P L D 1967 Lahore 25 (PLP)

Date of hearing: 22nd June 1966. The dispute in this case is about land bearing Khasra Nos. 504, 505, 506, 507 and 508 measuring 21 Kanals and 8 Marlas, situated in Shujabad Urban Area District Multan. The case of the petitioners is that the tea of the land in question being less than three acres, the petitioners applied for the allotment of the same. On the said application the record Keeper on the 9th of January 1961, put up the following report : The Naib‑Tehsildar (Gardens) passed the following order on the said application :‑ The proceedings mentioned above are evident from Annexure H which has been filed by the petitioners and is contained at pages 73 to 75 of the paper book.

2. What has been stated above took place in the office of the Garden Allotment Committee, Lahore. On the district level, however, the petitioners were making independent efforts for the allotment of the land in question. Khasra Nos. 504, 505, 506, 50‑Mia, measuring about 30 Kanals were proposed in the name of the petitioners on the 3rd of May 1961. The case was, however, kept pending to await the report of the A. S. C. (L) Gardens. On the 6th of November 1961, the A. R. C. (L) Multan, ordered that as garden in dispute has been excluded from the list of gardens by the Garden Allotment Committee, so its case be put up. On the 7th of November 1961, therefore, the proposal made in the name of the petitioners was confirmed. These proceedings are available from Annexure "C", where the relevant order have been marked by, me in red as Nos. 1, 2 and 3.

3. As regards the rest of the area bearing Khasra No. 507‑Min and 508 measuring about 7 Kanals and 8 Marlas this was proposed to the petitioners on the 17th of February 1961. On the 3rd of May 1961, an order was made that the confirmation of this area will be finalised on receipt of the order of the Garden Allotment Committee. After the clearance from the Garden Allotment Committee, the confirmation of this area was also made in favour of the petitioners on the 7th of November 1961. These proceedings are available in Annexure "D" where the relevant orders have been marked by W in red as Nos. 1, 2 and 3.

4. On the 16th of July 1962, Abdul Ghani respondent No. 2, posing as an informer, put in an application which is contained on page 1 of the file produced before me and bearing No. A, Q, N/M, X, C/147. In this application, the said respondent complained that the aforesaid area constituted a garden of over three acres and could not have been allotted to the petitioners in lieu of their claim for urban lands left in India. The case was taken up by the S. C. (L) (W. P.), Lahore, (Respondent No. 1). who by means of his order, dated the 27th of July 1964, cancelled the allotment of the area in question from the name of the petitioners. The Addl. S. C. (L) held that the total area of the garden in dispute was 62 Kanals 8 Marlas, out of which 26 Kanals and 7 Marlas was situated in Khasra Nos. 497 to 502, which had been allotted to the District Board's School on the 1st of March 1956, by the Deputy Commissioner for being used as a playground. He further held that 21 Kanals and 8 Marlas of land had been allotted to the present petitioners. He also held that the garden could not be sliced away and the allotment which had been made to the petitioners was, therefore, irregular. In spite of holding that the garden could not be sliced away, he himself divided it and gave an area of 17 Kanals and 8 Marlas to one Qazi Mumtaz Hussain and allowed the area already allotted to the school to remain with the said institution. However, in the case of the petitioners, he took away the area in dispute from them and transferred it to respondent No. 2 as a garden claim‑holder. The petitioners have come up in writ petition against the aforesaid orders of the Addl. S. C. (L) (W. P.) Lahore.

5. The learned counsel for the petitioners has argued that the Addl. S. C. (L) had no jurisdiction to pass the impugned order. He submits that allotment of the petitioners could be cancelled under sections 10 and 11 of the Displaced Persons (Land Settlement) Act 4XLVII of 1958) (hereinafter called the Act). He submits that the powers contained in those sections belong to the C. S. C. and that respondent No. 1 was never delegated those powers. This point has been conceded by Major Ishaq Muhammad Khan, learned Settlement Commissioner (Legal) who, on my asking, appeared in this case on behalf of the Department. Even otherwise I asked the Deputy Registrar of this Court to ask from Mr. E. U, Mahmood, Addl. S. C. (Land), West Pakistan, Lahore (respondent No. 1) as to whether he possessed any delegated powers under the aforesaid sections. He has informed the Deputy Registrar that he had not been delegated any such powers. In this view of the matter, it will be clear that if respondent No. 1 purported to act under sections 10 and 11 of the Act aforesaid, then since he did not possess the necessary, powers his order will be without jurisdiction.

6. Another aspect to examine the jurisdiction of respondent No. 1 was to see as to whether he possessed any revisional jurisdiction under section 19(3) of the act. On this point as well, the order of respondent No. 1 will be without jurisdiction because assuming, without conceding, that he did possess such a jurisdiction, then that could be exercised only on an application made in that behalf within sixty days of the order which might be impugned before him. In the instant case, a report was called for from respondent No. 1 with reference to the averments made in the writ petition, but the report was all evasive. In the report it was submitted that an application was made by the informer before respondent No. 1 in 1962, on the basis of which late conducted the proceedings and passed the impugned order. Since section 19(3) of the Act laid down that Addl. S. C. (L) Khan could proceed on an application only if it was made within sixty days before him, it became necessary to see as to when the said application by respondent No. 2 was filed. The original file has been produced before me and I have seen the original application which was presented by respondent No. 2 and which is contained at page I of the said file. This application was filed on the 16th of July 1962, which means much beyond sixty days from the date of the relevant order of confirmation of allotment in favour of the petitioners which had been passed as early as the 7th of November 1961, (order marked as No. 3 in Annexures C and D). These details will show that the' Addl. S. C., in the instant case could not set aside the orders of allotment in favour of the petitioners even if the case was to be examined from the point of view of his revisional jurisdiction.

7. When confronted with this situation, Major Ishaq Muhammad Khan, S. C. (Legal), tried to justify the order of respondent No. 1 on the ground that he was Chairman of the Garden Allotment Committee, and, therefore, had the jurisdiction to examine this case and see as to what was the area of the garden in question and whether the allotment made by the Authorities at the District level was proper or not. I do not agree with this contention: 'I he Garden Allotment Committee come into the picture only if the area of the garden in question which had been allotted to the petitioners exceeded three acres. If it was upto or less than three acres then under Paragraph 6 of the West Pakistan Rehabilitation Settlement Scheme, Chapter. I Part II as read with Paragraph 4 clause (f ) of Chapter II Part I of the Scheme, the Authorities at the District level could allot it. A perusal of Annexure "H" will show that the area of the garden in question was less than three acres and that it had already been deleted from the relevant list. In this view of the matter, there was nothing wrong on the part of the District Authorities to allot the area in dispute to the petitioners. A perusal of Special Jamabandi for the year 1946‑47 (Annexure G) will show that only Khasra Nos. 506 and 507 were shown as Baghicha Chahi Nehri and the rest of the area comprising Khasra Nos. 504, 505, 497, 498, 499, 500 and 502 were shown as Chahi Nehri or with some other description but not as garden. According to Para. 29 of the Scheme, only that classification of land is to be accepted which is given in Special Jamabandi for year 1946‑

47. Annexure H shows that in the earlier stages, the whole area in question was not to be considered as a garden or garden of such a magnitude which was allot able only by the Garden Allotment Committee. It was on this. basis that the allotments to the petitioners had initially been made. If those allotments were to be set aside, then it could be done only‑ under the framework of the Displaced Persons (Land Settlement) Act (XLVII of 1958), the provisions of which have already been examined by me above. Under the said Act, respondent No. 1 had no jurisdiction to cancel the allotment of petitioners, and this jurisdiction he could not confer on himself in the form of being a Chairman or Member of the Garden Allotment Committee. The case was such which necessitated detailed enquiry and investigation into the facts and respondent No. 1 could not have re‑opened that matter without first having jurisdiction, to proceed under some provision of law relevant for the. purpose. Even assuming, without conceding, that respondent No. I was a Member or Chairman of the Garden Allotment Committee‑(though he does not purport to have acted in that capacity in the instant case because here he calls himself as Addl. S. C. (L) West Pakistan)‑even then the law does not give revisional jurisdiction to him to sit in judgment over the allotments made by the District Authorities. The said allotments could only be cancelled by having recourse to the form of appeal or revision and not in the manner in which respondent No. I has proceeded to act. Annexure "H" further shows that the garden in question had already been deleted from the list of the gardens to be dealt with by the Garden Allotment Committee and in that view of the matter, respondent No. 1 could not sit in judgment over the orders already passed or proceedings already taken and concluded. From the order, which respondent No. I has himself passed, it appears that there is a possibility of treating the different portions of the total area in question differently. As for example, it is evident that he has himself allowed the School to retain an area of this alleged garden and has again given a portion of the same to respondent No.

2. If the portion, which has been given to respondent No. 2, can be treated differently for his purpose, then definitely it can be treated differently for the purpose of the petitioners as well. If so treated, the area being less than three acres, it was validly given to the petitioners is the earlier round.

8. From what has been said above, the order of the respondent No. 1, as contained in Annexure F, is wholly without lawful authority and I hereby declare it to be so. The result is that the area, which is the subject‑matter of this writ petition, will remain allotted in the name of the petitioners. The writ petition is accepted leaving the parties to bear their own costs. K. M. A. Petition accepted.