This Constitution petition was directed against the order dated 14-7-1981 of the respondent Border Area Committee whereby the .allotment of land in favour of the petitioner at Khata RL-11 B-36 was cancelled and the petitioner was joined alongwith his brothers Khushi Muhammad and Muhammad Din, Jauridaran at Khata RL-11-B-37. The Border Area Committee while so joining the petitioner with his brothers was of the view that the allotment obtained by the petitioner at Khata RL-II-B-36 was obtained fraudulently by showing Bashir a minor as his Jauridar. This Bashir was in the opinion of the Border Area Committee aged about 5 years at the time of allotment. It is also mentioned in the impugned order that as the age of Bashir alias Allah Rakha is now 18 years, he would be in the year 1960 approximately of 1 or 2 years.
2. Mehr Din petitioner, was allotted land in dispute in the year 1954 by the Rehabilitation Authorities under the scheme then in force. The order of allotment was challenged in appeal and during the hearing of this appeal. Bashir Ahmed, Jauridar appeared alongwith, Mehr Din. The allotment so obtained by Mehr Din alogwith Bashir Ahmed was upheld after noting that Bashir Ahmed is an adopted son and is living with Mehr Din since partition. The question of minority apparently was not raised at that time and had Bashir Ahmed who appeared before the officer, appeared to be minor the said fact would have been noted. Bashir Ahmed the adopted son of Mehr Din is present in Court today. From appearance he looks to be 45/50 years of age. Be that as it may, the allotment of Mehr Din alongwith Bashir Ahmed under the Jauri scheme was upheld. Even in the impugned order the view of the Border Area Committee is that at this late stage it will be too unjust to dislodge Mehr Din, allottee and made to join his two other brothers who are in possession of land measuring 121 Kanals and 1 Marla as against 63 Kanals and 1 Marla of land allotted to them at Khata RL-II-B-37 for the reason that the said allotLees were in possession of excess land. Thus, the Border Area Committee has in their own way and according to own thinking have allowed Mehr Din to retain his allotment. This arrangement, however, is not acceptable to Mehr Din petitioner who states that he should be allowed to retain his own land which he has been cultivating and which has been developed by him since after partition and if the brothers are in possession of land in excess of their entitlement, the said land may be withdrawn, if it is necessary.
3. Learned counsel for the Border Area Committee on the other hand submitted that the allotment obtained by Mehr Din was found to be bogus as in the year 1954 he alone could not have obtained the allotment under the Jauri scheme because his adopted son was minor and as such could not be included as Jauridar but the Committee taking equitable view allowed him to join his brothers as under the jauri scheme all the brothers are to be settled at one and the same place. He further added that a copy of the order placed on record alongwith the rejoinder cannot be relied upon as it is a photo copy. This copy was filed on record alongwith rejoind, dated 7th February, 1982 and in these 10 years, the Border Area Committee has not rebutted the same in any manner. Even on the last date of hearing, reliance on this copy was placed and it is, therefore, apparent that learned counsel for the Border Area Committee at least from the previous date of hearing was aware of the fact that they said copy is being relied upon but still nothing was brought on record: to challenge the authenticity of the said copy. Be that as it may, the $order- Area Committee, as noted above, has allowed Mehr Din, petitioner to retain the allotment of land by allowing him to join in the allotment of 121 Kanals and 2 Marlas. If that is so why the petitioner be not allowed to retain the land which A is in his occupation since 1954. In this view of the matter, shifting of the petitioner to the other land is being rightly challenged and the petitioner is justifiably aggrieved of his shifting to the other place. The order to that extent as such is arbitrary and without lawful authority. The petitioner shall, therefore, be allowed to retain his own allotment. Anything said in this order A would not debar the Border Area Committee from withdrawing the excess land, if any, from the other two brothers while taking appropriate action in accordance with law.
4. The petition succeeds and is allowed in the above terms with no order as to cost.