1. ' MUKHTAR AHMED JUNEJO, J.---This Constitution Petition is directed against an order passed by the Additional Commissioner, Hyderabad (respondent No,4), dated 21-11-1985 which was sought to be declared as illegal, ultra vires without jurisdiction and a nullity in the eye of law. The petitioners also sought declaration that they were entitled to hold possession of the disputed land as per the partition order passed by the Assistant Commissioner, Thatta.
2. ' Admittedly, the disputed land situated in dehs Samki, Khakhar Hala, Nareja, Aghimani and Samohi taluka Thatta, was allotted with some other land totalling 1,500 acres to late S.M. Baqir, who was claimant to the extent of 3600 Produce Index Units. On promulgation of MLR 89/91 S.M. Baqir surrendered all his lands measuring 1,500 acres except, 222.36 acres, which he retained.
3. Subsequently, he repurchased 433.14 acres on instalment basis and this increased his holding to 656.10 acres. On promulgation of MLR 115, S.M. Baqir surrendered another area of 29 acres from his holding while an area of 13.29 acres from his holding was resumed by the Additional Deputy Commissioner, Thatta, under an order, dated 17-8-197.2. On 1-5-1972 S.M. Baqir died leaving behind 648.27-7/8 acres of land to be distributed amongst his legal heirs viz. Mst. Najmun Nissa as widow, petitioners Muhammad Athar, Muhammad Azhar and respondent No,1 S.M. Mazhar as his sons and petitioners Laiqa Mohsin, Aqila Zaheer and respondent No,2 Raisa Jaffery as his daughters. Mst.
4. Najmun Nissa expired on 1-2-1979. Her share devolved on her children viz. The petitioners and the respondents Nos. 1 and 2. Present petitioners moved an application under section 135 of the Land Revenue Act before the Assistant Commissioner, Thatta for partition of joint holding left by deceased S.M. Baqir. It was mentioned in said application that S.M. Baqir died on 1-5-1972 leaving behind 662.26 acres and 7/8 ghuntas of evacuee agricultural land in Dehs Samki, Kakarhala, Narayja and Aghimani taluka Thatta and a pacca garage on Survey No, 334 and a Farm House at Survey No,264 and a Tractor with three implements. S.M. Baqir at the time of his death was survived by the petitioners and the respondents No,1 and 2 besides, his widow, Mst. Najmun Nissa who died on 1-2-1979. In said application it was also mentioned that under an order, dated 17-8-1972 passed by the Additional Deputy Land Commissioner, Thatta an area of 13 acres and 39 ghuntas, out of the estate left by S.M. Bagir, was resumed and that another area of 19,11 acres in Deh Samki was acquired by Canal Department, Thatta and another area of 6 acres 17 ghuntas of Deh. Agaimani left by the deceased, was disposed of to one Rizvi with the ultimate result that balance area of 623 acres devolved between the legal heirs of S.M. Baqir. It was alleged in the application that some of the lands were sold by the respondent No,1 as managing co-sharer without disclosing such facts to the other co-sharers who were not bound by such sale, and they had not received any amount in consideration of the sale. The Assistant Commissioner entertained the application and issued notices to the parties for 27-1-1981 and then for 8-3-1981. He called for report from the Mukhtiarkar Thatta about details of the land jointly owned by the petitioners and the respondents Nos.1 and 2.
5. He also called for partition proposals in keeping with the location of the land and share of each co- sharer. A special power of attorney executed by petitioners No,1, 3 and 4 in favour of petitioner No,2 was produced. Notices were also issued to the respondents No,1 and 2. Respondent No,1 informed the Assistant Commissioner that he had no objection to partition of the joint property provided such award was acceptable to all other co-sharers. Respondent No,1 claimed that the pace house standing in S.No, 264 of Deh. Samki was constructed by him as a Farm House at his own expenses in 1971 and wanted this to be taken note of during partition proceedings. Under his detailed order, dated 8-4-1981 the Assistant Commissioner, Thatta took note of the fact that' the land left by deceased S.M. Baqir which was permanently allotted Kabooli land would devolve on all the legal heirs of deceased S.M. Baqir while the re-purchased land would become permanently of legal heirs of S.M. Baqir only when the amount of price outstanding against said land was fully paid and for such payment each co-sharer was responsible. Under the same order the Assistant Commissioner ordered partition of the agricultural land jointly owned by the legal heirs of S.M. Baqir. The Assistant Commissioner proceeded to distribute the different survey numbers left by deceased S.M. Baqir amongst his legal heirs. Survey No,264 of Deh. Samki where a house is existing went to the share of petitioner No,1 (40 paisas) and respondent No,1 (40 paisas) and respondent No,2 (20 paisas).
6. Survey No, 334 of Deh Samki with garage went to the petitioner No,2 (50 paisas), petitioner No,3 (25 paisas) and petitioner No,4 (25 paisas).
7. ' Respondents Nos. 1 and 2 filed appeal against said order, dated 8-4-1981 before the Deputy Commissioner, Thatta. Under his order, dated 23-11-1983, the Deputy Commissioner, Thatta maintained the order of the Assistant Commissioner after observing that subsequent to the partition the possession of the land has been changing hands and as a result lot of alienations had taken place one after the other and that plea taken by the appellant No,1 that he was unaware of the order of the Assistant Commissioner dated 8-4-1981 was hardly convincing. The Deputy Commissioner also observed that had the appellant come in appeal at appropriate time and lot of changes in the Record-of-Rights would not have taken place, his request for setting aside the impugned order would have been considered on merits at that time.
8. ' Being aggrieved with the order of the Deputy Commissioner dated 23-11-1983, respondents 1 and 2 took the matter in revision before the Additional Commissioner, Hyderabad Division. Under the impugned order dated 21-11-1985, the Additional Commissioner, Hyderabad Division set aside order of the Deputy Commissioner dated 23-11-1983 as well as order of the Assistant Commissioner dated 8-4-1981 and remanded the case to the Assistant Commissioner Thatta with direction that fresh partition should be made keeping in view the prescribed procedure according to the provisions of Land Revenue Act. Hence this Constitution Petition.
9. ' Mr. Anwar Zaheer Jamali, learned counsel for the petitioners argued that the Additional Commissioner was not competent to remand a case because such power cannot be exercised under section 164 of Land Revenue Act by any Revenue Officer other than the Board of Revenue, in view of the third proviso below subsection (4) of section 164 of said Act. It was next argued that the appeal preferred before the Deputy Commissioner against order of the Assistant Commissioner dated 8-4-1981 was time-barred. Learned counsel for the petitioners challenged finding of the Additional Commissioner, Hyderabad to the effect that no notice was served on the respondent No,2 and it was contended that respondents Nos.1 and 2 and their brothers and sisters were living in the same house and the memo of appeal disclosed that respondent No,2 was served. The partition order passed by the Assistant Commissioner on 8-4-1981 was defended inter alia on the ground that it was a consent order. It was further argued that certain liability was created in respect of the property in litigation and if order of the Additional Commissioner dated 21-11-1985 was allowed to stand, then the question would arise as to who would pay compensation to purchasers of some of the property in litigation. In support learned counsel for the petitioners cited the cases of:--
(i) Ahsan Ali and other v. District Judge and others PLD 1969 SC 167.
(ii) Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260.
10. ' Mr. Ahmed Khan Barakzai, learned counsel for respondents Nos.7 to 9 adopted the arguments of Mr. Anwar Zaheer Jamali. He supported the decision of the Assistant Commissioner dated 8-4-1981 and argued that appeal against said order was time-barred and so also the revision application.
11. ' Mr. Munawar Ali Kazi, learned counsel for the respondents Nos.1 and 2 argued ' that the Order dated 8-4-1981 was passed by the Assistant Commissioner without giving prior notice to the respondents Nos.1 and 2 and as such the same was void being violative of section 137 of the Land Revenue Act and hence no period of limitation ran against such a void order. Learned counsel referred to the application moved under section 135 of the Land Revenue Act before the Deputy Commissioner, Thatta by the petitioners and contended that the same did not bear signature of respondent No,2 although her name was typed and that said application was not signed at all by the respondent No,1. Reference was also made to para. 5 of the Constitution petition where it was mentioned that the respondent No,1 had alienated certain lands of S.M. Baqir on the basis of power of attorney executed by the latter and that subsequently respondent No,1 had sold certain lands left by S. M. Baqir to some persons on the basis of a special power of attorney dated 2-11-1973 executed by all the legal heirs of S.M. Baqir except petitioner No,2 and that such sales have been held by the Revenue Authorities to be void. The power of attorney was said to have been cancelled by implication. In respect of the partition proceedings the respondents Nos.1 and 2 had notices for 27-1-1981 and for 8-3-1981 but not for 8-4-1981, as, further argued. It was also argued that issuance of notice to respondent No,1 did not amount to issue of notice to the respondent No,
2. Reference was made to a letter dated 2-3-1981 from the respondent No,1 to the Assistant Commissi4ner, Thatta in which respondent No,1 stated that he had no objection to the award by the Deputy Commissioner if the same was acceptable to all other co-sharers of the joint holding except that he wanted Survey No,264 to be given to him in partition proceeding because he had raised a pecca house in said survey number. It was argued on behalf of the respondents Nos.1 and 2 that if the respondent No,1 in his letter had mentioned that he had shown notice to the respondent No,2, that did not amount to service of the respondent No,2 with the notice for purposes of section 137 of Land Revenue Act. It was also argued that respondent No, 2 got knowledge about the order dated 8-4-1981 on 30-4-1983 and she filed appeal on 28-5-1983 as no period of limitation runs against a void order. The objection about the revision application filed by respondents Nos.1 and 2 befit the Additional Commissioner, Hyderabad being time-barred was not raised before the Additional Commissioner by the petitioners as argued by Mr. Munawar Ali Kazi who criticized order of the Deputy Commissioner dated 23-11-1983 to be not a speaking order. In conclusion learned counsel for respondents 1 and 2 contended that impugned order passed by the Additional Commissioner on 21-11-1985 was not an order of remand but even if the same was treated so, it had cover of an order passed by the Member, Board of Revenue. In support learned counsel for the respondents Nos.1 and 2 cited the cases of:
(i) Mst. Bibi Jana v. Deputy Land Commissioner, Peshawar PLD 1980 Pesh.
12. 213.
(ii) Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451.
(iii) Saiyyid Abul A'la Maudoodi and others v. Government of Pakistan and another PLD 1964 SC 673.
(iv) Mst. Afroz Jahan v. Mst. Noor Jchan and others (1988 CLC 1318).
(v) Umra v. Allah Yar and others (1986 SCM R 622).
(vi) Amar Lal v. Board of Intermediate and Secondary Education, Sukkur through its Chairman and another (1986 CLC 1848).
(vii) Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 Lah.
13. 1179.
(viii) Hakman and others v. Mst. Satto PLD 1958 Lah.
14. 936.
(ix) Syed Mahmud Alam v. Syed Mehdi Hussain and others PLD 1970 Lah.
15. 6.
(x) Allah Dino v. Fakir Muhammad and another PLD 1969 SC 582.
16. ' The first and foremost point to be determined is, whether the impugned order dated 21-11-1985 was an order of remand. The initial order dated 8-4-1981 was passed by the Assistant Commissioner under section 135 of the Land Revenue Act. Said order was passed on the application of the petitioners requesting for partition of the joint holding owned by them and other co-sharers. Petitioner No,2 Muhammad Azhar was nominated by other petitioner as their special attorney. The order dated 8-4-1981 shows that notices were duly issued to the respondents No,1 and 2 for appearing in the Court and filing written objections either personally or through an advocate. In reply respondent No,1 was said to have sent a letter mentioning that he had no objection to partition of the land provided such award was acceptable to other co-sharers also.
17. Respondent No,1 had intimated to the Assistant Commissioner that he had informed respondent No,2, who was also served but she was reluctant to appear in the Court. A joint written statement was filed by the petitioners to the effect that they had no objection to partition of their joint holding.
18. It was after all this, that the Assistant Commissioner passed the order partitioning the land which was permanently allotted to S.M. Baqir and the land which was repurchased and in respect of which outstanding amount of price was to be paid. Appeal against said order dated 8-4-1981 was filed before the Deputy Commissioner, Thatta by the respondents Nos. 1 and 2 on 28-5-1983 although such appeal was to be filed within 30 days viz. By 8-5-1981, as per clause (a) of section 162 of the Land Revenue Act. While maintaining the order dated 8-4-1981 the Deputy Commissioner under his order dated 23-11-1983 took cognizance of the fact that the respondents 1 and 2 came in appeal when lot of changes took place in the record-of-rights, as after order of partition, the possession of the land had been changing hands and consequently a lot of alienation had taken place one after the other. The Deputy Commissioner was not convinced by the plea taken by the respondents Nos.1 and 2 that they were unaware of the order dated 8-4-1981. The Revision against said order dated 23-4-1983 was filed on 17-1-1984 although it could be filed by 23-5-1983 as per subsection (2) of section 164 of the Land Revenue Act.
19. ' Under his order dated 21-11-1985 the Additional Commissioner, Hyderabad Wok view that the partition order passed by the Assistant Commissioner was against the principles of natural justice because respondent No,2 Miss Raisa was neither given notice nor given an opportunity of being heard by the Assistant Commissioner. Said partition order dated 8-4-1981 was also determined by the Additional Commissioner to be suffering from legal infirmities because the Farm house situated in S.No,264 and the garage situated in S. No,334 raised by respondent No,1, were given in partition to three co-charters and not to the respondent No,1 who had not even been compensated by Assistant Commissioner. On such grounds the partition order dated 8-4-1981 was set aside along with order of the Deputy Commissioner dated 23-11-1983 and the Assistant Commissioner was directed to make fresh partition in accordance with law and the provisions contained in the Land Revenue Act. Such an order by no stretch of imagination can be considered to be, an order other than the order of remand.
20. There is force in contention of learned counsel for the petitioners that the Additional Commissioner , Hyderabad was not competent to remand the case to a lower authority. Such provisions were added in the shape of third proviso to subsection (4) of section 164 of the Land Revenue Act on 28- 7-1980 under Sindh Ordinance XI of 1980. On this ground alone the impugned cider: can be held to have been passed without lawful authority.
21. Finding by the Additional Commissioner in the impugned order that the respondent No,2 was neither given notice nor she was given any opportunity of being heard by the Assistant Commissioner, is based on no evidence. Such a finding cannot be allowed to stand when the matter is being examined in Constitutional jurisdiction . Order . Of the Assistant Commissioner dated 8-4-1981 gives full facts and it is a detailed order. For setting aside such an order, which was maintained by the Deputy Commissioner, the Addl. Commissioner, should have given convincing grounds. In the impugned order dated 21-11-1985, the Additional Commissioner had reproduced the arguments addressed to him by advocates for the parties and then has jumped at the conclusion.
22. ' The authorities cited on behalf of the respondents Nos.1 and 2 do not further their case. In the case of Province of East Pakistan and another PLD 1964 SC 451, it was held that principle of audi alteram partem is presumed to have been embodied in every statute, in absence of a provision to the contrary. In the case of Umra (1986 SCM R 622), it was held that a persons rights in property cannot be affected without granting him a chance of hearing and where without his being given chance of hearing an order was passed, the same must be set aside being in violation of the principles of natural justice. In case of Amar Lal (1986 CLC 1848), it was held by . a D.B. Of this Court that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or the property or other right of the parties concerned, even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings. In the case of Saiyyid Abul A'la Maudoodi and others PLD 1964 SC 673 it was held that judicial review in respect of executive acts, has developed even as the British Common Law and the words "due process" were equivalent to "proper trial". This authority was in respect of an action taken by the Provincial Government declaring a political party to be unlawful association and empowering the District Magistrate to take possession of certain places used by such political party. There can be no cavil with the observations made in the aforesaid authorities. The cases of Umra and Amar Lal and Province of East Pakistan would have applied to this case if the partition order had been passed without the respondent No,2 knowing about pendency of such proceedings. In the case of Mst. Bibi Jana PLD 1980 Peshawar 213, the partition proceedings were challenged by a co-owner on the ground that the same were carried out in her absence and without following the procedure laid down in section 137 of the Land Revenue Act. In said case the land in dispute was wrongly resumed without proper notice and since the basic order was without lawful authority the entire structure built thereon was held to have fallen to the ground. There can be no cavil with the view that a partition order passed in violation of section 135 or section 137 of the Land Revenue Act, cannot be sustained in law. If entire structure was built on an illegal order, the same would fall on the ground.
23. This is not the situation in the instant case, where- the land in litigation C was not resumed rightly or wrongly. Even the partition order does not not appear to have violated any of the provisions of section 135 or section 137 of the Land Revenue Act. In the case of Mst. Afroz Jehan (1988 CLC 1318) the view taken was that no Court can adjudicate upon the rights of a party which is not before it or to whom no notice has been given. It was also held in the same case that a stranger to the proceedings who is affected by an order passed by the Court, is entitled to file an application under section 12(2) of C.P.C. In cited case the rights of a person, not party to the arbitration agreement, had also been adjudicated at his back in the award which was made rule of the Court due to connivance of two other parties with each other.
24. There is force in the contention raised on behalf of the petitioners that the appeal filed by the respondents Nos. 1 and 2 before the Deputy Commissioner, Thatta on 28-5-1983 was time-barred in view of section 162 of Land Revenue Act as such appeal could have been filed by 8-5-1981. The Revision Application filed by the respondents Nos.1 and 2 before Additional Commissioner on 17-1- 1984 was also time-barred because as per section 164(1) of the Land Revenue Act, the same could be filed by 23-12-1983.
25. ' Viewed from any angle, the impugned order passed by the Additional Commissioner on 21-11-1985 was ultra vires, illegal, unauthorised and without lawful authority. Consequently, we accept this petition with no order as to costs and hold the order dated 21-11-1985 passed by the Additional Commissioner to be illegal and of no legal authority and we maintain the orders passed by the Assistant Commissioner dated 8-4-1981 and passed by the Deputy Commissioner dated 23-11- 1983. A short order in identical terms was passed on 17-11-1992 and these are reasons for the same.