MUHAMMAD SIDDIQUE Versus BASHIR HUSSAIN
The facts briefly stated are that Muhammad Yameen Khan was allotted land measuring 24 Kanals 7 Marlas at Khata No.13/287, RL‑11 of Chak No.2/1.L Tehsil Okara on 30‑7‑1963. He sold the entire land in favour of Bashir Hussain respondent vide mutation No.180 dated 4‑8‑1973. Muhammad Siddique petitioner who was an allottee of the same Chak challenged the allotment by filing an appeal before the Deputy Settlement Commissioner on the plea that Muhammad Yamin Khan was a non‑allottee and as such could not claim preference against a sitting allottee. The appeal was accepted vide order dated 20‑11‑1963 and the revision petition filed before the Addl: Settlement Commissioner by Muhammad Yamin Khan was ultimately got dismissed as withdrawn vide order dated 7‑11‑1964. Bashir Hussain respondent‑vendee then filed a revision petition before the Settlement Commissioner and the same was accepted vide order dated 7‑4‑1965 holding that Yamin was a minor at the time of allotment and since his uncle Abdul Sattar was allottee of the Chak, Yameen Khan could also be treated as a sitting allottee under para. 7 sub‑para. (5) of the Rehabilitation Settlement Scheme. This led to the filing of a Constitutional petition (W.P. 1012/R/65) which was accepted vide order dated 2‑5‑1973 and the matter was remanded for fresh decision by the Settlement Commissioner.
2. The learned Settlement Commissioner in pursuance of the remand order heard the parties and vide an order dated 14‑4‑1975 upheld order dated 7‑5‑1965, and maintained allotment in favour of Muhammad Yamin Khan made on 30th July, 1963, hence this present Constitutional petition.
3. The learned counsel for the petitioner argued that the impugned order of the Settlement Commissioner is not sustainable as the learned Officer has failed to keep in view the observations recorded in the remand order. It was added that Muhammad Yamin Khan cannot be treated as a sitting allottee as firstly; in the order dated 10‑11‑1954 he was held to be a non‑allottee and secondly Muhammad Yamin Khan having born on 2‑1‑1939 was not minor at the time of receiving allotment i.e. 30th July, 1963 and hence he cannot avail the provisions contained in sub‑para (5) of para. 7 Part 11 of the Rehabilitation Settlement Scheme. The learned counsel explained that according to the pedigree‑table Annexure R 2 with the previous petition Muhammad Yamin and Abdul Sattar were not connected through a common ancestor.
4. The learned counsel for the respondent‑vendee argued that according to pedigree‑table (Annexure R 2 with the previous file) it stands established that Muhammad Yamin and Abdul Sattar were related to each other and the same thing stands also proved by the pedigree‑table (R 2 with the present petition) as it shows that Maula Bakhsh had 3 sons namely, Ashiq Ali, Younas Ali, Abdul Sattar and Muhammad Yamin is son of Ashiq Ali, brother of Abdul submitted that Muhammad Yamin was admittedly a minor at the time of partition as well as at the time of submission of the claim for the land abandoned in India and the said claim was filed through a relative. He argued that in order to receive the benefit of para. 7(5) of the Scheme the age at the time of allotment would not be relevant factor.
5. I have considered the respective submissions of the parties. The fact that Muhammad Yamin is related to Abdul Sattar stands established from the pedigree‑table produced in the previous petition by the petitioner himself. As per pedigree table Annexure R2 with this petition Muhammad Yamin is shown to be his brother's son. The position so reflected by the pedigree‑table is not controverted. This being the position the question that arises is whether Muhammad Yamin can be treated as a sitting allottee of the village under para. 7(5) of the Scheme. This sub‑para reads as under:‑
"For the purposes of allotment of land under the Rehabilitation Settlement Scheme, widows, unmarried daughters and minors should also be considered as allottees in the village in which their relatives hold allotments. The term relatives implies brothers, sisters, uncles, first cousins and guardians in the case of the minors."
6. The first thing to be seen is that this is a beneficial provision intended to rehabilitate and settle the refugees in compact families. Muhammad Yamin Khan was admittedly minor at the time of partition as well at the time when claim was submitted and verified. This claim was pending satisfaction throughout since 1952. Had the allotment been made earlier, the question that Muhammad Yamin was not a minor could, admittedly be not raised. Merely because the allotment was made in the year 1963 and the authorities were not in a position to satisfy the claim earlier, would not furnish sound basis to B refuse settlement of Muhammad Yamin alongwith his other family members m the same village. It is also pertinent to note that the consistent practice of the Settlement Department is to interpret the laws on the subject with reference to the position obtaining in the year 1947. Moreover, the use of the word "for the purpose of allotment" in the sub‑para would indicate that it is not the time of allotment that is to be considered as an overriding factor. I, therefore, agree with the learned Settlement Commissioner that Muhammad Yamin can take benefit of the provision of para. 7(5) of the Scheme. In this view of the matter, the fact that order dated 10‑11‑1954 in which Muhammad Yamin was considered a non‑allottee depicts the factual position and not the position which will prevail under the provisions of the aforesaid para.
7. Be that as it may, in the circumstances of the case I do not find it a fit case to interfere at this late stage in extraordinary jurisdiction as the petitioner has already obtained alongwith his two brothers, allotment of land in the village and as regards the pending units if any, it is the petitioner alone and not his two brothers who is objecting to the allotment of only 24 acres to the respondent. If interference is made the respondent who is bona fide purchaser for value will be deprived of his small holding.
For the reasons given above there is no merit in this petition, the same is dismissed. The parties to bear their own costs.
AA./M‑3185/L Petition dismissed.