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Petitioner: ALLAH DIA AND ANOTHER VS Respondent: REHABILITATION COMMISSIONER (LANDS) WEST PAKISTAN AND OTHERS
P L D 1959 (W
P L D 1959 (W. P.) Lahore 130
Before A. R. Changez, J
ALLAH DIA and another---Petitioners
versus
REHABILITATION COMMISSIONER (LANDS) WEST PAKISTAN and others‑----Respondents
Writ Petition No. 486 of 1957, decided on 27th November, 1958.
Rehabilitation Resettlement Scheme, (Punjab Part I) [prescri bed by Rehabilitation Commissioner (Lands) under section "7 (1) of the Pakistan Rehabilitation Ordinance, (XIX of 1948), as amended by the Pakistan (Economic Rehabilitation) (Amendment) Ordinance XVI of 1949], Para. 4 (c) & Instruction No. 60 (6) of the Instructions for the Deputy Rehabilitation Commissioner issued by the Rehabilitation Commissioner (Lands)‑Instruction neither punitive in character nor in conflict with para. 4 (c) of the Scheme‑Instruction fully effective only when exact area to which claimant is entitled not determinable.
Instruction No. 60 (6) of the Instructions for the Deputy Rehabilitation Commissioners (Lands) issued by the Rehabilitation Commissioner (Lands) under para. 23 of the Rehabilitation Resettlement Scheme, is intended. to cover only those cases in which, after a forgery has been detected in the revenue record relating to the estate of a particular claimant, it is not possible for the Rehabilitation Department to ascertain, without further inquiry, the exact area to which he‑is entitled, and it is only in those cases that a cancellation of the entire allotment is provided for by the instruction and that too till the revenue records in the Central Record Room are consulted and, the exact area of the claimant's entitlement is determined. The instruction is not, therefore, punitive in character and is not opposed to par‑a. 4 (c) of the Scheme, but is issued only with a view to giving an opportunity to the Rehabilitation Department to revise excess allotments. Therefore, where the excess area has been determin ed, the Rehabilitation Authorities cannot legally cancel the entire allotment.
Abdul Haq and others v. Rehabilitation Authority, Writ Petition No. 399 of 1956 (unpublished) rel.
Muhammad Sadiq for Petitioners.
Ijaz Hussain for Respondent (1).
Maqbul Ahmad for Ijaz Hussain, on 24‑11‑58.
M. A. Rahman, for 1jaz Hussain, on 27‑11‑58.
Dates of hearing : 3‑11‑58, 24‑11‑58 and 27‑11‑58.
JUDGMENT
The relevant facts giving rise to this writ petition are these: The two petitioners, who are sons of Muhammad Khan, are refugees from village Tawro, Tehsil Nooh, District Gurgaon. They settled in Chak Nos. 13/1‑L, Tehsil Okara, District Montgomery, and go t their claim of 221 bighas of land registered there. They filed a claim form No. 7699 in respect of the land left by their father in village Tawro. This claim form was sent to the Central Record Room for verification and in the first instance an area of 114 bighas 5 bigwas of land was verified and on re‑verification an area of 128 bighas of land was verified in the name of Muhammad Khan in respect of this claim form. In the meantime 221 acres of land were confirmed in the name of the petitioners and another 10 acres of land were proposed in their favour. Out of the surplus land from their temporary allotment some land was allotted to Rao Zia‑ud‑Din and Muhammad Umar. The petitioners appealed against the orders of the Assistant Rehabilitation Commissioner and their appeals were accepted by the D. R. C. Muhammad Umar then filed a revision petition before the Additional Rehabilitation Commis sioner and maintained that the petitioners were entitled to an area of land only to the extent of 517 units and that, the excess area had been wrongly verified. By his order dated the 10th of December 1956 the Additional Rehabilitation Commissioner passed the following order :‑
" The respondents assert that their claim form was sent to the Central Record Room with the certificate and the area claimed by them has been rightly verified. The petitioner will be entitled to the area in dispute subject to the verification of the claim of the respondents. The onus, however, lies on the petitioner. The order of the lower Court is modified to this extent."
Thereafter, it appears that Muhammad Umar applied to the Officer on Special Duty (respondent No. 3) for checking the verification made in the name of Muhammad Khan. The Officer on Special Duty found that the verification of 128 bighas of land had been wrongly made and suspecting some foul play he made a report to the police on the 19th of February 1957 for taking necessary action in the matter. He forwarded a copy of this report to the D. R. C. (Lands), Montgomery, with the request that the area allotted to or reserved on claim form No. 7699 may be cancelled.
2. On learning about it, the petitioners filed this petition on the 7th of May 1957 praying for the issue of a writ in the nature of mandamus to the respondents directing them not to cancel the entire allotment made in their‑ favour. When this petition came up for hearing for the first time, respondent No. 3 was called upon to submit a report. His report which he sub mitted on the 16th of May 1957 shows that Muhammad Khan was entitled only to 41 bighas of land including ownership, occupancy rights and shamilat. With his second report which he sent m continuation of his first report, he forwarded a copy of the complaint made to the police which also contains the endorse ment to the D. R. C which has been referred to above. It appears from the copy of the relevant R‑L/II Register (Annexure `G') that on the receipt of the aforesaid report from the Central Record Office the Assistant Rehabilitation Commissioner, by his order dated the 15th of May 1957, allowed to remain with the petitioners only 5 bighas and 9 biswas of land and cancelled the allotment in respect of the surplus area. This he did apparently on the basis of the report to the police in which it was stated that the petitioners were entitled to 5 bighas 9 biswas of land by way of ownership. Their entitlement in respect of shamilat and maurusiat was not mentioned at all in this report.
3. On the 3rd of November 1958 when the case came up for hearing before me, Mr. Sultan Muhammad, Officer on Special Duty, stated before me that on checking the jamabandis it was found that the petitioners were entitled to 38 bighas 16 biswas of land as follows :
Bighas Blswas Malkiat 5 = 9 Shamilat 19 = 12 Maurusiat 13 = 15
Total 38 = 16
4. Learned counsel for the petitioners has urged that their allotment could not have been cancelled in respect of the area which is due to them. He has also argued that the Rehabilitation authorities could not have legally cancelled the entire allotment.
5. Para 4 (c) of the Rehabilitation Resettlement Scheme, (Punjab, Part I) prescribed by the Rehabilitation Commissioner (lands) under section 7 (1) of tile Pakistan Rehabilitation Ordinance XIX of 1948, as amended by the Pakistan (Economic Rehabilitation) (Amendment) Ordinance XVI of 1949, is as follows :‑
" If an allottee is, at any subsequent time, found to have been allotted land in excess of what may actually be due to him, the allotment of the excess area shall be cancelled and, if necessary, he will be dispossessed thereof."
6. It is quite clear that by the terms of this para the Rehabilitation authorities are empowered only to cancel the allotment of the excess area and not tree entire allotment. It is, however, true that instruction No. 60 (6) of the Instructions for the Deputy Rehabilitation Commissioners (Lands) issued by the Rehabilitation Commissioner (Lands) under para. 23 of the Scheme, lends support to the contention of the respondents that the entire allotment could have been cancelled, but after a careful consideration of the provisions of para. 4 (c) of the scheme and this instruction, I am inclined to hold that this instruction can have its full effect only when it is impossible to determine the exact area to which a particular claimant is entitled, and not otherwise. If the instruction really means what it says, then it has obviously travelled beyond the scope of para 4 (c) of the scheme and consequently it must be held to be void and ultra vires to the extent of its repugnancy to para 4 (c) of the scheme. Instruction No. 60 (6) is as follows :
" In cases where forgeries in revenue records of fard‑i‑haqiat are detected, the allotments of the persons concerned should be cancelled forthwith. Further allotments in such cases should not be made until they have been finally decided and previous orders of the Rehabilitation Commissioner (Lands) expressly obtained."
7. The legal implications of this instruction were duly con sidered in an unpublished judgment of a Division Bench of this Court in Abdul Haq and others v. Rehabilitation Authority (Writ Petition No, 399 of 1956) which was decided on the 4th of December 1956. The learned Judges constituting the Bench while dealing with this aspect of the question observed as follows:‑
" After a careful study of the scheme as also of the relevant instruction under review, we are inclined to think that the instruction has been issued for a wholly different purpose and neither supports the contention of the learned counsel for the Government nor is in conflict with para 4 (c) of the scheme. The instruction is intended to cover only those cases in which, after a forgery has been detected in the revenue record relating to the estate of a particular claimant, it is not possible for the rehabilitation Department to ascertain, without further inquiry, the exact area to which he is entitled, and it is only in those cases that a cancellation of the entire allotment is provided for by the instruction, and that too till the revenue records in the Central Record Room are consulted and the exact area of the claimant's entitlement is determined. The instruction is not, therefore, punitive in character and is not opposed to para 4 (c) of the scheme; but is issued only with a view to giving an opportunity to the Rehabilitation Depart ment to revise excess allotments. Therefore, according to the view which we take of instruction No. 60 (6), no punishment is contemplated by it, and the cancellation of the entire allotment of the petitioner now alleged to have taken place under that instruction was directly opposed to the provisions of para 4 (c) of the scheme."
I am in respectful agreement with these observations. The con clusion is, therefore, inescapable that this instruction is not really punitive in character.
8. In the light of what has been stated above, I find that the excess area has been determined in the present case and, therefore, the Rehabilitation authorities could not have legally cancelled the entire allotment. Learned counsel for the respondents has nothing to urge against this proposition. Besides, it is too early to hold that the petitioners are really to blame for the wrong verification. It may be that one or the other or both of them had no hand in the matter. The case is still under investigation and it will be premature to make any guess about it at this stage. If after investigation they are sent up for trial and con victed, they will be punished in due course in accordance with law.
9. For the aforesaid reasons, I am of the opinion that the respondents are clearly shown to have acted in excess of the power which law has vested in them. I, therefore, regard it a fit case for the issue of a writ of mandamus. I accordingly direct the respondents not to cancel the entire allotment, but if in the meantime the entire allotment has been cancelled, they should restore the allotment of that area to the petitioners to which they are entitled according to the jamabandis in the Central Record Room. In the circumstances of the case, however, there will be no order as to costs.
10. I have also heard Mr. Fateh Muhammad Anwari, Advocate, on behalf of Muhammad Umar who has filed Civil Miscellaneous No. 1488 of 1957. He may be impleaded as a respondent. Learned counsel for Muhammad Umar has nothing substantial to say in opposition to the writ petition. He has, however, prayed that Muhammad Umar should not be deprived of the land allotted to him. In my opinion the position of Muhammad Umar is exactly the same as was held by the Additional Rehabilitation Commissioner (Lands) in his order dated the 10th of December 1956 referred to above. He will, of course, be entitled to retain possession of the area of land which is left over after satisfying the just claim of the petitioners.
K. B. A. Writ issued.