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SAVED ZAHID HUSSAIN, J. -- By order dated 19.10.1991 the Member (Revenue) Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore while deciding a Mukhbari application, filed by Khan Bahadur, respondent No. 2 has ordered the cancellation of allotment of the petitioner which has been assailed through this petition under Article 199 of the Constitution.
2. It was the case of Mst. Rahimunisa, the petitioner, that she was claimant displaced person from Hyderabad Dakkan and was issued entitlement certificate for 36,000 units including 4646 units for garden which was, however, later on, revised for 25,825 units. She claimed to have been allotted garden and measuring 42 kanal, 17 merle in village Bindra, Tehsil & District Bahawalpur on 2.6.1956 as temporary allotment and was put into possession. One Hafiz Mohkam-ud-Din, filed an application under Ss. 10 and 11 of the Displaced Person (Land) Settlement Act, 1958 against the said allotment on which proceedings were initiated by the Settlement Authorities. The said proceedings were challenged by the petitioner through W.P. No. 227-R/73 which petition was accepted by a learned Single Judge of this Court by taking the view that:- "It is thus clear that having failed to deprive the petitioners of the property in question in the normal course, respondent No. 1 has restored to the provisions of Sections 10 and 11 of the Land Settlement Act. It has been held in Mirza Khan and others v. Addl. Settlement Commissioner (1972 Law Notes 242) that re-adjudication of the merits of a case .Under Sections 10 and 11 of the Act which have already been adjudicated upon by the Settlement authorities is barred by the principles of res judicata.
3. Further, the learned counsel appearing for the Settlement Department is unable to show what fraud or misrepresentation the petitioners have committed to warrant initiation of proceedings against them. The powers under Sections 10 and 11 are to be used very sparingly and only in case where the Settlement authorities are satisfied after examination of record-that they have been defrauded, is highly improper to re- open a case under those provisions merely in the hope of detecting a fraud n the course of the proceedings.
4. For the reasons given above, I am satisfied that the proceedings now pending against the petitioners under Sections 10 and 11 of the Land Settlement Act in the Court of respondent No. 2 are without lawful authority which are accordingly declared as such and quashed. The parties may, however, bear their on costs."
It appears that Khan Bahadur, respondent No. 2 had submitted an application before Deputy Commissioner with the powers of Additional Settlement Commissioner (Land) on 14.2.1974 under Ss.
10 and 11 of the Displaced Persons (Land) Settlement Act, 1958 qua her allotment which petition was accepted by the Additional Commissioner (General/Addl. Settlement and Rehabilitation Commissioner (Land) Bahawalpur on 15.3.1977. He purported to cancel the allotment of the petitioner. That order was challenged through W.P. No. 48-R/77 which was disposed of as a result of consent arrangement between the parties that the matter be remanded to the Chief Settlement Commissioner/Board of Revenue, Punjab, Lahore for reaeciding the ing a reasonable opportunity to the parties who will be at liberty to raise all contentions open to them under the law. It is in pursuance thereof that the impugned order has been passed.
3. The learned counsel for the petitioner contends that the allotment of the petitioner was valid in law which has been cancelled by relying upon the material which never formed part of the case as evidence on record. It is contended that respondent No. 1 has relied upon the material including jamabandi of 1957-58 which was produced by respondent No. 2 alongwith his written arguments after the hearing had been concluded. According to him , the petitioner was condemned unheard who had no opportunity of rebutting such material. Reliance is placed on Iftikhar Hussain v. Mian Irshad Ali and others (1987 SCM R 2059) that the allotment of garden in favour of the petitioner was valid in law
4. Learned counsel for respondent No. 2 contends that the allotment was obtained by illegal means inasmuch as petitioner was not in possession of the garden/land for 5 years in terms of 2nd proviso to clause (24) of the Supplementary Scheme No. 2. He supports the order passed by respondent No. 1 and contends that fraud vitiates any proceedings and order.
5. The relevant and operative part of the order passed by the respondent No. 1 is as follows:- "The respondents have not been able to rebut the allegation that their claim form was not validly transferred from Rahimyar Khan to Bahawalpur. Assuming that these were transferred validly, without prejudice to the outcome of the case, even these allotments said to have been made in 1956 were not reflected in the khasra girdawari for a period of five years and also in the Jarnabandi of 1957-58. The entry in the Jamabandi was made in 1962 for the first time and that does not prove that the respondents were in possession of the land allotted to them. Dr. Ahmad Jamal Ullah by virtue of his position as Deputy Director, Agriculture and as Member of Garden Allotment Committee after his transfer to Bahawalpur in 1962 seems to have managed the allotment of the property under dispute. Since the allottees did not have a claim for urban gardens and have not been found to be in possession of the allotted area five years prior to 1960, therefore, the concession contained in the Chief Settlement Commissioner's memo. No. 975-R-60-IRP, dated 20.2.1960 could not have been allowed to them. These allotments smack of fraud and are suggestive of using official position to one's on advantage."
The grievance of the petitioner qua the same couched in paragraph No. 8 of the writ petition is as under:-
8. "That the petitioner adduced documentary evidence in this case by tendering number of documents i.e. Jamabandi for the year 1961/62 etc. As is evident from the application dated 5.7.1984, copy of which is attached as Annex "U". No evidence was led by the Informer against her about alleged fraud or on the point of her temporary allotment and her 5 years continuous possession of suit land. Onus was on the respondent No. 2 who miserably failed. Later on dramatically under guise of filing written arguments on 1.6.1991 he attached copy of alleged jamabandi for 1957-58 and bogus copy of Khasra girdawari as Annex "D" and "E" to the said written arguments on 1/2.6.1991 behind the back of the petitioner and without any notice to her and without any opportunity to rebut the said documents. Copies of the said inadmissible and bogus documents are attached as Annex "V" and "W". The case had long been closed for arguments and on 1.6.1991 the respondent No. 2 had no right to place any new document in such secret manner.
Vide order dated 26.9.1984, the date 28.9.1984 was the fast date to file any document. Copy of the said written arguments and order are attached (Annexures "W/1" and "W/2" respectively). Sawal form is also attached as Annex'"W/3")." No written statement has been filed by respondent No. 2 to controvert the above assertion made in the writ petition whereas the reply in the comments by respondent No. 1 is evasive.
6. The basis for the order passed by respondent No. 1 is the jamabandi of 1957-58 which was produced by respondent No. 2 alongwith his written arguments whereafter the case was decided. It is the grievance of the petitioner that she had relied upon the jamabandi of 1961-62 in which she was shown in possession of the property in dispute. But by ignoring the same reliance was placed on a jamabandi of 1957-58 which was never confronted to the petitioner nor had come on record as piece of evidence during the proceedings of the case. The grievance so made is not without merit and justification inasmuch as the petitioner was entitled to be aware of the material likely to be made basis for any adverse finding. The petitioner has a legitimate grievance that an adverse order prejudicial to her rights and interest has been passed by respondent No. 1. Without affording her opportunity of explaining/rebutting the above material. In Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531) the under mentioned passages taken from standard threatises on Administrative Law were quoted with approval:- "The general principle is that an adjudicatory body is to decide the matter on the basis of materials placed before it in-the course of proceedings. It cannot take extraneous matters into consideration; it cannot base its decision on any material unless the person against whom it is sought to be utilised has been given an opportunity to rebut or explain the same.
If the adjudicator is going to rely on any material, evidence or document for basing his decision against the individual, then the same must be placed before him for his comments and rebuttal. It is regarded as a fundamental principle of natural justice that no materials should be relied on aaainst a party without giving him an opportunity of explaining the same. The right to know the materials on which the authority is going to take a decision is a part of the right to defend oneself.
The principle can . Be operating in several judicial pronouncements where non-disclosure of the evidence to the affected party has been held to be fatal to the hearing proceedings."
(underlined by me for its relevance)
The principle so enunciated stems from the basic principle of natural justice as to fair opportunity of hearing between the parties. In Administrative Law by H.W.R. Wade & C.F. Forsyth Eighth Edition, 2000 at page 506, the following passage has been quoted from Lord Denning:- "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him . He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."
Keeping in view the constraints of writ jurisdiction, it is not proper for this Court to embark upon an inquiry into factual realm or appreciation of the evidence. The course appropriately open in the circumstances is to declare the order dated 19.10.1991 as illegal and without lawful authority and to remit the matter to the notified officer for deciding the same fresh' after affording due opportunity of hearing to both the parties.
This petition is accepted in the above terms. No order as to costs.