P L D 1975 Lahore 1419 (PLP)

Nemo for the Remaining Respondents. Date of hearing : 21st October 1974. The petitioners are refugees from Jammu & Kashmir and were allowed to be allotted subsistence holding for their maintenance by the Deputy Settlement Commissioner, Sialkot. by his order dated 6th October 1458. Tile land was actually allotted to them at Khatas Nos. 4, 10 and 17 on 8th October 1958. Respondent No. 3 is also a refugee from Jammu & Kashmir. His application dated 23rd October 1958 for allotment of sub sistence holding, as maintenance, was allowed by the Deputy Rehabilitation Commissioner on the 6th January 1959 and land allotted to him under Khatas Nos. 8, 18 and 19 on the 14th February 1959.

2. Later, a new scheme under the Registration of Claims (Displaced Persons) Act, 1956, was framed for the permanent allotment of land to such Jammu & Kashmir refugees who held verified claims. Apart from the fact that the lands already allotted to the petitioners and respondent No. 3 were confirmed under this Scheme, more land measuring 86 kanals 9 marlas equivalent to 338 P:

1. Units was also allotted to the petitioners on 2nd play 1968 at Khata No.

20. This allotment to the petitioners seems to have given a cause of grievance to respondent No. 3 who challenged the same in an appeal. The Additional Settlement Commissioner accepted the appeal vide his order dated 15th August 1968 and ordered that half of the above. mentioned land be allotted to respondent No. 3 against his claim. The petitioners filed a revision petition but the same was dismissed on 12th November 1968, giving rise to the present writ petition.

3. The learned counsel for the petitioners has referred to the impugned .order of the Settlement Commissioner to point out that there is neither an application of mind to the question raised before him nor did he give any reasons for his decision. According to him the Settlement Commissioner refused to exercise his jurisdiction in accordance with law. He has also read the order of tile Additional Settlement Commissioner to show that the observation "when the claims of the appellant and the respondents were entered almost at the same time and both of them was sitting allottees of this estate, the available land should have been confirmed in their favour in equal shares" is not supported by the record, the learned counsel has referred to Annex. 'G'., i.e. the RL‑II of the petitioners where the Patwari in his note stated that Fazal Hussain petitioner was the senior allottee. The learned counsel has also drawn my attention to Annex. 'B', 'D', 'O' and 'P', to show that the date of allotment m favour of the petitioners was earlier than that of the respondent. He has also pointed to Annex. 'N', where in his affidavit dated 8th October 1958, respondent No. 3 deposed that no land stood allotted to him on that date. From these documents the learned counsel for the petitioners concludes that had the two functionaries applied their mind, there was enough material on record to prove that the petitioners were the senior allottees and had the right to get their claim satisfied in its entirety before any portion of the available land was allotted to respondent No.

3. Reliance was placed on Hafiz Rao Muhammad Daud Khan v. Rehabilitation Commissioner, Hyderabad and another (P L D 1961 Kar. 224), Muhammad Shafi and others v. Chief Settlement and Rehabilitation Commissioner and others (1968 S C M R 121) and Kaka v. Noor Samand and another (P L D 1974 Note 43 at p. 81) to say that the petitioners were entitled to pre ference in allotment and that the orders of the Additional Settlement Com missioner and the Settlement Commissioner depriving them of half of the land, are unlawful. It was further submitted that according to the established practice of the Department the temporary allottee of an earlier date has to be given preference.

4. The contentions of the learned counsel resolve into one proposition and that is; how is the question of preference to be decided between two temporary allottees? 'The provisions of the Scheme for permanent allotment of land to claimants from Jammu & Kashmir State were pressed into service. Particular reference was made to paras. 3, 5 and 7 of the said Scheme. Para. 3 makes applicable Part II, Chapter I, para. 3 of the Rehabili tation Settlement Scheme to Jammu & Kashmir refugees. These provisions, however, relate only to the total entitlement and not the manner of allotment. According to para. 5, the two temporary schemes for Jammu & Kashmir refugees were also made applicable mutatis mutandis. The temporary schemes relating to the rural agricultural properties in turn make applicable the West Pakistan Rehabilitation Settlement mutatis mutandis in respect of all matters relating to the temporary schemes. The net result is that in order to decide the question of preference one has to apply the provisions of the West Pakistan Rehabilitation Settlement Scheme.

5. Para. 7 of the West Pakistan Rehabilitation Settlement Scheme gives preference to a temporary allottee as against a non‑allottee. Both the parties being allottees in the present case, para. 7 will not directly apply though it is suggestive of the fact that no preference is to be given to any one between the temporary allottees. Para. 11, however, may be of assistance to resolve the problem. It reads as follows: "In cases where the claimants of land under the Rehabilitation Settlement Scheme, whether in congested or non‑congested districts, cannot be accommodated in the estates in which they hold temporary allotments on the plea that the land is not sufficient to meet the claims of all the allottee‑claimants for the particular estate, all available land should be individually allotted to the entire group of allottee‑claimants in a ‑ _ particular estate for which a separate maximum should be fixed for each estate based on the extent of the availability of land. The allottees found entitled to allotment beyond that maximum should be accommodated on evacuee land that may be found available in other villages." This paragraph seems to be applicable to the fats of the case as here both the parties are temporary allottees. Land available is also insufficient to meet their claims. Consequently, ratable distribution between the allottees was the only answer. The judgments cited by the learned counsel for the petitioners are dis tinguishable. In the case cited as 1968 S C M R 1.21‑ no rule about "first come first served" was laid down but it was only noted and the equitable distribu tion was approved. It may be noted here that in that case both the parties were non‑allottees and their claims were brought from other villages while in the case fn hand the claims were filed in the same village and were not transferred from outside. Further, here both the parties were having the status of allottees when the scheme for permanent allotment was enforced. In the other case cited a9 P L D 1961 Kar. 224, non‑allottee‑petitioner was preferred over the temporary allottees who had no entitlement in their favour at the time when the petitioner's claim arrived in that village. In the third case an allottee with unsatisfied claim was preferred over a non‑allottee new enterant.

6. As regards the practice of the Department that senior allottee should be given preference, suffice it to say that no proof of practice has been placed on the record. Reports of the Patwari about seniority of the petitioner is not a good substitute for the proof of the practice. There is on the other hand a letter dated 4th May 1968, from the Government of Pakistan, Rehabilitation and Works Division, Jammu & Kashmir Refugees Rehabilitation Organization to the Deputy Commissioner, Sialkot, the relevant portion of which reads as follows:‑ "Those Jammu & Kashmir refugee claimants whose verified claims are more than the area of temporary allotment, they would be treated at par with other claimants in Schedule V and required to seek allotments elsewhere except that marginal adjustment up to 500 Produce Index Units have been allowed vide Chief Settlement Commissioner's Letter No. 97/BWP‑60/2767‑R(P) dated 20‑7‑1960." The petitioners thus cannot claim as a matter of right, preference over the respondent in allotment of land in excess of their temporary allotment.

7. The objection of the learned counsel about the observations in orders of the Additional Settlement Commissioner that the claims of the parties entered the village at the same time cannot be taken serious note of as he was making that a basis for equitable distribution of the remaining land. As it has not been shown that the basis accepted was arbitrary or unlawful, no interference on that score is called for. The order of the Settlement Com missioner, however, need not have any reasons at all as he rejected the petition. Reliance may be placed on Haji Fateh Muhammad v. Mauls Bakhsh and others (PLD 1963 SC 311) where it was held that a Settlement Commissioner is not bound to hear the parties if he declined to interfere in such revision.

8. It is clear from the order of the Additional Settlement Commissioner dated 15‑8‑1968 that respondent No. 3 held m all 1420 P. I. Units to his credit. He got settles 614 Units, in the village in question, 600 Units were transferred to Tehsil Shakargarh and only 206 P. I. Units remained to be satisfied. According to Annex. `A' (Fard Haqiat) the total entitlement of the respondent was 853 P. i. Units. He got 443 P. I. Units satisfied at Khata Nos. 4. 10 and 17 and was left with 410 P. I. Units to be satisfied. It was against this balance that the land in dispute was allotted at Khata No. 20 of petitioners equivalent to 338 P. I. Units half of which has now been ordered to be given to respondent No. 3, keeping in view the tact that both the con testing parties are allottees and that provisions of para. 1 t of the West Pakistan Rehabilitation Settlement Scheme are applicable to them, the respondents on the basis of ratable distribution would have been entitled to about 900 P.

1. Units whereas they have been given about 733 Units only. The peti tioners who would be entitled to about 500 P.1. Units under para. I1 have been given 562 P. I. Units under the impugned order. The petitioners, therefore, are in no way losers and it is not desirable to interfere just on a technical ground if at all there was one. In a more or less similar situation the Supreme Court refused to interfere as may be seen in the following portion of the judgment in Muhammad Shafi's case "It seems to us that the case did not call for application of any technical rules, since there was no question of absolute right to receive land in Chak 318/HR. Each party was seeking a grant, in relation to his unsatisfied Units, at the hands of authorities whose task was to dis tribute the available benefits as equitably as possible among the verified claimants. The rule of priority was not applied, and of this, the benefit went in the largest measure to Muhammad Qasim. If Said Muhammad and Din Muhammad had reached their claims to Chak 318/HR by short circuiting the prescribed procedure, Muhammad Qasim had done so by falsifying his sadaqatnama and application by changing the figure 328/HR entered in them irregularly to 318/ HR. Each claim therefore, was affected by a technical flaw, that of Muhammad Qasim being the most serious. The final grants made by the Additional Settlement Commissioner do not suffer from the degree of disproportion which appears in the orders of the Deputy Settlement Commissioner, and to a lesser degree in that of the Assistant Settlement Commissioner. These final grants, therefore, approximate most closely to the requirements of equity. The demand of Muhammad Qasim to full satisfaction of his claim, to the exclusion of Said Muhammad and Din Muhammad was plainly unconscionable and was rightly refused." For the reasons stated above I dismiss this petition but there will be no order as to costs. s. A. a. Petition dismissed.