ANWARI BEGUM Versus SETTLEMENT AND REHABILITATION COMMISSIONER
1. This petition under the Constitutional provisions of Article 98 of the elate Constitution arises out of the following facts.
2. One Sharif son of Nazar Ali (variously styled as Sharif Ali, Sharifuddin .and Muhammad Sharif) and Mujibuddin son of Rahimuddin were admittedly murdered in India during the riots which took place at the time of Partition .of this sub-continent. These two persons were again admittedly the descen danti of one Hizbuddin. Mst. Anwari Begum the petitioner, who claims to be the daughter of Sharif, initially claimed allotment in lieu of the lands left by Sharif in the year 1949. Subsequently, in about 1952 she also .claimed lands left by Mujibuddin on the ground that the said Mujibuddin bad only one daughter by name Asghari Begum who had pre-deceased her father by about 4/5 years. It may be mentioned that Furde Haqqiat, disclosing the landed property owned by Sharif and Mujibuddin in the district of Hizar (India) had been received in the Central Record Office, Lahore. It seems that the contentions of Mst. Anwari Begum were accepted and she was allotted 36.11 acres of land in Deh Sanjar Chang, Taluka Allahyar. This happened sometime on or about 27th October 1957.
3. Subsequently, on 16th March 1963 respondent No. 4 Mst. Akbari Begum came forward and moved an application before the Assistant Rehabilitation Mukhtiarkar, Hyderabad, claiming that she was the daughter .of Mst. Asghari Begum daughter of Mujibuddin and, therefore, it was she who was entitled to the allotment of land in lieu of the lands left by .deceased Mujibuddin in India. This application was duly heard and accepted . on 9.11-190. The day the evidence of the parties was being recorded the then Assistant Rehabilitation Mukhtiarkar Mr. Chishti was under orders of transfer and his successor had arrived on that day to take over his charge. He had concluded the proceedings before the evidence brought by the present petitioner could be recorded. This order was challenged on the ground, inter alia, that the petitioner was not afforded fuller opportunity to adduce evidence and to address arguments. Other grounds taken before the Deputy Settlement Commissioner, which are ascertainable from his order dated 8-7-1966, were that Akbari Begum had filed no claim and Farde Haqqiat having been received at the instance of Mst. Anwari Begum .she was entitled to the inheritance ; that the application moved before the Assistant Rehabilitation Mukhtiarkar was not signed by the respondent and that the lands stood in possession of Anwari Begum and was duly leased out by her. It seems that another contention was raised that successions had been duly approved by Mr. Badrul Jalil the then Rehabili tation Mukhtiarkar, Tando Allahyar, at the time of the allotment of the land. All these contentions were duly repelled by the learned Deputy Settlement and Rehabilitation Commissioner, Hyderabad, but he remanded the case back to the Assistant Rehabilitation Mukhtiarkar for providing fuller opportunity to the parties to adduce evidence in support of their case and to present arguments.
4. On remand the Assistant Rehabilitation Mukhtiarkar afforded fuller opportunity to the parties to adduce their respective evidence. The Assistant Rehabilitation Mukhtiarkar has made the following observations on this paint in his order dated 5-10-1967 :
5. "Accordingly parties were allowed to lead additional evidence. This mostly consists of oral evidence, only Akbari Begum has got produced the original pension draft of her father, Mushtaq Ali which shows that Asghari Begum, her alleged mother, drew distress pension or gratuity due to her deceased husband up to January 1947.
6. Here I may remark that paragraph 67 of the Rehabilitation Scheme provides a speedy and summary inquiry in cases of succession but in the instant case in compliance with the order of the appellate Court fullest opportunity within reasonable limits was allowed to parties or their counsel to prove and explain their case on numerous dates so that the hearing after remand has taken more than a year. Lastly, a final date of hearing was fixed for 22-9-1966 when again an application for adjournment was moved at 1 p.m. I regret to say that in the circumstances of the case it was not possible to prolong the matter any further as the entire case on both sides had become clear and quite a plathora of evidence had already been recorded."
7. On merits of the case he came to the conclusion that 'Akbari Begum is grand-daughter of Mujibuddin and entitled to half share of land mentioned in A. C. dated 28-10-1957'. It was further ordered that the possession of the same may be given to Akbari Begum. This order was appealed against before the Deputy Settlement Commissioner who by his order dated 12th Sep tember 1958 reversed these findings, on merits, of the Assistant Rehabilitation Mukhtiarkar and concluded that there being lack of consanguinity between Mujibuddin and Mst. Anwari Begum, therefore, Mst. Akbari who had such consanguinity had preferential right to inherit the property of Mujibuddin. On the question of due opportunity being accorded the plea taken by the petitioner was considered and repelled. The observations of the Deputy Settlement Commissioner in his order dated 5-10-1967 are as follows :
8. "His main contention is that he was not given due opportunity to cross-examine the witnesses examined by the respondent and that the evidence without giving a chance of cross-examination could be of no value. He has relied on P L D 1966 Lah. 16 and the Indian Cases, Vol. 117, p. 894, in support of his contention that evidence without chance of cross-examination has no value. However, I find from the record of the Gower Court that the appellant was not deprived of the requisite opportunity. On the other hand the proceedings were being unnecessarily prolonged by the appellant."
9. The learned Deputy Settlement Commissioner also took note of other pleas raised before him which appear next below the observations referred to earlier and are to the following effect :
10. "The learned counsel for 'the appellant has also agitated the other four points viz : (1) the claim has not been bled by the respondent (2) application for succession is not signed by the respondent (3) posses sion of land is not with respondent, and (4) the succession has already been approved by Mr. Badrul Jalil, the Ex-Rehabilitation Mukhtiarkar, Tando Allahyar."
11. These four contentions raised before the Deputy Settlement Commissioner, were, however, not gone into on the ground that they stood decided by the order of his predecessor on 8th July 1966.
12. Mst. Akbari Begum challenged this order of the Deputy Settlement Commissioner before the Settlement and Rehabilitation Commissioner, Hyderabad on the main findings whether she or the present petitioner had preferential rights to inherit the property of Mujibuddin. The learned Settlement Commissioner by his order dated 16-9-69 concluded that Mst. Akbari Begum being the grand-daughter of Mujibuddin had preferential right to that of Mst. Anwari Begum the present petitioner. This gave a cause of a grievance to Mst. Anwari Begum who has challenged these findings in the present petition.
13. At the outset it may be noted that Mr. K. A. Ghani the learned counsel for the petitioner, conceded the legal position that if Mst. Asghari Begum, daughter of Mujibuddin had not pre-deceased her father, and if Akbari Begum is the daughter of Asghari Begum she would have precedence under the Muhammadan Law, in the matter of inheritance of Mujibuddin's property. But he claims that the petitioner's case has all along been that Mst. Asghari Begum bad predeceased her father by 4/5 years, and that even if she bad not predeceased her father Mst. Akbari Begum was not the daughter of Mst. Asghari Begum. He further contends that this plea of the petitioner was not taken account of by the learned Settlement Com missioner and not having done so he has failed to exercise the jurisdiction vested in him in terms of the law laid down by the Supreme Court in Latif Hussain v. Chief Settlement Commissioner (P L D 1965 S C 68). In this regard he has taken exception to the observations made by the learned Settlement Commissioner in the last paragraph which is to the following effect :
14. "As regards the merits of the case the impugned order of the learned Deputy Settlement Commissioner, clearly shows that the relationship of the parties has not been denied by either party."
15. There is no doubt that the law -laid down by the Supreme Court is very clear that where the Chief Settlement Commissioner, while purporting to exercise the revisional powers, ignored the legal character of an impugned order and disregarded the principal points urged on behalf of the appellant he had failed to exercise the jurisdiction vested in him by law. In the present case the Settlement Commissioner had refused to go into the question of relationship at the stage of revision on the ground that the relationship of the parties before the tribunals subordinate to him was not disputed. Copies of the pleadings before the subordinate tribunals of the learned Settlement Commissioner have not been filed in this Court, but the orders of the Deputy Settlement Commissioner dated 8-7-66 and 6-9-68 set out in detail the pleas taken before the two officers holding that office on the two dates. None of these pleas indicate if relationship as determined by the two orders of the Assistant Rehabilitation Mukhtiarkar was under challenge. On the other hand, the order of the Deputy Settlement Commissioner dated 6-9-68 clearly indicates that the relationship between the parties has not been denied by either of the parties. The relevant observations in the penultimate paragraph of his order are to the following effect :
16. "The appellant claims that she is the paternal niece of deceased Mujibuddin, while the respondent claims to be his grand-daughter (daughter's daughter). The relationship has not been denied by either party."
17. The only question agitated before him was if, in view of this admitted relationship of the parties, Mst. Akbari or Mst. Anwari had preferential rights to inherit the property of Mujibuddin. The learned counsel for the respondent, therefore, contends that in view of the provisions of section 19 of the Displaced Persons (Land Settlement) Act, 1958, it was entirely within the jurisdiction of the Settlement Commissioner to refuse to go into the .4 question of fact. He had, therefore, according to Mr. Riaz Ahmed, rightly refused to go into the question of fact. The submission has force Additionally Mr. Riaz contends that the question if Mst. Asghari Begum survived Mujibuddin is essentially a question of fact and the findings of the Settlement Authorities on this material question cannot be gone into by the High Court. He relies in this regard on 'Nisar Ahmed v. Fazeel Ahmed' (1975SCMR190).
18. In the present case, as observed earlier, the petitioner has not cared to file the copies of the pleadings filed by him before the Settlement Authorities. Pleading is the best evidence to arrive at a conclusion if a particular plea was taken before such tribunals. Having chosen not to file such pleadings and having failed to show, from the orders of the Settlement Authorities that an alternate plea, about the fact of Mst. Asghari Begum having predeceased Mujibuddin or Mst. Akbari Begum not being the daughter of Mst. Asghari was ever taken, it cannot be held that the Settlement Authorities had, by nut considering these alternate pleas, refused to exercise the jurisdiction vested in them by law. The onus to show that such a plea was taken lay squarely and entirely on the petitioner which she has failed to discharge.
19. An additional ground taken by the learned counsel for the petitioner is that as he had paid the settlement fees for the land in dispute the same stood permanently settled in her favour and, therefore, the Settlement Authorities had become functus officio with respect to such land. In support of this contention the learned counsel has relied upon an unreported ruling of a Division Bench of this Court contained in Writ Petition No. 706/68 Bundey Khan v. Nazroo. The specific observations in the judgment, from which the learned counsel seeks the strength in support of his argument, are to the following effect :
20. "In my opinion, in the absence of any specific provision in the said Act or the rules thereunder conferring such powers on the Settlement Authorities, it is not open to them, after permanent transfer of land has been made in favour of a displaced person, and the orders of transfer have attained finality under the Act, to cancel or modify the same on solely within the jurisdiction of the Civil Courts to determine in such cases the issue of inheritance."
21. Subsection (3) of section 15 of the Displaced Persons (Land Settlement) Act, 1958 entitles an allottee of a land under a Scheme as defined in section 2 (7) thereof, or under subsection (1) of section 15 of the Act to be permanently settled on such land. Proviso (a) to this subsection declares that no order of permanent settlement shall be passed where such allotted land is the subject-matter of an appeal, revision or review before the rehabilitation authority. For facility sake subsection (3) of section 15 of the Act is reproduced below :
22. "A displaced person to whom any land has been allotted by a Rehabili tation authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government
23. Provided that no order of Permanent Settlement shall be passed in cases where-
(a) the land held by the allottee concerned is the subject-matter of an appeal, revision or review before a Rehabilitation Authority ; or
(b) the land has been allotted in lieu of rights as a mortgage or mort gagee and the allottee has not fulfilled the prescribed terms and condi tions ; or
(c) the land has been allotted provisionally on the basis of inconclusive data."
24. Rule 7 of the Displaced Persons (Land Settlement) Rules, 1957 lays down the date from which such lands are deemed to have been permanently settled. The rule reads as under :
25. "Permanent Settlement on Land.-A displaced person to whom any land had been allotted under a scheme shall, subject to the proviso to subsection (3) of section 15, be deemed to have been permanently settled on the land so allotted to him with effect from the 24th day of December 1961 or the date of final confirmation of allotment whichever is later.
26. Provided that :
(a) the allottee has paid settlement fee as required by rule 10 ;
(b) ..
(c) ..
27. The learned counsel contends that as the petitioner had paid the settlement fees therefore, ~be should be deemed to have been permanently settled on the lard, and as such the Settlement Authorities having become functus officio could not interfere with this settlement on the ground of fresh deter mination of inheritance. The document relied upon in this regard is true copy of a challan indicating the deposit of fee for agricultural land. The date on which this amount was deposited in the treasury is not indicated. The date on which it a as attested as true copy is given as 11-4-63. Mst. Akbari Begum bad already challenged on 16-3-1963 the transfer of the entire land in favour of the petitioner. As such the deeming date of 24th December 1961, as given in rule for permanent settlement would not be relevant as it would be a case falling under the exception clause as contained in the proviso to section 15 (3) of the Act. The unreported case relied upon by the petitioner is, therefore, of no help in this case.
28. In view of this discussion I find no merit in the petition and dismiss it with costs.
29. S. Q. Petition dismissed.