' This petition has been filed to challenge the order of the Collector refusing to grant proprietary right of the land allotted to the petitioner and the orders of the Additional Commissioner (Revenue) and the Board of Revenue passed in appeal and revision.
2. The admitted facts are that the petitioner was allotted the area in dispute under Maintenance Scheme on the 9th of September 1950. Later on this allotment was converted in the year 1952 under the newly-framed Scheme known as Ejected Tenants Scheme. The petitioner remained in possession of this area throughout. In the year 1974 he applied for grant of proprietary rights in the area in dispute since he had been in possession of the property upto and even after Rabi, 1962. The Collector by his order dated 11-4-74 (Annexure 'C') dismissed this application on the only ground that the petitioner's area had been resumed by an order dated 27th of July 1956. The implication of this order is that the petitioner could not be deemed to be an allottee after the above date and consequently was not entitled to the grant of proprietary rights. In appeal the Additional Commissioner vide his order (Annexure `D') dated 5-8-75 maintained the order of the Collector. It was urged before him that the allotment was never cancelled from the name of the petitioner and in any case this fact had never been within his knowledge. It is clear that what the petitioner wished to convey by this, was that the order of resumption, if any, had been passed without any notice to him. The Additional Commissioner did not consider the effect of this objection nor he gave finding to the contrary to what had been urged before him. In spite of this he maintained the order on the same ground. He, however, found that notwithstanding the order dated 27th of May 1956 the Collector's Office had been recovering rent from the petitioner. He also gathered from the patwari's record that the resumption order was passed for breach of condition by the petitioner in so far as he did not cultivate the land himself. The Board of Revenue dismissed the revision petition on the 21st of January 1976 (Annexure `E'). That authority also did not take into consideration the effect of cancellation of the allotment or resumption of the area held by the petitioner without service of any show-cause notice upon him.
3. The learned counsel for the petitioner argued that the order dated 27-7-1956 of which the petitioner had never any knowledge having beed passed without any service of show-cause notice as required by section 24 of the Colonization of Government Lands (Punjab) Act, 1912, was an absolute nullity and should have been treated as such by the above-mentioned authorities. If that order is to be treated as nullity, there would be nothing against the petitioner justifying the refusal of grant of proprietary rights.
4. The learned counsel for respondent placed reliance upon this order dated 27th of July 1956. He also urged that the petitioner had never cultivated the land himself and that he was not even in possession of some area.
5. The arguments of the learned counsel for the respondent on the factual side cannot be entertained in the absence of a written statement on a counter affidavit. On the other hand it appears from the copy of the khasra girdawari that the petitioner has been in possession of the area in dispute even up to the year 1975. It may be stated at this stage that the respondent did not put in appearance to contest this petition. It was only on my direction that the learned Assistant Advocate-General, made arrangement, for representation of the respondent in this case. Even then no written statement was filed by the Department to challenge the validity of the facts stated in the petition.
6. The learned counsel for the respondent made a concession on the 29th of June 1976 that the order of 1956 was passed on some register and was made without service of any show-cause notice upon the petitioner. This concession appears to be correct since neither the Additional Commissioner, nor the Board of Revenue gave any finding to the contrary notwithstanding the fact that the point about the lack of knowledge of the order on the part of the petitioner was specifically raised before them. Now, section 24 of the Colonization of Government Lands (Punjab) Act, 1912 makes a mandatory provision for giving the tenant an opportunity of being heard before resuming the tenancy, if the resumption order is passed for commission of a breach of conditions of tenancy.
It is now well established that as distinguished from a mere violation of the principle of Audi alteram partem, whenever, such, mandatory provision in a suit is not complied with the resultant order would be no more than a nullity.
7. In view of this established dictum, the order of a resumption of 1956 which was passed without notice to the petitioner can have no legal sanctity and should be treated as having never existed.
This is the only hurdle pointed out by the three authorities against the petitioner's request for grant of proprietary rights. The Revenue Authorities have over-stepped their jurisdiction by disallowing the petitioner's request on the ground which is extraneous to law. They have thus acted without, lawful authority. I, therefore, allow this petition with costs and quash all the three orders Annexures 'C', 'D' and `E'. The Collector shall now reconsider the application for grant of proprietary rights submitted by the petitioner in the light of this judgment.