1991 PLP 1323 (CLC)

‑‑‑‑ S.2 ‑‑‑ Constitution of Pakistan (1973), Art.199 ‑‑‑ Cancellation of land on basis of Mukhbari application ‑‑‑ Patwaris' statement was the sole basis for cancellation of allotment ‑‑‑ Validity of ‑‑‑ Record showed that no opportunity to cross‑examine Patwari was allowed to allottee ‑‑‑ Patwari's statement, however, did not clarify as to whether any land in relevant Khatas, had been verified on any claim before the removal of relevant pages from special Jamabandi ‑‑‑ Allottee, a claimant displaced person could not be held responsible for removal of those pages from special Jamabandi ‑‑‑ No penal action could be taken against allottee on mere assumption and inconclusive data ‑‑‑ Fard Haqiats issued to allottee in 1950, would be deemed to be valid unless proved otherwise ‑‑‑ Orders passed by Settlement Commissioner cancelling allotment in favour of allottee on basis of inconclusive data thus, could not be sustained and same were declared to have been passed without lawful authority and of no legal effect. Muhammad Hanif Niazi for Petitioner. Raja Abdur Razzaq for Respondent. Date of hearing: 27th April, 1991. The necessary facts briefly stated are that Abru deceased, now represented by his legal representative, submitted his Claim Form No.1465 relating to the land abandoned by him in village Ladha Vess, Tehsil Fateh Abad District Hisar and Claim Form No.1466 in respect of the land abandoned by him in village Shatrana Tehsil Bhawanigarh, District Sanam, Patiala State. On Claim Form No.1465 Fard Haqiat verifying land equivalent to 292 Produce Index Units and on his Claim: 'Form No. 1466 Fard Haqiat verifying the land equivalent to 5985 Produce Index Units were issued. The total entitlement in terms of Produce Index Units thus came to 6276 Units. Abru deceased, petitioner, was then confirmed land measuring 1280 kanals 9 marlas equivalent to 6308 Produce Index Units on 9‑5‑1954 in village Dauluana Tehsil Shorkot, District Jhang. The respondents filed a Mukhbari application allegedly on 20‑2‑1974, saying that the land got allotted by Abru deceased was in excess of his true entitlement. The Mukhbari application was finally disposed of by the then Settlement Commissioner (Lands) Sargodha Division, Sargodha vide order dated 23‑10‑1976. The learned Settlement Commissioner (Lands) on the basis of the statement made by Muhammad Suleman Patwari, came to the conclusion that 292 Produce Index Units were correctly verified on Claim Form No.1465. He further held that Abru petitioner was entitled to 1976 Produce Index Units on the basis of Claim Form No.1466 filed, in respect of the land abandoned by him in village Shatrana Tehsil Bhawanigarh, District Sanam, Patiala State as against 5985 Units already verified. He accordingly held that 4040 Produce Index Units were verified in excess of entitlement on Claim Form No.1466. He directed cancellation of the land to that extent. This order dated 23‑10‑1976 was then assailed by Abru petitioner by filing the present Constitution petition in this Court.

2. The other petition (W.P. 1894‑R‑76) was filed by Muhammad Siddique and another who had submitted Mukhbari application against the Allotment obtained by Abru deceased, challenging the order dated 23‑10‑1976 of the learned Settlement Commissioner (Lands) Sargodha Division, Sargodha, to the extent that they were not accepted as Informers and despite cancellation of the land equivalent to 4040 Produce Index Units from the Khata of Abru deceased, no direction to allot the said land to them was passed.

3. I have heard the learned counsel for the legal representatives of Abru deceased as well as Raja Abdur Razzaq, Advocate, learned counsel for Muhammad Siddique etc the informers. The sole basis of the impugned order is the statement of Muhammad Suleman Patwari made on 14‑5‑1975. A copy of the said statement was produced by the learned counsel for the respondents. A perusal of the same shows that no opportunity to cross‑examine the said Patwari was allowed to Abru deceased, respondent in the said proceedings. Moreover the said statement also does not make the position very clear as to the entitlement of the claimant. It was for this reason that the learned Settlement Commissioner himself observed that the patwari could not clarify as to whether any land of these Khata had been verified on any claim before the removal of the aforesaid pages. A reference to Fard Haqiat pertaining to Claim Form No.1465 (Annexure A) and Fard Haqiat pertaining to Claim Form No.1466 (Annexure 'B') shows that Fard Haqiats had in fact been issued in respect of these claims before the removal of the aforesaid pages from Special Jamabandi. Moreover, Abru, deceased petitioner, a claimant displaced person, could not be held responsible for the removal of the pages from Special Jamabandi. Again while reconstructing the said Register Haqdaran Zamin, the petitioner displaced person was not required to produce the Fard Haqiat already issued to him. It is also pertinent to note that Fard Haqiat so far as it relates to Malkiyat under mortgage, as per Serial No.8 as given by Muhammad Suleman Patwari, is more than the one verified on the Fard Haqiat as far as Banjar land is concerned. These features have been noted to indicate that on mere assumptions and inconclusive data no penal action can be taken. Two Fard Aaqiats (Annexures 'A' & B) produced by the petitioner in these proceedings 'have neither been challenged by the respondent‑Settlement Commissioner nor by the private respondents. Unless these Fard Haqiats are established not to have been issued in 1950 by the competent officer, the same have to be held valid having been issued in accordance with the record then available. Obviously, there is no challenge to these Fard Haqiats. In presence of these Fard Haqiats, it is apparent that the order passed by the learned Settlement Commissioner on the basis of inconclusive data, cannot be sustained. The order dated 23‑10‑1976 "of the learned Settlement Commissioner (Lands) Sargodha Division, Sargodha, is, therefore, declared to have been passed without lawful authority and hence of no legal effect. The petition, therefore, succeeds and is hereby accepted with cost. Resultantly, the other petition (W.P. 1894‑R/76) filed by Muhammad Siddique etc. is dismissed with no order as to cost. AA./A‑1283/L???????????????????????????????????????????????????????????????????????? Petition dismissed.