1990 PLP 1250 (CLC)

15. This petition has been filed by successors of Qadir who are petitioners No.l to 4 and Fazla who is petitioner No.5. Both Qadir and Fazla were petitioners in Writ Petition No.605‑R/58. They were confirmed some land in 1951. However, under order of Mr. I.U. Khan, almost the whole of this land was confirmed to the contesting respondnets. Proposals to the respondents were made even before the issuance of stay order in favour of the petitioners in Writ Petition 605‑R/58. None of the contesting respondents, however, were made party to that writ petiton. The order of allotment in favour of the respondents was not even otherwise challenged. Allotments made to the respondents in the year, 1958 cannot be set aside at this stage. This petition is, therefore, dismissed with no order at to costs.

16. Before parting with this case, I may, however, observe that if the petitioners are otherwise entitled to get allotment under orders of Mr.I.U. Khan and some area is available in the estate, steps may be taken to allot them some land out of the available area. WRIT PETITION No.1232‑Rte:

17. This petition has been filed by successors of Hayat Muhammad. Only one of the petitioners Mst. Saban was a party to Writ Petition 605‑R/58. No benefit of the order of this Court dated 29‑1‑1960 can, therefore, accrue to the remaining petitioners. Petitioners were made certain allotments in the year 1951. After the order of Mr. I.U. Khan, some portion of the area out of 1951 allotment was confirmed to the contesting respondents who were not party to Writ Petition 605‑R/58. For the reasons as have been noticed in the preceding writ petition, this petition has no merit and is dismissed. There will be no order as to costs. WRIT PETITION No.1074‑8,/77:

18. Petitioners in this case claim to be temporary allottees of Chak No.180/E.B. Their case is that they had filed their claim forms for this Chak. They were not party to Writ Petition No.605‑R/58. In their case undoubtedly, therefore, the order of Mr. I.U. Khan dated 23‑11‑1956 is to be implemented. They were made certain allotments in the year, 1952 at Khatas Nos.147, 148, 149 and 150 of the Register R.L.II. While implementing the order of Mr. I.U. Khan, they had been denied any allotment for the main reason that they had filed their claim forms elsewhere and got them transferred to this Chak after 30‑12‑1952. This finding of the Deputy Settlement Commissioner has been questioned in this Constitutional petition.

19. It was argued that the petitioners had originally filed their claim forms for Chak No.180/E.B. and the question of their transfer to this Chak after 30‑12 1952 does not arise. I sent for Mr. 2ahir Khan Naib‑Tahsildar, Central Record Office with the original record. He has shown me the original record from which it has been established that the claim forms filed by the petitioners were for Chak No.180/E.B. and they were verified for the same Chak. The fact is also established from the original receipts, copies of which have been filed as Annex. E/1‑

4. The contention is further supported by copies of the Fard Haqiat, photo copies of which have been filed as Annexs F/1 to F/4. These documents bear the stamp showing that the claim forms were verified for Chak No.180/E.B. Petitioners have also filed copies of Fard Taqseem (Annexes. A to D) to show that they are the sitting'allottees of Chak No.180/E.B. In the circumstances, the finding of the Deputy Settlement Commissioner in impugned order dated 18‑7 1977 (Annexs J/1 to J/4) that the petitioners got their claim forms transferred after 30‑12‑1952 cannot be sustained. The orders are, therefore declared to have been passed without lawful authority and of no legal effect. I direct that the petitioners be made allotments against their verified claims keeping in view the other principles indicated in the order of Mr. LU. Khan. This petition, therefore, succeeds. There will be no order as to costs. WRIT PETITIONS Nos.1143‑R,/77 and 1268‑R,/77:

20. Petitioners in this case are heirs of Rahma son of Noora. They were a party in Writ Petition 605‑R/58. No land had been confirmed to them in the, first round of litigation in the year, 1951. Land allegedly held by them under the temporary allotment was proposed to respondent No.2 on 25‑9‑1958 and finally confirmed on 21‑11‑1958. Petitioners did not challenge this order by way of appeal or revision in any higher forum till today. When the Deputy Settlement Commissioner presently took up the matter to give effect to the order of Mr. I.U. Khan dated 23‑11‑1956 at the Khata of Jhanda respondent, he passed the following order:‑

21. Making this order as point of start, petitioners claim that their temporary allotment be restored to them. Order dated 18‑8‑1977 is in no way a fresh order of allotment. The petitioners not having challenged the order of confirmation dated 21‑11‑1958, cannot be allowed to assail the same now in the year 1978. When confronted with this, learned counsel for the petitioners contended that Mst. Azizan petitioner No.7 moved an application dated 29‑4‑1977 praying for some allotment to be made to her against her pending claim. The Deputy Settlement Commissioner ordered that the same be put up before him during his tour to this estate. The matter has not been disposed of by respondent No.1. Respondent No.1 can look into this aspect of the case. If without disturbing the allotment of respondent No.2, petitioners can be accommodated in some available area giving due regards to the instructions of Mr. I.U. Khan's order dated. 23‑11‑1956, he should make them allotment against their pending claims, if any. In this regard, I may also notice the contentions of the contesting respondents. It was argued that the petitioners had no units pending in this estate. The units of Mst. Azizan or of her mother were pending in Chak No.170/W.B. They were transferred to this Chak after the due date. The Deputy Settlement Commissioner while disposing of the petitioners' application in the light of the observations made above will give due regards to these objections. Needless to say, the allotment to the petitioners can be made only if their case falls within the principles laid down by Mr. I.U. Khan in his order dated 23‑11‑1950.

22. With these observations, the petitions otherwise have no merit and are, therefore, dismissed accordingly. There will be no order as to costs. WRIT PETITION No.1149‑R/77:

23. This petition has been filed by Mst. Dani widow of Hayat Muhammad and Fazla son of Alain. Mst. Dani was petitioner No.14 and Fazla Petitioner No.5 in Writ Petition No.605‑R/58. They are, therefore, entitled to the benefit of this Court's, if the circumstances so warrant, order dated 29‑1‑1960.

24. The contesting respondents have raised certain preliminary objections. It is argued that Fazla petitioner having died during the pendency of the writ petition, the writ petition cannot proceed in the absence of his legal heirs. Similarly, respondent Badra died in the year, 1951. Writ petition has been t instituted against a dead man and, therefore, liable to dismissal on this short ground.

25. Learned counsel for the petitioners took up the position that application for bringing on record the legal heirs of the deceased parties had already been moved. No such application could be traced on the file. However, after I had concluded the hearing, C.M. No.6264/78 was put up before me. I rejected this application in so far as it concerned the bringing on record the heirs of respondent No.2. However, this was allowed in so far as it related to the heirs of petitioner Fazla who were ordered to be brought on record. The preliminary objection, therefore, partly succeeds. The writ petition stands dimissed qua the heirs of respondent No.2.

26. Petitioners were allotted some land in the year, 1951. After the order of Mr. I.U. Khan dated 23‑11‑1956, some area was proposed to respondents No.2 and 3 on 25‑9‑1958 and confirmed on 21‑11‑1958. Similarly, some area was allotted to one Mst. Rahmoon who had in the meantime died. Her heirs were not impleaded as party in this writ petition. However, after the arguments had been concluded, an application was moved for impleading them as respondents. I disallowed this application by my order dated 6‑6‑1978.

26. For the reasons recorded in Writ Petition No. 1127‑R/77, this petition has no merit and is, therefore, dismissed. There will be no order as to costs. WRIT PETITION NO. 1234‑R/77:

27. This petition has been filed by two sets of persons‑‑‑petitioners No.1 to 6 as successors of Jang and 7 to 9 as successors of Gamoo. Ilahi Bakhshi father of petitioners Nos. 1 to 6 was petitioner in Writ Petition No. 605‑R/58. However, out of the second set of persons, only Shah Muhammad petitioner No.7 was a party in that writ petition.

28. In the year, 1951 both Ilahi Bakhsh and Gamoo predecessors of the petitioners were made allotment in this Chak. After the order of Mr. I.U. Khan in 1958, fresh allotments were made to them. They were deprived of a portion of their allotment, comprising of Killa numbers 11/1, 12/1, 13/1, 8 and 10 of Square No. 45 and Killa No. 23 of Square No.

17. This proposal was made on 25‑9‑1958 and confirmed on 21‑11‑1958. Land inter alia Villa No. 1 to 3 and 4/1 of Square No. 45 however, remained in their allotment. Writ Petition 605‑R/58 was accepted by this Court on 29‑1‑1960. Petitioners 1 to 6 and at least one of the heirs of Gamoo were party to this writ petition. Their allotment, therefore, could not be cancelled in implementation of the order of Mr. I.U. Khan dated 23‑11 1956 which would enure, as noticed above for their benefit.

29. For the reasons recorded in Writ Petition No. 1127‑R/77, the area taken away from the petitioners in 1958 and confirmed to the contesting respondents on 21‑11‑1958 cannot be restored to the petitioners. However, the area of 1951 allotment which had not been confirmed to some other persons before 29‑1‑1960 though might not have been included in the 1958 allotment, cannot now be taken away from the petitioners. Petitioners are, therefore, entitled to the restoration of Killas Nos.1, 2, 3 and 4/1 of Square No.45. This writ petition, therefore, succeeds to this extent. The case is remanded to the Deputy Settlement Commissioner to give effect to this order and if he finds that this area was in the 1951 allotment of the petitioners and was not allotted to any other claimant before 29‑1‑1960, the same will be restored to the petitioners.

30. This petition stands disposed of in the above terms. There will be no order as to costs. WRIT PETITION NO. 1364‑R/77:

31. This petition has been filed by heirs of Khushiya and Bakshoo who died in India. Ali Muhammad's father was the real brother of Bakhshoo and Banna who was father of Khushiya. Mst. Azmat Bibi was a party to Writ Petition No. 605‑R/58. Certain allotments were made to the petitioners in the year 1951. After the order of Mr. I.U. Khan dated 23‑11‑1956, some portions out of this allotment were confirmed to the contesting respondents ‑‑‑Killa No. 22 of Square No.33 at Khata No. 297 of the Register RL‑11 to respondent No.2, Killa No. 15 of Square No. 21 at Khata No. 52 of the Register RL‑11 to respondents No. 3 to 5.

32. For the reasons recorded in Writ Petition No. 1127‑R/77, this land cannot be restored to the petitioners and the writ petition to that extent stands dismissed.

33. Some area was also allotted to the petitioners at Khata No. 65, as is clear from the order dated 12‑9‑1977. This allotment had not been interfered with. It was then contended that some land out of 1951 allotment is still with them and has not been allotted to any other claimant. If this be so, petitioners can be given benefit of the order of this Court dated 29‑1‑1960 and the order of Mr. I.U. Khan cannot be implemented in their case. This petition otherwise has no merit and is dismissed accordingly. There will be not order as to costs. WRIT PETITION No. 1362‑R/77:

34. This petition has been filed by successors of Nathu and Ali Muhammad. None of the two was a party to writ petition 605‑R/58. Respondents Suba, Dulla, and Burhan, I am informed, are dead persons. Learned counsel for the petitioners when confronted with this, stated that he has filed an application for bringing their legal heirs on record. No such application could be traced on the file. The petition, therefore, stands dismissed on the short ground that the legal heirs of the respondent are not before me.

35. Petitioners on merits conceded that in their case the order of Mr. I.U Khan has been implemented in the year, 1958. The petitioners' grievance, however, is that their entire claim has not been verified and, therefore, some area should have been reserved for them under para 20 of the scheme. No such prayer was made in the year, 1958. No proof has been given to me that they ever filed a petition for the re‑verification of their claim. This petition is wholly misconceived. I am rather constrained to observe that a mala fide attempt has been made to retain possession of the land which has gone to other claimants in the meantime. The petition therefore, has no merit and is dismissed with costs. WRIT PETITION NO. 1329‑R/77:

36. This petition has been filed by Boota one of the heirs of Gahna the original claimant. On the death of Gahna, mutation of inheritance had been sanctioned inter alia in favour of the petitioner and two daughters, i.e. Rahmat Bibi and Alam Bibi. The two daughters have not joined as petitioners in this writ petition. The petitioners were not a party in Writ Petition No. 605‑R/58. It appears that Gahna their predecessor was confirmed some land at Khata No.105/182 on 30‑12‑1951. After the order of Mr. I.U. Khan, respondents had been confirmed land at Khata No. 78 of the Register RL‑11 on 25‑9‑1958. This comprised Killas Nos. 12 and 13 of Square No.

244. On the view I have already taken, this allotment cannot be questioned at this stage. This writ petition qua the contesting respondents, therefore, fails. When confronted with this, learned counsel attempted to argue that while implementing the order of Mr. I.U. Khan the D.S.C. by the impugned order dated 12‑8‑1977 has cancelled the petitioner's allotment at Khata No. 105/182 of the Register RL.II. No reasons have been given. However, I find that the order dated 12‑8‑1977 has not been expressly challenged. Notwithstanding this, I allowed the petitioner to question the validity of the order dated 12‑8‑1977 and he has reiterated that the same is bad as it lacks reasons. I find some merit in this contention. Some allotment was made to the petitioner at Khata No. 105/182 in the year 1951. The order dated 12‑8‑1977 proceeds: Mr. I.U. Khan though generally cancelled all allotments, directed the authorities to make fresh allotments keeping in view the principles indicated by him. The Deputy Settlement Commissioner was required to give reasons as to why the petitioner's case was not covered by the principle laid down by Mr. I.U. Khan. I therefore, while dismissing this petition against respondents Nos.2 and 3, quash the order dated 12‑8‑1977 and remand the case to the D.S.C. for passing fresh order based on reasons. The writ petition partly succeeds. There will be no order as to costs. WRIT PETITION NO. 1528‑R/77:

37. This petition has been filed by heirs of Ibrahim, He was not a petitioner in Writ Petition No. 605‑R/58. Some land was confirmed to him at Khata No. 177 of the Register RL‑II in the year, 1951. This Khata has been cancelled by the order of the Deputy Settlement Commissioner dated 12‑9‑1977. The order reads thus:

38. Allotments to the contesting respondents were made in the year 1958. For reasons recorded in Writ Petition No. 1329‑R/77, petitioners cannot be permitted to assail these allotments at this stage. However, for the same reasoning as in Writ Petition No. 1329‑R/77, the order of the Deputy Settlement Commissioner dated 12‑9‑1977 at Khata No. 177 of the Register RL‑II is declared to be without lawful authority and the case is remanded to him for decision afresh in the light of the observations made in Writ Petition No. 1329‑R/77. The petition qua respondents No.2 to 17, however, stands dismissed. The writ petition stands disposed of in the above terms. There will be no order as to costs. WRIT PETITION NO. 1236‑RZ77:

39. Petitioners are claimants and were confirmed some land in this estate in 1951. After the order of Mr. I.U. Khan dated 23‑11‑1956, this land was confirmed in favour of the contesting respondents in 1958. Petitioners, did not challenge the order of confirmation .in favour of the contesting respondents. For the view I have already taken, they cannot be permitted to question these allotments now in the year 1978. The Deputy Settlement Commissioner in his impugned order has only d reaffirmed the orders of 1958. These orders, therefore, cannot be made as starting point for moving this constitutional petition. The writ petition qua the contesting respondents, therefore, stands dismissed. I, however, remand the case to the Deputy Settlement Commissioner for reasons noticed in para 16 of this judgment to reconsider the petitioners' case to find out if they can be given the benefit of order of Mr. I.U. Khan dated 23‑11‑1956. The writ petition stands disposed of in the above terms. There will be no order as to costs. WRIT PETITION NO. 1150‑R/77:

40. Petitioners in this case are the successors of Sham Din. He was not a party in Writ Petition No. 605‑R/58. Petitioners or for that matter their predecessor was confirmed land on 30‑12‑1951. After the order of Mr. I.U. Khan in 1958 a portion of the land out of his 1951 allotment was confirmed in favour of respondent No. 2 at khata No. 155 of the Register RL‑II. The order has been reaffirmed by the Deputy Settlement Comissioner on 18‑8‑1977. Petitioners' grievance is that he should have been allowed to retain the entire land confirmed to him in the year, 1951.

41. For reasons recorded above, petitioners cannot be permitted to question the allotment made to the respondents in the year 1958. This petition, therefore, has no merit and is dismissed. There will be no order as to costs. WRIT PETITION NO. 1233‑R/77:

42. Facts arising in this petition briefly stated are that the petitioner was confirmed land in 1952. After the order of Mr. I.U. Khan, fresh allotment was made in the year 1958. Petitioner was confirmed land at Khata No. 92 of the Register RL‑II and was deprived of some portion of 1952 allotment. It is contended that this land has now been allotted in favour of the contesting respondents at khata No. 101 of the Register RL‑11 dated 18‑8‑1977. Copy of RL I of the cont.;sting respondents (Annex D) does not bear the order dated 18‑8 1977 but correct copy has been filed by the contesting respondents as Annexure R/3. The order dated 18‑8‑1977 has been assailed in this constitutional petition.

43. In the case of petitioner; order of Mr. I.U. Khan has already been implemented in the year, 1958. His allotment was brought in line with the principle laid down in that order. He has, therefore, no locus standi to question the allotment of the surplus land in favour of the contesting respondents. He has not challenged the order dated 21‑11‑1958 (Annex. C) by which he was deprived of 1952 allotment. The petitioner cannot be permitted to question the allotment made in favour of the contesting respondents at this stage.

44. This petition has no merit and is, therefore dismissed accordingly. There will be no order as to costs. WRIT PETITION NO. 1344‑8177:

45. This Petition has been filed by Muhammad Aslam who claims to be the sole successor of one Khairoo son of Nathal. Khairoo allegedly was a temporary all three of this Chak. On 30‑12‑1951, he was confirmed land against his verified claim at khata No. 96 of the Register RLIL He was petitioner in Writ Petition No. 605‑R/58.

46. Petitioner's case is that Khairoo's 1951 allotment was intact till the order of this Court dated 29‑1‑1960 in Writ Petition No. 605‑R/58. If this be so, his allotment could not be cancelled in implementation of the order of Mr. LU. Khan, Khairoo or for that matter his successors being a petitioner in Writ Petition No. 605‑R/58. He is to get benefit of the order of this Court dated 29‑1 1960. I have seen the impugned order of the Deputy Settlement Commissioner. It proceeds:‑ On the view formed by me in similar matters, order dated 12‑9‑1977 is declared to be without lawful authority and of no legal effect. Case is remanded to him for a decision afresh in the light of the above observations. Writ Petition succeeds. There will be no order as to costs. WRIT PETITION NO. 1576‑R/1977:

47. This petition has been filed by different sets of persons with different grievances. Petitioners Nos. 1 to 5 are the successors of one Ghulam Mohammad; petitioners 6 to 9 successors of Fatto son of Jamoo; petitioners 10 to 15 successors of Muhammada son of Ibrahim and petitioner No. 16 is one Rehmatullah.

48. Ghularn Muhammad predecessor of petitioners l to 5 was not given any allotment prior to 1950. After the order of Mr. LU. Khan in 1958, he was confirmed land at Khata No. 6 of the Register RL‑11 against 296 P.I Units on 21 11‑1958. Petitioners' case is that their predecessor in terms of the order of Mr. I.U. Khan was entitled to get more allotment and as his entitlement had been worked out at 351 P.I. Units, he should now be accommodated and given allotment against his pending units. I am not impressed by this argument. Khairu was allotted land in 1958. If he was not satisfied with this allotment as not having been made in accordance with scale or instructions indicated in the order of Mr. I.U. Khan, he should have raised this point in 1958. I called upon the learned counsel to show if this point was ever raised but he was not able to show any thing in this regard. Evacuee laws, moreover, have been repealed and it is doubtful if allotment can now be made against any pending claim. Petitioners 1 to 5, therefore, have not been able to make out a case for an interference by this Court. Their petition, therefore, fails and is dismissed accordingly.

49. Second set of petitioners, i.e. 6 to 9 have been confirmed land on 18‑7 1977 at khata No.309 of the Register RL‑11 against 298 P.I. Units. Order recites that allotment has been made in accordance with the prescribed scale. Their case is that their initial entitlement was 668 P.I. Units and adding increase allowed later, it comes to 920 units. Point, if allotment has been made in accordance with the prescribed limit or not, is one of fact. It should have been raised before the authority making the allotment. I am afraid, petitioners cannot be permitted to raise this point for the first time in this Court. Their petition fails and is dismissed accordingly.

50. The third set of petitioners, as noticed above, are the successors of Muhammada son of Ibrahim. He was confirmed land at khata No.10 of the Register R.L.II in 1958. This allotment was for 190 P.I. Units as against total entitlement of 966 Units. Their case is identical with that of the first set of petitioners and for the reasons noticed in their case, petition of this set of petitioners too, has no merit and is dismissed accordingly.

51. In the case of Rehmatullah petitioner, it is contended that area, though proposed at khata No 120 of the Register R.L.II (Annex `F) has not been finally confirmed. He was allotted land in 1951‑52 and he is even qualified to obtain allotment under the order of Mr. I.U. Khan. I have seen khata No. 120 of Register R.L.II. This does not appear to be a correct copy. Proposal of land for 254 P.I. Units has been made at this khata. Learned counsel could not point out if the area proposed at this khata has been included in the allotment of any of the respondents. If final confirmation, in fact, remains to be accorded, he even now can bring this aspect to the notice of the Deputy Settlement Commissioner who, I am sure, in implementation of the order of Mr. I.U. Khan will accord final confirmation to the proposal already made. Petition of Rehmatullah, too, otherwise has no merit and is dismissed accordingly.

52. The result is that the writ petition fails on the whole and stands dismissed with no order as to costs.

53. Before parting with the case, I may notice that an attempt was made to point out some irregularities, though refuted in each case, in the allotments made to the contesting respondents. However, since the petitioners, on the view I have taken in their case, cannot be granted any relief, they cannot be permitted to criticise their alloments and, therefore, I have refrained from examining this aspect more deeply. A.A./N‑348/L Order accordingly.