ALI MAHMOOD Versus SARDAR MUHAMMAD AND 2 OTHERS

ORDER

This is a revision petition against Commissioner's order dated 28‑7‑1971, whereby Collector's order under which the land in dispute was allotted to the petitioner under the Pedigree Live stock Breeding Scheme Was set aside and the case remanded to the Collector for fresh decision.

2. The facts of the case briefly are that petitioner Ali Mahmood a Lambardar Was allotted 121 acres of State land under the Pedigree Livestock Breeding Scheme with effect from Kharif 1971, by the order of Collector dated 10‑2‑1971. It was contended by the respondents before the Commissioner that they were in possession of the land in dispute for the last 3 years as landless tenants and were eligible to get it under 15 years Lease Scheme. It was held in the impugned order of the Commissioner that the petitioners were in cultivating possession of the land in dispute for the last so many years and that they were never dispossessed so they were eligible to get it under 15 years Lease Scheme. Accordingly the case was remanded for fresh decision.

3. This case was first heard by me on 4‑11‑1971 when apart from records and parawise comments, the Collector was asked to report:

(a) Under which Scheme the allotment was made?

(b) Why allotment was made so late as in 19717

(c) Whether the area was included in 15 years Scheme Schedule?

After two adjournments at the request of the respondents the case was heard finally on 9‑12‑1971 when the judgment was reserved.

4. The main points to be determined in this case are the comparative merits of the claims of Sardar Muhammad etc., respondents under the 15 years Lease Scheme and those of Ali Mahmood Lambardar under the Pedigree Livestock Breeding Scheme. It is accepted that the respondent Sardar Muhammad has been in cultivating possession of this piece of land since 1948 except for one year's break in 1968 when the lard was obtained by Hayat Muhammad, on lease. It has also been stated before me, vide recorded statement of Sardar Muhammad, that he has joint family system and the land has been under the joint culti vation of Mehr Din father of Sardar Muhammad, Maula Bakhsh father of Barkat and Nawab Din uncle respondent. Up to 1965 the land was in the name of Maula Bakhsh. Thereafter the tender was secured in the name of Sardar Muhammad but culti vation remained joint. Hence land revenue was paid in the joint name of Nawab Din etc. In Rabi 1970, Sardar Muhammad was sick, hence 4 acres of this land was cultivated by Rafique. 4 acres by Nawab Din and 4 acres by Bashir younger brother of Barkat, Sardar Muhammad's cousin. In Kharif 1969, it was under the self‑cultivation of Sardar Muhammad. These facts are mentioned because the petitioner Ali Mahmood Lambardar has produced a copy of irrigation Patwari's Girdawari for Rabi, 1969‑70 which shows cultivation of Bashir, Nawab Din and Muhammad Rafique to establish that Sardar Muhammad was not self‑cultivator and therefore, was not eligible under the 15 years Lease Scheme. The case of Sardar Muhammad however, is that he is doing joint cultivation with his cousins‑sons of Maula Bakhsh, and his uncle Nawab. Normally, therefore, being in cultivating possession of the land in dispute during Kharif, 1969 to Kharif 1970 the respondents would have been eligible for consideration under the 15 years Lease Scheme. The difficulty in treating them as such however, arises from the provision of the 15 years Lease Scheme itself which, under condition No. 2(d), excludes the land which has been allotted under any approved Scheme. In this case, in reply to my queries the Collector has reported that:

(a) The allotment in favour of the petitioner All Mahmood Lambardar was In accordance with Government Memorandum No. 8245‑69/556‑CV, dated the 13th February 1970.

(b) The Lambardar had applied for allotment of this land under Pedigree Livestock Breeding Scheme, meant for Lambardars, on 1‑4‑1970 which is more than one year before the introduction of 15 years Scheme. "The delay was in the process of allotment, as such cases are finalized on the spot. His case was decided alongwith other Lambardar of this Chak on 10‑2‑1971. "

(c) The area in dispute had not been included in the 15 years Lease Scheme.

5. It has been stated before me by the petitioner that allot ments were made to all the three Lambardars on 10‑2‑1971 and in all the three cases the tenants have gone up in appeal against the allotments.

6. The learned counsel for the petitioner has argued that the Pedigree Livestock Breeding Scheme being the much older Scheme having been notified by the Government on 3‑5‑1960 has preference over the recent Scheme of 15 years Lease notified on 24‑4‑1971. Vide memorandum No. 1160‑63/1242‑C, VII, dated 28‑3‑1963, it was specifically laid down by the Government that suitable land from Baqaya land in this Chak should be selected and declared as Lambardari squares and allotted to Lambardars under the Pedigree Livestock Breeding Scheme. Subsequently vide Government Notification No. 1838‑71/1721‑CV, dated 12‑5‑1971 this Scheme was made exclusive for Lambar dars vide clause 6 of the notification. The Lambardar has therefore, a prior claim to allotment of the Baqaya State land than the respondents.

7. The 15 years Lease Scheme was introduced by the Govern ment more for social justice to look after the landless tenants. But in this case land having already been allotted to the Lam. bardar under a Scheme which had been enforced much earlier than 15 years Lease Scheme, there could be no justifiable ground, to set aside the allotment in favour of the petitioner Lambardar. The Collector should however, try and see if the respondents can be accommodated elsewhere, on any other available State land either in this Chak or any other Chak more as a matter of com passion than that of right.

8. In view of the above circumstances and reasons, the order of the Commissioner dated 28‑7‑1971 cancelling the allotment of Ali Mahmood Lambardar is set aside.

Order may be issued and parties informed accordingly.

Order accordingly.