1990 PLP 814 (SCMR)

Sh. Salahuddin, Advocate‑on‑Record and Ch. Khalilur Rehman, Senior Advocate Supreme Court for Respondents Nos. 2 and

3. Date of hearing: 30th October, 1989. NAIMUDDIN, J.‑‑This appeal, by leave, is from the order of the Lahore High Court dated 5‑10‑1980 whereby the appellants' Writ Petition No. 557/R of 1980 was dismissed in limine in the following circumstances.

2. Akbar Ali (deceased) predecessor‑in‑interest of the appellants filed two Mukhbari applications against Bashir Ali son of Qutbi, predecessor‑in‑interest of respondents Nos.2 and 3 under sections 10 and 11 of the Displaced Persons (Land Settlement Act), 1958 stating therein that the said Bashir Ali had secured the allotment of excess land than his entitlement through fraud.

3. The Additional Settlement Commissioner vide order dated 23‑12‑1976 cancelled the excess land and allotted the same in favour of predecessor‑in -interest of the appellants 1‑9 and appellant No.10. This order was challenged in Writ Petition No.261 of 1977 which was accepted by the order dated 5‑6‑1979 and the case was remanded to the respondent No.1 for disposal afresh. The respondent No.1 vide order dated 29‑12‑1979 held as follows:‑‑ "Undeniably the allottee did not secure any allotment through fraud or making any misrepresentation. The mistake actually originated in the C.R.R. As the allottee acted in a bona fide manner, it would be cruel to withdraw the excess area from the respondents, especially after passage of a painfully long period. Nonetheless since the complaint made against the allotment was found to be correct, land equivalent. to 536 P.I. Units being in excess of actual entitlement is withdrawn from the respondents. However, the respondents are allowed to purchase the said 536 P.I. Units at the rate of 10 rupees per unit within 15 days from the date of order failing which the land shall revert to the Central Government. However, the informers are not considered entitled to any relief in view of the fact that the allottee has not been shown to have acted in a fraudulent or' improper manner. As such the Mukhbari applications are dismissed subject, of course, to what have already been said above."

4. Therefore, the appellants who are claiming through their predecessor‑in-interest/informer, filed a Constitutional petition in the High Court which was dismissed in limine by the impugned order.

5. Before the High Court, Chotu v. Chief Settlement Commissioner, Lahore and 6 others (1978 S C M R 350) was cited. Referring to this case, it was observed:‑‑ "The case relied upon is distinguishable. It was held therein that the allottee had got allotment by taking advantage of the mistake of Central Record Office. In the present case, there is no such finding. On the other hand, the finding is that the allottee had not acted in a fraudulent and improper manner. A finding of fact recorded by a competent authority exclusive jurisdiction can hardly be interfered with in Constitutional jurisdiction by this Court."

6. We have heard Ch. M. Z. Khalil for the appellants and Ch. Khalilur Rehman for the respondents. The learned counsel for the appellants submitted that the respondents' predecessor‑in‑interest was allotted 536 P.I. Units in excess of his entitlement. He retained the same and did not inform the Department about the excess allotment and, therefore, his case was covered under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. Reliance was placed, as was done before the High Court, on Chotu's case (supra) in which the petitioner had left behind in India only 3 bigas of land, but inadvertently his claim was verified by the Central Record Office for about 89 kanals. The petitioner taking advantage of such mistake got allotment of about 28 acres of land in excess of his entitlement. It was held by this Court that the petitioner had acted fraudulently by taking unfair advantage of inadvertent mistake of the officials of the Central Record Office. The relevant passage may be quoted which reads as follows:‑‑ . .Now according to the special Jamabandi produced by Munshi Aminur Rehman (P.W.2), the petitioner herein had left in Khot Kallan, tehsil Bansi, district Hissar, only 3 bighas and 10 biswas of land. But by an inadvertent mistake of the Central Record Office, in the form submitted by the petitioner his claim was verified for 89 kanals and 14 marlas. By taking advantage of this mistake of the department, the petitioner, therefore, got allotted to himself 28 acres and 36 ghuntas of land in the district of Nawabshah in excess of his entitlement. In these circumstances, it cannot be said that the finding recorded by the Settlement Commissioner against him is not proper. Nor indeed can it be said that the judgment of the High Court, which approved the said finding of the Settlement Commissioner, is in any way illegal. In point of fact in a similar case decided by this Court in the case of Sher Muhammad v. Chief Settlement Commissioner (1971 S C M R 339), it was held that "the allotment of excess area was due to an inadvertent mistake on the part of the officers of the Central Record Room who had wrongly verified his claim for 260 bighas and 12 biswas. It is idle `for the petitioner to contend that he did not know what his actual entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudulently. This case is on all fours with the present case and the High Court unduly held that it was distinguishable for in the present case also due to mistake of the Central Record Office, the claim of the respondents' predecessor‑in‑interest was verified for more land than he was entitled to and in spite of knowing the same, he took unfair advantage of inadvertent mistake committed by the officials of the Central Record Office by retaining the excess land‑ obviously with the intention of making wrongful gain. He, therefore, acted fraudulently. The finding recorded by the Additional Settlement Commissioner in view of the above stated facts was not proper. The learned counsel for the respondents, however, relied on Karam Elahi and another v. Ch. Ali Ahmad and 5 others (1974 SCMR 43), Chiragh Din etc. v. Tariq Jaffry (1976 SCMR 65), Gulzar Ahmed v. Settlement and Rehabilitation Commissioner (Lands), Punjab and others (1981 SCMR 547) and Azam Saig v. Chief Settlement Commissioner and others (1983 S C M R 1244). All these cases were disposed of at petition stage and in none of them the case of Chotu (supra) was considered which is a considered judgment.

7. We, therefore, accept the appeal, set aside the impugned order of the High Court dated 5‑10‑1980 and that of Additional Settlement Commissioner dated 29‑12‑1979, and restore the allotment of land made by the Additional Settlement Commissioner, Chunian vide order dated 23‑12‑1976 in favour of the predecessor‑in‑interest of appellants Nos.1 to ‑9 and appellant No.10. However, in the circumstances of the case, we leave the parties to bear their own costs. A.A./I‑112/S Appeal accepted.