' KHALIL-UR-REHMAN KHAN, J.--Briefly stated the facts relevant for the disposal of this Intra-Court Appeal are that 243 Kanals 11 Merlas of agricultural land in village Nathuki Tehsil and District Lahore were allotted to appellant No,1 on 18-2-1964 under the provisions of the West Pakistan Border Area Regulation, 1959 by the Border Area Committee (hereinafter referred to as the Committee). He was allowed to deposit the price of the land which was duly deposited and a mutation transferring the land permanently in his favour was sanctioned on 25-4-1970. Similarly, appellant No,2 was allotted 242 Kanals and 3 Marlas of land in the same village on 18-2-1964. He too was permitted to deposit the price of the land and after the deposit so made the land was permanently mutated in his name on 25-4-1970. On 14-10-1970 the Committees cancelled both these allotments on the ground that these were fictitious and bogus and all this land was then allotted to Major Zafar Ali deceased respondent No,3 on 22-10-1970. The order of cancellation of the land from the names of the appellants and the order allotting the land in favour of deceased respondent No,3 were challenged by the appellant by filing Writ Petition No,1102/A/R/70 which was accepted by this Court vide order, dated 15-4-1971 holding that the order, dated 15-10-1970 cancelling the allotment without hearing the appellants could not be upheld and that unless the allotment made in their favour was correctly set aside, the land in question could not be allotted to deceased respondent No,3. It was also observed in this judgment that it was not for this Court to decide the question whether the allotment made in favour of the appellants were bogus or genuine and that this fact had to be ascertained by the Committee in the course of proper proceedings.
2. The Committee, in pursuance of the order, dated 15-4-1971 of this Court, considered the matter again. Appellant No,1 appeared in person before the Committee but appellant No,2 did not appear as he was a Prisoner of War at that time. The Committee in its report submitted to this Court asserted that appellant No,1 had also represented appellant No,2 as he had produced documents regarding the allotment allegedly made in the names of both the appellants. The Committee after hearing appellant No,1 again held vide order, dated 3-12-1971 that the allotments made in favour of both the appellants were illegal and as such the area allotted to them deserved to be cancelled and that the order of allotment made in favour of deceased respondent No,3 deserved to be maintained. This led to the filing of Writ Petition No,537-R of 1972 and the same was dismissed by a learned Judge of this Court vide order, dated `10-1-1977, hence this intra-Court appeal.
3. The pleas taken before the learned Single Judge were as follows:- "(a) that petitioner No,2 was not heard before the impugned order was passed;
(b) that the impugned order has been passed on the basis of the letter of the G.H.Q referred to in the impugned order itself, and the Border Area Committee had not applied its own mind to the question; and
(c) that the allotment of land in favour of petitioners Nos.1 and 2 were not illegal."
' These pleas were repelled by the learned Single Judge holding that the order impugned in the constitution petition whereby the allotments were cancelled cannot be legally objected to because the original allotments were not validly made. This finding proceeded on the observation that the appellants could only be allotted the land in dispute if they had been recommended for allotment by the General Head Quarters in view of the provisions contained in Schedule I of Martial Law Regulation No,9 but they were unable to show that any such recommendation was made by the G.H.Q. In their favour. The plea that appellant No,2 was not heard was also repelled by taking note of the fact that Ch. Bashir Ahmed Alvi, Advocate, the learned -counsel who represented the appellants in the High Court in both the aforesaid writ petitions had appeared before the Committee. As regards the denial of the learned counsel to the effect that he had not represented appellant No,2 before the Committee it was observed that such a factual controversy cannot possibly settled in the constitutional proceedings. The other plea that the impugned order was passed on the basis of the letter of the G.H.Q. Referred to in the impugned order itself and the Committee had not applied its own mind to the question was also not accepted observing that the Committee was entitled not only to rely upon the recommendation of the G.H.Q but under para.6 of the Regulation was obliged to act in accordance therewith and hence, it cannot be said that the Committee had passed the order under the dictation of the G.H.Q.
4. We have heard the learned counsel for the parties and have also gone through the documents placed on record of this appeal. Learned counsel for the appellants besides urging the pleas which were argued before the learned Single Judge submitted that the inability of the appellants to show from the file of the writ petition the recommendations of the G.H.Q. Could not be made the basis for holding that the original allotments in the names of the appellants were not validly made. It was added that this was never the reason for cancelling the allotments made in favour of the appellants and as such the said plea was neither available to the respondents while arguing the second constitution petition before the learned Single Judge nor the burden can be placed on the appellants to show the existence of any such recommendation. There is much force in this submission. In the first constitution petition (W.P. 1102/A/R-70) such a plea that the G.H.Q. Had not recommended the case for allotment of the land to appellants was not taken. Again in the report submitted in connection with the second constitution petition (W.P. 537-R-72) the fact of lenience of the allotment orders (Exh.P.1 and Exh.P.2) by the Committee was admitted. It was, however added that the Khasra numbers given in these permits were the ones assigned in consolidation proceedings although the consolidation operations in the village had not concluded by then. Even in the written statement filed on behalf of deceased respondent No,3 pleas that these allotments were made without any recommendation of the G.H.Q. Was not taken. A reference to the order passed by the Committee is also appropriate. The Committee vide order, dated 19-10-1971 while referring the matter to the G.H.Q. In compliance with the provisions contained in para.6 of the Scheme framed under Martial Law Regulation No,9 gave two reasons for holding that the allotments were bogus. These were that the allotment permit issued in favour of Farzand All was, dated 18-2-1964 but it was not implemented in the revenue record till 1970 and that though the consolidation scheme was confirmed in 1965 but the allotment permit, dated 18-2-1964 contained Khasra numbers allotted to the land during the consolidation proceedings. Again after receiving, concurrence of the G.H.Q. The order, dated 13-12-1971, was passed, declaring the allotments in question to be illegal in view of the letter received from G.H.Q. The ground that G.H.Q. Had not in fact made any recommendation or that any such recommendation was not available. On record was conspicuously absent. It will be pertinent to note that even in the correspondence exchanged between the Committee and the G.H.Q., copies of which were appended with the written statement of deceased respondent No,3, no mention was made that the G.H.Q. Had not recommended the case of the appellants for allotment of the land in question or that such recommendation was not available on the record. In view of the above the appellants could not expect that at the arguments stage they will be called upon to establish that the G.H.Q. Had recommended their cases for allotment of the land in question. In fact the question of availability or non-availability on the record of the writ petitions of the recommendation of the G.H.Q. Could not have been allowed to be raised as the same was not the basis for cancelling the A allotments. There was nothing on record produced before the learned Single Judge to establish that the G.H.Q. Had not made the recommendation in favour of the appellants and in the circumstances noted above the appellants could not fairly be caught unaware. Even before us the record of G.H.Q. Was not produced to show that the recommendation had not in fact been made by the G.H.Q. The burden of proving that recommendations had not in fact been made lay on the respondents in the circumstances of this case especially when this is matter of record which is available with the respondents. We are, therefore, of the considered view that the inability of the appellants to show from the record of the writ petition the recommendations made by the G.H.Q. Could not in the circumstances noted above, be made the basis for holding that the original allotments were invalid.
5. Coming to the two grounds of cancellation given in the reference order, dated 19-10-1971, it is to be noted that the consolidation operations commenced in the village in the year 1961 and were finalized in the year 1965. In these circumstances, the mention of Khasra numbers assigned during the consolidation operations in the allotment permits issued in February, 1964 cannot lead one to the only conclusion that the allotment permits were bogus or fictitious. It is pertinent to note that the signatures of the two officers appearing on the allotment permits were neither challenged nor these officers were ever asked to verify their signatures. As regards non-implementation of the allotment permits in the revenue record till 1970 the explanation offered has the support of the record according to which the revenue record of the village was destroyed in the war of September, 1965. Again the plea of the appellants that they are in possession of the land since allotment in the year 1964 was not denied. They have also admittedly paid the transfer price of the land and the mutations conferring the proprietary rights were also admittedly sanctioned in the year 1970.
6. Another important feature which was not brought to the notice of the learned Single Judge was that in the reference order, dated 19-10-1971 nothing was said about the allotment of appellant No,2. Despite this after receipt of letter of concurrence from G.H.Q., the allotment in the name of appellant No, 2 was also cancelled. The fact that no reference was made to the allotment of appellant No, 2 also fortifies the plea of this appellant that he being P.O.W. Did neither appear nor was represented by any one before the Committee. The order, dated 19-10-1971 also states that Farzand All one of the appellants attended and that the objections of the said appellant in attendance were heard. In view of the above the plea of the learned counsel Mr. Bashir Ahmad Alvi that he had not appeared before the Committee for appellant No,2 has to be accepted. The impugned order to the extent of appellant No,2 on this ground alone stands vitiated.
7. For the reasons given above, we have not found it possible to agree with the finding recorded by the learned Single Judge. The judgment, dated 10-1-1977 is, therefore, set aside and consequently the orders impugned in the constitution petition are declared to have been passed without lawful authority and are, therefore, quashed. The parties are however, left to bear their own costs.