1. ' By this petition the petitioner, has challenged the order, dated 29th October, 1976 passed by the Additional Deputy Commissioner, Hyderabad refusing to cancel the allotment in respect of Surveys Nos. 234, 237 and 238 situated in Deh Chach allotted to respondent No,2 by the Rehabilitation Authorities on 16-10-1968. In order to dispose of this petition it is necessary to state here the following facts which are relevant for determining the controversy:-
1. Petitioner who is claimant displaced person was allotted some land against her Q.P.R., dated 9-7- 1959 on 28-10-1959 in Deh Khokhar and Chach, Taluka Tando Allahyar, District Hyderabad which included Surveys Nos. 559/2, 3, 4 and 115/A, B, C of Deh Chach. It appears that on 3-10-1960 by order of the Assistant Rehabilitation Mukhtiar, Survey Nos.559/2, 3, 4 was excluded from the allotment of petitioner on the ground that it is a Muslim property while Surveys Nos.115/A & B was excluded for the reason that Survey Department has excluded it from the allotment of petitioner. It further appears that on 29-10-1960 petitioner applied to the Deputy Rehabilitation Commissioner, Hyderabad for allotment of Surveys Nos. 234 and 238 in Deh Chach in lieu of the above stated survey number which were excluded from the allotment. In the simple copy of application, dated 29-10-1960 filed with the petition, there is no mention of the Surveys Nos.234 and 238 of Deh Chach but in the original application which is available in the record summoned in the case these survey numbers are mentioned in the aforesaid applications. The learned counsel for the respondent contends that Surveys Nos.234 and 238 were subsequently added in the said application by the petitioner in collusion with the staff of local Rehabilitation Authorities but this argument does not appear to be correct as, firstly there appears to be no tampering in the contents of the application and secondly, on the basis of above application the Tapedar of the area put up a proposal to the Assistant Rehabilitation Mukhtiarkar concerned for allotment of these survery numbers to petitioner on 31-10-1960. The original report of Tapedar, dated 31-10-1960 is available on the record summoned in the case. Be that as it may, on the application of the petitioner, dated 29-10-1960, the Deputy Rehabilitation Commissioner, Hyderabad made an endorsement forwarding the application to Rehabilitation Mukhtiarkar, Tando Allahyar, for settlement of the unsettled claim -of the petitioner. In compliance of the order of Deputy Rehabilitation Commissioner, Tando Allahyar the Tapedar of the area concerned put up a report, dated 31-10-1960 proposing for allotment of Surveys Nos.234 and 238 to the petitioner. On this report the Additional Rehabilitation Mukhtiarkar, on the same day ordered issuance of notice to the unauthorised occupant and also made a further order on the same day that the order of Deputy Rehabilitation Commissioner be complied with. It further appears that on the same day the two survey numbers mentioned above were added in the Khatooni issued to the petitioner under the signature of A.R.M. The case of the petitioner is that upon issuance of MR-V on promulgation of MLR-89 her entitlement was reduced with the result she surrendered several survey numbers including Surveys Nos.234 and 238 but also opted for their repurchase. In so far Survey No,237 is concerned it continued to remain in the original allotment of the petitioner against her verified claim. The further case of the petitioner is that she paid the entire transfer price after having exercised the option under MLR-89 to repurchase the surrendered land which included disputed Surveys Nos.234 and 238. It appears that on 16-10-1968 Surveys Nos. 234, 237 and 238 were allotted to respondent No,2 against her claim through Parchi Takseem Khatooni issued on the same date. It appears that after the allotment of the land to Respondent No,2 there was dispute between the petitioner and respondent No,2 which led to the filing of an application before the Deputy Commissioner, Hyderabad on 26-9-1975. This was followed by another application of the petitioner, dated 7-11-1975 in which a prayer was made that the allotment in favour of respondent No,2 in respect of Surveys Nos.234, 237 and 238 of Deh Chach is a duplicate allotment and therefore the allotment in favour of respondent No,2 may be cancelled. The learned Additional Deputy Commissioner who decided the above application, however, rejected the application on two-fold grounds. It was firstly held that the record did not support the contention of the petitioner that she was validly allotted the land as there was no corresponding entry in the R.L.II Register and secondly it was also found that the application in any case for cancellation of the allotment of respondent No,2 was belated. In this petition the original record of the allotment in favour of the petitioner and respondent No, 2 was summoned and it is available in this Court. After going through the record it is quite clear that there is neither any tampering of the record nor anything has been mischievously done as stated by the learned Additional Deputy Commissioner in this order impugned in this petition. There is abundant material available on record to show that the petitioner did make an application to the Authorities concerned for allotment of Surveys Nos.234 and 238 in lieu of the land which was taken away from her allotment and after following due procedure the said allotment was made in her favour. It is quite evident from the original application, dated 29-10-1960 filed by the petitioner before the D.R.C., the report of the Tapedar, dated 31-10-1960 and the two orders of A.R.M., dated 31-10-1960 that Surveys Nos.234 and 238 were allotted to petitioner. The contention of the learned counsel for the respondent No,2 is that although the allotment has been made by the A.R.M. By adding the survey numbers in the Khatooni but under the law a confirmation of such an order passed by A.R.M.
2. Is required necessarily by the D.R.C. As I am not decided this question finally in this writ petition this contention is open to be raised before the authorities to whom the case is being remanded. I will only here mention some of the facts which has escaped the attention of Additional Deputy Commissioner while he was deciding the application filed by the petitioner for cancellation of alleged duplicate allotment in favour of respondent No,2. From the record it is quite clear that an allocation order was passed by the Deputy Commissioner concerned which is available in file No,150-27-22 relating to surrender land which shows that the Deputy Commissioner concerned has allowed the repurchase of surrender land which included Surveys Nos. 234 and 238. The record also shows that some installments were paid in the year 1962 and 1964 but on the copies of challan, survey numbers are not mentioned. Learned counsel for respondent No,2 contends that allocation order issued to petitioner for repurchase of surrendered land was cancelled by the Board of Revenue in the year 1975 on account of default of petitioner in payment of the installment and as such the land was validly transferred to respondent No,2. According to petitioner, land was allotted to respondent No,2 in the year 1968 while according to respondent No,2 the allocation order in favour of petitioner was cancelled in 1975. However, in the impugned order these facts are neither noticed nor decided although they had important bearing on the issue raised before respondent No,1. From the correspondence which is available in the original record relating to surrendered land, it appears that the petitioner was unable to pay the installment within time and she made representations to the Local Rehabilitation Authorities/Revenue Authorities for extension of time.
3. There are several letters on the record of this file which show that she was allowed time by the Board of Revenue to clear the dues within a specified time but it is also clear that she was unable to pay the dues within the time allowed by the Board of Revenue. The last letter in this regard is, dated 1-9-1975 by which the Deputy Secretary (Land Utilization), Board of Revenue, Sind informed the Deputy Settlement Commissioner that the petitioner has been allowed to make payment of all outstanding dues within a period of two months from the date of issue of order and restoration was promised to be issued on receipt of compliance and report within the stipulated period. A copy of this letter which is, dated 1-9-1975 was also forwarded to the petitioner. It appears that in spite of this letter Mst. Sabra Khatoon, petitioner, failed to clear the dues within the time allowed by the Board of Revenue and, therefore, the Additional Commissioner, Hyderabad sent a .Letter, dated 19- 2-1976 informing the Board that the petitioner had failed to make payment within the stipulated period of two months. However, it is also mentioned in that letter that after the cancellation order the payment has been made on 28-11-1975 and a copy of the challan was accordingly forwarded to the Board of Revenue for consideration. In reply to the above letter of Additional Commissioner, the Board of Revenue made enquiry from the Additional Commissioner by letter, dated 30th March, 1976 if the price paid by the petitioner covered the full price of the land or still some dues were recoverable from the petitioner. Thereafter, it appears that on 27-8-1976 the Board of Revenue took the view that since the remaining price of the land was paid by the petitioner after expiry of period granted to her it was ineffective and accordingly her allotment was cancelled. Learned counsel for the petitioner on the other hand produced clearance certificate, dated 20th May, 1976 which shows that she paid the entire ,transfer price of the surrendered land. These facts are not noticed by the Additional Commissioner while deciding the request of the petitioner for cancellation of the duplicate allotment in respect of Surveys Nos.234 and 238 of Deh Chach. In so far Survey No,237 of Deh Chach is concerned, respondent No,1 refused to cancel the same from the allotment of respondent No,2 on the ground that as no rehabilitation fee was paid by the petitioner in respect of this survey number in time, therefore, the land was rightly allotted to respondent No,2. This reasoning of respondent No,1 does not seem to be correct as mere non-payment of rehabilitation fee cannot be a ground for allotting such land to another claimant. Learned counsel for respondent No,2 was unable to point out any order in the original record whereby Survey No,237 was cancelled or excluded from the allotment of the petitioner. However, as I propose to remand the case back to the Notified Officer for purposes of reexamining the case and for a fresh decision according to law, I will refrain from expressing opinion in this aspect of the case as well. I accordingly accept this petition and declare the order of Additional Deputy Commissioner, dated 20th October, 197 without lawful authority. The case is remitted back to the Notified Officer with the direction to dispose of the application in the light of the above observations. It is, however, clarified that the legal objections raised by the learned counsel for, respondent No,2 regarding maintainability of application and that the allotment made by the A.R.M. Required confirmation of D.R.C. Will be open to be agitated before the Notified Officer. The parties will also be at liberty to produce any other document which is relevant to the controversy during the course of proceedings before the Notified Officer. There will be no order as to costs.
4. Petition allowed.