1980 PLP 2084 (CLC)

2. Initially survey No. 152 was allotted to claimant Jamil Ahmad Siddiqui under his Q. P. R. entitlement. On promulgation of M L R 99 and 91 on receipt of fresh entitlement in M. R. V. Jamil Ahmad had to surrender scorn of the allotted lands which included the survey numbers in dispute which was therefore shown in schedule of the surrender ed lands. Later Jamil Ahmad opted to purchase the same with other surrendered survey numbers, but since he failed to pay the requisite price, the survey number, according to the petitioners reverted to the Provincial Government and under the Settlement Scheme, the Govern ment could allot the same to haris. It is further the case of the petitioner that contrary to the mandatory provisions of relevant regulations, the survey number was allotted in collusion and fraudulently to respondents 2 and

3. Respondent No. 2 was allotted 4.4 acres and respondent No. 3, 1.26 acres, which represents the entire area of the disputed survey number which measures 5.30 acrses. The aforesaid fraudulent allotment came to the notice of the Additional Deputy Commissioner having powers of Additional Settlement Commissioner (Lands), who under his order dated 30th March, 1972 cancelled the allotment and transfer by his aforesaid order which was announced on 30th May, 1972. Although respondents 2 and 3 did not file any appeal or revision against the afore said order, respondents 4 anal 5 alleging to have purchased the survey number under a sale deed from the Attorney of respondents 2 anal 3 filed a belated appeal before respondent No. 1, who confirmed the cancellation of the allotment and transfer only to the extent of an area of 0.36 acre of the survey number on the basis of interpolated record.

3. The petitioner has challenged the order dated 7th May, 1974 passed by respondent No. 1, inter alia, on the following grounds (1) That the Settlement Commissioner based his finding on inter polated document without considering material particulars available on the record. (2) That Survey No. 152 (entire) being a surrendered land was not available for allotment in favour of respondents 2 and 3 in view of the Settlement Scheme under M. L. R. 89 which was announced in the year 1961. (3) That respondent No. I was not competent to hear or entertain an appeal or revision against the .order of Additional Settlement Commissioner passed under section 11 of the Displaced Persons (Land Settlement) Act, 1958, as the Additional Settlement Commis sioner had acted as delegatee of the powers of the Chief Settlement Commissioner. (4) That the proceedings before respondent No. 'I were time-barred and there was no application made under section 5 of the Limitation Act, nor was there any order condoning the delay:

4. It may here be stated that respondents 1, 2 and 3, although served with notice of these proceedings have not contested title petition and the arguments of Mr. Maroof Ali Khan, Advocate for respondents 4 and 5 were heard. The learned counsel contested the very assertion of the petitioner that he is a Mourusi Hari. It is the case of respondents 4 and 5, as stated in the counter-affidavit, that one Haji was originally the hari on the disputed land. He was succeeded by Soomar and it is further alleged that the petitioner unauthorisedly became hari later and it is seriously contended that at the time when under the policy of the Govern ment sitting Mourusi haris were given the right to acquire land under the Settlement Scheme of 1961, the petitioner was not a hari. This contention, however, cannot be accepted merely on the ground that the extract from the Register Girdawari produced by the petitioner shows him to be the hari of the survey number from 1969 to 1974. The petitioner has brought on record the letter of Assistant Mukhtiarkar & A. R. O. of Kakar in respect of Kharif crop of the year 1959-60 addressed to the petitioner as hart of Survey No. 152 deh Khateri, in which incidentally the area of the survey number is also shown as 5.30 acres. The letter was a notice to the petitioner that claimant Jamil Ahmad had been given the survey number under Settlement Scheme and the petitioner was directed not to interfere in the Zarnindari share of the same. The document also supports the version of the petitioner that he was the hari when Survey No. 152 aforesaid was surrendered by Jamil Ahmad.

5. The point in dispute with regard to ground No. 1 is whether claimant Jamil Ahmad was allottee of 5.30 acres, the entire area of survey No. 152 which he had surrendered, or whether he had surrendered only 0.36 acres. Mr. Ismail Munshi, the learned counsel for the petitioner, has drawn my attention to the Khatoni entitled Parchi Taqsecm with regard to the land allotted to claimant Jamil Ahmad Siddiqui, in which Survey No. 152 in deh Khateri is shown to have an area of 5.30 acres. .He has also referred to Schedule 'A' of the statement showing land surrendered by Jamil Ahmad, which too mentions Survey No. 152 in deh Khateri as having area of 5.30 acres. Reference has also been made to the notice to petitioner already referred to, in which the area of Survey. No. 152 allotted to Jamil Ahmad was shown to be 5.30 acres. In the Rubkari dated 27th July 1973, the Mukhtiarkar Khairpur Nathan Shah mentions that Survey No. 152 in deh Khateri had been surrendered by claimant Jamil Ahmad and has referred to allotment order No. 1307 dated 14th December, 1961, in which, as already pointed out, the area of the survey number was shown to be 5.30 acres. It is therefore contended by the learned counsel for the petitioner that in Schedule of the surrendered land the area of survey No. 152 was changed by interpolation by converting the figure `5' into '0' and the figure `6' into figure `36' ghuntas to `0'. The record pertaining to the surrender of land by Jamil Ahmed was not sought to be produced in these proceedings and it has been contended by the learned counsel for respondents 4 and 5 that the matter concerns finding of facts in the impugned order and therefore cannot be taken up at this stage in the writ proceedings. However, it is apparent from the record of these proceedings that Survey No. 152 in deh Khateri, which was originally allotted to Jamal Ahmad, had the area of 5.30 acres for the reasons already given and it would appear to be the case of misreading of the record due to interpolation or otherwise which can well be looked into in these proceedings. The learned counsel for the petitioner has also pointed out that even the orders allotting land to respondents 2 and 3, namely Abdul Wadood and Abdul Aziz show that in the Khatoni of Abdul Aziz, respondent No. 3, an area of 1.26 acre was allotted in the proposal dated l9th February, 1969 and confirmed on 26th February, 1969 and similarly in the Khatoni in favour of Abdul Wadood, respondent No. 2, tote area allotted as 4.4 acres. If the areas allotted to Abdul Aziz and Abdul Wadood are added up, the figure obtained is 5.30 acres which is the area of the entire Survey No.

152. There can be no doubt about the fact that in the initial allotment of Survey No. 152 to Jamil Ahmed, the area was shown to be 5.30 acres and therefore if Jamil Ahmed had in fact surren dered only 0:36 acre; the allotment in favour of claimants Abdul Aziz and Abdul Wadood could not have been 5.30 acres.

6. The Scheme for disposal of lands surrendered by Displaced Persons under paxa. 8 of the M.L.K. 89 as amended by M. L. R. 91 of 1961 was published to the Gazette of West Pakistan Extraordinary on 28th December, 1961. "Para. 8 is with regard to special concession to the claimants surrendering land. It would appear that Jamil Ahmed had applied fur repurchase of the surrendered land including the Survey No. 152 but since he slid not pay the price, the surrendered land had to be offered first to the sitting tenant on the same terms. Para. 5 of the Scheme reads as under :-- "

5. If a person who has surrendered land does not exercise the option to purchase the land within the prescribed period then the land shall be offered first to the sitting tenant on the same terms as mentioned in paras. 4 and 6 of the Scheme." Para. 4 referred to provides for first option being given for purchase of the land to the person who had surrendered the land which, as already stated, was done in the instant ease. Para. 6 provides that in case of person who has surrendered his land and in the case of a sitting tenant, the sale price of the land shall be Rs. 30 (Rupees Twenty only) per Produce Index Unit.. The instructions in the Scheme have the same force as a legal provision and, therefore, any order made contrary to the said instructions is to be considered as illegal, and null and void. 7, With regard to grounds 3 and 4, the learned counsel for the peti tioner placed reliance on the decision of the Supreme Court reported in Jalal Dins v. Muhammad Rafiq (PLD1965 SC261) and oleo the later decision of the Supreme Court in Zulfiqar Ali Khan v. Muhammad Mubrark Khan (1970SCMR38) wherein it had been held that there was nothing in the Land Settlement Act to show that there can be an appeal or revision even from orders passed by the Settlement authorities as delegatee of the Chief Settlement Commissioner. The learned counsel for respondents 4 and 5 has, however, referred to Evacuee Property and Displaced Persons Laws (Amendment) Ordinance, 1972, in which inter alia section 30 of the Displaced Persons (Land Settlement) Act, 1958 was amended by addition of new subsection which reads as under : "(3) Any order passed by, a Settlement Commissioner or an Addi tional, Deputy or Assistant Settlement Commissioner in exercise of any powers delegated to him under subsection (2) shall be and shall be deemed always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the case may be is so subject." The aforementioned amendment was effective after the Supreme Court decisions referred to above had been given. It cannot, therefore, be contended that the orders a delegatee cannot be challenged in appeal or revision. However, the order of the Additional Settlement Commissioner dated 30th May, 1972, under which subsequent allotment of the land in question in favour of respondents 2 and 3 was cancelled, was not challenged by respondents 2 and 3 themselves and the appeal filed by respondents 4 and 5 against the order would appear to have been treated as revision in view of Evacuee property and Displaced persons Laws (Amendment) Act, 1973, which amended the Displaced persons (Land Settlement) Act, 1958 by omitting section 18 which was with regard to filing of appeal and by providing in the substituted section 19 that a Settlement Commissioner may, either on an application made by a person aggrieved by an order passed by an Assistant Settlement Commissioner or a Deputy Settlement Commissioner or art Additional Settlement Commissioner within 15 days from the date of such order or of his own motion at any time, call for record of any case or proceedings and further that all appeals pending before a Deputy Settlement Commissioner or an Additional Settlement Commissioner shall be transferred to and be dis posed of by the Settlement Commissioner as revision petition under these sections. The appeal filed against the order dated 30th May, 1972 could therefore, be treated as a revision but as provided by subsection (5) of the substituted section 19 in computing the period of 15 days referred to, the provisions of sections 5 and 12 of the Limitation Act were applicable. It would, however, appear from the impugned order that no such applica tion was made for condoning the delay and since the impugned order was passed on the appeal presented by respondents 4 and 5, it is quite clear that respondent No. I had not acted suo motu in passing the order. The appeal treated as revision was therefore time-barred.

8. It may be stated here that Mr. Maroof Ali Khan, the learned counsel for respondents 4 and 5, had raised the contention that the petitioner cannot be considered as an aggrieved person and, therefore, the petition filed by him under Article 199 of the Constitution, is incompetent. The contention was based on the following allegations : (i) That at the time when the Settlement Scheme of 1961 was enforced the petitioner was not a Mourusi hari. (ii) That the petitioner had never made an application for purchase of the disputed land ; and (iii) That he was not a party to the proceedings, in which the impugned order was passed.

9. With regard to the first contention it has already been dealt with in earlier part of the judgment. With regard to the second contention, the petitioner in para. 16 of his memorandum had taken the stand that he had submitted the relevant application for allotment/settlement of the land in question on the basis of rights of Harap, which application had been entertained and was still pending. As already stated. this petition is not being contested by respondents 1, 2 and

3. The application which, according to the petitioner, he bad made could only be to the knowledge of the Deputy Commissioner and Settlement Commissioner (Land) Dedu respondent No. 1. who not having controverted the assertion, it is con sidered to be established and respondents 4 and 5, who could not possibly have any knowledge about such a matter, are not proper parties to controvert the assertion. The copy of the impugned order shows that petitioner was a party to the proceedings.

10. In view of the circumstances stated, the impugned order, dated 7th May, 1974 passed by respondent No. J was an order without jurisdic tion and of do legal effect and is hereby quashed. The order of Additional Deputy Commissioner/Additional Settlement Commissioner dated 30th March, 1972 having acquired finality is declared to be subsisting and binding. The Settlement Authorities are hereby directed to consider the application of the petitioner for transfer by sale of survey No. 152 deh Khateri, taluka Khairpur Nathan Shah, District Dadu on the basis of his rights as Mourusi in possession entitled to the transfer of surrendered land under the Scheme. Further action in the matter could be taken in spite of the repeal of Evacuee Property and Displaced Persons Laws under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 The writ petition is accordingly allowed, but in the circumstances; there will be no order as to costs. K. M. A. Petition allowed.