' SAEEDUZZAMAN SIDDIQUI, J.-This petition under Article 201 of the Interim Constitution is directed against the order dated 28th March. 1974, 25th October, 1976 and 6th August, 1978 passed by the Deputy Commissioner, and Additional Settlement Commissioner, Hyderabad, Additional Commissioner and Settlement Commissioner, Hyderabad, and Senior Member, Board of Revenue, respectively.
2. The petitioner who is a claimant displaced person had a verified claim of agricultural land to the extent of 18887 PI Units for which Q. P. R. V dated 17th October, 1959 was issued in his favour. The petitioner was originally allotted agricultural land measuring 574.33 acres in Sehwan, District Dadu, equivalent to 17245 PI Units and 73.10 acres in MatLi, District Hyderabad equivalent to 1933 PI Units against his Q.P. R. Later on the entitlement of petitioner was reduced under MLR-89 to 3518 PI Units and he was issued MRV No, 057307 Book No, 301, dated 18th January, 1962 for 1122 PI Units, MRV No, 016611, Book No, 416 dated 14th April, 6 for 1746 PI Units and MRV No, 017018 Book No, 426 dated 19th June, 1962 for 650 PI Units. Against his MRV dated 18th April, 1962, the petitioner was issued revised allocation Order No, FR/812, dated 7th March, 1982, wherein the petitioner was shown to have surrendered his entire land in Sehwan District Dadu and retained land equivalent to 1122 PI Units in MatLi. Petitioner was issued, thereafter, another allocation Order bearing No, 204/22,63 wherein the petitioner was allowed to retain land equivalent to 1122 PI Units in Matti, District Hyderabad which was earlier allowed in allocation Order No, RF/8112, dated 7th March, 1962 and was further allowed to retain 79.35 acres in Sehwan District Dadu. The petitioner was finally issued allocation Order No, 429 of 1962, dated 27th April, 1963 by the Deputy Commissioner. Dadu according to which the petitioner was allowEd to retain land measuring 52.33 acres in Sehwan, District Dadu, equivalent to 1585 and 73.10 acres in MatLi, District Hyderabad, equivalent to 1933 PI Units and surrendered land measuring 522 acres equivalent to 15660 Units in Sehwan, District Dadu. The land retained by the petitioner in Taluka Matli was also mutated in his favour in record of rights vide mutation Order No, ARM/1798, dated 9th July, 1966. It appears that out of 73.10 acres of land retained by the petitioner in Taluka Matti, 32.22 acres situated in Deh Hinjor comprising survey Nos. 470/2, 20/2, 42/14, 161 and 419 (I will hereafter refer these survey Nos. As 'disputed land') was treated by the Barrage authorities as surrendered land and was allotted as such to respondents Nos. 4 to 8 in the year, 1974. The petitioner,--therefore, on or about 26th January, 1974 moved application before the Deputy Commissioner and Additional Settlement Commissioner (Lands) Hyderabad (respondent No, 3), praying that the disputed land be deleted from the schedule of surrendered land but respondent No, 3 rejected the application of petitioner. The appeal and revision against the order of respondent No, 3 before respondents Nos. 2 and 1 respectively also failed petitioner, therefore, has challenged all these orders in the present petition.
3. We have heard Mr. Abdul Matin, Advocate, for the petitioner and Mr. M. M. Pirzada, Advocate for respondents Nos. 6 to 8. Respondents Nos. 1 to 3 have not defended this petition.
The learned counsel for the petitioner contended before us that the land which was treated as surrendered land was never surrendered by the petitioner and, therefore, its disposal in favour of respondents Nos. 4 to 8 was without any lawful authority. It is urged by the learned counsel that after entitlement of the petitioner was reduced under MLR 89, he had the option to retain such land out of his allotment which he desired, provided the land so retained by him was not in excess of his reduced entitlement. It is pointed out that 52.33 acres and 73.10 acres of land retained by the petitioner in Sehwan, District Dadu, and Matti, District Hyderabad, respectively were in accordance with the reduced entitlement of the petitioner and, therefore, it could not be taken away from his allotment. The contention of the learned counsel for the petitioner has sufficient force. There is nothing on record to show that the petitioner at any time surrendered the disputed land retained by him in Sehwan (District Dadu) and Matti (District Hyderabad) which are equivalent to the reduced entitlement of 3518 PI Units shown in the MR-V issued in favour of petitioner. Respondent No, 3, however, rejected the application of petitioner and refused to exclude the disputed land from the schedule of surrendered land by his order dated 28th March, 1974 on the ground that the allocation order dated 27th April, 1963 was not genuine and the disputed land was all along treated as surrendered land although respondent No, 3 did not in so many words held that the allocation order dated 27th April, 1963 was not genuine but the following observations in his order lead to that conclusion : "Now the points for consideration :-
(1) Whether the revised Allocation order No, Ref. 429, dated 27th April, 1963 issued by the Deputy Commissioner, Dadu available on the record of the office of the Assistant Rehabilitation Mukhtiarkar, Hyderabad is genuine and can be acted upon at this stage.
(2) If so, whether I am competent to revise the Allocation order issued by my predecessor bearing No, DRC/1290, dated 12th December, 1962 after a lapse of nearly 12 years. As regards point No, 1, no plausible explanation has been rendered by, any concerned quarter as to how the document at serial number 1, found its way to the Assistant Rehabilitation Mukhtiarkar's office without the knowledge of this office when it was specifically meant for this office. I also find that this order has not been authenticated with the initials of the receiving office nor it has been diarised. Moreover it does not indicate explicitly as to whom its issue was warranted after over one year. On the top of this order remains the fact that not even the original allocation order to which it is revised one is available on the records of fhis office that of the olive of the Assistant Rehabilitation Mukhtiarkar, Hyderabad. This gives rise to the strong suspicion that every thing has been manoeuvred clandestinely and the mutation order issued on the strength of this revised Allocation Order by the Assistant Rehabilitation Mukhtiarkar's office is also not free from doubt."
Respondent No, 2 before whom the order of respondent No, 3 was challenged in appeal did not agree with respondent No, 3 that the allocation order dated 27th April, 1963 was not genuine as would appear from the following observations in his order dated 25th October, 1976 but he refused to interfere on the ground that the disputed land was all along treated as surrendered land :- "On receipt of the above supplementary certificate the D.C. Dadu issued a revised allocation order bearing No, 204/22,63 and again another allocation order No, 429, dated 27th April, 1963.
According to the first revised allocation order the claimant was allowed to retain the same P.I. Units viz. 1122 in Taluka Matli ex-district Hyderabad (now Badin) and area of 79.35 acres corresponding to 2396 units in Taluka Sehwan. The remaining area viz. 494.36 acres of Taluka Sehwan was surrendered by the claimant whereas according to the 2nd revised allocation order the claimant was allowed to retain the entire area viz. 73.10 acres equal to 1933 P.I. Units of delis Nathu and Hanjar and an area of 52.33 acres equal to 1585 units in Taluka Sehwan. The remaining area viz. 522 acres of Taluka Sehwan was surrendered by the claimant. Both these revised allocation orders do seem to have been received in District Hyderabad but the claimant some how or other succeeded in obtaining the allotment of disputed land on 13th June, 1963 from the A. R. M. Mr. Hazur Ahmed Khan. He also succeeded in getting the mutation order from the A. R. M. In 1966. As already stated above the disputed S. Nos. Were shown in the list of available land as per allocation order No, 812, dated 7th March, 1962 and it was disposed of by the Barrage authorities to the Haris as under from January, 1974."
' Respondent No, 1 also refused to interfere in the case in exercise of his revisional power on the ground that respondents Nos. 2 and 3 had found the allocation order No, 429, dated 27th April, 1963, as not genuine and, therefore, either it was not genuine or it was not acted upon. Both the conclusions of respondent No, 1 are not sustainable. Respondent No, 2 did not hold that the allocation order 429, dated 27th April, 1963 was not genuine. On the contrary the above-quoted observation of Respondent No, 2 shows that the allocation order No, 429, dated 27th April, 1963 was intact, passed by the Deputy Commissioner and Additional Settlement Commissioner (Lands)
Dadu but respondent No, 2 refused to interfere on the ground that the land was treated as surrendered land since 1962 by the Barrage Authorities. The other reason given by respondent No, I for not interfering is that even if allocation order 429, dated 27th April, 1963 was genuine it was never acted upon. This conclusion of respondent No, 1 is also contrary to record as admittedly the petitioner got his name mutated in the records on the basis of above allocation order. The petitioner has categorically stated in his petition that he never surrendered the disputed land the allocation order No, 429, dated 27th April, 1963 supports his assertion. There is nothing on record to show that the petitioner in fact surrendered the disputed land at any point of time. In the comments submitted on behalf of the respondents it is mentioned that the disputed land was cancelled from the allotment of the petitioner which-is denied by the petitioner and the alleged order cancelling the disputed land from the allotment of petitioner is not placed. There is no doubt whatsoever that unless the disputed land was surrendered as an excess land under M.L.R. 89 by the petitioner it could not form part of the pool of Provincial Government and, therefore, it could not be disposed of by the Barrage Authorities as Government land. We are, therefore, of the view that the disputed land allotted to respondents Nos. 4 to 8 was not available for transfer by the Barrage Authorities as it was neither cancelled from the allotment order of petitioner nor was it surrendered by the petitioner as an excess land under M.L.R.
89. We accordingly accept this petition and set aside the impugned orders of respondents 1 to 3 and direct them to restore the allotment of disputed land made in favour of the petitioner. We will, however, make no order as to costs as the ofli-I respondent did not defend the petition.