M. S. H. QURESHI, J. -This appeal, by special leave, brought by the legal representatives of Mst.
Zainab Bibi and her husband Noor Din, is directed against the judgment dated 8-6-1966 of a Division Bench of the Lahore High Court allowing L. P. A. No. 54 of 195) of respondents Basbir Ahmed and Shakoor Ahmad and restoring the order o1 the Assistant Rehabili--tation Commissioner dated 27-3-1955 confirming the allotment of the land in dispute in their (respondents) favour.
2. The disputed land comprises Khasra Nos. 201J2/2 and 1632/116-117- 118 measuring 5 kanals, 17 marlas and 15 kanals, 3 marlas respectively and situate in village Kotli Bahram, District Sialkot. This land had been reserved on 12-3-1954 in favour of Mst. Zainab Bibi pending final order in respect of her Claim Form No. 18788 filed for some land purchased by her in India in 1947 by a registered deed from one Faqiriya, which purchase had not been given effect to there until the time of the Partition.
In this connection, she had made an application on 25-1-19.4 for acceptance of her claim on the basis of the registered deed. The application was allowed on 27-1-1954 and an area of 6 kanals, 8 marlas was veriaed against that claim. As the area under the registered deed bad earlier become verified against claim form No. 7928 of the said Faqiriya, his claim form was recalled and the area was cancelled from the same. Meanwhile, under a direction from the Central Record Office dated 25-2-1954, the disputed land was reserved in her favour as aforesaid. Mst. Zainab Bibi having died, the land was later proposed in the name of her husband Noor Din on 17.11-1954.
3. Notwithstanding the reservation made in favour of Mst. Zainab Bibi on 12-3-1954, the disputed land was proposed in the name of the respondents Bashir Ahmad and Shakoor Ahmad on 4-8- 1954 against their surplus units transferred to the village on 5-1-1953. Why were sitting all others, as a garden had already been confirmed in their name in the same village, Noor Din objected to the proposal but the disputed land was confirmed in their name on 27-3-1955 and in consequence the proposal concerning the disputed land made in favour of Noor Din was cancelled on 11-3---1956. In his appeal, Noor Din raised a number of points but the Deputy Rehabilitation Commis--sioner-by order dated 2-4-1956 allowed the appeal mainly on the consideration of his being a small land holder and on the principle of consolidation of holdings. The respondents agitated the matter before the Rehabilitation Commissioner but failing in revision on 25-7-1956 and review on 27-1- 1959, filed Writ Petition.120-R of 1959which too was dismissed in liming on 25-3-1959 for the brief reason that there was "no ground for interference. They, thereupon, moved the Letters Patent Appeal. The learned Judges came to the view that it had not been proved on the record that Mst.
Zainab Bibi and Noor Din had obtained any permission for the transfer of their Claim Forms Nos.
18788 and 20313 from village Pucca Gara, that the reservation made in their favour on 12-3-1954 was in clear disregard of the provisions of paragraph 20(2) of the Rehabilitation Settlement Scheme, that even the proposal made in their favour on 17-11-1954 was by an order passed on 1-12- 1954 and that they had no claim pending in the village on 12-3-1954 when the land had been reserved in their favour on 17-11-1954 when it had been proposed in their name. The learned Judges also noticed that although the land had beer proposed in favour of Noor Din and Mst. Zainab Bibi on 17-11-1954, they had done nothing until 27-3-1955 when the land had been confirmed in the name of the respondents, to obtain the confirmation of the proposal in their favour although the normal period for keeping a proposal pending was 15 days under the Scheme. They also repelled the contention that they were entitled to any preference on account of being small land owners, observing that "the law does not authorise the Rebabilita--tion authorities to ignore the rights of the big land holders when the land had been confirmed in their names legally and validly".
4. The record of the Settlement Department shows that Mst. Zainab Bibi had another Claim Form No. 1944 against which allotment had already been secured in the neighbouring village of Fatehgarh. However, on an application made on her behalf, the claim form was cancelled and the area in that forth was verified against Claim Form No. 18788. Later, when it was discovered that both the claim forms related to the same village in India and as land had already been secured against Claim Form No. 1944, the Claim Form No. 18788 was cancelled and its area was verified on Claim Form No. 1944 vide order of the Officer Incharge, Central Record Office, dated 3-5-1961 which was duly given effect to by the Rehabilitation authorities vide missal No. 55 N. T. V. And register R. L: II of village Kotli Bahrain. Noor Din had also two claim forms of his own in the village. One was No. 6438 dated 26-1-1952 registered in the village against which land measuring 13 kanals, 17 marlas had been proposed. The proposal was, however, rejected on 30-6-1953 but the appellate authority restored it by order dated 17-11-1954 directing that "This case will also be dealt with according to the orders that may be received on the reference which I propose making". Later, the same land was proposed afresh in his name on 4-5-1956. His other Claim Form No. 20313 which had been received in the village on 1-12-1954, was cancelled on 1-6-1961 on the advice of the Central Record Office and its area was verified on his another Claim Form No. 1953 of village Fatehgarh..
5. The main contention on behalf of the appellants is that the disputed land having been reserved in favour of Mst. Zainab Bibi from a prior date and the order of reservation not having been recalled, the land could not be proposed in the name of the respondents. This could be true if the order of reservation had been competently made. Mst. Zainab Bibi's claim on the basis of the registered deed was a matter governed by paragraph 52he Rehabilitation Resettlement Scheme, Punjab, which enabled the Rehabilitation Authority to "deal with such applications for claims to land allotment" but it did not empower the authority to reserve land pending adjudication on the application. The Rehabilitation authority could under paragraph 20(1) (a) of the Scheme reserve an area equal to 75 per cent of the area claimed in case of unverified claims but by sub para.This power had been taken away in respect of new claims registered after the 1st October, 1951" Sub- paragraph (2) 1973 SCMR 16), no doubt, does not bar altogether the making of allotment to a new claimant but it enjoins that before doing so the Rehabilitation Authority "will ensure that sufficient area is reserved for the old claimants who are yet to be settled". Under paragraph 20, therefore, an allotment could not be made in favour of a new claimant unless sufficient area had been reserved for the old claimants of the village. The reservation made in favour of Mst. Zainab Bibi was, therefore, not covered by paragraph 20. No other enabling provision has been shown in this regard except for Memo. No. 12411-54-9303-R (L) dated 4-11-1954 whereby it was directed that to avoid hardship to the claimants who secured declarations on the basis of decrees of civil Courts or registered deeds, the Additional Rehabilitation Commissioner (Land), simultaneously with the grant of such declaration should issue orders for reservation of the area involved in favour of the mortgages or the alienates as the case may be" reservation, in pursuance of this instruction could be made only after 4-11-1954 and no t before. Eve then no reservation was made in pursuance of the said instruction. There was thus no competent reservation
6. Learned counsel then urged, on the authority of S. Sharif Ahmad Hashmi. v. Chairman, Screening Committee, Lahore (1) 1978 SCMR 367) that even if the order of reservation be held to be illegal or void, the same need not be interfered with merely on that account without having regard to the consequences. The view expressed in the cited case was that an assumption that a Court should always strike down a void order regardless of the consequences of its decision was a total fallacy and further that "a void order is not always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation". This view, however, is not applicable here because the question before us is not of not interfering with an incompetent order of reservation but of giving effect to such order, which is altogether a different proposition.
7. It was also urged that even if the reservation were ignored, Noor Din could claim the land as an heir of Mst. Sainab Bibi. This Court had held in Mst. Khurshid Begum v. Settlement Commissioner (Land), Sargodha that where a right holder dies before allotment, the mutation of inheritance is first to be entered before making allotment to the successors. It is to be noted that in the matter before us no mutation of inheritance had been recorded till after 11-3-1956. Another difficulty is that Mst.
Zainab Bibi Having been a non all other, Noor Din's claim through her has to be treated to Be of a non all other. See Barkat Ali v. Settlement Commissioner (Land') Sargodha (PLD 1973 Lah. 128). His being himself a sitting all other would be of no avail in such situation.
8. But can Noor Din assert in his own rights as a sitting allottee in the village and having his own claim brought to the village before the confirmation of the land in favour of the respondents. His claim to be a sitting all other is firstly by virtue of paragraph 7-A upon the assertion that he was a Govern--ment servant and secondly by the factum of his having received allotment in the village on his Claim Form No. 6438. Nor Din may be a sitting allottee but the crucial point remains that on 4-8-1954 when the proposal had been made to favour of the respondents he had no outstanding claim in the village, his Claim Form No. 20313 having been received in the village on 1-12-1954.
Learned counsel urged on the basis of the decision in Muhammad Ayub and others v. Nizam Din and others. (C. P. No. 239 of 1964) that the late receipt of the claim was immaterial. In this case the tie was between a per--manent allottee and a nun-allottee. The permanent allottee having received his surplus - units by transfer from another district at a date later than that of the non allottee.Learned Single Judge of the High Court accepted the Writ Petition No. 691-B of 1961 of the permanent allottee observing that "The principle of `first come first served' have to be kept in view but it does not mean that if a person although he arrived earlier had not yet obtained permanent allotment and in the meantime another person comes and brings his claim form in the estate and his claim on various considerations for the allotment is found superior to that of the person who had come earlier the claim of such persons who had come later cannot be ignored merely on the score that they had come later in the estate". A Division Bench of the High Court in Letters Patent Appeal No. 224 of 1964 and this Court in the aforesaid Civil Petition for Special Leave to Appeal No. 239 of 1964 refused to interfere with this view. The case is, however, distinguishable, as it is not shown that on the date of the proposal there, the surplus units of the permanent allottee had not already been received. The benefit of this cited case, therefore, could be taken only if on the date of the proposal Noor Din's claim had already been received in the village. That not being so, the High Court's decision favouring the respondents on the ground that on the date of the proposal made in their favour no claim .Of Noor Din was pending in the village is, therefore, not open to exception. The preference claimed on the basis of appellants being small land-hotftrs and on the principle of consolidation of holding would deserve consideration only if other things were equal.
9. We, therefore, do not find any merit in this appeal which we accord--ingly dismiss. ,The parties are left to bear their own costs,