1982 PLP 318 (SCMR)

Date of hearing: 4th November, 1980. Muhammad Afzal Zullah, J. _Leave to appeal has been sought from judgment dated 15‑4‑1975 of the Lahore High Court, Whereby a writ petition arising out of a settlement case, was dismissed. The petitioners claim to be vendees from respondent No. 2 (All Hussain) of a piece of land, which was allotted to the latter in lieu of his claim for agricultural land abandoned by him in the State of Jammu & Kashmir. On proceedings conducted under sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958, ultimately it was discovered that on account of the wrong description of the abandoned land. Ali Hussain was able to get allotments against 7300 P I Us. while, in reality, he was entitled to 3100 units only. Accordingly the area of his allotment was reduced. A question arose as to whether Ali Hussain should be given a choice to surrender the excess land in such manner as to, protect the right of some of his vendees an ignore others, because, it appears that after the allotment he sold away the allotted land to several vendees. The Settlement Authorities held that the petitioners would be dealt on the principle of last to come first to go. If this principle was to be applied, the petitioners would suffer grievance. That being so, they challenged the order of the Settlement Authorities in the High Court in its Constitutional jurisdiction. The learned Single Judge of the High Court has, after careful considera tion of all the facts and circumstances of the case, come to the conclusion that:‑ (a) Ali Hussain (and his successors‑in‑interest) insisted upon retaining the land in excess of the real entitlement, therefore, relying on Slier Muhammad v. Chief Settlement Commissioner 1971 S C M R 339 his case would also be covered by section 10 of the Act and thus he would be deprived of exercising choice with regard to the surrender of land; (b) the units of Ali' Hussain were not transferred to the village in question, wherein the petitioners sought protection of their rights; and lastly ; (c) it was not a fit case in which discretion should be exercised in Constitutional jurisdiction of the High Court. Learned counsel for the petitioners has tried to distinguish the case of Sher Muhammad on the ground that in the said case the claimant had insisted on wrong calculation of the abandoned area, while in the instant case the insistence was with regard to wrong calculation on the basis of abandoned land being Nehri or otherwise. He has also relied on paragraph 23 of the Supplementary Rural Scheme No. 1 and paragraphs I and 14 of the Rehabilitation Settlement Scheme (Part‑11) to contend that it was the choice of the claimant on the basis of which the land should have been resumed. Regarding transfer of units, learned counsel contended that the entire district is to be treated as one unit for purpose of settlement of displaced persons on evacuee land. We do not agree with the learned counsel that there was any real distinction between the case of Sher Muhammad and the present case. The insistence of the claimant for retaining more land than was due to him in lieu of the land abandoned by him in Jammu & Kashmir State made it a case under section 10 of the Act. He was not entitled to any choice. The decision of the High Court, in this behalf, is unexceptionable for the same reason. The learned Judge was perfectly justified in withholding exercise of discretion in favour of the petitioners. The paragraphs of the Scheme relied upon by the learned counsel have been adequately dealt with and explained by the learned Judge in the High Court. No further comment is necessary by this Court in this behalf. The petitioners' case having failed on the question of exercise of choice it will not make any difference whether the units were received in the estate in question in time or not. After hearing the learned counsel we find no force in this petition. It is accordingly dismissed. Petition dismissed.