1994 PLP 801 (MLD)

This order shall dispose of Writ Petitions Nos.137 of 1984 and 9933 of 1991. The dispute in this case pertains to the allotment of land made to the petitioner being an oustee of the Mangla Dam and thus to accommodate the oustees, a pool was formed in which the available State land was transferred to the Authorities of Azad Jammu and Kashmir. The petitioner was allotted this reserved land in the District of Sargodha; and he after the allotment of the said land deposited the money and the sale in tier favour was also approved. Thereafter, one Muhammad Sher respondent objected to the allotment I by stating that he was in temporary cultivating possession of this land and the said land could not be allotted to the petitioner. The parties then litigated with each other. The respondent No.2 moved an application to the Collector, Sargodha, calling in question the allotment of the petitioner on the ground that respondent No.2 was the temporary allottee of the land which fell within the prohibited radius of five miles of the Municipal limits of Sargodha. Consequently, the allotment of the petitioner was cancelled by the Collector vide order, dated 23rd of November, 1991. The aforesaid order was assailed by way of filing as appeal before the Additional Commissioner (Revenue) Sargodha and the case was remanded. On remand, the Collector, Sargodha vide his order, dated 15th of December, 1981 reaffirmed the findings and once again cancelled the allotment of the petitioner. Against the said order an appeal was taken before the Additional Commissioner, Revenue, Sargodha, which was accepted vide order, dated 24-5-1983 and the order of the Collector, dated 15-12-1982 was set aside. Aggrieved by the said order, respondent No.2 Muhammad Sher filed a revision petition and vide order impugned, the revision petition was dismissed and not only Muhammad Sher was declared non-suited but it was held that even the petitioner was not eligible for the allotment, inasmuch as the land fell within the prohibitory zone that is within the radius of five miles of the limits of the Municipal Committee, Sargodha. Muhammad Sher and the petitioner then assailed the aforesaid order by filing aforementioned writ petitions, and the same shall be disposed of through this judgment. I have heard the parties at length and vide order, dated 2nd of October, 1991, this Court directed the petitioner to hand over their original allotment papers to the Advocate-General for its verification. Mian Najam-uz -Zaman, Assistant Advocate-General states that according to the *record maintained by the Government of Punjab, this allotment order was not issued. This fact has been controverted and it is contended by Mr. Mushtaq Ali Tahir Kheli that initially the land was allotted in 1977 and said document was also handed over. According to the learned Assistant Advocate-General, the allotment had to be made on the basis of a chit to be produced before the Authorities in the Board of Revenue and in this case, the chit was first sent by the Authorities in the year 1981 and then in 1987. The crucial question falling for determination in this case is whether this allotment was available and was in the pool and had been reserved for the oustees of Mangla Dam or not. 'The answer to this question is in the affirmative. The record clearly shows that this land was reserved in favour of oustees of Mangla Dam. The learned Assistant Advocate-General further contends that this land could not have been allotted because it fell within the prohibitory zone of five miles of the Municipal Committee, Sargodha. The learned A.A: G. next contended that way back through a Notification of 1937, this land was within the prohibited zone and, therefore, could not have been allotted. I am afraid, this contention has no force because the moment, the land was made available for allotment, it would supersede all the Notifications imposing such prohibition. Furthermore, I do not fail to understand, that if this hand was not available for allotment, then why the same was allotted on temporary cultivation basis in favour of Muhammad Sher respondent. It clearly means that the Authorities are trying to deprive the petitioner of his entitlement. The learned counsel for the petitioner has also drawn the attention of this Court to a letter of November, 1977 which clearly shows that land was allotted in favour of the petitioner and the detail of Kila and Square Nos. also shows that allotment was genuine. The learned Assistant Advocate-General also drew the attention of this Court to the provision of section 30(2) of the Colonization of Government Land Act, 1912, in which, the Board of Revenue can rescind its own order. The reference of these provision is unnecessary because such provision also exists in the General Clauses Act. The question is; once the allotment had been made and the land was made available and had formed part of the pool, the presumption is that such act was done in good faith and in a lawful manner and, thus, the principle of locus poenitentiae is also attracted. Therefore, section 30(2) of the Colonization of Government Lands Act, 1912 is not applicable to the facts of the present case. If the land was not available within the prohibited zone for the allotment of the petitioner then why the Authorities allotted the land to Muhammad Sher respondent on the basis of temporary cultivation, therefore, it is clear that the Government is approbating or reprobating and this Court cannot approve such conduct on the part of the Government. In this view of the matter, the Writ Petition No.137 of 1984 filed by Mst. Hajran Bibi is allowed and order impugned passed in revision petition dated 11-12-1983 is set aside. Adverting to the Writ Petition No.9933 of 1991 filed by Muhammad Sher, I have no hesitation to hold that the land was illegally allotted to him and he has no right to assail the allotment in favour of Mst. Hajran Bibi. .Furthermore, Muhammad Sher has no locus standi to oppose the petitioner. It is further contended by Mr. S.M. Tayyab, that Authorities be asked that some land falling outside the prohibited zone be allotted to Muhammad Sher. In my view, this question can be considered by the relevant authorities at the proper forum. The writ petition filed by Muhammad Sher is dismissed. The parties are left to bear their own costs. H.B.T./H-104/L Order accordingly