This Constitutional petition is directed against the order, dated 4-7-1996 passed by the Assistant Commissioner, Chaubara, District Layyah, respondent No.4, whereby he accepted the report of the Extra-Assistant Commissioner Revenue Layyah, dated 2-7-1996 regarding determination of right of return. A direction has also been sought by the petitioners to the effect that they are entitled to the adjustment of land independently while excluding the area already adjusted to Khan Bahadar Mian Abdul Aziz subject to the conditions and limitations laid down in section 21(2) of the Thal Development (Amendment) Act, 1955, and in terms of the dictum laid down in Administrator, Thal Development Authority versus Muhammad and others 1994 Law Notes 1091.
2. Briefly stated the facts giving rise to this Constitutional petition are that Khan Bahadar Mian Abdul Aziz, Mian Abdul Maieed predecessor-in--interest of petitioners Nos.1 to 7. Mst. Shama-un- Nisa. Mst. Jameela and respondents Nos.6. to 15 jointly purchased land in Mauza Sumra Thal Kalan, Tehsil Chaubara, District Layyah. However. in the Revenue Record the name of Khan Bahadar Mian Abdul Aziz was entered as owner of the entire land. On 15-12-1953, Khan Bahadar Abdul Aziz while retaining his own share to the extent of 35/150 transferred the remaining part of the land to the following persons as per detail given hereunder:--- S.No.Name of TransfereeShare Land Kanal Measuring Marlas
1. Abdul Aziz17-1/2/75 2510 3
2. Abdul Rashid13/75 1865 01
3. Abdul Hameed12/75 1793 06
4. Riaz Majeed, Ejaz Majeed and Javed Majeed10/75 1437 13
5. Mst.
Jameela Khanum10/75 1434 13
6. Mst.
Mahmood Khanum5/75 717 03
7. Mst.
Sheeda Khanum5/75 717 07
8. Asghar Ali and Saadat Ali Imitaz2/75 286 00 Grand total 10759.00 Vide Mutation Nos.424 and 552 sanctioned on 1-12-1993 Khan Bahadar Mian Abdul Aziz transferred a share of 8256 Kanal to the predecessor-in-interest of petitioners Nos. l to 7 and respondents Nos.6 to 15, whose names have been shown in the relevant column of the said Mutations. 2510 Kanals fell in the ownership of Khan Bahadar Mian Abdul Aziz.
3.Provincial Government acting under section 36 (I) of the Thal Development Act, 1949 published Notification No.1542-C, dated 2-4-1951 and Notification No.5125-C; dated 30-1-1953 in which land measuring 7025 Kanals was included for acquisition the award of which was made by the Land Acquisition Collector on 24-12-1953. In the adjustment proceedings land measuring 2710 Kanal-s was adjusted in Chak No.230/TDA, 316/TDA and 318/TDA to Khan Bahadar Mian Abdul Aziz treating him to be the sole owner of the entire land. After Khan Bahadar Mian Abdul Aziz became owner of 2710 Kanals, he again transferred the same to the petitioner which fact stands projected in the Remarks" column of Fard Taqseem. Mian Riaz Majeed, Ejaz Majeed, Javed Majeed, Mst. Mahmood Khan, Mst. Saeed Khanum. Mst. Ghulam Fatima and Mst. Zaib-un-Nisa who were given share to Chak No.318/TDA, but subsequently transferred in Chak No.323/TDA 325/TDA, but subsequently transferred in Chak No.323/TDA, 324/TDA and 328/TDA sold away an area of 240 Kanals and 9 Marlas to Rub Nawa7 Sohanra and Allah Wasaya through registered sale-deed, dated 31-12-1963.
Similarly, Mst. Iqbal Begum and Mst. Jameela Khanum sold away 1538 Kanals and 5 Marlas to one Rehmat Ali. The said sale transaction was pre--empted by Rub Nawaz and Muhammad Shah Alam and they obtained the land through pre-emption decree, dated 16-4-1.969.
4. The proprietors in the Thal area raised an objection in regard to the mode of acquisition of the land and determination of right of return whereupon the Provincial Government issued a Press note and letter bearing No.5071-543258, dated 5-11-1954 giving definite assurance that a Tribunal will be constituted to consider the complaints of the proprietors but nothing was done. Under the notifications mentioned above, an area of 878 Acres and 6 Kanals was acquired which belonged to the sons of Mian Abdul Majeed Mian Asghar Ali, Mian Saadat Ali Imtiaz, Mian Abdul Hameed, Mian Abdul Rashid, Mst. Mahmood, Khanum, Mst. Saeeda Khanum, Mst. Jamila Khanum and Khan Bahadar Mian Abdul Aziz but in the Revenue Record it stood in the name of Khan Bahadar.Mian Abdul Aziz alone. Of the said land 265 Acres and 7 Kanals was given in restitution to Khan Bahadar Mian Abdul Aziz in Chak No.230/TDA which fact stands projected in Khatooni, dated 27-4-1953 prepared under the authority of Press note dated 7-5-1955. The position, therefore, which emerges is that not area of 612 Acres and 7 Kanals was acquired under the said two notifications and an area of 2710 Kanals was returned to Khan Bahadar Mian Abdul Aziz as his returnable share. 1t is.
However, stated that an area of 160 Acres was acquired in excess to what was permissible under the Press note. Under the third Notification No.5763-54/161, dated 15-1-1955, published in` the official Gazette on 4-3-1955 an area of 3666 Kanals belonging to the petitioners and other owners whose names are appeared in Mutations Nos.424 and 552 was again acquired. Although petitioners were recorded as independent owners before acquisition which practically took place on 9-9-1955, yet they were not adjusted, any land and whole acquisition proceedings were conducted between Khan Bahadar Mian Abdul Aziz on the one hand and the Thal Development Authority on the other hand. Presumably to give effect to the said acquisition, on mutation No.552 was cancelled without any notice to the petitioners on the assumption that the land subject-matter of mutation was acquired through one Notification bearing No. 1542-C; dated 4-4-1951 published in the official Gazette on 2-7-1951. On coming to know of the said exercise petitioners instituted Writ Petition.
No.722 of 1964 which was pending adjudication when the Thal Development Authority partly adjusted the land while carving out an area subject-matter of Writ Petition No.722/64 to Abdul Hameed etc. against which Writ Petition No.546 of 1983 was instituted. Both the aforesaid writ petitions came up for hearing before. Mr. Justice Malik Muhammad Qayyum who vide consolidated judgment dated 27-3-1995 accepted the writ petitions. The operative part of the judgment is reproduced hereunder: -- "(4)The question which, therefore, falls for determination is as to whether the petitioners who had acquired the land subsequent to the notification dated 4-4-1951 are entitled to return and other consequential benefits arising out of the acquisition.
(5)It is unnecessary to go into any detail as the question stands authoritatively determined by the Supreme Court of Pakistan in Civil Appeal No.123 of 1972 titled 'Government of Punjab (for merely West Pakistan) through Secretary Colonies, Lahore, v. Jewan and others' in which it has been held that the acquisition made prove to the Ordinance, 1955, which was later on replaced by Thal Development (Amendment) Act, 1955, was not valid and the validity to that acquisition was given by the promulgation of the Amending Ordinance in 1955, and, therefore, the purchasers/ transferees from the originally recorded owners subsequent to the issuance of the notification of reacquisition but before coming into force of the Amending Ordinance, 1955 were entitled to the benefit accruing from the acquisition. It may be mentioned that while dismissing the appeal the Supreme Court of Pakistan upheld the judgment of his Court, dated 27-5-1977 that being so, these petitions are liable to succeed and the cases will have to be remitted to the Assistant Commissioner with the powers of Extra-Assistant Colonization, Officer for determination afresh of the entitlement of the petitioners keeping in view the judgment of the Supreme Court referred to above. "
This order was challenged in C.P.S.L.A. No.547-L of 1995 before the Honourable Supreme Court of Pakistan, by Abdul Hameed etc. contesting respondents in Writ Petition No.546 of 1983 but the same was dismissed vide judgment dated 4-1-1996 upholding the view taken by this court in Writ Petitions Nos.546 of 1983 and 722 of 1964.
5. In pursuance of the remand order dated 27-3-1995 Extra-Assistant Commissioner (Revenue) not an authority under the Thal Development Act, 1949 undertook the proceedings and on 26-6-1996 recorded detailed note that notwithstanding anything contained in the judgment dated 27-3-1995 passed by this Court the entitlement of the petitioners all be worked out in the light of the dictum laid down in Board of Revenue v. Bashir Ahmad Khan 1988 SCM R 432. Accepting the said finding of the Extra-Assistant Commissioner (Revenue) the Assistant Commissioner, Chaubara, vide his ex parte order, dated 4-7-1996 adjusted 867 Kanals, 13 Marlas which included an area of 376 Kanals already reserved for adjustment to Mian Fazal Mahmood and Mian Fazal-ur-Rehman sons of Fazal Elahi through order, dated 4-6-1977 of the Extra-Assistant Colonization Officer, Layyah. The petitioners represented against the said ex parte order before the Deputy Commissioner, Dera Ghazi Khan, who first decided to refer the matter to the Board of Revenue but on second thought in the report of the Extra-Assistant Commissioner (Revenue) dated 14-10-1996 concluded as under:-- - "The applicant is already in the Honourable High Court Multan Bench. It is hoped that interpretation as to the right of return under the relevant formula would be given. If approved. P. U. C. may be filed.
As proposed (Sd.) M.I.C (Sd.) D.C.
21-10-1996"
6. It is contended by the learned counsel for the petitioners that the impugned order 4-7-1996 passed by the learned Assistant Commissioner, Chaubara, respondent No.4, is ex parte and is running counter to the well-- established principle of law embodied in the maxim "audi alteram partem" which must be read as a part of every statute until specifically excluded. That the learned Assistant Commissioner while passing the impugned order included an area of 376 Kanals reserved for Mian Fazal Mahmood and Mian Fazal-ur-Rehman through an order dated 4-6-1977 passed by the Extra-- Assistant Colonization Officer, Layyah, which he obtained through decree of the Civil Court and the same having not been challenged attained finality: that the Assistant Commissioner has fallen in error of law in deciding the right of return while making one notification dated 4-4-1951 which is against the dictum laid down in Administrator Thal Development Authority v.Muhammad and others 1994 Law Notes 1091: that the date of vesting is the date of acquisition which in the present case is 9-9-1995, on which date the land Acquisition Collector gave an award regarding second part of the acquisition: that the order dated 27-3-1995 passed in Writ Petition No.722 of 1964 which was held in C.P.S.L.A. No.4547-L of 1995 by the apex Court was governing law in this case which attained finality and not challenged by the Thal Development Authority anywhere.
7. On the other hand, the learned Additional Advocate-General supported the stance taken by the Assistant Commissioner Chaubara, in his report and parawise comments submitted on 23-8-1997.
He contended that on the basis of reports obtained from the field staff the adjustment has been made and in any case the factual inquiry is involved which is beyond the scope of constitutional jurisdiction. He, however, candidly conceded that this being a case of remand, the case might be remitted to the Assistant Commissioner/Extra-Assistant Colonization Officer, Chaubara, after correcting error in the judgment. .
8.I have given due consideration to the valuable arguments of the learned counsel for both the parties and perused the record available in the file.
9. Section 21 of the Thal Development Act, . 1949, in terms gives powers to the Thal Development Authority to frame a scheme for the development of any local area or part thereof and for achieving that purpose provides for acquisition of land. Sections 22 to 28 relate to the manner of publication, notice of acquisition to the owners, objections against the proposed acquisition and abandonment of acquisition if accepted, sanction of scheme by the provincial Government and other ancillary matters. Section 36 gives power to the Provincial Government in urgent matters to declare any, locality comprised in a local area to be required immediately for resettlement of refugees and directs the authority to undertake work in respect of such locality or any such matter as may be included in the scheme under section 21. This section further authorises the Authority after issuance of such notification to apply to the Collector who shall, after notice to the owners and occupiers, deliver possession of any land in such locality to the Authority and thereupon the land shall vest absolutely in the authority free from encumbrances subject to the payment of compensation. The authority is further required to -proceed to frame a scheme under section 21 after such acquisition. The Act further provides for the constitution of Tribunals of the purpose of performing the functions of the Court in reference to the acquisition of land for the Authority under the Land Acquisition Act, 1894 as modified by the Act and to give an award which is subject to appeal to the High Court. This question directly came up for adjudication before their Lordships of the Honourable Supreme Court of Pakistan in the case titled as Hakeem Abdur Rahim Khan and others v. West Pakistan Government through Secretary, Resettlement and Claims, Lahore and others PLD 1986 SC 96 wherein it was held that the right of return should be decided notification- wise and the vendees are entitled to the independent right of return and the first notification cannot be made the basis of regrant in terms of slab system. The relevant para. is reproduced hereunder:--- "Both these orders were impugned in the writ petition. Two questions were raised before the High Court. The first was that the entitlement to regrant should be worked out in accordance with the ownership as existing on the date of each notification and not on the basis of first notification, dated 2nd of February, 1952, which violated the provisions of section 36(i) of the Act. And the second relates to the regrant in the terms of slab system as introduced by the amended section 21 of the Act. The High Court rejected consideration of the second point as without any substance and only issued notice for the consideration of the first point.
As has been held earlier in Civil Appeal No.86 of 1973, the benefit of slab system as contained in clauses (iii) and (iv) and subsection (2) of section 21 of the amended Act create a vested right in favour of the appellant of which they cannot be divested. Accordingly, the respondents while calculating it are bound to give effect to it for the same reasons as have been given in the earlier appeal. Accordingly, we would allow the appeal with costs, set aside the order of the High Court to this extent and direct that writ shall issue to the 'respondents to give effect to the claim of the appellants. "
10. The pivotal question as raised by the learned counsel for the petitioners is that the date of, vesting is the date of acquisition, on which date the award is given and land actually vests in the Authority has already been authoritatively answered by this Court.in Administrator, Thal Development Authority v. Muhammad and others 1994 Law Notes 1091, in the following terms:-- "The case of the respondents was that the property vested in the Authority only after the Award was pronounced and possession taken and prior to that Authority was not vested with any ownership right and ownership rights of Naziran were not extinguished, therefore, the sale made by Naziran in between the publication of notification and the final acquisition when the property vested in the Authority was valid and each set of plaintiffs was to be treated as owner of that much land in its own right. as purchased by them.
6.The two Courts below held that the property had not vested in the Authority at the time of publication of preliminary notifications for acquisition whereas it vested only after the award was delivered and possession was taken and before that he was owner and the respondents through sale from him were vested with rights of ownership, therefore, the impugned mutation No.635 attested on 19-12-1962 was void and the respondents/plaintiffs were declared to be the owners of the land.
7.The learned Additional Advocate-General was not able to persuade me that the view taken by the two Courts below suffers from any illegality or legal infirmity. The respondents were rightly held to be the owners of the land through mutation sanctioned in their names, therefore, each set of respondents/plaintiffs was to be treated as owners of that much right purchased by them in their own rights. The consequences would be that right of each set of respondents as owners through the said sale have to be determined and the land given to them according to law at the relevant time when the acquisition became effective as held by the two Courts below."
This judgment was upheld by the August Supreme Court in C.P.S.L.A. No.912 which was dismissed on 12-1-1994.
11. In my considered view the Assistant Commissioner passed the impugned order dated 4-7-1996 per encuriem. Khan Bahadar Mian Abdul Aziz could not be declared to be the sole owner of the whole property when he through Mutation Nos. 424 and 552 sanctioned on 15-12-1953 transferred the land to the petitioners and respondents Nos.6 to 15. The various sets of transferees sold out part of their to different vendees which has been included in the impugned adjustment made on 4-7- 1996 on the basis of lacunic and perfunctory report of the Extra-Assistant Commissioner (Revenue)
Layyah, dated 2-7-1996, who for all purposes is not notified authority under the Thal Development Act, 1949. Regarding first determination in favour of Khan Bahadar Mian Abdul Aziz, it stood validated by validating Ordinance No.XV of 1971 and regarding second acquisition the vendees/transferees are entitled to the independent right of return notification-wise. Case of each set of vendees/transferees shall be decided independently in view of the observations made above.
12. For what has been stated above, the writ petition is allowed, the impugned order dated 4-7-1996 passed by the Assistant Commissioner Chaubara on the basis of report prepared by respondent No.5 is declared to be without lawful authority and of no legal effect. The case is remanded to the Assistant Commissioner, Chaubara to decide the case strictly in terms of judgment dated 27-3- 1995 passed in Writ Petition 722 of 1964 by this Court and confirmed by the August Supreme Court in C.P.S.L.A. No.547-L of 1995. The Assistant Commissioner, Chaubara shall requisition the record from the office of respondent No. 3 and pass a, detailed speaking adjustment order after hearing the parties within one mont. Parties are left to bear their own costs.