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Constitutional Petition No. 151 of 1974, decided on 9th January, 1983.

‑‑‑ Sc. 10 & 11 ‑ Scrutiny of Claims (Evacuee Property) Regulation [C. M. L. A.'s] No. 84, Regln. 3‑‑Constitution of Pakistan (1973), Art. 199‑Allotment‑Land cancelled from name of petitioner on ground that mandatory declaration under M. L. R. No. 4 not filed by allottee‑Relevant files obtained from Central Record Office showing that petitioner's father/allottee filed. M.R.I. in which he made necessary declaration in respect of land which had been transferred to him against his entitlement for his land left in India‑Impugned order of cancellation passed under mistake without examining record of case and based on presumptions and probabilities‑Order set aside and allotment of land restored to peti tioner.

Asad Ali Bilgrami for Petitioner. Abbas H. Farooqui for Respondents Nos. 1 and 2.

Muhammad Umer Daudi for Respondents Nos. 3 to 8.

Dates of hearing : 22nd and 25th December, 1982.

This petition has been filed challenging the order passed by respondents Nos. 1 and 2 cancelling the land allotted to the petitioner's predecessor late Amiruddin on ground that he had not filed the mandatory declaration under Martial Law Regulation 84 in respect of his property at Hyderabad Deccan. Briefly the facts are that the petitioner's father Amiruddin Khan filed claim in respect of his property left in India at Hyderabad Deccan and Jaipur State. The claim was registered and verified on 30th June, 1959 inter alia under Schedules IV for 41 acres and under Schedule V for 60 acres for Hyderabad Deccan and 23 acres Jaipur State. The petitioner's father applied for Q.P.R. 1 which was registered and QPR‑V was issued. This QPR‑V showed the entitlement of the petitioner's father to be 2220 produce index units as against 63 acres of land of Hyderabad Deccan. Against this entitlement without the consent or information of the petitioner the D.C. and D.R.C. (Land) Hyderabad sent the QPR‑V to Dadu where 147‑5 acres of land in Deh Noshers, Tappa Haji Khan taluka Johi, District Dadu was allotted. On promulgation of M.L.R. 84 petitioner's father Amiruddin Khan submitted to the Chief Settlement Commissioner written statement in Form M.R. 1 which was registered on 20th February, 1961 and receipt M.R. III was issued to him. It has been alleged that in Form M.R. 1 in para. 9 the district of allotment was shown to be Dadu as up to that date the land had been allotted in that district only. Accordingly in column 2 of M.R. III Dadu was mentioned as the district of allotment. As land at Dadu was barren and was not of the choice of the petitioner's father he made effort to get it transferred to district Tharparkar. After about one year the Land Settlement & Rehabilitation Commissioner by order dated 6th December, 1962 allowed deconfirmation of the allotment of land made in Dudu district and transferred the claim to Tharparkar district. Accor dingly in 1963 the Deputy Commissioner and D.R.C., Dadu transferred the QPR No. 2403 dated 21st October, 1959 to, the Deputy Commissioner and D.R.C. and D.S.C. (Land) Tharparkar. In pursuance thereof 60 acres of rural agricultural land comprising of survey Nos. 127/1 to 16.

128/1 to 16, 129/1 to 4 and 9 to 16, 130/1 to 16 132/1 and 132/6

‑‑14‑36 11‑18 16‑0 1‑0 2‑0

were allotted to petitioner's father by R.L. II‑1B, dated 13th February, 1963 in Deh No. 159 Tappa Laghari; talukat Digri, district Tharparkar. It has been alleged that according to the provisions of M.L.R. 89 as amended by M.L.R. 91 the QPR issued in respect of 60 acres of land of Hyderabad Deccan for 2220 P.I. Units stood as it was and no M.R.V. could be issued for the same. In QPR No. 24203 the land claim varied in respect of 23 acres at Jaipur State under Schedule V was not included therein and there fore for this portion M.R.V. No. 000208 dated 18th March, 1963 was later issued for 294 P.I. Units. The C.R.O., Lahore sent it to Settlement Deputy Commissioner (Land), Hyderabad who without the consent of the petitioner's father forward it to Dadu. Accordingly 9.32 acres were allotted in taluka Khairpur Nathanshah,. District Dadu, by Khatooni No. 808 dated 12th September, 1963. This was communicated to the petitioner's father on 8th November, 1963 and by his letter dated 13th November, 1963 he stated that the proposal was not acceptable to him and requested for transfer to Tharparkar district where he had obtained 60 acres of agricultural land. This has not yet been settled.

The respondent No. 3 by an application dated 21st March, 1972 filed before the Dy. Commissioner, Tharparkar, Mirpur Khas, stated that 60 acres of land allotted to the petitioner's father be cancelled as it has been obtained by fraud and on the basis of forged documents. A show‑cause notice was issued on 30th March, 1972 to the petitioner's father who had died on 11th May, 1970 and therefore the petitioner as sole heir submitted his reply and affidavit denying all the allegations. The respondent No. 2 by order dated 1st September, 1972 cancelled the allotment held by the petitioner's father in Deh 159 in respect of QPRV for Hyderabad Deccan on the ground that petitioner's father had failed to file declaration under Martial Law Regulation 84. It was further directed that the land should be put for allotment against pending claims. The petitioner has alleged that the certified copies were purposely not made available earlier than 20th October, 1972 to deprive the petitioner from obtaining the order of status quo. The petitioner had also applied to respondent No. 2 for suspension of the order till the expiry of the period of appeal and maintain status quo as petitioner was in possession of the land but this prayer was not granted and disposal of land was made hastily. It has been alleged that the respondent No. 3 is the cause of all the trouble as he wanted to get the land in dispute allotted to others for unlawful monetary gain and it was due to his influence and manoeuvring that the petitioner was not able to get true copy to M.R.1 filed by his father. The petitioner has filed a copy of the application for obtaining true copy of M.R.I. which was refused. The petitioner filed an appeal against the order of respondent No. 2 but as the Settlement Com missioner was on long leave the order of statue quo was passed on 2nd Feb ruary, 1973. During the pendency of the appeal the petitioner was able to obtain the letter from Central Record Office, Lahore in April, 1973 in which it was stated that QPR‑V for 2220 units in respect of land at Hyderabad Deccan was issued correctly, which was produced before the respondent No. 1. However the respondent No. 1 by the impugned order dated 5th November, 1973 upheld the order of respondent No. 2 dated 1st September, 1972.

This matter was heard on 2nd February, 1980 when the following order was passed

" I have heard Mr. Ismail Munshi and Mr. M.A. Latif at length. One of the most important issues in this case is whether by M. R. 1 sub mitted by Amiruddin Khan, the father of the petitioner, he had made disclosures about the land which bad been transferred to him as com pensation for his land in Hyderabad Deccan. M.R. .III, a copy where of is placed at page 61 of the High Court file shows that he had filed one statement which was registered as P. B/1391‑Dadu on 20th February, 1961. It is necessary to see whether this receipt pertained to the lands left by the petitioner's father in Hyderabad Deccan or Jaipur or both places."

Both counsel agree that it is necessary to have the original written state ment filed by the petitioner's father (Amiruddin Khan) in the Central Record Office located at 11, Egerton, Road, Lahore. The Central Record Office may be directed to submit this document before the next date of hearing which shall be fixed after four weeks.

Central Record Office has forwarded the relevant files and before hear ing all the Advocates have inspected it and examined them at length. From the record it seems that Amiruddin the petitioner's father had filed M.R.1 in which he had made declaration in respect of the land which had been transferred to him against his entitlement for his land in Hyderabad Deccan, A After examining the record it is agreed by the Advocates for the parties that proper declaration in respect of Hyderabad Deccan property has been made in M.R.1.

Mr. Bilgrami the learned counsel for the petitioner has contended that the respondent No. 1 has not come to the conclusion that fraud has been committed by the petitioner or his predecessor and therefore the land could not have been cancelled. It has also been contended that the only ground for cancellation is that petitioner's father did not file mandatory declaration under Martial Law Regulation 84 and therefore as this finding is not base on any evidence on record the impugned orders are liable to be quashed Mr. A. H. Faruqui the learned counsel for the respondents Nos. 1 and after examining the record has conceded that Declaration under M.R.1 in respect of Hyderabad Deccan property was filed by the petitioners father and therefore the impugned order passed by respondents Nos. 1 and 2 cannot be sustained that they were passed under mistake without examining the record of the case. He has therefore supported the petitioner case.

Mr. Daudi the learned counsel for the respondents has contended that under M.R. III reference has been made to land relating to Jaipur State and therefore no declaration had been made by the petitioner's father. This contention does not seem to be correct and is not borne out from the record. In fact the respondents Nos. 1 and 2 have given their finding without examining the record and have based it on presumptions and probabilities.

Mr. Daudi then contended that on the back of the form M.R.I. there is a note that the claim in respect of 60 acres of land has been withdrawn under Martial Law Regulation 49. This endorsement bears an initial but no date has been given in it. The learned counsel has contended that as claim in respect of Hyderabad Deccan property had been withdrawn M. R. III was issued in respect of Jaipur State property. This ground has been raised by Mr. Daudi after examining M.R.I. which was not examined by respondent No. 1 or respondent No. 2. At no stage this objection has been made as a ground for cancellation of the petitioner's claim. This endorsement seems to be of doubtful character as from the file it is not clear that the petitioner or his father had at any time applied for withdrawal of the claim. In fact there is no I9tter or noting on the record to show that the petitioner had withdrawn the claim. Mr. Bilgrami has taken me through the files sent by the Central Record Office, Lahore. From the applications and notings of the relevant officers ranging from the year 1952 to 1973 which were made from time to time on the applications of the petitioners or his father, nowhere it has been pointed out that the petitioner has withdrawn his claim in respect of Hyderabad Deccan property. This clearly indicates that the endorsement relied upon by Mr. Daudi is of no significant value. In view of this dis cussion the petition is allowed. The impugned order passed by the respondents Nos. 1 and 2 are declared to be without lawful authority and are quashed. The allotments in respect of land in dispute made in favour of c respondents Nos. 4 to 9 are cancelled and allotment made in favour of peti tioner's father Amiruddin Khan is restored to the petitioner. The parties to bear their own costs.

M. Y. H. Petition accepted.

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