KHAIRUDDIN Versus SETTLEMENT COMMISSIONER

1. USMAN ALI SHAH, J.‑ ‑This appeal by leave of the Court is directed against the judgment and order dated 19‑9‑1977 of the Lahore High Court, whereby Writ Petition No. 1230/ R of 1975 of the respondents was allowed.

2. The facts of the case, briefly stated are that Abdul Ali (predecessor‑in‑interest of respondents Nos.3 to 13), Wall Muhammad (predecessor‑in‑interest of respondents Nos.14 to 18) and Abdullah son of Abdul Ghani had been issued entitlement certificate in respect of land abandoned by them in assessment circle Barani, Tehsil Fatehabad, 'District Hisar, East Punjab (India). The classification of the land was 'barani'. An allotment in Chak No.16‑M.R. Tehsil Multan, had been made to them. The produce index units of the claims had been calculated as one acre equal to 40 units. One Ahmed submitted an application to the D.R.C. (Land), Multan, who vide his order dated 21‑5‑1962 appointed a superdar for holding the land on trust till the re-verification of their claims by the Central Record Office. An apepal was made against this order before the learned Additional Rehabilitation Commissioner, Multan, who vide his order dated 24‑6‑1963 upheld the order dated 21‑5‑1962 of the D.R.C.(L), Multan and directed that the produce of the land shall remain with the receiver till the reverification of the claim. He further made a direction that the land in question should not be made the subject‑matter of allotment for a period of 3 months and that if thereafter no modification is made in the 'Fard‑i‑Haqiat' there should be no objection to the land being allotted to some other deserving claimant in accordance with law.

3. In a revision petition against the order of the Additional Rehabilitation Commissioner, Multan, the Settlement Commissioner, Multan, after hearing the parties and perusal of the record observed that both the parties had jointly made a request to the Court on 9‑9‑1966 that the matter relating to the contested issue be adjourned till decision of the Supreme Court. After the decision of the Supreme Court in Civil Appeal No.57 of 1970, the learned Settlement Commissioner vide his order dated 21‑10‑1975 declared that the land in question fell in the 'Barani' assessment circle which is unirrigated and carried the value of 22 produce index units per acre.

4. The respondents filed a writ petition in the Lahore High Court and a learned Single Judge while hearing the petition called for the record from Central Record Office and a fresh Fard‑i‑Haqiat alongwith its conversion into produce index units was also placed on the record and observed as under:‑ "the record produced by the representative of the Central Record Office as well as the entitlement certificate read with Annex 'D' placed on the record, do conclusively show that the assessment circle under which the land of the petitioners fell was 'nehr Rangoli' and not 'Barani'. The produce index unit book shows that such land should be evaluated at the rate of 40 Produce Index Units per Acre. There is thus no support far the findings given by the lower authorities. The petitioners seem to have been vexed through this protracted litigation for all that long for nothing".

5. The learned Single Judge of the High Court ultimately accepted the writ petition and declared the impugned order as without lawful authority and of no legal effect and also made a direction that the allotment already made is not to be interfered with.

6. Leave was granted to the appellants in the light of the ruling of the Supreme Court reported in P L D 1975 S C 318, although this ruling was not cited before the High Court.

7. The High Court has requisitioned the record from the Central Record Office and thus based its finding after having investigated into question involved in the case. It is to be observed that the party to the writ petition must show that he has got a clear legal right as not to admit of a reasonable doubt or controversy and the disputed question of fact cannot be determined in the constitutional jurisdiction of a Court which is summary in its character.

8. We have heard the learned counsel for the parties and have gone through the record of the case. The revision petition file against the order of the Additional Settlement Commissioner dated 24‑6‑1963 before the Settlement Commissioner was kept pending till the decision of appeal of a similar case with identical facts and who subsequently, in the light of decision in C.A. No.57 of 1970 by the Supreme Court accepted the revision petition. This case is reported; Mst. Fatima v. Shah Muhammad P L D 1975 S C 318. This case also relates to the disputed area in question, wherein the land in this assessment circle was classified as 'unirrigated land' and evaluated at 22 P.I. Units per Acre. Had the case referred to above been produced before the learned Single Judge of the High Court, his decision would have been otherwise.

9. The result is that we allow the appeal with costs.

10. M.Y.H./K‑46/S Appeal allowed.