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Writ Petition No. 43-R of 1986, decided on 29th September, 1986.

---S.2--Constitution of Pakistan (1973), Art. 199--Allotment of land- Petitioners challenging allotment of land to deceased respondent against Khata in question which was adjudged by Settlement Authorities, High Court as well as Supreme Court as fraudulent allotment but Collector on a report from the Assistant Commissioner, that respondent was a sitting allottee, ordering retention of allotment with heirs of deceased respondent clothing them with a preferential right of allotment under said Khata--Copy of RL-11 Register controverting findings recorded by Collector--Petitioner's claim against respondent accepted by Additional Settlement Commissioner who had ordered confirmation of proposal already made in favour of petitioners--Order of Collector declared without lawful authority and case remanded to authorities below for re-examination in light of copy of RL-11 Register an., decision afresh.

Ch. Muhammad Abdullah for Petitioners.

Abdul Aziz Qureshi for Respondents.

Date of hearing: 29th September, 1986.

The facts constituting the back ground of this litigation, are, that land measuring 53 Kanals 15 Marlas in village Sandan Wala, District Sialkot was on 21-7-1964 under Khata No. 177, proposed to predecessor-in-interest of petitioners No.l, 2 and 3 namely Qaim Din. Likewise, vide Khata No. 182/176 of the same village and on the same date, a proposal to allot land measuring 29 Kanals 9 Marlas was drawn in favour of petitioners No. 4, 5 and 6. Similarly on 20-7-1984 area measuring 3 Kanals 8 Marlas under Khata No. 189/139 of the said village, was proposed in the name of Rehmatullah deceased. Petitioners No.7 to 12 are his successors-.in-interest.

2. The petitioners' case is that under the general orders issued by the Chief Settlement Commissioner, confirmation of the proposals was stopped by the Department and accordingly the proposals in their favour too were not confirmed. But in the meanwhile Muhammad Sharif predecessor-in-interest of the respondents by fraud managed to get the land aforesaid alongwith some other area allotted in his favour against Khata No. 190. This allotment was shown to have been made on 29-7-1963 under false signatures of Islam-ud-Din, the then Deputy Settlement Commissioner (L).

The petitioners filed three separate appeals against Muhammad Sharif challenging the allotment in question, which were accepted by the learned Addl. Settlement Commissioner under a consolidated order dated 20-12-1969. He ordered the confirmation of the proposals already made in the names of the petitioners. The operative part of the order dated 20-12-1969 runs as under:-

"... Having seen the Khata of the appellants it is clear that the disputed Khasra Nos. had been proposed in their name on 4th July, 1964. It is clear that the figure 6 in Khata No. 190 had been deliberately tampered with just to show that the confirmation order by the DSC(L) had been made prior to the proposal made on 24th July, 1964. If, as the respondent argues the land had been confirmed in his name, the same should have been shown constantly in the Khasra Girdawari of the previous years i.e. of Kharif 1964 and onwards but having perused the Khasra Girdawari I find that these Khasra Nos. had not been shown in favour of the respondent: However the respondent later showed me two Khasra Nos. which wet, incorporated in his favour in 1966. The basic fact remain that the land in dispute was proposed in the name of the appellants and I see no reason why it was not confirmed in their names. This whole transaction at Khata No. 190 has been very shady. Firstly in 1963, certain Khasra Nos. were proposed in the name of the respondents which according to the scheme, should not have been proposed in their names. The Khasra Nos. pertain to Graveyard, Ponds, Roads, etc. and they have wrongly been proposed in the name of the respondent, secondly it is absolutely clear by seeing with the naked eye, that the signatures under column No.8, which are dated 29-7-1963 are not the signatures of Ch. Islam-ud-Din the then D.S.C. (L)".

Muhammad Sharif then went in revision and raised the plea that the petitioners' claims were already adjusted and in any case these were never transferred to village Sandanwala. These revision petitions failed but the learned Settlement Commissioner in his order dated 12-6-1970 rejecting the revisions maintained.

"----In this connection it was contended by the petitioner that the respondents have no unsatisfied units and their P.1. Units have not been transferred to this village by the order of any competent authority. This objection will have to be considered by the D.S.C. (L) while making allotment of the disputed land. I understand from the patwari that the petitioner has also some unsatisfied units and his claim vis-a-vis the claim of the respondents shall also, therefore, have to be considered. There may be other claimants in this village whose claims have not yet been fully satisfied. All such unsatisfied claims should be taken into consideration and allotment made according to the priorities laid down by the Chief Settlement Commissioner."

3. Muhammad Sharif challenged these orders through invocation of writ jurisdiction but his writ petition No.794-R/70, W.P. No. 795 R/70 and W.P. No. 756-R/70 were dismissed on 26-5-1975. Against this dismissal his heirs sought leave to appeal which was refused. The Supreme Court's order in this behalf is dated 22-2-1981. Seemingly, thereafter both the sides approached the Board of Revenue for implementation of the orders of the Settlement Authorities and in this respect the Collector, passed order dated 24-9-1985 which has been impugned in this writ petition.

4. It is discernible from the impugned order that the Collector called for a report from the Assistant Commissioner, Daska and the latter opined that Muhammad Sharif was the sitting allottee of village Sandanwala and therefore, his successor-in-interest had a preferential right for allotment, This report seems to have weighed with the Collector who directed the retention of allotment of land equivalent to 130 Units under Khata No. 190, in the names of heirs of the deceased. He further maintained that Mst. Barketey petitioner No.4 had only 195 P.I. Us to her credit and thus, was entitled to allotment of land to that extent only. As regards the heirs of Qaim Din deceased, who held claim No. 8014, he directed the Assistant Commissioner to make a probe as to whether or not the said claim was still un-satisfied and if it was found in order, the land should be allotted against the same. The request of the petitioners No. 6 to 12 for allotment of land was, however, turned down for the reason that no entry in their names or for that matter in the name of their predecessor-in-interest Rehmat Ullah existed in the RL-II Register.

5. I have heard the learned counsel for the parties and exam:;. the available record. The petitioners' main grievance, is, that the allotment of the land against Khata No. 190 to Muhammad Sharif was, adjudged by the Settlement Authorities, the High Court as well as the Supreme Court, as fraudulent and therefore, the Collector was not justified in clothing him with a preferential right of allotment and permitting retention of land equivalent to 130 Units, in favour of his successor-in-interest, under the said Khata. In his submissions, the Additional Settlement Commissioner's order dated 20-12-1969, which was not interfered with at any stage, should have been implemented and the proposal drawn in favour of the petitioners confirmed by the Settlement Authorities. The learned counsel drew my attention to the copy of the RL-11 Register (Annexure 'C') showing allotment of land to Rehmatullah deceased against Khata No. 189/139, to controvert the findings recorded by the Collector/ Deputy Commissioner that in the RL-11 Register, there was no mention of proposal in the name of the deceased.

6. On the other hand, the learned counsel for the respondents made a vain effort for sustenance of the impugned order. He referred to the observations made by the Settlement Commissioner in his order dated 12-6-1970 and urged that the respondents had a right to have their claim considered and entitlement determined, when the question of confirmation of proposals, was taken up by the Authorities concerned.

7. There is much force in the arguments advanced on behalf of the petitioners. The revision petitions filed by Muhammad Sharif deceased were dismissed by the Settlement Commissioner. The observations figuring in his order aforesaid, on which the learned counsel for the respondents relies, were not intended to adversely reflect upon the proposals made in the names of the petitioners or to mitigate the fraud attributed to Muhammad Sharif and reconsidered his case. It appears that the learned Settlement Commissioner merely wanted to convey that in case the petitioners' claims were found to have already been adjusted, the case of Muhammad Sharif could also be considered alongwith other claimants, whose claims were lying unsatisfied.

8. Indeed the record fully demonstrates that the Additional Settlement Commissioner had recorded a definite finding that allotment against Khata No. 190 was procured by Muhammad Sharif by fraud. This finding was not disturbed by the Revisional Authority and rather was upheld by the High Court as well as the Supreme Court. It was, therefore, improper on the part of the Collector/ D. C. to regard Muhammad Sharif as possessed of a preferential right for allotment and further permitted retention of the land equivalent to 130 units in the said Khata at the cost of the petitioners. As' regards the, confirmation of the proposals made against Khata Nos. 177 and 182/176, these should have been confirmed provided the petitioners' claims; against which the allotment was sought to be, made, were not already adjusted elsewhere. The case of petitioners No.6 to 12 also seems to' have been dealt with in a perfunctory manner and thus 'requires re-examination by the Authorities below, in the light of copy of RL-11 Register (Annexure 'C').

This writ petition is, therefore, accepted and the impugned order declared to have been passed without lawful authority. The case is remanded to the learned Member Board of Revenue (Settlement Wing Rahab.) for its entrustment to some Officer notified under section 2(2) of Act 14 of 1975 for decision afresh, in the light of the observations made above. The parties are left to bear their own costs.

M.Y.H./R-24/L Case remanded.

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