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Constitutional Petition No.1551 of 1974, decided on 10th January, 1984.

---Art. 199--Deputy Commissioner granting portion of plot which was occupied by petitioner and on which a katcha house was built by her--Respondent challenging such grant on basis of Ijazatnama, which had been cancelled--Member; Board of Revenue remanding case for fresh decision--Respondent neither having any allotment existing in his favour nor in occupation of premises in question--Petitioner, on other hand had valid allotment in her favour which was more than 20 years back- Petitioner had made construction by spending a substantial amount--Held, there was hardly any justification for Member Board of Revenue to remand case for rehearing which would open course of fresh litigation and dragged on for further about quarter of a century.

M.G. Dastagir for Appellant.

M. Ibrahim Memon, Add1.A.-G. for Respondent No.1.

Ahmadullah Farooqi for Respondent No.3.

Date of hearing: 11th January, 1984.

.--The present petition has been filed by Mat. Shafiq Bano to challenge an order passed by Mr.D.M. Qarni, Additional Member Board of Revenue, Sind whereby an appeal against the order of the Commissioner, Khairpur Division which had been allowed in favour of the Petitioner by the Commissioner was allowed and the case once again remanded to the Deputy Commissioner, Khairpur Division for reconsideration of the issues involved.

We have heard Mr Dastagir for the Petitioner. Mr. Muhammad Ibrahim Memon Additional Advocate-General for respondent No.l, anti Mr. Ahmed Ullah Farooqi for respondent No.3.

The brief facts of 'the case are that land in two survey Nos.154 and 164, located at old vegetable market. Khairpur Town, is in possession of the Petitioner. It seems that Syed Jalaluddin Hyder brother of respondent No.3 was in occupation of a portion of such survey Nos. Parties had been vying to obtain allotment in respect of this plot. It appears that on 27-8-1959 an area of 2,000 sq. ft. which was occupied by the brother of respondent No.3 was granted to him @ 50 paisa per sq. ft. as occupancy value and a further 12 paisa had to be paid by him on account of penalty for unauthorised occupation. By the same order dated 27-8-1959, the Commissioner Khairpur Division had accepted some recommendations made by the Municipality of Khairpur and provided for the remaining area of the plot being given to such refugees who had occupied the plot. In persuance of this provision to allot the remaining portion of the plot to the refugees, the Petitioner made an application for grant of the plot. This application was disposed of by the Deputy Commissioner, Khairpur on 17-11-1963. The Petitioner's entitlement was recognised by Deputy Commissioner and he observed in his order that the Petitioner had no shelter and she was the only person who had been deprived of an allotment. It seems that the Commissioner had already ordered that the plots may be given to the occupants on usual charges. In such circumstances the Deputy Commissioner granted such portion of the plots which was occupied by Petitioner and on which a katcha house was also built by her, on normal charges. There was a further formal order by the Deputy Commissioner, Khairpur on 19-11-1963 whereby an area measuring 2,472 sq. ft. of land was given to the petitioner.

The respondent No.3 was perhaps aggrieved by such grant so that he filed an appeal before the Commissioner of Khairpur Division Mr. M.R. Inayat, dismissed this appeal by an order dated 14-9-1965. It appears to be necessary to refer to certain facts emerging out of the order of Mr.M.R.Inayat, as such facts are germane to the facts which found the basis of the dispute in the matter. The learned Commissioner has expressly in his order that no land has been allotted to respondent No.3. It however, appears that some Ijazat Nama had been issued in favour of respondent No.3 but even such Ijazat Nama had subsequently been cancelled and what is more that respondent No.3 had made no construction nor was he in occupation of any plot or portion of the plot On the other hand an objection was raised in regard to the entitlement of the Petitioner on the ground that she was an Indian national, and she had obtained two houses in Khairpur. Such points were considered by the learned Commissioner who came to the conclusion that the mere fact of the husband of the Petitioner being an Indian national or the Petitioner having obtained allotment of one house in Khairpur did not disentitle, her to allotment, In order to assure himself in regard to any construction that the petitioner may have made the learned Commissioner actually visited the scene and recorded his findings of facts on the basis of local enquiry and expressed in his order after holding a summary enquiry from the people of the locality, that he had found that the petitioner had been in possession of the entire area since the very beginning. On the other hand, he came to the conclusion that respondent No.3 was not in occupation but if he had any Ijazat Nama in his favour the same had been cancelled. On such premises the appeal of respondent No.3 was dismissed. The said respondent No.3 thereafter filed a Revision Application before the Board of Revenue. We have read the order passed by the Additional Member Board of Revenue, Sind, dated 11-7-1974. In this order the learned Member has not at all adverted to the fact of possession or construction on the plot. The learned Member has not even considered the effect of total absence of any allotment order in favour of respondent No.3. The learned Mamber has totally overlooked the fact that the Petitioner has been in possession since a time far earlier than 1959, and she obtained a regular allotment of the plot from the Deputy Commissioner, Khairpur Division, in days as early as 1963. However, in the last paragraph of the order the learned Member of the Board of Revenue remanded the case to the Deputy Commissioner for fresh decision on merits. It is this order which has been challenged before us.

Initially, we have to determine whether the Petitioner has any right or title to the plot in question. The allotment in favour of the Petitioner has not been challenged before us. This allotment was made as early as 1963. On the other hand, we asked Mr. Ahmed Farooqui to produce before us any document of title or right. The learned Advocate has not produced any document before us and he has referred to the counter-affidavit filed by respondent No.3. In such counter-affidavit no doubt the respondent has stated that an allotment had been made in his favour but the said order or even a copy thereof has not been produced before us. On the other hand, the order of the Commissioner, Khairpur Division only shows that some Ijazat Nama was issued in favour of respondent No.3 or his brother Syed Jalaluddin Hyder. Such Ijazat Nama had been cancelled. Against such cancellation an appeal had been preferred before the Commissioner, and the same had been rejected for very cogent reasons. To put the matter short there is no existing allotment in favour of respondent No.3 nor he is in occupation of premises. On the other hand, there is a valid allotment in favour of the Petitioner which was made more than 20 years back. The Petitioner had made construction, and must have spent a substantial amount. In these circumstances, there was hardly any justification for the Member Board of Revenue to remand the case for rehearing. The litigation dragged on for about quarter of a century. We will be opening the course of fresh litigation and possible forgery which we would like to avoid.

We allow this Petition to the extent that we declare the Petitioner to be entitled to the land which she is occupying. We hereby declare that the order of the Additional Member Board of Revenue is of no legal effect.

The respondent No. 3 shall also bear the costs of the Petitioner.

M . A . K . Petition accepted.

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