1969 PLP 517 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal by special leave arises out of the judgment of a Letters Patent Bench of the High Court of West Pakistan at Karachi, affirming the decision of a learned Single Judge of the same High Court in a writ petition, whereby an order of the Settlement and Rehabilitation Commissioner, Karachi, was reversed. Leave was grant in this case to consider whether the High Court had jurisdiction, under Article 98 of the late Constitution two to reverse findings of fact reached by the administrative authority. The dispute in this case relates to a plot of evacuee, land, bearing Survey No. 302/1, situated in Deh Gaberji in the District of Dadu and measuring 3‑31 acres. It appears that it was in the year 1950‑51 temporarily allotted to one Shaukat Ali, a son ‑of respondent No. 2, Nizamuddin. The said Nizamuddin had also on the 25th February 1957, been proposed for allotment certain lands in Deh Rahuja of the same Taluka and District, bearing Survey No. 348/2. His total entitlement was, however, only 111 produce index units but Survey No. 348/2 came to about 120 produce index units which was in excess of the entitlement of the said Nizamuddin. At this stage the said Nizamuddin, on the 27th February 1957, made the following declaration before the Assistant Rehabilitation Mukhtiarkar and A. R. C. Kakar "I, Nizamuddin son of Fateh Mohammad, claimant, at present residing at Sita Road, hereby state that I shall have no objection whatsoever, if Survey No. 348/2, Deh Rahuja, is permanently allotted to me in lieu of the land allotted to me in satisfaction of my claim." Subsequently, on the 6th September 1957, as will appear from the Nuqsha‑e‑Taqseem (R. L‑II) Form, at page 55 of the record, Shaukat Ali appeared before the Assistant Rehabilitation Commissioner and stated that he would have no objection if the land in his possession was allotted to his father. Thereupon, on the 30th November 1957, the proposed allotment of Survey No. 348/2 of Deh Rahuja was cancelled and Survey No. 302/1 of Deh Gaberji was allotted and confirmed in favour of the said respondent No. 2, Nizamuddin. Notwithstanding this the appellant was, it appears, allotted and confirmed the Survey No. 302/ 1 of Deh Gaberji on the 24th July 1959. The appellant claims that from a notice received by him from the Assistant Settlement Commissioner Kakar on the Sth May 1960, he came to know that the said Survey No. 302/1 had also been allotted to respondent No. 2, Nizamuddin Accordingly, he challenged the allotment of Nizamuddin by filing an appeal before the Deputy Rehabilitation Commissioner, Dadu who dismissed the same on the 20th August 1960. He applied for the review of the said order on the ground that the disputed Survey number had been confirmed in his Khatauni but the Deputy Settlement Commissioner rejected this contention on the ground that there was no entry to this effect either in the R. L‑II Register or in the office copy of the Khatauni. The other contention of the appellant was that the correction made in the R. L‑I1 Register in favour of the respondent Nizamuddin was suspicious in so far as Survey No. 348/2 of Deh Rahuja had therein been scored out and substituted by Survey No. 302/1 of Deh Gaberji. The Deputy Settlement Commissioner Dadu, however, found nothing suspicious in this after going through the record and rejected the review petition also. The appellant went up in revision before the Additional Settlement Commissioner but without any success. In a second revision before the Settlement and Rehabilitation Commissioner, however, he was successful The Settlement and Rehabilitation Commissioner took the view that the respondent No. 2, Nizamuddin, had originally been allotted Survey No. 348/2 of Deh Rehuja upon making the declaration, on the 27th of February 1957, to the effect that he had no objection to the permanent allotment thereof in lieu of the land already allotted to him in satisfaction of his claim. It was presumed that the land which already stood allotted to him at that stage was Survey No. 302/1 of Deh Gaberji and thus by the aforesaid declaration he had really surrendered his claim to the Survey No. 302/1. He could not, therefore, according to the Settlement Commissioner, now resile from that position and again obtain allotment of Survey No. 302/1 after de‑confirmation of the allotment of Survey No. 348/2. The respondent No. 2, Nizamuddin challenged this order by a petitions under Article 98(2) of the Constitution. A learned Single judge of the High Court took the view that the Settlement Commissioner had misread and misconstrued the declaration of the respondent Nizamuddin. The said respondent had never surrendered his claim to Survey No. 302/1. Indeed it appears from an examination of the documents produced on the record that no question of surrender of Survey No. 302/1 arose at that stage, for, it was then in the possession of Shaukat Ali from the time it was temporarily allotted to him in March 1950. In 1956 it was sought to be allotted, to one Mehar Din by the Rehabilitation Mukhtiarkar, Kakar but the Deputy Rehabilitation Commissioner, Dadu by his order of the 12th June 1956, cancelled the allotment of Mehar Din on the ground that the Survey number in dispute should be allowed to remain with Shaukat Ali by adjusting it against the claim of the respondent Nizamuddin. This order was maintained by the Rehabilitation Commissioner in revision No. Reh/6‑Kar/56 decided on the 6th September 1957, because, in his opinion too the balance of advantage lay in allowing the said Survey number to remain with Shaukat Ali by adjustment against his father's claim. It was only after this that on the 30th November 1957, the Survey number in question was confirmed in favour of the respondent Nizamuddin and a Khatauni issued to him. These facts are fully borne out by the photostat copy of the Khatauni which has been filed on the record (vide page 55). The order of the Settlement Commissioner in the second revision was, accordingly, set aside. On Letters Patent Appeal a Division Bench dismissed the appeal in limine upholding the order of the learned Single Judge. An objection taken to the maintainability of the petition under Article 98 of the Constitution, on the ground of a revision being available under section 21 of the Land Settlement Act, was also rejected, because, the appellant, who participated in the hearing of the writ petition on merits, did not raise this objection before the learned Single Judge. Learned Counsel appearing in support of this appeal has contended that the High Court was wrong in taking the view that the Settlement Commissioner had misread or misinterpreted the declaration of the respondent Nizamuddin. He has endeavoured also to argue that the correction in the R. L‑11 Form or Khatauni of Nizamuddin, showing the original allotment of Survey No. 348/2 in his favour, clearly indicated that Nizamuddin had then agreed to accept the said Survey number by surrendering his claim to Survey No. 302/1 of Deh Gaberji. This inference does not, in our opinion, necessarily follow. Survey No. 302/1 was already in possession of Shaukat Ali son of Nizamuddin. The latter had a verified claim of his own and it was for the satisfaction of his claim that the allotment of Survey No. 348/2 was proposed but subsequently, when Mehr Din sought allotment of Survey No. 302/1, it was decided to leave Shaukat Ali in possession, since he had already been cultivating the land from Kharif 1950‑51, and to adjust it against the claim of his father Nizamuddin. It was for this reason that the proposed allotment of Survey No. 348/2 was cancelled and a confirmed allotment made in respect of Survey No. 302/1. There is nothing in this document or any other document to show that Survey No. 348/2 was ever confirmed in favour of Nizamuddin or that any underhand means was used to substitute Survey No. 302/1 in its place. The confirmation took place on the 30th November 1957, only after Shaukat Ali had appeared and stated that he had, no objection to Survey No. 302/1, which was in his possession from 1950, being allotted to his father. The High Court was, therefore, in our view, right in holding that the learned Settlement Commissioner had misread the declaration of Nizamuddin and drawn an inference from the correction in the Khatauni which was wholly unwarranted in the facts of this case. If the Settlement Commissioner purported to find as a question of fact that Nizamuddin had surrendered his claim to Survey No. 302/1 then the High Court was, in our opinion right in taking the view that that finding was based wholly upon a misreading of the evidence in the case. Such a misreading, therefore, justified the High Court in reversing the said finding. No legitimate exception can be taken to this. The High Court had the jurisdiction, under Article 98 of the Constitution, to reverse a finding which was, on the face of the record, unwarranted or based upon a clear and manifest misreading of the evidence. We see no reason, therefore, to interfere in this appeal, particularly, since the learned counsel for the appellant has not been able to show us how the appellant managed to secure the allotment of Survey No. 302/1 on the 24th of July 1959, when it was already in the temporary allotment of another since 1950‑

51. Shaukat Ali, being a sitting allottee, had a preferential claim to the allotment of this land by adjustment against the verified claim of his father. The alleged allotment in favour of the appellant could not have been made without deconfirming the allotment already made on the 30th November, 1957 in favour of Nizamuddin which, even according to the learned Settlement Commissioner, was against the policy of the department. This appeal is, accordingly dismissed but we make no order as to costs. Appeal dismissed.