2002 PLP 1331 (CLC)

SHABBIR AHMAD, J.‑‑‑ Petitioner Sujawal Khan, as sitting tenant, has sought through this petition the following reliefs:‑‑ "(a) That respondents Nos.2 to 5 have no right title or interest in the land bearing Survey Nos.445/ 1, 447/ 1, 457/ 1, 458/ 1, 2 and 3 468, 469/1, 2 and 3, 470 and 471 situated in Deh Bhit Shah, District Hala and that the subsequent allotment of the said land in favour of the respondent No.2 and sale‑deed in favour of respondents Nos.3 and 5 are illegal and have no legal force. (b) That respondent No.1 in his capacity as Deputy Commissioner, Hyderabad be directed to issue purchase order of the said land in favour of the petitioner and that the petitioner as a sitting Hari has to continue in peaceful possession of the land in question in Deh Bhit Shah, District Hala. (c) Cost of the petition." The matter has some chequred history, this is second round of litigation under the Constitutional jurisdiction with two rounds before the forum in the hierarchy under the Displaced Persons (Land Settlement) Act. One Mst. Sughra Bibi was allotted Survey‑ Nos.445/ 1, 447/ 1, 457/ 1, 458/ 1, 2 and 3, 468, 469/ 1, 2, 3, 470 and 471, totalling 63.24 acres in Deh Bhitshah Taluka Hala alongwith other land in satisfaction of her QPR‑V No.2362/39410, dated 21‑7‑1960. Khatoni No.44, dated 25‑8‑1960 was also issued. The possession of the allotted land was handed over to her under a Mashirnama of Possession issued on 8‑9‑1960. After her death, on 31‑1-1964 her son Abdul Aziz continued to be in possession of the said land. After promulgation of M.L.R. 84 Sughra Bibi filed Form M.R.I. and her claim was verified under M.L.R. 89 and 91 and M.R.V. Certificate No.94/003723, dated 26‑9‑1961 for 362 units was issued in her favour. In view of M.L.R. 89 she retained an area of 9.2 acres comprising of Survey Nos.470, 471, 468/1 and 2.35 acres from Survey No.468/2. The rest of the land was surrendered by her and on 26‑2‑1962, she exercised her option to purchase the surrendered land. This option was exercised in respect of Survey No.468/3, 4, 469/1 to 3, 457/1 to 4, 458/2, 3, 4 : 447; 495/1 and one acre five Ghuntas from Survey No.468/2 total measuring 53.22 acres. By an order, dated 26‑11‑1965 the Deputy Commissioner and Additional Settlement Commissioner (Land), Hyderabad accorded sanction for purchase of land details whereof with conditions mentioned in the said order. Abdul Aziz son of Sughra Bibi claimed to have paid price in instalments as required by the order. It so happened that after the surrender by Sughra Bibi, on 1‑3‑1963 out of surrendered land Survey Nos.445/1, 447, 448/2 to 4, 457/1, 469/1 to 3, 471, 470 and 468/1 to 3 of Deh Bhit Shah Hala were allotted to respondent No.2 in satisfaction of his claim. Mst. Sughra Bibi filed an application for cancellation of allotment to Siddiq Bhai, i.e. respondent No.2, on the ground that after surrender she has purchased it and, therefore, not available for transfer to Siddique Bhai, respondent No.2. It may be mentioned that a certificate on 1st September, 1965 was issued in favour of Siddiq Bhai in respect of aforesaid survey numbers and after issuance of certificate Siddiq Bhai sold away this land to respondents Nos.3 to

5. The Assistant: Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Land), Hyderabad, by his order, dated 23‑4‑1966 allowed the application and the certificate, dated 1‑9‑1965 issued .in favour of Siddiq Bhai in respect of the disputed survey numbers was cancelled. Respondent No.2 Siddiq Bhai tiled appeal before, the Deputy Settlement and Rehabilitation Commissioner, who vide order, dated 24‑4‑1967 allowed the same on the ground that the order passed by the Assistant Rehabilitation Commissioner was without jurisdiction as power to deal with such matter has been delegated to the Deputy Settlement Commissioner and not to the Assistant Settlement Commissioner. Abdul Aziz son of Mst. Sughra Bibi filed Constitutional Petition No.443 of 1967, challenging the said order. Before admitting the petition, comments were called from Additional Settlement Commissioner. In the comments issuance of M.R.V. on 26‑9‑1961 in favour of Mst. Sughra gibi was admitted which pre‑supposes the filing of MRI by Mst. Sughra Bibi, the Recall of Forms QPR‑V and U.R.‑V of Mst. Sughra Bibi by the Central Record Office, Lahore, and return of the same under Rubkari No.356, dated 29‑1‑1966 treating the QPR‑V. and M.R.V. of Mst. Sughra Bibi as genuine was also admitted. Allotment of lands to Mst. Sughra Bibi was not disputed. The petition was allowed on 17‑3‑1975 and the case was remanded to Deputy Settlement Commissioner/Additional Settlement Commissioner Land, Hyderabad for deciding afresh on merits, the application filed by the petitioner for cancelling the duplicate allotment of the land in question, according to law after proper appreciation of facts involved and paras. 7 to 9 of M.R.‑89. and the Schemes framed thereunder, if found relevant. Accordingly the Deputy Commissioner, Hyderabad heard the matter and by impugned order, dated 24‑12‑1976 rejected the application. Aggrieved by this order Aziz Qureshi son of Mst. Sughra Bibi filed Petition No.28 of 1977, whereas Sujjawal the present petitioner, claiming Hari of Mst. Sughra Bibi of the said land filed this petition challenging the order on the ground that under M.L.R.89/91 if the surrendered land has not been purchased by exercising the option by the person who has surrendered it namely Mst. Sughra Bib/Abdul Aziz then the first option after that should be given to the sitting Hari and therefore, he is entitled to the transfer of land and not respondent No.2, Siddiq Bhai. It may be mentioned that Petition No.596 of 1985 (28177 filed by Abdul Aziz) was dismissed on 23‑1‑1997 and restoration application was also dismissed order, dated 23‑3‑1999. The documents in original and/or certified copies filed in Constitution Petition No.596 of 1985, were considered at the time of hearing of this petition by consent of the counsel of the parties, and he relevant documents have been referred me. Mr. Jhamat Jethanand, learned counsel for the petitioner contended that the land was not available for transfer to respondent No.2 (Siddiq Bhai) as Mst. Sughra Bibi had exercised her option and the same has been allotted to her and contentions raised has direct reference of M.L.R. 89/91. According to the provisions of M.L.R. 89 after the declaration was made and verified, entitlement certificate was to be issued according to scale fixed under para.5. Paragraph 7 provides that all certificates in Forms QPR‑V and UR‑V and certificates showing title to land issued under original regulation and any allotment made on the basis of such certificate shall stand cancelled. Therefore, fresh order for the allotment of land was to be made on the basis of entitlement. Paragraph 8 provides that the land in excess of entitlement shall be surrendered and para. 9 specifically provided that the surrendered land shall not revert to the Compensation. Pool constituted under section 5 of the Displaced Person (Land Settlement) Act. Pare. 4 of the section framed under M.L.R. 89 as amended by M.L.R. 91 provides that the first option for the purchase of excess land shall be given to the person, who has surrendered the land and his option was to be exercised by making an application to the Deputy Commissioner. It further provided that if the option is exercised within the specific period, the land shall be sold to him at the prescribed price. Para.5 provides that if such option is not exercised by the persons who surrendered the land then the land shall be given to the sitting tenant on the same terms as it would have been offered to a person who has surrendered it. Since the petition filed by Abdul Aziz son of Mst. Sughra Bibi has been dismissed for non‑prosecution, now, the question which requires determination in the present petition is whether the petition of Sujawal, who claims to be sitting tenant through Mst. Sughra Bibi, is entitled for the land in terms of Martial Law Regulation 89/91. Mr. Kamaluddin, learned counsel for the respondents Nos.3 to 5 with vehemence, contended that under paras.5 and 7 of M.L.R. 84 after verification or re‑verification of the claims fresh allotment order was to be issued and on such allotment earlier allotment stood cancelled and contended that the allotment of Mst. Sughra Bibi was cancelled, as such, the allotment of land was available for allotment and it was rightly allotted in favour of Siddiq Bhai. He further contended that under para.2 of Memorandum, dated 26th September, 1964, surrendered land was to revert back to Compensation Pool, as such the allotment of land in favour of Siddiq Bhai was proper and he supported the impugned order. It may be mentioned that M.L.R. 84, whereunder a scheme for verification and re‑verification of the claims was prepared. It was modified by Martial Law Regulations 89 and

91. He also contended that under para. 7 thereof all certificates in Forms QPR‑V and UR-V and certificate showing title to the land issued under the original regulation and any allotment of land made on the basis of such certificate stand cancelled and shall be deemed to have been never issued or made and fresh order for the allotment of land was to be made. While interpreting this para. his contention was that the allotment in favour of Mst. Sughra Bibi was cancelled, therefore, the land was available for allotment and it was rightly allotted to Siddiq Bhai. I am not impressed by such contention. According to the provisions of M.L.R. 89, after the declaration was made and verified, entitlement certificate was to be issued according to the scale fixed under para.5. Paragraph 7 provides that allotment made on the basis of such certificate shall stand cancelled. Therefore, fresh order for the allotment of the land were to be made on the basis of entitlement certificate. Paragraph 8 provides that land in excess of entitlement shall be surrendered and para. 9 specifically provided that surrendered land shall not revert to the Compensation Pool, therefore, once land is allotted against the entitlement of a claimant, and after verification of entitlement any excess land would not be reverted to the Compensation Pool but it was to be disposed of in accordance with the scheme framed under Martial Law 89/91. Under para.2 of the Memorandum No.5044‑63/6342‑R(2), dated 26‑9‑1962, the land allotted to claimants, who had failed to file M.R.I., such land would continue to remain in the Compensation Pool. It is nobody case that Mst. Sughra Bibi failed to file M.R.I. Therefore, the contention that land was available for allotment is not tenable. Under the scheme the first option to purchase excess land was given to the person who surrendered land in the manner specified therein viz. the option to purchase to be conveyed in writing to Deputy Commissioner of the District concerned. If such person exercised the option to, purchase the land, the land was to be sold at the rate prescribed in the scheme. If person who has surrendered land does not exercise the option to purchase the land within the prescribed period then land was to be offered first to the sitting tenant on the same terms as mentioned in paras. 4 and 6 of the scheme. The land could be allotted, if the same was available for allotment, or the claimants, has to file M.R.‑1 in respect of the land allotted against his entitlement. In the present case, admittedly M.R.‑1 was submitted by Mst. Sughra Bibi, her entitlement was reflected in M.R.‑V, whereby she retained an area of 9.2 acres and surrendered 53.22 acres, neither this land could be reverted to the Compensation Pool nor subjected to allotment against any claim/entitlement. Mr. Kamaluddin further contended that only sitting tenants, entitled for the exercise of option for purchase, must be, tenant in possession of the land at the time of its surrender by the refugee claimant. His contention is based on Memorandum No.3060‑62/3357 S(G)VI, dated 25th September, 1962, which defines sitting "tenant", it reads as follows:‑‑ "Meaning of Sitting `tenant', No.3060‑62/3357‑S(G)VI Government of West Pakistan, Colonies Department, Lahore, dated the 25th September, 1962 Memorandum A question has been asked what exactly meant by 'sitting tenants' in the scheme cited above. It is clarified that the term 'sitting tenant' wherever occurring in the scheme means the tenant who was in cultivating possession of said land at the time of its surrender by the refugee claimant.

2. This disposes of the Deputy Commissioner, Nawabshah s telegram, dated the 10th August, 1962, addressed to the Secretary to the Government of West Pakistan, Land Reforms and Rehabilitation Department. (Sd.) Deputy Secretary, Government of West Pakistan." He argued that petitioner Sujawal should be sitting tenant at the tithe of surrender. He pointed out that petitioner Sujawal has produced Khasra Girdawari pertaining to the years 1967 to 1975, as such he cannot be treated as sitting tenant, for the purpose of option to purchase the surrendered land. To meet this objection, Mr. Jhamat Jethanand, learned counsel for the petitioner contended that in para. l of the petition, the petitioner claimed himself as sitting tenant of the disputed land since 1960 and claimed the lessee of the land from respondent No.6 since 1964. He contended that Sujawal was tenant when the land was I surrendered. This fact has not been controverted by the respondents as no counter‑affidavit or comments was filed denying the said facts. Mr. Jhamat Jethanand also referred the judgment recorded by Civil Judge, Hala, dated 23‑5‑1969 in Suit No.26 of 1967 filed by Mubarak, claiming himself as lessee from respondent Yar Muhammad through respondent Abdul Qadir. His suit was dismissed, the petitioner was found to be in possession of the suit land. The assertions made in the petition has not been disputed, therefore, it cannot be argued that petitioner Sujawal is not entitled as he was not sitting tenant when Mst. Sughra Bibi surrendered the land. Respondent No.1 in his impugned order has observed that there is nothing on record to show that after receipt of the revised M.R.‑V, Mst. Sughra Bibi exercised the option or any other proceedings were initiated and finalized. A copy of the application which was moved and also order passed by the Deputy Commissioner and Additional Settlement Land on 16‑11‑1966 have been placed on record. This makes reference to the application filed by Mst. Sughra Bibi on 26‑2‑1962, exercised her option for purchase of the land. In para. 13 of the earlier petition filed by Abdul Aziz Qureshi it was stated that an anonymous application was made to Central Record, Lahore alleging that the claim of Mst. Sughra Bibi was bogus and it should be cancelled as forged record has been obtained from the Central Record Office. In response, Additional Settlement Commissioner replied as under:‑‑ "It is correct that Central Record Office had recalled the QPR and M.R.V Certificates of Mst. Sughra Bibi and under Rubkari No.356, dated 19‑1‑ 66 the same were returned as genuine." It is, therefore, clear that so far as entitlement of Mst. Sughra Bibi is concerned, it has been investigated and found to be genuine even by Central Record Office. One of the basis of the rejecting the entitlement by the learned Additional Commissioner was that it was not genuine. In view of facts which have been stated above from his own record, it is clear that the entitlement has been fully established and there was no basis to make such observation. In my view the observation is based on cursory examination of facts without proper application of mind and ignoring material on record. The next objection of the learned Additional Settlement Commissioner is that the land was allotted to Mst. Sughra Bibi without possession, therefore, it was not valid allotment at all. Except a bare statement of the respondent No.2 there does not seem to be any proper investigation in the matter. On the other hand, a copy of the order passed in 145, Cr.P.C. proceedings that the disputed land in these proceedings which culminated in order, dated 4‑11‑1966 the learned IInd Extra‑Joint Civil Judge and Section 30, Magistrate, Hyderabad held that prima facie evidence on record shows that Mst. Sughra Bibi was in possession of the disputed land and Sujawal claims to be sitting tenant through her, therefore, it can be concluded that Sughra Bibi was in possession of the land. In view of these facts it is patently clear that after Mst. Sughra Bibi exercised her option the said land could not be transferred to respondent No.2. The additional factor, which has weighed in the mind of Additional Settlement Commissioner that the land has been allotted to respondent No.2 in satisfaction of his claim is also tenable. After the promulgation of M.L.R. 89/91, such allotment or transfer was not permissible because after surrender the land did not revert to the Compensation Pool and if option is not exercised, it vested in the Provincial Government, who were to dispose it of according to provision of the scheme specifically framed for this purpose. Since the issue of repurchase after surrender of the land stands closed by dismissal of Constitutional Petition No.96 of 1985, on 27‑1‑1991, right of petitioner Sujawal emanates from the ashes of entitlement of Mst. Sughra Bibi/Muhammad Aziz her son. Petitioner as sitting tenant is entitled to exercise of the option because his right accrues on the termination of right of Evacuee claimant on 27‑1‑1997, when the petition tiled by Sujawal was already pending for disposal. I, therefore, accept the petition as prayed and declare that the impugned order-dated 24‑12‑1976 has been passed by respondent No.1 without lawful authority, and is of no legal effect. S.A.K./S‑174/K Petition accepted.