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Writ Petition No. 645-R of 1976, decided on 10th November, 1985.

----S. 10--Allotment of land--Land in dispute, being in excess of entitlement, cancelled from name of predecessor-in-interest of respondents and allotted /confirmed in name of predecessor-in-interest of petitioners--Land in excess however, restored to respondents in revision petition filed by them against withdrawal of land wherein petitioners were not impleaded as parties--Order restoring land in dispute to respondents without hearing petitioners, held, was utterly illegal and subsequent orders made on footing of such order also suffered from same infirmity.

---S . 10--Allotment of land--Land confirmed to petitioners and order of confirmation, having not been assailed by respondent, attaining finality--Petitioners constructing houses over respective parcels of land purchased by them and sales in their favour becoming fait .accompli--Petitioners, held, could not be deprived of their land in circumstances- Order passed against petitioners declared to have been passed without lawful authority and of no legal effect.

Ch. Muhammad Altaf for Petitioners.

Idrees Ahmad Sh. for Respondent No.l.

Ch. Muhammad Nazir Ahmad for Respondents Nos. 2 to -5.

Nemo for the Remaining Respondents.

Date of hearing: 10th November, 1985.

Nabi Bakhsh deceased, the predecessor and father of Mst. Bushra, respondent No.l was initially allotted and confirmed land equivalent to 806.208 P.I. Units, vide Khata No. 50 of RL-11 Register of village Kot Daska, Tehsil Daska, District Sialkot. Subsequently, on account of re-verification the deceased's entitlement was reduced by 95.566 P.I. Units and an area equivalent thereto measuring 13 Kanals and 2 Marlas comprising Kasra Nos. 291 of 298/1, was cancelled from the names of his heirs. This is evident from the A.R.C. (Land's) order, dated 23-4-1986 recorded on the RLI-1 Register (Annexure 'A'). The land so cancelled was allotted and confirmed by the A.R.C. (Land) by his order, dated 20-7-1959 to Sarbuland Khan petitioner No.3 (Annexure 'B'), who, vide Mutation No. 2240, dated 30-11-1959 sold it away to Abdul Sattar, petitioner No.2. The latter disposed of the land in favour of Amir-ul-Mulk and Nazir Ahmad petitioners Nos. 30 and 31. Mutation No. 3109 evidencing this sale was sanctioned on 14-4-1967. These petitioners further transferred the land to petitioners Nos. 1 to 29, by way of sales through different transactions (Annexures''E to E/91). Reportedly, the area' has been constructed upon by the petitioners, who have built their houses.

2. It seems that Nabi Bakhsh's verified claim was further reduced from 712 P.I. Units to 637 Units and on the application of one Mst. Kalsoom Begum, the learned Additional Settlement Commissioner (Land) under his order, dated 3-5-1967, cancelled Khasra No. 298 measuring 10 Kanals 13 Marlas equivalent to 75 units from the names of the heirs of the deceased. Aggrieved by this order, respondent No.l preferred a revision against Mst. Kalsoom Begum. It was accepted by the Settlement Commissioner (Land) on 24-4-1968 and the case remanded to the Additional Settlement Commissioner with certain directions. The latter by means of a detailed order, dated 28-11-1969 maintained that the land allotted to the heirs of Nabi Bakhsh, equivalent to 712.500 Produce Index Units, was, within their entitlement and there was no justification for withdrawing Khasra No. 298 (measuring 10 Kanals 13 Marlas) from them. Thus, the land cancelled from their names, under order, dated 3-5-1967, stood restored to them.

3. Dissatisfied with this order, respondent No.l again went in revision. It was directed against the Settlement authorities only. The learned - Settlement Commissioner decided this revision on 20-2-1976 and directed:-

"In view of the instructions of the Chief Settlement Commissioner (L) Punjab, contained in Letter No. 3865-61/4678-R (L) dated 10-7-1962, the land already allotted to the petitioner could not be reduced. As such I accept the revision petition of the petitioner and direct that her allotment should not be reduced and she allowed to keep allotment equivalent to P.I. Units 883.926."

4. On the strength of the order aforesaid, the Collector on 20-3-1976 permitted the review of the mutations sanctioned in favour of the petitioners. These were reviewed on 27-3-1976, and the land was restored to respondent No.l. Likewise, the Assistant Commissioner, Daska, recorded a note on RL-11 Register against Khata of Sarbuland Khan (Annexure 'B') that the land comprising Khasras Nos. 291 and 298/1 was cancelled from his name. The validity of order, dated 20-2-1976 and the aforesaid order passed on the basis thereof, is under challenge in this writ petition.

5. Respondent No.6 is absent despite service. He is, therefore, proceeded against ex-parte.

6. I have heard the learned counsel for the petitioners and other respondents. Only the land measuring 13 Kanals 4 Marlas comprising Khasra Nos. 291 and 298/1 is the subject-matter of this writ petition. There are very weighty grounds apparent on the face of the record which call for acceptance of this writ petition.

It is evident that the orders, dated 3-5-1967, 24-4-1968 and 28-11-1969, were passed in the litigation between Mst. Kalsoom Begum and respondent No.l, to which the petitioners were not party. They were also not impleaded as respondents to the revision petition, filed by respondent No.l against the order, dated 28-11-1969, which was decided vide impugned order. This order, therefore, is not binding on the petitioners. The order restoring the land in dispute to respondent No.l, without hearing the petitioners, is utterly illegal. Presumably, the learned Settlement Commissioner was not conscious that his, order, would have the effect of condemning the petitioners unheard. The subsequent orders made on the footing of the order, dated 20-2-1976, too, cannot be sustained and suffer from the same infirmity.

7. It has already been stated in the narration of the facts, that the land was confirmed to Sarbuland Khan petitioner, vide order, dated 20-7-1959. This order was never assailed by respondent No.l or other heirs of Nabi Bakhsh. It, thus, attained finality. The petitioners have constructed houses over the respective parcels of land purchased by them. The confirmation of the land to Sarbuland Khan and the subsequent sales in favour of petitioners Nos.l to 32 became fait accompli. They, therefore, could not be deprived of this land. Faced with this situation, the learned counsel for respondent No.l did not have much in defending the impugned orders.

8. This writ petition, is therefore, accepted, the order dated, 20-2-1976 and all orders which were passed on the basis thereof, in so L far as these relate to the land bearing Khasra Nos. 291 and 298/1 (measuring 13 Kanals 4 Marlas) are declared to have been passed without lawful authority and as of no legal consequence.

The parties are left to bear their own costs.

M . Y . H . Petition accepted

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