This constitutional petition has been filed to challenge the order of the Judge, exercising powers under Multiple Allotment Act, (herein--after referred to a Judge), dated 14-11-1983 whereby he cancelled the allotment of evacuee land from the names of the petitioners.
2. The brief facts of the case are that the Officer incharge Enforcement Staff Poonch made a complaint before the Judge against the petitioners wherein it was alleged that they had unlawfully obtained the allotment of evacuee land measuring 10 Kanals and 9 Marlas out of Survey No.280, situate in village Jaglari, Tehsil Bagh, District Poonch on 28-11-1977 under Government Order No.25/60. The above allegation was based on the grounds that the petitioners had no separate family and were living with their father, Bagga Khan who owned a considerable property in the village and that the petitioners were also running a Bakery in Hazara District and as such were not covered by the definition of local destitutes so as to be entitled to allotment of an evacuee property under the aforesaid Government Order. The learned Judge found the allegations made against the petitioners in the complaint, to have been proved on the basis of the evidence brought on record and consequently cancelled the allotment of land made in favour of the petitioners.
However, on being moved by the learned counsel for the petitioners, the learned Judge granted the lease of the land in question to the petitioners on payment of annual rent of Rs.200 and further ordered that the same should not be allotted to anybody else. Hence this writ petition.
3. I have heard the learned counsel for the parties and have gone through the documents attached with the writ petition.
4. It has been argued by the learned counsel for the petitioners that the allotment of the petitioners made under Government Order No.25/60 does not fall within the ambit of the Multiple Allotment Act as there was no allegation of the petitioners' having obtained allotment of evacuee land in excess of the scale prescribed under law. It is further argued that the finding of the learned Judge that the petitioners are members of the family of their father and are living with him and not separately is based on the misreading of the evidence on the record and as such the impugned order is unlawful having been passed without jurisdiction.
5. On the other hand, it has been argued by the learned counsel for the respondents that the petitioners were not entitled to any allotment under the said Government Order because they are members of the family of their father who owns land in the village and that the petitioners also do business at Abbottabad and as such are not local destitutes.
6. After giving my due consideration to the above arguments of the learned counsel for the parties and going through the relevant law, I have come to the conclusion that the contention of the learned counsel for the petitioners that the allotment of the evacuee land in the names of the petitioners does not fall within the purview of Multiple Allotment Act, has such force in it. In order to appreciate the above contention, it appears appropriate to reproduce the relevant provisions of the Multiple Allotment Act which read as under:- "Section 2. Definitions. --In this Act, unless there is anything repugnant in the subject or context, the expression;
(a) 'Allotment' includes allotment obtained by a person in his or her own name or in the name of his wife or of her husband or in the name of any relative dependent upon him or upon her, of evacuee property in Pakistan or in the Azad Jammu and Kashmir territory;
(b) 'Government' means the Azad Government of the State of Jammu and Kashmir;
(c) 'Multiple allotment' means the allotment as defined in clause (a) of this section to one person of more than one piece of evacuee property, and any person who obtains the allotment as defined in clause (a) of this section, of more than one such piece for his residence or of more than one such piece for his place of business obtains a multiple allotment provided that:
(i) ...............................................................
(ii) in the case of agricultural land a person who obtains allotment of such land over and above the scale prescribed or scheme approved or that may be prescribed or approved by the Government from time to time shall be deemed to have obtained a multiple allotment;
(iii) ...............................................................
(iv) ..............................................................
(v) ...............................................................
(vi) ...............................................................
Section 3. Powers to re-open multiple and irregular allotments.-
(1) Notwithstanding anything inconsistent contained in any other law or enactment or in any instrument having effect by virtue of such law or enactment, the Government may appoint a person who is or has been a Judge of a High Court to investigate every allotment of evacuee property in respect of which any irregularity by way of multiple allotment has been committed or appears to him to have been committed and authorise him to re-open any multiple allotment.
Where it is found that a person has obtained any multiple allotment the authority appointed to re- open such allotments shall cancel or modify the allotment of evacuee property in the Azad Jammu and Kashmir Territory in such a way that the allotment obtained by him in the Azad Jammu and Kashmir territory or both in Pakistan and the Azad Jammu and Kashmir territory taken as a whole, ceases to be a multiple allotment.
(2) ...............................................................
7. From the perusal of the provisions of section 2 of the Act reproduced above, it becomes quite clear that a person shall be deemed to have obtained the Multiple Allotment of Agricultural evacuee land if it exceeds the maximum scale prescribed by the Government for the allotment of such a land. Similarly under section 3 of the Act reproduced above, the Judge appointed under the Multiple Allotment Act is only empowered to investigate the allotment of evacuee property in respect of which any irregularity by way of Multiple Allotment has been committed or appears to have been committed and to cancel or modify the same in such a way that it ceases to be a multiple allotment. In other words the Judge can only re-open the allotment of multiple allotment and not every allotment of such property made by a competent authority but alleged to be unlawful or irregular on any ground than being over and above the scale prescribed by the Government for such allotment.
8. When the impugned order is considered in the light of the above legal position, there remains no doubt that the allotment of the evacuee land in the names of the petitioners cancelled by the Judge vide the impugned order did not fall within the definition of multiple allotment as given in the Act and as such the Judge had no power to investigate or re-open the same and cancel it. There was no allegation in the complaint filed by the Enforcement Staff before the Judge that the petitioners had obtained the allotment of evacuee land over and above the scale which could be allotted to them under the Government. Order No.25/60 and the only allegation against them was that they being the members of the family of their father and not covered by the definition of local destitute were not entitled to the allotment of the evacuee land at all. The above allegation did not' make out a case of obtaining multiple allotment against the petitioners but that of their securing the allotment of evacuee land without any right or entitlement under the said Government Order. In other words, the legality of the allotment in question was not at all called in question on the ground of it being in excess of the scale prescribed by the Government for such allotment. If the petitioners had no right to the allotment of the land in question under the Government Order No.25/60 and it was thus unlawful on that score, then it could only be cancelled by the appellate or revisions authority of A.R.C. Who had made the allotment and not by a Judge whose, powers are confined to cancel only so much of the land which is found to have been allotted over and above the prescribed scale. As there was no complaint about the petitioners' allotment in question being over and above the scale prescribed by the Government for allotment of the evacuee land under Government Order No.25/60, the Judge could not take cognizance of the complaint made before him by the Enforcement Staff and cancel the allotment from the names of the petitioners.
9. For the reasons stated above, the impugned order of the Multiple Allotment Judge is declared to be unlawful having been made without jurisdiction and of no legal effect and is accordingly set aside. However, this order will not stand in the way of the competent authority to pass any order in respect of the allotment of the evacuee land in the names of the petitioners.