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Writ Petition No.4-R of 1979, decided on 30th November, 1985.

---S. 2--Transfer of property--High Court in a course of previous writ petition observing that Settlement Commissioner had not applied his mind to most vital and relevant factors on. merits involved in case- Notified Officer rather passing a perfunctory order despite observation of High Court and cancelling entire allotment of petitioners who had preferential right and ordering for allotment of same in favour of opposite side in toto without first determining question of available/ unutilised produce index units--Order of Notified Officer, held, clearly suffering from perversity of approach--Order set aside and case remanded for fresh disposal in accordance with law.

Ch. Bashir Ahmad Khan for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Date of hearing: 30th November, 1986.

Case has been called out. It is almost the end of the day. Nobody has turned up on behalf -of respondent No.l. He is accordingly ordered ex parte.

2. This case has a chequered history and is in the second of litigation. In the previous round, Muhammad Ramzan, respondent No.l had come up to this Court by way of Writ Petition No.349-R of 1971 which was disposed of by order of this' Court, dated 14-7-1975. The findings recorded by the High Court in remand were that the impugned order of Settlement Commissioner, dated 31-3-1971 was liable to be set aside on three grounds:

(i) that the appeal was competent and the Settlement Commissioner acted without lawful authority to hold it otherwise;

(ii) the petitioner had a vital interest in the question of allotment of surplus land in village Sultanke after the transfer of his claim to that village in July, 1968. He has been prejudiced by the impugned allotment to the respondents behind his back without giving him formal notice or at least informing him in any other manner:

(iii) the Settlement Commissioner has not applied his mind to the most vital and relevant factors on merits involved in this case.

It is in remand ordered by the High Court as aforesaid that the impugned order, dated 18-1-1971 was passed by a notified officer.

3. Learned counsel for the petitioners has briefly argued that whatever be the nature of preference, this could ensure for the benefit of respondent No.l to the extent of his unsatisfied entitlement which was no more than 77 produce index units. He relies in support of this on the report of Assistant Commissioner, Sadar Sub-Division/Collector/ Additional Settlement Commissioner (Land), dated 6-8-1978 addressed to the same notified officer namely, Mr. Faiz Muhammad, who passed the impugned order. This report shows that the opposite side had only unsatisfied 77 produce index units available for allotment.

4. I have perused the order of notified officer and I find that while accepting the revision petition, he purported to set aside the order of notified officer, dated 31-3-1971 and directed that the land in dispute be allotted to petitioner who had, in every respect, preferential rights for allotment. It is most unfortunate that the notified officer rather passed a perfunctory order despite observation by the High Court in the course of previous writ petition that the Settlement Commissioner had not applied his mind to the most vital and relevant factors on merits involved in this case. It was not within the jurisdiction of notified officer to cancel the entire allotment of the petitioners and to order for the allotment of same in favour of the opposite side in toto without first determining the question of available/ unutilised produce index units entitlement of respondent No.l. It must be observed that in cases of preference for allotment the availability of unsatisfied entitlement is of paramount importance. This determination should have been made before ordering the cancellation of allotment of the petitioners and then a clear cut direction should have been issued on the basis of such an inquiry or determination that the area of the petitioners shall be cancelled and allotted to the opposite side to the extent of unsatisfied entitlement. In the present case, what has been done is that without determining the question of eligibility or entitlement of respondent No.l, the petitioners' entire allotment has been given over to respondent who as alleged by the petitioners had only entitlement of 77 P.I. Us.

5. The impugned order thus clearly suffers from perversity of approach and the notified officer has failed to decide the question of entitlement of respondent No.1 which constituted a condition precedent for determination of extent of preference of well as of the specified area which was to be taken away from the petitioners.

In the above circumstances, I would accept this writ petition; set aside the impugned order of notified officer and send the case back for fresh disposal in accordance with law. In remand, the notified officer before deciding the matter shall go into question of availability of unsatisfied entitlement of respondent No.1 and after determining the same, the petitioners' allotment shall only be cancelled to the extent of f. pending/ unsatisfied entitlement of the said respondent. The petitioners shall be allowed the choice and at the same time the principle of consolidation of holdings is also to be kept in view. In the inquiry, both the parties shall be heard and record examined. Since none has appeared on behalf of respondent No.1 to defend the case, there shall be no order as to costs.

M . Y . H . Petition accepted.

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