been issued, nor he received copy of any daily Khabrain under postal receipt from the said newspaper, as the said notice was published on 16-6-1994 in daily Khabrain, Lahore. The petitioner, being the bona fide purchaser of land, in dispute, for consideration, was entitled to a notice under the law. Further states that; there is nothing on record to show that the petitioner was privy to the fraud, if any, and in the absence of such finding, the petitioner cannot be made to suffer and deprive of the valuable rights, accrued to him under the law. Respondent No,1 was not empowered to.Pass resumption order and rescinded the conveyance deed under subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act, 1912, as the said newly added section gives power to the Board of Revenue to proceed against its tenant and not against the petitioners, who are bona fide purchasers, thus, order passed against the petitioner was without lawful authority. The only remedy available to respondent No,1 was to file a suit seeking declaration/cancellation of the sale-deed, made in favour of the petitioner by respondent No,3.
4. Conversely, learned Assistant Advocate-General appearing or behalf of respondents Nos.1 and 2, opposed this writ petition contending that Muhammad Ramzan, father of respondent No,3, was allotted land under the Grow More Food Scheme and his lease was canceller on 20-2-1960 due to non-fulfilment of terms and conditions of tenancy as he has failed to bring under cultivation the required number of land Respondent No,3 applied for alternate land on 25-4-1974 any allotment/proprietary rights of land measuring 99 Kanals, 17 Marlas Chak No,397/JB, Tehsil and District Toba Tek Singh was fraudulent acquired from the District Collector. The present petitioner, who ha purchased the land from respondent No,3, stepped into his shoes an acquired the same right, which was given to respondent No,3, who was never put in possession of the State land in serial Nos.13, 14, 15 and 3 in Chak No,397/JB under Grow More Food Scheme. His name does find mention in Register Haqdaran-e-Zamin for the years 1956-57, 1960-61. The entry made in the year 1956 was fraudulently interpolated. The land, in question, remained Banjar Qadeem till it was resumed by the District Collector. Further states that; the learned Member Board Revenue respondent No,1, on receiving information and report of the audit branch exercising powers under subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act, 1912 rightly resumed the land and rescinded the proprietary rights and sale-deed, executed in favour of the petitioner by respondent No,3 holding the basic allotment and confirmation of proprietary rights to be obtained by fraud and misrepresentation. Notices were got published in the newspaper and on their failure to appear in response to the said notice, published in the daily Khabrain calling upon the petitioner and others in all such-like cases to appear before the Board of Revenue on 28-6- 1994 and the learned Member Board of Revenue, was left with no other option but to proceed against them ex parte and after consulting the record and report submitted by the Colony Department, Toba Tek Singh, proceeded to cancel the allotment and the rescinded sale-deed, executed on the basis of the proprietary rights, obtained by fraud and misrepresentation by respondent No,3. Also argues that; the order challenged through this writ petition was passed way back in the year 1994 after adopting all measures to effect the service on the petitioner and respondent No,3. The writ petition suffers from laches and the same has been filed after lapse of fourteen years without putting forth any compelling circumstances or sufficient cause for not having come to the Court within a reasonable time thus, the argument that case should have been referred to the Civil Court for adjudication by the Member Board of Revenue is totally misconceived and against all canons of law, which cannot be allowed at this belated stage. Reference is also made to Writ Petition No,11458 of 1994 titled "Mst. Niaz Bibi v. M.B.R.", in which the writ petition was dismissed by the learned single Judge of this court holding that the powers of the Member Board of Revenue under subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act, 1912, has not been applied; even, the writ petition was dismissed on the question of locus standi of the petitioner.
5. I have heard learned counsel for the parties, and perused the record. Admittedly, the land measuring 106 Kanals, 16 Marlas was granted to Muhammad Ramzan, father of respondent No,3, under the Grow More Food Scheme way back in the year 1956, situated in Chak No,397/JB, Tehsil and District Toba Tek Singh. The lease was cancelled on 2-4-1960, due to non-fulfilment of the terms and conditions of tenancy. However, there is no report that the same was resumed by the Revenue Department. Father of respondent No,3 remained in possession of the land and after his death, respondent No,3 moved an application for allotment of alternate land in lieu of his previous tenancy on 25-11-1974. His application was processed and on 14-1-1990, the land measuring 98 Kanals, 4 Marlas, situated in Chak No,397/JB, Tehsil and District Toba Tek Singh was allotted as alternate land and proprietary rights of the same was granted to respondent No,3 by the District Collector Toba Tek Singh. The present petitioner on 23-4-1990, purchased the said land from respondent No,3 and a Mutation bearing No,191 was recorded in the Revenue Record. On 28-4-1993, senior Member Board of Revenue, on receipt of the report of auditors colony in respect of allotments, made in favour of respondent No,3 and others was scrutinized and decided to take cognizance under subsection (2) of section 30 of Colonization of Government Lands (Punjab) Act, 1912. Thereafter, notices were issued in the name of all including the petitioner and respondent No,3 to show cause as to why allotment made and the proprietary rights conferred by the District Collector on 14-1-1990 be not cancelled and conveyance deed be rescinded. It is recorded in the impugned order that no body appeared in response to the show-cause notice, issued by the.
Member Board of Revenue. A proclamation was got published in the daily Khabrain Lahore dated 16-6-1994 in the name of the petitioner to appear before the Member, Board of Revenue on 28-6- 1994. They did not appear despite the above said proclamation therefore, they were proceeded ex parte and thereafter the learned Member Board of Revenue proceeded to hold that respondent No,3 was not eligible for alternate allotment, as his lease was cancelled by the Collector due to non-fulfilment of the conditions of tenancy, thus, the order of District Collector dated 14-1-1990 allotting the alternate land was declared void and consequently the conveyance deed executed in favour of the petitioner on the basis of proprietary rights granted to respondent No,3 was resumed.
6. Subsection (1) of section 30 of the Colonization of Government Lands (Punjab) Act, 1912 pertains to acquisition of proprietary rights and subsection(2) (ibid) empowers to the Member Board of Revenue to cancel the allotment obtained by misrepresentation by means of fraud and misrepresentation or was not eligible for such right of any reasons. Subsection (2) of section 30
(ibid) reads as follows:-- "If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights from any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such persons a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit."
' The above quoted subsection gives powers to the Board of Revenue to proceed against the tenant having come to the conclusion that any person had acquired, in this Act, tenancy rights in respect of any land by means of fraud and misrepresentation or such person was not eligible to have such rights, then notwithstanding acquisition of such rights by such person in such land or in the terms and conditions of any agreement with or rules, issued by the Provincial Government without prejudice to any other liability or penalty, to which such person may be liable under the Act, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land etc. The powers given under subsection (2) of section 30 (ibid) to the Board of Revenue to proceed against its tenants, are subject to reasonable opportunity of showing cause to such person. The expression "show cause" does merely mean that an opportunity of submitting an explanation is enough, which implies that an adequate opportunity must be given to the person appearing before the authority and to lead evidence in support of his contention.
7. "Show cause" means to make clear or apparent, as by evidence, testimony, or reasoning to prove the expression "after giving such person a reasonable opportunity of showing cause" is not an idle or empty form. It contains a very solitary and substantial provision of law. The expression does not mean that only an opportunity is to be given for offering an explanation against the proposed action in subsection (2) of section 30 of the Act. It clearly means that adequate opportunity not only to offer an explanation against proposed action but also to produce defence be given.
' The word expression "showing cause" in subsection (2) of section 30 of the Act, does not imply that mere opportunity of submitting an explanation is enough. It implies that adequate opportunity of learning evidence in support of the contentions of the person concerned and controvert the contention raised against him, must be given. Reliance is placed on Muhammad Ihsan Khan v. The Province of West Pakistan PLD 1963 Lah. 295 and Government of the Punjab v. Dr. Ijaz Hassan Qureshi PLD 1985 SC 28.
8. Here in this case, the learned Assistant Advocate-General and the representative appearing on behalf of Member Board of Revenue with record/proceedings conducted by the Member Board of Revenue had failed to show that any notice showing cause was. Issued in the name of the petitioner and was received back with the report that the petitioner was served or not with the said notice, compelling the Member Board of Revenue to serve the petitioner and respondent No,3 through publication in the newspaper in daily Khabrain, Lahore dated 16-6-1994. No such document was annexed with the reply, however, a photo copy of publication, said to have been issued by Member (Judicial-III), Board of Revenue Punjab Lahore was published in daily Khabrain Lahore on .16-6-1994 pertaining to almost eighteen cases of different persons including the present petitioner who belongs to District Toba Tek Singh.
9. The record keeper appearing on behalf of Member Board of Revenue has also failed to show that any postal certificate has been issued and placed on record of the Board of Revenue showing that a copy of the said daily Khabrain was ever sent to the petitioner and respondent No,3 under postal receipt. It is a mandatory requirement of service through proclamation in the daily newspaper. In the absence of any such document showing that the said daily Khabrain newspaper was sent to the petitioner or respondent No,3, it cannot be presumed that they were ever served with any show-cause notice, said to have been issued by the Member Board of Revenue, thus, the proceedings conducted by the Member Board of Revenue terminating the rights, vested with the petitioner and respondent No,3, without affording an opportunity of hearing to them is not sustainable under the law. The case of the petitioner is that he never served with any show-cause notice and he was condemned unheard and all the proceedings conducted by the Member Board of Revenue in his absence are without lawful authority and against the principle of natural justice.
Nobody should be condemned unheard.
10. "Natural Justice" is not capable of any precise definition, whether or not, the rule of natural justice has been violated in a particular case, must be determined in a particular case, must be determined in the light of rights violated. Reference is placed on Ijlas Ahmad Siddiqi v. The Municipal Committee, Multan and another PLD 1967 Lah.
408.
"Natural justice" the principle of audi altram partem means the principle of "Natural Justice".
Reference is made to the State of Madras v. Messrs Gannon Dunkerley & Co. (Madras) Ltd. AIR 1958 SC 573.
11. Without discussing the merits of the case as to whether father of respondent No,3 failed to bring under cultivation the land given to him on lease under Grow More Food Scheme and resultantly his allotment was cancelled or whether respondent No,3 was entitled to the other alternate land and grant of proprietary rights or whether the order passed by the Collector, Toba Tek Singh was without lawful authority, void and ab initio. It would be in the interest of justice that an opportunity of hearing should be granted to the petitioner by the Member Board of Revenue. In this view of the matter, case is remanded to the Member Board of Revenue, Punjab Lahore, who shall hear the matter and decide the same, after giving full opportunity of hearing to the petitioner in accordance with law and decide the matter within a period of three months on receipt of this order, under intimation to the Deputy Registrar (Judicial) of this Court. The petitioner is directed to appear before the Senior. Member Board of Revenue, Punjab, Lahore on 16-4-2007. Writ petition disposed of.