1988 PLP 1836 (CLC)

Abdul Aziz for Respondent No.2. Date of hearing: 9th February, 1988. This case has a chequered history. The land situated in village Thabal District Gujranwala was received in allotment by one Wajid Ali. This land was transferred from one person to the other and ultimately when the same was in possession of Abdul Salam vendee, a Mukhbari application was filed by Javid Iqbal and others alleging that the allotment obtained by Wajid Ali was bogus. This Mukhbari application was allowed and the allotment was cancelled. Abdul Salam vendee challenged the order of cancellation of land by filing a constitution petition (W.P. No. 527/11 of 1979). This petition was accepted by this Court vide order dated 10‑11‑1985 and the matter was remanded for fresh decision. During the remand proceedings, an application was submitted by Javid Iqbal and others on 26‑5‑1986 asserting that they be impleaded as respondents as they had also submitted a Mukhbari application against the allotment obtained by Wajid Ali. They were impleaded as respondents but ultimately the remand proceedings were disposed of by the Notified Officer vide order dated 21‑6‑1986. It was held that Javid Iqbal had filed the Mukhbari application on 5‑4‑1978 after the prescribed date and as such no action could be taken by a Notified Officer on such a belated application. The learned Officer further observed that no evidence could be produced to show that the claim of Wajid Ali, the original allottee, was bogus or that he had obtained the allotment in excess of his entitlement. The allotment of Wajid Ali, as such, was held to be valid. The Notified Officer, however, observed that as the claim of Javid Iqbal, etc. is pending satisfaction for the last many years, they may be allotted some alternate land. Javid Iqbal and others challenged the order dated 21‑6‑1986 in constitution petition (W.P. No. 305/11 of 1986) but the same was dismissed as withdrawn.

2. Javaid Iqbal, etc. equipped with the observations made by the Notified Officer, made an application to the authorities for allotment of evacuee land situated in village Lalupur District Gujranwala. It is pertinent to note here that the land had become available in village Lalupur in view of the judgment of the Supreme Court dated 17‑3‑1982 whereby it was held that one Sardar Begum, the daughter of Jai Gopal was only entitled to retain 1/3rd of the land held by her father Jai Gopal while remaining 2/3rd was to be surrendered as evacuee land.

3. The dispute in the present petition pertains to the evacuee land so surrendered by aforesaid Sardar Begum. The petitioners lay claim over a part of this land with the assertion that they being the tenants of this very land during the crucial harvests are entitled to the grant of proprietary rights under the Scheme framed by Government under section 3 of Act 14 of 1975. It was asserted that they have submitted applications for sale of the land in their respective possession. These applications were forwarded for action on 22‑11‑1985 to the competent officer. Javid Iqbal and others submitted an application in 1986 for allotment of this very land in their favour. The assertion of the petitioners is that Javid Iqbal etc. could not be allotted land as neither any verified claim nor any pending units are available with them. It was pointed out that taking benefit of observations made in the order dated 21‑6‑1986 the allotment of land has ultimately been obtained by Ihsanul Haq, respondent No.2 under impugned order dated 17‑11‑1986. According to the learned counsel for the petitioners neither the gratutious observations made in order dated 21‑6‑1986 have any legal validity nor Ihsanul Haq respondent No.2 can rely on these observations as this respondent has no concern with the so called Mukhbars namely Javid Iqbal, etc.

4. Mr. Qasim Ali, Consolidation Officer, representative of respondent No. 1 stated that on the basis of record available with him except for Nazir Ahmad, petitioner No.l and Riaz Ali, petitioner No.15, all other petitioners are entitled to receive proprietary rights under Section 3 of the Act 14 of 1975 on the basis of the possession during the three crucial harvests in case the allotment dated 17‑11‑1986 is treated as invalid and illegal.

5. Sh. Abdul Aziz, Advocate, learned counsel for respondent No.2 submitted that respondent No.2 will have no objection if proprietary rights in the land in dispute to the extent of entitlement of petitioners are granted to them after verification of their entitlement by the competent officer. He added that allotment has been obtained by Ihsanul Haq, a heir of Fazal Haq, on the basis of verified claim of Fazal Haq, the deceased claimant and that the petitioners will have no locus standi to challenge the allotment obtained by Ihsanul Haq, once their entitlement stands satisfied.

6. From the facts noted above and the position taken by respondents, it is apparent that the order dated 17‑11‑1986 passed by Deputy Settlement Commissioner allotting the land to respondent No.2 cannot be maintained. Learned counsel for respondent No.2, in fact has no objection to the grant of proprietary rights to the petitioners on the basis of their entitlement. In view of above, order dated 17‑11‑1986 of the Deputy Settlement Commissioner allotting the land to respondent No.2 is hereby declared to be without lawful authority and hence of no legal effect. The entitlement of the petitioners for receiving proprietary rights under Section 3 of Act 14 of 1975 will be examined by the competent officer and they will be granted proprietary rights after due verification in accordance with law. This order will, however, not debar Ihsanul Haq to obtain allotment of the remaining land on the basis of valid claim, if allotment of land at this stage can otherwise be made under the law. The writ petition stands accepted. The parties are left to bear their own costs. H . B . T : /N‑120/ L Petition accepted.