1983 PLP 2983 (CLC)

2. The petitioner continued to agitate his contentions before the Settlement Authorities and ultimately the Assistant Commissioner and Deputy Settlement Commissioner, Nawabahah, accepted his appeal by order dated 26th .August, 1964, and directed that the petitioner's entitle ment to agricultural land and garden land should be reopened and recal culated according to classification of the land, by which I take the learn ed officer to refer to the correction slip of which note has been taken above. But this order was set aside by the Deputy Commissioner and Additional Settlement Commissioner on 8th February, 1965 on "suo motu" revisional proceedings. This learned Officer held that according to paragraph 29 of the Rehabilitation Scheme, the classification of the land should be taken as; that prevailing in 1946‑47 and that no subsequent changes could be made in that classification, it is this order which is im pugned before me.

3. After hearing the petitioner and Mr. Wasim Hamid Rizvi for the Settlement Department, who appeared in response to the order of this Court, I am of the view that the learned Deputy Commissioner and Additional Settlement Commissioner has taken an erroneous view of the legal position in this case. The agreed position that no such classification as lift land, "Banjar Jadid", "Banjar Qadim" or "Ghair Mumkin" lands found place in the revenue records of Sind prior to Partition. It was in view of this position that the correction slip referred to above was brought so that the anomalies in the allotment of agricultural lands may be rectify. This correction slip reads as follows "Correction slip No. 1, p. 1, dated 2nd March, 1957. Correction slip No. 2, p. 1, dated 15th August, 1957." "Produce Index pamphlet of the Hyderabad and Khairpur Divisions." In super session of C.S. No. 1, p. 1, dated the 26th March, 1957 the following should be added to the footnote to the pamphlet." "Note.‑(1) (a) Chahi soil wherever it exists "in the districts of the Hydgrabad and Khairpur Divisions fold be treated as flow soil." (b) Sailabi Katcha soil wherever it exists in all the districts of the Hyderabad and Khairpur Divisions should be accorded half the produce value of the flow soil. (c) Sarani soil wherever it exists in all the districts of Hyderabad and Khairpur Divisions should be accorded one‑fourth of produce value of flow soil. (d) Banjar Jadid, Banjar Qadim and Ghair Mumkin soil wherever they exist in all the districts of Hyderabad and Khairpur Divi sions should be evaluated at one‑fourth, one‑eighth and one sixteenth of flow soil of the Taluka concerned respectively." It will thus be noted that for Hyderabad and Khairpur Divisions, the correction slip expressly introduced classification of lands as "Banjar Jadid", Banjar Qadim" and "Ghair Mumkin", etc. This correction slip came on 15th August, 1957. Accordingly, the acreage of land transferred to the petitioner in 1959 in lieu of his claim should have been calculated on the basis of the classification of lands contained in this correction ship, but this was not done. Mr. Wasim Hamid Rizvi contended that this correction slip was withdrawn on 19th January, 1962, and, therefore, the petitioner is not entitled to any benefit of the provisions of this correction slip. I am unable to accept this proposition for the reason that when the land was first allotted to the petitioner, his acreage should have been calculated according to the correction slip. I am. dealing here with an allotment made in 1959, when the correction slip was in force, and not with an allotment made after the withdrawal of the correction slip. Therefore, the petitioner's right to obtain allotment in accordance with the correction slip cannot be said to have been taken away with the with drawl of the correction slip in 1962. I am supported in this view by the observations made by a Division Bench at Karachi in Mst. Fidai Zuhra v. Deputy Commissioner and Deputy Settlement Commissioner (Land), Sukkur P L D 1966 Kar.

79. It may be mentioned here that against this decision, the department went in appeal to the Supreme Court in Civil Appeals Nos. K‑5, K‑6, K‑7, K‑8 and K‑9 of 1966 but their Lordships dismissed these appeals by order dated 2nd March, 1967. Therefore, the observations made in the Karachi decision have also been confirmed by the Supreme Court. Con sequently. 1 will set aside the impugned order of the Deputy Commis sioner and Additional Settlement Commissioner, Nawabshah and uphold the validity of the order of the Assistant Commissioner and Deputy Settle ment Commissioner dated 26th August, 1964. In consequence, the entitle ment of the petitioner to agricultural land should be determined accord ing to the directions contained in this order.

4. Another contention canvassed before me is with regard to the garden land. The petitioner obtained allotment of 8.38 acres in Naushahro Feroze, District Nawabshah comprising of Survey Nos. 7, 272, 543, 295, 296, 297 and 298, but subsequently 1/4th share in Survey No. 543 was declared to be non‑evacuee and was withdrawn from the allotment of the petitioner. On going through the records, Mr. Wasim Hamid Rizvi stated at the bar that this declaration as a non‑evacuee character of 1/4th share in Survey No. 543 was wrong and that this survey number is evacuee property. But, according to Mr. Wasim Hamid Rizvi, a difficulty has arisen in that the whole of this survey number has been allotted to respondent No.

4. But the respondent No. 4 is absent, although he has been served with notice of this case. In view of fact that the declaration that 1/4th in Survey No. 543 was not evacuee has been found to be incorrect, I have to hold that this survey number was wrongly withdrawn from the allotment of the petitioner. The res pondent No. 4 is not before me to show‑cause against this view which I have taken.

5. No other point was canvassed before me. Accordingly, the peti tion is allowed with the following directions :‑ (1) That the entitlement to agricultural land of the petitioner shall be re‑calculated in accordance with the order of the Assistant Commissioner and Deputy Settlement Commissioner (Land), Nawabshah, dated 26th August, 1964 and in accordance with the provisions of the‑ correction slip referred to above. (2) The withdrawal of Survey No. 543 from the garden land allotted to the petitioner is set aside, and it is held that no part of this survey number was non‑evacuee. This disposes of the petition. M. A. K. Petition accepted.