P L D (PLP)

This is a revision petition against the order dated 16‑2‑1971 of the Commissioner Sargodha Division by which he accepted the appeal of the respondent and allotted Ahata site No. 114 situated in Chak No. 36/JB Tehsil and District Lyallpur to the respondent.

2. The brief facts are that the petitioners applied for, Ahata site No. 114 measuring 1 kanal, 15 marlas on 20‑8‑1968. Allah Bux respondent applied far Ahata site No. 89 measuring: 17 marlas 2 sarsais on 18‑8‑1967 and later on 31‑12‑1968 applied for Ihata site No.

114. The Assistant Commissioner Lyallpur vide his order dated 20‑8‑1970 allotted Ahata site No. 114 to the petitioners at the rate of Rs. 80 per marla. They paid Rs. 2,800 on 28‑8‑1970 and got the possession on 31‑8‑1971. Allah Bakhsh was however allotted 10 marlas out of shop site No. 89 at the rate of Rs. 100 per marla. He went in appeal before the Commissioner against the allotment of Ahata site: No. 114 in the name of the petitioners. The Commissioner accepted his appeal on the ground that the petitioners, neither owned any land in Chak No. 36/JB nor they have any other status, in the Chak. Hence the allotment of an Ahata site in their names was ab initio void. The Commissioner, therefore, by his order dated 16‑2‑1970 accepted the appeal of the respondent and allotted the Ahata site under appeal to him.

3. The learned counsel for the petitioners argued that the disputed village site was allotted to the petitioners on 20‑8‑1970. They deposited full price on 28‑8‑1970 and possession was delivered on 31‑8‑1970. That the respondent Allah Bux filed an appeal on 1‑9‑1970 and obtained a stay order on 8‑9‑1970 when the petitioners had already constructed a kacha boundary wall, one kacha room and installed a hand pump. It was further argued that the petitioners own 4 kanals 18 marlas of land in Chak No. 36/GB in addition to 37 kanals in Chak No. 38/GB, that the land of Chak No. 38/GB is nearer to the abadi of Chak No 36/JB than that of 38/JB, that since 1947 they have settled in Chak No. 36/JB as no Ahata was available in Chak No. 38/GB which is inhabited by Muslim owners. It was also argued that the petitioners own land square No. 42 while Allah Bux respondent owns land in square No. 45 and the land of the petitioners is nearer to the disputed site No. 114 than the land of the respondent; that Ali Muhammad has eight family members while Noor Mohd has 3 and the present residential accommodation with the former in part Ahata Nos. 51 & 101 measures only 10 marlas which is not sufficient for their needs. It was further argued on behalf of the petitioners that in addition to the land owned by them in Chak No. 38/JB they have also obtained some other laud on lease and have installed a tube‑well.

4. Discussing the legal aspect of the case the learned counsel for the petitioners cited Ali Muhammad v. Mst. Rabia Bibi and 3 others (P L D 1971 B J 38). The learned counsel argued that in this judgment the whole law since 1915 was considered and it was held that a person acquiring land from Government under Colonization of Government Lands (Punjab) Act 1912, becomes proprietor of land on payment of all instalments due from him, without formal conveyance deed having been executed and after the payment of full price the Revenue Officer becomes functus Officio. In addition he also cited the following authorities:‑

1. P L D 1956 Lah. 94.

2. P L D 19,58 W P (Rev.) 77.

3. P L D 1959 W P (Rev.) 167.

4. P L D 1964 S C

842. In these authorities it has been held that after paying full price a person becomes absolute owner and deed of sale is not necessary and that only civil Court can upset the sale.

5. The learned counsel for the respondent, on the other hand, argued that the respondent owns 10 killas of land in the Chak and the present residential accommodation with him in Ahata No. 90 is not sufficient to meet his requirements. He has six sons and two daughters. One daughter and one son are married. The other son is going to be married and he needs separate accommodation for his married son; that it Is not desirable that persona owning 4 kanals 18 marlas of agriculture land should be given a residential Ahata measuring 1 kanal 15 marlas. It was further argued that Ahata No. 114 is near to the agriculture land of respondent and is more suitable for him than the petitioners. The respondent also contended that the petitioner Ali Muhammad is not cultivating any land and is doing busi ness of purchase and sale of sugar. He has no share in the tube‑well; that the petitioners are four brothers and all of them have separate Ahatas to live in, that there are other sites lying vacant in the Chak and if the petitioners genuinely need any accommodation, they can be given an Ahata from the available sites, that the respondent has also paid full price of the Ahata after the order of the Commissioner and that he is willing to compensate the petitioners for the construction raised on the Ahata and for the hand pump installed by them.

6. The Patwari of the Circle who was present at the hearing stated that 15 village sites including village site No. 111 are lying un-allotted and vacant.

7. I have examined all the aspects of the case and the arguments adduced by the learned counsels. So far as the question of relying can payment of price is concerned I would like to invite attention to Memo No. 2162‑C dated 11‑7‑1944, on page 191, of the Colony pamphlet Volume I, wherein it has been clearly laid down that in order to allow enough time for disposal of appeal, review and revision, against sale of village sites the purchase price deposited by the vendee In pursuance of the original allotment should be placed in Deposit and retained there for 90 days and that only after the disposal of appeal, review and revision, the price paid should be transferred in the regular head of account and deed of conveyance executed. The need for following this procedure and policy is obvious as other wise the rights of aggrieved parties to get their cases heard through the normal process of appeal, review and revision would become infructuous and their fundamental right would become e circumvented and circumscribed if the original allottee by paying the price of the Ahata in pursuance of the orders of original allotment by the Collector c stopped the aggrieved party from pursuing the case further. In view of the above reasons the factum of Ali Muhammad and Nur Muhammad having paid the price first and prior to Allah Bakhsh cannot be treated as the determining factor in this case. The case has, therefore, to be decided on merits taking into account all the factors relevant in such cases and not that of the date of payment of price.

8. The Commissioner has relied in his order dated 16‑2‑1971 basically on the assertion that Ali Muhammad did not own any land in 36/JB and did not have any status in this Chak, and therefore, allotment of site in their favour was ab initio void. It is, however, on record that Ali Mohammed and Nur Muhammad do own 5 kanals 18 marlas of land in 36/JB and 4 Acres 5 kanals in 38/JB which is next to 36/JB, and that they have been living permanently in 36/JB, since 1947 and have no Ahata In 38/JB. It has also come on record that they have taken some more agricultural land on 'Patta' in Chak No. 38/JB although Ali Mohd. himself carries on trade in sugar while his other brothers operate a tube‑well they have sunk in 38/JB. It is, therefore, obvious that they are very much engaged in agricultural activities in this and the neighbouring Chak and therefore deserve to be accommodated. The total holding of Ahata with them is only 10 marlas (3 marlas with Ali Mohd. in Ahata No. 51 and 7 marlas with Nur Muhammad in Ahata No. 101). As against this, although the ownership of Allah Bakhsh is 10 killas, which is larger than that of Ali Mohammed and Nur Muhammad, he already has Site No. 90 of 15 marlas and shop site No. 89 of 10 marlas. There are 15 village sites including Site No. 111, near to Site No. 114 in dispute available for allotment. It is also on record that after allotment by the Collector, and before the issue of stay order by the Commissioner Ali Mohammed and Nur Muhammad put up some construction in the Ahata Site No, 114 in dispute. The appellants made application for allotment on 213‑8‑1968, while Allah Bakhsh had originally applied for site No. 89 part of which was allotted to him by the Collector's order dated 20‑8‑1970 and for disputed site No. 114, Allah Bakhsh applied on 31‑12‑1968. It would be obvious that taking into account all the above factors in terms of merits the balance would be in favour of Ali Mohammad and Nur Mohammad retaining Ahata No.

114. Accordingly I accept the revision petition of Ali Mohammed and Nur Muhammad and set aside the order of the Commissioner dated 16‑2‑1971 by which he made allotment in favour of respondent Allah Bakhsh. Respondent Allah Bakhsh has already got site No. 90 and a part of shop site No.

89. If he is interested in more accommodation, he should make a regular application for allotment of additional site, which should be considered on merits by local officers.

9. In this connection it must be put on record that the action of the local officers in accepting the price from Ali Mohammad and Nur Muhammad within 90 days of allotment without waiting for the result of appeal, review and revision, was irregular and objectionable. It is therefore directed that the instructions quoted above regarding payment of price of Ahata site should be brought to the notice of all officers concerned, including the Deputy Commissioners, Commissioners and Additional Commissioners and shall be carefully observed by all. Parties to be informed. Order Accordingly.