This judgment will dispose of this writ petition, Writ Petitions Nos.596/R-75 and 860/R-75 involving common questions of law and fact and arising out of the same impugned order, dated 29-3-1975 passed by the Additional Commissioner (Revenue) with powers of the Settlement Commissioner (Lands), Sargodha Division, Sargodha.
2. The dispute in this case relates to an area measuring 635 Kanals and 11 Marlas situated in Kot Sai Singh-, District Jhang. The case of petitioner Muhammad A.I is that the land measuring 946 Kanals 9 Marlas was allotted to him in 1962. Some Muslim owners challenged this allotment and ultimately the Settlement Commissioner, Sargodha, vide order, dated 9-4-1964 remanded the case for partition of evacuee and non-evacuee share with the observation "that the petitioner Muhammad A.I shall have a prior right over others". The submission is that on partition, the petitioner Muhammad A.I was entitled to the allotment of the entire evacuee land in dispute, but the Settlement Commissioner vide impugned order, dated 29-3-1975 transferred some portions of land to Habib-ur--Rehman etc. (petitioners in Writ Petition No. 860/R-77) and Abdul Ghafoor, since died, (whose legal representatives have been brought on record in Writ Petition No.895/R-75).
3. The case of Abdul Ghafoor petitioner in Writ Petition No.596/R-75 is that the land allotted to him against fifty pending units in Kot Sai Singh comprising Killa Nos.22/2 and 23/1, Square No.121 measuring 10 Kanals 13 Marlas was not included in the allotment earlier made to Muhammad A.I, but notwithstanding that this allotment was challenged in the revision petition filed by Muhammad A.I on the earlier proposal allegedly made on 8-2-1973 which was not confirmed. The precise submission is that the land confirmed to Abdul Ghafoor did not form part of the final allotment of Muhammad A.I and the Settlement Commissioner in the impugned order deprived the petitioner of his lawful allotment without adverting to the relevant record. His further grievance is that the impugned order is discriminatory on the ground that in the case of Habib-ur---Rehman etc., the learned Settlement Commissioner has stated that they were entitled to the allotment for pending units at the time the land became available for allotment in May, 1980, but this consideration was totally ignored while dealing with the entitlement of Abdul Ghafoor. The impugned order has also been challenged on the ground that it was violative of the principles of natural justice, in that, ex parte proceedings were initiated against him without effecting proper service on him.
4. The grievance of Habib-ur-Rehman etc. Is that the land measuring 30 Kanals 5 Marlas allotted to them vide order, dated 17-6-1973 of the Deputy Settlement Commissioner (Lands), Jhang, has been wrongly withdrawn from them vide impugned order, dated 29-3-1975 passed by the Settlement Commissioner (Lands), inasmuch as, this land was never allotted to Muhammad A.I vide order, dated 18-6-1973 passed at Khata No.386/376 of RL-11 on the basis A which petitioner Muhammad A.I has based his claim.
5. Mr. A.R. Shaukat submitted that Ghulam Muhammad predecessor-in--interest of Habib-ur- Rehman filed three claims bearing Nos.7113, 7114 and 7115 which were duly verified. Mr. A.R. Shaukat further submitted that his entitlement was calculated as 2133 Produce Index Units. J-Ie was actually entitled to 2038 Produce Index Units as no compensation was given to him for the Maroos land.
Ghulam Muhammad was confirmed land at Khata No.46 of village Ghumnana equal to 620 Produce Index Units. His entitlement to 1208 units was transferred to Kot Sai Singh leaving a balance of 136 Produce Index Units and were entered at Khata No.94 of RL-11 of Mauza Kot Sai Singh and he was confirmed land for 1270 Produce Index Units as against 1208 transferred with excess by 62 Produce Index Units. This was made on 12-6-1952. Another allotment of 122 Produce Index Units was made in his favour at Khata No.274/94 on 3-11-1956. Here the entitlement was shown as 1379 Produce Index Units against 1208 Units and as such a balance of 122 Units was shown. Ghulam Muhammad in this manner obtained the allotment of 620 Units + 1270 Units + 122 Units = 2042 Units.
6. Mr. A.R. Shaukat, Advocate, also submitted that Ghulam Muhammad filed an application on 12-8- 1971 before the Assistant Commissioner, Jhang, for transfer of 136 produce Index Units from village Ghumnana to Kot Sai Singh. On this application, an order for transfer of the units at their risk was passed by the Assistant Commissioner, Jhang, on 1-9-1971. On the basis of this transfer order they got transferred 183 Produce Index Units as against 136 Units, which according to their own showing were, only pending. At Khata No.390/94 land measuring 71 Kanals 4 Marlas was confirmed in favour of Ghulam Muhammad on 8-2-1973. Further land measuring 40 Kanals 10 Marlas was confirmed in his favour at Khata No.395/94 on 22-5-1973. Yet another land measuring 30 Kanals 5 Marlas was confirmed at Khata No.397/390/94 vide order, dated 14-6-1973 passed by the Deputy Settlement Commissioner. The precise submission is that Ghulam Muhammad got the confirmation of the land made to the extent of their full entitlement i.e. 238 Produce Index Units and as such they were not legally entitled to the subsequent allotments made by them on the above said Khatas measuring 30 Kanals 5 Marlas, as well as, the other land allotted to them which has been maintained through the impugned order.
7. Ch. Qadir Bakhsh, (learned counsel for petitioners in Writ Petition No.596/R-75) contended that land measuring 30 Kanals 5 Marlas was allotted tc Ghulam Muhammad petitioner on 14-6-1973 by the order of the Deputy Settlement Commissioner (Lands). This allotment was cancelled from the names of Habib-ur-Rehman etc. By means of order, dated 29-3-1975 which is subject--matter of the present petition. Against this order Habib-ur-Rehman etc. Have filed Writ Petition No.860/R-75 praying that this allotment of 30 Kanals and 5 Marlas be restored to them. The Produce Index Units of Hoshiarpur District were enhanced by the Central Government in the year 1961 and by virtue of this increase their entitlement was further increased by 280 Produce Index Units. This land measuring 30 Kanals 5 Marlas is not out of the temporary allotment of Muhammad A.I respondent nor it was ever confirmed and was available for allotment at the time when the same was confirmed to Habib-ur-Rehman etc. On 14-6-1973.
8. Ch. Qadir Bakhsh further submitted that the petitioners in Writ Petition No.860/R-75 are sitting allottees of Kot Sai Singh, inasmuch as, they were confirmed the land in this estate as far back as on 1-11-1973 at Khata No.74 whereas Muhammad A.I for the first time was allotted land on 5-11-1962.
So far as the order, dated 4-9-1964 by virtue of which the impugned land was allegedly allotted to Muhammad A.I, it was contended that the same was passed at the back of Habib-ur-Rrehman etc. They were not party to those proceedings and thus any direction given in the same order is not binding on Habib-ur-Rehman etc. Moreover, the law recognises the principle `first come first served' and Habib-ur---Rehman being the senior most sitting allottee had a prior right to the allotment as against Muhammad A.I. The precise submission is that the land measuring 30 Kanals 5 Marlas, which has been taken away from Habib-ur-Rehman etc. By means of the impugned order, dated 29-3-1975 be restored to them.
9. Mr. ZAin-ul-Abidin, Advocate, submitted that Ibrahim filed Claim No.4140 which was verified for 2762 Produce Index Units and land equivalent to 1142 Units was allotted. The entitlement was inherited on the death of Muhammad lbrahim solely by Abdul Ghafoor. Land equivalent to 1142 Units was ellotted to the petitioner to Chak No.91/A/GB, District Sargodha. Surplus unit were transferred to village Sai Singh, District Jhang. Land equivalent to 1092 Units was confirmed at Khata No.238 of Kot Sai Singh on 5-10-1965 leaving the balance of fifty Units unsatisfied. The claim of the petitioner is that he is entitled to the allotment of 10 Kanals and 30 Marlas bearing Khasras Nos.121/22/2 and 23/1 which was confirmed in his favour by the Deputy Settlement Commissioner (Lands) vide order, dated 14-6-19'13 against which revision petition was filed by Muhammad A.I, The petitioner was proceeded against ex parte and his service was illegally effected through proclamation. Mr. Zam-ul-Abidin further submitted that Abdul Ghafoor was never served, therefore, resort to substituted service through proclamation was uncalled for.
10. I have given my anxious consideration to the submissions made byl learned counsel for the parties. The respective pleas taken by learned counsel for the parties turn on the disputed questions of facts which cannot be examined in these proceedings. In any event, since all the parties are in one way or the other aggrieved with the impugned order and the learned Settlement.
Commissioner has not properly adverted to the controversy involved in this writ petition, that is to say, whether the entire disputed evacuee land, subject-matter of this writ petition, was validly allotted to petitioner Muhammad Alt by a competent authority and was, therefore, not liable to be re-allotted to any other person. If the answer to this question is in the affirmative, whether the land allotted to Abdul Ghafoor and Habib-ur-Rehman etc. Did not form part of the allotment made to Muhammad A.I vide order, dated 18-6-1973 passed at RL-11 of Khata N9.386/376. If that is so, what is its effect on the entitlement of the petitioners as Muhammad A.I never challenged before the Settlement Authorities the allotment made to him against the said Khata.
11. In view of the above, the impugned order, dated 29-3-1975 of the Settlement Commissioner (Revenue), Sargodha Division, Sargod,ra, is hereby declared as without lawful authority and of no legal effect. The case is remanded to the concerned Notified Officer for decision afresh after hearing the parties in the light of the observations made in this judgment and in accordance with law. The writ petitions are accepted to the extent indicated above, but the parties shall bear their own costs.