1. ' This Constitutional petition under Article 199 of the Constitution is directed against the order dated 21st February, 1973., passed by the Deputy Commissioner and Additional Settlement Commissioner (Land), Sukkur and the order dated 28th March, 1974 passed in revision application filed by the petitioner under section 19 of the Displaced Persons (Land Settlement) Act, 1958 against the said order whereby the Settlement Commissioner dismissed the revision application.
2. ' The facts giving rise to the aforesaid two orders briefly stated, are as follows :- The petitioner on 15th March, 1972, was allotted 26.11 acres of land out of Survey Nos. 142/1, 142/2, 142/5, 180/2, 222, 223 and 266 situated in Deh Junas, Tehsil Pano Akil, District Sukkur. According to the petitioner he obtained clearance certificate from Mukhtiarkar on 2nd May, 1972 and his name was mutated in the "Dakhil and Kharij" Register. Thereafter he alleges that he sold and transferred about 8 acres 32 ghuntas out of the aforesaid lands to respondents Nos. 5 to 13.
3. ' It appears that against the order of allotment respondents Nos. 3 and 4 filed an application before the Additional Settlement Commissioner (Land), respondent No, 2, who cancelled the allotment of the petitioner by the order dated 20th February, 1973, on the ground that the said lands already stood allotted to respondents Nos. 3 and 4. Since the order is very brief, I may-for convenience reproduce herein below the same. It reads as follows :- "The allotment of Messrs Niaz Muhammad and Wasi Mazhar are prior and that of Syed Fatehali Hydri is of subsequent date. The subsequent allotment is therefore cancelled and the land allowed to remain with the prior allottees. Syed Fatehali Hyderi may, however, be provided with alternative land from the evacuee pool subject to title."
4. ' Aggrieved by the aforesaid order the petitioner filed a revision application as stated above with the Settlement Commissioner (Land) and the Settlement Commissioner by the order dated 28th March, 1974, dismissed the same holding that the allotments of the lands in favour of the respondents were prior in time and therefore confirmed the order of respondent No,
2. I may hereinbelow reproduce the relevant portion of the order which reads as follows :- "Briefly stated the facts of this case are that S. Nos. 142/1, 142/2, 222 and 223 situating in Deh Junas, Taluka Pano Akil, District Sukkur were allotted to Subedar Niaz Mohammad son of Sardar Khan on 24th November, 1959 and Survey Nos. 265, 143/2, 264 and 266 of the said Deh Junas, Taluka Pano Akil, District Sukkur stood allotted in the name of Syed Wasi Mazhar since 7th November, 1959.
5. ' While the petitioner, Syed Fateh Ali Hyderi was allotted all the said disputed S. Nos. On 15th March, 1979.
6. ' From the above facts, it is clear that the respondents are prior allottees and the allotment of the peti.Ioner is of a. Subsequent date. It is an established law that prior ailottees have always better title over subsequent allottees.
7. ' For the foregoing reasons, I find no grounds to legally therefore With the lower Court's order dated 20th February, 1973. Which is upheld and the Revision Petition having no merits is hereby dismissed."
8. ' The petitioner has, therefore, filed the present petition.
9. ' I have heard Mr. Abdul Sattar learned counsel for the petitioner and Mr. Malik Muhammad Saeed learned counsel for respondent No, 4, ' The other respondents have remained absent and nobody has appeared on their behalf.
10. ' Mr. Abdul Sattar has raised before me the following grounds in support of the petition :-
(1) The allotments in favour of respondents Nos. 3-and 4 which were made in 1959 stood cancelled by the Martial Law Regulations Nos. 84 and 89.
(2) Respondent No, 2 could not cancel the confirmed allotment except under the provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act.
(3) Respondents Nos. 3 and 4 failed to produce allotment orders as no entry existed in R. L. II.
(4) The lands allotted are not well, irrigated lands as mentioned in allotment orders but are canal irrigated and thereby respondents Nos. 3 and 4 have got the excess land.
11. So far as the first ground is concerned, there is no doubt that under the Martial Law Regulation No, 84 read with clause 7 of the Martial Law Regulation No, 89, the allotments in favour of respondents Nos. 3 and 4 were cancelled and the petitioner would have succeeded if the matter had rested there. But it appears that subsequently on 25th September, 1961 long before the allotment of land in favour of the petitioner in 1972, the Martial Law Regulation No, 91 was promulgated whereby by virtue of clause 4 thereof, a sub-paragraph was added whereby entitlement certificate issued in Form QPR-V and UR-V were saved. I may here reproduce the amendments made by the Martial Law Regulation No, 91:- "(Government of Pakistan Notification No, 901/61, dated 25th September, 1961 ; Gazette of Pakistan, Extraordinary, 29th September, 1961).
12. Martial Law Regulation No, 89 is hereby amended in the following manner ;- (1)- In Martial Law Regulation No, 89, in the Preamble for the word "manner" the words "modified form" shall be substituted.
(2) In the said Regulation, in paragraph 5 in the Explanation, after the figures "1958" a comma and the following words shall be added, namely :- "but where a claim has been withdrawn. Or where the claimant has not submitted the written statement under paragraph 3 of the original Regulation, such entitlement shall be nil, or where the claim has been reduced under the said paragraph, it shall mean entitlement as determinable under the said schemes on the basis of such reduced claim, but nothing herein shall be construed as increasing the entitlement of any claimant who had increased his claim under the said paragraph."
(3) In the said Regulation in paragraph 9 after the words "always to have vested" the words "free of encumbrances" shall be inserted.
(4) In the said Regulation, paragraph 13 shall be re-numbered as sub-paragraph (1) of that paragraph, and in that sub-paragraph for the words "This Regulation" the words and figure "Paragraph 5 of this Regulation" shall be substituted, and after sub paragraph (1) as so re- numbered, the following new sub-paragraph (2) shall be added, namely :- "(2) Notwithstanding the provisions of. Sub-paragraph (1) of paragraph 7, in the case of such claims as aforesaid entitlement certficates issued in Forms QPR-V and UR-V.. Shall stand but where a claim has been reduced under the original Regulation, fresh entitlement shall be determined in accordance with such reduced claim, and where such claim has been withdrawn under the original Regulation or where the claimant has not submitted the written statement under paragraph 3 of the original Regulation, the entitlement shall be nil."
13. ' It appears that this amendment was not within the knowledge of Mr. Abdul Sattar otherwise he would not have raised this ground.
14. Now, since the allotments of lands in favour of respondents Nos. 3 and 4 were subsisting when the order of allotment in favour of the petitioner was made, therefore, that was rightly cancelled for lands were not available for allotment. It is settled that unless the prior allotment is cancelled in accordance with law or unless it stood cancelled under the law any subsequent allotment of the same ,lands would be void. If any precedent is needed there are ample and reference may be had to Muhammad lshaq and another v. Dr. Saiduddin Sawleh and another (1), Ghulam Nizamuddin Sabiri v. Khan Farzand All Khan (2), Sh. Barkat All v. M. S. Zaman and others (3).
15. Now, taking up the second ground that the allotment in favour of petitioner could be cancelled only under the provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, it would suffice to say that the allotment was not cancelled under section 10 on the ground of fraud or misrepresentation but on the ground that prior valid allotments were subsisting in favour of respondents Nos. 3 and 4 and such a power could in my opinion be exercised under section 11 of the Displaced Persons (Land Settlement) Act, 1958. Even otherwise, the subsequent allotment in favour of the petitioner was void ab initio, for as stated before, unless the prior allotments were cancelled in accordance with law the lands were not available for allotment.
16. ' As regards the third ground it may be mentioned that in parawise comments submitted by the Deputy Commissioner and Additional Settlement Commissioner, it is admitted that the lands were allotted as per original Khatauni, therefore, in view of this admission on the part of the department and in absence of any positive evidence to the contrary this ground must be rejected. Further no such ground appears to have been taken before respondents Nos. 1 and 2.
17. ' As regards the last ground that in the allotment of respondents Nos. 3 and 4 the land has been shown as Chahi Irrigated land although the same is canal Irrigated and as such both the respondents have been allotted lands in excess, it would suffice to say that there is nothing on record to support the ground. In any case, the question of entitlement to land is not relevant nor was it raised before respondents Nos. 1 and 2.
(1) PLD 1960 Kar. 48 (2) PLD 1961 Lah. 19
(3) PLD 1968 Lah. 770 ' Further, since the allotment of the petitioner was void ab initia and allotment in favour of respondents Nos. 3 and 4 was never attacked on this ground, therefore, this ground also fails.
18. ' Accordingly, I find no merit in this petition and dismiss it. I, however, in the circumstances of this case leave the parties to bear their own costs.