1994 PLP 170 (CLC)

M.D. Tahir for Petitioners. Z. Khalil for Respondents. Dates of hearing: 24th, 26th August and 10th September, 1991. Through this Constitutional petition, the petitioners have assailed the order dated 14‑1‑1979 passed by the Additional Settlement Commissioner (L)/Deputy Commissioner, Sialkot canceling land measuring 17 Kanals and 10 Marlas out of the petitioners' temporary allotment.

2. Brief facts of the case are that the petitioners are J & K refugees and were allotted 96 Kanals 8 Marlas of land in village Khalilpur Tehsil and District Sialkot alongwith Fateh Ali and Ahmad Ali, their predecessors‑in interest who have since died. Fateh Ali was the grandfather of petitioners Nos.l and 3 to 6 and father‑in‑law of Mst. Fazlan, petitioner No.2 and maternal grandfather. of Muhammad Sharif, petitioner No.6. Ahmad Ali deceased was father of petitioners Nos.l and 3 to 5, husband of Mst. Fazlan, petitioner No.2 and maternal uncle of Muhammad Sharif, petitioner No.6. Due to erosion caused by the river an area measuring 41 Kanals, 3 Marlas was cancelled from the names of the allottees and in lieu thereof 21 Kanals 9 Marlas of land was allotted to them in village Khaflpur and 16 Kanals in the neighbouring village Chak Bhaghwan, Tehsil and District Sialkot.

3. Out of the remaining land i.e. 55 Kls., 5 Mls. allotted to the petitioners, land measuring 23 Kanals was allotted to Barkat Ali and others by the learned Additional Settlement Commissioner (L), Sialkot. The petitioners filed an appeal in the Court of learned Settlement Commissioner (L), Lahore Division, Lahore who was pleased to accept the same and remand the case to the learned Additional Settlement Commissioner (L), vide his order dated 28‑9‑1970. After remand, the learned Additional Settlement Commissioner, allowed the appeal and cancelled the allotment made in favour of Barkat Art etc. Resultantly, the land measuring 23 Kanals was again restored in the name of the petitioners. The said order was not challenged by any party before any other Court.

4. The learned Additional Settlement Commissioner suo moto passed an order (on the report of the lower staff) canceling the land measuring 17 Kanals, 10 Marlas out of the petitioners' allotment. The said order has been assailed in the present petition.

5. I have heard the learned counsel for the parties at some length. Admittedly, the order dated 19‑4‑1972 passed by the learned Settlement Commissioner was not challenged by Barkat Ali etc. and it attained finality. The effect of the said order was that 23 Kanals of land which was allotted to Barkat Ali etc. out of the petitioners' land was restored to the petitioners. As regards the area measuring 4 Kanals, 3 Marlas cancelled from the name of Fateh Ali due to erosion caused by the river, the land measuring 21 Kanals 9 Marlas was allotted in lieu thereof in village Khalilpur bringing the petitioners' entitlement in the said village to 76 Kanals, 14 Marlas. After the repeal of the Settlement Laws with effect from 1‑7‑1974, it was not open to the learned Additional Settlement Commissioner (L), Sialkot to re‑open the matter and cancel the land (measuring 17 Kanals, 10 Marlas) from the petitioners' name. Even as Collector of the‑District respondent No.l was not competent to reduce the petitioners' entitlement. He was bound to give effect to the order passed by the learned Settlement Commissioner; regarding the petitioners' entitlement of land. .

6. In this view of the matter, I accept this petition and declare the impugned order dated 14‑1‑1979 to be without lawful authority and of no legal effect. The parties are left to bear their own costs. H.B.T./M‑1195/L Petition accepted.