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Civil Petition No. K‑132 of 1982, decided on 17th November, 1982.

(From the judgment dated 24‑2‑1982 of the Sind High Court passed in Constitutional Petition No. D‑255 of 1977).

‑‑ Para. 10 read with Scrutiny of Claims (Evacuee Property) Regulation [M. L. R. No. 89] [as amended by M. L. R. 91]‑‑Scrutiny of allotments of land made to Government servants‑‑Provision of para. 7, M. L. R No. 89 retrospective in operation‑Effect‑Certificates in Forms Q. P. R. V and U. R. V and certificates showing title to land and allotment made on basis thereof‑Held, stood cancelled and deemed never to have been issued or made‑Provision laid a new basis foe working out a fresh entitlement of claimants and allotment of land to them‑Land found surplus to new entitlement had to be surrendered and same vested in Government‑Repurchase of such land by allottee‑Held, became distinct transaction.

Imam Ali G. Kazi, Advocate Supreme Court instructed by Yousaf Rafi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Dates of hearing : 16th and 17th November, 1982.

The facts constituting the background of this petition are that the petitioner was allotted against his claim, 117.32 acres of agricultural land on 11-3‑1958 and further 300 acres after 1-1‑1959. Under M. I,. R. Nos. 89 and 91 premulgated in 1961, his entitlement was, however, reduced to 172.5 acres, of which he retained 31.33 acres from his earlier allotment and the rest from the land allotted to him subsequent to 1‑1‑1959. The land held in excess of his entitlement was purchased by him. Being a Government servant, his case came up for scrutiny under paragraph 10 of M. L. R. 115 of 1972. He claimed that he was entitled to retain the entire 117.32 acres as the same have been allotted to him prior to 1‑1‑1959, was exempt from the operation of paragraph 10. But the claim was rejected by the Deputy Land Commissioner for the reasons that the said land bad only been proposed in his name on 11‑3‑1958 and had been confirmed on 28‑1‑1960, that is, much after 1‑1‑1959, and as such was affected by paragraph 10. The Deputy Land Commissioner also rejected his claim for additional area for tube‑well for the reason that the relevant form had been submitted after the due date. He, therefore, vide his order dated 28-3‑1974 only allowed 100 acres. The petitioner's appeal was dismissed on 31‑5‑1974 but in revision, the Additional Chief Land Commissioner, held, on 5‑10‑1974, that it would not be correct to say that the area of 117.32 had only been proposed in his name before 1‑1‑1959, because the record indicated that its possession had also been delivered to him on 8‑4‑1958. But be found that out of this land only 31.33 acres which the petitioner had retained and not the rest of it which be had surrendered could be exempt from the provision of para. 10. He accordingly allowed him to retain 31.33 acres. In regard to the petitioner's claim for the entire 117.32 acres, the learned Officer further observed :‑

"Had the petitioner continued to retain the entire area undisturbed ever since 1958, he would have been entitled for exemption in respect of the entire area but in the present case he surrendered the area of 86.39 acres in the year 1962 and acquired it afresh under the scheme framed under M. L. R. No. 89/91."

He turned down the prayer for additional area on account of tube‑well for the same reason of the late submission of the form. Not satisfied, the petitioner went in a further revision before ‑the Federal Land Commission, where the Inspection Team of the Commission had also taken an objection to the petitioner having been allowed 31.33 acres but the Officer on Special Duty 11, by his order dated 29‑10‑1976, rejected both. The petitioner then invoked the constitutional jurisdiction of the Sind High Court. The learned Judges found no force in the petitioner's claim to 117.32 acres of land for the reason that he had retained possession only of 31.33 acres out of it. On the question of the additional area for tube‑well, the High Court held that as the Sind Land Commission had condoned the delay in filing the declaration, they were bound to consider the petitioner's claim for tube‑well/tractor, to which benefit he was entitled and his claim on that account could not have been rejected for the reason of delay. The High Court, therefore, vide its order dated 24‑2‑1982 remanded the case to the Deputy Land Commis sioner with the direction "to decide the petitioner's claim for tube-well/tractor in accordance with law."

2. The petitioner now seeks leave to appeal from the order of the High Court. Learned counsel contends that in applying the provision of paragraph 10 of M. L. R. 115, the facts as they stood on 1‑1‑1959, have to be taken into consideration and that as on that day the petitioner had held the allotment of 117.32 acres, that whole area became exempt. According to him, although the petitioner retained only 31.33 acres out of this area, but as he had repurchased the remaining area, and had never parted with possession of the same (sic) 1‑1‑1959. The contention, we are afraid, is not tenable, because by virtue of para. 7 of M. L. R. 89 "all certificates in Forms QPR‑V and UR‑V and certificates showing title to land .......... and any allotment of land made on the basis of such certificate shall stand cancelled and shall be deemed never to have been issued or made. The effect of this provision, which was retrospective in operation, was to have legally effected previous entitlements or allotments of land and. to lay a new basis for working out afresh the entitlement of the claimants and allotment of land to them. The land found to be surplus to the new entitlement had to be surrendered and it vested in the Government and as such its repurchase by the petitioner became distinct transaction. It would not, therefore, be asserted that the allotment of 117.32 acres had remained intact in the eye of law on 1‑1‑1959. The petitioner has already been given the benefit of 31.33 acres and the High Court was fully justified in turning down his request for any more of that land.

3. We, therefore, find no force in this petition which is accordingly dismissed.

Petition dismissed.

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