2003 PLP 501 (SCMR)

MUHAMMAD NAWAZ ABBASI J.‑‑‑This appeal tinder Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, with the leave of the Court is preferred against a consolidated judgment dated 26‑11‑1991 (25‑9‑1993) passed in Writ Petition bearing No.310‑R of 1974 and 1689‑R of 1974 by a learned Single Judge in Chambers of Lahore High Court, Lahore which were preferred by the present appellants and respondents respectively against the order, dated 31‑1‑1974 passed by Settlement Commissioner (Land), Multan Division, Multan. The summary of relevant facts giving rise to this appeal are that Khan Muhammad predecessor‑in‑interest of appellants (petitioner in Writ Petition No.310‑R of 1974) a displaced person, submitted his claim form bearing No. 1085 for allotment of land in lieu of the land left by him in India in Chak No.653/14, Tehsil Jaranwala, District Layallpur (now Faisalabad) Muhammad Khan, who holding temporary allotment in village Fatehpur, Tehsil Mailsi, District Multan but died before the finalization of claim, and his successor‑in‑interest the present appellants, filed an application for transfer of claim of Muhammad Khan to Village Fatehpur and Central Record Office after necessary verification of the claim, sent it to Village Fatehpur for adjustment. In consequence thereto the Chairman Allotment Committee. Mailsi, vide order dated 10‑4‑1974 allotted an area of land measuring 137 Kanals and 4 Marlas to the appellants which was ultimately confirmed in their name vide order dated 17‑5‑1973. Muhammad Shaft and Mehr Din, respondents Nos.2 and 3 herein, having claimed preferential right of allotment of land in Village Fatehpur challenged the allotment of land to favour of appellants in said village through Settlement Revision No. 125/S of 1973‑74 before the Settlement Commissioner (Land). Multan Division. Multan which was allowed vide order dated 31‑1‑1974. The case of Mehr Din (respondent No.3) before Settlement Commissioner (Land) was that claim of Heera son of Fatta his predecessor‑in‑interest was pending since 1953 which was to be adjusted in village Fatehpur. The Settlement Commissioner in the light of claims of Mehr Din and Muhammad Shafi disposed of the Revision Petition in the following manner: ‑‑ "

11. Mst. Noor Begum has preferential right against Muhammad Shan but Mst. Hanifan has no preferential right against Shafi, therefore, Shafi could be accommodated from the share of the allotment it) favour of Mst. Hanifan if other superior claimants in these revisions have satisfied their claim from the area cancelled from the name of Mst. Hanifan.

12. The result of the above discussion is that the allotment to the extent of share of Mst. Hanifan in RL‑II Khata No. 1085 shall be cancelled to accommodate Mehr Din and Muhammad Shafi petitioners to the entire satisfaction of their pending units. However, it has been pointed out that the allotments of Muhammad Shafi at RL‑II Khata No. 14 were cancelled on his own statement which are Khasras Nos.167/2, 8/2, 9, 11, 12 which are not be allotted to Muhammad Shaft. He will be given other area from the share of Mst. Hanifan Begum which exists after the satisfaction of Mehr Din's entitlement. The above revision petitions are decided accordingly. The appellants being aggrieved of the above order passed by Settlement Commissioner (Land) Multan filed a Constitutional petition bearing No.310/R of 1974 in the Lahore High Court, Lahore and on dismissal of the said petition by a learned Single Judge in Chambers, they have approached this Court through this appeal in which leave was' granted vide order, dated 21‑2‑1995 as under:‑‑ "In seeking leave to appeal, the learned counsel for the petitioners contended that both the petitioners fell within the definition of temporary allottee as given in Rehabilitation and Settlement Scheme and as such they had preferential right to get their claims settled in Village Fatehpur as compared to respondents Mehr Din and Muhammad Shafi. It is also contended by the learned counsel that in any case Muhammad Shafi could not claim a preference over the entitlement of Mst. Hanifan as Muhammad Shafi was only an informer whose units were transferred to Fatehpur on 30‑9‑1963 in connection with Mukhbari application which was subsequently dismissed and as a result of dismissal of that Mukhbari application, the units were sent back on 4‑7‑1969 and as such there could not be any pending claim of Muhammad Shafi in Village Fatehpur at the time the land was confirmed in favour of the petitioners in 1973. The contention raised by the learned counsel for the petitioners requires examination and we, accordingly, grant leave to appeal to consider the same. " The case of the appellants is that they being the sitting allottee in Village Fatehpur, through Khan Muhammad, their predecessor‑in‑interest, had preferential right of allotment but the Settlement Commissioner, Multan Division, Multan cancelled the allotment of Mst. Hanifan Bibi appellant No.2 on the ground that she would not be treated as sitting allottee through Khan Muhammad whereas the status of Mst. Noor Begum‑ as sitting allottee was admitted with the observation that she would have inferior right to that of respondent No.3 in the matter of allotment of land in the said village and consequently directed that respondents Nos.2 and 3 be accommodated out of the land allotted to the appellants. The learned counsel contended that the preferential right of the appellants with their status as sitting allottee in Village Fatehpur was illegally denied by the Settlement Commissioner and further the learned Judge. in Chambers in High Court without ‑examination of the record and appreciating the legal position affirmed the order of Settlement Commissioner. The perusal of orders of Settlement Commissioner would show that allotment in favour of Mst, Hanifan Bibi was cancelled on the ground that she being niece of temporary allottee (Khan Muhammad) would not fall in the definition of relatives and further being a married woman, would lose the right ‑of allotment of land if any under para. 7(5) of West Pakistan Rehabilitation and Settlement Scheme (Part II). In case of Mst. Nur Begum, it was held that she had the inferior right to that of Mehr Din, who was to be given preference to the extent of allotment of 149 units. The learned Judge in the High Court disposed of the writ petition filed by the appellants against the order of Settlement Commissioner vide impugned judgment with the following observation: "Facts as taken up by the petitioner in Writ Petition 1689‑R of 1974 are that the predecessor‑in‑interest of Khushi Muhammad petitioner submitted his Claim Form No.921 for his land abandoned in Village Hanjrawan Khurd, Tehsil Fatehabad, District Hisar, in India for Village Fatehpur, Tehsil Mailsi. After its verification he was allotted land on 28‑9‑1955 in the estate of said Village Fatehpur. The petitioner's predecessor‑in‑interest filed Uzerdari and the Central Record Office made some increase in the verified area and obtained its allotment on 3‑9‑1961. Thereafter, the total allotment of the petitioner was calculated and after deduction of his allotted units the balance was shown as 306 units at his Khata. Subsequently on 18‑5‑1973, predecessor‑in‑interest of respondent No.3 Ali Sher got allotted land in the estate of Village Fatehpur. Being aggrieved of the above allotment the petitioner filed a revision petition before the Settlement Commissioner (Lands), Multan Division, Multan which was dismissed by a consolidated order on 31‑1‑1974. Then a review petition against this order was filed which met with the same fate on 21‑5‑1974. Hence the petitioners filed Constitution petition against the same impugned order. " The learned counsel for the appellants has contended that Mehr Din and Muhammad Shafi were no more temporary allottees in Village Fatehpur; at the time when the order was passed by the Rehabilitation and Settlement Commissioner (Land), Multan. He submitted that Mukhbari units allotted in the name of Muhammad Shaft in the village had already been cancelled and the Settlement Commissioner through misreading of the record held him entitled for allotment of land out of the temporary allotment of Mst. Hanifan Bibi. The perusal of RL‑II placed on record would show that land proposed in the name of Muhammad Shafi as Mukhbari unit was subsequently cancelled and he was not a temporary allotee in Village Fatehpur on the date of disposal of revision petition by the Settlement Commissioner. The perusal of RL‑II relating to the claim of Mehr Din would show that his claim in full had already been satisfied and nothing was left to be adjusted in, Village Fatehpur in preference to Mst. Nur Begum. The Settlement Commissioner (Land) while traveling on the presumption that the claim of Mehr Din was still pending without proper determination of his right‑of allotment in village Fatehpur held that he had preferential right. The factual position on the record appears to be different to that of the‑order of Settlement Commissioner vis‑a‑vis the status of appellants as sitting allottees in Village Fatehpur and their preferential right was not determined in the light of existing record. The learned counsel representing the respondents in the present appeal, have not been able to convince us in the light of existing record that Muhammad Shaft and Mehr Din were still entitled for allotment of land in Village Fatehpur and we having gone through the RL.s‑It placed on record with the help of learned counsel for the parties, find that the order passed by Settlement Commissioner (Land), Multan was not sustainable. Mst. Hanifan Bibi was denied the right of allotment by the Settlement Commissioner on the strength of para. 7(5) of the Rehabilitation Settlement Scheme and this order was further upheld by the High Court. In case of Mst. Nur Begum, it was held by the learned Judge in Chambers in the High Court that transfer of claim of Muhammad Khan in Village Fatehpur was in violation of para. 13‑A of the Rehabilitation and Settlement Scheme, therefore, he would have no right for allotment of land in the said village. Para. 7(5) of the Settlement Scheme provided as under:‑‑ "

7. Allotment and non‑allotees.‑‑‑(5) For the purposes of allotment of land under the Rehabilitation Settlement Scheme widows, unmarried daughters and minors should also be considered as allottees in the village in which their relatives hold allotments. The term 'relatives' implies, brothers, sisters, uncles, first cousins and guardians in the case of minors. [Reference farmer Punjab Government No.831 R(L), dated 15th February, 19531. " It is noticeable that in the term 'relatives' uncles are also included and it is understandable that both paternal and maternal uncles would be included and further notwithstanding the marital status of a person, if such a person would fall in the term 'relative' shall be entitled to the allotment under the above para. Para. 13‑A of the .Settlement Scheme is read as under: ‑‑ "13‑A. Powers of Deputy Rehabilitation Commissioner for transfer of claim forms. ‑‑‑The Deputy Rehabilitation Commissioner, where necessary, may transfer claim forms which have not been settled under the Rehabilitation Settlement Scheme, either within the District or to any other District in the Province in consultation with the Deputy Rehabilitation Commissioner of that District, provided transfer of claim to that District has not been banned. He will, however, strictly observe the policy outlined in the former Punjab Government Circular Memorandum No.963‑54/995‑R(L), dated 27th January, 1954 and other instructions issued by the Rehabilitation Commissioner West Pakistan, from time to time." The examination of record would not show that the claim of the appellants was not transferred by Deputy Rehabilitation Commissioner in terms of the above para. and further the learned counsel representing the respondents has also not been able to bring on record any document to suggest that the transfer of units in the names of the appellants in Village Fatehpur was either made by an incompetent officer or the same was against the record. It appears that the learned Judge in the High Court formed the opinion regarding the transfer of claim of appellants for adjustment in Village Fatehpur by an incompetent officer for the reason that the order of Competent Authority was not expressly mentioned in the record produced before the Court. We may observe that no such objection was raised by the parties at any stage and the Settlement and Rehabilitation Commissioner who was in possession of the relevant record also did not raise such objection rather treated the transfer in accordance with law. In absence of anything contrary, the presumption of truth would be attached with the official record and the transfer of the claim of appellants would be deemed to be made by the Competent Authority. We, therefore, for the foregoing reasons, hold as under: ‑‑ (a) Muhammad Shafi and Mehr Din having no right of allotment in Village Fatehpur could not defeat the entitlement of appellants in Village Fatehpur, and ' (b) Under Para.7(5) of the Rehabilitation and Settlement Scheme, Mst. Hanifan Bibi would be deemed to be sitting allottee through Khan h Muhammad in Village Fatehpur and despite being married, would be entitled for allotment of land. For the foregoing reasons, we set aside the impugned judgment dated 25‑9‑1993 passed by the High Court in Writ Petition No.310‑R of 1974 and also the order, dated 31‑1‑1974 passed by the Settlement Commissioner (Land), Multan, and restore the allotment in the names of appellants. This appeal is allowed with no order as to costs. Appeal allowed.