' MUHAMMAD ZAHOORUL HAQ, J.--The disputed land is situated in Deh Gular, Taluka Tando Adam, District Sanghar. The area of land in respect of Petition No,164 of 1978 is 121.12 Acres and in Petition No,560/78 it is 32 Acres. The petitioners, Haji Muhammad Hassan and others claimed to be the transferees of the land from Meharban Din respondent No,7 who was in his turn transferred the said land from the Settlement Department. In 1974 the land had been mutated in favour of the petitioners in the record of rights. Petitioners, A.Hamid and Wilayat claim to be transferees by sale from claimant Barkat Ali, the original transferee from Settlement Department in satisfaction of his claim in 1965.
2. However, the Sukkur Barrage Authorities had raised the dispute that the land in question belonged to them and they have filed a petition in the High Court which was decided in their favour on 17-1-1977 and it was held that it was a Government land and the same could not have been transferred by the Settlement Department to the claimant. The petitioners were not, however, parties to the said petition.
3. On the basis of the decision of the High Court the land in question was cancelled from the allotment of Meharban Din and as a consequence thereof the Mukhtiarkar cancelled the mutation of the land from the name of the petitioners M.H. Hassan and others on 5-7-1979.
4. The other side of the facts is that on 30th of April, 1960/ 31-12-1960 the land in dispute alongwith other land was granted by Barrage Authorities to respondents Nos.4 and 5 on Yaksala lease which was extended for 3 years but the same expired in 1963. One Rauf had challanged the lease in favour of respondents Nos.4 and 5 but on 27-9-1963 the Member of Board of Revenue declared that since the lease in favour of respondents Nos. 4 and 5 had expired, therefore, the revision had become infructuous. He, therefore, directed the Colonization Officer to dispose of the claim of the parties and others on merits in accordance with the Government policies and it was suggested that the area may be split up into reasonable blocks to enable its rapid development. The said order was passed on 27-9-1963 and respondents Nos. 4 and 5 were parties to the same. Thereafter, nothing appears to have been done by the Barrage Authorities till 23-10-1977 when the Sind Government approved the exercise of the right of first refusal by Sufi Muhammad Shaft and others in respect of 283 Acres of land including the present land in Deh Gular.
5. The petitioners, who are claiming to be the sitting Haris in respect of the said land as well as transferees from the claiming transferee of the Settlement Department had filed the review petition on 11-12-1977 to the Board of Revenue seeking the review of the order dated 23-10-1977 and claiming that the land may be treated as Naqabuli land and be granted to petitioners as per new grant policy. The petitioners had stated in their review petition that the land had been rightly declared as Barrage land by High Court but the petitioners are entitled to get the land as Haris to save them from double loss which they have suffered. They have also attached with their review petition the copies of Khasra, land revenue receipts, bills, Colonization Officer's Rubkari, water share list and Dakhil Kharij.
6. It appears that the Board of Revenue rejected the claim of the petitioners on the ground that the lease of 223 Acres was sanctioned on 30th April, 1960 and 31-12-1960 and, therefore, 90% cultivation was not necessary. In respect of the claim of the petitioners it was observed that the petitioners could recover the amount, if any, paid by them from the so-called claimant who was their transferee. It is apparent from the perusal of the order, dated 5-1-1978, whereby the review application of the petitioners was rejected that their claim for allotment of this land on the basis of being Harts had been left out of consideration.
7. The petitioners had claimed in para. 13 of their amended petition that no notice of any hearing was issued to them by the Board of Revenue nor the petitioners were heard. This position has not been controverted in any of the affidavits of the respondent but the respondents had denied that the petitioners had any vested right in respect of the allotment.
8. The petitioners have claimed that in accordance with the para. 4 of the notification issued by the Government of Sind on 20th November, 1972, the Harts had a prior right in respect of the land grant.
But the same has not been considered and their review petition has been rejected without any hearing being granted to them and without their position in respect of Harts having been considered.
9. The position in respect of lack of hearing of the petitioners before deciding the review application is obviously an admitted position. Mr.Nooruddin Sarki and Mr. Abbas H.Farooqui had, however, submitted that since the petitioners had never applied for the grant of the land, therefore, they could not have been considered as aggrieved persons by the order of 23-10-1977. We do not agree with this submission. It is correct that a formal application had not been made by the petitioner Haji Muhammad Hassan and others but they have been agitating about their rights previously and even the application for review could b considered as a original application by those petitioners and the same had to be disposed of on merits. If the petitioners are really the Hari of the land in dispute then their claim has to be given due consideration. Moreover, A.Hamid and Wilayat had applied for grant on 29-11-1977, but even that was not considered. We are not making any comment on the respective merits of the claims of the petitioners and respondents. Nos.4 and 5 because we are remanding the case back to the Board of Revenue for decision of the review application made by the petitioners. There is no particular time limit prescribed for the submission of application for grant of land and, therefore, the application of th petitioners made by two of them on 29-11-1977 and by others as a review application on 11-12-1977 should have been considered on it own merit after hearing the petitioners. The claim of the petitioners has to be decided after considering their claim as Haris. Even th claim of respondents Nos.4 and 5 does not appear to have been correctly considered vis-a-vis the suspension of their lease between 1963 to 1977 and the same has to be considered in its proper perspective. The petitioners had also alleged that respondents Nos.4 and 5 had never been in possession of the land in dispute, but even this position has been left out of consideration. Both these matters could react on the right of first refusal. The rights of sitting Haris, if the petitioners are really so, should not be allowed to be defeated on the mere technicality of not having made a formal application when some of them have in fact made an application for grant' on 29-11-1977 and others made an application for review of the order of the Board of Revenue. And the same had to be considered and decided upon after notice to the petitioners and of course after notice to respondents Nos.4 and 5. We are further of the view that once the order had been passed by the Board of Revenue on .23-7-1977, the petitioners had no choice for moving a direct application to the Colonization Officer for allotment but they had to move the Board of Revenue because they had been clearly aggrieved by the order of the Board of Revenue allowing the disputed land to the granted to respondents Nos.4 and 5 on the basis of their right of first refusal. In fact the fate of the application made by A.Hamid and Willayat for grant on 29-11-1977 shows that Board of Revenue was the right forum. We are, therefore, of the view that the order of Board of Revenue, dated 5-1-1978 and the consequent order flowing from the same are without lawful authority and that the application of review made by, petitioners has to be treated as pending and should be decided by the Board of Revenue after notice to the petitioners and respondents Nos. 4 and 5. The 'case is, therefore, remanded back t the Board of Revenue for fresh decision on the application of the petitioners,' dated 11-12-1977, We must, however, make it clear that our observations on the merits of the cases of the petitioners or that of respondents .Nos.4 and 5 should not be treated as binding an Board of Revenue would be free to form its own conclusions after hearing the-parties and perusal of record.