The Petitioner, Marghoob Ahmed Ansari son of Hafiz Sana Ahmed Ansari, and his sister Mst. Shahida Khatoon have filed the instant petitioner through their attorney Syed Mukhtar Ahmed, challenging the order dated 3-10-1972 of respondent No. 2 and order dated 9-5-1974 of respondent No. 1, by which their claim in respect of garden land cons--tituting evacuee owned portion of Survey No. 137 in Deh Jiand Jatoi, taluka and District Larkana, for permanent settlement was rejected, It is their case that they were claimant displaced persons from Saharan--pur (erstile U.1') India, after verification of their claim -bearing Regis--tration No. 4229/1V/L R, in the name of Mahboob Ahmed Ansari and others (which included the petitioners) the Central Record Office, Lahore, issued entitlement certificate QPRV for 6492 P. I. Units, which included 281 garden units. It is further their case that Marghoob Ahmed Ansari and others including petitioners were allotted by Garden Allotment Com--mittee Survey No. 137 measuring 5 acres and Survey No. 185, measuring 5 acres and 1 ghuntas in Deh Jiand Jatoi, Tapo Sandry. Some local persons had filed revision applications before the Settlement and Rehabi--litation Commissioner, claiming certain shares in the two survey numbers but after the adjudication the evacuee share of Survey No. 137 remained in their possession throughout.
2. After the promulgation of MLR-84 and MLR-89 the petitioners were issued MRV No. 278/12-R for 2418 P.I. Units which included garden units. It is their case that they were entitled to permanent settlement of garden land bearing Survey No. 137 measuring 3 acres and. 4 ghuntas against 159 garden P.I. Units and for allotment of agricultural land to the extent of 2259 P.I. Units. The final allocation Order passed by the Deputy Commissioner, Larkana on 20-3-1972 was in respect of agricul--tural land to the extent of 2418 P:I. Units but since in the survey numbers shown against these units were included Survey Nos. 212, 197/1 and 197/2 which incidentally contained Muslim owned land to the total extent of 5 acres and 30 ghuntas which were declared non evacuee vide Order dated 1-2-1974, 195 garden units of petitioners were available for allotment on 9-5-1974 when the Settlement Commissioner (Land) Hyderabad, passed the impugned order dated 9-5-1974.
They applied for allotment of the land in question to the Deputy Commissioner/Additional Settle-- ment Commissioner (Land), Larkana, respondent No. 2 on 5-8-1972, but their application was rejected on 3-10-1972 on the ground that the order regarding alleged allotment of garden was not forthcoming and further that agricultural evacuee land up to the claim entitlement had been allocated under Order No. 1403 dated 25-1-1962.
3. The respondents `though served with notice have not filed any comments and hence not controverted the facts as stated: by the petitioners.
4. The petitioners challenge the orders of the respondents Nos. 1 and 2 on the following grounds
(i) That the garden land in survey No. 137 aforesaid was initially granted to them under order of Garden Allotment Committee and they have a right to be settled on the land in preference to all other claimants by virtue of the policy of the Government stated in Press Note No. Sett. Z/R-56 (1), dated 12th April, 1960 issued by the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Divisions.
(ii) That the very fact that they have been in possession of the land since 16-6-1959 the date on which the Garden Allotment Committee allotted the land to them is sufficient evidence to show that there was such order in their favour.
(i.e) That although the original order of allotment which had been submitted to Deputy Commissioner, Larkana, along with appli--cation for mutation, is stated to have been lost, there are other documents, copies of which have been submitted to show that the land in question was allotted to them by the Garden Allotment Committee.
(iv) That since even after the allotment of other agricultural land the entitlement of the petitioners in respect of P.I. Units bad not been exhausted and as indicated by them 159 Garden P.I. Units remain--ed the evacuee portion of garden land Survey No. 137 measuring 3 acres and 4 ghuntas should have been granted to them by way of permanent Settlement.
(v) Since the Petitioners have all along been in possession of k the garden land in question and have spent funds on improvement of the same they should be given preference in the matter of settlement on the land.
4-A. With regard to grounds Nos. 1 to 3 Mr. Abdul Naseer Khan, the learned counsel for the petitioners has firstly referred to entitlement certificate QPRV issued on 28-10-1959 by the Central Record Office. Lahore, in respect of claim bearing Registration No. 4229/1V/LR which definitely includes the names of the two petitioners besides Mahboob Ahmed and others. Since the alleged allotment of land by the Garden Allotment Committee was in respect of the aforesaid entitlement certi--ficate and further since the petitioners are ever since in possession of the land, it can hardly be doubted that the assertion of the Petitioners with regard to the allotment in their favour by the Committee is correct. The learned counsel has pointed out that some local persons had filed revision petition under section 11 (5) of the Pakistan Rehabilitation Act, 1956 in respect of garden bearing Survey No. 185 measuring 4 acres 1 ghunta situated at Jiand Jatoi Taluka and District Larkana and in the order passed by the Rehabilitation Commissioner, dated I 1-10-1960 it was held that only 6 annas and 8 pies in the property in question represented the evacuee interest. The order to that extent upheld the allotment in favour of Mahboob Ahmed. A similar revision in respect of Survey No. 137 (Garden in Deh Jiand Jatoi Taluka and District Larkana was filed by one Saidoo and the Settlement and Rehabilitation Commissioner in his order dated 15-4-1963 held that the garden Survey No. 137 with an area of 4 acres and 13 ghuntas had been allotted to Mahboob Ahmed and others by the Garden Allotment Committee under an order dated 16-7-1959 and held that the applicants' claim that 3 annas 8 pies share belonged to him and 6 others as Muslim property could not be accepted as no change in the Khata had been made before confirmation of the property as evacuee by the Custodian. Reference has also been made to the order of the Deputy Custodian, Evacuee Property, Larkana and Dadu, dated- 7-3-1964. In Case No. 23 of 1963 filed by Mubarak son of Janoo, Saidoo, afore--said and Taj Mian, local residents in which it was inter alia held that 2/5th share of the property in Survey Nos. 137 and 138 of Deh Jiand Jatoi Taluka and District Larkana, belonged to the applicants and was non--evacuee property to that extent.
The aforesaid order of the Deputy Custodian was confirmed by the Custodian E. P. West Pakistan, Karachi, dated 2-4-1964 a true copy of which has been placed on the record- of these proceedings.
5. In view of the facts and circumstances stated above it is clear that the assertions of the petitioners that the area in question in Survey No. 137 was initially allotted to them along with others by the Garden Allotment Committee, cannot be gainsaid. With regard to the policy of the Government reference has been made to Press Note. No. Sett Z-R!56 (1) dated 12th April, 1960 issued by the office of the Settlement and Rehabilitation Commissioner, Hyderabad and Kheirpur Divisions which makes it clear that it had been decided that gardens provisionally A allotted by Garden Allotment Committee of Hyderabad and Khairpur Divisions should be confirmed to the temporary allottees to the extent of their entitlement for garden area as mentioned in their QPRVS or LIRVs. The aforesaid policy with regard to permanent settlement by conversion of earlier allotment into permanent allotment is in accordance with man--datory requirement of law in terms of section - 15 (3) of the Displace Persons (Land Settlement) Act 1958. Reliance in this respect has beer placed on the decision of this Court in Petition No. 76 of 1967 in the case of Rounaq Ali v.
Settlement & Rehabilitation Commissioner and another (PLD 1973 Kar. 224). The learned counsel for the petitioners has also referred to the decision of the Supreme Court in Civil Appeal No. 5-P of 1971 reported in 1979 SCMR 1 which it was inter alia observed that consequent upon the repeal of the Displaced Persons (Land Settlement) Act, 1.958 by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, a person is entitled to the benefit of the proviso to section 3 of the Act by which the land shall be offered for sale to that person who has been in occupation of it for more than 4 harvests immediately preceding kharif 1973. The contentions on behalf of the petitioners in grounds No. 4 and 5 are, therefore, accepted.
6. For the reasons stated above the impugned orders of Respondent No. 2 dated 3-10-1972 and of respondent No. 1 dated 9-5-1974 in which the claim in respect of the garden land in question constituting evacuee owned portion of Survey No. 137 in Deh Jiand Jatoi, taluka and district Larkana for permanent Settlement was rejected are hereby quashed and it B is declared that the petitioners are lawful allottees of garden land portion of Survey No. 137 measuring 3 acres and 4 ghuntas and are entitled for consideration of their claim for permanent settlement of the same by the concerned Settlement and Rehabilitation Authorities.
7. The writ petition is, accordingly allowed with no order as to costs.