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Constitutional Petition No. S-392 of 1974, decided on 21st February, 1982.
--- Ss. 10 & 15(3) read with S. 2(1)-Land already standing allotted Subsequent allotment of such land without cancellation of prior allotment-Held, void and without jurisdiction.
Muhammad Ishaq and another v. Dr. Saiduddin Swaleh and another P L D 1960 Kar. 48 ; Ghulam Nizamuddin Sabiri v. Khan Farzand Ali Khan P L D 1961 Lah. 19 ; Sh. Barkat Ali v. M. S. Zaman and others P L D 1968 Lah. 770 ; Abdul Hakim Patel v. Mst. Zahira and others P L D 1969 Quetta 60 ; Rounaq Ali and 8 others v. The Settlement and Rehabilitation Commissioner and another P L D 1973 Kar. 224 and Muhammad Bashir v. Muhammad Khan and others 1975 S C M R 173 ref.
S. H. Rizvi for Petitioner.
Abdul Karim Lakhan for Respondent No. 3.
Date of hearing : 21st January, 1982.
The case of the petitioner is that he is a claimant displaced person and was holding a verified claim for agricultural land. He was allotted the land bearing Survey No. 129/2, at Deh Dadi, Tapo Kuhdaran, Taluka Shahdadpur, District Sanghar under I, R. IV Scheme on 18-12-1957. Sub- sequently on verification of his claim and issuance of QPR-V the said land was included in 'Purchi Taqsim Khatoni' and was confirmed in his favour on 24-8-1960. The petitioner's entitlement was again examined under the Martial Law Regulation No. 89, and was verified on MRV and consequently the land already allotted to the petitioner was confirmed in his favour.
However, in the meantime without any notice to the petitioner and without any proceedings by way of appeal or revision under the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act) and without cancellation of the allotment in favour of the petitioner, on 31-10-1960, the land was allotted to Sultan Beg, the respondent No. 3.
On coming to know of this double allotment the petitioner moved an application to the Assistant Rehabilitation Mukhtiarkar, Sanghar for rectification of the error. The Assistant Rehabilitation Mukhtiarkar, along with a report of Tapedar forwarded the petitioner's application to the Additional Settlement Commissioner (Land), Sanghar, respondent No. 2, for rectification of the error. Respondent No. 2, after issuing notice to the parties and hearing the parties cancelled the petitioner's allotment in respect of the land solely for the reason that respondent No. 3 was in physical possession of the land and the petitioner was an allottee on paper.
Aggrieved by the aforesaid order the petitioner filed a revision applica tion before the Deputy Commissioner and Settlement Commissioner (Land), Sanghar, respondent No. 1, who by the order dated 24-11-1973, dismissed the same and confirmed the order of respondent No. 2, He also relied on the alleged possession of respondent No. 3. Aggrieved by the aforesaid order the petitioner has filed this petition under Article 199 of the Constitution.
I have heard Mr. S. H. Rizvi Advocate for the petitioner and Mr. Abdul Karim Lakhan Advocate for respondent No. 3, in whose favour the allotment has been maintained. It is contended by Mr. Rizvi learned counsel for the petitioner that the orders of respondents Nos. 1 and 2 are without jurisdiction inasmuch as the land finally stood allotted to the petitioner on 24-8-1960, and thereafter the allotment was not set aside in any proceeding under the Act or under any Martial Law Regulations. The learned counsel also contended that allotment was made on the basis of entitlement of land and not the possession of land. He further contended that even if it is as3umed for the sake of argument that respondent No. 3 came into possession of the land then he came into the possession only on or after 31-10-1960 for it was no where his case that he was allotted the said land or he came into possession, thereof, before 31-10-1960. It is also submitted that there was no cogent evidence before respondents Nos. 1 and 2 to give a finding that respondent No. 3 was in possession of the land for it is an admitted fact that the land was allotted to respondent vide R. L. 11 on 31-10-1960.
Respondent No. 3 has filed a counter-afdavit wherein he has not denied the claim of the petitioner as to prior allotment and confirmation after verification and issuance of QPR-V, on 24-8-1960, and that he was allotted the same land on 31-10-1960.It is, therefore, clear that the petitioner's allotment of land is prior in time. It is also not claimed by him that any proceedings by way of appeal or revision or otherwise were taken against the allotment of the land in favour of the petitioner on or before 24-8-1960 or otherwise. It is also on record that respondent No. 3 was allotted this land on 31-10-1960, in lieu of Survey No: 40/2, which was cancelled due to double allotment. Now, it is well settled that unless the prior allotment is cancelled, the subsequent allotment of the same land without its cancellation is void ands without jurisdiction for such land is not available for allotment or transter I
If any precedents are needed reference may be had to Muhammad Ishaq and another v. Dr. Saiduddin Sweleh and another (1), Ghulam Nizamuddin Sabiri v. Khan Farzand Ali Khan (2), Sh. Barkat Ali v. M. S. Zaman and others (3), Mr. S. H. Rizvi has also referred to the following cases Abdul -Hakim Patel v. Mst. Zahira and others (4), Rounaq Ali and 8 others v. The Settlement and Rehabilitation Commissioner and another (5), Muhammad Bashir N. Muhammad Khan and others (6).
In the first named case it was observed by M. A. Zullah, J. (now Judge of the Supreme Court), at page 76 of the report as follows: the fact remains that the property stood already transferred to the petitioner under another law by a. different authority and that the Deputy Settlement Commissioner (Urban) acting under the Settlement Act had no jurisdiction to transfer the same to Taj Muhammad."In Rounaq Ali's case the facts were that the petitioners were allotted, the disputed Survey No. 73 provisionally and thereafter Purchi Taqsim Khatoni' was issued to them on 12-1-1957 and the allotment was made permanent on 20-8-1974, while the contesting respondent had applied for allotment of disputed land in 1963 and was allotted the same in 1965 and on these facts Muhammad Haleem, J. (now the Acting Chief Justice of the Supreme Court) observed at page 226 of the report as follows: In terms of section 15(3) of the Displaced Persons (Land Settlement) Act, 1958, their allotment is saved as it is a mandatory requirement of law that the earlier allotment shall be converted into a permanent one. At the time these survey numbers were permanently settled, no appeal, revision or review before a Settlement Authority was pending." And consequently declared the second allotment order without lawful authority and of no consequence.
In the case of Muhammad Bashir, relied upon by Mr. Rizvi, it was ruled by the Supreme Court that unless allotment of land in favour of the prior allottee was cancelled, which is a condition precedent for availability fresh allotment could not be made. Now, taking up the second and the third contentions together it may be stated that the basis of the allotment under the Act is entitlement and not
physical possession of the land and if the land was already allotted unless the allotment was cancelled in proceeding under same provisions of the Act the land was not available for allotment as under section 2(1) allotment is defined as follows : -
"(1) Allotment.-Allotment means an allotment of Agricultural Land made to be a displaced person under this Act or under any Scheme,
(1) P L D 1960 Kar. 48 (2) P L D 1961 Lab. 19
(3) P L D 1968 Lab. 770 (4) P L D 1969 Quetta 60
(5) P L D 1973 Kar. 224 (6) 1975
S C M R 173
in lieu of any claim Registered and verified, or deemed to have been registered and verified under any of the following enactments, namely .-
"(i) The West Punjab Refugees (Registration of Land Claims) Act, 1949 (W. P. Act V of 1949) ;
(ii) The Refugees (Registration of Land Claims) (Capital of the Federa tion) Ordinance, 1949 (XII of 1949).
(iii) The North-West Frontier Province Refugees (Registration of Land Claims) Act, 1949 (N.-W. F. P. Act X of 1949) ;
(iv) The Bahawalpur State Refugees (Registration of Land Claims) Act No. 14 of 1949 ;
(v) The Sind Refugees (Registration of Land Claims) Act, 1950 (Sind Act 11 of 1950) ;
(vi) The Khairpur State Refugees (Registration of Land Claims) Ordinance (IV of 1952);
(vii) The Refugees (Registration of Land Claims) (Baluchistan) Regula tion, 1950 (l1I of 1950) ; and
(viii) The Registration of Claims (Displaced Persons) Act, 1956 (III of 1956)."
The petitioner's claim was verified under one of the Acts mentioned above, therefore, both the respondents were in grave error in passing the orders on the basis of possession of respondent No. 3, who, admittedly could not have come into possession before the date of allotment for it was no where his case that he came into possession prior to the allotment on 31-10-1960. His own case as already mentioned was that he was allotted the disputed land on 31-10-1960 in lieu of the land bearing Survey No. 4012, which was cancelled due to double allotment.
In view of the above discussion it is not necessary to go into the remaining point of Mr. Rizvi.
Accordingly, I allow this petition declaring the two orders impugned in this petition, to have been passed without lawful authority and are, therefore, of no legal effect. In the circumstances of the case, I leave the parties to bear their own costs as Mr. Rizvi does not press for the same.
S. Q. Petition allowed.
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