1990 PLP 1592 (SCMR)

‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Notwithstanding incorrectness of grounds, made basis for the judgment of High Court, dismissal of Constitutional petition filed by appellants was justified on account of finding of fact raised by appellants with regard to benefit of correction slip of 1956‑‑‑Appeal dismissed in circumstances. Ch. Muhammad Farooq, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Appellants. Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondent Maqbul Sadiq, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents Nos.2 and

3. Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 4, 5 and

6. Date of hearing: 20th May, 1990. SHAFIUR RAHMAN, J: ‑‑Leave to appeal was granted to examine the following two questions of law:‑‑ "(i) The writ petitioners in this case were not, as claimed by the petitioners, the successor‑in‑interest of the Attorney of the Informer but of the Informer himself; and therefore, they had a vested right to continue the proceedings. (ii) In view of the statutory provisions made in sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 for resumption of excess allotment there was no scope left for the Court to exercise the discretion as to where resumption will take place and where it will not take place even after such excess allotment has been established according to the law."

2. Mst. Hasso, a refugee right‑holder from the District Ambala received a verified claim of 724 Bighas 6 Biswas which was in 1960 reduced to 450 Bighas but on the objection of the claimant‑, restored to 724 Bighas 6 Biswas. Allotment was made against the verified claim at three Khatas in Bore Dhakwala, Dheedo Dugal, Chak Jaid, and Ghanianwala, Tehsil and District Gujranwala. Sardar Khan, the predecessor‑in‑interest of the appellants filed an appeal against the allotment which was allowed. The material finding of fact on which the order was based reads as hereunder:‑‑

"Learned counsel for the respondents have produced before me an attested copy of the Gazette notification dated the 29th July, 1940 whereby the area mentioned therein for village Seeswan where the property of the present claimant existed, was taken under the Punjab Preservation (Chos) Act of 1900. In such circumstances the area for village Seeswan was. therefore, to be treated as Barani as required under the correction slip No.CS137 P1 dated 23‑2‑1956). Learned counsel for the respondents, however, conceded that 38 units per acre for Ghair Mumkin land were wrongfully calculated whereas the same should have been made at the rate of 28 units per acre as entered in the official produce index booklet. The total units calculated in the register R.L.II at the rate of 38 units per acre for Ghair Mumkin were entered as 3102 whereas if the correct units 28 per acre have been given then the claimant's entitlement was of only 2286 units for Ghair Mumkin area. The claimant has, therefore, evidently been given 816 units against Ghair Mumkin area in excess to her entitlement and this point was even conceded by the learned counsel for the respondents. The fresh calculation of units was made in the Court in the presence of the parties and the detailed statement of the Patwari also recorded showing that the units were wrongfully calculated to an excess of 816 units."

3. The respondents/allottees appealed to the Settlement Commissioner who remanded the proceedings to the Additional Settlement Commissioner on 8‑2‑1967. The Additional Settlement Commissioner directed a reduction m the I allotment which was challenged in the High Court successfully by an order dated 5‑5‑1980. The proceedings were remanded to determine the question of limitation and to apply the statutory instructions with regard to the calculation of Produce Index Units for the verified claim. The Settlement Commissioner by his judgment dated 15‑8‑1981 declined to interfere with the allotment, and the High Court by the impugned judgment did not interfere with it.

4. When the petition for leave to appeal came before us, we noticed that the grounds given in the impugned judgment of the High Court for dismissing the claim were not prima facie tenable. In the first place, the appellant writ petitioners were taken to be the heirs of the general attorney and not successors -in‑interest of the informant or the appellant before the Deputy Settlement Commissioner. In fact the appellants are not the successors‑in‑interest of the attorney but of the informant, but at one stage in the record they so misdescribed themselves that they were the successors‑in‑interest of the attorney. The second reason given was that if on account of the calculation of the public authorities excess allotment had been made then it is not resumable. This also does not appear to be correct.

5. After hearing the appeal at great length we find that the main controversy in the case which ultimately became decisive of the issue was whether the correction slip dated 23‑2‑1956 was available for computing the entitlement of Mst. Hasso or not. In the special Jamabandi, the notification under section 3 of the Punjab Preservation (Chos) Act of 1900 is definitely not mentioned but the notification dated 29th July, 1940 had been separately placed on record and it showed that 60 acres land in village Seeswan where Mst. Hasso owned the land had been brought under the notification. From the portion of the Order of the Deputy Settlement Commissioner reproduced above, it is clear that the benefit of this notification was extended to the land obtained by Mst. Hasso and the predecessor of the appellants and submitted to it and was not aggrieved by it. Thereafter, no change in the circumstances, material or evidence, has taken place to justify the stand that the land obtained by her stood excluded from the benefit of the notification and consequentially of the circular of 1956. Even in the statement of the official from the Central Record Office who appeared as a witness, no effort was made to ascertain whether the Khasra Numbers owned by Mst. Hasso were included in the notification of 1940 or not. In the absence of such an exercise having been undertaken at the appropriate stage before the departmental authorities by making a positive assertion to that effect, the appellants cannot, in constitutional jurisdiction be allowed to agitate that question of fact for the first time. If the allottee is allowed the benefit of 1956 circular, which has been allowed to, by the departmental authorities, then there is no question of excess allotment.

6. We find that notwithstanding the incorrectness of the grounds, made the basis for the judgment by the High Court, the dismissal of the writ petition filed by the appellants was justified on account of the finding of fact raised by the appellants with regard to the benefit of correction slip of 1956. This appeal is dismissed with costs. AA./M‑1387/S Appeal dismissed.