1988 PLP 1368 (MLD)

Khushi Muhammad migrated to Chak No.158/GB, Tehsil and District Toba Tek Singh. He filed three claim forms for the land abandoned behind. These were verified initially for 2340 P.I.Units. He was allotted an area measuring 72 kanals 4 marlas in Chak No.158/GB. Rest of the claim was got transferred to Chak No.208/RB, Tehsil and District Faisalabad where allotment was obtained. One Azizuddin had some land allotted in Chak No.208/RB. Khushi Muhammad filed an application under section 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 saying that Azizuddin's entitlement was 449 P.I. Units whereas he had held allotment of 2400 units. The application was accepted on 15‑11‑1961 and it was directed that Azizuddin's allotment in excess of 449 P.I. Units be cancelled. Part of the cancelled area was allotted to Khushi Muhammad on 20‑4‑1962. An application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was filed against Khushi Muhammad himself; and vide order dated 24‑7‑1964, it was held that he was entitled to retain allotment to the extent of 1000 P.I Units and the excess area to the extent of 1340 P.I. Units should be cancelled according to his choice. His efforts to get the order set aside through Writ Petition No.1146‑R of 1965 and Civil Petition for Special Leave to Appeal No.170 of 1974 failed when the same were dismissed on 20‑6‑1974 and 10‑10‑1974 respectively. The net result being that order dated 24‑7‑1964 held the field. After retaining certain Khasra numbers, Khushi Muhammad surrendered Killas No.2, 3/1, 8/1 and 9 Square No.16 now in dispute and certain other numbers on 18‑9‑1965. Azizuddin earlier mentioned whose entitlement had been reduced to 449 P.I.Units vide order dated 15‑11‑1961 aforementioned, succeeded in Writ Petition No322‑R of 1971 wherein it was held that he was entitled to 718 P.I Units instead of 449 P.I. Units. This is vide order dated 30‑11‑1973. Consequently, on the increase of 269 P.I.Units (718‑449) Azizuddin was allowed to have his Killas Nos.14, 15, 16, 17 and 25 of Square No.17 back which after cancellation from his name in pursuance of order dated 15‑11‑1961 had been allotted to Khushi Muhammad. Azizuddin got back the aforesaid Khasra numbers on 7‑2‑1976. Against the order dated 24‑7‑1964 by which Khushi Muhammad's entitlement to allotment was confined to 1000 P.I. Units and 1340 P.I.Units were ordered to be cancelled, four writ petitions were filed; two by the informers and two by the occupants asking for allotment or sale of the released land from Wali Muhammad. These were disposed of vide order in Writ Petition No.93‑R of 1976 on 17‑1‑1977 dismissing the writ petitions of the informers but allowing those of the occupants for sale of the released land. C.M.No.1 of 1977 was filed in Writ Petition No.102‑R of 1976 by the heirs of Khushi Muhammad saying that the Settlement Authorities were not allowing them to retain an area to the extent of 1000 P.I. Units as allowed to them vide order dated 24‑7‑1964. The petition was disposed of with a direction that the petitioners should first approach the Settlement Authorities and point out the area which was in tire allotment of Khushi Muhammad and which they wanted to retain upto the limit of 1000 Produce Index Units. This is vide order dated 4‑4‑1977. C.M.No.2 of 1977 was filed in Writ Petition No.97‑R of 1976 by Muhammad Ashiq saying that Khushi Muhammad had exercised his choice. The application was disposed of on 12‑12‑1977 with the observation that if that be so, it should be pointed out to the Assistant Commissioner concerned

2. Consequent upon the aforesaid orders, the Assistant Commissioner/A.S.C/D.S.C.(L), Faisalabad vide his order dated 2‑2‑1978 held that Khushi Muhammad had exercised his choice on 18‑9‑1965 as is evident from the copy of RL.II of Chak No.208/RB and the cancellation of the area to the extent of 378 P.I.‑ Units in Chak No.158/GB at a subsequent date on 26‑1‑1977 and its allotment in favour of his own relatives, is of no avail to him. Hence this Constitutional petition.

3. The admitted facts are that in pursuance of order dated 15‑11‑1961 allotment in the name of Azizuddin was cancelled in excess of his entitlement of 449 units. The cancelled area was allotted to Khushi Muhammad. In proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, his (Khushi Muhammad's) own allotment was confined to 1000 P.I. Units and excess of 1340 units was ordered to be cancelled and he was allowed to retain allotment to the extent of 1000 P.I. Units according to his choice. This is vide order dated 24‑7‑1964. Consequently, Khushi Muhammad surrendered land in. Square No.16 bearing Khasra Nos.2, 3/1,8/1 and 9 measuring 26 kanals 12 marlas. and retaining the entire allotment of Square No.17. This happened on 18‑9‑1965. This is the finding in the impugned order as well. Problem has arisen because of Azizuddin, from whom land was cancelled and allotted to Khushi Muhammad who had success deed in Writ Petition No.322‑R of 1971 in having 269 units more and he, therefore, got back the land in Square No.17 retained by Khushi Muhammad. Khushi Muhammad's heirs petitioners want to get back the land in Square No.16 which they had earlier surrendered in order to retain land in Square No.17. On the other hand, Muhammad Ashiq respondent No.1 wants this land measuring 26 kanals 12 marlas having been in occupation, alongwith another area measuring 40 kanals 6 marlas, all told 66 kanals 18 marlas and having been sold the same m view of the previous litigation. Khushi Muhammad is entitled to retain the allotment to the extent of 1000 P.I. Units. He has got allotment for 731 P.I. Units. He is thus entitled to retain allotment to the extent of 269 units. The choice is whether the land in dispute once allotted to Khushi Muhammad should be retained by him for his balance 269 units, or it should go to Muhammad Ashiq a non‑claimant displaced person but in possession and should be sold in his favour in accordance with section 3 of Act XIV of 1975. Besides that the latter provision comes into play when the land is "available" and the land in dispute has been subject matter of litigation all through these years, yet it is also clear that a claimant displaced person having balance units in his hands, cannot be deprived of the allotment once made in his favour so as to sell away the land to a non -claimant displaced person. A word may be said about cancellation of allotment in Chak No.158/GB. The learned counsel for the respondent Muhammad Ashiq is right that this allotment was not cancelled until much later on 26‑1‑1977 and the land may have been allotted in favour of Khushi Muhammad's relatives, yet the cancellation of allotment from Chak No.158/GB was not for Khushi Muhammad. Order for cancellation of excess allotment of more than 1000 units was passed on 24‑7‑1964 and was given effect to in Chak No.208/RB on 18‑9‑1965. It was for the authorities themselves to make appropriate noting on the RL.11 of Chak No.158/GB. The claimant cannot be blamed for the inaction of the authorities.

4. In view of what has been stated above the claimant having balance units cannot be deprived of the land in dispute for its being sold to respondent Muhammad Ashiq. In this view of the matter the impugned order is declared to be without lawful authority and of no legal effect. It is directed that the land shall be allotted in the name of the claimant Khushi Muhammad. The price paid bye Muhammad Ashiq respondent shall be refunded proportionately. The petition is thus allowed but, m the circumstances, the parties shall bear their own costs. AA./M‑761/L Petition accepted.