1990 PLP 228 (SCMR)

Respondents: Ex parte. Date of hearing: 23rd May, 1989. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in this and a number of other appeals to examine the validity of the cancellation of allotment of lands to persons in the category of the appellants in purported compliance of the revisional order passed by Mr. I.U. Khan, Rehabilitation Commissioner on 23‑11‑1956 notwithstanding decisions of the superior Courts with regard to its validity and efficacy.

2. The appellant No.l is the son and the appellants Nos.2 and 3 are the daughters of one Boota. They migrated from India. Noor Muhammad appellant No.l, obtained temporary allotment of land in Chak No. 180/E.B., Tehsil and District Vehari. The land temporarily allotted to him measuring 55 kanal 1 marla comprised of Killas Nos.19 to 25 and 27 in Khasra No.17. A claim was filed in respect of land abandoned in India by their mother Mst. Churi. It was verified for 284 Produce Index Units. The land temporarily allotted to him was confirmed in their favour against the verified claim.

3. In 1956 the Rehabilitation Commissioner, Mr. I.U. Khan suspected and discovered wide spread illegalities in the confirmation of land against verified claims in this Chak and the adjoining areas. After a notice generally given to all the allottees and hearing such of them who wanted to be heard with regard to the illegalities in the allotments made, an omnibus order was passed by the Rehabilitation Commissioner on 23‑11‑1956. Not only all the allotments till then made, were cancelled, but guidelines were also provided for making fresh allotments in accordance with the law on the subject. These have been reproduced in some detail,, in the consolidated judgment disposing of a number of Constitution Petitions, bearing Writ Petition No. 1127/11 of 1977 etc. by the High Court Finding a place on the record of another appeal (Civil Appeal No. 502 of 1980) heard alongwith this appeal. While complying the allotment of the appellants was reduced on the ground that Mst. Fatima, (appellant No.3 herein) .y could not qualify as an allottee in this estate nor could she be confirmed land because she was a married lady and resided with her husband in what came to be, known as Faisalabad. The ceiling in the Chak was of 300 P.I.Us. The verified claim of Mst. Churi which devolved on the three appellants was 284 P.I.Us. which was less than the ceiling. The share of Mst. Fatima, appellant No.3 came to 71 P. I. Us and even after excluding it the entitlement of the two appellants came to 213 P.I.Us against which they were made allotments only to the extent of 202 P.I.Us.

4. The grievance of the appellants was that as the verified claim had devolved on them, the temporary allotment of one of them was sufficient to make all the three of them, allottees for the purposes of settlement in the Chak. Mst. Fatima Bibi on that account should not be treated as a non‑allottee of the Chak and undeserving of the allotment and its confirmation. The other grievance of the appellants was that against their entitlement of 213 P.I.Us. they had been allotted only 202 P.I.Us. and in this manner, they have a residue awaiting settlement and what they have given in lieu thereof is less than their entitlement. The locus stand] of the respondents who were subsequently alloted land after resumption from the appellants was also challenged on various grounds relating to their entitlement to be settled in this Chak.

5. By the impugned judgment the learned Judge in the High Court held that even the extended definition of 'temporary allotment' could not make Mst. Fatima, appellant a temporary allottee of this Chak because she was already married at the time of partition and had settled in another District and had no allotment in her name in this Chak. As regards the exact entitlement of the other two appellants and the shortage, reliance was placed on the guidelines provided by the Rehabilitation Commissioner providing as hereunder:‑ "In calculating the entitlement of the claimants concerned regard should not be paid to the increase in produce indices made subsequent to the specified date, except in the case of the claimants whose verified title does not exceed 200 produce index units. In the latter type of cases the subsequent increase in produce indices should be permitted." It was held that what was subsequently verified and the increase in the entitlement could not under those instructions be satisfied as the claim exceeded 200 P.I.Us. In the alternative also it was held that there was shortage of 11 P.1.Us and it did not justify interference in constitutional jurisdiction.

6. Mr. A.R. Sheikh, Senior Advocate, the learned counsel for the appellant contended that Mst. Fatima Bibi, should also have been treated as temporary allottee on the strength of temporary allotment of her brother and sister and the verified claim of their mother. In any case, according to the learned counsel the shortage of 11 P.I.Us should have been met. On the legal plane it has been urged that in the earlier case (Writ Petition No. 605/11 of 1958), that came up before the High Court, Rehabilitation authorities were parties and were bound by the finality of the adjudication wherein the, omnibus order of cancellation passed by Mr. I.U. Khan, Rehabilitation Commissioner was held to be against law and quashed. It applied even to the case of the appellants who were not parties and that general order of revision could not be given effect to nor could the allotment made cancelled, without affording an opportunity of hearing to the appellants.

7. On merits it has been found established that Mst. Fatima was not settled in this Chak and was from the beginning residing with her husband in Faisalabad. She was neither a temporary allottee nor could be deemed to be a temporary allottee under the extended definition which was restricted to certain categories specified and it did not include the cases of the category to which she belonged.

8. As regards the marginal shortage, the High Court has given a reason which has not been successfully attacked. No documents have been filed to show that the additional P.I.Us. verified in the name of Mst. Churi were not received after the date fixed by the Rehabilitation Commissioner but before that date. With that finding on record and nothing in rebuttal, even at this stage, it is difficult to reverse that finding of fact upheld by the High Court.

9. There is no decision to which the appellants were party which could be availed of by the appellants in personam for avoiding the effect of the general revision of allotment order passed by Mr. I.U. Khan on 23‑11‑1956. The judgment in other cases though passed in the presence and with the participation of the Rehabilitation Authorities could not be of avail to the appellants specially when the final Court has held on the question of law otherwise.

10. A grievance has been made that entitlement of the respondents to get the land and the late stage at which he was allotted the land was not attended to by the High Court: As regards the entitlement of the respondents, in the reply to the Constitution Petition, the contesting respondents had stated the factual position in the following words:‑ "The hard fact remains that the disputed Killa No. had already been proposed and confirmed in the name of the answering respondent on 21‑11‑1958, vide Annexure 'R/1 (R.L.II Khata of the petitioners' late father bearing No attached with the written statement of writ petition No.206/R of 1979.) The petitioners' father was never allotted any land in Chak No. 174/E.B., and only the late father gave his claim form from Chak No. 327/E.B., which, was transferred under the orders passed by the D.S.C. to this village and that too, before the target date".

11. The High Court has accepted the date of allotment as given in the reply to the Constitution Petition by the respondent and the appellants have not been able to substantiate by any document on record that what they have stated is not;' correct. If the orders of allotment had been passed, whether preliminary or final in 1958, the stages of appeal and revision were available for sorting out these factual questions which were not availed of.

12. We do not find any ground taken up before us made out. The appeal is therefore, dismissed. Keeping in view the protracted litigation, no order is made as to costs. A.A./N‑189/S Appeal dismissed.