HAFEEZULLAH ISHAQ, MEMBER.--This revision petition is directed under section 13 of the Consolidation of Holdings Ordinance, 1960 against the order dated 22.4.1990 of the Additional Commissioner (Cons), Gujranwala Division, whereby he ordered to restore possession to the respondents.
2. Brief facts of the case are that the consolidation scheme of the revenue estate Garhi Wahab, Tehsil Hafizabad, District Gujranwala was confirmed under section 10(3) of the Ordinance by the Assistant Consolidation Officer on 28.4.1974. Muhammad, father of the respondents, feeling aggrieved, filed an appeal in the court of the Collector (Cons) who vide his order dated 17.7.1974 accepted it on the promise of compromise and amended the wandas of the parties. The petitioners went up in appeal to the court of the Additional Commissioner (Cons) who vide his order dated 28.3.1975 remanded the case to the Collector (Cons) holding that the compromise had not been effected by all the right-holders and, therefore, it was not applicable to those who had not put their signatures/thumb impressions on it. In remand the Collector (Cons) vide his order dated 11.10.1977 cancelled all the amendments made by his earlier order and restored the original consolidation scheme. The respondents challenged this order in appeal in the court of Additional Commissioner (Cons) who vide his order dated 5.2.1978 dismissed it. This order was assailed in revision petition in the Board of Revenue by the respondents and the Commissioner (Cons) vide his order dated 14.5.1980 remanded the case to the Collector (Cons) who again made amendments in the Khatas of the parties on 29.4.1987. The said order was challenged in the court of Additional Commissioner (Cons) by the petitioners who vide his order dated 7.10.1987 remanded the case to the Collector (Cons) with the direction that he should comply with the order passed by the Member (Cons), Board of Revenue on 14.5.1980 as well as order dated 15.4.1987 passed by him after hearing all concerned right-holders. The Collector (Cons) vide his order dated 2.9.1989 dismissed the remand appeal in default. The respondents put in an application to the Collector (Cons) for the restoration of the remanded appeal. The Collector (Cons) vide his order dated 8.3.1990 restored the remanded appeal holding that the petitioners who were also petitioners in the remand order showed themselves as respondents and deliberately got dismissed-in-default the remanded appeal. This order was assailed in the court of the Additional Commissioner (Cons) in appeal by the petitioners. The respondents moved an application in the court of the Additional Commissioner
(Cons) on 22.4.1990 for early hearing and for restoring the possession of the land to the respondents which the petitioners had obtained on 26.2.1990 through warrant of possession. The Additional Commissioner (Cons) vide his order dated 22.4.1990 directed that the respondents should be put back in possession immediately holding that the warrant of possession was implemented wrongly because there was standing crops in the fields and the remanded appeal was dismissed-in-default incorrectly. Hence this revision petition.
3. The learned counsel for the petitioners contended that the learned Additional Commissioner
(Cons) could not have cancelled the warrant of possession without hearing the petitioners. The respondents had taken recourse to that court for early hearing but the learned Additional Commissioner (Cons) had passed orders cancelling the warrant of possession without the petitioners.
4. The learned counsel for the respondents stated that the case was remanded by the Board of Revenue on 14.5.1980. After protracted litigation in the' courts below the present revision has been preferred by the petitioners against an interim order and the proceedings in the lower court had been stayed for a long time. The petitioners had the respondents 'appeal dismissed in default and even the respondents' prayer for its restoration was also rejected by shifting the hearing of the case from Gujranwala to Sialkot by the ADC/Collector (Cons) without any notice whatsoever to the respondents. The Additional Commissioner (Cons) had passed the impugned order cancelling the warrant of possession as it was patently a void order. No hearing was necessary for setting aside a void order and there was a distinction between a voidable and void orders.
5. The learned counsel for the petitioners, exercising his right of reply, maintained that no appeal for restoration of case dismissed in default by the Collector (Cons), was filed by the respondents. The petitioners had been given possession of the land on 26.2.1990 and the Collector (Cons) unilaterally restored the in default on 8.3.1990. The petitioners preferred an appeal before the Additional Commissioner (Cons) and a notice was issued to the parties. Thereupon the respondents applied for early hearing of the case but on 22.4.1990 the Additional Commissioner (Cons) cancelled the warrant of possession without hearing the petitioners and the impugned order was implemented on 24.4.1990.
6. I have considered the arguments, perused the case record as well as the record of the courts below. The petitioners Aziz Ahmad etc. Had preferred an appeal against the Collector (Cons)'s order dated 8.3.1990 which was entertained by the learned Additional Commissioner (Cons) on 28.3.1990. In this case the date of hearing was fixed as 17.4.1990 and subsequently the case was adjourned to 16.5.1990 for service of Sughran Bibi etc. Respondents. However, in the meanwhile on 22.4.1990 Sughran Bibi etc. Applied for early hearing of the case and for possession of the land in dispute. The learned Additional Commissioner (Cons) recorded the following order on the application:- Ul*-cV-Jr . (J (S'*-*: T (j*'> J ot-t, J ^ to /J' A** (tfvT- (j *' (J* 0 ^ ^==f ci ^ {{URDU TEXT}} It is obvious that the petitioners were not heard by the Additional Commissioner (Cons) while making the impugned order and they have thus been condemned unheard. The possession was delivered to the petitioners Aziz Ahmad etc. Two months earlier when the crops were standing in the fields. The respondents do not appear to have challenged the factum of issue of warrant of possession in any forum till they applied to Additional Commissioner (Cons) for early hearing of the case in the appeal filed by the petitioners against the Collector (Cons)'s order dated 8.3.1990. A compensation of Rs. 565/- had been deposited by the petitioners while taking possession of the disputed land but in the impugned order the learned Additional Commissioner (Cons) did not consider the question of compensation at all and arrived at two conclusions rather hastily:-
(a) delivery of possession on 26.2.1990 when the crops were standing; and
(b) dismissal of the petitioner's appeal by the lower court in default on wrong considerations.
The best course of action in this case would have been to issue notice to the petitioners for early hearing and then disposal of the application/case on merits. The impugned order is not a speaking order and cannot stand judicial scrutiny. The revision petition therefore succeeds; the impugned order i$ set aside and the case is, remanded to the learned Additional Commissioner (Cons), Gujranwala, for fresh decision after hearing the parties and taking into consideration all the relevant factors.
The orders in this case were reserved and shall be communicated to the parties.