1980 PLP 288 (CLC)

Nemo for Respondents Nos. 1 and

2. Munawwar Abbas for Respondent No.

3. Date of hearing : 22nd October, 1978. This Constitutional Petition under Article 199 of the Constitution is directed against the order passed by Deputy Commissioner & Settlement Commissioner. Sukkur, dated 24-11-1973 cancelling the double allotment of survey No. 54 measuring 2 arces and 28 ghuntas in Deb Pannukhalso, Taluka Ghotki.

2. The facts in brief are that respondent Zafaryab Hussain was transferred the disputed land alongwith other land against his verified claim on 24th December, 1959 and Khatoni was issued to him. There after the entitlement of the claimants was reduced and the excess land including survey No. 54 was surrendered by respondent Zafaryab Hussain in the year 1961. As provided under the scheme for disposal of surrendered land under Martial Law Regulation 89/91 which was published on 28-12-1961, respondent Zafaryab Hussain applied for repurchase of the surrendered land on instalment basis since he had the first option. After the instalments were paid in full during six years Zafaryab Hussain asked for mutation of the land in his favour. It was then detected that there had been double allotment and survey No. 54 had been transferred to petitioner Lal Khan on 31-5-6U. A petition was then filed by Zafaryab Hussain in the Court of Deputy Commissioner & Additional Settlement Commissioner (Land), Sukkur for revising the illegal order of Mukhtiarkar & Assistant Settlement Commissioner, Ghotki allot. ting this land to petitioner Lal Khan. The petition was heard and decided by the Deputy Commissioner & A. S. C. (Land), Sukkur on 24-11-1973. In this order it was stated that respondent 1,al Khan was absent. But it was not necessary to wait for him as the case was to be decided on the basis of the record. It was found that the land had been allotted to respondent Zafaryab Hussain on 29-10-1959 and thereafter to Lal Khan on 31-1- 1960. The second and subsequent allotment in favour of Lal was accordingly cancelled. .

3. It has first been argued that the Additional Settlement Commis sioner, Sukkur had no jurisdiction to hear the said revision application as after 10-10-1973 this power vested only in the Settlement Commissioner ; ,that the said revision application could not be stand transferred to the Settlement Commissioner as that provision applied only in case of appeals. Mr. Munawar Abba- appearing on behalf of the respondent has, however, explained that the power of cancellation of the allotment vested in the Chef Settlement Commissioner under section 11 of the Displaced Persons (Land Settlement) Act ; that this power was delegated by general notification to all the Deputy Commissioners. This power was to be exercised irrespective of any limitation. That the Deputy Com missioner, Sukkur, was therefore, acting within his delegated power when he cancelled the subsequent allotment of the disputed land in name of claimant Lai Khan.

4. It has then been argued that the order of the Settlement Commis sioner is against the principles of natural justice as petitioner Lai Khan had not been afforded any opportunity of being heard. Ordinarily a notice in such matter is served on the respondent. The perusal of the order would show that the absence of the respondent had been noted but the matter was not adjourned because no evidence was recorded and the case was decided on the basis of the record. Therefore, it is to be presumed that a notice had been issued to the respondent but be failed to appear. 1n case the respondent, that is, the petitioner Lai Khan disputes the' service of notice the burden would be on him. There is an affidavit of Lhl Khan that he was not served and the counter affidavit of Zafaryab Hussain that service had been affected. The record has not been called for to verify this fact. On the available record it has to be presumed that notice had been .duly served on petitioner Lai Khan. The first allotment in favour of the respondent has not been dis puted. Under these circumstances the second and subsequent allotment was of no effect and bad to be cancelled. There is thus hardly any ground for interference with the order of the Deputy Commissioner; Sukkur cancelling the allotment. The petition is accordingly dismissed. M. Y, M, Petition dismissed.