P L D 1959 (W (PLP)

The facts relating to this writ petition are that the petitioner, who is admittedly a refugee, claimed to have held land in Alwar State and put in a claim with respect to this land. The Jamabandis of Alwar State were at that time not available and the practice of the Rehabilitation Department with respect to refugees from Alwar State was to make allotments to them of land merely on the production of a certificate from the Central Record Room that a claim had been made. The petitioner was allotted Khata No. 1 in village Athilpur,. Tehsil Qasur, District Lahore on the strength of such a certificate. In the land which was allotted to him were Khasras Nos. 155 and 156 and with respect to these, one Sufed Khan filed an appeal against the petitioner and the Deputy Rehabilitation Commissioner ordered the deletion of these two numbers. Whether he at the same time made an order that another land should be given to the petitioner in lieu of Khasras Nos. 155 and 156 is not clear from the record because the order, of the Deputy Rehabilitation Commissioner is not on the file, but in the ordinary course that would be the order. The petitioner alleges that according to directions given by the Deputy Rehabilitation Commissioner, Khasra No. 445 was proposed to him in lieu of Khasras Nos. 155 and

156. Subse quently, Jamabnndis from Alwar State became available and area, which would entitle the petitioner to more land than had been allotted to him, was verified. At this a new Khata was opened in the name of the petitioner, i.e., Khata No.

131. In this Khata, according to the allegations of the petitioner, Khasras Nos. 444 and 445 were proposed to him, but they were subsequently allotted to respondent No. 1, Kalu Khan. The petitioner filed an appeal to the Deputy Rehabilitation Commissioner and the Deputy Rehabilitation Commissioner directed that both these Khasra numbers be allotted to the petitioner. There was a revision petition to the Rehabilitation Commissioner against the order of the Deputy Rehabilitation Commissioner. The Rehabilitation Commissioner found that although Khasra No. 445 had been proposed in favour of the petitioner Khasra No. 444 had not been so proposed, lie, therefore, ordered that Khasra No. 445 should be retained by the petitioner and Khasra No. 444 should be given to respondent No.

1. The petitioner did not take any further proceedings against this order in so far as it related to Khasra No.

444. Respondent No. 1, however, put in an application for review to the Rehabilitation Commissioner praying that Khasra No. 445 should be allotted to him. The plea in this application for review was that Khasra No. 445 had never been allotted to the petitioner in the original allotment in his favour in Khata No.

1. Respondent No. I produced before the Rehabilitation Commissioner in support of this plea a copy of a khatauni which was given to the petitioner at the time of the original allotment on the basis of a certificate alone by the Central Record Room as explained above. The Rehabilitation Commissioner was of the opinion that this copy had no bearing on the merits of the case and he dismissed the application for review. This order was passed on the 17th of August, 1955.

2. About two years later, respondent No. 1 put in a second application for review and this time the review application was accepted. The learned Rehabilitation Commissioner examined the entries in the tahsil record wherein a copy of the khatauni given to an allottee is maintained and reached the conclusion that originally, i.e., when allotment was made on the basis of a certificate from the Central Record Room alone, Khasra No. 445 had not been given to the petitioner. This, he said, was in fact the basis of the order it revision and, therefore, he set aside his order in revision and granted Khasra No. 445 also to the respondent No.

1. Before him reliance was placed on behalf of the petitioner on the record of the Patwari, but the learned Rehabilitation Commissioner found the entries in the register of the Patwari, to be unreliable because they did not tally with what was contained in the Tehsil record.

3. The petitioner has challenged the order passed in review by the learned Rehabilitation Commissioner on two grounds. The first is that the power of review under section 11 (5) of the Rehabilitation Act is limited to correction of errors apparent on the face of the record and, therefore, such an order could not have been passed on review at all. The second ground is that once the Rehabilitation Commissioner had dismissed an application for review, he could not accept another application for review which was based on the same grounds.

4. It appears to me that there is force in each of the two' objections on which this order is challenged. Under section 11 (5) the only power of review which a Rehabilitation Authority can exercise is on the ground of an error apparent on the face of the record. In his order in revision the learned Rehabilitation Com missioner had decided that one of the two Khasra numbers had been proposed in favour of the petitioner and the other had not been proposed, and on that ground he had partially accepted, the revision petition. In the review petition he was dealing with the merits of the dispute and going over the same ground. It cannot be said that there was an error apparent on the face of the record which he was correcting. An error apparent on the face of the record is one with respect to which there can be no, serious dispute.

5. It has been urged on behalf of respondent No. 2 that the petitioner had fraudulently obtained an order and if it was proved that the order passed by the Rehabilitation Commissioner in revision had been secured by the petitioner by fraud, the order would still be liable to be reviewed inspite of the stringent pro visions relating to review. I have no hesitation in agreeing with this proposition. In spite of the fact that there is no exception as to fraud in section 11 (5), and order would always be liable to be set aside or rather held void on the ground that it had been secured by fraud. If the Rehabilitation Commissioner had come to the conclusion that the petitioner had been guilty of fraud and that his order in revision was due to fraud practised on him, he would be justified in declaring the previous order void and in passing a fresh order. This would not be truly a case of review but just a determination that the previous order was void on the ground of fraud.

6. However, though that is the legal position, it does not at all help the petitioner in the present case. The Rehabilitation Commissioner never in his second order in review found the petitioner guilty of any fraud. In fact it is not quite easy to apprehend what exactly are the findings of the learned Reha bilitation Commissioner in the second review order. It is to be remembered that the order in revision was passed on the ground that Khasra No. 445 had been proposed to the petitioner while Khasra No. 444 had not been so proposed. In the second application for review respondent No. 1 had admitted that Khasra No. 445 had been proposed to the petitioner but had not been allotted to him. The learned Rehabilitation Commissioner recorded only a finding that Khasra No. 445 had not been allotted to the petitioner (for which finding he relied upon copies of the Tahsil record) and only on this finding he accepted the second application for review although in his order on the first review application he had said the basis of his order in revision was proposal. It will be convenient to reproduce here a portion of his order :‑ " In the first order there was some mistake which was rectified in the second order. The second order was passed on the assumption that Khasra No. 445 was allotted to Umed Khan. Kalu, petitioner, has filed a second review on the ground that this Khasra No. was only proposed to Umed Khan. In order to find out the force of this contention I sent for the Parchi Taksim (khatauni) from the Tehsil record. I have also examined the entries made in register RL II. In the Tehsil copy of the Parchi Taqsim (khatauni) Khasra No. 445 is not mentioned at all although the khatauni relates to Umed Khan respondent. In this copy of the whole of Khasra No. 156 measuring 8 kanals 9 marlas has been given to Umed Khan. An examination of the entries in the RL II shows that the original entries are the same as are contained in the Tehsil copy of the Parchi Taqsim (khatauni). There were subsequent entries but these entries appear to be unreliable because if Khasra No. 156 is taken out of consideration (as it has been struck off in the RL II) the total area given to Umed Khan according to RL II comes to 90 kanals 10 marlas and not 92 kanals 14 marlas as given in the RL II. It is also signifi cant that the total of the area given in the Patwari's copy of the Parchi Taqsim is 92 kanals 10 marlas while this copy shows that Khasra No. 156 was allotted to Umed Khan and the area was 1 kanals 4 marlas." The " first order " refers to the order in revision and the " second order " to the order passed on the first application for review. The statement that by the second order a mistake in the first order had been corrected is, as conceded by both parties, incorrect. The learned Rehabilitation Commissioner says the first order was based on the assumption that Khasra No. 445 was allotted to the petitioner. This is not quite clear from the first order the relevant portion of which runs : " I have also examined the records brought by the Patwari as well as the copies produced by the parties. Examination of the relevant record shows that while Khasra No. 445 was originally given to Umed Khan, Khasra No. 444 was never proposed to him at all." It will be observed that there is some confusion between proposal and giving, but this matter is clarified by' the order on the first, application for review, the relevant portion of which runs : " The main ground for allowing Khasra No. 445 to remain with the respondent was that this was proposed in RL II in his favour but was subsequently cancelled." So according to the interpretation of the learned Rehabilitation Commissioner himself of his order in revision, the reason why Khasra No. 445 was allotted to the petitioner was that this number had been proposed in his favour. Yet, as will appear from the quotation from his order on the second application for review the contention before him of respondent No. I was that there was a proposal with respect to Khasra No. 445 but it had not in fact been given to the petitioner. The only finding of the learned Rehabilitation Commissioner in the second order on review is that Khasra No. 445 had not originally been allotted to the petitioner and it is on this that he has based his order in the review petition. All that is said in this order is that the learned Rehabilitation Commissioner does not accept the entries of the Patwari as reliable and, therefore, he holds that there was no allotment of Khasra No. 445 in favour of the petitioner. The contention of the petitioner is that in fact there was an allotment to him of Khasra No. 445, but such allotment was not to appear in the Tehsil records at all because a copy of the Khatauni is sent to the Tehsil only at the time when an allotment is confirmed in favour of an allottee and subsequent variations in the allotment are incorporated only in register RL 11 and no information with respect to them is sent for the purpose of incorporation in Tehsil record. In this case the allegations are that Khasra No. 445 was given to the petitioner only after the acceptance of the appeal of Sufed Khan and the deletion of Khasras Nos. 155 and 156 from the allotment of the petitioner. Learned counsel for the respondent has not said anything to contradict the proposition that the subsequent changes are made only in the register RL II and do not appear in the Tehsil record.

7. I have thoroughly gone into the matter myself and what appears to have happened is this. Khasras Nos. 155 and 156 were in fact deleted from the original allotment of the petitioner on the appeal of Sufed Khan. There is an entry to that effect in the register RL II. However, the Deputy Rehabilitation Commissioner who accepted the appeal was not expected to say as to what parti cular numbers were to be allotted now to the petitioner in lieu of Khasras Nos. 155 and 156 and it was the Assistant Rehabilitation Commissioner who then proposed Khasra No. 445 to him. There is an entry to that effect in the register of the Patwari and there is no particular reason why this entry should appears in the Tehsil record also. The area of Khasras Nos. 155 and 156 was about 14 kanals and Khasra No. 445 has the same area, so that it was quite natural that this Khasra number should be proposed in lieu of Khasras Nos. 155 and

156. There is no suggestion at all on the record that any other Khasra number was proposed in lieu of Khasras Nos. 155 and 156 and in the ordinary course some Khasra number had to be proposed in lieu thereof. The position of the respondent No. 1 before the Rehabilitation Commissioner had been that Khasra No. 445 had been proposed but was never allotted. This seems to be correct. Khasra No. 445 had been proposed already at the time when Jamabandis having been received from Alwar State more area was verified in favour of the petitioner and a new Khata No. 131 was opened. Naturally, in Khata No. 131 Khasra No. 445, which had already been proposed in Khata No. 1, was included. But it was not allotted by the Assistant Rehabilitation Commissioner and was allotted to the petitioner only on his appeal to the Deputy Rehabilitation Commissioner. The Rehabili tation Commissioner had given him both the Khasras Nos. 444 and 445, but on revision Khasra No. 444 had been excluded.

8. The second contention of the petitioner has as much force. An application for review had been submitted to the Rehabilitation Commissioner and the contention before him was that Khasra No. 445 had not been allotted to the petitioner in the original allotment. A copy from the Tehsil record had been produced before the Rehabilitation Commissioner in proof of the fact that Khasra No. 445 had not been so allotted. The learned Rehabilitation Commissioner said in his order on the first application for review that .the reason for the grant of Khasra No. 445 to the petitioner was the fact of its proposal in the name of the petitioner. He said further that whether in the original allotment Khasra No. 445 was included or not was irrelevant and the copy which was produced before him from the Tehsil record showing that Khasra No. 445 had not been allotted to the petitioner was of no use. He could not, under the circumstances, on exactly the same plea (and in fact on similar evidence) come to a contrary conclusion. In the second applica tion for review, he relied on the same fact which he had regarded as irrelevant in the previous proceedings.

9. I find that the order passed in review by the learned Rehabilitation Commissioner on the 27th of July 1957 was without jurisdiction. I set it aside and restore the order passed in revision by which Khasra No. 445 was granted to the petitioner. No order as to costs. B. A. Petition accepted.