' RANA BHAGWAN DAS, J.---Facts in a nutshell leading to this Constitutional petition appear to be that on petitioner's application, dated 5-2-1968 Deputy Commissioner, Sukkur with the consent of Colonization Officer, Guddu Barrage, Sukkur wanted State land comprising S. No, 414 (037) Ghuntas situated in Deh Erazi, Taluka Ghotki, for installation of Petrol Pump to the petitioner subject to payment of 'Malkano' at the rate of Rs,2,000 per acre. Upon payment requisite consideration usual 'Qabullat' was executed by Mukhtiarkar, Ghotki in favour of the petitioner and according to him possession of the disputed land was also given to him, after serving necessary notice, dated 14-11- 1968 upon respondent No,4. It is the case of the petitioner that subsequently this respondent trespassed into the disputed land sometime in June, 1969 after the petitioner had incurred considerable expenses on its improvement. On account of disapproval of the site by Pakistan National Oils Limited Company, Deputy Commissioner, Sukkur vide his order, dated 31st December, 1968 waived the condition No,3 appearing in conditions of grant and allowed the petitioner to use the disputed land for residential-cum commercial purpose as desired. It appears that respondent No,4 was aggrieved by the change of use and grant of land in favour of petitioner. He assailed this action before Deputy Commissioner, Sukkur who by his order, dated 6-8-1969 set aside the order, dated 31-12-1968 passed by his predecessor. Petitioner impugned this order in appeal before the Commissioner, Khairpur Division, who set aside the order, dated 6-8-1969 passed by. The Deputy Commissioner and remanded the case to him for deciding it afresh. Again Deputy Commissioner, Sukkur while deciding the case afresh cancelled the grant in favour of petitioner on the plea that the land was disposed of without notice to Khasmokal Muhagdars' vide his order, dated 9-3-1970.
Being dissatisfied with the latter order, petitioner challenged the same in appeal, which came up for hearing before the Additional Commissioner, Khairpur, who by his order, dated 5-5-1970 dismissed the appeal, which was also assailed and impugned by the petitioner in Suit No, 119 of 1971 before the Civil Judge First Class. Later this suit was transferred to the Court of Senior Civil Judge, Ghotki and was ultimately decreed on 21-1-1986. Respondent No,4 preferred Civil Appeal No,4 of 1986 from the judgment and decree, but without any success. Aggrieved by concurrent findings, respondent No,4 filed Civil Revision Application No, 38 of 1988 before this Court, which is pending adjudication before a Single Bench but it appears that during the pendency of the suit before the Civil Court, respondent No,4 succeeded in getting the disputed land permanently granted on harp right basis in his favour vide order, dated 3-1-1978 from the Deputy Colonization Officer, Left Bank Guddu Barrage, Ghotki. Petitioner challenged the vires, of this grant by way of appeal before the Additional Commissioner, who dismissed the same as barred by time vide order, dated 12-3-1984.
Petitioner again unsuccessfully challenged both the orders in provisional jurisdiction before the Member, Board of Revenue, but failed vide order, dated 22-7-1986. A review application from the order met the same fate. It is in these circumstances, that the petitioner was obliged to file this Constitutional petition, impugning the vires of the orders passed by respondents Nos. 1 to 3 as without any lawful authority and of no legal effect.
2. During the pendency of this petition respondent No,4 Rehmat Khan reportedly died on 9-7-1995.
His legal representatives were brought on record and amended title of the memo. Of petition, was filed in office on 2-10-1998 hereafter notices were issued to such legal representatives of whom notices were duly served on his son Pervez Ahmed for the hearing fixed on 27-10-1999, but hearing of the petition was discharged by office as the petitioner's counsel was on general adjournment. It was ordered that notice be repeated to the legal representatives of deceased Rehmat Khan and such notice has been duly served on his L.Rs, namely Pervez and Mst. Saleem Khatoon for today's hearing while Pervez Ahmed appears to have accepted the notice on behalf of other lady respondents and is in attendance, Mst. Saleem Khatoon is represented by her son Mukhtiar Ali.
3. We have heard learned counsel for the petitioner and learned Additional Advocate-General on Court notice and gone through the material available on the record. This petition was admitted to regular hearing vide order, dated 30-3-1988 to consider the question whether respondent No,1 acted without jurisdiction in leasing out the plot in question on Malkano basis in violation of Land Grant Policy contained in Annexure 'G' at page 69 and thus void ab initio?
4. With reference to the Land Grant Policy for disposal of Barrage Lands as in vogue in 1967 learned counsel contended that for disposal of such lands by way of public auction Kachahry is required to be presided over by the Deputy Commissioner along with Colonization Officer and the Deputy Colonization Officer acting as members of the Auction Committee. He has referred to Para.XVI of the Land Grant Policy, 1969 which stipulates that if for some reason the Deputy Commissioner cannot be present personally at the auction he shall depute an officer not below the rank of Deputy Collector to represent him and in that case, the Colonization Officer shall preside over the auction and the two other officers shall act as members of the Auction Committee. Para.XVII of the Policy deals with the grant of land on long term leases and postulates that no lands within the prohibited limits of Mandi Towns and Municipalities shall be alienated on permanent basis. All these lands shall be leased on tender for a period of ten years with an upset price of Rs, 10 per acre per annum.
Para. XX lays down that if no tender or offer on the issue of first public notice is received another notice shall be issued within one month. If again, no tenders are forthcoming, lands, with previous permission of Board of Revenue may be given on ' Yaksalo' lease. Para.XXIII stipulates that the lands located within 20 chains of sanctioned village shall be reserved for village Asaish or granted to the residents of the village according to the procedure laid down in the said para.
5. Learned counsel then referred to the Schedule for disposal of lands on long term leases in Gudu Barage Project for the year 1967-68 which incorporates the lands situated in Deh Erazi, Taluka Ghotki available for disposal including Survey No, 414.
' Paras. Nos. 1 and 2 of the Schedule read as under: "The Government land situated within restricted belts of Mandi Towns and Municipal Committees as shown in this pamphlet is available for disposal on lease for a period of ten years without any guarantee of renewal or any other right or title whatsoever Lots have been arranged Deh-wise showing S. Nos. And their area. The Deh maps area available for inspection in the office of the Assistant Colonization Officers concerned.
2. The lease will be given by means of sealed tenders in the prescribed form which is annexed to this pamphlet and can also be obtained separately on payment of 50 paisas from the Office of A.D.C., Lahore, Colonization Office Guddu Barrage Sukkur or any of Assistant Colonization Officers stationed at various places."
' It was then contended that the land in dispute was secretly disposed of by the Deputy Colonization Officer, Guddu Barrage, in favour of respondent Rehmat Khan vide order, dated 3-1- 1978 without holding any open Katchahri and without the issuance of any schedule for disposal of lands by way of grant on harp rights. A reference is made to Annexure 'F' to the memo of petition which is an extract from the Register showing names of haris who had applied for grant of land in Deh Erazi, Taluka Ghotki. Endorsement of D.C.O in Column No,1 of the extract tends to show that nobody raised objections therefore, Survey No, 414 measuring 0-37 acre was granted on Harp rights from Kharif 1978-79 to the respondent No,4. There are further endorsements on the exract in Sindhi to the effect that land applied for is available in the schedule for disposal of lands in Deh Erazi; that such land is situated beyond the limits of 20 chains of village, that the land is not reserved for any other purpose and that it is already on year lease with the said respondent. Now if these endorsements are accepted as correct it may be presumed that the land was included in the schedule for disposal of lands and was disposed of in open Katchahri as reflected in the impugned order. Such kind of presumption is however always subject to rebuttal.
' Unfortunately Schedule for disposal of lands from the year 1978-79 has not been brought on record either by the petitioner or by the respondents. Furthermore, respondents did not bother to file parawise comments or past history of the case as is conventional in such type of petitions. Even private respondent No,4 though alive till 9-7-1995 did not take steps to defend the petition after engaging a counsel who shifted to Karachi long ago. Thus, no counter-affidavit or rebuttal of the averments in the petition was submitted with the natural consequence that the averments made in the petition have completely remained unchallenged and unrequited despite its pendency for the last over 12 years. An appeal preferred by the petitioner against the grant in favour of respondent No,4 before the Additional Commissioner was turned down on the short ground that it was barred by time without adverting to the grounds raised in application for condemnation of delay. Likewise learned Member (Land Utilization), Board of Revenue did not apply his mind to the facts of the case and disposed of the revision for the reason that petitioner's suit filed before the Civil Court had been decided in his favour on 26-1-1986. It is urged that instead of disposing of revision application in this slipshod manner and while taking into consideration the fact of decree passed by the Civil Court learned Member (I.S.) should have allowed the revision application as title in favour of the petitioner had been perfected by the decree of a Court of competent jurisdiction which attained finality since appeal preferred against it was even dismissed by District Court, Sukkur. Copies of the judgment and decree passed in 1st Class Suit No, 40 of 1978 passed by Senior Civil Judge, Ghotki have been placed on record in which the petitioner had sought a declaration regarding validity of orders, dated 29-4-1968 and 31-12-1968 passed by Deputy Commissioner, Sukkur in his favour as legal and a further declaration that the order dated 9-3-1970 passed by Deputy Commissioner, Sukkur and order dated 5-5-1970 passed by Additional Commissioner, Khairpur Division, Khairpur were passed without jurisdiction. Both the declarations were granted by the Civil Court and a permanent injunction was issued against the official respondents as well as, respondent Rehmat Khan restraining them from enforcing the aforesaid orders. Prayer for delivery of possession of the survey number in dispute was also granted by the Civil Court which remained intact even in appeal preferred by Rehmat Khan.
8. In the absence of any strong circumstance to the contrary it is difficult to sustain the grant in favour of respondent No,4 and the superstructure built on such grant by reason of dismissal of the appeal and revision preferred by the petitioner. Furthermore, as observed hereinabove grant in favour of petitioner having been validated by the decree of the Civil Court would render the grant in favour of respondent No,4 ineffective and of no legal effect. Learned counsel is right and justified to point out that respondent Rehmat Khan though succeeded in obtaining the grant of the survey number in question in his favour during the pendency of the suit did not disclose this fact before the Senior Civil Judge, Ghotki and is thereby guilty of suppression of material facts from the Court.
In order to re-enforce this submission learned counsel referred to detailed judgment passed by the Senior Civil Judge in 1986 which does not refer to this material fact having important bearing on the suit pertaining to the same piece of land. Be that as it may, impugned order certainly suffer from serious inherent legal defect and were passed without lawful authority and are declared to be of no legal effect.
9. For the aforesaid facts and reasons this petition is allowed with no order as to costs.