' The present case, as its facts and their peculiar nature would explain, is being taken up in my capacity both as Member (Cons), Board of Revenue and Chief Settlement Commissioner. The matter has come up before me on the revision petition under section 13 of the Consolidation of Holdings Ordinance 1960 to impugne the order of the Additional Commissioner (Consolidation), Bahawalpur Division, dated 6-11-1991 whereby he directed the implementation of an allotment made by the Settlement Authority, a part of which is said to be void and of no legal effect.
2. The admitted facts are that on 30-8-1965 vide Khata RL.II No,105, Muhammad Abdur Rashid respondent No,1, a claimant/displaced person was allotted 26k-9m land equivalent to 79 PIUS, against his verified claim, in village Habib Missan, Tehsil and District Bahawalpur, out of Khewat No,187 of Jamabandi of 1963-64, comprising Killa No,16-A (4K-O), 25 (8K-O) of Rectangle No,515/7, Killa No,21 (8K-0) & 22 (6K-9m) of Rec. No,515/11. This allotment was not implemented in the Revenue record till 1975 when the Consolidation scheme of this village was confirmed and the Assistant Consolidation Officer vide his order dated 18-5-1975 reduced the entitlement of respondent No,1 from 26k-9m to 9k-8m on the ground that the land over and above 9k-8m was non-evacuee/Muslim share and had been wrongly allotted to him.
3. The respondent No,1 filed an appeal before the Collector (Consolidation), Bahawalpur who vide his order dated 7-4-1977 set aside the order of Assistant Consolidation Officer, dated 18-5-1975 and remanded the case for fresh decision keeping in view the entries in the Record of Settlement Department. The Consolidation Officer did not decide the matter, and forwarded the case to the Collector (Con) with his report dated 21-2-1990. According to this report, Khewat No, 187 was jointly owned by the Muslims and non-Muslim evacuees. Total land of evacuees in this Khewat was 42k- 15m out of which land 24k-9m was sold away by the non-Muslim owners prior to settlement of 1930-31. Thus 18k-6m land was left with the non-Muslims in this khewat. Out of this, Ahmed Ali son of Gulla Mall who had embraced Islam and his previous name was Behari Mall sold away 8k-18m land leaving 9k-8m in the share of the non-Muslims. The Khata was not partitioned prior to confirmation of land in favour of respondent No,1 as a result of which the Muslims' share was also erroneously allotted to the said respondent. The Consolidation Officer further reported that respondent No,1 was in occupation of only 9k-8m land which was share of the evacuees while the Muslim owners were in possession of their share of 17l-lm land. On this report the Collector (Cons), after giving an opportunity of hearing to the parties and after inquiry at the spot held respondent No,1 entitled to only 9k-8m land and after imposing a cut:of 2 Marlas on account of "rifa-e-aama" gave him 9k- 6m, vide his order dated 30-9-1990. The remaining 17k-lm land was adjusted against the wandas of the petitioners and respondents 2 to 4. Respondent No,1 filed an appeal in the Court of the Additional Commissioner (Cons). Bahawalpur who vide his order dated 6-11-1991 accepted the appeal and set aside the order of the Collector (Cons), dated 30-9-1990 on the ground that the Consolidation authorities were not competent to decide about the title of the parties. He observed that respondent No,1 was allotted 26k-9m land. His allotment was still intact and had not been at set aside by any competent authority. Hence he was entitled to be given land in the Consolidation scheme to the full extent of his allotment. The Additional Commissioner (Cons) therefore, directed that the ownership of respondent No,1 as per his allotment be restored by incorporating necessary entries in the Record of Rights. The petitioners were left to seek remedy from the proper forum, who .Have accordingly come up before this Court in revision.
4. Arguments of the Counsel for the parties have been heard and record perused.
5. The position emerging from the Record is too clear and is not denied by either of the parties that the land allotted to respondent No,1 over and above 9k-8m was wrongly treated as evacuees and confirmed in the name of respondent No,1 The Record shows that out of the land confirmed in his name 17k-1m belonged to Muslims' share and was not allotable. The allotment of Muslims-owned land to any displaced person against his claim is undoubtedly void and a nullity. Be that as it may, it is not open to every one including the Consolidation authorities to discard such allotment at their will. Unless such allotment is declared unlawful and is withdrawn by an appropriate judicial authority, the same would hold ground and be binding. I cannot, therefore, disagree with the Additional Commissioner (Cons) that the Collector (Cons) could not disregard the allotment of respondent No,1 and reduce his entitlement simply by treating the allotment as partly void.
6. On the other hand, the order of the Additional Commissioner (Cons), dated 6-11-1991 has its own legal flaws and anomalies. Firstly, the direction to implement the allotment of respondent No,1 to its full extent would amount to giving effect to an order which is substantially void and against law, and secondly, such a direction has the effect of nullifying the ownership of Muslim proprietors which is beyond the powers of the Consolidation Courts who have no legal authority to deprive them of their ownership. Viewed from this aspect the order of the Additional Commissioner (Cons) is patently irregular and against law.
7. The major defect in this case arises out of the allotment made by the Settlement authority in favour of respondent No,1 whereby Muslims' owned land was wrongly allotted to him. The difficulty can only be resolved if the position is rectified by the proper forum once and for all. The appropriate forum can be the Chief Settlement Commissioner and none else. Thus, the circumstances of the case plainly warrant that cognizance of the matter be taken on the Settlement side as well. It is established beyond any doubt and even admitted between the parties that the allotment dated 3-8-1965 made in favour of respondent No,1 includes Muslims share to the extent of 17k-lm which is ab initio void and against law and cannot be allowed to stand.
Accordingly in my capacity as Chief Settlement Commissioner, I hereby cancel/withdraw the said allotment at Khata RL.II No, 105 to the extent of 17k-lm with the result that the allotment only to the extent of 9k-8m would stand intact.
7. It is further observed that the defective allotment was made in favour of respondent No,1 due to the fact that the Muslim and non-Muslim share in the relevant Khata had not been partitioned at the relevant time and the concerned Settlement Authority failed to scrutinize the Revenue record. In all probability, if the record had been consulted at the time of making the allotment, the anomalous situation would not have arisen. Obviously the fault lies with the Settlement Department and the allottee/respondent No,1 cannot be made to suffer cancellation of his 2/3 entitlement for no fault on his part. The fault in the allotment was first noticed during the Consolidation, before coming into force of the Displaced Persons Laws (Repeal) Act 1975 and since then the question of sustainability of the allotment in its entirety has been pending adjudication with various judicial officers. Hence, by all standards, the case falls within the ambit of "pending proceedings" which are- saved from the operation of the Repeal Act of 1975. It is, therefore, a fit case where the Callottee/respondent No,1 should be compensated for the loss of land caused to him by the mistake of the Department. Accordingly in exercise of my powers as Chief Settlement Commissioner, I hereby order that respondent No,1 should be allotted alternative land, out of the disposable evacuee land available any where in Tehsil or District Bahawalpur, equivalent to the number of PIUS as may be worked out for 17k-lm land cancelled from his allotment at Khata RL.II No,105.
8. As for the present revision petition which has to be disposed of under the provisions of Consolidation of Holdings Ordinance 1960, I have already observed that the order of the Additional Commissioner (Cons), dated 6-11-1991 is not sustainable in that it deprives the Muslim owners/petitioners of their ownership which is not permissible under the law. Hence the 1 revision petition is accepted and the said order of the Additional Commissioner, dated 6-11-1991 is set aside.
The allotment of respondent No,1 to the extent of 17k-lm having been undone and the order of the Additional Commissioner, being no more on the scene, the wandas of the parties as approved by the Collector (Cons), vide his order, dated 30-9-1990 would stand restored. . V