REHMATI Versus EID MUHAMMAD
Respondent No.l got some land through Mutation No.2 sanctioned by the Tehsildar/ Assistant Rehabilitation Commissioner on 4‑11‑1955 by saying that the verified right holder Mst. Rehmati‑‑present petitioner, was dead and he was her heir. The petitioner filed an application on 28‑1‑1963 saying that she was very much alive and entitled to the land, respondent has misrepresented facts and deprived her of the property. The Collector on 28‑9‑1964 allowed the application. Against this order, the respondent filed an appeal which was dismissed on 20‑12‑1965. The revision petition was, however, accepted on the ground that permission should have been sought before review of the mutation and the case was remanded for fresh decision vide order dated 14‑9‑1969. On remand, after permission dated 25‑6‑1969, on 11‑12‑1973 the A.C.I./Assistant Settlement Commissioner (Land), after a detailed enquiry found the petitioner Mst. Rehmati alive and entitled to the land. The respondent filed an appeal which was dismissed by the Collector on 5‑6‑1974. His revision was dismissed by the Additional Commissioner (Revenue) on 13‑7‑1974. His second revision petition has, however, been accepted by the Member (Revenue), Board of Revenue vide order dated 10‑2‑1977 on the plea of the respondent that since the dispute related to evacuee land, only the Settlement and Rehabilitation Authorities could adjudicate in the matter and not the Revenue Authorities. This order is challenged by Mst. Rehmati through this constitutional petition.
2. Learned counsel for the petitioner has submitted that the learned Member (Revenue) Board of Revenue fell in error in setting aside the orders of the lower authorities for the reason that the Assistant Collector I as well as the Collector were empowered under the Settle ment and Rehabilitation Laws as well and, therefore, when they were deciding the mutation of inheritance of the displaced person they had acted under the latter law. Their power under the relevant law was also there and for a hypertechnical reason the orders passed on merits could not have been set aside.
3. Learned counsel for the respondent No.l has supported the order of the learned Member (Revenue), Board of Revenue and submitted that the petitioner should have taken the dispute if at all to the Settlement and Rehabilitation authorities. Further, that the petitioner had first filed an application which was dismissed and the second application was not competent. Moreover, it was belated.
4. I have heard the learned counsel for . the parties at length and perused the record with their assistance. The first order of sanction of mutation was passed by the Tehsildar on 4‑I1‑1955. Tehsildars were vested with the powers of the Assistant Rehabilitation Commissioner. After protracted litigation, on remand the order of sanction of mutation in favour of the petitioner after a detailed inquiry where it was found that the claimant was the petitioner who was very much alive and that her land had wrongly been obtained by the respondent No. 1, the Assistant Commissioner (Land) passed the order by 12‑11‑1973. This was challenged by the respondent No. l in revision and was dismissed by the Additional Commissioner (Revenue) on 13‑7‑1974. Although Additional Commissioners were vested with powers under Settlement Laws but even if that be not so, on the reasoning. of the learned Member (Revenue), Board of Revenue, the order of the Additional Commissioner (R) should. have gone. Then, the order in the field would be that of the A.C.I./Assistant Settlement Commissioner (Land) dated 12‑11‑1973, whereby after detailed enquiry the petitioner has been given her land. The petitioner cannot be deprived of her rights after‑ all these years by hypertechnical sophistry.
5. In view of the above, the impugned order of the learned Member (Revenue), Board of Revenue dated 10‑2‑1977 is declared to be without lawful authority and of no legal effect. The petition is thus allowed with costs.
M. Y.H./3‑97/L Petition allowed