MUSHTAQ HUSSAIN, J.--Allotment of land in village Khudpur, Tehsil and District Lahore, was confirmed in the name of Mst. Aisha Begum, Jafar Ali Zaidi, Masud Ali Zaidi, Syed Nasir Ali Zaidi, Muhammad lqbal, Amjad Ali Zaidi, Syed Latif Shah, Kaneez Fatima and Syed Hussain Mian. The area of land confirmed in favour of each has been given in Paragraph I of the Writ Petition. The land is classified as "Hithar" which means land situated around the river bed, interspersed by streamlets, bushes etc.
2. On the 6th of March 1962 these allottees sold the land in dispute to the petitioners for a sum of about four lacs of rupees. Some time later, the aforesaid confirmed allottees received notices from respondent No, 1 calling upon them to show cause why the allotment of their land should not be cancelled as they had obtained more area than they were entitled to. The alienors were duly heard and respondent No, 1 exercising powers of the Chief Settlement Commissioner cancelled the allotment of land equal to 21748 P. I. Units on 29th July 1964. This order was challenged by Settlement Revision Petitions Nos, 15 to 23 of 1964, but the same were dismissed by a Division Bench of this Court on 19th August 1964, with the observation that a Revision Petition lay against the order to the Chief Settlement and Rehabilitation Commissioner and, therefore, he should be approached first. The petitioners, who are the alienees, moved the Chief Settlement and Rehabilitation Commissioner under section 19 of the Displaced Persons (Land Settlement) Act of 1958 but their petition was rejected in limine on 18th September 1964. Hence this Settlement Revision Petition.
3. The only grievance which has been pressed before us is that the land having been alienated by the confirmed allottees mentioned above in favour of the petitioners, the respondents could not take any action under the law which could deprive the alienee-petitioners of the land in dispute without first giving them a hearing. It is not denied by Major Ishaq Muhammad Khan, who has appeared for the Department, that the petitttioners were, in fact, never heard. It has, however, been contended that the law did not require the giving of a hearing to the petitioners and, therefore, the order was valid.
4.The petitioners have relied upon the judgment of the Supreme Court in Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner and others. The relevant portion is at page 133 of the Report and runs as follows :- "It is plain that before the impugned order was passed by the Settlement and Rehabilitation Commissioner the second and third appellants who had been associated with the first appellant, with the requisite permission of the Settlement authorities themselves, had acquired a vested right in the property in question and had been issued a P. T. O. in their favour, jointly with the first appellant, without giving them any notice or an opportunity to be heard, the Settlement and Rehabilitation Commissioner could not have interfered with their property rights. In so far as he did so, he contravened the principles of natural justice and this circumstance, alone, would invalidate the impugned order. To this part of the appellant's case, neither Dr. Nasim Hasan Shah nor the learned Attorney-General was able to give an anser."
Major Ishaq Muhammad Khan repelled the argument of learned counsel for the petitioners by placing reliance upon a judgment of this Court in Settlement Revision Petition No, 62 of 1965 dated 3rd March 1966 in which the aforesaid judgment of the Supreme Court was considered and distinguished on the following ground :- "We are afraid, the ruling cited by the present counsel is not on all fours with the circumstances of the present case. In the case referred to above, it was held that persons associated with permission of Settlement authorities acquired a 'vested right' in property and as such could not be deprived of right without being heard. In the present case Settlement Authorities were not parties to the transaction and that, therefore, they were not bound to hear the petitioner who is a mere alienee."
Apart from the fact that the observations were made by Abdul Hamid and Abdul Ghani Khattak, JJ. in a Petition dismissed in limine and, therefore, could not be cited as a precedent since the ether party was not heard, the fact remains that the law was not placed before their Lordships in the correct perspective. In the case before us, it was conceded by the learned Settlement Commissioner (Legal) that eversince 1957 there was no restriction on the sale of agricultural land by an allottee whose allotment had been confirmed. In fact, Paragraph 14 of Chapter IV of Part I of the Rehabilitation Settlement Scheme, printed at page 136 of the book, entitled "The Displaced Persons (Land Settlement) Act, XLV II of 1958" by M. A. Latif runs as follows :- "14(1) The allottees concerned may transfer by sale, exchange, gift, will, mortgage or other private contract their rights or interests in the land allotted to them under the Rehabilitation Settlement Scheme except where-- (a)the allottee concerned has not made full and final settlement of any Government dues, including the Rehabilitation Fee ; (b)the land held by the allottee concerned is the subject-matter of an appeal, revision or review before a Rehabilitation Authority ; (c)the land has been allotted in lieu of rights as mortgagor or mortgagee till such time as the allottee concerned has fulfilled the terms and conditions contemplated to be prescribed in regard to such cases ; (d)the land has been allotted provisionally on the basis of a certificate issued by the Central Record Office in accordance with para. 10, Chapter I, Part II of the Rehabilitation Settlement Scheme :1 Provided further that if the allottee-alienor is subsequently found to have obtained the allotment of land by fraud or by misrepresentation, the alienation will be deemed to be void.
(2) Such alienation will only be entered in the cultivation column of the records the implication being that the land will continue to be evacuee property even after alienation."
There is no allegation in this case that the land in dispute is covered by any of the Exceptions contained in clauses (a) to (d) of Paragraph 14, quoted above. The alienors in the present case, therefore, had the right to dispose of the property in dispute.
5. The quotation from the judgment of the Supreme Court, referred to above, contains the following observation :- "The second and third appellants who had been associated with the first appellant, with the requisite permission of the Settlement authorities themselves, had acquired a vested right in the property in question."
(The underlining is ours)
The use of the expression "requisite permission" shows that permission of the Settlement authorities was a condition precedent to "association". That case was covered by the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). Under that law, the provision relating to "association" is contained in Paragraph 33 of Chapter V of the Settlement Scheme No, I-- "A proposed transferee may, for the purpose of making payment of the transfer price, associate any other claimant. In such a case the property shall be transferred to all the associates in such shares as are agreed upon in writing between them."
Mere association between the parties under that law does not confer any rights upon those who associate with the proposed transferees. The rights are conferred only after the property is transferred to all the "associates" as required by this Paragraph. Under that law even provisional transferees i,e, the holders of Transfer Orders do not have the right to transfer property except by "association" and consequent amendment of the Provisional Transfer Order itself. In the cases covered by that Act, "requisite permission" is a sine qua non for the vesting of rights in the alienees.
We have already seen above that there is no such provision or inhibition regarding transfer of agricultural land the allotment of which has been confirmed. There being no inhibition, permission of the Settlement authorities is not "requisite" in such cases and vesting of rights in the alienee takes place by mere alienation without further ado. This position of law was not brought to the notice of their Lordships in Settlement Revision Petition No, 62 of 1965, referred to above. The stand taken by Major Ishaq Muhammad Khan on the basis of this judgment does not therefore, cut any ice.
6. It was suggested by the learned Settlement Commissioner (Legal) that the Deputy Settlement Commissioner had only cancelled the allotment of the alienors and not the sale in favour of the petitioners and they cannot claim to be aggrieved by the impugned order and have no locus standi to challenge it. It was further suggested that they could always file a suit for recovery of the sale consideration paid by them. With all respect, this argument has only the merit of ingenuity on its side. The Proviso to Paragraph 14 of the Scheme, quoted above, reads as follows :- "Provided further that if the allottee-alienor is subsequently found to have obtained the allotment of land by fraud or by misrepresentation, the alienation will be deemed to be void."
In the present case, the basis of the impugned order is-- "The excess allotment of land was thus a result of deliberate misrepresentation of facts made to the confirming authority."
The effect of this finding coupled with the Proviso to Paragraph 14 would have the result of avoiding the sale also. The argument that it is the allotment which has been cancelled and not the sale is, therefore, devoid of all force and is not tenable.
Act, 1958, lays down that when an allottee ceases to be entitled
7. Section 11(2) of the Displaced Persons (Land Settlement to the possession of land because of the cancellation of allotment under subsection (1) he has to surrender the possession to the. Chief Settlement Commissioner when called upon to do so.
The deprivation of the petitioners, both in law and fact, would thus be complete as a consequence of the impugned order.
8. It was also submitted that since the allottees were entitled only to the allotment of as much land as was in proportion to their entitlement, they had no right over the excess area secured by them by misrepresentation and since the petitioners only succeeded them, as vendees they could not be entitled to more than the vendors. It is sought to be concluded from this submission that the petitioners can, therefore not feel aggrieved if the excess area is taken away. We do notif the learned Settlement Commissioner (Legal) is really serious in advancing such a hollow argument.
The petitioners have paid for the entire land confirmed in the name of the vendors. They, therefore, legitimately claim that they have become persons aggrieved the moment they are sought to be deprived of any pare of the land purchased by them even if the basis be that the vendors had obtained it by misrepresentation. They, further, rightly, claim that before being deprived of that property they should be given a chance of being heard by the Deputy Settlement Commissioner before whom they might have been able to prove that such misrepresentation did not take place.
The vendors having been divested of the land by sale had no interest left in it and consequently had no interest either in defending the case before the Deputy Settlement Commissioner with the agility and vigilance which they would have done if they had not sold it.
9. It was also submitted before us that by virtue of Paragraph 14 of Martial Law Regulation No, 89, the alienation was void. Assuming that it is correct, all the more reason that the petitioners should have been heard by the Deputy Settlement Commissioner because the matter did involve the avoidance of the sale as well as of the right created by it as a necessary corollary.
10.It was also sought to be argued before us that in cases under section 10 of the Act X LVII of 1958 it was only the allottee who has to be heard. The basis of this argument is that the object of the Act is to allot Sand against verified claims to claimants and it is only such claimants who have been described as "person" in section 10. It is allotment which is cancelled and no one else need be heard. The whole argument of the petitioners is based upon the non-observance of the principle of natural justice expressed in the maxim, "audi alteram partem" It has been held more than on :e by this Court as well as by the Supreme Court that this principle comes into play only when a provision to that effect has not been made in a particular statute under which action is sought to be taken.
Even if. therefore, it were to be assumed for the sake of argument that the word "person" in section 10 refers only to the claimant in whose favour an allotment has been made and not his heirs, successors or assignees, any body with a vested right in the property in question would be entitled to be heard because of the operation of the aforesaid maxim.
11.We may also observe that the Proviso to section 11(1) itself lays down that no order under that subsection shall be passed without "giving the person affected thereby a reasonable opportunity of being heard." The principle of audi alteram partem is, therefore, enshrined in the section itself. In the present case, the Deputy Settlement Commissioner exercising the powers of the Chief Settlement Commissioner has cancelled the allotment of the alienors to the extent that it is alleged to be in excess of their entitlement. The terms of the Proviso had, therefore, to be complied with. The "person affected" in this case certainly included the alienee-petitioners because it is they who are to suffer on account of this order. There is, therefore, no justification for the submission made by the learned Settlement Commissioner (Legal) on this score.
12. In spite of the fact that the learned Settlement Com-missioner was of the view that although on the face of it the Proviso admits only of the interpretation given to it by us he insisted that if the whole Act were to be read, it would be clear that the word "person" used in the Proviso applies only to claimant-allottees. He, however, could not demonstrate to us how he arrived at the conclusion that a reading of the whole Act led to the interpretation which he sought to place on the Proviso.
13.We may not pass over this point without observing that if the argument advanced by the learned Settlement Commissioner (Legal) were to be accepted, the result would be that the Chief Settlement Commissioner would be powerless to take any action against the heirs of the person who secured allotment of land by means of fraud or false representation and died thereafter because according to learned Settlement Commissioner (Legal) the word "person" used in this section is not susceptible to an interpretation whereby anybody other than the claimant-allottee himself is also included. This, of course, could never be the intention of the Legislature and is, in any case, not manifest from the language employed by it.
14.Having thus found that the learned Deputy Settlement Commissioner exercising powers of the Chief Settlement Commissioner had failed to hear the alienee-petitioners, who were affected by his order, we accept the petition and declare the impugned orders to be without lawful authority and of no legal effect. The case shall now go back to the- learned Chief Settlement Commissioner for being disposed of by him or his delegate after hearing the alienors as well as the alienee- petitioners. Costs shall be costs in the cause. PLD 1965 SC 123