P L D 1959 (W (PLP)

3. On the 3rd of November 1958 when the case came up for hearing before me, Mr. Sultan Muhammad, Officer on Special Duty, stated before me that on checking the jamabandis it was found that the petitioners were entitled to 38 bighas 16 biswas of land as follows : Bighas Blswas Malkiat 5 = 9 Shamilat 19 = 12 Maurusiat 13 = 15 Total 38 = 16

4. Learned counsel for the petitioners has urged that their allotment could not have been cancelled in respect of the area which is due to them. He has also argued that the Rehabilitation authorities could not have legally cancelled the entire allotment.

5. Para 4 (c) of the Rehabilitation Resettlement Scheme, (Punjab, Part I) prescribed by the Rehabilitation Commissioner (lands) under section 7 (1) of tile Pakistan Rehabilitation Ordinance XIX of 1948, as amended by the Pakistan (Economic Rehabilitation) (Amendment) Ordinance XVI of 1949, is as follows :‑ " If an allottee is, at any subsequent time, found to have been allotted land in excess of what may actually be due to him, the allotment of the excess area shall be cancelled and, if necessary, he will be dispossessed thereof."

6. It is quite clear that by the terms of this para the Rehabilitation authorities are empowered only to cancel the allotment of the excess area and not tree entire allotment. It is, however, true that instruction No. 60 (6) of the Instructions for the Deputy Rehabilitation Commissioners (Lands) issued by the Rehabilitation Commissioner (Lands) under para. 23 of the Scheme, lends support to the contention of the respondents that the entire allotment could have been cancelled, but after a careful consideration of the provisions of para. 4 (c) of the scheme and this instruction, I am inclined to hold that this instruction can have its full effect only when it is impossible to determine the exact area to which a particular claimant is entitled, and not otherwise. If the instruction really means what it says, then it has obviously travelled beyond the scope of para 4 (c) of the scheme and consequently it must be held to be void and ultra vires to the extent of its repugnancy to para 4 (c) of the scheme. Instruction No. 60 (6) is as follows : " In cases where forgeries in revenue records of fard‑i‑haqiat are detected, the allotments of the persons concerned should be cancelled forthwith. Further allotments in such cases should not be made until they have been finally decided and previous orders of the Rehabilitation Commissioner (Lands) expressly obtained."

7. The legal implications of this instruction were duly con sidered in an unpublished judgment of a Division Bench of this Court in Abdul Haq and others v. Rehabilitation Authority (Writ Petition No, 399 of 1956) which was decided on the 4th of December 1956. The learned Judges constituting the Bench while dealing with this aspect of the question observed as follows:‑ " After a careful study of the scheme as also of the relevant instruction under review, we are inclined to think that the instruction has been issued for a wholly different purpose and neither supports the contention of the learned counsel for the Government nor is in conflict with para 4 (c) of the scheme. The instruction is intended to cover only those cases in which, after a forgery has been detected in the revenue record relating to the estate of a particular claimant, it is not possible for the rehabilitation Department to ascertain, without further inquiry, the exact area to which he is entitled, and it is only in those cases that a cancellation of the entire allotment is provided for by the instruction, and that too till the revenue records in the Central Record Room are consulted and the exact area of the claimant's entitlement is determined. The instruction is not, therefore, punitive in character and is not opposed to para 4 (c) of the scheme; but is issued only with a view to giving an opportunity to the Rehabilitation Depart ment to revise excess allotments. Therefore, according to the view which we take of instruction No. 60 (6), no punishment is contemplated by it, and the cancellation of the entire allotment of the petitioner now alleged to have taken place under that instruction was directly opposed to the provisions of para 4 (c) of the scheme." I am in respectful agreement with these observations. The con clusion is, therefore, inescapable that this instruction is not really punitive in character.

8. In the light of what has been stated above, I find that the excess area has been determined in the present case and, therefore, the Rehabilitation authorities could not have legally cancelled the entire allotment. Learned counsel for the respondents has nothing to urge against this proposition. Besides, it is too early to hold that the petitioners are really to blame for the wrong verification. It may be that one or the other or both of them had no hand in the matter. The case is still under investigation and it will be premature to make any guess about it at this stage. If after investigation they are sent up for trial and con victed, they will be punished in due course in accordance with law.

9. For the aforesaid reasons, I am of the opinion that the respondents are clearly shown to have acted in excess of the power which law has vested in them. I, therefore, regard it a fit case for the issue of a writ of mandamus. I accordingly direct the respondents not to cancel the entire allotment, but if in the meantime the entire allotment has been cancelled, they should restore the allotment of that area to the petitioners to which they are entitled according to the jamabandis in the Central Record Room. In the circumstances of the case, however, there will be no order as to costs.

10. I have also heard Mr. Fateh Muhammad Anwari, Advocate, on behalf of Muhammad Umar who has filed Civil Miscellaneous No. 1488 of 1957. He may be impleaded as a respondent. Learned counsel for Muhammad Umar has nothing substantial to say in opposition to the writ petition. He has, however, prayed that Muhammad Umar should not be deprived of the land allotted to him. In my opinion the position of Muhammad Umar is exactly the same as was held by the Additional Rehabilitation Commissioner (Lands) in his order dated the 10th of December 1956 referred to above. He will, of course, be entitled to retain possession of the area of land which is left over after satisfying the just claim of the petitioners. K. B. A. Writ issued.