1986 PLP 2564 (CLC)

‑‑‑‑‑Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R 89)‑‑Constitution of Pakistan (1973), Art.199‑‑Allotment of land‑Exces; land‑‑Original allotment of petitioners as shown in Form QPR‑V reduced substantially under MR‑V which was a final allotment of land under M. L.R.89‑‑Respondents who claimed to be in possession of surrendered land shown in allocation order and allegedly allotted same as sitting allottee‑‑Respondents contending that as entitlement of petitioner had been reduced substantially, there was an excess holding with petitioner after issuance of MR‑V and as such allocation order, showing surrender of certain land from his entitlement, was fully justified‑‑Order passed by Settlement Authorities showing that petitioner was held entitled to alternate allotment of land in lieu of land which was allotted to respondents‑‑Contention of respondent 'that land allotted to them was that which was in excess of entitlement of petitioner, held, not acceptable‑‑Crucial question in case whether, on date of issuance of Correction Slip No. 4P‑1, dated 15‑8‑1957, there was or not any excess land with petitioner under MR‑V, not decided by Authorities who passed orders in case‑‑Case remanded for purpose of determining entitlement of petitioner in accordance with produce index units shown in MR‑V on basis of calculation according to instructions contained in Correction Slip No. 2P‑I, dated 15‑8‑1957‑‑Allocation orders, passed under M.L.R. 89 and consequent allotment order of land in favour of respondents as sitting Haris, declared as having been passed without lawful authority. Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner (Land), Sukkur P L D 1966 Kar. 79 ref. Khalid Athar for Petitioners. Nemo for Respondents Nos. 1 to

3. Malik Muhammad Saeed for Respondents Nos. 4 to

9. Date of hearing: 17th February, 1986. The petitioner who is a claimant displaced person was allotted agricultural land measuring 307.27 Acres and 29.12 Acres in Deh Naudero, Taluka Ratodero, District Larkana, against his QPR‑V which showed the entitlement of the petitioner as 18073 P.I. Units. It is not in dispute that the allotment in favour of the petitioner was made on the basis of calculation of Banjar‑e‑Qadeem and and Banjar‑e‑Jadeed at the reduced /concessionary rate in accordance with the Correction Slip No. 2P‑1, dated 15‑8‑1957. It is an admitted position that the entitlement of the petitioner was reduced to 3557 P.I. Units upon promulgation of M.L.R.89 and a revised entitlement certificate under MR‑V was issued in his favour. It appears that after issuance of Correction Slip No. 4P‑1, dated 19‑1‑1962 the allotment in favour of the petitioner was calculated at the rate of flow land in accordance with the directions contained in Correction Slip No. 4P‑1, dated 19‑1‑1962. As a result of this calculation by the Department the entitlement in respect of the land held by the petitioner under his allotment was reduced with the result an allocation order was issued by the Authorities showing among other the disputed several survey numbers having been surrendered under M.L.R.

89. The respondents 6 to 9 who claimed to be in possession of the surrendered land shown in the allocation order from 1964‑65, were allegedly allotted these land by the Provincial Government under M.L.R.115 as sitting Haris of the land. It is the contention of the petitioner that the allocation order passed by the Authorities under M.L.R.89 and consequent allotment of the land to respondents Nos. 4 to 9, as sitting Haris was without notice to him. It appears that having come to know of the aforesaid allotment in favour of respondents Nos. 4 to 9 : the petitioner moved a representation before the Deputy Commissioner/ Additional Settlement Commissioner (Land) Larkana, alleging that the land held by the petitioner was Banjar‑e‑Qadeem and Banjar‑ Jadeed and, therefore, there was no question of any surrender of land by him after issuance of MR‑V in his favour. By order, dated 26‑11‑1972 the Deputy Commissioner/ Additional Settlement Commissioner (Land) Larkana, upheld the contention of the petitioner on the basis of the case of Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner (Land) Sukkur P L D 1966 Kar. 79 and accordingly held that the entire land allotted to the petitioner originally shall stand in his allotment. The respondents Nos. 4 to 9 who had purchased the alleged surrendered land as sitting Haris filed an application before the Deputy Commissioner/ Additional Settlement Commissioner (Land) Larkana, who passed the order, dated 26‑11‑1972 complaining that the land purchased by them as sitting Haris was surrendered by the petitioner under M.L.R.89 and as the petitioner had not exercised the option for re‑purchase of the land, the same was available for allotment to the sitting Haris by the Provincial Government. It was also contended before the Deputy Commissioner/ Additional Settlement Commissioner (Land) that earlier order, dated 26‑11‑1972 was passed by him without hearing respondents Nos. 4 to 9 who were holding allotment of the surrendered land in their favour. Respondent No. 2 accepted the contention of respondents Nos. 4 to 9 and by order, dated 27‑3‑1973 he recalled his earlier order and directed that the allotment made in favour of respondents Nos. 4 to 9 he maintained and that in lieu of the land allotted to respondents Nos. 4 to 9 as sitting Haris the petitioner may be allowed some alternate piece of land which is Banjar‑e‑Qadeem or Banjar‑e‑Jadeed. Against the order of respondent No. 2 the petitioner preferred a revision petition before the Commissioner, Sukkur Division who vide his order, dated 28‑12‑1976 maintained the order of respondent No.2. The last two orders mentioned above are impugned in this petition and it is contended by the learned counsel for the petitioner that the allocation order issued under M.L.R.89 taking away certain land from the allotment of petitioner was an order wholly without jurisdiction as on the date the aforesaid allocation order was passed by the Authorities there was no excess land in the allotment of the petitioner. It is not disputed that in view of the decision in the case of Mst. Fidai Zuhra and others v. Deputy Commissioner and others P L D 1966 Kar. 79 the correction slip which was issued by the Rehabilitation Authorities on 19‑1‑1962 could take effect only prospectively. It is, therefore, quite clear that if on' the date the aforesaid correction slip was issued by the Authorities a person was holding allotment of land which was Banjar‑e‑Qadeem or Banjar‑e‑Jadeed the same could not be taken away from his allotment on the basis of the instructions contained in Correction Slip No. 4P‑1, dated 19‑1‑1962. The contention of the learned counsel for the respondents Nos. 4 to 9 however, is that the original entitlement of the petitioner as shown in his QPR‑V as 18073 PA. Units was reduced to 3557 P.I. Units under MR‑V, which is the final entitlement of the land issued under M.L.R.89. It is accordingly contended by the learned counsel for respondents Nos.4 to 9 that as the entitlement of the petitioner was reduced substantially it is obvious that there was an excess holding with the petitioner after issuance of MR‑V and as such the allocation order issued in the year 1962 showing surrender of certain land from his entitlement was fully justified. I have gone through the three orders passed by the Rehabilitation Authorities on the application of the petitioner and respondents Nos. 4 to

9. There is no mention in any one of these orders that as a result of the reduction of the entitlement of the petitioner under MR‑V the land in the allotment of the petitioner became excess of his entitlement. On the contrary the orders passed by the respondents Nos. 1 and 2 clearly show that the petitioner was held entitled to the alternate allotment of land in lieu of the land which was allotted to respondents 4 to

9. In these circumstances it is not A possible to accept the contention of the learned counsel for the respondents Nos. 4 to 9 that the entitlement of the petitioner having been reduced from 18073 P.I. Units to 3557 P.I. Units the land allotted to the respondents Nos. 4 to 9 was that which was in excess of the entitlement of the petitioner. However, the crucial question in the case is whether on the date of issuance of Correction Slip No. 4P‑1, dated 19‑1‑1962 there was, or not, any excess land held by the petitioner under MR‑V according to the calculation on the basis of Correction Slip No. 2P‑1, dated 15‑8‑1957. As this crucial point has not been decided by the Rehabilitation Authorities who passed orders in this case, it is only appropriate that the case may be sent back to them for the purposes of determining the entitlement of the petitioner in accordance with the produce index units shown in MR‑V on the basis of calculation according to instructions contained in Correction Slip No. 2P‑1, dated 15‑8‑1957. If the petitioner is found to hold excess land B on the basis of above calculation, the allotment in favour of respondents 4 to 9 may be maintained. However, if it is found that there was no excess area in the allotment of petitioner, the allotment of respondents 4 to 9 may be cancelled by the authorities in accordance with the law. I accordingly accept this petition, declare the two impugned orders, dated 27‑3‑1973 and 28‑12‑1976 passed by the respondents 1 and 2 respectively as having been passed without lawful authority. The case is remitted back to respondent No. 2 with the direction to dispose of the petition of respondents 4 to 9 pending before him in the light of above observations. There will be no order as to costs. M. Y. H. Case remanded.