1992 PLP 290 (CLC)

Date of hearing: 14th July, 1991. Constitution petitions bearing Nos.987/R‑77, 1516/R‑77 and 37/R‑89 arise out of the order of Additional Settlement Commissioner (Land), Gujranwala, dated 17‑1‑1977. Hence these are being disposed of by a single order.

2. A few undisputed facts essential for the disposal of these petitions are that the petitioners in W.P.Nos. 987/R‑77 and 1516/R‑77, are vendees from Mst. Fazal‑un‑Nisa, the original‑refugee‑allottee. She was a displaced person from Occupied Jammu and Kashmir. QPR No. 3785 was issued in‑her favour She obtained allotment in Revenue estate Kaulawala, Tehsil and District Gujranwala to the extent of 1,099 Produce Index Units (PIU). The agricultural land was proposed to her on 7‑9‑1960 and it was confirmed on 1‑3‑1961. Thereafter, she secured allotment in Mauza Juwanwali, Mauza Ramkay and Mauza Aulak, Tehsil and District Gujranwala. She died in 1965 and mutations of inheritance in favour of her legal heirs namely, Gulam Oadir, Abdul Khaliq, Mst. Safia Begum and Sh. Rehmatullah, were attested by the Settlement Authorities. One thing more to be noted is that by mutual exchange Mst. Safia Begum and Sh. Rehmatullah, got the land in Mauza Juwanwali, while Abdul Khaliq and Ghulam Qadir, got their land in Mauza Kaulawala. This happened vide mutation of exchange attested on 5‑9‑1967.

3. Having done so, Abdul Khaliq and Ghulam Qadir, made the sale of land in Mauza Kaulawala through different sale transactions in favour of petitioners in W.Ps. No. 987/R‑77 and 1516/R‑

77. These sale transactions by means of oral sale as well as by means of registered sale‑deeds were given effect to in the Revenue Record. The first vendee transferred the land in favour of Muhammad Habib, Muhammad Younus and Mst. Zohra in the year 1973. They will be described as subsequent vendees.

4. The dispute started when respondent No.1, initiated proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act (NO.XXVIII of 1958) (hereinafter referred to as the Act), by filing application on 31‑5‑1974, alleging therein that the allotments secured by Mst. Fazal‑un Nisa in Mauza Kaulawala, Mauza Ramkay, Mauza Aulak and Mauza Juwanwali, were in fact double allotment and obtained through practising fraud and misrepresentation on the Settlement Authorities. This application was accepted by the Addl. Settlement Commissioner vide order dated 21‑3‑1977. The learned Authority came to the conclusion that the allotment in favour of Mst. Fazal‑un‑Nisa in Mauza Kaulawala was double allotment and so it was cancelled. The allotment in favour of Mst. Fazal‑un‑Nisa in Mauza Juwanwali was maintained. Feeling aggrieved with it, the petitioners filed revision petition which was dismissed on the ground of absence of jurisdiction.

5. The learned counsel for the petitioners in W.P. Nos. 987/R‑77 and 1516/R‑77, raised the following points in support of his case: Firstly, that the learned Addl. Settlement Commissioner erred in law by cancelling the allotment of Mst. Fazal‑un‑Nisa in Mauza Kaulawala, without adverting to the facts that allotment obtained by the right‑holder in Mauza Kaulawala was earlier and was not liable to cancellation. The Addl. Settlement Commissioner ought to have cancelled the allotment in Mauza Juwanwali and not in Mauza Kaulawala. Secondly, that the order of the Additional Settlement Commissioner, was oppressive, unreasonable and totally irrational. According to the learned counsel the right‑holders had made the sale of their entitlement in Mauza Kaulawala and retained their entitlement in Mauza Juwanwala. The Additional Settlement Commissioner by the impugned order had permitted the allottee to retain his ill‑gotten allotment and caused injury to the petitioner‑vendees who were bona fide purchasers with consideration. Thirdly, that the information was lodged on 31‑5‑1974 against Mst. Fazal‑un‑Nisa, who was undisputedly not alive and was a dead person. According to the learned counsel, no information could be lodged against a person who was not alive. So, the Addl. Settlement Commissioner had no authority to pass the impugned order in view of promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975).

6. On the contrary, the learned counsel for the informer supported the impugned decision. However, during arguments he submitted that the informer/respondent No.1 was a claimant/displaced person whose claim had/has not been satisfied so far. He proposed that the impugned order to the extent of cancellation of‑allotment of Mst. Fazal‑un‑Nisa in Mauza Kaulawala be set aside; her confirmation in the said Revenue‑estate be maintained in order to safeguard the rights of petitioners/vendees; entitlement of Mst. Fazal un‑Nisa qua the allotment secured by her in Mauza Juwanwali, Mauza Ramkay, and Mauza Aulak be scrutinised. If it is found to be in excess, the land be resumed and be confirmed in favour of informer/claimant respondent No.1. This proposal was accepted by the learned counsel for the petitioner vendees as well as by the learned counsel for Settlement Department. The effectees of Mauza Ramkay and Mauza Aulak, have not come to challenge the impugned order by way of filing any Constitution petition. In result, these constitution petitions succeed partly; the impugned order is set aside to the extent of Mauza Kaulawala: the case is remitted to the Notified Officer who is directed to decide the information of respondent No.1 in the light of what has been stated above. He shall make the order of allotment in favour of respondent No.1, if any land is found in excess of entitlement of Mst. Fazal‑un Nisa in Mauza Ramkay, Mauza Aulak and Mauza Juwanwali. The Notified Officer is also directed to complete this exercise within three months of the receipt of this order. With these observations, the writ petitions are disposed of with no, order as to costs. AA./R.318/L Order accordingly