P L D 1963 W (PLP)

Ghaus Ali Shah for Petitioners. Ali Morad for Respondent. This is a joint revision petition from Kalandar Bux and Imam Bux against the order dated 28‑2‑1962 of the Additional Commis sioner, Khairpur Division, whereby he rejected their appeal against the order of the C. O. Sukkur Barrage upholding the order of the A. R. O., Khairpur and granting an area of 1 2 acres from U. A. No. 89 of Deh Nangreja Taluka Kotdiji to the respondent Minhal from Kharif 1959‑60.

2. The main contention, basic to this entire case, is whether or not the grant of the twelve acres in dispute was made surrepti tiously or after due publicity. As I had found the Additional Commissioner's order quite unintelligible, since in paragraph 3 he had mentioned that the entire area of 48 acres of this U. A. No. 89 was publicised through Schedules in November 1959, while in paragraph 1 he had upheld the grant made in favour of the respondent in May 1959, I called for a report from the Survey Superintendent, Kairpur. His report, dated 2nd Mardi 1963 shows that in accordance with the BOR's order of 1958, the entire area should have been publicised through Schedules, the grant in the respondent's favour, therefore, not having been publicised, cannot be upheld. It is strange how an officer, exercising the powers of a Commissioner can, in one paragraph state that the necessary publicity was made in November 1959 and at the same time uphold a grant made five months earlier, before the publicity through Schedules was effected. This extraordinary lapse has resulted in the parties totally unnecessarily coming to the B. O. R. The position ought to have been abundantly clear to the learned Additional Commissioner who ought to have accepted the appeal before him and remanded case back for fresh disposal.

3. I think I should refer to another point mentioned in the learned Additional Commissioner's order. He has observed that: "As regards the question of subsistence holding, the disput ed land has been sanctioned in the name of the respondent Minhal from Kharif 1959‑60 on 3‑6‑1959, while the orders of raising the minimum limit of 12‑0 acres to 16‑0 acres so as to make it consistent with M. L. R. No. 64 were passed by the Board of Revenue under their Memo. bearing No. 3772/59 1546‑P‑VI, dated the 11th May 1959." I had in teleprinter No. 0/221‑222, dated the 5th December 1961 to the Commissioners, Hyderabad and Khairpur Divisions, clari fied the point that no provision of M. L. Regulation No. 64 operated so as to deprive Haris and petty khatedars of obtaining additions to their existing petty holdings on the ground that even after the additions a subsistance holding of 16 acres under M. L. Regulation No. 64 would not be constituted. The effect of this clarification was clear that the rights of these classes of Haris and petty khatedars would continue to be governed by the existing orders requiring 12 acres minimum of land, on the same water course. I am making this clarification since I find some subordinate authorities are interpreting this teleprinter to mean that the existing Standing Orders in prescribing twelve acres as the minimum holding on a water course have been done away with. This minimum was required as it was observed in R. O. R. No. 174/60‑61 that "the smallest holding on an individual water course that can be cultivated successfully, is certainly not less than 12 acres and in many case offers by a man who has no land on the water course are only made from zid." This restriction necessitated by the economic use of irrigation water, therefore, stands. In the result, therefore, the revision is accepted the orders of lower Courts are set aside and the case is remanded back for fresh disposal after due publicity. K. B. A. Revision accepted.