FAIZULLAH Versus YAQUB KHAN

ORDER

SAAD SAOOD JAN, J .---Yaqub Khan and Yousaf Khan were brothers. They migrated to Pakistan from a village in District Jammu. In 1950, they were allotted land as refugees from the said State in village Bharoke of Tehsil Sialkot. On 26-4-1956, one Sharif Khan made a complaint against them alleging that the two brothers were locals of village Arud Afghanan in Tehsil Narowal where they owned land and that they had obtained allotments in village Bharke by misrepresentation. Consequent upon this complaint, a detailed enquiry was held by the Additional Revenue Officer, Sialkot who found:

On the basis of this finding the complaint was dismissed. Sharif Khan filed an appeal before the Revenue Officer who exercised the power of Deputy Rehabilitation Commissioner but later he did not pursue it. The two brothers were also prosecuted under Martial Law Regulation No. 49 but were acquitted. Subsequently, their claims for the properties including agricultural land abandoned by them in the said State were verified by a Claims Officer.

2. On 27-4-1960, one Abdul Waheed filed another complaint before the Deputy Rehabilitation Commissioner containing the same allegations as were made in the complaint of Sharif Khan. The Deputy Rehabilitation Commissioner called for a report from the Tehsildar who supported the allegations on the basis of a report obtained from the local Patwari. Consequently, the Deputy Rehabilitation Commissioner cancelled the allotments of the two brothers. 1t may be mentioned that neither the Tehsildar nor the Deputy Rehabilitation Commissioner gave any opportunity to the two brothers to defend their allotments. The two brothers filed an appeal before the Additional Rehabilitation Commissioner and then a revision petition before the Settlement Commissioner but without any success. They then filed a Writ Petition (639-R of 1965) in the High Court. A learned Single Judge accepted their petition, set aside the order of the Rehabilitation Authorities and remanded the case to the Settlement Commissioner for a fresh decision after giving an opportunity of hearing to both parties. After the remand, the Settlement Commissioner upheld the order of cancellation of the allotments of the two brothers on the ground that these had been obtained fraudulently. The two brothers again invoked the Constitutional jurisdiction of the High Court. A learned Single Judge accepted the writ petition and set aside the order of cancellation and directed that their temporary allotment should be adjusted against their verified claims. The petitioners to whom the hand had been allotted in the meanwhile seek leave to appeal from the judgment of the High Court.

3. In holding the two brothers to be ineligible to obtain any allotment for the purposes of maintenance, the learned Settlement Commissioner was entirely influenced by the fact that at the time of migration to Pakistan they owned land in Arud Afghanan. He however failed to examine the further facts (which were probed into the earlier inquiry) whether the land in Arud Afghanan was productive and was sufficient to maintain them. On the other hand, in the earlier full-fledged inquiry, it was found that the two brothers were settled in District Jammu where they lived on agricultural land owned by them and that at the time of migration from the State they had left behind considerable property. It was held that the land in Arud Afghanan was not in their possession and did not provide any maintenance to them. The learned Single Judge in the High Court took notice of this position when he set aside the finding of the Settlement Commissioner with regard to their entitlement to obtain land for maintenance in Pakistan. Thus, he observed:-----

"The petitioners' status as refugees is not directly under determination in these proceedings. It is correct that they owned some agricultural land in village Arud Afghanan before partition. However, there was no material before the Settlement Commissioner, for maintaining that at the time of allotment of land, the petitioners were possessed of means, from which income sufficient for their sustenance, accrued to them. In the order dated 18-1-1957, the Additional Revenue Assistant, upheld the petitioners' allotment. The respondents, then not being in the field, were not party to the said order but the fact remains that a probe into the validity of the petitioners' allotment was made by the Department and they were found eligible for it. It is a fact that they are claimant Displaced Persons from J&K State and their claims for agricultural land have not been satisfied so far.

Both the parties are claimants from J&K State. A question arises to whom the land in question should have been given. It is not disputed that there was no bar on the adjustment of the verified claims of refugees from J&K State, against the land held by them on temporary basis for purposes of maintenance. I am of the view that the petitioners, as temporary allottees and being in possession of the land since the year 1950, have a preferential right to retain the same and get it adjusted against their verified claims. There is no good reason to deprive them of the land of which they are the temporary allottees. The so-called fraud attributed to them, loses its asperity when one finds that they abandoned agricultural land in the occupied part of the State and some land in lieu thereof had to be given to them. There was, thus, no legal basis to deny the petitioners' allotment of the land in question in satisfaction of their claims."

4. After hearing the learned counsel for the petitioners at length we see no justification for interfering with the order of the High Court. Leave is refused.

A.A./F-13-3/S Leave refused.