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R.O.R. No. 3605 of 1987, decided on 9th February, 1989.

S. 10 Allotment of land, cancellation of Respondents, refugees and non-owners. were in possession of Ihata in dispute prior to its allotment in favour of petitioner and respondents had constructed houses on that Ihata Petitioner after obtaining allotment of disputed Ihata in his favour neither took any action to take possession thereof nor bothered to get allotment order implemented in Revenue Record and Ihata remained in possession of respondents for the last 20 years Allotment of petitioner was cancelled and possession of respondents over that Ihata was regularised in circumstances.

Sardar Muhammad Tufail Khan for Petitioner.

Abdul Qayyum Awan for Respondents.

Date of hearing: 9th February, 1989.

This is a revision petition against the orders of Commissioner, Bahawalpur, dated 15 10 1987, whereby he accepted the appeal of the respondents and set aside the orders of the Collector, dated 1 8 1968 and dated 20 1 1987, whereby the latter had allotted disputed Ihata No. 70 half measuring 19 marlas situated in Chak No. 26/B.C., Tehsil and District Bahawalpur, to the petitioner.

2. Brief facts of the case are that the respondents applied in the year, 198586 for the allotment of the disputed Ihata to the A.C./Collector, Bahawalpur. The field staff reported that the respondents were refugee non owners, and had been in possession of the disputed Ihata after constructing houses since the last twenty years. Nazir Ahmad petitioner however applied that the disputed Ihata had been allotted to him in 1968 and he had deposited the entire price of the Ihata in the Government treasury and requested that Conveyance Deed be issued in his favour. The A.C./Collector considered the cases and held that the Ihata was not available for allotment and that Abdur Razzaq etc. respondents were unauthorised occupants. He therefore, vide order dated 8 2 1986 rejected the application for the allotment of disputed Ihata. The respondents appealed before the Commissioner, Bahawalpur, who vide order dated 5 4 1986 remanded the ease to the A.C./Collector for a fresh decision. The A.C./Collector heard the parties and observed that the allotment order of 1968 in favour of Nazir Ahmad had never been implemented in the Revenue Record, while the respondents were in possession of the Ihata since many years by constructing houses. However since an allotment had been made to Nazir Ahmad in 1968, he was not empowered to cancel the same. He therefore rejected the application of Abdul Razzaq etc. for the allotment of the Ihata. Aggrieved by the order the respondents again appealed to the Commissioner, who after hearing the parties, observed that although the petitioner had been allotted the Ihata in 1968, but did not take possession at any time and Ihata was shown in the Revenue Record as baqia sarkar. He therefore regularized the possession of the disputed Ihata in favour of the respondents under Board"s letter dated 26 3 1983 provided the respondents surrendered their allotment under the Seven Maria Scheme. Hence this revision.

3. I have heard the parties through their respective counsel. Learned counsel for the petitioner contended that the lower Courts have twice held the allotment of the disputed Ihata in favour of the petitioner to be valid and the Commissioner, subsequently could not cancel it. He contended that the petitioner was a small land owner in the chak, whereas the respondents were strangers and non owners. He stated that after obtaining allotment of the Ihata on 1 8 1968 the petitioner had paid the entire sale price and had thus become owner of the Ihata it was not his fault if the field staff had not implemented the order of allotment in the Revenue Record. Further that the respondents did not challenge the allotment of the petitioner made in 1968 and as such they were escaped by their own conduct to agitate the matter at this belated stage. The A.C./Collector had consistently held that the Ihata was not available for allotment and the respondents were unauthorised occupants. It was therefore incorrect of the Commissioner to hold that the Ihata was not allotted to the petitioner and it was in excess of his requirement. The Commissioner had failed to appreciate that the respondents were non owners and the disputed Ihata was abadkaht Ihata as the respondents had already obtained a number of Ihatas under Jinnah Abadi 7-Marla Scheme.

Learned counsel for the respondents contended that they were in possession of the disputed Ihata since many years and were legally entitled for regularization of their possession as per instructions of the Board of Revenue, contained in letter dated 26 3 1983.

5. I have considered the arguments and perused the record of the case. It is evident that the respondents are non owners but in possession of the disputed Ihata since long which was also admitted by the A.C./Collector while rejecting their application for the allotment of the Ihata. The petitioner after obtaining allotment in 1968 took no action to take possession of the Ihata and therefore it is obvious that he does not need the same. His allotment is cancelled. According to the provisions contained in notification dated 26 3 1983, unauthorised possession of Ihata could be regularized on payment of plus 50% penalty and 10% surcharge. The Commissioner has therefore passed a proper order.

That respondents were allotted Ihata under Seven Marla Scheme. These allotments are also hereby cancelled and the respondents will surrender the possession of these Ihatas for regularization of their present Ihata. The case of the petitioner be considered for the allotment of additional Ihata strictly on basis of his need and availability of the Ihata.

H.B.T./327/R Order accordingly.

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