1979 PLP 711 (CLC)

Mukhtar son of the appellant was allotted land in Chak No. 15 Gajiani, Tehsil Chishtian, District Bahawalnagar as a temporary allottee on 1-5-1948. The fard taqseem of temporary allotment was issued in his name and the allotment, inter alia, included Khasras Nos. 3, 8, 9, 10, 11, 12 and 13, it is asserted the Amir the present appellant father of Mukhtar was in fact in possession of that aforementioned land which is also clear from Annexure `A' to the writ petition. The father of Amir Din appellant had abandoned some land in India and on migration to Pakistan a claim was filed in respect of the said land which was verified. Since Umer Din father of the appellant had died in India, -the mutation of inheritance was sanctioned in favour of Amir Din vide Mutation No.

12. The verification of the land was of rural area. The land aforementioned in the temporary allotment of the son of the appellant was urban agricultural land.

3. On 21-10-1963, out of the aforementioned temporary allotment of the son of the appellant, land measuring 48 kanals, comprised of Khasras Nos, 3, 8, 9, 10, 11, 12 and 13 of Square No. 12 was proposed in the name of Amir Din under the Rehabilitation Settlement Scheme. The confirmation of this allotment was made on 2-3-1964. In the proposal made on 21-10-1963, it is clearly mentioned that Amir Din son of Umar Din was present and the land which was being proposed for confirmation in the name of the appellants stood allotted temporarily to his son Mukhtar and was in possession of the appellant. The appellant remained in possession of the land in dispute since than until an application was made against him by an informer under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. It was alleged in the said application that Amir Din being non-alleged was not entitled to get confirmation of allotment of urban land against his rural claim. It was further asserted in the application that under the instructions of the Chief Settlement Commissioner only temporary allottees of urban land could avail of the concession extended to rural area claims with the further stipulation that allotment of urban land was held by such a claimant for not less than five years. This Mukhbari application against the appellant was accepted, holding' that the land in question was obtained and got confirmed by the appellant by practising fraud and was therefore liable to cancellation under section 10 of the Displaced Persons (Land Settlement) Act, 1958. The applicant in the said mukhbari application being himself not a claimant with any verified urban area claim nor a temporary allottee of the said area, the land ordered to be resumed from the appellant was to be left as baqaysa to be utilized against some other urban claim. This order was passed by the Additional Settlement Commissioner (Land), Bahawalnagar on 28-3-1969.

4. Aggrieved by this order of the Additional Settlement Commissioner (Land), Bahawalnagar, .the appellant filed a writ petition under Article 98 of the late Constitution in the High Court. This writ petition bearing No. 815/1969 was dismissed by order dated 10-2-1975 passed by a learned Single Judge, which order is impugned in this Letters Patent Appeal.

5. The first contention raised by the learned counsel for the appellant and that there was no fraud practised by the appellant and consequently the order of cancellation of allotment of the appellant is without lawful authority as the information on the basis of which the order of the Additional Settlement Commissioner (Land), Bahawalnagar was passed did not fall within the purview of section 10 of the Displaced Persons (Land Settle ment) Act.

6. The other contention raised by the learned counsel was that the practice of the Department had been to allow confirmation of allotment of urban agricultural land against verified claims of rural agricultural land to such persons also who were in possession thereof and whose sons or fathers held temporary allotments of such urban agricultural land. It was further submitted by him that this course was adopted by the Settlement Department on the basis of various instructions issued from time to time interpreting second proviso to para. 24 of Supplementary Scheme No. 2 added by Correction Slip No. 1-SS2 dated 20-2-1960 which permitted any person who was in continuous possession of land or garden in an urban area for not less than 5 years to retain and area not exceeding land of the value of 2,000 Produce Index Units in the urban area against his verified claim for urban or rural land by suitable adjustment irrespective of the maximum of the units fixed by the Chief Settlement and Rehabilitation Commissioner under clause (8) of the Scheme. The learned counsel referred in this regard memorandum No. 2586-63-43-R(L) dated 26-6-1963 and of No. 2773-64/ 3225-R(L) dated 1-7-1964 (copies placed by him on record). He also referred to Annexures `B' and, `B/1', `C' and, `C/1, and, `D' and `D/1' to support his contention that against the temporary allotments of urban agricultural land in the names of sons, the confirmation of allotment was made in the names of their fathers who were claimants holding verified claims of rural agricultural land. It was also submitted by the learned counsel that these allotments are still intact and have been made in the same or the adjoining village. On his this submission, the Halqa Patwari, who was present in the Court, was asked to confirm the position and his statement was recorded. He stated on oath that Amir Din appellant had been in possession of the land in dispute since 1948 although the temporary allotment was in the name of his son. He also deposed that these were other allotments also confirmed in the name of persons whose sons held the temporary allotment. The learned counsel submitted that in view of the Supreme Court authority Nazir Ahmad v. Pakistan (PLD1970SC453), the Settlement Department cannot retract from the position as to go against its own instructions and practice to cancel the allotment of the appellant and to dub his allotment as `Fraudulent'.

7. We have given anxious consideration to the matter and are inclined to agree with the contentions raised by the learned counsel for the appellant. The second proviso to clause 24, Supplementary Scheme No. II to the West Pakistan Rehabilitation Settlement Scheme reads as under: `Provided further that the Central Government may permit any person who is in continuous possession of land or garden in an urban area for not less than 5 years to retain an area not exceeding land of the value of 2000 produce index units in the urban area against his verified claim for urban or rural ?and by suitable adjustment irrespective of the maximum units fixed by the Chief Settlement and Rehabilitation Commissioner under clause 8 above.

8. The learned counsel submitted that the benefit of second proviso could be obtained by any person who is in continuous possession of land in an urban area for not less than 5 years and it is not necessary that he has got to be the allottee thereof. Admittedly the appellant was in possession of the land since 1-5-1948 and so has it been admitted by the Halqa Patwari himself although the temporary allotment was made in the name of the son of the appellant. The confirmation or allotment to the appellant is also of an area equivalent to 223 units which is less than 2,000 produce index units the maximum calling fixed in the proviso aforementioned. The appellant therefore, appears to qualify as a person in possession of urban agricultural land for more than five years; the proposal having been made in his favour on 21-10-1963 and was also a claimant with a verified claim of rural agricultural land. The allotment in the name of his son further gave strength to the possession of the appellant and gave it a colour of authorization. The practice of the Department also stands established by the documents `B', `B/1', `C', `C/1 and `D8, `D'/1 as also by the statement of the Patwari himself. This being the position, the Department cannot be allowed to dub the confirmation of allotment in favour of the appellant as `fraudulent' as the allotment had been obtained by the appellant on the basis of the practice of the Department itself, and with full disclosure of facts which facts otherwise also were available on the record of Department.

9. Section 10 of the Displaced Persons (Land Settlement) Act, 1958 is to the following effects :- `If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fraud or false representation, then without prejudice to any other penalty to which such person may be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment, or reducing the area of the land allotted or such other order as he may deem fit."

10. The requirement for invoking the provision aforementioned, therefore, is that an allotment has been obtained by any person by means of fraud or false representation. In order to see whether the case in hand presents features of `fraud' or `false representation', we have to see what is the meaning of the word `fraud' has not been defined in the Act itself and therefore we will advert to the ordinary dictionary meaning thereof. It is defined in the Shorter Oxford English Dictionary as `the quality of being deceitful, Criminal deception, the using of false representation to obtain an unjust advantage or to injure the rights or interests of another, a dishonest trick, an act or instance of deception.'

11. Similarly the word `false' is defined as `to forges', `to falsify', `incorrectly', `wrongly,' not truly' and, consequently, the words `false representation' would mean a representation which is incorrect.

12. Applying the above meaning assigned to the two words it will) be clearly seen that the act of the appellant in obtaining the allotment was neither `fraudulent' nor based on `false representation'. It was in the knowledge of the Department that the allotment stood in the name of hi son and so has it been mentioned even in the proposal made on 21-10-1963 in the RL-11 Register itself. It is also not the case of the Depart ment that the claim of the appellant was not verified or was for units less than the allotment. The only allegation is that he obtained the allotment of land which was temporarily allotted to his son. This by no stretch of imagination can be said to be an act of fraud or false representation on the part of the appellant especially in the light of the fact that the appellant himself was in possession of the land according to the record as also admitted by the Halqa Patwari in his statement on an oath before us. At the worst what could be said about the allotment and confirmation thereof in favour of the appellant is that it was an irregular allotment or an allotment in violation of the provisions governing the subject. This is precisely that Additional Settlement Commissioner has said, but than it does not obviously constitute `fraud' or false representation' on the part of the appellant. It, in fact is an act of the Department itself which is being sought to be reversed by putting the boot on the leg of the opposite-party. The provisions of section 10 of the Displaced Persons kLand Settlement) Act, 1958 are neither intended nor can be allowed to be used for undoing such allot ments as may have been obtained in an irregular manner; the very words and the spirit being not to allow fraud to be perpetuated. If a wider interpreta tion is put on section 10 so as to include in it `irregular allotments' regardless of fraud on the part of a party, it will defeat the very purpose of the Act which was to rehabilitate and settle the refugees and is displaced persons and not to dislocate them.

13. In the light of our above findings that the allotment had not been obtained fraudulently or by false representation and that the allotment was in consonance with the practice of the Department we find that cancellation thereof in the garb of exercise of power under section 10 of the Displaced Persons (Land Settlement) Act, 1958 was illegal and cannot be maintained,

14. As a result, this appeal succeeds and the order dated 28-3-1969 passed by the Additional Settlement Commissioner (Land), Bahawalngar is declared to be without lawful authority and is accordingly quashed. No order as to costs. S. A. H. Appeal allowed.