by Notification dated 31﷓7﷓1959]﷓﷓Allotment﷓﷓Orders of petitioner's allotment confirmed by Settlement Commissioner﷓﷓﷓ Set asid (PLP)

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑ ‑‑‑Ss. 10 & 11‑‑Mukhbari application‑‑No fraud or misrepresentation involved in case when allotment made in favour of petitioner by Settlement Commissioner on basis of verified Fardi Haqiats‑‑Order of Additional Settlement Commissioner passed on Mukhbari application against petitioner setting aside order of Settlement Commissioner, held, was without lawful authority and 'of no legal effect‑‑Contention of informant that calculation of verified acreage into produce index units made 'by Settlement Commissioner could be re‑examined at any time, held further, not correct because by this process allotments would always be subjected to interference and annulment and there would be no end t‑o it. Facts leading to this petition are that some land was under the temporary allotment of Muhammad Yousaf and Shukar Ali deceased, predecessor‑in‑interest of the petitioners. It was allotted to‑one Khuda Bakhsh by the learned Additional Settlement Commissioner vide order dated 28‑4‑1971. The petitioners filed appeals before the Settlement Commissioner urging that they were entitled to the allotment of the land being the heirs of the temporary allottees. After a report from the Additional Settlement Commissioner, the Settlement Commissioner held that the petitioners had preferential right to the allotment of the land in question. Therefore, he accepted the appeals and ordered confirmation thereof in favour of the petitioners. This is vide order dated 5‑1‑1973. On the same day, he himself confirmed the land on the Khatas of Muhammad Yousaf and Shukar Ali at R.Ls. II 90 and 91, respectively. One Muhammad Siddique filed a Mukhbari application on 17‑9‑1973 before the Additional Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. The latter exercising delegated powers of the Chief Settlement Commissioner ordered ex parte proceedings against the petitioners on 7‑4‑1975 and vide his order dated 14‑4‑1975 reduced the allotment of the petitioners from 682 units to 191 units on the ground that their entitlement had wrongly been calculated vide order dated 14‑4‑1975. Thereafter, he allotted the area so released in favour of the informant, Muhammad Siddique, on 30‑4‑1975. The petitioners filed a petition challenging the order of the Additional Settlement Commissioner dated 14‑4‑1975 whereby their allotment has been reduced, under Article 199 of the Constitution.

2. Learned counsel for the petitioners has contended that the proceedings against the petitioners had been taken ex parte illegally in so far as that the petitioner No.2 was never served admittedly, and as regards the' petitioner No.1, it was falsely reported that she had refused to accept service because, obviously, the petitioner would not have refused service if she were apprised that allotment in her favour was in question. It is, next, contended that publication of notice in a newspaper for 7‑4‑1975 was of no effect because the service should have been effected in accordance with rule 6 of the Displaced Persons (Land Settlement) Rules, 1959 as amended by notification, dated 31st of July, 1970 published in 1971 Central Statutes Part page 48 in the following order: "(a) by delivering or rendering the notice, summons or order to the person on whom .it is intended to be served or his agent, if any; (b) by leaving it at the last known place of business or residence of such person or delivering or tendering it to some adult member of his family; (c) by transmitting it by registered post to such person at the address of the last known place of his business or residence; (d) by affixing it at some conspicuous place in or near the premises concerned or the last known place of business of such person and (e) by publication in a newspaper, or proclamation by beat of drum or other customary method in the locality. (2) Service under clause (b) or clause (d) of sub‑rule (1) shall be in the presence of two respectable persons residing in the locality." It is submitted that the service was not effected in accordance with the rules seriatim. It is, then, contended that the allotment was made in favour of the petitioners by the learned Settlement Commissioner on appeal, the Additional Settlement Commissioner had no jurisdiction to set aside the same, even in exercise of powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. Reliance is placed on Mirza Khan and others v. The Additional Settlement Commissioner, etc. P L D 1973 Note 5 at p. 14.

3. Learned counsel for the respondent‑informant, Muhammad Siddique has contended that best efforts were made to serve the petitioners and that they did not appear and, therefore, ex parte proceedings were rightly taken. It is, next, contended that the order has been passed by the learned Additional Settlement Commissioner in exercise of powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 delegated to him by the Chief Settlement Commissioner and, therefore, the impugned order is to be deemed to be that of the Chief Settlement Commissioner and latter could set aside the order of the Settlement Commissioner. 4‑

5. From the record, it appears that the land in question was initially in the temporary allotment of Muhammad Yousaf and Shukar Ali, predecessor‑in‑interest of the petitioners. It was allotted to Khuda Bakhsh. The petitioners' appeal was allowed by the Settlement Commissioner on 5‑1‑1973 and the latter himself confirmed the same on the R.L. II at Nos. 90 and

91. It is patent that at the time of confirmation of the land in favour of the petitioners calculation of the entitlement of the petitioner was made and allotments then confirmed by the Settlement Commissioner on 5‑1‑1973. On 17‑9‑1973, the informant filed a Mukhhari application and in ex parte proceedings, the Additional? Settlement Commissioner while exercising powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 as delegate of the Chief Settlement Commissioner, upset the order on the ground that the earlier calculation was incorrect. There is no dispute about the extent of the area verified. The allotment has been reduced on the ground that the calculation of the produce index units from the verified area was incorrectly made by the Settlement Commissioner on 5‑1‑1973. Besides that the impugned order has been passed in ex parte proceeding before which effective steps were not taken in accordance with rule 6 of the Displaced Persons (Land Settlement) Rules, 1959 as amended, to serve the petitioners, the Additional Settlement Commissioner, even though delegated the powers of the Chief Settlement Commissioner under sections 10 and 11 of the aforesaid Act, could not set aside the order of his immediate superior, the Settlement Commissioner, who himself was possessed of such powers. It is inconsistent with the policy of la and administration that an order passed by a superior Officer can be annulled or set aside by his subordinate who possesses no more powers than the superior Officer possesses. There was no question of fraud or misrepresentation involved in the case when the allotment was made in favour of the petitioners by the learned Settlement Commissioner on the basis of the verified Fard‑e‑Haqiats. The contention of the informant that the calculation of verified acreage into produce index units mad by the Settlement Commissioner on 5‑1‑1973 could be re‑examined at any time is not quite correct because by this process allotments would always be subject to interference and annulment. There would be n end to it. Provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 are not attracted in such circumstances.

6. In view of what has been said above, the impugned order passed on a Mukhbari application by the Additional Settlement Commissioner setting aside the appellate order of the Settlement Commissioner is found to be without lawful authority and of no legal effect and it is s declared. However, the parties are left to bear their own costs in the circumstances of the case. M . Y . H .?????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.