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Writ Petition No. 122-R of 1986, decided on 21stOctober, 1986.

---Ss. 10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)--Allotment of land, cancellation of--Genuine sitting allottees of disputed land having in all respects superior rights of allotment were declined allotment thereof on ground that disputed land was of Forest Department, but same was got allotted by respondents by committing fraud--Application under Ss. 10 & 11 of Act XLVII of 1958 filed by petitioners having superior rights of allotment against such fraudulent and illegal allotment in favour of respondents was dismissed by concerned officer on ground that he could not cancel allotment previously made in favour of respondents by his predecessor in-office of equivalent status--Settled law being that if reason on which competent officer had based his order, was untenable in law, the entire order of such officer would be liable to be set aside--Order of competent Authority dismissing application of petitioners having superior rights of allotment and refusing to exercise vested jurisdiction, held, was without lawful authority and of no legal effect as to move such application was statutory right of petitioners.

Ch. Muhammad Abdullah and Munawar Hussain for Petitioners.

Sh. Abdul Aziz and Muhammad Nawaz Sulehria for Respondent No.1

Ch. Muhammad Nazir Ahmad for Respondents Nos. 2 and 3.

Date of hearing: 21st October, 1986.

Petitioners are sitting allottees of the estate Mohal Chhanawan, Tehsil and District Sialkot, having pending units in their hands. Land measuring 62 Kanals 2 Marlas was allotted to Anwar Khan at Khata No. 4 and 197 Kanals to Sardar Khan and Nawab Khan on Khata No. 5 on 20-9-1964. Appeals were filed by Ghulam Hussain and others and accepted on the ground that the land was with the Forest Department. This is vide order, dated 4-8-1966. In revisional proceedings initiated by Ghulam Qadir, he and Ghulam Hussain and others entered into a compromise whereby 24 Kanals of land was to be given to Ghulam Qadir and the remaining 173 Kanals were to be left with Ghulam Hussain etc. Proposals for allotment were made accordingly but before these could be confirmed, the petitioners made an application for allotment of the land claiming superior right against others being the sitting allottees. The learned Deputy Settlement Commissioner felt difficulty in deciding the case because on the one hand there was the order of the Settlement Commissioner giving land to Ghulam Qadir, Ghulam Hussain etc. On the other hand, the area was in possession of the Forest Department. Also that the petitioners being sitting allottees were entitled to preference. He submitted a report accordingly to the Additional Settlement Commissioner who, after hearing the parties, came to the conclusion that the petitioners had the prior right for allotment of the land as against others. He, therefore, cancelled the proposals drawn in favour of the others, Ghulam Hussain etc. However, he did not order the allotment in favour of the petitioners holding that the land was in possession of the Forest Department. This is vide order, dated 5-11-1971. The petitioners' appeal against the order was dismissed on the same ground that the land was with the Forest Department. This is vide order, dated 5-11-1971. The petitioners' appeal against the order was dismissed on the same ground that the land was with the Forest Department. This is vide order of the Settlement Commissioner, dated 24-11-1973. While the aforesaid proceedings were going on and the Settlement Authorities were declining to allot the land to the petitioners in spite of their being the sitting allottees, respondent No. 1, according to the petitioners, on forged signatures of the Additional Settlement Commissioner (Agha Ali Hassan), obtained proposal of the allotment on 5-2-1971 shown to have been confirmed on 22-2-1971. The petitioners who were seeking allotment of the land as sitting allottees and who had been declined its allotment on the ground that the land was in possession of the Forest Department, filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 which was admitted by the Additional Settlement Commissioner (Lands) on 28-6-1974. It was urged before Sardar Irshadul Hassan, Additional Settlement Commissioner who heard the case that the signatures of the allotting authorities were forged; that the Khata on which the allotment was made in favour of the respondent No. 1 was interpolated, Khatas were seriatum. The allotments were made at Khata No. 5 and Khatan dispute was inscribed on the back page of the Khata No. 5 as Khata No. 5/1. The learned Officer looking at the signature of Agha Ali Hassan, Additional Settlement Commissioner on the proposal and 'confirmation observed that both "the signatures are similar". If the signatures were to be forged by a person the two signatures would obviously be similar. He recorded the statement of his Peshi Kanungo who had worked as Peshi Kanungo of Agha Ali Hassan and who had said that signatures were genuine. The learned Officer observed that "This is enough as I cannot examine the signatures as an expert". The solitary statement was hardly enough when the allotment was made on the back page of a Khata in between two Khatas. This was at least most unusual and required more probe. Another reason given by him is that "it is not my duty to sit on judgment on the work done by an Officer of equivalent status who also was my predecessor-in-office." He thus dismissed the petitioners' application vide order, dated 26-9-1975. Hence, this constitutional petition.

2. Learned counsel for the petitioners have contended that the land was being sought by the petitioners and others and the Settlement Authorities were declining the allotment on the ground that the land was with the Forest Department. While this was being so held the land was shown to have been allotted in favour of the respondent No. 1 on 22-2-1971 and he had no more interest than to sell it away to Amjad Shakoor son of a renowned unit purchaser. The whole thing was fraud.

3. Learned counsel appearing for the Settlement Department has submitted that the case may be remanded to the learned Member, Board of Revenue/ Chief Settlement Commissioner for entrustment to a competent Notified Officer as the land has been allotted in favour of the respondent No. 1 when the land was not available with the Settlement Authorities being in possession of the Forest Department and without even notice to the Forest Department.

4. Learned counsel appearing for the respondent No. 1 and his vendee have contended that the writ petitioners have no locus standi to maintain this constitutional petition being informants and that the land had been alienated through a registered sale-deed. They have otherwise too contested the petition vigorously.

5. After hearing the learned counsel for the parties and perusing the record with their assistance, it is quite clear that while the land was being sought by the sitting allottees the petitioners or others, its allotment was being declined by the Settlement Authorities on the ground that the land was in possession of Forest Department, without issuing any notice or hearing the sitting allottees of the estate or the Forest Department who was in possession of the land in dispute, the same was allotted to the respondent No. 1 who had no more interest than to sell it away. A genuine allottee who obtains allotment after years of efforts in 1971, is not likely to sell away the land. The Officer who has passed the impugned order had also declined to examine the matter on the ground that "it is not my duty to sit on judgment on the work done by an Officer of equivalent status who was my predecessor-in -office". The sentiment is laudible but the Officer was exercising delegated powers of the Chief Settlement Commissioner and therefore, he should have had no hesitation in deciding the matter even if the allotment had earlier been made by an Officer of an equal status, Additional Settlement Commissioner and his predecessor-in-office. It is well-established law by now that if a reason given for an impugned order is untenable in law, the entire order is liable to be set aside. When genuine sitting allottees of the estate were waiting and seeking allotment of the land which was in possession of the Forest Department, without notice to any one of them, the allotment in favour of the respondent No. 1 was void altogether and the learned Officer passing the impugned order', has also illegally refused to exercise jurisdiction vested in him by law. The contentions of the learned counsel for the respondents that they petitioners have no locus standi or land has been sold, have no force. The petitioners tire sitting allottees with pending units in their hands for allotment and were given statutory right to move; the application. When the allotment in favour of the respondent No. 1 was void, no title could be passed by him.

6. In view of the reasons given above, the impugned order of the learned Additional Settlement Commissioner with the delegated powers of the Chief settlement Commissioner, Sialkot, dated 26-9-1975 is declared to be without lawful authority and of no legal effect. The matter is remitted to the learned Member, Board of Revenue/Chief Settlement Commissioner for entrustment to a Notified Officer to decide it afresh after notice to all concerned. The petition is thus allowed with costs.

H . B . T . /I-17/L Petition allowed.

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