' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is filed to challenge the order of Settlement Commissioner (Lands), Hyderabad, dated 28-6-1974. The Writ Petition has been filed by the petitioner in the following circumstances: ' The petitioner, who is a claimant from agreed area of Alwar State, was allotted garden land, measuring 1.27 Acres, consisting of Survey No, 83(1.3) and Survey No, 77 (0.24), situated in Deh Massohab, Tappo Aqil, equivalent to 85 units, on 21-7-1955. The petitioner was also allotted agricultural land, bearing Surveys Nos. 569, 706, 708, 626, 697, 134, 808, 826, 472, 625, 807, 62, 486, 519, 628 and 698 in Deh Larkana on 10-1-1956 under the Sind Rehabilitation Settlement Scheme and was put in possession of these lands. Parchi Taqseem Khatoni in respect of agricultural land was initially issued to the petitioner on 28-2-1957. It appears that the abovementioned lands, allotted to the petitioner, were subsequently allotted to several other elaimants, who were from non-agreed area, in the year 1959-60. The petitioner filed appeal before the Deputy Commissioner/Additional Settlement Commissioner (Lands), Larkana, against the allotment of the above land to the claimants from non-agreed area, but his appeal was dismissed on the sole ground that the land in question was urban agricultural land and situated within three miles from the Municipal Limit. The petitioner challenged the order of Deputy Commissioner/Additional Settlement Commissioner (Lands), Larkana, before the Settlement Commissioner, Sind at Hyderabad in Revision No, 185/4-22- Reh.
71. The learned Settlement Commissioner, after hearing the parties, restored all the agricultural land allotted to the petitioner under the Sind Rehabilitation Scheme, except garden land, bearing Survey No, 83, measuring 1.3 Acres, situated in Deh Massohab. The learned Settlement Commissioner refused to restore the allotment of garden land, bearing Survey No, 83, situated in Deh Massohab on the ground that the petitioner did not have a verified claim of garden land abandoned in India. The learned counsel for the petitioner contends that, under paragraph 6 of Chapter 1 of part II of Rehabilitation Scheme, garden land in Sind, the area whereof was less than 4 Acres, could be allotted as agricultural land in satisfaction of the claim of a claimant, who had a verified claim in respect of agricultural land alone. Paragraph 6 of the Scheme, relied upon by the learned counsel, is as follows:- "6. ALLOTMENT OF GARDENS:- The Deputy Rehabilitation Commissioner will allot evacuee gardens to the extent specified below and include them in Rehabilitation Settlement Scheme of agricultural land:-
(i) Of 3 Acres or less in districts. Of the former Punjab;
(ii) Of less than 4 Acres in the districts of the former Bahawalpur and Khairpur State and Sind Province."
A reading of the above paragraph of the Scheme will show that the Deputy Rehabilitation Commissioner could allot evacuee gardens and include them in the rehabilitation scheme of agricultural land in the case of Punjab Province, where the area did not exceed 3 Acres, and, in the case of former Bahawalpur and Khairpur States and Province of Sind, where the area was less than 4 Acres. In the instant case, the total area of Survey No, 83, which was refused to the petitioner by the Settlement Commissioner was only 1.3 Acres, and the total garden land allotted to the petitioner under Parchi Taqseem Khatoni, dated 28th February, 1957, was 1.27 Acres only. There is nothing in the order of the Settlement Commissioner to show that the garden land allotted t the petitioner was in excess of the entitlement of the petitioner in respect of the agricultural land. To support his contention, that the allotments made under the Settlement Schemes were protected and could not be cancelled by the Settlement Authorities, the learned counsel has referred to two unreported judgments in the case of Muhammad Zaheer and others v. Additional Rehabilitation Commissioner, Hyderabad, Writ Petition No, 858 to No, 860/58, decided on 19-12-1960, and Muhamma' Hussain v. Rehabilitation Commissioner, Petition No, 197/R of 1958, dated 3rd June, 1958.
Both these decisions support the contention of the learned counsel for the petitioner that the allotment made unde the Settlement Schemes could not be cancelled, where the allotment was not in excess of the entitlement of the petitioner. As it has not been found in the impugned order, dated 28-6-1974, that the allotment o garden land, measuring 1.3 Acres of Survey No, 83, was in excess of the entitlement of the petitioner, there was no reason for not restoring the same in favour of the petitioner. I accordingly accept this petition and declare the order of the Settlement Commissioner, dated 28-6-1974, refusing to restore Survey No,, 83, measuring 1.3 Acres in Deh Massoha to the petitioner as without lawful authority. The result of the declaration will be that the garden land, bearing Survey No, 83, shall be deemed to be duly allotted to the petitioner. As the respondents have not appeared and defended this petition, there will be no order as to costs.