1985 PLP 1003 (MLD)

P L D 1961 Kar. 204; 1980 C L C 288 and 1973 S C M R 339 ref. Maroof Ali Khan for Appellant. A.M. Khoja for Respondents Nos. 2 and

3. Date of hearing: 29th May, 1985. The petitioner is a displaced person to whom 1 Acre 21 Ghuntas were allotted in Survey No. 31 Deh Jamshoro, Giddu, Hyderabad, A Khatoni, dated 27-6-1962 was issued against her entitlement certificate and an entry to that effect was also made in RLII Register. A Mashirnama was prepared on 7-6-1962. She paid the rehabilitation fee and certificate of permanent transfer was issued on 5-6-1970. It is alleged that on 20th July, 1970 the petitioner learnt that entire Survey No. 31 out of which she was allotted 1 Acre 21 Ghuntas has been allotted to the respondents Nos. 2 and 3 on 18-6-1962, without cancelling the allotment made earlier to her and without any notice to her. She, therefore, filed an appeal before the Deputy Settlement Commissioner (Land) who by an order, dated 30-12-1971 cancelled the allotment of the respondents Nos. 2 and 3 to the extent of 1 Acre 21 Ghuntas in Survey No.

31. It seems that one Rafiq Ahmed claiming to be the allottee of Survey No. 31 challenged the allotment of the petitioner and respondents Nos. 2 and 3 in May, 1970 and the Deputy Settlement Commissioner by a separate order of the same date i.e. , 30th December, 1971 accepted the appeal and maintained allotment in his favour for Survey No.

31. It seems that appeals filed by the petitioner and Rafiq Ahmad were heard together and disposed of by two orders of the same date. The petitioner filed a Revision Application against the order which was passed in favour of Rafiq Ahmad, and the respondents Nos. 2 and 3 filed a separate Revision Application against both the orders passed on 30th December, 1971. The Settlement Commissioner disposed of all these revision petitions by a single order, dated 11-12-1973. While holding that the area of Survey No. 31 is 9.2 Acres upheld the allotment of 4 Acres 5 Ghuntas out of Survey No. 31 In favour of the respondents Nos. 2 and 3 and at the same time upheld the allotment of the petitioner to the extent of 1 Acre 21 Ghuntas and cancelled the allotment made in favour of Rafiq Ahmed. Rafiq Ahmed and the petitioner challenged the order, dated 11-12-1973 in Constitutional Petition No. 135 of 1974 and 613 of 1974, respectively. According to the revenue record the area of the land was not 9.2 Acres. These two petitions were disposed of by two separate judgments, dated 27-2-1979 and all the revisions were remanded for rehearing afresh after taking into consideration the documents filed by Rafiq Ahmed and the impugned order was set aside. On remand the respondent No. 1 heard the parties and by order, dated 26-11-1981- disposed them of. He maintained the allotment of 4.5 Acres in favour of the respondents Nos. 2 and 3 on the ground that their title documents are valid and their names have been mutated in the record of rights on 12-1-1966. The petitioner was not allowed to hold the land allotted to her. As regards Rafiq Ahmed it was held that the documents produced by him are forged and he cannot claim any right in the said survey number. After stating the facts of the case and the contentions of the parties, the respondent No. 1 first dealt with the case of Rafiq Ahmed and respondents Nos. 2 and 3 and as regarded the petitioner the following observation was made in the concludin4,paragraph. "So far the allotment of an area of 1-21 out of Serial No. 31 in favour of petitioner Mst. Mehar Bano is concerned, 1, have seen revenue record, viz. Ghat Wadh Form, field book Otares which clearly shows that the area of Serial No. 31 is 4-05 Acres and not 9-02 Acres as claimed by petitioner Mst. Mehar Barro. The allotment of petitioners Sadruddin and Muhammad All in respect of Serial No. 31 Area 4-05 Acres has already been maintained.. No further area is available in Serial No.

31. This being the position, the allotment of Mst. Mehar Bano is not maintained." It is obvious that the respondent No. 1 has not considered the claim and contention of the petitioner. He has rejected it mainly on the ground that as the allotment of the respondents Nos. 2 and 3 in respect of Survey No. 31 has been maintained no further area is available in that survey number, and therefore, the petitioner's allotment is not valid. The approach of the respondent No. 1 is completely erroneous and not according to the provisions of law. Mr. Maroof Ali Khan the learned counsel for the petitioner has contended that as the land had been allotted to the petitioner on 27-2-1962 prior to the allotment made to the respondents Nos. 2 and 3 unless the same was cancelled the same land could not have been re-allotted to the respondents Nos. 2 and

3. The matter has been considered by the Settlement Authorities at different stages and in different proceedings, but it was never held that the allotment made to the Petitioner was forged, manipulated or obtained by fraud. The respondent No. 1 has not dealt with the claim made by the petitioner in the right direction. The documents produced by the petitioner clearly establish that she was the first allottee of 1.21 Acres in Survey No.

31. Once a land has been allotted to a claimant, the same cannot be re-allotted unless the allotment has been cancelled. Mr. A.M. Khoja the learned counsel for the respondents Nos. 2 and 3 has contended that if the allotment of the petitioner is taken to be correct as she had failed to pay the Settlement fee upto 5th June, 1970 there was no valid allotment nor any right in favour of the petitioner to claim the said land had accrued and as the land was allotted to the respondents Nos. 2 and 3 and settlement fee was also paid and their names were mutated on 12-1-1966, their title has perfected and no claim can be made by the petitioner. The learned counsel has relied on rule 7 of the Displaced Persons Rules, 1959. It is well-settled that) once an allotment is made the land so allotted is not available for allotment to any other party. In these circumstances allotment of the same land made subsequently to a third party will not be a valid allotment as no land was available for allotment at that time. There is nothing on record to show that the allotment of the petitioner has been cancelled or had expired due to efflux of time or non-payment of Settlement fee till 5-6-1970. The respondent No. I who has investigated the title of the parties and examined the documents of all the parties has not doubted or challenged the validity of the allotment in favour of the petitioner. Mr. A. M. Khoja the learned counsel for respondents Nos. 2 and 3 has contended that as it has not been accepted it should be presumed that these allotments were treated to be invalid, manoeuvred and forged. The contention has no force because unless there is a clear finding t this effect such facts cannot be presumed. Mr,. Khoja wanted to draw analogy from the rejection of documents filed by Rafiq Ahmed, but it is not possible because all the documents of the petitioner were before the respondent No.l and he could have given an adverse finding, but, her claim was not rejected on this ground. Mr. Khoja the learned counsel contended that after mutation order was issued in favour of the respondents Nos. 2 and 3 the Settlement Authorities have become functus officio. The fact remains that the allotment made in favour of the respondents Nos. 2 and 3 in I respect of 1.21 Acres in Survey No. 31 was not valid. As there w no valid allotment order all other subsequent orders based on the said allotment cannot be treated as valid and legal. Mr: Maroof Ali Khan has relied on P L D 1961 Kar. 204, 1980 CLC 288 and 1973 S C M R

339. As the petitioner was the first allottee, without cancelling her allotment the same land could not be re-allotted to respondents Nos. 2 and

3. The impugned order of the respondent No. 1 to the extent of rejecting allotment of petitioner for 1 Acre 21 Ghuntas in Survey No. 31 is declared to have been passed I without lawful authority and of no legal effect. The petition is allowed. However, the parties to bear their own cost. A.A. Petition allowed.