1986 PLP 420 (MLD)

Nemo for the Remaining Respondents. Date of hearing: 19th November, 1985. This is the second round of litigation between the parties before this Court. The facts constituting the‑ background of this litigation, have already been given in the order, dated 17‑9‑1971, passed in the W.P. 639/11 bf 1965, whereby the orders cancelling the allotment of the agricultural land to the petitioners, on temporary basis, in lieu of free‑ration, in their capacity as refugees of J & K Estate, were set aside and the case was remanded to the Rehabilitation and Settlement Authorities to decide it, afresh, after hearing both the parties.

2. In pursuance of the remand order, the parties were heard by the Additional Deputy Commissioner (Consolidation) with powers as Settlement Commissioner (Lands), Sialkot. By his order, dated 30‑11‑1973, impugned in this writ petition, the learned Settlement Commissioner, maintained that the petitioner's temporary allotment was, rightly cancelled. He referred to the copy of the Register Haqdaran Zamin, for the year 1939‑40, 1943‑44 and held that they owned agricultural land in village Arud‑Afghanan, District Sialkot, before partition which was partly in their self‑cultivation and thus, they could not be categorised as refugees. In his opinion, having sufficient means of income from their land, the petitioners were not entitled to free ration or temporary allotment of land for 'Guzara‑purposes', in lieu thereof, even if they abandoned some agricultural land in J a K State. He was of the view that the petitioners procured the allotment by fraud and, thus, declined to allow the adjustment of the land in dispute against their verified claims.

3. I have heard the learned counsel for the parties and examined, the available record. It is argued by the petitioners' learned counsel that the land held by them in village Arud Afghanan, hardly yielded any income and as they abandoned considerable landed property in J & K State, they were entitled to the temporary allotment. He submitted that in the course of time, the petitioners' claims for agricultural land were verified and QPR‑V issued to them. According to him, the petitioners were entitled to get the land temporarily allotted to them, and adjusted against their claims. As regards the Settlement Commissioner's finding that their allotment was the result of fraud, the learned counsel drew my attention to the order, dated 18‑1‑1957 of the Additional Revenue Assistant (Lands), Sialkot, who after holding a detailed enquiry, on the complaint filed by one Sharif Khan against the petitioners, to the effect that they obtained allotment of agricultural land by misrepresentation, rejected the same. On behalf of the respondents, their learned counsel has submitted that they are claimant displaced persons from J a K State and after cancellation of the land from the petitioners' names, it was duly proposed and confirmed to them on 7‑7‑1960 against their respective Khatas. He supported the reasonings which influenced the decision of the learned Settlement Commissioner.

4. It is discernible from the record that the petitioners' claims for agricultural land, were duly verified by the Claim Organisation and the entitlement certificate issued to them (Annexures A, A/1 and B to W. P. No. 639/11‑85). These documents indicate that in October, 1947, due to disturbances, the petitioners migrated from village Rampur Tarava, Tehsil Rambheer, Singhpura, District Jammu, to Pakistan and settled in village Bharoke, Tehsil and District Sialkot. The land in question was allotted to petitioner No.1 on 22‑12‑1950 and to petitioner No.2 on 15‑7‑1950, on temporary basis for purposes of maintenance.

5. The petitioners' status as refugees is not directly under determination in these proceedings. It is correct that they owned some agricultural land in village Arud Afghans before partition. However, there was no material before the Settlement Commissioner, for maintaining that at the time of allotment of land, the petitioners were possessed of means, from which income sufficient for their subsistence, accrued to them. In the order, dated 18‑1‑1957, the Additional Revenue Assistant, upheld the petitioner's allotment. The‑ respondents, then not being in the field, were not party to the said order but the fact remains that, a probe into the validity of the petitioners' allotment was made by the Department and they were found eligible for it. It is a fact that they are claimant Displaced Persons J & K State and their claims for agricultural land have not been satisfied so far.

6. Both the parties are claimants from J & K State. A question arises to whom the land in question should have been given. It is not disputed that there was no bar on the adjustment of the verified claims of refugees from J & K State, against the land held by them on temporary basis for purposes of maintenance. I am of the view that the petitioners, as temporary allottees and being in possession of the land since the year 1950, have a preferential right to retain the same and got it adjusted against their verified claims. There is no good reason to deprive them of the land of which they are the temporary allottees. The so‑called fraud attributed to them looses its asperity when one finds that they abandoned agricultural land in the occupied part of the State and some land in lieu thereof had to be given to them. There was, thus, no legal basis to deny the petitioners' allotment of the land in question in satisfaction of their claims.

7. For all these reasons, this writ petition is accepted, and the impugned order declared to have been passed without lawful authority. The land temporarily allotted to the petitioners, shall be adjusted against their verified claims and if after such adjustment some land is found to be surplus it can be allotted to the respondents. The parties are left to bear their own costs. H . B . T . Petition accepted.