This second appeal was directed against the judgment dated 2nd March, 1973 of District Judge, Jhang whereby the appeal of the Province present respondent was accepted and the judgment and decree dated 17-2-1972 of the learned trial Court decreeing the suit for declaration and permanent injunction of the appellants-plaintiffs was set aside.
2. Necessary facts, briefly, stated are that the appellants were allotted land under Grow More Food Scheme 15 acres each. The said land was Bunjar and the appellants after obtaining allotment brought the same under cultivation. They also installed an additional tube-well. The Collector District Jhang cancelled the allotment in favour of the appellants vide order dated 25-4-1968. The appellants thereafter filed a suit seeking a declaration that the order cancelling the allotment was illegal, void and inoperative for the reason that no notice was served on them by the Collector in terms of section 24 of the Colonization of Government Lands (Punjab) Act, 1912 and that the appellants were not called upon to show cause against the cancellation of allotment.
The respondents admitted that the land in suit was allotted to the appellants but asserted that the appellants did not live in the land allotted to them though the condition was that they would cultivate themselves and as they did not comply with conditions of allotment, the Collector issued notices to them before cancelling the allotment but the notices could not be served because the appellants-plaintiffs did not live in the village. It was asserted that the order dated 25-4-1968 was perfectly valid. The learned trial Court framed necessary issues arising out of the pleadings of the parties and held that the notices issued to the appellants-plaintiffs were silent about the violation of particular condition of allotment and as such the resumption of allotment was not valid. It was further observed that notice under section 24 is a condition precedent for passing order of resumption. It was also observed that the peon A who went to effect the service on the plaintiffs was not produced that even the affidavit of the peon regarding his report on the back of the notice was also not submitted. It was noted that the report of the peon was not attested by any revenue officer. The suit was consequently decreed and perpetual injunction, as prayed for, was issued.
On appeal, the learned District Judge observed that according to paragraph 1 of statement of conditions, it was a scheduled tenancy under section 4 of the Colonization of Government Lands (Punjab) Act, 1912; that section 27(1) of the said Act provides that nothing in sections 24, 25 and 26 shall apply to any tenancy scheduled under the proviso to section 4, except to such extent as may be specified in the statement of conditions applicable to such tenancy and that the respondents were not entitled to notice under section 24 before the allotment was resumed. The learned District Judge, on the above premises, proceeded to set aside the judgment of the trial, Court and consequently the suit was dismissed.
3. I have heard the learned counsel for the parties and have gone through the record. The plea that notice was not necessary could not have been taken as before the trial Court, stand to the contrary was taken by asserting that notice was issued but the same could not be served for the reason that the appellants-plaintiffs were not residing on the land. The report of the process--server endorsed on the back of the notice has been dealt with in detail by the learned trial Court and the same has been held to be defective. It was also noted that in the report submitted by the revenue officer there is no mention of non-residence of the plaintiffs-appellants. It was further noted that the notices issued to the plaintiffs were silent about violation of any particular condition of allotment by the plaintiffs. In these circumstances, the plea that the plaintiffs were not entitled to notices could not be allowed to be taken in appeal. In any case, this Court in the case of Bahadur v.
Collector, Jhang and another (1984 CLC 2955) declared the orders for cancellation of allotment in respect of other allottees under the same terms and conditions as contained in Notification No.3837-54/4107-C, dated 21st October, 1954 as illegal for the reason that no opportunity of hearing was allowed to the allottees before cancelling the allotment. It was observed that the order being in violation of rules of natural justice is absolutely void and cannot be allowed to sustain.
5. For the reasons given above, the impugned judgment dated 2-3-1973 cannot be sustained and the same is, therefore, set aside with the result that the judgment of the trial count dated 17-2-1972 shall hold the field. The appeal is, thus accepted with cost.