' S. A. NUSRAT, J.-The petitioner is a Government servant. His father who was a displaced person, died in Pakistan before the introduction of law with regard to registration of claims. After the coming into force of the registration of Claims Act, the petitioner and his brother, Nazir Muhammad, applied for verification of their father's claim in respect of lands left in India, which was duly verified on 6th June, 1958. The petitioner and his brother were allotted land on the strength of the said verified claim in Dehs Hassan Baghban and 20-Heral Taluka Samaro, in equal shares. The petitioner got 72.39 acres in Deh Hassan Baghban and 88 acres in Deh 20-Hiral, taluka Samaro District Tharparkar, against his share.
2. Consequent upon the promulgation of M.L.R.-89-91, the petitioner surrendered 88 acres of land in Deh 20-Hiral, Taluka Samaro, and opted for the purchase of the same and thus he retained and continued to be in possession of the said land. He sold 23.26 acres out of the land held by him in Deh Hassan Baghban and purchased 20.05 acres of land after permission from the head of his department, namely, Deputy Commissioner, Tharparkar. On the coming into force of the M. L. R. 115, the petitioner filed the requisite declaration by way of abundant caution stating the manner of acquisition of land as aforesaid. In his declaration form he also mentioned the fact that he had agreed to sell his land situated in Deh 20-Hiral, Taluka Samaro, -under a registered agreement dated 10th December, 1%5 in favour of M/s. Lukman and 6 others. Such declaration filed by the petitioner was examined by the respondent No, 3, who by his order dated 17th May, 1972, held that 72.39 acres of land holding by the petitioner in Deh Hassan Baghban was deemed to be inherited land within the meaning of Paragraph-10 of M.L.R. 115 and rest of the area in his possession fell below the prescribed limit of 100 acres which could be retained by a Government servant. The petitioner was first served with a notice dated 18th :December, 1975 in respect of the hearing of revision application by respondent No. 1 on 18th December, 1975 at Islamabad. The petitioner duly appeared alongwith with counsel on the said date of hearing when the case was heard and reserved for orders. The respondent No. 1 did not announce or communicate any decision to the petitioner, who thereafter received a notice on 13th October, 1976, from the respondent No, 2 requiring to appear before him at Karachi on 16th October, 1976. It is alleged that the petitioner contacted his counsel to represent him in the proceedings before respondent No, 2 on 16th October, 1976. However, the learned counsel, Mr. Ismail Memon, could not appear before respondent No, 2 on the date of hearing as he was taken ill. The learned counsel, however, sent an application for adjournment through Mr. Habibullah, Advocate of Hyderabad. It is stated that Mr. Habibullah, Advocate, duly appeared before the respondent No, 2 and moved application for adjournment on behalf of Mr. Ismail Memon. The said application, however, was rejected on the ground that the same was not supported by a medical certificate and the learned respondent No, 2 proceeded to decide the case.
3. Mr; Ismail Memon, learned counsel for the petitioner, contended that the mention in the impugned order that the petitioner was present alongwith his counsel during the hearing of the case is factualy incorrect. He, further, pointed out that the impugned order further goes to mention as under "I have heard the counsel for the declarant and have seen the record with 'reference to the objection. The learned counsel for the declarant has not been able to rebut, the contention made by the Inspection Team."
' In order to support the above assertion the learned counsel, Mr. Ismail Memon, has filed his personal affidavit and also the affidavit of Mr. Habibullah, Advocate. Besides the petitioner has filed a certificate dated 16th February, 1977 issued by the Deputy Commissioner, Tharparkar, Mirpurkhas, categorically confirming that the petitioner was on duty in the office of Deputy Commissioner, Tharparkar, on 16th October 1976. The learned counsel further pointed out that after coming to know about the fate of his application for adjournment through Mr. Habibullah, Advocate, he had addressed a registered letter dated 22nd, October, 1976 to the Minister for Food and Agriculture and protested against the passing of the ex pane order and requested for hearing in the matter in the interest of fairness, equity and justice. He, however, received a reply dated 8th December, 1976 through the legal adviser to the Federal Land Commission, which mentions that Federal Land Commission had no power in matter and as such the application could not be entertained. The counter-affidavit filed on behalf of the respondents, in reply to the specific allegation, that neither the petitioner nor his counsel were afforded opportunity of being heard, is penurious. All that has been mentioned is that the impugned order itself shows that the learned counsel for the petitioner was duly heard. In the circumstances affidavits. Filed by the two learned counsel, cannot be ignored and must be accepted. The counter-affidavits filed by the learned counsel find support from the certificate dated 16th February 1977 issued by the Additional Deputy Commissioner, Tharparkar, showing that the petitioner himself was on duty in the office A of Deputy Commissioner, Tharparkar on 16th October, 1976, while the impugned order mentions that he was present before the respondent No,
2. Mr. Sabir Hussain Rehmani, learned counsel for the respondents, could not controvert these facts in view of the nature of the affidavit filed on behalf of the respondents.
4. On the basis of the facts, recapitulated hereinabove, the learned counsel for the petitioner contended that the impugned order was liable to be set aside on the short ground that the same was passed without affording an opportunity of being heard to the petitioner in total disregard of the provision in the second proviso to Paragraph 29 of the Land Reforms Regulation, 1972 (M. L. R.
115) which reads as under :- "29. Revisional...... ............................................................................
Provided...................................
' Provided further that no order shall be passed under this paragraph revising or modifying an order affecting any person unless 'such person has been afforded an opportunity of being heard :"
5. As a result of the above discussion we are satisfied that the impugned order was passed behind the back of the petitioner and as neither he was present on the date of hearing nor his counsel was heard although it has been so mentioned in the impugned order. Thus not only there has been violation of the rule of natural justice but the statutory requirement contained in proviso to paragraph 29 of the Martial La Regulation 115 itself was ignored.
6. In the result this petition succeeds and it is declared that the impugned order dated 10th October 1976, was passed by the respondent ,No, 2, without lawful authority. The same is, therefore, declared void and of no legal effect. The parties are left to bear their own costs. It will, however, be open to the Federal Land Commission, or any officer' duly authorised under the said Paragraph, to dispose of the matter afresh after hearing the petitioner.