' The petitioners were allotted land measuring 18 Kanals 18 Marlas bearing Khasras Nos. 3101,3102 and 3107 situated in Mahal Khokhar, Sambrial, Tehsil Daska, District Sialkot, against the claim of their father Karim Khan, who migrated to Pakistan on its establishment. The aforementioned land was initially allotted to them temporarily, but subsequently, the allotment was confirmed. On 17-5- 1972, the Additional. Deputy Commissioner exercising the powers of the Additional Settlement Commissioner cancelled the petitioners' allotment of Khasra Nos. 3102 and 3107 without issuing any notice to them. On 21-11-1972, the petitioners preferred appeal against the aforementioned order to the Additional Commissioner, Lahore, who exercised the powers of the Settlement Commissioner.
The appeal was, however, transferred by the Additional Commissioner, Lahore, on 11-12-1973 to the Additional Deputy Commissioner/Additional Settlement Commissioner, Sialkot, for disposal before whom it remained pending for sometime, but was ultimately dismissed on 15-4-1974 on account of non appearance of the appellants. The appellants moved the Additional Deputy Commissioner/Additional Settlement Commissioner for restoration of their appeal and submitted an application in that behalf on 29-11-1975. The Additional Deputy Commissioner/Additional Settlement Commissioner refused to restore the appeal and dismissed the appellants' application on the same day when it was filed. According to the petitioners, after the transfer of their appeal to the Additional Deputy Commissioner/Additional Settlement Commissioner, they did not receive any notice from him. The order of dismissal of the appeal for non-prosecution was illegal and the refusal of the Additional Deputy Commissioner/Additional Settlement Commissioner, Sialkot, to restore their appeal was wholly unwarranted. After the cancellation of the petitioners' allotment of land comprising Khasra Nos. 3102 and 3107, it was allotted to Kanwar Aftab Ali Khan respondent No, 2 on 2-3-1973. The petitioners have challenged order, dated 17-5-1972 of the Additional Deputy Commissioner, Sialkot, cancelling their allotment in respect of land comprising Khasra Nos 3102 and 3107 and the subsequent allotment of the said land on 2-3-1973 made in favour of respondent No, 2 as being illegal and without lawful authority by invoking the constitutional jurisdiction of this Court. They have also assailed the order of the Additional Deputy Commissioner/Additional Settlement Commissioner whereby their appeal was dismissed on 15-4-1974 and the application for restoration of the appeal was turned down on 29-11-1975.
2. The petitioners have contended that land comprising Khasra Nos. 3102 and 3107 has remained in their continuous possession since 1948 and after the confirmation of its allotment in the year 1964, they had acquired absolute title in the said land. According to the petitioners, the allotment of the aforementioned land could not be cancelled on the ground that it was situated in the urban land while the petitioners' claim was in respect of rural land, because after the temporary allotment of the aforementioned land in their favour, it had remained in their continuous possession and as such they were eligible for the adjustment of their claim in respect of the rural land. After the confirmation of the allotment in their favour, the plea of non-availability of the urban land for adjustment against the claim of rural land could not be raised especially when land comprising Khasra No, 3101 which too was an urban land was allowed to remain with the petitioners.
3. None of the respondents appeared in Court when the writ petition came up for hearing.
Respondent No, 2 had been proceeded against ex parte on 8-6-1981 when he had failed to appear in Court after his service was effected through citation. As the contest was apparently between the petitioners and respondent No, 2, the Settlement Department did not consider it necesssary to put in appearance in Court in this case.
4. Learned counsel for the petitioners has referred to the memorandum No, 2586-6314248-R(L) issued by the Chief Settlement and Rehabilitation Commissioner on 26-6-1963 whereby the displaced persons were permitted to retain their urban agricultural, land against their verified entitlement for rural land or for urban and rural land combined subject to the maximum scale of allotment fixed by the Chief Settlement Commissioner under paragraph 8 of the Supplementary Scheme No, 2 and allotments already made in excess of the prescribed scale with the permission of the Central Government were allowed to remain intact. According to the learned counsel, the petitioners fulfilled the requirements laid down in the aforementioned memorandum inasmuch as they were holding the land in question as temporary allottees when the memorandum was issued and as such were eligible to get the permanent allotment of the land in question against their verified claim of rural land. Learned counsel has stated that cancellation of allotment of part of the land permanently transferred to them without notice to the petitioners is not sustainable. For similar reason dismissal of the petitioners' appeal by the Additional Deputy Commissioner/Additional Settlement Commissioner on 15-4-1974 was without jurisdiction.
5. In view of the instructions contained in the memorandum, dated 26-6-1963, referred to by the learned counsel for the petitioners, the allotment of the land comprising Khasra Nos. 3102 and 3107 in favour of the petitioners, could not be cancelled on the ground that the land comprised in the said Khasra numbers was urban land while the petitioners' verified claim was in respect of the rural land. Even otherwise, the order of cancellation of allotment was illegal as having been passed behind the back of the petitioners. Consequently, the subsequent allotment of the aforemantioned land in favour of respondent No, 2 is also illegal and without lawful authority. The present writ petition filed by the petitioners is accepted and order, dated 17-5-1972 passed by the Additional Deputy Commissioner/Additional Settlement Commissioner, Sialkot, cancelling the petitioners' allotment of land comprising Khasra Nos. 3102 and 3107 and order, dated 2-3-1973 whereby the aforementioned land was allotted to respondent No, 2, are declared illegal and without lawful authority and are accordingly set aside. In view of the circumstances of the case, no order is made as to costs.