SAVED ZAHID HUSSAIN, J.- Order dated 22.10.1987, passed by the Asstt. Commissioner/Collector/Dy.
Settlement Commissioner (Land), Pasrur in pursuance of an order passed in W.P.No. 148-R/85, has been challenged by the petitioners through this petition under Art. 199 of the Constitution which arises in the following circumstances :-
2. The petitioners claim to be the allottees of x land measuring 63 kanals, 18 marlas, situated in Village Panwana, Tehsil Pasrur, District Sialkot as Jammu & Kashmir Refugees. On introduction of scheme for grant of proprietary rights in the year, 1974, they claim to have made an application for the grant of proprietary rights which was granted by the Asstt.
Commissioner; Pasrur. They were directed to deposit Rs.2160/- which they claimed to have deposited. Respondents No.1 and 2 made an application dated 11.3.1980 to the Asstt. Commissioner claiming that they were also temporary allottees alongwith the petitioners but their names were not included in 'Fard Taqseem' and that they had paid the share of dues to the petitioners but the same have been deposited by the petitioners in his name alone. It was their prayer that in the mutation their names should also be included. Thereafter, a direction was issued by the Asstt.
Commissioner for the sanction of mutation accordingly including the names of two respondents i.e., Munir Hussain and Nazir Hussain. A mutation was thereafter sanctioned on 19.8.1981 in favour of the petitioner Nazar A.I, Mst. Hanifan Bibi, his wife, Mst. Irshad Bibi and Mst. Shamshad Bibi, his daughters and Munir Hussain, Nazir Hussain sons of Ghulam Hyder. Aggrieved of the same, an application for review/appeal was filed by the petitioners before the Asstt. Commissioner/Collector, Pasrur, who by his order dated 4.4.1982, rejected the contention of the petitioners that Munir Hussain and Nazir Hussain were not members of his family and that their names were wrongly mentioned in the Robkar, issued by the Asstt. Commissioner. He took note of the fact that the said Munir Hussain and Nazir Hussain respondents had not been granted anywhere proprietary rights and were entitled by all means to the grant of proprietary rights as family members of Nazar A.I, who was the head of the family. An appeal was filed by the petitioners against the said order which was dismissed by the Addl. Commissioner. His revision before a Board of Revenue also met the same fate. He, thereafter, filed W.P.No. 148-85, which was disposed of on 8.12.1985 which order in view of the relevancy of the same is reproduced hereunder :- "It is complained that the application for proprietary rights was only given by Nazir A.I and his immediate family members and that while issuing the Robkar through interpolation and forgery the names of respondents No. 1 and 2 have been inserted in the same.
2. I do not think there is any occasion to rush to this Court on the allegation that there has been an unauthorised interpolation by an Ahlkar in the Robkar because if the order of the Assistant Commissioner has been tampered with or interpolated by a subordinate, it is for the petitioner to go to the Assistant Commissioner who shall entertain his grievance, hold an inquiry and he is not powerless to ensure that his record is corrected. Only after the Assistant Commissioner has undertaken the exercise and heard both the parties that the occasion would arise for coming to this Court.
With these observations, the writ petition stands disposed of."
3. It is contended by the learned counsel for the petitioners that ; the name of Munir Hussain and Nazir Hussain, respondents, were mentioned in the Robkar/order of the Asstt. Commissioner through interpolation later on at the time of the implementation and that ; they being not members of the family of the petitioners were not entitled to the grant of proprietary rights. It is contended that it was the petitioner alone who paid the dues and was entitled to the grant of proprietary rights to the exclusion of the said respondents. He relies on a memorandum issued by the Board of Revenue on 30.4.1978 that the proprietary rights are to be granted only in the name of the head of the family.
4. The learned Asstt. Advocate General, Punjab has supported the order of the Asstt. Commissioner impugned in this petition on the ground that a factual inquiry was conducted by him, as a result whereof, findings of fact have been recorded which cannot be assailed through a constitutional petition. It is contended by him that pending the present petition, another inquiry was conducted by the Asst. Commissioner, who also recorded the findings after thorough probe that respondents No. 1 and 2 were entitled to grant of proprietary rights and the allegation of interpolation in the record by them or at their instance was found baseless.
5. Learned counsel for respondents No. 1 and 2 contends that repeated inquiries have been held into the allegation of the petitioners regarding interpolation with the record but the same were found as baseless and that the findings on questions of fact cannot be the subject-matter of a writ petition.
6. In order to comprehend and understand the controversy and the inclusion of respondents No. 1 & 2 in the allotment, the relationship of the petitioners with respondents No. 1 & 2 is of relevance.
Nathu had four sons, namely, Nazar A.I, Ghulam Qadar, Ghulam Haider and A.I Bahadar. Two claim forms were submitted by the family members. In the one, Nathu his wife, A.I Bahadar his son and Ghulam Qadar and his family members were included. Whereas, on the other form, submitted by Nazar A.I, his wife, two daughters and Munir Hussain, Nazir Hussain respondents i.e., his nephew, (sons of Ghulam Haider) were found entitled. If at one stage the names of respondents No. 1 & 2 were left out, the same were included at the time of grant of proprietary rights by order of the Asstt.
Commissioner, as mentioned above. Mutation was also sanctioned which matter concluded upto the Board of Revenue. They were thus treated as members of the family and granted proprietary rights alongwith the petitioners.
7. The contention of the learned counsel for the petitioners that the order of the Assistant Commissioner was interpolated by making insertion therein, stand belied by the officials concerned themselves, who after thorough probe into the matter returned the findings to the contrary. During the inquiry, conducted by the Assistant Commissioner as per order of this Court pending the petition, the statement of Nazar A.I, petitioner, was also recorded by him in which the relationship of the parties, as mentioned above, was admitted by him. A.I Bahadar, brother of the petitioner No.1 also made a statement before the Asstt. Commissioner that Nazir Hussain and Munir Hussain, respondents, were not included in the strength of their family as they were included in the allotment at Mauza Panwana with Nazar A.I, petitioner. The findings of fact recorded by the Asstt.
Commissioner repeatedly in successive inquiries on the initiation of the petitioners are based on the material duly appreciated by them and the findings so recorded, cannot be said to be without basis. The same, therefore, cannot be interfered with by this Court.
8. Besides the above mentioned facts, it is to be noted that inclusion of respondents No. 1 and 2 in the allotment with the petitioners was just and fair in view . Of the relationship of the parties. The said respondents are nephews of Nazar A.I, the petitioner, who are sons of his deceased brother. All other members of the family of Nathu, father of the petitioner and grandfather of respondents No. 1 and 2 had been adjusted and the exclusion of these two persons would have been an injustice to them. Writ cannot be issued where substantial justice has been done between the parties. I am thus not inclined to interfere in discretionary and equitable jurisdiction under Art. 199 of the Constitution.
Writ .