1. ' MOHAMMAD AFZAL ZULLAH, C.J,---These appeals through leave of the Court are directed against the dismissal by the High Court of appellants' Constitutional (Writ) Petitions. It is not necessary to give the long history through which the case has reached the present stage. It is, however, of advantage to reproduce the concluding observations made by the High Court in the impugned judgment. They read as follows:-- "Before parting with the above discussion we may observe that Mr. Muhammad Aslam Chishti, learned counsel for the official respondents has candidly submitted that he has asked his clients that in case the petitioners approach them, their cases may be sympathetically and favourably considered for regularization.
2. ' We are also of the view that since the petitioners in the first two petitions have invested capital running into millions of rupees and as the factories are in operation and several hundred persons are employed therein, it would be in the interest of justice that the petitioner's request for regularization in respect of the portions of the land in their possession, is properly and seriously considered.
3. ' With the above observations, the petitions are dismissed------------- ' Leave to appeal was granted as follows:- ' These are 6 petitions for special leave to appeal from the judgment and order dated 1742-1986 of the Balochistan High Court whereby the Constitution petitions preferred by the petitioners in C.Ps.S.LA. Nos59, 60 and 61 were dismissed.
4. ' By an order dated 5-8-1975 a Member of the Board of Revenue in Balochistan allotted about 123 acres of land in village Baroot, Tehsil Hub of District Lasbella, to the petitioners in C.Ps.S.LA. 18, 19 and 20, hereinafter called 'the allottee-petitioners'. The p&p was to be paid at the rate of Rs,10 per index unit and the land was to be used for the purpose of growing food. On 22-12-1977 the Martial Law Administrator in Balochistan issued Martial Law Order No,16. This Order empowered the Board of Revenue or any officer authorised by it to cancel any allotment made between 1-1-1972 to 4-7-1977 which was not covered by a regular scheme or which had been obtained by using official position or political influence or by means of fraud or misrepresentation of facts or in violation or relexation of law, rules, conditions, policy, instructions or orders. The Order also provided that before an order of cancellation was made the allottee should be given a reasonable opportunity of being heard. In pursuance of the Order, the Board of Revenue issued a notice to the allottee-petitioners why their allotment should not be cancelled. It seems that no final order was made on the basis of the notice and it was ultimately withdrawn on 4-3-1982. However, before its withdrawal the Collector on 16-6- 1981 executed a sale deed in favour of the allotteepetitioners after they had deposited Rs,1,84,816.76 as price of the land.
5. ' After obtaining the sale deed the allottee-petitioners, in September, 1981, transferred by separate sale deeds about 50 acres of the land in favour of the petitioners in C.Ps.S.LA. Nos.59, 60 and 61, hereinafter referred to as transferee-petitioners. The transferee-petitioners approached the Collector for permission to convert the nature of the land from agricultural to Sikni. The permission was duly granted. Subsequently, the transferee-petitioners in C.Ps.S.LA. Nos.59 and 60 made huge investments running into hundreds of millions of rupees in setting up industrial factories and plants in the land purchased by them after obtaining no-objection certificates from the Industries Department of the Provincial Government.
6. ' On 11-2-1979 the Martial Law Administrator in Balochistan reconstituted Martial Law Order No,16 and re-issued it as Martial Law Order No,46. The reconstituted Order, too, enabled the Board of Revenue or any officer authorised by it to cancel allotments made between 1-1-1972 and 4-7-1977 in circumstances similar to those enumerated in the earlier Order. It also provided that no order of cancellation should be made without giving the allottee a reasonable opportunity of being heard.
7. In pursuance of the reconstituted Order fresh notices were issued to the allottee-petitioners as well as to other allottees of State land in Balochistan why their allotments should not be cancelled. A committee consisting of Member, Board of Revenue, Commissioner, Qalat Division and Deputy Commissioner, Lasbella was set up to inquire into the circumstances under which the various allotments had been made to the allottees. So far as the allotteepetitioners are concerned, the Committee heard them and came to the conclusion that they had obtained the allotments through political/official influence and outside the usual norms of law. Accordingly, it recommended resumption of the allotment and the refund of the price paid by the allottee- petitioners. The Martial Law Administrator accepted this recommendation and cancelled the allotment.
8. ' When the transferee/petitioners learnt about the cancellation of the allotment, they filed Constitution petitions in the High Court. By a detailed order a Division Bench dismissed the petitions. It however recommended that as the transferee-petitioners in C.Ps.S.LA. Nos.59 and 60 had made huge capital investments in setting up factories in the areas purchased by them, their request for regularization might be seriously considered. The allottee-petitioners as well as the transferee-petitioners seek leave to appeal from the judgment of the High Court.
9. In support of these petitions it is contended that the Martial Law Order No,16 as well as the reconstituted Order No,46 referred only to such allotments as were made between 1-1-1972 and 47- 1977. In this case the sale deed was executed by the Collector in favour fo the allottee-petitioners on 16-6-1981. That being so, the said Martial Law Orders were in terms not applicable to their case.
10. On behalf of the transferee-petitioners it is further contended that even though the sales made in their favour were entered in the revenue record, yet they were not given any opportunity of being heard before the order of cancellation was made. The omission of the authority concerned in this regard not only violated the principles of natural justice but also the express bar contained in the Orders themselves that no allotments should be cancelled without giving an opportunity of being heard to the allotees.
11. ' The contentions raised on behalf of the petitioners need examination. Leave to appeal is granted.
12. Security For costs in the sum of Rs,2,500 in each petition. The appeals may be made ready for hearing on the present record with permission to the parties to file additional documents, if any.
13. ' C.Ps.S.LA. Nos.18, 19 and 55 are barred by 44 days. The question whether the limitation should be condoned will be considered at the time when the appeals come up for hearing'."
14. ' During the pendency of the appeals the two appellants in whose favour the High Court had made observation for regularization were allowed that relief. The orders in their favour dated 4th November, 1990 and 4th November, 1990 are reproduced below:- "No,341-8/87-Rev.--In exercise of powers conferred upon him vide Notification No,490-8/86-Rev.
15. Dated 15th March, 1988, the Board of Revenue, Balochistan with the prior approval of Government of Balochistan is pleased to regularise the portion of Government land measuring 18-1-33 acres in Khasra No,243, Mouza Baroot, Tehsil Hub on which factories have already been constructed, in favour of M/s. Agri Auto Industries Ltd., Karachi at the rate of Rs,20,000 per acre. The remaining land may be surrendered in favour of Government.
16. "No,341-8/87-Rev.--In exercise of powers conferred upon him vide Notification No,490-8/86-Rev., dated 15th March, 1988, the Board of Revenue, Balochistan with the prior approval of Government of Balochistan is pleased to regularise the portion of Government land measuring 22-0-39 acres in Khasra No,243, Mouza Baroot, Tehsil Hub, on which factories have already been constructed, in favour of M/s. Habib Arkady Limited, Karachi at the rate of Rs,20,000 per acre. The remaining land may be surrendered in favour of Government."
17. ' Out of the six appeals before this Court two were, accordingly, withdrawn and disposed of. They were tCA-558 and CA-559 of 1988. Learned counsel for the appellants in CAs.555, 556 and 557 of 1988 Mr. Basharatullah stated that the two appeals; namely, C.As.555 and 556 were filed to support the appeals in the said withdrawn appeals; therefore, he did not press these two appeals as having borne fruit. They are dismissed as not pressed. There shall be no order as to costs.
18. ' Out of the remaining two appeals namely; C.As.557 and 560, the former one is time-barred. Mr. Basharatullah relying on certain averments made in the application for condonation tried to show that it was a fit case for condonation; but in our view, there is nothing extraordinary in the grounds relied upon by the learned counsel so as to condone the delay. Accordingly, CA-557/88 is dismissed as time-barred.
19. ' Regarding CA.560/88 learned counsel for the appellants has admitted that there was a distinction between the cases in Appeals Nos.558 and 559 in which the High Court had left the possibility of regularization and the case in CA.560 in which no such observation was made; yet he argued that on equitable grounds the appellant in latter case also could be allowed this concession. The distinction between the two is that while in the former cases industries had been set up on the land in question, in the present appellant's case the industry had not by then been set up. In other aspects the cases were identical.
20. The regularization in favour of the appellants in CAs.558 and 559 was also not without condition.
21. They were made to pay Rs,20,000 per acre in addition to the original cost incurred by them. In charging this amount they must have been shown the consideration for having spent considerable amount by installing and putting in operation their respective industries. The appellant in CA.560 has not incurred any such heavy expenditure. In order to bring this case also at par with the other two cases, the appellant could have been subjected to further conditions. Of course, keeping in view the vacant state of the land in dispute. It would be of great advantage for the apellant to dispose of the vacant land with a big margin of profit which correspondingly would be a loss to the public exchequer. In case of this regularization two additional conditions could be imposed. One, that the appellant in the present appeal would pay the additional cost at an appreciable higher rate than in the other two cases; and two, that the regularization in favour of the present appellant would be subject to the condition that if industry is not installed and the land is sold to other party on profit the profit shall go to the public exchequer. When this proposition was put to the learned counsel he agreed with the further statement that the appellant has absolutely no intention of selling the land any further and the plans are already ready for installing an industry. He also offered to pay higher additional amount as observed above.
22. ' That being so, we partly allow the appeal with the direction as above with no order as to costs.
23. '