1. The petitioners, M/s. Modern Sugar Mills Limited have assailed the validity of order dated 25-3-1981, passed by the respondent No.l Assistant Commissioner/Collector. Toba Tek Singh whereby the allotment of land in question from the naive of the petitioners was cancelled and resumed. The necessary facts are that 55 Kanals, 2 Marlas of land comprising Killa Nos. 17, 18, 22, 23 and 24 of Square No. 22 situated in Chak No. 366/J.B. then Tehsil and now District Toba Tek Singh was reserved to be given to the petitioners company for establishment of a Sugar Mills. This reservation of the land was made on the recommendation of the Director, Industries Government of the Punjab on 8-7-1961 vide Annexure `A' after giving a finding that the project was feasible. The case was sent by the Commissioner, Sargodha to the Secretary (Colonies), Board of Revenue, for permission to transfer the land to the petitioners against price. The possession of the land was handed over to the petitioners with an undertaking that they would pay the price at the rate to be determined by the Board of Revenue. The Government accepted the recommendation and allowed permission to give the land to the petitioners at the rate of Rs.3,030 per acre plus 10% surcharge on it. On 2-8- 1979, a show-- cause notice was sent to the petitioners for recalling the order of sale. The case was forwarded to the Deputy Commissioner, Faisalabad with a direction to verify the factual position.
2. The matter was then entrusted to the Collector, Toba Tek Singh for passing final order. On 22-10- 1979, respondent No.6, Colony Assistant/Collector held that the petitioner did not fulfil the conditions of sale and as such land given to him was liable to be resumed. This 'order was challenged before the High Court in Writ Petition No: 7123/79 which was admitted to regular hearing on 26-1-1980. This Court finally decided the case on 14-5-1980. It was directed that the respondents shall sell the land in favour of the petitioners who would instal machinery over it within six months.
3. This order was made subject to condition that the petitioners shall pay the price at the prevailing market rate to the Government. In pursuance of the order of the High Court, possession of the land was handed over to the petitioner. The machinery was purchased and installed on the land. The Board of Revenue was informed vide Annexure `B' that the machinery had been installed. It was also disclosed that an application had been sent to WAPDA for grant of electricity supply for running the Mills. A copy of the application was sent to the Commissioner which was received in his office on 7-3-1981 vide Annexure `C'. Another copy of the application was received by the Deputy Commissioner, Faisalabad vide Annexure `D' on 8-3-1981. In the meantime, a known political figure of the District made an application to purchase the land for setting up a Petrol Pump on it. The Naib-Tehsildar reported on the application that the order of the High Court had not yet been complied with by the petitioners. Reference in this behalf may be made to Annexure `E'. The other reports in this behalf vide Annexures `F to `F/2' may also be referred. The Assistant Commissioner on the basis of the above reports resumed the land on 26-3-1981 on the ground that the order of the High Court had not been acted upon by the petitioners. On 27-3-1981, the local Revenue Staff visited the spot and dismantled the machinery. The Field Staff was informed that direction of the High Court had been complied with and as such no authority was vested in the respondents to dispossess the petitioners from the land. It also came to light that the learned Collector had passed an ex parte order on 25-3-1981 against the petitioners. This order has been assailed by means of this Constitutional petition before this Court.
4. It is contended that respondent No.l had no authority to cancel the land because it was allotted to the petitioners by the learned Member, Board of Revenue. Learned counsel argues that no hearing was afforded to the petitioners and as such they had been condemned unheard. Learned counsel argues his case on the strength of the reports of the Field Staff to show that machinery relating to Sugar Mills was found present at the spot. It is submitted that provisions of section 10 of the Colonization of Government Lands (Punjab) Act, 1912 are not attracted while the provisions of section 30 of the said Act do apply because sale was effected by the Provincial Government. Rana Muhammad Arshad Khan, learned Additional Advocate-General contends that service upon the petitioners was effected. Apart from the above, order of the High Court was not complied with by the petitioner and as such the resumption of the land from their name was justified in law.
5. I have heard the learned counsel for the parties and have also carefully gone through the record with their assistance. I do believe on the basis of overwhelming evidence that the machinery was purchased and installed to run the project. This plea of the petitioners is corroborated by the report dated, 16-3-1981 of the Naib-Tehsildar. It is clearly admitted in this report that' machinery was lying on the spot. The spare parts of the machinery were also lying there. The report further disclosed that the four walls of the Sugar Mills were found to have been raised. The said authority, however, opined that there would be no justification to establish a Sugar Mills in presence of a Mills which already existed in the area at a short distance. The Naib-Tehsildar and the Tehsildar agreed with the reporting authority that the direction of the High Court had not been complied with about the installation of machinery within the specified period. The learned Collector, however, observed that there was a defect in the proceedings inasmuch as no notice was sent to the petitioners to appear to explain their position. On 18-3-1981, the petitioners were directed to appear on 25-3-1981. They were, however, alleged to have refused to receive the notice. The recommendation was thus sent for the resumption of the land forthwith. After resdmption, another decision was taken that the land would be used for settling up a Petrol Pump. The learned Collector vide his order dated 25-3-1981 accepted the recommendation on the ground that order of the High Court had not been complied with and that no machinery was installed.
6. The above facts would demonstrate that petitioners were not heard before resumption of the land.
7. There is no evidence to show that the petitioners ever refused to accept the notice. In support of plea, the statement of the process-server was not recorded. It cannot, therefore, be held that notice was served upon the petitioners. It was, therefore, necessary to have published the notice in some daily newspaper to meet the requirement of law. This was not done for ulterior motives. An extraordinary activity was, however, shown in obtaining the reports from the Field Staff which speaks loudly about the mala fide of the respondents. It is evident that the respondents were determined to deprive the. petitioners of their rights in order to accommodate somebody else. The petitioners had the vested right of hearing. Annexure `H' is a notice which was issued by the Naib- Tehsildar to the petitioners who was not competent to issue such a notice. I, accordingly, hold that the petitioners were not served with a show-cause notice. The learned Assistant Commissioner was also not competent to resume the land because it was allotted by the Member, Board of Revenue. Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 provided that it was that authority alone to issue such a notice which had allotted the land to the petitioners. The land was admittedly allotted by the Member. Board of Revenue and certainly not by the Naib-Tehsildar or by the Assistant Commissioner. In such a situation, the show-cause notice was illegal on the very face of record. This notice, therefore, had to be ignored for all intents and purposes.
8. I also hold that the directions of the High Court were complied with in letter and spirit. The burden was on the' respondents to prove that the petitioners did not set up the machinery on the spot. The fact that the Mills could not commence its production because of non-availability of electricity was also established. This complaint about non-supply of electricity was sent to the learned member, Board of Revenue, learned commissioner and learned Deputy Commissioner. It was fairly conceded by the learned Law officer that machinery was given to the petitioner' on Supardari by the authorities concerned. In other words, by implication, the fact that the petitioners purchased the machhiery for its installation was admitted to be correct by the respondents.
9. The upshot of the above discussion, is that the resumption order is, hereby set aside by declaring it without lawful authority and of no legal consequence. The possession of the land shall immediately be given to the petitioners. The petitioners shall instal the machinery within six months. The petitioner shall pay the price of the land according to the market rate as already directed by the High Court in the first round of litigation. The price shall be determined by the Deputy Collector within three weeks. The period of six months shall commence from the date, the price is determined and paid by the petitioners. With these remarks this petition succeeds and is allowed with