1968 SCMR 387 (PLP)

MUHAMMAD YAQUB ALI, J.-The facts giving rise to this appeal by special leave of this Court are not in dispute. Agricultural land measuring 61 kanals 12 marlas situated in village Bahani, District Bahawalpur, was on 11-6-1959 proposed for allotment in the name of Allah Bakhsh, respondent No.

1. The register R. L. II containing the proposal was, however, misplaced in the Central Record Office and in its absence the same land was on 23-4-1961 allotted to Mangha, respondent No.

2. On 17-5-1961 Mangha sold the land to the appellants for a sum of Rs. 4,000 and the transaction was evidenced by the attestation of a mutation in the revenue records. On 28-11-1961 the respondent Allah Bakhsh preferred an appeal to the Deputy Rehabilitation Commissioner impleading only Mangha as a respondent against the order of allotment in his name on the ground that the land had been earlier proposed in his name. The appeal was allowed and confirmation of the land in favour of Mangha who had by then no subsisting interest left in the land was set aside. The appellants on coming to know of the order of the Deputy Rehabilitation Commissioner moved a revision petition before the Rehabilitation Commissioner who on comparison of the entitlement between Allah Bakhsh and Mangha but without considering that proprietary rights had in the meantime been created in favour of the appellants- dismissed the same. Dissatisfied with the order of the Rehabilitation Commis sioner which had the effect of setting aside the sale in their favour the appellants filed a writ petition in the High Court which too was dismissed by a Division Bench in limine on the view that the appellants did not have a better title in the kind than their trans feror. Leave to appeal was granted to consider the contentions that:

(i) the order of the Rehabilitation authorities could not bind fate appellant who had not been made parties in the appeal (ii) the High Court was wrong in taking the view that because an application under section 5 of the Limitation Act had been made it must be deemed to have, been allowed by the mere fact that the appeal was heard on merits; and (iii) that in any event the High Court had not considered that the delay of ten days from the date of knowledge as given by the appellants themselves, namely, the 18th of November 1961, and the date of the filing of the appeal namely, the 28th of November 1961, had not been explained. On hearing the learned counsel we find it unnecessary to examine any one of the contentions set out above as the order of the Rehabilitation Commissioner was liable to be set aside on the short ground that he did not advert to paragraph 14 in part I of the Rehabilitation Scheme which was determinative of the rights of the parties in the case. Paragraph 14 provides: "14. (1) The allottees concerned may transfer by sale, ex change gift, will, mortgage or other private contract their rights or interests in the land allotted to them under the Rehabilitation Resettlement Scheme (Punjab) except where: (a) the allottee concerned has not made full and final settle ment of any Government dues including the Rehabilitation Fee; (b) the land held by the allottee concerned is the subject-matter of an appeal, revision or review before a Rehabili tation authority; (c) the land has been allotted in lieu of rights as mortgagor or mortgagee till such time as the allottee concerned has fulfilled the terms and conditions contemplated to be prescribed in regard to such case; and (d) the land has been allotted provisionally on the basis of a certificate issued by the Central Record Office in accordance with paragraph 19, Chapter I, Part II of the Rehabilitation Resettlement Scheme (Punjab). Provided further that if the allottee alien or is subsequently found to have obtained the allotment of land by fraud or by misrepresentation the alienation will be deemed to be void. (2) Such alienation will only be entered in the cultivation column of the revenue records the implication being that the land will continue to be evacuee property even after alienation." The allotment in favour of Mangha being not challenged before a higher Rehabilitation authority on the date he transferred the land in favour of the appellants their proprietary rights in it could thus be defeated only on the conditions laid down in paragraph 14 notwithstanding that Allah Bakhsh had on the basis of an earlier proposal in his name a better right to its allotment. The order of the Rehabilitation Commissioner dismissing, the revision petition filed by the appellants without taking into consideration the rights which they had acquired in the land as transferees from Mangha was thus bad in law. The legal position which emerges put from the fact of the case, therefore, is that the order of the Rehabilitation Commissioner was liable to be set aside as it was made in disregard of the above mentioned provisions of their Rehabilitation Scheme. We accordingly, allow the appeal and setting aside the order of the Rehabilitation Commissioner dated the 27th May 1963, remand the case to him for fresh decision keeping in view the terms of paragraph 14 of the Rehabilitation Scheme. In the circumstances of the case there shall be no order as to costs. Appeal Accepted.