1. ' Through this Constitutional petition under Article 199, of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks acceptance of this petition and direction to the respondents to restore Lot No,2 Chak No,176-A/15-L Khanewal measuring 161 Acres 5 Kanals and 1-1/4 Marlas in favour of the petitioner or in the alternate similar Government land in the same locality to be given on the same terms and conditions on which the other allottees under this Tubewell Scheme were given, with the prayer that the possession of the same land or the substituted land be ordered to be given to the petitioner in the interest of justice.
2. Brief facts of the case are that the petitioner submitted an application addressed to respondent No,2 on the prescribed form duly stamped for the allotment of Lot No,2 Chak No,76-A/15-L Khanelwal under the Lottery Scheme of Tube-well lands on 31-7-1959 and that under the Tube-well Scheme, the petitioner was declared successful and in token of the same the respondent No,2 served upon the petitioner the allotment order pertaining to Lot No,2 comprising Khasra Nos.56/1 to 25, 57/1 to 25, 58/1 to 25, 59/1 to 25, 60/1 to 25, 61/1 to 25, 62/1 to 11, 20, 21/1 measuring 161 Acres 5 Kanals and 1-1/4 Marlas situated at Chak No,76-A/15-L Khanewal, dated 20-1-1960 and that the petitioner during the years 1951 io 1959, has been staying at the residence of Makhdoom Al-haj Syed Ghulam Yasin Shah Gilani, Darbar Peer Sahib, Multan who being the eldest son was Sajjada Nashin and his father-in-law, after his marriage in May, 1959 and that the petitioner duly obtained the possession of the allotted land of Lot No,2 Chak No,76-A/15-L Khanewa.1 and as a token of handing over the possession of lands, the Patwari and the Kannongo of the area gave their signatures on Roznamcha Dakhalyabi and that during the period of 1959 to 1961 the petitioner was the student of law at Lahore and came to Multan off and on to see his family and has an impression that the lot might have been approved after procedure of service of summons. It has very recently revealed that during the aforesaid period the respondents Nos.2 and 4 with mala fide intention cancelled the allotment of the petitioner without any service of the summons/without affording an opportunity of being heard on a mere false pretext that the parentage of the petitioner was wrong which is otherwise derogatory for a respectable citizen of Pakistan. The respondents Nos.2 and 4 even did not apply ' e mind and did not ever care to examine the file which would have made the position clear, the petitioner applied and took possession of the land from the Revenue Officers, with his signitures under the same parentage. As such, the respondents Nos.2 and 4 under the verbal direction of the remaining respondents deprived the petitioner from the valuable right accrued- to him brushing aside all the norms of justice. The respondents could not through any illegal and void order withdraw or cancel the lot given in possession of the petitioner without any cogent grounds. Even otherwise the impugned order of cancellation of the lot without any service of the Notice/summons and without any opportunity of being heard was patently illegal and void and as such the present petition at this stage is maintainable under the law. This Court will appreciate that the impugned orders of cancellation were passed in hasty and arbitrary manner with the mala fide intention on mere presumption, contrary to the established law that, "the presumption however strong, cannot take the place of legal", all these facts came into the knowledge of the petitioner for the first time very recently, when the he examined,the file in the possession of the respondents and that it is the fundamental law that the persons similarly situated are to be similarly treated. In view of the void order the petitioner is entitled to all the benefits of the land to which the other allottees were benefited. The petitioner on his part undertakes to comply with all the terms and conditions to the satisfaction of the respondents and that the petitioner applied to the respondent No,4 for grant of the titled land ,but it came to knowledge of the petitioner after creation of Khanewal as District the record is with the respondent No,3 but when the respondent No,3 was approached it was told that the record is with respondent No,4. In this shuttle cock policy the petitioner could not get the relevant record with no fault on his part and that the impugned order, dated 28-11-1960 is patently null and void, passed without the service of summons against the established law of audi alterm partem and without any cogent grounds. The same being passed arbitrarily on mere speculations and presumption without any proof is otherwise a nullity in law besides others.
3. Learned counsel for the petitioner submits that the allotted land of the petitioner under Tube-well Scheme was cancelled arbitrarily without providing the petitioner an opportunity of being heard, against the established law, "audi alterm partem" and that too without the service of summons upon the petitioner, on mere a false and concocted story that the parentage of the petitioner was not correct. The respondents Nos.2 and 4 miserably failed to apply their mind and not ever bothered to examine the allotment file of the petitioner, wherein it was like a day light clear that the petitioner applied with the same parentage, the letter allotment was with the same parentage and taken the possession of land (Dakhalyabi) was given by the Revenue Staff with the same parentage under the signatures of both the parties. Even otherwise there is no report of the postal authority that the petitioner or any body in his behalf received or refused to receive any registered letter to prove the service of summons. Hence, the impugned order is totally void, illegal, passed without any lawful authority and liable to be set aside, on this very ground that the impugned order was not speaking order and passed in a slip shod manner is not only without any cogent reasons but also passed on mere presumption and speculations. It is an established law that the presumption however strong cannot take the place of proof. The respondents Nos.2 and 4 have not examined the file itself and cancelled the allotment on very false and insulting notion that the parentage of the petitioner was incorrect, hence, the impugned order is liable to be set aside and that the valuable rights of allotment of 161 Acres 5 Kanals and 1-1/4 Marlas had accrued to the petitioner which could not under all the norms of justice, be snatched or withdrawn in an arbitrary way, by cancelling the allotment, contrary to the provisions of the law and that too without the service of summons against the dictum of Supreme Court. The respondent No,2 on the report of respondent No,4 cancelled the lot, and did not appreciate that the valuable rights had already accrued to the petitioner, which could not be withdrawn or cancelled without any plausible grounds as the petitioner had already taken the possession of the land and that it is dictum of the Honourable Supreme Court and the established law that if the order is void, there is no limitation against such orders. Such orders are liable to be set aside, as if having not been passed at all and that it is established law that if the order is void and illegal, all the subsequent proceedings as a result of such void order also become void and illegal. Hence, the order of cancellation of the lot of the petitioner and subsequent orders made thereof become ipso facto void and having been passed without any lawful authority and that it is the fundamental law that persons similarly situated be similarly treated. The petitioner having been allotted the lot under the Tubewell Scheme and having obtained the possession of the lot is entitled to all the benefits alike other alottees of the Scheme on the same terms and conditions to the same or substituted land, in the manner as if no impugned void order was passed at all and that there is no efficacious speedy remedy available, hence, the present petition has been moved before this Court for the judicious decision.
2. ' Learned counsel for the petitioner, however, submitted the allotment of the lot has been cancelled by the person who is not competent to cancel it. It has also been contended that even if for the sake of arguments it is admitted that advance money was not paid. It was a breach capable of rectification under section 24 of the Colonization of Govt. Lands (Pb.) Act, 1912. It is further submitted that only on the report of the SDO, the Deputy Commissioner has signed and the same has been taken as cancellation order.
3. ' Reliance is placed on Fazal Dad and 2 others v. Member, Board of Revenue (Colonies) West Pakistan and another (PLD 1977 Lahore 264) wherein it was observed:-- "It was argued by the learned counsel for the petitioner that the basic notice in this case Annex. "H" was issued by S.D.O. Khanewal, who signed it "for Collector District Multan" and it was without lawful authority inasmuch as S.D.O. Was neither a Collector nor was he authorised to exercise the powers of a Collector under section 24 of the Colonization of Government Lands (Punjab) Act V of 1912. The contention seems to have merit. The point was raised before the learned Member Board of Revenue who turned it down with the observation that, "from the notice, a copy of which has been produced by the petitioners, it appears that it was issued by the Collector, Multan. S.D.O. Khanewal, however, signed for Collector. "This finding is based on misreading of the document and shall have to be declared as without lawful authority. The notice Annex. "H" does not show that it was issued by the Collector, inasmuch as, it specifically recites.
4. ' It has not been shown to me that an S.D.O. Is a Collector or can exercise powers of a Collector under the aforesaid Act. Rather the apparent tenor of notice itself showed that the S.D.O. Was not the Collector and that is why that he affixed his signatures on an endorsement."
5. "The copy shows that the portion regarding signatures reads as "(Sd.)-- S.D.O. Khanewal"
6. "The basic notice in this case thus having been issued by an incompetent Authority was void ab initio and any proceedings or superstructure based thereon in the form of the orders of the hig authorities as laid down in Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104) will also be void. I hold accordingly."
7. ' Section 24 of the Colcnization of Government Lands (Punjab) Ac:. 1912 reads as under:-- "24. POWER OF IMPOSING PENALTIES.
8. ' When the Collector is satisfied that a tenant in possession of land has committed a breach of conditions of his tenancy. He may after giving the tenant an opportunity to appear and state his objection:
(a) Impose on the tenant a penalty not exceeding five thousand rupees, or
(b) order the resumption of the tenancy; ' Provided that if the breach is capable of rectification the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice, and the tenant has failed to comply with such notice."
9. ' On the other hand, respondent No,3 had submitted his parawise comments, in which it is mentioned that the petitioner submitted an application on 31-7-1959 for allotment of state land comprising lot No,2 consisting on Khasra No,56/1 to 25, 56/1 to 25, 57/1 to 25, 58/1 to 25, 59/1 to 25, 60/1 to 25, 61/1 to 25, 62/1 to 11, 20, 21/1 measuring 161 Acres 5 Kanals 14 Marlas situated in Chak No,76/A-15L, Tehsil Khanewa District Multan now Teshil Mianchannu District Khanwal under Tube- well Sinking Scheme published with Notification No, Col--16/2-56, dated 23-9-1959. The application was accepted and the petitioner was informed through letter No,nil, dated 20-1-1960 to take possession of the said land from Tehsildar, Khanewal within a week with further directions to have a trial boring to be done within one month of the announcement of the above result, pay one year rent as Security in the Government Treasury within seven days. After the expiry of the above mentioned period of one month and put up the treasury receipt before the District Collector, Multan and that the petitioner did not come to the office of the District Collector, Multan within the stipulated period alongwith boring report of tubewell and treasury receipt of rent. It is clearly laid down in para 4 of the Notification, dated 23-9-1959 that a person shall not be allotted land under these conditions until and unless he deposited the security in advance. Moreover, he was required to complete installation of tubewell within a period of one year as contemplated in para 10 of the Scheme. He was also bound to pay rent of each year regularly, bring at least half of the total area under cultivation within first five years as required in para 13, 14 and 18 of the Scheme. Above all, the period of tenancy was 20 years as provided in para 9 of the Scheme and that keeping in view of the above instructions of the Government, the Sub-Divisional Officer (Civil)/Collector, Khanewal issued a notice to the allottee on 10-10-1960 through field staff and another notice by post through registered letter for appearance of the allottee and submission of the treasury receipt of rent and boring report etc in the office. The field staff reported that the petitioner is not residing in the Chak and no tubewell is available in land of lot No,2 in the said Chak. The registered postal notice was returned with the remarks that the parentage of the person is incorrect. Consequently, the allotment was cancelled vide District Collector, Multan Order's, dated 28-11-1960. It is further stated that the petitioner remained silent right from 1960 up to 19-11-1997 when he invoked the present petition with the request that the land be restored or alternate land be given to him. The land in dispute, as the field record shows, was allotted to Kalu Khan etc. Under Tubewell Scheme on 1-12- 1961 but it was also cancelled from their names on 4-8-1970. After that most of the said land was allotted under Terbela Dam Scheme and some of allottees have even obtained conveyance deed.
10. The remaining land has been reserved for Military Personnel. Lastly, it is mentioned that the petitioner did not pay the cash security. He did not cultivate the land. He did not spend anything on the development of the land allotted to him during the tenancy period of twenty years and keep quiet for a long period of 37 years. In this way he failed to fulfil the terms and conditions rather violated all the terms and conditions of the Scheme, and this petition be dismissed with cost as frivolous because the petitioner accrued no right in the land.
11. ' Learned counsel for the petitioner has filed rejoinder of the comments of the answering respondent in detailed.
12. ' I have given due consideration to the valuable arguments on both sides.
13. 'Respondents have admitted the application of the petitioner, the allotment letter, Roznamcha Dakhalyabi and once an order has been acted upon by the way of Dakhalyabi, did not remain a mere application for allotment. A valuable right did accrue to the petitioner which could not be defeated by the respondents without notice and an opportunity of being heard is given to him ' In the case of Fateh Muhammad v. Mushtaq Ahmad and 9 others (1981 SCMR 1061), the Hon'ble Supreme Court observed: "Once there had taken place a violation of section 24 of the Act and the statutory notice required therein has not been issued to the original allottee, before cancelling his allotment, then the order of cancellation was rightly held to be a nullity and void".
14. ' Earlier to that in the case of Anjuman-eAhmadiya, Sargodha v. The Deputy Commissioner, Sargodha and the Government of West Pakistan, through the Secretary Colonies, Board of Revenue, West Pakistan, Lahore (PLD 1966 Supreme Court 639), the Hon'ble Supreme Court held:--- "Even in case of tenants, who have not yet acquired proprietary rights, resumption of the tenancy under section 24 of the said Act, be only made after giving the tenant an opportunity to appear and state his objections and even in such a case if the breach is capable of rectification, the Collector, it is provided, shall not order resumption of the tenancy, unless the tenant has failed after notice to rectify the breach within a reasonable time".
15. For the above reasons, the impugned order is declared illegal and void and the same is set aside and the case is remanded to the Deputy Commissioner/Collector, Khanewal to decide the matter afresh after issuing notice under section 24 of the Colonization of Government Lands (Punjab) Act, 1912 and affording opportunity of hearing to the petitioner. It is further directed that if any part of the land subject matter of this petition has been utilized in any other Scheme, the petitioner shall be given alternate land under the same terms and conditions in accordance with law.