This petition impugns the order of the Settlement & Rehabili--tation Commissioner (Lands), Hyderabad Division dated 4th November 1966, by which the allotment of survey Nos. 172/1 & 2, 173/1, 2 & 3 measuring 9.7 acres in Deh Shahpur Chakar, District Sanghar, was cancelled.
2. According to the petitioners, these survey numbers were provisionally allotted to them against their verified claim of abandoned land in Jind State which is an Agreed area. Subsequently on 12th January 1957 they were issued Parchi Taqsim Khatuni for this land and on 20th August 1964 it was permanently settled vide order of the Assistant Rehabilitation Mukhtiakar (Lands), Sanghar. It appears that respondent No. 2 sometime in 1963 applied to the Deputy Rehabilitation Commissioner for the allotment of these survey numbers against his entitlement of garden land.
The Deputy Rehabilitation Commissioner called for the report of the Mukhtiar kar who submitted two reports; the first is dated 20th March 1963 to which it stated that the petitioners had surreptitiously converted the survey Nos. 172/2, 173/1, 173/2, 173/3 into agricultural land by cutting down the fruit trees with a view to retain the allotment of these survey numbers, to which they were not entitled, and in the second, which is dated 10th July 1963, it is stated that these survey numbers were entered as garden land during the year 1946-47 while there was Kutcha garden on survey No. 172/1. By letter dated 2nd December 1963 the Settlement & Rehabilitation Commissioner, Hyderabad Division directed the Additional Settlement Commissioner to decide the question of allotment of garden as it was within his jurisdiction to allot the area of garden applied for by respondent No. 2.
On 13th May 1965 the Additional Settlement Commissioner (Lands) informed the Settlement Commissioner that he would have allotted these survey numbers to respondent No. 2, had it not been for the fact that the matter was sub judice before the Settlement Commissioner and he returned the relevant papers to him. However, the papers were again returned to the Additional Settlement Commissioner, Sanghar, for deciding the question of allotment, who vide order dated 19th April 1966 allowed the petitioners to retain these survey numbers. According to him, these survey numbers were no longer a garden but had the status of agricultural land and as such no exception could be taken to the allotment v1de. Para. 6(2) (iv); part II Chapter I of the Settlement Scheme. Against this order respondent No. 2 appealed to the Settlement & Rehabilitation Commissioner (Lands), Hyderabad, who vide order dated 4th November 1966 cancelled the allotment of the petitioners and allotted these survey numbers to respondent No. 2. Reliance was mainly placed on the two reports and it was held as a fact that the petitioners had cut down the fruit trees and converted the survey numbers into agri--cultural land with a view to maintain there original allotment.
3. Apart from the question whether this finding is based on any evidence as to the cutting of the trees, the position never--theless remains that the petitioners were allotted these survey numbers in 1953 provisionally, and thereafter Parchi Taqsim Khatuni way issued to them on 12th January 1957 and the allotment was made permanent on 20 August 1964 to terms of section 15(3) of the Displaced Persons (Land Settlement) Act, 1958, their allotment is saved as it is a wand story requirement of law that the earlier allotment shall be converted into a permanent one. At the time these survey numbers were permanently settled, no appeal, revision or review before a Settlement Authority was pending. Mr. A.I Ahmad Fazael also candidly conceded that the miscellaneous application, which is the foundation of these pro--ceedings, was not either in the nature of an appeal, revision or review. Accordingly, there was no bar in terms of the proviso to section 15(3) in the way of permanent settlement of these survey numbers in favour of the petitioners and the survey numbers vested absolutely in the petitioners under section 16 of the Act. The learned counsel, however, contended that the allotment of the petitioners was not in terms of the Scheme as defined in sec--petition 2(7) of this Act for the provisional allotment in 1953 was earlier to the promulgation of the scheme as defined in this sec--petition. It is true that the provisional allotment was made in 1953 yet that allotment is saved by the proviso in the preamble of the scheme itself and in law this allotment shall be deemed to be an allotment under the scheme. No exception can, therefore, be taken to the applicability of section 15(3) of the Act.
4. The learned counsel again urged that the word 'land' as defined in section 2(3) of the Act includes both agricultural land and garden, and since the rehabilitation settlement scheme pro-- vides two different methods for their allotment, a distinction is thus spelt out despite the fact that there is no bar in the Act against the allotment of garden in lieu of agricultural land and at the same time he also conceded that the memorandum dated 23rd November 1956 issued under clause 23 of the scheme did not create a bar but only a preferential right to the allotment of garden if these survey numbers had that status vis-a-vis respondent No. 2 and the petitioners as the category of respondent No. 2 was higher than that of the petitioners. The provisions in the scheme are procedural in nature and even though they provide different methods for the allotment of agricultural land and garden yet they do not have the effect of overriding section 15(3) of the Act which makes no distinction between a garden and agricultural land having regard to the definition of the word 'land' in section 2(3) of the Act. Reference to para. 6 of the scheme, which provides the method for the allotment of garden, would not be of relevant: as this provision was introduced later vide Board of Revenue's letter dated 16th April 1956 whereas the allotment of this agricultural land was made in 1953 and as such it was only capable of pro--spective application and cannot be given retroactive effect to nullify an earlier allotment. Betides, the memorandum cannot also be pressed into service as at the time when this memorandum was issued, respondent No. 2 was not in the picture and it was only after the confirmation of the provisional allotment thatth the Additional Settlement Commissioner cancelled the allotment of the petitioners on the basis of the application given by him. The question of priority therefore in this context also loses its signi-- ficance. Even otherwise it cannot be pleaded to do away with the allotment of the petitioners in view of section 15(3) of the Act which is the overriding provision.
5. It appears to me that the Settlement Commissioner has apparently decided the question, of surreptitious allotment merely upon the report of the Mukhtiar kar in the absence of any evidence that it were the petitioners who had cut the fruit trees to alter the status of the land from garden into agricultural so as to maintain their allotment. There is also nothing in the report to show that the petitioners had fraudulently obtained the allotment of these survey numbers in 1953. What is disclosed in the report therefore is nothing but hearsay, and the petitioners cannot be deprived of their vested right on this inchoate material. There is, therefore, patent defect in this conclusion of fact.
6. The applicability of para. 6(iv) Chapter I, Part II of the Rehabilitation Settlement Scheme is hardly of any relevance in the context of my observations. The order of the Settlement and Rehabilitation Commissioner, Hyderabad, dated 4th November 1966 lacks legal validity and I would therefore declare it as without lawful authority and of no consequence. The petition is allowed with no order as to costs.