The dispute in this case relates to urban agricultural land containing garden bearing Survey Nos.
346 and 347 situate in Deh Ghangro. Tapo Gidu Bunder, taluka Hyderabad. The petitioner claims that he was originally allotted the aforesaid two survey numbers alongwith other survey numbers under a temporary allotment order dated 21st October, 1949 issued by the Mukhtiarkar, Hyderabad.
Subsequently the claim of the petitioner was verified by the Central Record Office, Lahore and a Fard-e-Haqqiyat was issued to him in 1953 for 846 Units equivalent to 78 acres of urban and garden land abandoned by him in India. The petitioner was accordingly issued U. R. V. No. 157/4698 dated 28th February, 1960 for 2947 Units including 2307 units of garden land. According to the petitioner, a confirmed allotment was, however, issued to him on 12th June, 1954 which was examined by the Rehabilitation Commissioner, Sind on a complaint from one Qutubuddin and found to be correct vide his order dated 8th September, 1954 whereby 78 acres of land including the garden were confirmed in favour of the petitioner.
2. The petitioner further alleges that the disputed survey numbers were duly entered in R. L. II Register No. 2 on 6th April; 1957 as certified by the Assistant Settlement Commissioner, Hala vide his Certificate dated 15th November, 1973. In 1960, however, the Rehabilitation and Settlement Commissioner, Hyderabad took steps to dispossess the petitioner of the lands under his allotment, whereupon he filed Writ Petition No. 68 of 1960 in the High Court and the threatened action was stayed on 16th May, 1960. According to the allegation of the petitioner while the stay order passed by the High Court was still in operation a Khatooni dated 8th July, 1960 was prepared by the Assistant Rehabilitation Mukhtiarkar, Hyderabad for 8.24 acres of agricultural land and 20.8 acres of garden land in the name of the petitioner which he refused to accept. The petitioner contends that Writ Petition No. 88 of 1960 was decided by the High Court in his favour and his allotment in respect of the disputed land thus stood upheld. Reference has been made by the petitioner to a dispute between him and Qutubudin in respect of this land which was disposed of by the Rehabilitation and Settlement Commissioner (Lands), Hyderabad by his order dated 1st September, 1964 in which he held that this land stood allotted to the petitioner under old Sind Scheme and could not, therefore, be disturbed. The case of the petitioner further is; that in August, 1965 he came to know for the first time that respondents 2 and 3 had been allotted the disputed survey numbers without notice to him. He further stated that the aforesaid respondents had a dispute with one Zamir Husain over the allotment of the aforesaid land which was finally decided by Mr. Rauf Chaudhry, Settlement Commissioner, Karachi in revision vide his order dated 11th and 16th November, 1963 in which it .Was held that the said respondents had entitlement to the allotment of the said land. The petitioner alleges that these facts were fraudulently kept back from him until 1971 when the second respondent moved the Deputy Commissioner, Hyderabad for possession of the disputed land and the latter .Ordered necessary action to be taken. The petitioner challenged the said order by a petition before the Additional Commissioner, Hyderabad which was dismissed by order dated 1st November, 1971. The petitioner then filed a Writ Petition bearing No. 463 of 1971 in the High Court challenging the orders passed by the Rehabilitation Commissioner, Karachi dated 11th and 16th November. 1963 and by the Settlement Commissioner dated 1st November, 1971. Both these orders were quashed in the aforesaid Writ Petition with a direction that the representation of the petitioner dated 2nd August, 1971 in respect of his entitlement to the disputed land be heard afresh, On remand the matter was taken up by the Rehabilitation and Settlement Commissioner (Lands), Hyderabad, who by his impugned order dated 6th February, 1974 held that the two survey numbers in question were not allotted to the petitioner, but have been duly allotted to the aforesaid respondents in satisfaction of their claim which should prevail. The petitioner seeks to challenge the aforesaid order in this Writ Petition.
3. Before considering the contentions of the counsel for the parties, it will be advantageous to reproduce the conclusions reached by the Rehabilitation and Settlement Commissioner in the concluding part of the impugned order which read as follows :----- "I, therefore, hold that even if the said survey numbers were allotted to the petitioner in 1949 and confirmed in 1954 under the temporary settlement scheme the said survey numbers were not allotted to him :on the basis of U. R. V. The petitioner has accepted the Parchi Khatooni issued on the basis of entitlement on U. R. V. Which does not include the said survey numbers. He raised no objection at that time. This allotment is for all intents and purposes meant to satisfy the claim of displaced persons once for all. The confusion has been created by the lower staff in the effort to accommodate the petitioner and the A. R. M. Issued him -certificate of allotment for the said survey numbers in 1962 and again on the query by the City Mukhtiarkar replied that the same certificate was not meant for mutation in the Revenue Record. This certificate is, therefore, to be ignored.
4. In support of the present petition it was first contended by the learned counsel that no subsequent allotment in respect of the disputed land could validly be issued without first cancelling, the petitioner's allotment. It was pointed out that no order of cancellation has been produced. It was then contended that after permanent settlement of the petitioner on the disputed land the Settlement Authorities became functus officio and could not deal with the land except for purposes of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. These two contentions can be disposed of together. There can be no dispute about the legal proposition on which these contentions are based. But according to the findings recorded in the impugned order as well as the contention advanced on behalf of the contesting respondents, the two survey numbers were never permanently allotted to the petitioner. 1f this is true then the question of cancelling the petitioner's allotment first or the Rehabilitation Authorities becoming functus officio' would not arise. It was submitted on behalf of the contesting respondents that the entire edifice of the petitioner's case rests on the assumption that the two survey numbers temporarily allotted to the petitioner were included in his confirmed allotment which fact has not been established. He submitted that the temporary allotment issued in the year 1949 was a seasonal allotment only for Rabi 1949-50 and, therefore under the Rehabilitation scheme did not confer permanent rights. In this behalf a distinction between allotment under the Rehabilitation Settlement Scheme and Temporary Allotment was drawn by the counsel with reference to the definition of the term "temporary allotment" in para. 1 of Chapter I of the Scheme which defines "temporary allotment" as an allotment under the Pakistan Rehabilitation Act, 1956 other than an allotment under the Scheme. In support of his contention counsel referred to the temporary allotment order issued in favour of the petitioner produced in Writ Petition No. 88 of 1960 for the subsequent year of 1953-54 (Annexure --'R-1") in which the disputed two survey numbers are not mentioned. Reference was also made to the Parchi Taqseem Khatooni dated 8th July, 1960 (Annexure "R-2") issued in favour of the petitioner in which also the land in question does not figure. However, the allegation of the petitioner is that this Khatooni was issued despite the stay order issued in his Writ Petition. The respondents' counsel then referred to the copy of the R. L. II Register in respect of the lands allotted to the petitioner in which also these two survey numbers have not been mentioned. He further contended that these two survey numbers were not shown to have been allotted to the petitioner in his Writ Petition No. 88 of 1960, but the claim in respect of these survey numbers was first made in a subsequent Writ Petition bearing No. 602 of 1965 which was withdrawn by the petitioner after the comments were received from the Department which have been placed on record as Annexure -- -R-8". In this report it was stated as under :---- "Here it is to be noted that there is difference in the photostat copy of allotment order No. R. R. 134 of 1954 dated 12th June, 1954 (Aunexure "A") and its true copy supplied by the petitioner with his application dated 3rd January, 1961. In this application the petitioner never claimed allotment of disputed survey No. 347. It is also not shown in the true copy of the allotment order No. R. H. 134 of 1954 dated 12th June. 1954 attached to the application. Instead there is mention of survey No. 367.
In both the copies of the allotment order an area of 64.38 acres is shown to have been allotted to the petitioner. On calculation of areas of each and every survey number it has transpired that if garden survey No. 367 area 0.10 ghuntas is included, then total area comes to 64.38 acres as claimed by the petitioner and also shown in his allotment order. If the disputed survey No. 347, area 1.35 acres which is also a garden, is included the area comes to 66.23 acres."
Learned counsel for the contesting respondents also pointed out that in Writ Petition No. 463 of 1971 filed by the petitioner he claimed only one survey number out of the disputed land namely, survey No. 347 to have been included in his confirmed allotment dated 5th April, 1954. 1 find great force in the contentions of the learned counsel for the respondents. There is no document on record showing the confirmed allotment of the dis--puted land in favour of the petitioner except the Certificate (Annexure D") dated 15th November, 1973 issued by the Assistant Settlement Commis-- sioner, Hala Sub-Division, Hyderabad which was issued long after this dispute was raised and the matter was remanded for rehearing to the Settlement Commissioner by the High Court on 20th September, 1972. Notwithstanding that this document was not produced before the Settle--ment Commissioner at the time of hearing on remand. On the other hand, another document on the record dated 6th August, 1973 issued by the Assistant Settlement Commissioner, Hala Sub-Division on the same subject does not show the disputed two survey numbers. In the impugned order the learned Settlement Commissioner has made the following observation on this question :------- "Certified copy of the Memo. Of Petition No. 88/60 and certified true copy of the allotment order dated 12th May, 1954 shows that the Survey Nos. 346 and 347 were not included in the said allotment order. It can, therefore, be deduced that even if the petitioner held the temporary allotment of the disputed survey numbers in 1949 he had no claim whatsoever over these numbers after the allotment order dated 12th May, 1954 was issued which does not show these numbers having been allotted to him."
On the aforesaid material no fault can be found with the finding of the learned Settlement Commissioner in the impugned order. Since, therefore, as a matter of fact it has not been established that the disputed land was permanently allotted to the petitioner, there is no force in the two conten--tions advanced by the counsel.
5. I also agree with the submission of the learned counsel for the respondents that this petition raises purely a question of fact which cannot be enquired into in the writ jurisdiction.
6. For the foregoing reasons, there is no merit in this petition, which is accordingly dismissed with costs.
M. Y. H.Petition dismissed.