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Petitioner: NIZAM DIN And ANOTHER VS Respondent: DEPUTY SETTLEMENT COMMISSIONER (LAND), JUDGMENT
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title:NIZAM DIN And ANOTHER vs DEPUTY SETTLEMENT COMMISSIONER (LAND),
JUDGMENT
Reported As: 1990 CLC 1250 Result: Order accordingly Judgment JUDGMENT As common questions of law and facts are involved, by this judgment, I propose to dispose of Constitutional Petitions Nos.1127-R/77, 1225-R/77, 1235--8/77, 1216-R/77. 1232-R/77, 1704-R/77, 1143- R/77, 1268-R/77 1149-R/77, 1234-R/77, 1364-R/77, 1362-R/77, 1329-R/77, 1528-R/77, 1236-R/77, 1150- -1/77, 1233-R/77, 1344-R/77 and 1576-R/77 together. 2. These cases have unfortunate history drawn over a period of quarter of a century. In or about 1952, in certain Chaks of Tahsil Pakpattan, District Sahiwal/Tahsil Vehari, District Multan allotments under Rehabilitation and Settlement Scheme were made to claimants holding claims for agricultural land abandoned in India. While making these allotments, provisions of the scheme were not strictly adhered to. Mr. I.U. Khan, the then Rehabilitation Commissioner by an omnibus order dated 23-11-1956, cancelled these allotments and directed to make the allotments afresh keeping in view the guidelines suggested by him in his order. Since then the parties are faced with one or the other type of litigation. The matters now before me relate to Chak No.180/E.B., Tahsil and District Vehari. 3. At the outset, therefore, I may survey the past litigation relevant to the disposal of the petitions before me. As noticed above, allotments made in the first round were set aside by Mr. I.U. Khan by his order dated 23-11-1956. He indicated following guidelines for making fresh allotments:-- (i)Persons eligible for allotments will be those-- (a)who were temporary allottees of either evacuee or crown land and had given their claim forms for this very estate and whose claims had been received back after verification by or were pending
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verfication on 30-12-1951. (b)Who were temporary allottees of either evacuee or crown land and had registered their claim forms for different estates but had got the same transferred to this estate on or before the date specified above. Note: For the purpose of determining the status of any particular claimant as a temporary allottee, a reference should be made to the copy of the fard taqsim kept at the Tahsil Office and not with the Patwari. (c)Who were Government servants or such other non-allottees of the estate who had been permitted to be treated as allottees in accordance with the paragraph 7, Part II of the Rehabilitation Settlement Scheme and had put in claim forms for this very estate and whose claim forms were pending satisfaction on the said date. (d)Government servants and other classes of claimants mentioned in item (c) above, who had given claim forms for different estates but had got them transferred to the said estate on or before the said date. (e)Widows and orphans, whose near relatives or guardians held allotments in this estate. (f)Claimants who had had been ordered to be treated as allottees for this estate under a specific order of the Rehabilitation Commissioner. (ii)The verified claims of the claimants detailed in item (i) above will be satisfied in full, subject to the availability of land. In case of the claimants whose claims or objections were pending for verification or reverification on the date specified above, 75% of the area claimed or mentioned in the objection petition should be reserved provided that if the claim or objection petition has since been disposed of and the actual verified area is less than the area reserved, the reservation should be considered to have been made to the extent of the area actually verified. If enough land is not available a rateable distribution should be made in accordance with paragraph 11, Part II, of the Rehabilitation Settlement Scheme. (i.e)The normal rule of permitting the temporary allottees to adjust the areas temporarily allotted to them under the Rehabilitation Settlement Scheme on the basis of verified claims would be observed. (iv)Where a person whose claim had been satisfied and who is also now entitled to secure an allotment in this village has to part with any area as a result of the present revision, the excess area should be taken from him according to his choice but in such a manner that the area left remains in a compact block. (v)Where a claimant is found entitled under these orders to an area more than held by him in temporary allotment he may be given the excess areas contiguous to his temporary allotment if available. (vi)In calculating the entitlement of the claimants concerned regard should not be paid to the increase in produce indicies 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. (vii) In the estates where the area available is more than the requirements of the categories of claimants detailed in item (1) above, the surplus may be utilised for allotment in the following order of priority:-- (a)non-allottees of this estate and allottees of the other estates in the Nili Bar Colony who had got their claim forms registered in or transferred to this estate before the specified date. If necessary rateable distribution to be made of the surplus area in accordance with the principles enunciated in paragraph 11, Part II, of the Rehabilitation Settlement Scheme. (b)the sitting allottees who had got their claim forms transferred from other estates upto 1st June, 1956, and whose allotments have since been finalised, and thereafter,
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(c)the non-allottees claimants who had originally registered their claim forms for this estate, and if registered elsewhere, had got the same transferred to the estate before the relevant date in accordance with the principles enunciated in the Rehabilitation Settlement Scheme. Rateable distribution of the available area may, if necessary, be made in the cases of this class of claimants also." 4. None from Chak No.180/E.B. Questioned the vires of the order. However, one Abdul Ghafoor claimant from some other Chak challenged the order of Mr. I.U. Khan through a Constitutional petition in this Court. Writ Petition was accepted on 15-11-1957 and the order of Mr. I.U. Khan set aside. This judgment is reported as Abdul Ghafoor and 30 others v. The Rehabilitation Commissioner, West Pakistan, Lahore PLD 1958 (W.P.) Lab. 48. Some claimants from Chak No.149/E.B. Of Pakpattan Tahsil successfully challenged the order of this Court dated 15-11-1957 before the Supreme Court. The order of this Court was resultantly set aside on 7-6-1962. The case is reported as Abdul Hafeez v. Rehabilitation Commissioner West Pakistan and 4 others PLD 1966 SC 483. The order of Mr. I.U. Khan was, therefore, generally upheld. 5. After the decision of this Court in the case of Abdul Ghafoor, one Fattoo resident of Chak No.180/E.B. Also filed a writ petition (W.P. No.605-R/1958) assailing the vires of the order of Mr. I.U. Khan dated 23-11-1956. Except the Rehabilitation Authority, only one Allah Bakhsh was impleaded as respondent in this writ petition. Following the judgment in the case of Abdul Ghafoor, this writ petition was also accepted by order of this Court dated 29-1-1960 and the order of Mr. I.U. Khan dated 23-11-1956 in regard to Chak No.180/EB set aside. Allah Bakhsh respondent in the case filed a review application (Civil Review No.15/1960) pointing out that leave to appeal by the Supreme Court had been granted against the judgment of this Court in Abdul Ghafoor's case. Review petition was kept pending. Supreme Court, as noticed above, set aside the judgment of this Court in Abdul Ghafoor's case on 7-6-1962. Review application was then taken up in the light of the decision of the Supreme Court. This was, however, dismissed on 10-7-1962. Respondent Allah Bakhsh filed petition for leave to appeal against this order of the High Court but leave was refused by order of the Supreme Court dated 17-10-1962 (C.P.S.L.A. No.149/1962). 6. The matter for making fresh allotments in this Chak was then taken up. It appears that in certain cases fresh allotments were made keeping in view the principles laid down in Mr. I.U. Khan's order dated 23-11-1956 and in some other cases this order was ignored and the original allotments restored as the order of Mr. I.U. Khan had, in the meantime, been set aside by order of this Court dated 29-1-1960. The contention inter alia that the Supreme Court having laid down the law generally upholding the order of Mr. I.U. Khan should be followed except in the case of persons who were party in Writ Petition No.605--R/1958, remained a moot point. 7. Four Writ Petitions (W.P. Nos.2549-R/62, 2409-R/63, 2457-R/63 and 1393-R/64) were then brought before this Court. These petitions were dismissed by a learned Judge of this Court (Muhammad Akram, J, as his Lordship then was) on 3-3-1970 mainly on the ground that the petitions did not disclose full particulars. It was observed:- "Needless to emphasise that it is the bounden duty of the subordinate Rehabilitation Settlement Authorities to apply the law pronounced in the different judgments of the superior Courts to the facts of each case before them, and in the exercise of my jurisdiction in these proceedings I am not called upon to interpret the law, for their benefit in the absence of the full facts of this case before me." Some claimants, thereafter, presented a joint application before the Deputy Settlement Commissioner Vehari requesting him to make fresh allotments in implementation of the order of Mr. I.U. Khan dated 23-11-1956 which was dismissed on 31-7-1971. The view taken was that the order of Mr. I.U. Khan dated 23-11-1956 having been set aside by this Court on 29-1-1960 and leave to appeal against this order having been refused, the order of Mr. I.U. Khan could not be implemented
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as regards Chak No.180/E.B. Appeal against the order dated 31-7-1971 was, however, allowed by the Additional Settlement Commissioner, Multan, by his order dated 20-3-1972. This officer took the view that the order of this Court dated 29-1-1960 in Writ Petition No.605-R/58 would affect only the parties to the writ petition and as regards the rest of the cases, the order of Mr. I.U. Khan dated 23- 11-1956 as having been generally upheld by the Supreme Court would be given effect to. Further revision was taken against the order of the Additional Settlement Commissioner. Settlement Commissioner by his order dated 28-4-1972 set aside the appellate order again taking the view that the order of Mr. I.U. Khan dated 23-11-1956 having been set aside by this Court on 29-1--1960 could not be given effect to in any of the cases relating to Chak No.180/E.B. 8. Two writ petitions (280-R/72 and 298-R/72) were then filed in this Court. The view taken by the Settlement Commissioner in his order dated 28-4--1972 was questioned. These petitions were disposed of by order of this Court dated 12-10-1976. The ultimate view taken was that the order of this Court dated 29-1-60 would affect only the parties to Writ Petition No 605-R/58 and in the rest of the cases, the Settlement Authorities are bound to give effect to the order of Mr. I.U. Khan dated 23- 11-1956. Respondents in these petitions filed petition for special leave to appeal (1037/76) against the order of this Court dated 12-10--1976. Leave was refused on 31-3-1977. Even review application (Review No.25--R/77) was dismissed on 29-10-1977. Net result of this litigation is that order of Mr. I.U. Khan dated 23-11-1956 was to be given effect to in all the cases affected by it, except in the cases of the parties in writ Petition No.605-R/58. As noticed above, only Allah Bakhsh had been impleaded as respondent in that writ petition. 9. It was in August, 1977 that the Deputy Settlement Commissioner (L) ultimately proceeded to make fresh allotments in the light of the order of Mr. I.U. Khan dated 23-11-1956. He has generally passed two types of orders. Firstly, where the order of Mr. I.U. Khan had already been implemented in 1958, he has only reiterated the facts and has not taken any fresh decision, and secondly, passed orders making fresh allotments to sitting allottees in the light of the order of Mr. I.U. Khan. Both these sets of orders have been questioned in these petitions. I propose to dispose of these matters separately keeping the following broad principles in views:- (i)the order of Mr. I.U. Khan is to be given effect to in all these cases except in the case of the parties in Writ Petition No.605-R/58, (ii)cases in which the order of Mr. I.U. Khan was implemented in 1958, rightly or wrongly, I do not intend to upset this allotment as the petition with effect from that date suffers from laches and also because an individual aggrieved of this order had an alternate remedy, and (i.e)I propose to correct only the fresh orders which, in any manner violate the guidelines indicated in the order of Mr. I.U. Khan dated 23-11-1956. This, too, only in the cases where I find that the petitioner has locus standi to assail such orders. WRIT PETITION NO. 1127-R/1977: 10. This petition has been filed by Nizam Din son of Din Muhammad and Mst. Bakhshi widow of Din Muhammad. Both were petitioners in Writ Petition No. 605-R/58, the former at serial No.Ll and the latter at serial No.9. The petitioners are, therefore, entitled if the circumstances otherwise warrant, to the benefit of the order of this Court dated 29-1-1960 in Writ Petition No.605-R/58. 11. In 1951, some area was confirmed to them at khatas Nos.Ll and 49 of the Register R.L.II. This was cancelled under orders of Mr. I.U. Khan dated 23-11--1956. Proposal for fresh allotment was made in their favour on 25-9-1958. Final confirmation of this proposal was accorded on 21-11-1958. I have compared the two allotments. They have been deprived of some area as was confirmed to them in the year 1951. The area taken away from the petitioners was in the meantime, allotted to other persons including Ghulam Haider respondent No.2. They are neither party before me nor were they party in Writ Petition No. 605-R/58. Ghulam Haider has been allotted only killa No.11 which was confirmed to him on 21-11-1958. The petitioners did not implead Ghulam Haider as party in Writ
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Petition 605-R/58. No relief, therefore, can be granted to the petitioner. When confronted with this, it was argued that Ghulam Haider had no pending claim. This point has not been taken up in the writ petition. Even otherwise I find that this point was mooted separately in the mukhbari application filed by Nizam Din which was dismissed on 15-9-1977. This petition, therefore, has no merit and is dismissed accordingly. There will be no order as to costs. WRIT PETITION NO. 1225-R/1977: 13. This petition has been filed by the successors of Khuda Bakhsh. Khuda Bakhsh was a party to Writ Petition No. 605-R/58. Petitioners, therefore, if the facts so warrant, are entitled to the benefit of the order of this Court dated 29-1--1960 in Writ Petition No.605-R/58. Some land was confirmed to him in the year 1951. This allotment stood automatically cancelled under orders of Mr. I.U. Khan dated 23-11-1956. Fresh allotments were made to them in the year, 1958. They were deprived of some area, i.e., killas Nos.6 and 7 of Square No.1 and entire allotment of Square No.19. Part of the land taken away from the allotment of Khuda Bakhsh was confirmed to the contesting respondents in this case. A preliminary proposal in their favor was made on 25-9-1958 and final conirmation accorded on 21-11-1958. This was even before the stay in Writ Petition No-605--R/58 issued on 19-i1- 1958. The contesting respondents were not made party to Writ Petition 605-R/58. The petitioners, therefore, cannot be permitted to question the allotment made to the contesting respondents in the year, 1958. No relief, therefore, can be granted to the petitioners. The petition is, therefore, accordingly dismissed. There will be no order as to costs. WRIT PETITION NO. 1235-8/1977: 14. This petition has been filed by Suleman son of Nizan Din and Rahmat Bibi grand-daughter of Nizam Din. There was some confusion in the nomenclature of this writ petition but instead of dismissing this petition on this technality, I by my detailed order in Writ Petition 1232-R/77 corrected the record and decided to dispose of the matter on merits. One of the petitioners, i.e., Suleman was party to Writ Petition No.605-R/58. Allotment was, however, made at a joint khata as Rahmat Bibi had inherited rights from her mother Alam Bibi. Petitioners were made allotment in 1951. Order of Mr. I.U. Khan had not been implemented in their case. However, as all allotments under order of Mr. I.U. Khan stood cancelled, steps were taken to implement that order in other cases. Some area out of 1951 allotment of the petitioners was confirmed to the contesting respondents. Proposal was made to the contesting respondents in the case in 1958. They were not impleaded as respondents in W.P. 605-R/58. Allotment made to the contesting respondents in 1958 was not otherwise challenged till today. The petitioners, therefore, cannot be permitted to assail that allotment at this stage. This petition too, therefore, has no merit and is dismissed. There will be no order as to costs. WRIT PETITION No.1216-8,/1977: 15. This petition has been filed by successors of Qadir who are petitioners No.1 to 4 and Fazla who is petitioner No.5. Both Qadir and Fazla were petitioners in Writ Petition No.605-R/58. They were confirmed some land in 1951. However, under order of Mr. I.U. Khan, almost the whole of this land was confirmed to the contesting respondnets. Proposals to the respondents were made even before the issuance of stay order in favour of the petitioners in Writ Petition 605-R/58. None of the contesting respondents, however, were made party to that writ petition. The order of allotment in favour of the respondents was not even otherwise challenged. Allotments made to the respondents in the year, 1958 cannot be set aside at this stage. This petition is, therefore, dismissed with no order at to costs. 16. Before parting with this case, I may, however, observe that if the petitioners are otherwise entitled to get allotment under orders of Mr.I.U. Khan and some area is available in the estate, steps may be taken to allot them some land out of the available area. WRIT PETITION No.1232-Rte:
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17. This petition has been filed by successors of Hayat Muhammad. Only one of the petitioners Mst. Saban was a party to Writ Petition 605-R/58. No benefit of the order of this Court dated 29-1-1960 can, therefore, accrue to the remaining petitioners. Petitioners were made certain allotments in the year 1951. After the order of Mr. I.U. Khan, some portion of the area out of 1951 allotment was confirmed to the contesting respondents who were not party to Writ Petition 605-R/58. For the reasons as have been noticed in the preceding writ petition, this petition has no merit and is dismissed. There will be no order as to costs. WRIT PETITION No.1074-8,/77: 18. Petitioners in this case claim to be temporary allottees of Chak No.180/E.B. Their case is that they had filed their claim forms for this Chak. They were not party to Writ Petition No.605-R/58. In their case undoubtedly, therefore, the order of Mr. I.U. Khan dated 23-11-1956 is to be implemented. They were made certain allotments in the year, 1952 at Khatas Nos.147, 148, 149 and 150 of the Register R.L.II. While implementing the order of Mr. I.U. Khan, they had been denied any allotment for the main reason that they had filed their claim forms elsewhere and got them transferred to this Chak after 30-12-1952. This finding of the Deputy Settlement Commissioner has been questioned in this Constitutional petition. 19. It was argued that the petitioners had originally filed their claim forms for Chak No.180/E.B. And the question of their transfer to this Chak after 30-12--1952 does not arise. I sent for Mr. 2ahir Khan Naib-Tahsildar, Central Record Office with the original record. He has shown me the original record from which it has been established that the claim forms filed by the petitioners were for Chak No.180/E.B. And they were verified for the same Chak. The fact is also established from the original receipts, copies of which have been filed as Annex. E/1-4. The contention is further supported by copies of the Fard Haqiat, photo copies of which have been filed as Annexs F/1 to F/4. These documents bear the stamp showing that the claim forms were verified for Chak No.180/E.B. Petitioners have also filed copies of Fard Taqseem (Annexes. A to D) to show that they are the sitting allottees of Chak No.180/E.B. In the circumstances, the finding of the Deputy Settlement Commissioner in impugned order dated 18-7--1977 (Annexs J/1 to J/4) that the petitioners got their claim forms transferred after 30-12-1952 cannot be sustained. The orders are, therefore declared to have been passed without lawful authority and of no legal effect. I direct that the petitioners be made allotments against their verified claims keeping in view the other principles indicated in the order of Mr. LU. Khan. This petition, therefore, succeeds. There will be no order as to costs. WRIT PETITIONS Nos.1143-R,/77 and 1268-R,/77: 20. Petitioners in this case are heirs of Rahma son of Noora. They were a party in Writ Petition 605- R/58. No land had been confirmed to them in the, first round of litigation in the year, 1951. Land allegedly held by them under the temporary allotment was proposed to respondent No.2 on 25-9- 1958 and finally confirmed on 21-11-1958. Petitioners did not challenge this order by way of appeal or revision in any higher forum till today. When the Deputy Settlement Commissioner presently took up the matter to give effect to the order of Mr. I.U. Khan dated 23-11-1956 at the Khata of Jhanda respondent, he passed the following order:- 21. Making this order as point of start, petitioners claim that their temporary allotment be restored to them. Order dated 18-8-1977 is in no way a fresh order of allotment. The petitioners not having challenged the order of confirmation dated 21-11-1958, cannot be allowed to assail the same now in the year 1978. When confronted with this, learned counsel for the petitioners contended that Mst. Azizan petitioner No.7 moved an application dated 29-4-1977 praying for some allotment to be made to her against her pending claim. The Deputy Settlement Commissioner ordered that the same be put up before him during his tour to this estate. The matter has not been disposed of by respondent No.1. Respondent No.1 can look into this aspect of the case. If without disturbing the allotment of respondent No.2, petitioners can be accommodated in some available area giving
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due regards to the instructions of Mr. I.U. Khan's order dated. 23-11-1956, he should make them allotment against their pending claims, if any. In this regard, I may also notice the contentions of the contesting respondents. It was argued that the petitioners had no units pending in this estate. The units of Mst. Azizan or of her mother were pending in Chak No.170/W.B. They were transferred to this Chak after the due date. The Deputy Settlement Commissioner while disposing of the petitioners' application in the light of the observations made above will give due regards to these objections. Needless to say, the allotment to the petitioners can be made only if their case falls within the principles laid down by Mr. I.U. Khan in his order dated 23-11-1950. 22. With these observations, the petitions otherwise have no merit and are, therefore, dismissed accordingly. There will be no order as to costs. WRIT PETITION No.1149-R/77: 23. This petition has been filed by Mst. Dani widow of Hayat Muhammad and Fazla son of Alain. Mst. Dani was petitioner No.14 and Fazla Petitioner No.5 in Writ Petition No.605-R/58. They are, therefore, entitled to the benefit of this Court's, if the circumstances so warrant, order dated 29-1-1960. 24. The contesting respondents have raised certain preliminary objections. It is argued that Fazla petitioner having died during the pendency of the writ petition, the writ petition cannot proceed in the absence of his legal heirs. Similarly, respondent Badra died in the year, 1951. Writ petition has been t instituted against a dead man and, therefore, liable to dismissal on this short ground. 25. Learned counsel for the petitioners took up the position that application for bringing on record the legal heirs of the deceased parties had already been moved. No such application could be traced on the file. However, after I had concluded the hearing, C.M. No.6264/78 was put up before me. I rejected this application in so far as…
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