' Col. Muhammad A. Akmal, the predecessor-in-interest of the petitioners, was a displaced person.
After verification of his Claim Form 10601 a Q.P.R.V. Certificate for 17111 P.I. Units was issued on 15-1- 1950 for Sheikhupura District. Against this entitlement land equal to 1800 P.I. Units was allotted to said Akmal in village Thatta Khuda Yar and was confirmed in the year 1960 on Khatas Nos.23 and 26 of R.L.II while balance unadjusted Units were sent to Lahore where he obtained allotments in three villages. Upon promulgation of MLR-89 the claim was scrutinized and M.R.V. No,590-C-9 R for 3461 Units was issued on 23-9-1961. The allotment made on Khatas Nos.23 and 26 stood cancelled by operation of law. Under the said MRV land measuring 1045 Kanals, 4 Marlas was proposed on Khata No,27 of R.L.-II of Thatta khuda Yar. This constituted adjustment on 2549 Units while remaining 912 were sent to Mandila. This allotment was then incorporated in Revenue Record.
2. On 12-8-1971 the Patwari Halqa recorded the report although the land at Khata No,27 stands proposed to said Akmal but there is no order of confirmation and that this land be restored to the Central Government. The Deputy Commissioner allowed the correction vide order, dated 5-11-1971.
Consequently Mutation No,70 was sanctioned on 17-3-1972 whereby the said land stood reverted to Central Government. The said land was then proposed partly to respondent No,1 at Khata No,7 on 28-6-1972 and confirmed on 12-7-1972 while the remaining land was proposed to respondent No,3 on 28-6-1972 and confirmed on 12-7-1972 at Khata No,6. Against the said order sanctioning the correction mutation Akmal filed an appeal which was dismissed by the Additional Commissioner on 22-5-1973. A revision petition was dismissed by the Board of Revenue on 6-6-1973. Akmal then filed Writ Petition No,287 of 1973 in this Court which was allowed vide judgment, dated 30-11-1976 and the case was remanded back to the Chief Settlement Commissioner for entrustment to a competent Officer for reexamination of the entire case and fresh decision in accordance with law keeping in view the entitlement of the said writ petitioners. After the remand the case ultimately came up before respondent No,1 who vide order, dated 4-4-1981 proceeded to uphold the said correction mutation and, consequently allotment of land to respondents Nos.2 and 3 and its sale by them in favour of present respondents Nos.4 and 5.
3. Learned counsel for the petitioners contend that it stands established on record that land allotted at Khata No,27 stood allotted to Akmal at Khata 23 and 26 R.L-II of the said village and this being the position under para.7 a fresh allotment was to include the previous allotment where an allotment order has already been passed in favour of any claimant. Places reliance on Muhammad Iqbal and others v. Mst. Sultana Begum and others (1987 CLC 582) to urge that in such an eventuality notwithstanding absence of a formal confirmation order the proposal of allotment is to take effect and is vested the beneficiary with valuable rights which cannot be taken away unless and until the proposal itself is cancelled in accordance with law.
' Further contends that the respondent No,1 has acted in complete oblivion of the provisions of MLR- 89 that governed the matter entirely. Relies on para.9 of the said MLR-89 to contend that the land surrendered under the provisions of MLR is not restored to the compensation pool but is to vest in the Provincial Government to be disposed of by such Government in the manner it deems fit. The precise contention is that the land could not have been allotted or transferred to respondents Nos.2 and 3 in satisfaction of their claims. Mr. A.R. Shaukat, learned counsel for respondents Nos.4 and 5 on the other hand tried to support the impugned order by urging that some steps have to be taken for confirmation of the land proposed for allotment which were not taken in the instant case.
4. Before I proceed further I may here state that Mr. Zafar Ali Shah, learned counsel for the applicant in C.M. No,2182 of 1992 states that his client has no present right in the suit-land but in case its cancellation is upheld then his client may have a chance of allotment of a portion of the land.
Further contends that in case cancellation is not upheld then some direction be issued for allotment of alternate land to his client. Thus primarily this is a contest between the petitioners and respondents Nos.4 and 5.
5. I have gone through the numerous documents, copies whereof have been placed on the file of this case. I deem it necessary to refer here the position taken by the respondent-department in its comments. It has been pointed out that in the first instance land was allotted to Akmal in the said village against the verified claim. It has also been admitted that the entitlement certificate for 17111 P.I. Units was revised and reduced to 3461 P.I Units under MLR-89. It has also been admitted that land in question was proposed against said revise certificate. However, it is insisted that it was not confirmed. The same is the position taken by respondents Nos.4 and 5 adding that M.R.V. For 3461 P.I Units was cancelled vide order, dated 11-12-1976 of the O.S.D., Central Record Room and that no fresh allotment certificate has been issued. Even the Patwari (respondent No,6) who made the report leading to this long drawn litigation has admitted that the land against P.I. Units in MRV was entered and adjusted as fresh allotment at Khata No,27. Thus the admitted factual position on record is that the land was proposed and confirmed in said village Thatta Khuda Yar in favour of Akmal at Khatas Nos.23 and 26. This land was cancelled by operation of law under para.7 of MLR-
89. MRV for 3461 Units was issued on 23-9-1961 and the said land measuring 1045 Kanals, 4 Marlas was proposed for allotment to Akmal at Khata No,27 against 2549 P.I. Units. At this stage I may note here that said order, dated 11-12-1976 was challenged by Akmal in Writ Petition No,982-R of 1977 which was allowed on 28-10-1991 by this Court and said order was set aside. Nothing, therefore, turns on the said contention of respondents 4 and 5 that the MRV for 3461 Units was cancelled. In the light of said admitted facts one has to read the provision of MLR-89. Para.7(i) of the said MLR provides for cancellation of entitlement certificates and any allotment of land made on the basis of such certificate. Para.5 lays down the scale of entitlements. The case of the deceased allottee fell under para.5(iv) of MLR-89 and entitlement was accordingly worked out and MRV was issued for 3461 Units. Now para.7(2) of MLR-89 mandates passing of fresh order for allotment of land on the basis of said entitlement certificates issued under para.6 thereof. I may reproduce the said para.7(2):--- "2. Fresh orders for the allotment of land shall be made on the basis of Entitlement Certificates: provided that:-
(i) where an allotment order had been issued to any claimant such order may be modified so as to conform to the Entitlement Certificate and such modified order shall be deemed to be a fresh allotment order made under this paragraph; and
(ii) the fresh allotment order shall, as far as may be, include the land previously allotted to a claimant."
A bare reading of the said provisions of law would show that fresh allotment order is to include, as far as may be, the land previously allotted to a claimant. This provision is obviously to the effect that the previous allotment is to be adjusted in accordance with entitlement certificates issued under para.6 of MLR 89. It is undisputed fact that the land in fact stood previously allotted to Akmal and consequntly it was mandatory provision that fresh allotment had to include the said previous allotment. It also stands admitted that fresh allotment was in fact proposed to Akmal at Khata No,27.
6. This Court while deciding the Writ Petition No,287 of 1973 on 30-11-1976 had set aside all the proceedings that had commenced by the report of the said Patwari and had directed the Chief Settlement Commissioner to arrange the hearing of the matter by a competent officer afresh keeping in view the entitlement of the writ petitioners. This reference of course is to entitlement under and in accordance with the provision of MLR-89. Now I have examined the impugned order passed by respondent No, 1 on 4-4-1981. The order is spread over 10 pages. However, respondent No,1 has disposed of the matter in para.8 of the impugned order as follows:--- "From the arguments of the parties and the perusal of the Revenue Record it clearly transpires that the disputed land although entered and confirmed at Khatas Nos.23 and 26 was ultimately cancelled in Khata No,27 from the name of Col. M.A. Akmal. It is also conceded by the petitioner that confirmation of Khata No,27 in favour of Mr.M.A Akmal also does not exist. The statement of Ahalmad Incharge RL-II and statement of Patwari fully corroborate this fact. As against this report of the Patwari about the reversion of the land to the Central Government and its approval by the competent Authority/Collector vide his order, dated 5-11-1971 is proved from the record."
It is indeed regretful that these observations are to be found in an order of an officer exercising power of Chief Settlement Commissioner. Instead of looking into law he Is supposed to administer and guidelines/observations contained in the judgment of this Court in Writ Petition No,287/73, respondent No,1 opted to go by statement of the Patwari. If at all the report of Patwari indicated a serious lapse on the part of the competent Officers who were required by law rather commanded to pass fresh allotment order in accordance with its provisions. Instead of obeying the command of the law some sort of charade was played and the land came to be allotted to respondents Nos.2 and 3 and then sold to respondents Nos.4 and 5 in a matter of days. Learned counsel for the petitioners has also sought to draw my attention to apparently serious irregularity in this matter but for the purpose of decision of this writ petition I do not deem it necessary to delve in the same.
7. The said judgment in the case of "Muhammad Iqbal" relied upon by the learned counsel for the petitioners fully support their contention. The land admittedly was proposed in favour of Akmal and mere fact that the concerned officer did not have a confirmation order that would not derogate from the right and interest E vesting in the said allottee. Learned counsel also draws my attention to paras.64 and 68 of the West Pakistan Rehabilitation and Settlement Scheme, 1956 and has cited the case of Ahmad Bakhsh v. Mehro etc. (1998 SCMR 462) upholding the view taken by this Court in the case of Mst. Inayat Bibi v. Assistant Settlement Commissioner (PLD 1978 Lah.252) wherein it was held that it was statutory duty of the Settlement Authority to pass formal orders of confirmation and hand over the possession of the land proposed in favour of a claimant after the expiry of 15 days' period under the said provision of the said Scheme.
8. I called upon learned counsel for respondents Nos.4 and 5 either to point out a single reason, recognised by law, contained in the impugned order or to demonstrate any such reason for which the proposal made in favour of Akmal at Khata No,27 can be or ought to be cancelled. Learned counsel is not able to either point out anything in the impugned order to the said effect or to state any lawful reason for the cancellation of the said proposal. I have already found that the proposal was made in accordance with law prevalent at that time and was lawful.
9. For all that has been discussed above, this writ petition is allowed. The impugned order of the respondent No,1 passed on 4-4-1981, the correction Mutation No,70 sanctioned on 17-3-1972 and all the proceedings leading to it and the report, dated 12-8-1971 of Patwari respondent No,6, the allotment made in favour of respondents Nos.2 and 3 and its subsequent alienation in favour of respondents Nos.4 and 5 are declared to be illegal, void and without lawful authority. No order as to costs.