1994 PLP 2021 (SCMR)

Ch. Akhtar Ali, Advocate‑on‑Record for Appellants. Saeeduz Zaffar, Advocate Supreme Court for Respondents Nos. 1‑

4. Walayat Umer Ch., Advocate‑on‑Record for Respondent No.

5. A.R. Shaukat, Senior Advocate Supreme Court: Amicus curaie. Date of hearing: 21st November, 1993. MANZOOR HUSSAIN SIAL, J: ‑‑This appeal by leave of this court, assails the judgment dated 6‑8‑1991, of the Lahore High Court, whereby Writ Petition No. 836‑R/79, was allowed and the order dated 18‑3‑1979, passed by the Settlement Commissioner (Lands), Punjab more, was set aside.

2. The facts, in brief, forming the background of this appeal, are that Muhammad Rafiq Khan the predecessor‑in‑interest of the respondents was allotted agricultural land equivalent to 27566 P.I. Units in Village Naushera Virkan, Tehsil and District Gujranwala. On 7‑7‑1991, the appellants' predecessor‑in‑interest and another, moved Mukhbari application to the inspection team of the Settlement Department, alleging therein that he had got allotted land in excess of his entitlement. The inspection team after thorough probe reported to the Additional Settlement Commissioner, Gujranwala, that Muhammad Rafiq Khan was entitled. to the allotment of land equivalent to 23015 P.I. Units whereas he secured allotment of land equal to 4551 P.I. Units in excess and recommended for cancellation of the allotment of 605 Kanals of land. The Additional Settlement Commissioner, Gujranwala, however, did not agree with the report and dismissed the Mukhbari application vide his order dated 21‑2‑1974. On revision the Settlement Commissioner, vide order dated 18‑3‑1979, set aside the order of the Additional Settlement Commissioner and directed the cancellation of the excess allotment of land made to him.

3. Aggrieved by the aforementioned order Writ Petition No. 836‑R/1979 was filed which was accepted vide impugned judgment dated 6‑8‑1991 and the order of the Settlement Commissioner was set aside. Hence this petition for leave to appeal.

4. Learned counsel for the appellants contended that the learned Single Judge in the High Court had taken a view contrary to the express provision of section 11 of the Displaced Persons (Land Settlement) Act of 1958, inasmuch as that excess allotment of the land in favour of Muhammad Rafiq Khan deceased was admitted, nevertheless the same was not directed to be cancelled. Learned counsel for the appellants cited Chotu v. Chief Settlement Commissioner and others (1978 SCMR 350) and Sher Muhammad v. The Chief Settlement Commissioner and others (1971 SCMR 339), in support of his submission.

5. Mr. Saeeduz Zaffar, Advocate on the other hand submitted that since the excess allotment of land than the entitlement of the predecessor‑in‑interest of the respondents was not obtained by misrepresentation or fraud, therefore, the same could not have been cancelled. It was submitted that the mistake in ' calculation of the P.I. Units was committed by the officers who had made allotment of the land, therefore, the allottee or for that matter his successor‑in-?interest cannot be held responsible therefore. The respondents were entitled to retain the excess land as per provision of section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.

6. We have heard learned counsel for parties and Mr. A.R. Shaukat, Advocate as amicus curiae and have also gone through the documents on the file. Learned counsel for the respondents did not seriously join issue on the excess allotment of land equivalent to 4551 P.I. Units to Muhammad Rafiq Khan, he, however, strenuously argued that miscalculation of the P.I. Units and allotment of land in lieu thereof was made by the Officers of the Settlement Department. The respondents were entitled to retain the excess land inadvertently allotted to them under the provision of the repealing Settlement Laws and the scheme framed there under. This Court in Sher Muhammad's case relying on Bhano and another v. A.M. Saeed and others (1969 SCMR 299) held, a settlement means a lawful settlement or settlement in accordance with law. Similarly in Chotu's case referred above it was held that:‑ "But by an inadvertent mistake of the Central Record Office, in the form submitted by the petitioner his claim was verified for 89 Kanals and 14 Marlas. By taking advantage of this mistake of the department, the petitioner, therefore, got allotted to himself 28 acres and 36 Ghuntas of land in the District of Nawabshah in excess of his entitlement. In these circumstances, it cannot be said that the finding recorded by the Settlement Commissioner against him is not proper.. Nor indeed can it be said that the judgment of the High Court, which approved the said finding of the Settlement Commissioner, is in any way illegal. In point of fact in a similar case decided by this Court in the case of Sher Muhammad v. Chief Settlement Commissioner (1971 SCMR 339), it was held that `the allotment of excess area was due to an inadvertent mistake on the part of the officers of the Central Record Room who had wrongly verified his claim for 260 Bighas and 12 Biswas'. It is idle for the petitioner to contend that he did not know what his actual entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudulently." In the instant case the excess land secured by the appellants remained in their possession and they had taken undue advantage there from. The allotment which is in excess of the entitlement case be cancelled under section 11 of the Displaced Persons (Land Settlement) Act, 1958, even if the allotment was made by sheer mistake by the Settlement Authorities. The observation of the learned Single Judge to the effect that the allotment of the land in excess of the entitlement was not the result of fraud or false representation on behalf of the allottee, rather was due to miscalculation made by the Settlement Officer who passed allotment order, and declaring the order dated 18‑3‑1979, of the Settlement Commissioner cancelling the excess allotment illegal are contrary to the provision of section 11 of the aforesaid Act. In Daha v. Settlement Commissioner (Lands) and others (1983 SCMR 1039), this Court held:‑‑ "We agree with the learned Judge in the High Court that the principle of res judicata applies also to proceedings before the Settlement Authorities. However, we do not share his view that an allotment which is in excess of the entitlement of a displaced person made in his favour by public authorities cannot be cancelled. Such a cancellation is clearly possible under section 11 of the Displaced Persons (Land Settlement) Act and the necessary power thereunder would be available even where the excess allotment has been made on account of a bona fide mistake of the Settlement Authorities," ?In our view, the order of the Settlement Commissioner passed in revision, whereby the allotment of the excess land was cancelled and the same was directed to be allotted to the informants for adjustment of their outstanding valid claim, is unexceptionable.

7. Resultantly, this appeal succeeds the impugned judgment passed by the learned Single Judge of the Lahore High Court is set aside and that of the Settlement Commissioner dated 18‑3‑1979, is restored. There shall, however; be no order as to costs. A.A./A‑1111/S??????????????????????????????????????????????????????????????????????? ?????????? Appeal accepted.