1985 PLP 329 (MLD)

These two petitions were heard together intermittently. The impugned order was passed on 14-7-1981 by Deputy Commissioner Sangarh authorised officer appointed under section 2 of Act 14 of 1975. By this order the allotment of petitioner Kabir Ali made in 1970 was set aside on the ground that the allotment in his favour in 1970 could not have been made because the previous allotment of the same survey numbers made in 1959 in favour of Manju and others had not been cancelled. By the same order the allotments made in 1959 in favour of 'the petitioner's Manju and others over and above 4 Acres in the other connected petition was cancelled on the ground that there was only one claim bearing No. 12754 of the deceased claimant Ruldoo and as such Manju, Sobah and Mst. Phoori could riot claim separate allotments and they could only; jointly have 4 Acres of land and the remainder 8 Acres will have to be surrendered by them. The main point urged by Mr. Sibghatullah Hamid in Constitutional Petition No. 116 of 1981 was that the respondent No. 1 failed to take into consideration the documents alleged to be executed by the respondent No. 2 on i4-7-1970 in favour of Kabir Ali (Annexure A-2) of this petition. Certified copy of which has been filed by the petitioner which was a document available on record with the Settlement Authorities. The said statement shows prime facie that Manju had surrendered 8 Acres of land from the allotment of himself, his brother and his sisters, in favour of Kabir Ali. Mr. Abdul Naseer Khan has challenged that this document was never executed by Manju and that it is a forgery. He also stated that this document was not available in the Settlement record. However, the certified true copy of that document has been produced before me with the petition and the same has been certified by the Settlement Authorities to be true copy on 27-10-1980 and, therefore, it appears that this was available with the Settlement Authorities. This was an important document tit be considered by the Settlement Authorities as the surrender of 8 Acres, if true, would make the same available for allotment and since they have not considered it, therefore, the order, dated 14--7-19818 suffer from infirmity as the respondent No. 1 has failed to exercise the jurisdiction which was vested in him by failing to take this important document into consideration. Accordingly the case of Kabir Ali in petition No. 116/8l pee, to be remanded back to the authorised officer for fresh decision after taking into consideration the alleged statement of Manju in respect of the, surrender of 8 Acres of land. Manju and others, would be at liberty to challenge this document before the authorised officer and thus both parties will be provided opportunity by the authorised officer to prove their case in respect of this document. Since Mr. Abdul Naseer Khan Advocate for Manju and others had also submitted that the claim of Kabir Ali had been finally exhausted and sine I am not in a position to scrutinize that position therefore, I make it clear that Manju and others will be allowed to raise this question of Kabir Ali's allotment having been exhausted before the allotment of the disputed land in his favour in 1970. Consequently Petition No. 116/81 is allowed and the case of petitioner Kabir Ali is remanded back in the terms suggested above. In, respect of Petition No. 16 of 1983 as Manju and others the submission made by Mr. Abdul Naseer Khan for the petitioner was that the matter had already received final consideration at the: hands of file Settlement Commissioner in the order (Annexure 'F'), dated 31-8-1964 in the case Manju v. Qasim Ali where the Settlement Commissioner had observed that the enquiries made from D.S.C. Land Sargodha showed that three claims were filed by Manju and others and, therefore, petitioner Manju could file separate claim form and as such each of them was entitled to the concession of minimum allotment of 4 Acres. Mr. Abdul Naseer Khan had submitted that on 28-11-1:'58 the Rehabilitation Commissioner, West Pakistan had decided that where the right holder had died after registering his claim and the heirs have not submitted separate claims then the latter should not be treated separately but where right holder died before registering his claim arid his heirs had registered separate claim then they might be entitled to the concession of minimum allotment. The impugned order has taken into consideration the Robkari from Central Record Office, Lahore, dated 26-5-1981 as well as the intimation from Settlement Commissioner Sargodha, dated 27-5-1981 arid the authorised office has thereafter come to the conclusion, in the impugned order that there was a great contradiction in the two reports of the Contra] Record Office Lahore and D.S.C. Sargodha which render the case of Manju and others quite obscure and uncertain. The Settlement Commissioner relying upon the order of the Central record office cancelled the allotments of 8 Acres from Manju arid others. It appears that even on 14-5-1976 an order has been passed by Additional Deputy Commissioner Sanghar whereby allotments of Kabir Ali was cancelled acid the allotment of Manju and others was also cancelled in respect of 8 Acres, The disputed land is in Survey No. 772/1 in Dell Shahdadpur District Sanghar. Against that decision Kabir Ali alone had filed petition in the High Court in 1978 and Manju and others did not file tiny petition. However, that petition was allowed by consent " parties and both the parties were afforded opportunity to present their case when the petition of Kabir Ali was allowed on 10-11-1980 The impugned order was made on 14-7-1981 and this time again Kabir Ali alone came before the High Court as an aggrieved party initially. However, Manju also filed a petition on 19-1-1983, the explanation for late filing of this petition is that Manju was trying to secure the documents which were the basis of his title. This explanation does not seem to be convincing as the basis of the entitlement is contained in the Settlement manual and a slight effort, on the part of the petitioner through a counsel, could make the entitlement available to Manju in 1981. It therefore, appears that there was hardly any justification for the delay in filing Constitution Petition No. 16/1983 except the fact that since Kabir Ali had filed a Petition Manju might have been under the same impression that in case the petition of Kabir Ali was allowed his cube might also be considered by the High Court oil its own and he may be afforded the same relief like it had happened in the previous petition of Kabir Ali decoded in 1980. However, the whole matter in respect of the allotment of Survey No. 772/1 was subjudice before the High Court and Manju was opposing till petition of Kabir Ali since 1981. Since the case of petitioner Kabir Ali is being remanded back it would be meet and proper that the case of Manju petitioner in Petition No. 16 of 1983 be also referred batik to the same authorised officer as I am of the view that the main question which should have been considered in the matter of Manju was whether Ruldoo had died before the heirs of Ruldoo had submitted their claims or not, but the same has not been done in the impugned order. In fact the respondent No. 1 has merely proceeded to choose record of one Settlement Authority as against the record of another Settlement Authority. Of course the Settlement Authorities had the choice with them of choosing one particular document but cogent reason should have been given as to why the other document _ was being left out of consideration. No such reason has been assigned and the choice, therefore, appears to be arbitrary. Mr. Sibghatullah Hamid had submitted that petitioner Manju hau not come to the Court with clean hands and that Manju had annexure only the photostat copies of the documents of Kabir Ali which had been n filed by petitioner Kabir Ali in Petition No. 116 of 1981 and Manju had merely taken copies of those documents. I do not find any uncleanliness in this matter and, therefore, this objection is over ruled. Consequently both petitions are allowed and the matter is remanded back to the authorised officer under section 2 of Ordinance 14 of 1975 for fresh decision in the light. of the observations made in this judgment and after affording reasonable, opportunities to the parties to make out their case before the authorised officer. H. B. T. Petitions allowed.