This writ petition is directed against the order of the learned Addl. Commissioner/Settlement & Rehabilitation Commissioner, Sargodha Division, dated 30th November 1964, whereby he accepted the revision petition filed by respondent No, 1 and cancelled the allotment made to the petitioner in Chak No, 668-G. B., Tehsil Toba Tek Singh, District Lyallpur.
2. The brief facts of the case are that the petitioner's father Muhammad Ali was living in America and his son filed claim form in a Chak in Rahim Yar Khan district. His claim form was duly verified and transferred from Rahim Yar Khan district to Lyallpur district by the Deputy Settlement and Rehabilitation Commissioner vide order dated 15th January 1963. The petitioner was also treated as an allottee and Killa Nos, 1, 2, 10 and 26 of Square No, 49 and Killa No, 12 of Square No, 50 were confirmed in his name on 19th September 1963. This land was formerly allotted to Nisar Ahmad, who is a sitting allottee in the Chak. He was originally a temporary allottee of Killa Nos, 18 to 23 of Square No,
50. This temporary allotment along with disputed land and some other area was confirmed to him on 26th March 1952. On some information the Central Record Officials revised the Fard Haqiat and Nisar Ahmad's entitlement was reduced to 313 Produce Index Units, as a result of which the area was available in the Chak and five Killas of land other than temporary allotment of Nisar Ahmad was allotted to the petitioner. Nisar Ahmad submitted Uzardari, his claim was re- verified and his entitlement was finally enhanced to 1038 Produce Index Units.
3. Aggrieved by the order of the allotment in favour of the petitioner dated 19th September 1963 Nisar Ahmad filed an appeal before the Additional Settlement Commissioner, who by his order dated 3rd June 1964 dismissed the appeal on the ground that he had accepted proposal for allotment of some other land at Khata No, 178.
4. The respondent challenged the order of the Additional Settlement Commissioner by way of revision. The learned Settlement Commissioner on 30th November 1964 accepted the revision and cancelled the allotment of the petitioner on the ground that Muhammad Ali father of Tufail Muhammad is living in America and his son was not entitled to file form and secure allotment anywhere in West Pakistan for the land abandoned by his father in India. The other ground on which the petitioner was non-suited was that the claim of Tufail Muhammad was submitted in Rahim Yar Khan and it was not known as to how the claim was transferred to Chak No, 668-G. B., Tehsil Toba Tek Singh.
5. Feeling aggrieved by the order of the Settlement Commissioner the petitioner has filed this petition under Article 98 of the Constitution. Taking the first objection, mentioned in the impugned order, Mr. Khalil-ur-Rehman learned counsel for the petitioner argued that the petitioner was certainly entitled to secure allotment of land abandoned by his father in India. In section 2(d) of the Punjab Refugees (Registration of Land Claims) Act, 1949, 'refugee' has been defined a land-holder in the territories now comprised in the Provinces of East Punjab and Delhi, the East Punjab States, and the States of Alwar, Bharatpur and Bikaner, who has since the 1st day of March 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country. Relying on this definition it was submitted that in any case Muhammad Ali has become a refugee on account of the Partition of the country, since he cannot go back to Jullundur, his native town in India, even if he was living in America at the relevant time. He next referred to section 2(1) of the Registration of Claims (Displaced Persons) Act, 1956 wherein 'displaced person' has been defined as under :- "'displaced person' means any person who on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances in any area now forming part of or occupied by India has on or after the first day of March 1947, and before the 30th day of June 1953, left, or been displaced from his place of residence in such area and who has subsequently become a citizen of Pakistan, or is residing therein and includes any person who being a resident of any territory outside India is for that reason unable or has been made unable to manage, supervise or control any property belonging to him in India or in any area occupied by India."
It was vehemently contended that the petitioner's father is certainly unable to manage the property which he has left in India and even though he is residing in America, he is entitled to be treated as displaced person. In his power of attorney, which he has sent to his son from America (Annex. 'A), he has mentioned himself as native of Pakistan. He has authorised his son to sell his four acres of land situate in village Bahadur Pur, District Jullundur (India) or to do anything whatever be likes with it. This power of attorney was executed on 20th October 1959. Surely Muhammad Ali is a displaced person entitled to secure allotment of land in West Pakistan as he is a displaced person and a national of Pakistan. He cannot be deprived of his rightful allotment merely because he temporarily resides in the United States of America.
6. The next question which arises for consideration in this case would be as to whether the petitioner was entitled to file claim form on behalf of his father, since this was to be done within a prescribed period. Reference be made to the rules framed under the Punjab Refugees (Registration of Land Claims) Act, 1949 known as Punjab Refugees (Registration of Land Claims) Rules, 1949. Rule 4 of the said Rules provides that an authorised attorney can present claim to the Registering Officer on behalf of the claimant. It cannot be disputed that the petitioner was not an authorised attorney of his father for filing the claim. The obvious presumption which can be drawn in the circumstances of this case would be the petitioner was an authorised agent who had submitted claim form on behalf of his father and the Registering Officer accepted him as such. This presumption has not been rebutted by any evidence on the record. The power of attorney sent to the petitioner in 1959 further empowers him to sell the property of his father and it cannot be argued that it was on account of this power of attorney that the claim submitted by the petitioner was verified. The obvious conclusion is that the claim was filed by the petitioner as an authorised agent of his father Muhammad Ali. The learned Settlement Commissioner has, therefore, exceeded his jurisdiction in giving a finding that Muhammad Ali, who was residing in America, was not entitled to any allotment in West Pakistan.
7. The next objection raised against the petitioner was that the petitioner's claim was not transferred from Rahim Yar Khan. The Settlement Commissioner held that it was not known as to how the claim of the petitioner was transferred to Chak No, 668-0. B., Tehsil Toba Tek Singh. This finding of the learned Settlement Commissioner is erroneous for the simple reason that he is ignorant of paragraph 13-A of Chapter I, Part II of the West Pakistan Rehabilitation Settlement Scheme which clearly authorises a Deputy Rehabilitation Commissioner to transfer claim forms either within the district or to any other district in the Province. If the Deputy Settlement Commissioner has power under paragraph 13-A to order inter-district transfer of the claim the presumption is that he has legally performed such act which he was competent to do, unless otherwise proved. There is nothing on the record to show that the Deputy Settlement Commissioner ordered the transfer in violation of the law. The petitioner, therefore, cannot be condemned on this account.
8. Lastly the learned Settlement Commissioner has observed in his order that Tufail Muhammad has admitted that he was working as a labourer and is not a temporary allottee of evacuee land anywhere in West Pakistan. The Deputy Settlement Commissioner treated the petitioner as an allottee by his order dated 15th January 1963. In his appeal before the Addl. Settlement Commissioner the respondent has not challenged the status of allottee conferred upon the petitioner. He simply claimed preference over the petitioner on the ground that once this area was allotted to him. Since the respondent did not challenge the status of the petitioner as an allottee before the Addl. Settlement and Rehabilitation Commissioner, no finding was given by him and he dismissed his appeal on the ground that Nisar Ahmad had accepted a proposal of some other land at Khata No,
178. He has been unable to show that that land is in any way inferior in quality.
Nothing has been taken away from his temporary allotment.
9. The finding of the learned Settlement Commissioner is that since the petitioner has no temporary allotment in West Pakistan as such he cannot be treated allottee in any case. A number of situations have been mentioned in paragraph 7 of Chapter I, Part II of West Pakistan Rehabilitation Settlement Scheme whereby a person, who does not hold allotment in any estate, can be treated as an allottee, for instance, a Government servant whose relations have settled in the Chak, an allowance holder, person in possession of Government land in the Chak, allottees of horse or mule breeding grants and so on and so forth. Since the order of the Deputy Settlement Commissioner treating the petitioner as an allottee was never challenged by the respondent before the Settlement Authorities either in the grounds of appeal or ground of revision, he cannot be dubbed as a nonallottee merely because he did not hold temporary allotment in the estate. It is not known on what data the Deputy Settlement Commissioner conferred the status of allottee upon the petitioner. Surely the objection to his status as an allottee having not been raised before the Settlement Authorities it cannot be agitated for the first time in this Court in the exercise of writ jurisdiction. Be that as it may, the Settlement Commissioner has simply deprived the petitioner of the status of allottee on the ground that he did not hold any temporary allotment in any estate in West Pakistan. As discussed above there can be eventualities by which the petitioner could be treated as an allottee in the Chak.
10. Much stress was laid by the learned counsel appearing on behalf of the respondent that his client was entitled to the restoration of the former area allotted to him, when his entitlement was restored by the Central Record Office, but unfortunately he cannot take the stand as his client himself accepted the proposal of other land during the pendency of his appeal before the Additional Settlement Commissioner. If he once decided to take some other land he cannot turn round and demand the land which was once allotted to him. The respondent in his written statement has admitted that temporary allotment made to him has been confirmed to him. He can thus make no grievance to the confirmation of land to the petitioner if it was available for allotment at the relevant time. The learned Settlement Commissioner found another point in favour of the respondent i,e, that Nisar Ahmad's claim after re-verification was pending in the estate since January 1963 and this fact was not brought to the notice of the Chairman, Allotment Committee at the time of confirmation of the land in the name of the petitioner. Assuming that the Patwari has not brought this fact to the notice of the Chairman, Allotment Committee, the respondent was not prevented from objecting to the proposal and the confirmation made to the petitioner on 19th July 1963 and 19th September 1963 respectively. The proposal can be said to have been made in privacy, but the confirmation of the allotment is always made in Jalsa-e-Aam. The proposal remained pending for two months. If the Patwari was withholding his Fard Haqiat surreptitiously the respondent should have objected to the confirmation of land made to the petitioner. There is nothing on the record to show that any objection was raised by the respondent to the con-firmation of land made in the name of the petitioner. Assuming that the respondent's claim form was withheld by the Patwari, there is nothing on the record to show that after the cancellation of the land from the name of the respondent he claimed any reservation of the land once allotted to him. If that is not done then the land cancelled from his name was obviously available for allotment to any other person whose claim was pending in the estate at the time of its availability. The petitioner in any case cannot be deprived of his allotment merely because once this area was allotted to the respondent as no vested right of the respondent existed in the land when its allotment was made in the name of the petitioner.
11. I have given careful consideration to the claim of the respondent. In my humble view even if the respondent's claim to the land is considered preferable to the petitioner's allotment on account of the respondent's being a sitting allottee in the estate, whose claim was submitted in the estate and who was temporary allottee of the estate, all these preferences disappear by his own overt act of accepting the proposal of another land in the estate during the pendency of the appeal. In this view of the matter the respondent cannot succeed in agitating his superior claim to the land in dispute.
12. For the foregoing reasons I accept the writ petition and declare the order of the learned Settlement Commissioner to be without lawful authority and of no legal effect, but in the circumstances of the case the parties are left to bear their own costs.