' Judgment, dated 4-5-1976 of the learned Additional District Judge, Jhang whereby the appeal filed by the appellant was dismissed by him maintaining the judgment of the learned trial Court, has been appealed against in this second appeal. In brief the background of the case is as under.
2. Shah Din respondent No,1 was allotted 48 Kanals, 5 Mamas of land in Chak No,210 Tehsil Chiniot, District Jhang on 8-7-1948 under Guzara Scheme. On 30-8-1967 his allotment was cancelled by the Collector on a report by the Tehsildar that the said respondent had violated the conditions of tenancy. An appeal was filed by him which was rejected by the Additional Commissioner. His revision before the Board of Revenue also failed. The appellant claims to be the allottee of the same land under the Livestock Breeding Scheme and that the possession of the same was also handed over to him on 20-6-1968 of which h was deprived by respondent No,1 by forcible means the next day. A suit was filed by respondent No,1 for declaration that order of the Collector cancelling his allotment was illegal, void and inoperative and that he continues to be allottee of the land. A permanent injunction was also claimed by him with respect to his possession. The appellant made an application for being impleaded as party to the same on the ground that after cancellation of allotment from Shah Din respondent he was allotted the same. He was accordingly allowed to be impleaded as party. Resultantly, an amended plaint was filed by respondent No,1. The suit was contested by the appellant/defendant. Issues arising out of the pleadings of the parties were framed by the learned trial Court. On conclusion of the trial and hearing the parties the suit was decreed by the learned trial Court vide judgment, dated 16-7-1974 who was of the view that the impugned order of cancelation of allotment, dated 30-8-1967 was illegal, void and inoperative.
The said judgment and decree was challenged by the appellant in appeal which was dismissed, as mentioned above, by the learned Additional District Judge, Jhang on 4-5-1976. Hence this second appeal.
3. It is contended by the learned counsel for the appellant that the approach of the two Courts below in the matter was misconceived inasmuch as no notice under section 24 of the Colonization of Government Lands Act, 1912 was required as the respondent was allottee under Guzara Scheme/Ejected Tenant Scheme; respondent/plaintiff never challenged the allotment of the appellant which, thus, attained finality and the two Courts below have illegally assumed jurisdiction which they did not possess in the matter.
4. As against this the learned counsel for respondent No,1 has supported the judgments of the Courts below and contends that the concurrent findings of fact cannot be challenged in second appeal which are based on proper appreciation of the evidence; and that the cancellation of allotment of respondent No,1 was illegal and void as no notice was given to him by the Collector.
5. There are concurrent findings of fact by two Courts below that before the cancellation of allotment of land of respondent No,1 the Collector had not issued any notice whatsoever, to him.
Accordingly, cancellation order, dated 30-8-1976 was found to be illegal and void. The learned Additional District Judge while examining the findings of the learned trial Court took a view that the order of the Collector" has been passed merely on the basis of a report, dated 18-2-1967 (the order does not show by whom) by some official, and the land in suit was resumed forthwith without even hearing the respondent No,1. Notice under section 24 of the Colonization of Government Lands Act, 1912 is one thing but to the cancellation of allotment on the basis of mere report (presumably by Patwari) is quite another and failure to call upon the allottee to explain the circumstances under which (if he had) controvened the conditions of allotment, if at all, it offends against the principle of natural justice. No doubt self-cultivation is one of the conditions attached to the allotment under Ejected Tenants Scheme yet if the allotee is to be visited by the consequence of such breach he ought to have been asked especially when he alleges mala fide on the part of reporting Patwari".
The view so taken by the learned Appellate Court is justified not only in the facts and circumstance of the case but also is consistent with the view taken by the Superior Court that the statutory functionaries are required to apply independent mind before passing any adverse order against any person and pass a speaking order and not to act merely on a note/report submitted before them. Reference may be made to Ghulam Mohy-ud-Din v. Cheif Settlement Commissioner (Pakistan), Lahore etc. PLD 1964 SC 829. The order passed by the Chief Settlement Commissioner by counter-signing a note put before him by the Settlement Commissioner, was held to be not proper disposal of the matter before him and was regarded an order without jurisdiction. In the case of Fazal Dad and 2 others v. Member Board of Revenue (Colonies) West Pakistan and another PLD 1977 Lahore 164 it was held that when the Collector had not exercised the mind independently it was not proper disposal of the case by him. The findings of the learned Appellant Court, therefore, on this into, do not suffer from any factual and legal infirmity.
6. The contention of the learned counsel for the appellant that respondent No,1 was not e titled to a notice before cancellation of the allotment is not tenable in the circumstances of the case. In the case of Muhammad Rashid v. Col ector etc (PLD 1978 Lahore 1370) which pertained to the land allotte to the petitioner under Maintenance Scheme (Guzara Scheme) was cance led by the Collector on the ground that the petitioner had not cultivated he land himself. It was held that "section 24 of the Colonization of Government Lands (Punjab) Act, 1912 makes a mandatory provision for gi ing the tenant an opportunity of being heard before resuming the tenan y, if the resumption order is passed for commission of a breach of co ditions of tenancy". Accordingly, the order of resumption of 1956 which as passed without notice to the petitioner was held to be of no legal sanctity and was treated as having never existed. The precedent case is quite close to the facts and circumstances of the present case. In the case of Kaley an etc. v. Member, Board of Revenue 1989 MLD 2187, also the dispute was with regard to land allotted under Guzara Scheme, the allotment was c celled on the ground that the petitioner was not in self-cultivation, but through tenants. The argument that no notice was required before resumption o the land was repelled. In Fateh Muhammad v. Mushtaq Ahmad and 9 other 1981 SCMR 1061, non-issuance of notice to the allottee before cancellatio of his allotment was held to be defect inherent and the order was held null d void. In Nura etc. v. Mst. Sahib Bibi, etc. 1980 CLC 1617 it was held that cancellation of the suit land by the Collector without notice was void and of no legal effect and that "no legal sanctity attached to super-structure ba ed on a void order." Similar view was taken in Rehmatullah through his leg heir and another v. Province of Sindh through the Secretary, Government f Sindh Revenue Department, Karachi and 5 others 1990 MLD 2353, Shah Muhammad v. Administrator 1993 CLC 902, Province of Punjab through Collector Jhang, District Jhang v. Lal Khan 1993 CLC 2444, Province of Punjab through Deputy Commissioner/ Collector Sargodha, District argodha v. Muhammad Akram PLD 1993 Lah. 114, Bahadur v. Collector, Jhang 1984 CLC 2955, Province of West Pakistan through Collector, Layallpur and another v. Amir Begum and 4 others 1993 MLD 885, Messrs Siddiq Textiles Ltd. v. Board of Revenue, Punjab and others 1985 SCMI.
887.
7. In view of the findings that no notice was given by the Collector before cancellation or resumption of the suit land from respondent No,1 and the law obtaining on the subject the notice was necessary for such an action, I do not find any fault with the approach of the two Courts. Their judgments are amply 'justified by the facts and circumstances of the present case. There is no justification to upset their judgments in second appeal.
As a result of the above, this appeal has no merit and is dismissed accordingly. No order as to costs.