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Civil Appeal No. 118 of 1974, decided on 4th March, 1986.

(On appeal from the judgment, dated 21‑11‑1973 of the Lahore High Court at Lahore in W.P. No. 602/11 of 1966).

‑‑‑Art. 185(3)‑‑Leave to appeal granted to consider whether there was valid allotment of Ihata in favour of petitioner and further as to whether if such an allotment existed, could it be cancelled without notice to petitioner.

‑‑Ss.10 & 11‑‑Allotment of land‑‑Record showing allotment of Ihata in favour of appellant as a vacant building site‑‑There existing receipts about payment of rent showing that Deputy Settlement Commissioner (Lands) gave effect to their possession of Ihata to extent of disputed land which was excluded from confirmed land of respondents‑‑Land as such stood validly allotted to appellants and they had a vested right to it of which they could not have been deprived by a subsequent allotment by Settlement Commissioner in favour of respondents as there was no ''available' property‑‑Order of allotment in favour of respondent set aside and that of Deputy Settlement Commissioner allotting land to appellant restored.

‑‑Ss. 10 & 11‑‑Land once validly allotted could not be subsequently transferred to others as available property.

Raja Azizuddin Ahmad, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for the Appellants.

Sh. Munir Ahmad, Advocate‑on‑Record for the Respondents Nos.3 and 4.

Respondent No. 2 Ex parte.

Date of hearing: 4th April, 1986.

‑Leave to appeal was granted to consider whether there was valid allotment of Ihata No.115 out of Khasra No.18 of Square No.25, measuring about 2 Kanals and further as to whether if such an allotment existed, could it be cancelled without notice to the appellants.

The appellants who are refugees from the agreed area settled in village Garha Tehal Singh, Tehsil Mailsi now in District Vehari and the land allotted to them against their verified claims was confirmed on 30th of December, 1961 leaving a balance of 4 produce‑index‑units. However, earlier an area of 21 Acres of land out of Squares Nos. 25, 26 and 30 was reserved for extension of the village Abadi by the competent authority by order, dated 26th of January, 1955, issued under para. 53‑A of the West Pakistan Rehabilitation and Settlement Scheme. Subsequently on 4th of August, 1956, Ihata No. 115 out of Khasra No.18 of Square No.25 measuring 1 Kanal 14 Marlas was allotted to the appellants as vacant building site for the construction of a house by the Collector exercising the powers of the Deputy Rehabilitation Commissioner under para. 53 of the aforesaid Scheme. It is the case of the appellants that they had constructed two rooms, a Chhapper and a boundary wall with a Pacca gate in .1956, and commenced residing therein and paid rent for it as ordered by the Collector. On 15th of August, 1959, an Assistant Rehabilitation and Settlement Commissioner, Multan, rescinded the order of reservation and by a subsequent order, dated 8th of November, 1960, allotted and confirmed 14 Kanals and 10 Marlas of land including the Ihata No.115 in favour of respondents 1 to 4 against their claims of mortgagee rights without cancelling the earlier allotment of Ihata No.115 and also without hearing the appellants.

It was on 16th of September, 1964 that the appellants came to know of this confirmation of land when the respondents served on them notice to handover vacant possession to them. The appellants filed an appeal before the Deputy Settlement Commissioner (Lands) on 14th of October, 1964, which was partly accepted by him as by order, dated 19th of January, 1965, he ordered exclusion of an area of 1 Kanal and 14 Marlas from the confirmed land of the respondents. The respondents went in revision and succeeded as the Settlement Commissioner allowed it by order, dated 19th of November, 1965, holding; firstly, that the appellants were not in possession of a valid allotment order; and, secondly, that the appeal filed before the Deputy Settlement Commissioner (Lands) was hopelessly time‑barred and as such it was liable to be dismissed.

Against this order, the appellants invoked the writ jurisdiction of the High Court through Writ Petition No.602‑R of 1966, which was dismissed on 21st of November, 1973 principally on the ground that they had no locus standi to challenge the confirmation in favour of the respondents as they had no valid allotment order, and further that the order for rescinding the earlier order for reservation was not challenged at any stage of the proceedings and all that they desired was that they be allowed to retain 2 Kanals of constructed area against their unsatisfied produce‑index‑units. It was further observed that as the area "had not entered the stage of acquisition" in a regular manner as required by sub‑para. (6) of para. 53‑A, the order of rescission of the reserved area held the field. This area stood excluded from allotment as Abadi Deh, therefore, its allotment as agricultural land to the respondents was fully justified. Such a conclusion, in effect, discounted the claim of the appellants to retain possession of the disputed land as a building site.

An examination of the judgment of the High Court reveals that implicit reliance was placed on the order of the revisional authority which, in terms, stated that the appellants were not able to produce an allotment order nor was any such order brought to the notice of the Deputy Settlement Commissioner (Lands) and even if such an order did exist it would have to be set aside as the land already stood properly allotted to the respondents as far back as in 1960. There is, however, on record the allotment order in favour of the appellants relating to the allotment of Ihata No. 115 measuring 1 Kanal 14 Marlas as a vacant building site under para. 53 of the Scheme. Not only this, there are also receipts showing payment of rent. In this context the Deputy Settlement Commissioner (Lands) gave effect to their possession of the Ihata to the extent of 1 Kanal 14 Marlas and excluded it from the confirmed land of the respondents. The Settlement Commissioner erred in ordering, as he did, that even if it did exist it would have to be set aside in the face of the proper allotment of the land in favour of the respondents, but in ordering so he failed to notice that this Ihata was not available for transfer as it already stood validly allotted to the appellants and they had a vested right to it of which they could not have been deprived by a subsequent allotment in favour of the respondents. The High Court too omitted to give effect to this important aspect of the matter.

The learned counsel for the respondents was not in a position to contest the issuance of the allotment order in favour of the appellants and merely rested his submission on the premise that their claim was based on possession and not on allotment. But this is not correct as it is apparent from the order of the Deputy Settlement Commissioner (Lands) that he had reduced the area from 2 Kanals to 1 Kanal 14 Marlas precisly on the basis of the area allotted to him. Lastly, reference to para. 53‑A of the Scheme is inappropriate and will not be of any help to the respondents after the reservation of the land for extending the village Abadi, and thereafter its allotment to scores of persons who had built up houses thereon. The appellants could not have been singled out which was not only discriminatory, but also violated the settled law that the land once validly allotted could not be subsequently transferred to others as it was not available property.

Accordingly, the appeal succeeds and is allowed with costs. The order of the Settlement Commissioner, dated 19th of November, 1965 and that of the High Court, dated 21st of November, 1973 are set aside and that of the Deputy Settlement Commissioner (Lands), dated 19th of January, 1965, is restored.

M.Y.H. Appeal allowed.

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