The petitioner is a sitting allottee having confirmed allotment in village Fatehgarh, Tehsil and District Sialkot. He has an entitlement of 336 Produce Index Units and an area worth 327 Produce Index Units stands allotted in his favour. He has 9 Produce Index Units pending. The allotment in his favour was made some .Time in the year 1958. Under the order of the Additional Settlement Commissioner dated 13-10-1972, units of the respondent No. 1 were transferred to the estate where he was allotted an area measuring 2 kanals 19 marlas situated in Khasra No. 95 min on 17-10-1972.
The same was confirmed in his favour on 6-11-1972. The petitioner challenged this allotment in favour of the respondent No. 1 by means of an appeal contending that the petitioner was a sitting allottee of the estate and bad some pending units. Consequently, he had the preference for allotment over the respondent No. 1 who had brought his Units from outside. It was, further, contended that the petitioner had a tube-well as well as houses on the land allotted to the respondent No. 1 which was wrong. The learned Settlement Commissioner dealing with the matter came to the conclusion that "in the first instance, I find that according to the Tatimma prepared on Mutation No. 2453, sanctioned on 22-6-1973 in respect of the land in dispute the tube-well and the houses are situated in field No. 95/2 min, whereas the land in dispute is numbered 95/3 min and as such it is incorrect to say that the tube-well and the houses of the petitioner are situated in the land in dispute". He further observed that no . New allotment can be made. Therefore, he dismissed the petitioner's appeal/revision as infructuous. This is vide order dated 14-11-1973. The petitioner filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 which, too, was dismissed by the learned Additional Settlement Commissioner/Chief Settlement Commissioner on 10-5-1974. He has filed Constitutional petition.
2. Learned counsel for the petitioner has contended that the petitioner is a sitting and confirmed allottee of the estate in question and has preference for allotment in lieu of his pending Units as against the respondent No. 1 who had brought his units from outside. He has-also contended that at the time when the allotment was made in favour of the respondent No. I on 6-11-1.972 there was no ban in making the allotment and since the petitioner had preferential right the allotment should have been made in his favour. No ban, in fact, was imposed even at the time of filing of the appeal/revision which was pending before the Settlement Commissioner when memo. Dated 25- 6-1973 was issued banning fresh allotment. Consequently, this memo. Could not have retrospective effect so as to nullify the entitlement of the petitioner to the allotment.
3. Learned counsel for the respondent No. 1 has submitted that the petitioner has an entitlement of 336 units and he has already got allotment of 337 units. He has only 9 Units left. The area allotted to the respondent No. 1 is worth 24 Units: Consequently, the respondent No. 1's allotment cannot be interfered with .For the benefit of the petitioner who is not even entitled to the full allotment.
4. After hearing the learned counsel for the parties and perusing the record, it appears that Khasra No. 95 has been divided by means of a Tatimma prepared on Mutation No. 2453, sanctioned on 22- 6-19 73. The area in which the petitioner has his tube-well and his houses has been given number as 95/2 min, as found by the learned Settlement Commissioner vide his order dated 14-11-1973.
Other parts of the Khasra No. Have been allotted to the respondent No. 1. The area allotted to the respondent No. 1 has been so confirmed in lieu of 24 units. The petitioner's units being only 9 awaiting allotment, it is obviously not quite reasonable to set aside or interfere in the allotment made of the respondent No. 1. There is anothe aspect of the case and that is that the Khasra No. 95/2 min in which the petitioner's tube-well and houses are constructed as found by the learned Settlement Commissioner still remains undisposed of because the same has not been allotted to the respondent No. 1. The petitioner has some pending units in estate. He is a confirmed allottee of the same place as well. In view of the facts that he is a confirmed allottee of the estate and has his tube-well and houses on Khasra No. 95/2 min, he is entitled thereto in accordance with the provisions of the Rehabilitation and Settlement Scheme and that seems to be the tenor and assumption of the order of the learned Settlement Commissioner, though. The petitioner's appeal as against the respondent No. I has been dismissed. Therefore, it is directed that Khasra No. 95/9 min shall be allotted to the petitioner in accordance with law. Subject to this observation, this petition as against respondent No. I has no force and is, therefore, dismissed. The petitioner shall bear their own costs in the circumstances.