MUHAMMAD HASAN Versus LAND COMMISSIONER, KHAIRPUR

ORDER

This is an appeal against the letter dated 21‑7‑1970, passed by the Land Commissioner, Khairpur on administrative side whereby he directed that the petitioner may be allowed undisputed area of 16‑00 acres from S. No. 527 of deh Rindwahl Jagir, taluka Jacobabad, and an area of 15.00 and 4.00 acres from the S. No. be reserved for village and graveyard respectively.

2. The facts of the case are that the disputed land formed part of jagir land and after abolition of jagirs was treated as State land by the O. S. D. (Jagirs) on. the ground that none had put claim for the land. The petitioner agitated his claim before the Land Reforms Authorities and ultimately the Land Commissioner, Khairpur Division, vide his order dated 5‑8‑1969 accepted his appeal and directed that S. No. 527 should be given to him. As regards S. No. 525, the Land Commissioner ordered farther enquiry. The actual area of S. No. 527, which was granted to the petitioner was not mentioned in the order dated 5‑8‑1969 of the Land Commis sioner, Khairpur. The total area of S. No. 527 was 443.33 acres. Consequently the Land Commissioner, Khairpur, vide his letter No. S‑13‑5‑34‑LR‑69, dated 21‑7‑1970 in reference to report No. DLC‑1018, dated 7‑5‑1970 from the Deputy Land Commissioner, Jacobabad, directed that an undisputed area of 16.00 acres from the said S. No. may be given to the petitioner. The petitioner has submitted the present appeal against that order of the Land Commissioner, Khairpur.

3. The counsel for the petitioner contended that whole S. No. 527 was in the possession of the petitioner and that whole S. No. was allowed to him by the Land Commissioner, Khairpur vide his first order dated 5‑8‑1969 and record of rights was also changed in his name accordingly but the Land Commissioner, Kbairpur, reviewed his order after one year without any notice to him and reduced the area to 16.00 acres. He argued that it was not a clerical mistake, which could be corrected under rule 11(3) of the West Pakistan Land Reforms Rules, 1959 but whole order had been changed and the sanction of the Chief Land Commissioner and notice to the petitioner were necessary for review of the order as required by rule 11(i) of the Rules.

4: The representative of the Deputy Land Commissioner, Jacobabad, contended that the area of the S. No. allowed to the petitioner had been ommitted from the original order through clerical error and the mistake had been rectified by the Land Commissioner, Khairpur, under rule 11(3) of the West Pakistan Land Reforms Rules, 1959 and as such no notice to the petitioner was necessary nor the sanction of the Chief Land Commissioner was required for the purpose under the rules.

5. I have considered the case. The first order dated 5‑8‑1969 passed by the Land Commissioner, Khairpur, makes no mention of the actual area to be given to the petitioner. The total area of S. No. 527 is more than 400.00 acres. The question as to how much area was to be allowed to the petitioner had to be determined on the basis of merits of the case of the petitioner but this was not done by the Land Commissioner, Khairpur at the time when the order dated 5‑8‑1969 was passed by him. Under these circumstances, determination of the area vide the subsequent order was a fresh decision necessitating review of the previous order and it can not be termed as a clercial or arithmetical error. It could have been a case of clerical or arithmetical mistake if the area had been actually determined when the order dated 5‑8‑1969 was passed and the area had not been mentioned in the order through any clerical or arithmetical mistake but it is not so and the case is not covered by the provisions of rule 11(3) of the West Pakistan Land Reforms Rules, 1959. The determination of the area in the present case amounted to the review of the previous order dated 5‑8‑1969 and that could be done only after reasonable notice had been given to the affected party to appear and be heard as required by rule 11(b) of the Rules. The order dated 21‑7‑1970 passed under rule 11(3) of the rules without notice to the parties is not, therefore, proper and is not maintainable.

6. In view of the above, the appeal is accepted to the extent that the order dated 21‑7‑1970 of the Land Commissioner, Khairpur, is set aside and the case is remanded to the Land Commissioner, Khairpur, for passing fresh orders after affording full opportunity to the affected persons to appear and be heard as required by rule 11(1)(b) of the Rules.

7. Wahid Bux and 9 others and Rindali and 2 others have submitted applications claiming that they are also sharers in the land and it may be allowed to them. This question is not before pie and as such I cannot pass any orders about them.

Order accordingly.