' Facts, relevant for the disposal of the present constitution petition are that Umar Din, a displaced person from District Hoshiarpur had a verified claim for 779 P.I. Units. Out of the said units he was allotted land equivalent to 700 P.I. Units leaving only 79 Units to be settled. An area of land measuring 29 Kanals 12 Marlas situate in Revenue Estate of Lala Mehr Chand, Tehsil Toba Tek Singh District Faisalabad was proposed in the name of the aforesaid claimant on 24-5-1969 by Chairman, Allotment Committee. This was against 39 P.I. Units. Neither confirmation has taken place nor proposal rejected. So far, Muhammad Anwar, and others plaintiffs instituted a civil suit for declaration claiming ownership in the land inclusive of land included in the pr -osal of Umar Din, in the civil Court, at Toba Tek Singh. Umar Din, in his written statement, defended his title to the land.
Parties, produced evidence also in support of their varying versions. Before the suit could be decided on merits, plaintiffs in the aforenoted civil suit, applied to the Court for permission to withdraw with right to institute a fresh suit on the same cause of action. Learned Civil Judge who had seizin of the civil suit accorded the necessary permission on 13-6-1984. Umar Din, challenged this order in revision before District Judge, Toba Tek Singh and succeeded in getting the order reversed. Revision was allowed, order, dated 13-6-1984 set aside and the case was remanded to learned Civil Judge for its decision on merits. In the post-remand proceedings, plaintiffs withdrew their suit unconditionally which was in consequence, dismissed as withdrawn on 31-10-1984. This ended the legal battle on the civil side. It is stated that Umar Din for the first time in course of Civil proceedings, came to know that proposal was still not confirmed. In consequence, he approached Assistant Commissioner/Deputy Settlement Commissioner (Lands), Toba Tek Singh with prayer to pass an appropriate order on his personal file and confirm the land. Deputy Settlement Commissioner, called for reports from the lower revenue staff. Village Patwari, Girdawar and Tehsildar, recommended that in view of the instructions issued on the subject, petitioner's proposal was to be confirmed. In the light of these recommendations, the case was placed before Assistant Commissioner, Toba Tek Singh/D.S.C. Notices were issued to Umar Din as well as to village Patwari.
On 15-1-1983, learned Assistant Commissioner, dismissed the application on account of non- appearance of Umar Din. The obvious result was that neither proposal had been rejected nor confirmed and the position prevailing prior to the making of application for confirmation by Umar Din stood revived. Meanwhile treating it to be the available land, the area in dispute was put in schedule for its auction. This act of the Assistant Commissioner, caused grievance to the writ petitioner and he, in this background, invoked constitutional jurisdiction of High Court for an appropriate writ or a direction to the Assistant Commissioner directing him to pass an appropriate order on his application for confirmation of the land. In the meanwhile land was put to auction.
Restraining order however was issued by this Court, stopping confirmation of the auction.
2. Comments have been received. Counsel have been heard. Mr. Shamim Abbas Bokhari, Advocate, relying on certain instructions, stated that it was the right of writ petitioner to get this land confirmed. Assistant Commissioner/D.S.C., was obligated to make some definite order on the aforesaid proposal existing on Register RL.II. Mere fact that Umar Din, did not enter appearance, did not absolve the Assistant Commissioner from, himself inquiring into the matter and passing an appropriate order either way. He submitted that no notice was received by Umar Din for the aforesaid date of hearing. It was not conceivable that the writ petitioner who had been fighting hard for all these years, to get the land, would not put in appearance before the Assistant Commissioner when the matter was ripe for decision. Mr. M.M. Saeed Baig, Advocate appearing for the respondent, submitted that the original proposal was not signed by a competent officer and thus question of its confirmation, therefore, did not arise.
3. In view of the order proposed I need not enter into the merits of the proposal. That is a matter for the Assistant Commissioner to consider after looking into his own records. One thing obviously is clear that the revenue officials from village Patwari to Tehsildar, had, on examination of the records, recommended confirmation. Such being the situation, Assistant Commissioner, could, even in the absence of writ petitioner have examined the records and passed some appropriate order, so that the matter which was being agitated since 1969 could have ended satisfactorily. Instead of doing so, the learned Assistant Commissioner chose to dismiss the petition in default leaving the proposal intact as before. This, to my mind, was not a satisfactory decision of the matter.
Impugned order, was wholly untenable. In the result, writ petition is allowed, impugned order dated 15-1-1983 is set aside and declared to have been made without lawful authority. Necessary corollary of the declaration is that the matter needs re-examination by a competent office, is remitted to learned Member, Board of Revenue Punjab, for its examination and decision afresh in the light of Instructions issued. Member, Board of Revenue, may, either, himself decide the matter or entrust it to some other competent Officer. Auction proceedings shall be subject to the result of any final order passed on the confirmation application. No order as to costs.
Writ issued.