' This petition under Article 201 of the Interim Constitution of Islamic Republic of Pakistan, 1972 is directed against the order. dated 16-5-1972 of Settlement Commissioner (Lands), Rawalpindi Division whereby petitioner's appeal against the order of the Additional Settlement Commissioner (L), Gujrat, dated 24-11-1971 was dismissed.
2. Dispute in this case relates to the transfer of agricultural land measuring 73 Kanals 19 Marlas situate in village Jassoki, Tehsil and District Gujrat hereinafter described as the land in dispute.
Petitioner as also respondent No.1 are J. and K. refugee-claimants, petitioner having a verified claim to the extent of 407 P.I. Units whereas claim of respondent No.1 was verified for 7,554 P.I. Units. None of them was a sitting allottee of village Jassoki. Their surplus units were transferred to this village.
Petitioner's claim was transferred to this village on 2-5-1968 and was registered at Serial No.8 of R.L.II whereas claim of respondent No.1 was received in the year, 1970. Respdondent No. 1 who had initially obtained some allotment in village Behlolpur, Tehsil Gujrat against part of his claim, got his surplus units transferred to various villages in Tehsil Gujrat including village Jassoki in 1970. As he had got his units transferred to other villages notwithstanding the fact that evacuee land was still available in village Behlolpur, Deputy Settlement Commissioner, by order, dated 29-6-1971, directed that his surplus units be transferred back to village Behlolpur. This order was challenged by respondent No. 1 in an appeal which was accepted by the Additional Settlement Commissioner by order, dated 10-11-1971 (Annexure 'B') and the case was "referred back for a fresh decision in the light of the order of precedence as laid down in Government Memo. No. 1293/63-R.L., dated 27-5- 1963". Though the case relating to the transfer of the claim of respondent No.1 had been remitted back for fresh decision, learned Additional Settlement Commissioner by order, dated 24-11-1971 proceeded to confirm the land in dispute in favour of respondent No.1. In lieu of 187 P.I. Units.
Petitioner whose claim received earlier in the village was still pending felt aggrieved with the order of the learned Additional Settlement Commissioner confirming the land in dispute to respondent No.1. He, therefore, preferred an appeal before the Settlement Commissioner claiming therein that he had a preferential right to the allotment of the land in dispute because his claim was received in the village long before that of the respondent No.1. It was further stated in the appeal that the report of the subordinate staff on R.L.II of respondent No.1 that no other claim was pending was factually incorrect and against the record as the petitoner's claim received earlier in the village and entered at Serial No. 8 was still lying unsatisfied. It was also submitted by the petitioner in his appeal that the area entered in his name at Serial No. 8 of R.L.II was not allotable and was uncultivable and that this entry was made in collusion with respondent No.l. Learned Settlement Commissioner took note of the petitioner's contention that his claim had priority over that of respondent No.1 and as such the land in dispute should not have been confirmed to the respondent in preference to the petitioner but he did not deal with this contention any further and dismissed the petitioner's appeal on the short ground that the land in dispute was confirmed in Jalsa-i-Aam' but no objection thereto was raised from any quarter from which it could be presumed that the petitioner had no objection against the confirmation of the land in dispute to respondent No.1. Petitioner challenged this order in the present writ petition.
3. Learned counsel for the petitioner contended that respondent No.1 did not have any pending claim in the village in so far as his surplus units transferred to village Jassoki and other villages were ordered to be transferred back to village Behlolpur by order of Deputy Settlement Commissioner, dated 29-6-1971 and that although the appeal of respondent No.1 against this order was allowed by the Additional Settlement Commissioner and the case remanded for fresh decision but no decision after the remand had yet been taken regarding the transfer of his surplus units when the learned Additional Settlement Commissioner confirmed the land in dispute to him. It was, therefore, argued by the learned counsel that the Additional Settlement Commissioner acted wholly illegaly in confirming the land in dispute to respondent No.1. It is not necessary to go into this submission because in any case, petitioner's claim was received in village Jassoki prior in time than the claim of the respondents.
4. It was next contended by the learned counsel for the petitioner that even if it be assumed that the claim of respondent No.1 stood transferred to village Jassoki notwithstanding the order of remand, it having reached the village later in time than petitioner's claim, petitioner had a preferential right to the allotment of the land in dispute in the light of the principle of 'first come first served'.
5. Learned counsel for respondent No.1 did not dispute the contention that petitioner's claim was received in village Jassoki earlier than the claim of the respondent. He, however, submitted that principle of 'first come first served' relied upon by the petitioner's counsel was applicable only to the case of sitting allottees in the village and it had no application to the present case where both the claimants were rank outsiders whose claims were transferred to the village. I am afraid, the submission of the learned counsel for respondent No.1 has no force. The principle of 'first come first served' has been applied even for determining the priority amongst the claimants whose surplus units were received in the village from outside. Reference in this behalf may be made to Muhammad Yahya v. Misbah-ul-Haq and others 1982 SCM R 269. In the precedent case, claims of both the parties were received in village Sajawalwala, District Bahawalpur from other places. Claim of the petitioner therein was received later in time than that of the respondents. Deputy Settlement Commissioner allotted the land to the respondents but on appeal filed by the petitioner, Additional Settlement Commissioner cancelled the allotment of the respondents and allotted the land to the petitioner. Revision petitioner filed by the respondents was rejected by the Settlement Commissioner. Respondents then filed a writ petition to assail the order of the Additional Settlement Commissioner and the Settlement Commissioner. High Court after examining the material on the record came to the conclusion that claim form of the respondents "reached the village Sajawalwala earlier and was registered at Serial No. 85 of R.L-II" whereas the claim of the petitioner was received later and entered at Serial No. 87 of R.L-II. It was, therefore, held that in the light of the principle 'first come first served' as contained in the instructions, responents had preferential right to the allotment of the land. Petitioner, in the precedent case sought leave to appeal against the judgment of the High Court but it was refused by the Supreme Court of Pakistan with the following observations:- "As would appear from the order of the High Court, the conclusions drawn by the Settlement authorities against the respondents were wholly, unjustified as they were not borne out from the material or record. Therefore, the conjectural inferences drawn could not in law, suffice to deprive the respondents of their valuable preferential right to get the transfer of the disputed land."
' The aforementioned observations of the Supreme Court clearly show that the respondents therein whose claim had reached the village Sajawaiwala earlier in time were held to have "valuable preferential right to get the transfer of the disputed land".
6. In yet another case Muhammad Shafi v. Chief Settlement Commissioner 1968 SCMR 121, principle of 'first come first served' was referred to with approval. This, too, was a case in which unsatisfied units of three claimants were transferred on different dates to Chak No. 318/H.R, Tehsil Fortabbas, Bahawal Nagar District. Allotments were made to all of them irrespective of the dates on which their claims were transferred to the Chak. Thus, the rule of priority on the basis of principle 'first come first served' was not applied but the claimant/ claimants who could claim priority in the matter of allotment on the basis of aforesaid principle do not appear to have agitated their preferen tial claim by invoking this principle. On the other hand, successors of Muhammad Qasim claimant whose claim had reached the village last of all moved a writ petition in the High Court claiming all the land allotted to other two parties. Writ petition was dismissed. Petition for Leave to Appeal filed by them was also dismissed by the Supreme Court with the observation that the final grants made to all the three claimants "approximate most closely to the requirements of equity.
The demand of Muhammad Qasim to full satisfaction of his claim, to the exclusion of Said Muhammad and Din Muhammad was plainly unconscionable and was rightly refused".
7. Although the rule of priority on the basis of principle 'first come first served' was not applied in the last mentioned precedent case because none of the claimants asked for it, the following observations in the judgment however, clearly indicate that the Supreme Court approved the principle aforesaid:- "On the point of priority, then, the order would appear to be (1) Said Muhammad, (2) Din Muhammad, (3) Muhammad Qasim. If the 'first come first served' principle had been applied Said Muhammad should have got his units in full, and the balance should have ---gone to Din Muhammad, any left over units going to Muhammad Qasim."
8. Principle of 'first come first served' was also pressed into service in a case reported as Muhammad Dawood Khan v. Rehabilitation Commis sioner PLD 1961 Kar. 225 to uphold the allotment made to a claimant who was not sitting allottee of the village. Although the facts are not clear from the report but it appears from the observations made in the judgment that the other claimant whose allotment was quashed in the writ petition was also not temporary allottee of the village and his claim was received later in time.
9. It is thus, quite clear from the case law referred to above that the superior Courts have recognized, approved and applied the principle of 'first come first served' even in cases of transfer of surplus units to a village where the claimants were not sitting allottees. The principle in question is. therefore, fully applicable to the instant case. Petitioner's A unsatisfied units were admittedly received in village Jassoke before the claim of respondent No.1 had been transferred to that village.
That being so, petitioner had a preferential right to the allotment of the land in dispute.
10. Grievance of the petitioner is that while his units were pending, land in dispute was transferred to respondent No.1 in the absence of the petitioner and without his knowledge and on an incorrect report of the subordinate staff that no other claim was pending. When the petitioner came to know of this allotment, he preferred an appeal but the same was dismissed by the learned Settlement Commissioner on the short ground that no objection was raised from any quarter when the land in dispute was confirmed to respondent No.1 in 'Jalasa-i-Aam'. It is contended by the learned counsel for the petitioner that Settlement Commissioner dismissed petitioner's appeal summarily without addressing himself to the crucial question of petitioner's preferential claim for the allotment of the land in dispute and even the premises on which the appeal was dismissed were without any basis in so far as petitioner had no notice about the allotment/confirmation to respondent No.1 and as such he had no opportunity to raise the objection. A categoric averment in this behalf has been made in the writ petition which has not been controverted by respondent No.1 who has not filed any written statement. Thus, the positive assertion made in the writ petition and not denied by the respondent shall have to be accepted as correct. Even otherwise no material has been placed on record to contradict the averment of the petitioner that he was given no notice regarding the allotment of the land in dispute although he had a preferential claim thereto.
11. Learned counsel for respondent No.1 submitted that the report of the field staff that no claim was pending was correct in so far as some land had been proposed to the petitioner on his R.L.-II. In reply, it was submitted by the learned counsel for the petitioner that the so-called proposal on the petitioner's R.L.-II was made without his knowledge and this was done in connivance with respondent No.1 with a view to show that the petitioner had been accommodated. Learned counsel for the petitioner further submitted there was no proposal as such nor was any proposal confirmed.
Only some land which was Sailab and Banjar Qadeem was entered on R.L.-II and part of the land so entered consisted of mortgagee rights which had since been redeemed and the remaining land had also been transferred to the occupants. Learned counsel for the respondents was unable to controvert this position. Submission made by the learned counsel for the petitioner is also borne out from the entries made on petitioner's R.L.-II available on this record. Thus, in spite of the entries made on the petitioner's R.L.-II, the fact remains that the petitioner's claim at the relevant time was unsatisfied and was pending as the land entered on his R.L.-II was not duly proposed and/or confirmed to him and part of it was not even allotable.
12. As shown above, petitioner's unsatisfied units having admittedly reached village Jassoki earlier than the claim of respondent No.1, petitioner had a preferential right to the allotment of the land in dispute in view of the well-established principle of 'first come first served'. It is also clear from the record that the petitioner's units were pending when the land in dispute was allotted to respondent No.1. Thus, the orders of the Additional Settlement Commissioner confirming the land in dispute to respondent No.1 as also of the learned Settlement Commis sioner, dated 16-5-1972 dismissing the petitioner's appeal on untenable ground and without attending to his claim of priority/preference over respondent No.1 cannot be sustained in law. Consequently, this writ petition is accepted and the impugned orders are declared to be without lawful authority and of no legal effect and the case is remanded to the learned Chief Settlement Commissioner/Member, Board of Revenue (S & R) with the direction that the case of the allotment/confirmation of the land in dispute be decided afresh in accordance with law and keeping in view the rule of priority based on the principle of 'first come first served'. There will be no order as to costs in the circumstances of this case.