The petitioners, Israeel and Mst. Jannat, have moved this Constitutional Petition praying therein that the impugned order dated 30-9-1986 passed by the earned Additional Commissioner (Revenue), Lahore Division, Lahore, and the order dated 6-11-1983 passed by the learned Collector/A.C. Lahore may be declared without lawful authority and of no legal consequence.
2. Briefly the case is that the respondent, Hashmat Khan and one Khangoo (predecessor-in- interest of the petitioners) were allotted a piece of land measuring 177 Kanals 14 Marlas under the provisions of Border Area Allotment Scheme. Both the allottees of the land paid the sale price of Rs.1,923 to the Central Government of Pakistan and accordingly mutation No. 58 was sanctioned in their favour by the Revenue authorities on 24-8-1965. Later on, respondent No. 1, Hashmat Khan made a petition before the Border Area Allotment Committee praying that the entire area referred to above may be allotted to him to the exclusion of the predecessor-in-interest of the petitioners.
The father of the petitioners died in the year 1970 and the petitioners stepped into his shoes as his legal heirs The Border Area Allotment Committee without hearing the petitioners directed that earlier mutation No. 58 may be reviewed and accordingly Khata No. 55 of the parties may be corrected and as a consequence thereof the whole of the land may be allotted to respondent No. 1.
On 26-3-1971, the learned A.C./Collector Chunian allotted the whole land to respondent No. 1, Hashmat Khan, by issuing a Robkar. After the death of the father of the petitioners Mutation No. 90 was sanctioned in their favour on 31-3-1970 and the mutation in question is still in tact. Petitioner No. 1, Israeel was born on 25-4-1953 and on 26-3-1971 he-was a minor. No proceedings could be taken against him unless impleaded through his next friend. According to the petitioners, the learned Assistant Commissioner/Collector did not provide opportunity of hearing to them which violates the principles of natural justice. On 10-5-1981, the petitioners came to know that some order has been passed against their interest and then they filed a writ petition in the High Court on 11-5-1981. In its judgment, the High Court observed that the petitioners could file an appeal against the order dated 22-6-1971 which order was passed in respect of Mutation No. 103 of village Qaim Shahwala. Thereafter, the petitioners instituted an appeal on 10-6-1981 after getting the certified copy of mutation No. 103 which was supplied to them on 31-5-1981. The principal contention of the learned counsel is that the appeal of the petitioners was dismissed by the learned Collector on 6- 11-1983 and that the revision against that order was competent before the learned Additional Commissioner (Revenue). However, the learned Additional Commissioner (Revenue) vide his order dated 30-9-1986, without touching the merits of the case proceeded to dismiss their revision without any legal justification. It is next argued by the learned counsel that the petitioners are the transferees of the land in question and as such there was no power vested in the Revenue authority to deprive them of their share of the land. On these premises, the learned counsel contends that all the orders passed against the petitioners are void ab initio. Learned counsel for the contesting respondent submits that the writ petition has been instituted after the delay of sixteen years and that no plausible explanation for this inordinate delay has been advanced in the body of the writ petition. It is next argued that order dated 25-3-1971 which is the basic order in the case has not been at all assailed by the present petitioners in the writ petition. This being so, no relief could be allowed to the petitioners.
3. I have heard the learned counsel for the parties and have perused the record. It is apparent that in law the last impugned order having been passed on 30-9-1986 was assailed in the High Court by way of a writ petition on 28-2-1987. Thus, there is a delay of more than five months in the institution of the writ petition. In the peculiar circumstances of the case, I do not give much weight to this aspect of the case and as such I would like to proceed further ignoring the question of delay in the institution of the writ petition. The contention is that the impugned order was passed by the learned Additional Commissioner (Revenue) without deciding the revision on its own merits. The learned Additional Commissioner without assigning any reasons proceeded to hold that he is not competent to hear the appeal or the revision. It appears that the revision of the petitioners was dismissed without discussing the merits of the case of the parties. In my view the initial order pertains to the purchase of the land in question measuring 177 Kanals 14 Marlas from the Federal Government of Pakistan by respondent No. 1 and the predecessor-in-interest of the petitioners. The cause of grievance arose to the petitioners out of the sanction of mutation No. 58 in favour of the respondent to the exclusion of the petitioners. Obviously, the ownership of the property in question was incorporated in the revenue record by the Revenue Authorities and as such the appeal and revision were competent under the provisions of the Land Revenue Act,
167. This is the precise grievance of the learned counsel for the petitioners. Nothing was said by the learned counsel for the respondent on this question of law. There is substance in the contention of the learned counsel that the appeal and revision were competent under the provisions of the Land Revenue Act, 1967.
This being so, it was the statutory duty of the learned Additional Commissioner (Revenue) to have disposed of the revision of the petitioners on its merits which has not been done. Under the circumstances I proceed to set aside the order dated 30-9-1986 (Annexure `A') and remit the case back to the learned Additional Commissioner (Revenue), Lahore Division, Lahore, who will hear both the parties and will decide the matter on merits in accordance with law. With this observation, this 'petition succeeds and is allowed leaving the parties to bear their own costs. The learned Additional Commissioner (Revenue) shall decide the revision pending before him within two months without fail.
H.B.T./1-142/L