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Official Citation: 1984 MLD 961
Court / Jurisdiction: Sindh High Court
Year of Decision: 1984
Decision Date: 1984-11-19
Parties: Mirza NAZAR ALI BAIG vs Syed HAMID REHMANI and 3 others
This judicial decision was delivered by the Sindh High Court on 1984-11-19. The matter involves proceedings between Mirza NAZAR ALI BAIG and Syed HAMID REHMANI and 3 others, officially reported as 1984 MLD 961. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1984 MLD 961
Court Name: Sindh High Court Judge(s): Muhammad Zahoor-ul-Haq Title: Mirza NAZAR ALI BAIG vs Syed HAMID REHMANI and 3 others Case No.: Constitutional Petition No,1132 of 1975 Date of Judgment:1984-11-19 Reported As: 1984 MLD 961 Result: Petition allowed
JUDGMENT
JUDGMENT ' This petition is directed against the orders of Settlement Commis sioner,Karachi, dated 23-9-1975 whereby the revision filed by respondent No,1 under section 19(2) of E.P. & D.P. Laws (Repeal) Ordinance, 1974 was allowed and it was held that the allotment of Survey No,99 of Deh Kotoraro, District Thatta was invalid and, therefore, the allotment of the said land could have been made in favour of the respondent. 2. The relevant facts are that the petitioner is a displaced person from non-agreed areas whose claim for agricultural land was verified in 1956 and an entitlement letter under Form 141.1V was issued in his favour by the Central Record Office,Lahore. The claim of the petitioner was first sent to Nawabshah and later on transferred to Thatta. In 1958 it was proposed that Survey No,99 of Deli Kotoraro, measuring 23 Acres 18 Ghuntas in Taluka and District Thatta be allotted to the petitioner as a compact block. On 26-1-1959 Parchi Tauseem Khatooni under Rural Settlement Scheme was issued in favour of the petitioner by A.R.C. and Mukhtiarkar, Thatta. On 12-12-1959 entitlement certificate under Q.P.R.V. was issued in favour of the petitioner by C R 0 Lahore and sent to D.R.C. Thatta showing a total entitlement of 1778 P.I.U. equal to 27.15 Acres. Some other agricultural land was also allotted to the petitioner in Taluka Mirpur Sakro, District Thatta. 3. On 5-1-1960 the petitioner made a statement before Mukhtiarkar Thatta for converting his I.R.IV allotment into Q.P.R.V. On 29-4-1960 the petitioner was directed to pay Rehabilitation fee at the rate of Rs,10 per hundred units for Survey No,99 and on 16-5-1960 the petitioner deposited Rs,56 and 4 Annas in Government treasury. On 6-7-1960 entries were made in R.L. 2 register of District Thatta showing that the petitioner was an allottee of survey No,99, Deli Kotoraro in Taluka and District Thatta. On 8-10-1960 a letter was written by Mukhtiarkar of Thatta to Mukhtiarkar Mirpur Sakro
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informing him that the petitioner wanted to retain 23.18 Acres of land in Taluka Thatta which had been allotted under interim relief scheme and it was, therefore, requested that the area allotted to the petitioner in Taluka Thatta may be adjusted towards his entitlement, shown in his Q.P.R.V. Form and remaining area may be allotted to him in Taluka Mirpur Sakro. It was further requested that the copy of the Q.P.R.V. of the claimant may be sent for the record to Taluka Thatta. This letter was, dated 8-3-1960. 4. The Mukhtiarkar of Mirpur Sakro acknowledge the receipt of the above letter of 8-3-1960 by his letter, dated 18-3-1960 informing that Q.P.R.V. Forms in the name of the petitioner was received for settlement and he was allotted 16.25 Acres which had been confirmed in Taluka Mirpur Sakro and a copy of Q.P.R. Form V No,886/24089 was also sent by Mukhtiarkar Mirpur Sakro to Mukhtiarkar Thatta and he was asked to allot the balance in his Taluka and confirmed on the said certificate. It was in pursuance of these above referred letters that S.No,99 was allotted to the petitioner and due entries were made in R.L. 2 Register on 6-7-1960 as noted by me above. 5. On 1-11-1960 37 villages of Thatta including Deh Kotoraro were transferred to Karachi Division. Meanwhile on 23-8-1961 M.L.R. No,89 was issued and on 18-11-1961 an allocation order under M.L.R. No,89 was issued by Deputy Commissioner, Thatta, to the petitioner certifying that the petitioner was entitled to retain 15.96 P.I.Us. and was to surrender 233 P.I.Us. It was also shown in that letter that 23.18 Acres of land in Deh Kotoraro equal to 562 units was allotted to the petitioner along with 62 Acres of land in Taluka Mirpur Sakro equal to 1,253 P.I.Us. and that he was to surrender 219 P.1.Us.,It was shown in Annexure "A" of the said letter that the petitioner had surrendered 10.381 Acres of land in Taluka Mirpur Sakro. 6. On 15-3-1967 Settlement Scheme No,6 was issued and in pursuance of the same the respondent No,1 made an application on 13-10-1967 for allotment of S. No, 99 Deh Kotoraro on the basis of his own entitlement as a claimant. This application was made to the Rehabilitation Authorities at Karachi and they made the allotment of Survey No, 99 in favour of the respondent No,1 on 8-11-1967. The same had probably been done without any intimation to the petitioner and he, therefore, made an application on 9-1-1968 to Additional R.C. and Chairman Allotment Committee, Karachi, asking for cancellation of allotment of the disputed land from the name of respondent No,la The said officer heard both the parties and held on 10-12-1973 that the subsequent and double *allotment of S. No, 99 covering 27 Acres 18 Ghuntas to the respondent No,1 on 8-11-1967 be cancelled forthwith as the allotment of Survey No,99 was made in favour of the petitioner on 26-1- 1959 and was finalized on 18-1-1961 against his available reduced P.I.Us. under M.L.R. No,89 which was a valid allotment. 7. The petitioner No,1 filed revision before the Settlement Commissioner of Lands at Karachi and Settlement Commissioner of Lands by his order, dated 23-9-1975 held that there was no actual allotment issued by Mukhtiarkar/A.S.C. (L), Thatta for survey No,99 for the disputed land under Supplementary Rural Scheme and allocation order passed by Deputy Commissioner was passed because of misrepresentation of facts and he, therefore, allowed the revision of the respondent and hence this petition. 8. The finding of Settlement Commissioner in his order, dated 23-9-1975 are to the following effect:- (1)(i) That allotment under I.R.IV was of a purely temporary nature. (ii) That in this case the proposal letter which is the foundation of this case is highly doubtful because of material over writings, hence same is not genuine. (iii) The Perchi Taqseem Khatauni is not in the form of I.R.IV, but in the form of supplementary rural scheme which was a later scheme. (iv) Why area of 23-28 Acres was allotted when the allotment was for 218 units as per 1.R. IV, dated 28-2-1958. A note on Perchi Taqseem Khatauni is not signed by anybody.
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(2) Neither the original Q.P.R.V. nor Parchi Taqseem Khatauni for allotment of S.No,99 under Settlement Rural Scheme is available. There is only a reference by Mukhtiarkar, Mirpur Sakro.There is no allotment in R.L.11 register, which is the basic record. (3) Record does not show that any allotment or Perchi Taqseem Khatauni was issued by Mukhtiarkar, Thatta for S. No, 99 under M.1. R.89 and hence area was available for allotment to any claimant. (4) Order of allocation was passed because of misrepresentation of facts as allotment was presumed because of reference from Mukhtiarkar of Mirpur Sakro, but he was not the competent authority for allotment of S.No,99, Deh Kotoraro. ' I have perused the records and proceedings of this case, which was sent for from the following authority. 9. 1 find the original proposal letter is contained in these proceedings. The same bears the signature of the Mukhtiarkar at the end. It has 4 cuttings at different places but there is a rewriting against every cutting and the most material rewritings in respect of Deh Kotoraro and S.No,99 also bear the initials. The initials appear to be of the same person who has signed at the end of the proposal. It appears to me that the initial proposal was drawn for allotment of same land at Khadeji to the petitioner but it was later on changed to S.No,99 of Deh Kotoraro, District Thatta.The. Settlement Commissioner appears to have ignored the initials of the allotting authority over the two writings and, therefore, the Settlement Commissioner was misled to consider the proposal as highly doubtfully fact the initials have removed the doubt which could be legitimately entertained if the initials were not there. The presence of this proposal in this form on the old file itself is a clear proof that the proposal as such did exist at that time. In any case the Settlement Commissioner should have weighed all the documents together and then he could have decided the effect of this document. Basic mistake committed by the Settlement Commissioner is that having considered this proposal of allotment as the basic document and having found some suspicions about it, which were really unfounded, he has condemned every other document connected with the allotment of S.No,99 Deh Kotoraro and reached a perverse decision. 10. The Perchi Taqseem Khatauni, dated 26-1-1959, gives a clear support to the proposal letter above referred and clearly proves that the proposal was the same which was unnecessarily described as suspicious by the Settlement Commissioner. This Perchi is properly signed and is found in the record and mere circumstance that this Perchi was not in the form which was prescribed for 1.R.IV Scheme, but it was in the form which is prescribed under supplementary Rural Scheme is not destructive of its effect. The form of Perchi Taqseem Khatauni was to be supplied and filled by the Rehabilitation Authorities and it is not the choice of the allottee, therefore, petitioner could not be punished if a different form of Perchi Taqseem Khatauni was used by Mukhtiarkar Thatta. Moreover, the use of the form of supplementary rural scheme should have led the Settlement Commissioner to the conclusion that the Rehabilitation Authorities were intending to confirm the temporary allotment into a semi-permanent allotment. I am clearly of the view that the authority and genuineness of Perchi Taqseem Khatauni, dated 26-1-1959 admitted of no doubt of whatsoever nature about the allotment of S. No, 99 Deh Kotoraro to the petitioner by the competent authority namely the Mukhtiarkar Thatta. This Khatauni is duly signed by 3 officers and every one of the entries is properly made and it is found contained in the original records and hence this document should have been treated as the basic document of allotment. 11. The Settlement Commissioner has found another fault with this Khatauni, dated 26-1-1959 that a larger area of 23.18 Acres has been allotted which was more than the entitlement of this petitioner. This could hardly be a ground for ignoring this Khatauni. In one column of this Khatauni 9.4 Acres is shown as the entitlement which would probably be relevant for the 1.R.IV Scheme. But there is a note in detail written in the body of this Khatauni presumbly by the Mukhtiarkar which takes note of
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the office suggestion to the effect that 18.2 Acres was the entitlement but 23.18 Acres have been proposed which is more than the entitlement. But the note concludes the matter by saying that since this is one compact no which cannot be partitioned, therefore, he allowed it with reluctance. This note is sufficient to show that the Mukhtiagltar was conscious of the excess allotment but he allowed it and that objection cannot really be taken to the same. We cannot lose sight of the fact that in 1958-59 there was no controversy about the allotment and mere irregularity in allowing an excess area cannot lead A to the conclusion that the Whole allotment was illegal or void. ' More omission to sign the note on this Khatauni does not detract anything from the value of this Khatuni when it is found that it is signed at the end by three officers, one of them was the competent authority viz. Mukhtiarkar, Thatta and this Khatauni had been duly filed in by the authorities and all the entries clearly showed the intention of the Rehabilitation Authorities that they were allotting S.No,99, Deh Kotoraro to Nazar Ali Beg on quasi-permanent or interim basis. Moreover, the objection, that more area was allotted than was the entitlement of Nazar Ali Beg, finds no answer in original form I.R.IV issued by Central Record Office, Lahore which is on page 17 of File-A sent to this Court by Rehabilitation Authorities at Thatta. This form I.R.IV bearing No,677/7987 issued, on 28-2-1958 shows that 27.9 Acres was the area claimed/verified in favour of Nazar Ali Beg. Moreover, we have the statement of the petitioner contained in para. 2 of the petition of the petitioner that his claim was verified in 1956 and he was issued entitlement certificate No,677/7987, dated 28-2-1958, and this position is admitted even by respondent No,1 in his counter-affidavit, dated 21-8-1976, in para.4. Therefore, the objection that more land was allotted to petitioner than his entitlement under I.R.IV is really of a technical nature and not substantial and is the result of omission by the Settlement Commissioner of the fact of entitlement of 27.9 Acres of the petitioner shown in original Form I.R.IV. 12. Most glaring mistake has been committed by Settlement Commis sioner in reaching the conclusion that Q.P.R.V. and Perchi Taqseem Khatauni for allotment of S.No,99 to the petitioner under Settlement Rural Scheme was not available and further that there was no allotment shown in R.L.II Register. I have myself seen, in the presence of the two learned counsels, that R.L.II Register, sent to this Court in original by Thatta authorities at page 6 does contain the entries of allotment of S.No,99, measuring 23.18 Acres in Deli Kotoraro District Thatta in the name of Nazar Ali Beg and in one column Q.P.R.V. Case No,65 is also mentioned. In fact the measurement of plot is mentioned at 4 places on this page and at the end of this page 3 signatures of different persons appear and the central signature appears to be of Mukhtiarkar and it bears, date 6-7-1960. Even a note is contained on this page to the effect that this area was allotted to the claimant under I.R. but has been converted to Q.P.R.V. on 9-1-1960 as per statement of Mirza (illegible) All Beg, attorney of the claimant. This note appears to be initialed by someone. In the presence of this noting and the entries in the original R.L. 11 Register of Thatta, there is no doubt left at all that the land was converted by competent authorities at Thatta under Q.P.R.V. and the relevant entries in the register were made on 6-7-1960. In the face of this register the Settlement Commissioner had absolutely no justification to pass the impugned order which appears to be based on mere suspicions and is against the existing records. I have seen that there are similar signatures on pages 1, 2, 3, 4, 5, 9 and 10 of said R.L.II Register and the entries in favour of other allottees of other land have been made in the same manner and style as made in favour of the petitioner of at page 6 and I have no doubt in my mind that this is an old register which is torn at many places and entries made in favour of the petitioner were genuine. This R.L. II Register, therefore, concludes the whole matter as even the Settlement Commis sioner has described the R.L. II Register as the basic record. Therefore, entries in favour of petitioner having been found in the basic record prepared in 1960, the allotment of the petitioner could not be questioned or disturbed in 1967.
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13. Then again the finding by Settlement Commissioner that there was no record available that Mukhtiarkar, Thatta had issued any Parchil Taqseem Khatauni or allotment for the disputed land under M.L.R. 89 is again belied by the original record in the file No,R-2/R-4 sent by the authorities at Thatta to this Court. It contains an order, dated 18-11-1961 which is signed for Deputy Commissioner, Thatta and the same shows that according to M.R.5/A the petitioner was entitled to retain 15.96 P.I.Units. It mentions the disputed plot as the one allotted to the petitioner against 562 units and the annexure with this letter shows that this land was being retained by the petitioner and not surrendered to the Government as excess area. Then again in the same file there is a Parchi Taqseem Khatauni which bears the signature of Mukhtiarkar and A.R.C. There is a certified true copy of Parchi Taqseem Khatauni which is issued by the A.S.C. Thatta and which bears the signature of A.R.C., Mirpur Sakro which shows that the petitioner had retained the area of 23.18 Acres in Deh Kotoraro. However, more important is the allocation of entitlement order passed by the Deputy Commissioner, Thatta referred to by me above, dated 18-11-1961 which was passed under M.L.R. 89 by Deputy Commissioner, Thatta and the same shows that the petitioner had retained the disputed land with him. In the presence of this allocation order no further allotment by Mukhtiarkar of Thatta was needed as the Mukhtiarkar of Thatta had already noted on 8-3-1960 that the petitioner wanted to obtain the disputed land with himself under quasi-permanent settlement scheme. 14. I may note at this stage that the respondent's counsel had challenged the petitioner to produce Form M.R.V-A. The same was produced by the petitioner's counsel on 27-9-1984 and the original was seen and returned to the petitioner but a photo stat was retained. Same shows that the Central Record Office had issued entitlement certificate to the petitioner for 27.15 Acres equal to 15.96 P.I.Us. while the previous P.I.Us. was mentioned as 18.19 and the difference in the present and previous P.I.Us. was shown as 233 P.I.Us. The same certificate bore a date of 28-9-1961 and it is, therefore, clear that the entitlement certificate issued to the petitioner under M.L.R. 89 could not be challenged. The same appears to have been made basis in the allocation order made by the Deputy Commissioner, Thatta on 16-11-1961. The above referred entitlement certificate in Form M.R.V. is titled as Appendix 'E' and the letter "A" is added against the word "E" and it is stated that this is the Form M.R.V.A. which was referred in the order of the Deputy Commissioner, Thatta. 15. The finding of the Settlement Commissioner that the allotment of the petitioner had been presumed merely because of a reference from Mukhtiarkar, Mirpur Sakro and, therefore, allocation order had been issued by Deputy Commissioner, Thatta because of misrepresentation of facts by petitioner, appears to be completely unfounded and is completely ' belied by the original records. The original records establish beyond doubt that the land in question was first proposed under I.R. IV for allotment to the petitioner and then Khatauni was issued in his favour on 26-1-1959 but it was on the form of quasi-permanent basis under Rural Settlement Scheme and that the petitioner's attorney made a statement before Mukhtiarkar, Thatta on 9-1-1960 desiring that the disputed land may be transferred to him and entered against his Q. P.R. V. No, 24089/886 in Thalia. The Mukhtiarkar, Thalia has appended his signature to this statement which is present in the original file. The original file also contains the letter of 8th March, 1960 by Mukhtiar kar, Thatta to Mirpur Sakro where the Mukhtiarkar, Thatta has shown that the land of the petitioner at Thatta be adjusted in the Q.P.R.V. ' Form of the petitioner. This letter clearly shows that the A.R.C. Thatta has accepted the request of the petitioner that transfer of the property be made to him on quasi-permanent ba,sis and it was thereafter that the petitioner was asked to pay the Rehabilitation fee and he has paid the Rehabilitation fee and these documents are also in the original records. Thereafter, even the R.L II Register shows that the A.R.C. has signed the entries of allotment of the disputed land in the R.L.II Register and has explained the allotment and in the face of all these documents which are
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contained in the original records it is completely incomprehensive as to how the Settlement Commissioner had come to the conclusion that there was no allotment in favour of the petitioner. I find that the Settlement Commissioner has assumed that the allocation order had been passed by the Deputy Commissioner on the basis of misrepresentations and, therefore, there is no challenge to the factum of the allocation order having been passed by the Deputy Commissioner. 16, Since I have found that there were no misrepresentations made by the petitioner and in fact the allotment had been made in favour of the petitioner on quasi-permanent basis, therefore, the allocation order passed by the Deputy Commissioner under M.L.R. 89 had completely validated the order of allotment in favour of the petitioner and this position has been finalized by 1961. Thereafter, no land was available for allotment to any other person in 1967 and hence allotment of the disputed land by Settlement Authorities at Karachi in favour of the respondent No, 1 was absolutely illegal and uncalled for. On this basis even the sale of the land in question by respondent No, 1 to respondents Nos. 3 and 4 made on 15-10-1975 was again void and of no effect as the respondent No,1 had no right or authority to pass any title t. respondents Nos. 3 and 4 because the allotment of respondent No,1 was in itself without any lawful authority. 15-A. Mr. Akhtar Mahmood, counsel for the respondent, has submissions that the very basis of the allotment, namely, the proposal was wrong but I have seen above that the proposal was duly initialed and, therefore, merely the fact that there are certain scorings in the proposal would not make the same as illegal particularly as the most important scorings have been rewritten and initialed. 16-B. Thereafter, Mr. Akhtar Mahmood submitted that the allotment under I.R. IV was not an allotment under a scheme supplementary to Pakistan Rehabilitation Settlement Scheme as defined in para. 2(1)(b) on M.L.R. 89. Mr. Hassan A. Shaikh's answer was that the allotment under I.R.IV had been converted into Q.P.R.V. on 9-1-1960 and that the same was available on page 25 of file "A" of the record of Thatta. This submission appears to be correct as there is record available to show that on 9-1-1960 the allotment had in fact been converted into a quasi-permanent allotment and the same is duly entered in the R.L. 2 register which even according to the petitioner's counsel is the most important document in respect of the allotments and even the respondent Settlement Commissioner has treated the R.L.2 register as most important document. In fact the petitioner was directed to pay Rs,10 per hundred P.1. Units for Survey No,99 on 29-4-1960 by the Mukhtiarkar, Thatta, where it was clearly stated that the petitioner had been allotted 23.18 acres of land equal to 582 P.1. Units in satisfaction of his claim. It is, therefore, apparent that the allotment in favour of the petitioner had not remained merely under Scheme I.R. IV, but had been converted into Q.P.R.V. I also find that on 16-5-1960 the petitioner deposited a sum of Rs,56, 4 annas in the sub-treasury at Thatta as Rehabilitation fee for 562 P.I. units. It is therefore apparent that the petitioner duly paid the Rehabilitation fee. 17. In rule 7 of Displaced Persons (Land Settlement) Rules, 1959, it is provided that a displaced person to whom any land has been allotted under a scheme shall, subject to the proviso to subsection (3) of section 15, be deemed to have been permanently settled on the land so allotted to him w.e.f, 24-12-1961, or the date of final confirmation of the allotment whichever is later. Provided (a) that the allottee has paid settlement fee as required by rule 10(b) (is not relevant as it relates to mortgage) (c) the permanent settlement shall be made only to the extent of the rights or interest abandoned by the evacuee and the right or interest of the non-evacuee in the land shall not be affected. Therefore, under this rule the petitioner was entitled to be permanently settled on the land as his allotment under I.R.IV had been converted into Q.P.R-V and thereafter he was directed to pay the settlement fee and he did actually pay the settlement fee and thereafter his allotment became permanent.
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18. There is a provision for permanent settlement of claimants who are allotted land in accordance with the schemes prepared under section 14 of D.P. (LS) Act of 1958, and the allotment is on the basis of the entitlement as determined under the said Act. Under subsection (3) of section 15 a displaced person to whom any land has been allotted by a rehabilitation authority, before the commencement of the said act under a scheme as defined in clause (vii) of section 2 or by a settlement authority under subsection (1), shall be settled permanently on that land in such a manner and on payment of such fee as may be prescribed by the Central Government. There is however a proviso to section 15 that no order of permanent settlement shall be passed in cases where (a) (not relevant) (b) (not relevant) (c) the land has been allotted provisionally on the basis of inconclusive data. Therefore, even according to the section 15…
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