1980 PLP 744 (CLC)

The petitioners in this case are aggrieved by the order dated 26-6-1978, . passed b) the learned Chief Settlement Commissioner, Lahore, respondent No. 1, adopting the action of the. Assistant Commissioner/D. S. C., Hafizabad, District Gujranwala, respondent No. 3, in transferring an area of 57 kanals 74 marlas, to the respondent No. 2, by his order dated 11-5-1977. Briefly stated the facts of this case are that one Ghulaman, the predeces sor-in-interest of the petitioners was allotted land measuring 36 kanals 19 marlas on 8-2-1952 in lieu of his verified 165 units at Khatta No. 7 of RL-II Mauza Naurozpur, Tehsil Hafizabad, District Gujranwala. Sub sequently, on 19-2-1953, an additional area measuring 8 kanals 18 marlas was further allotted to him. This appears to be against his mortgaged land which entitled him to 58 units.

3. Thereafter Khata Nb. 138; 7-34 was opened and it was in this Khata that the units of Ghulaman, the predecessor-in-interest of the petitioners, were recounted and his entitlement was calculated at 474 units and it was found that he was further entitled to 219 units. Against this entitlement an additional area of 57 kanals 14 marlas was confirmed its favour.

4. A mukhbari application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 was presented by the respondent No. 2 before the learned Addl. - Settlement Commissioner (L), Gujranwala, to the effect that the petitioner's father had fraudulently acquired land to the tune of 57 kanals and 14 marlas in excess of his entitlement. The learned Settle ment and Rehabilitation Commissioner, Lahore Division, by his order dated 26-5-1966 appears to have directed that the excess land be withdrawn from the petitioners. This was followed by order dated 31-5-1968 by the Addl. Settlement and Rehabilitation Commissioner (Lands), Gujranwala, directing that after giving choice to the petitioners, the excess area be withdrawn. Ghulaman, the predecessor-in-interest of the petitioners filed an appeal which was decided by the Settlement Commissioner (Land), Lahore Division, by his order dated 7-1-1969. The appeal was accepted and the case was remanded to the Additional Settlement Commissioner (L)/ADC(C), Gujranwala, with a direction that he should pass a fresh order in the light of the observations made in the Appellate Order, after hearing the parties. The matter remained pending till the Land Settlement Act, 1958 was repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which came into force on 1-7-1975. The matter was eventually taken up by Mr. Bashir Ahmad Sheikh, Settlement Commissioner (L) with powers of the Chief Settlement Commissioner in pursuance of the provision ors subsection.(2) of section 2 of the Evacuee Property and Displaced Person Laws (Repeal) Act, 1975 for final disposal. The learned Settlement Com missioner decided the application filed by the informer by his order dated 1.6-4-1.977, a certified copy of which has been placed on record. Upon consideration of the arguments advanced on behalf of the parties and upon examination of the relevant record, the learned Settlement Commissioner came to the following conclusion "Under the circumstances, it is established beyond doubt that the entitle ment of Ghulaman deceased in terms of units was firstly assessed correctly but the subsequent assessment of his entitlement was incorrect. However, it has not beer established that this mistake was the result of any collusive act on the part of Ghulaman deceased or was an in advent of the revenue authorities. Under the circumstances, when no forgery on the part of the father of the petitioners is established, the excess allotment cannot be described as a result of any forgery. The petitioners have put in hard labour to improve the condition of this land (Khata No. 138;34-7) allotted to them. It would be appropriate if this lard is sold to them under section 12 of the Land Settlement Act, 195&. Since the power in this behalf has not been conferred on me, I direct the petitioner to approach the Chief Settlement Commissioner, Punjab, Lahore. within one month after deducting the time spent in obtaining the copy of this order and to have an appropriate order." The order further records the fact that in the event of default on the part of the petitioners, the excess land measuring 57 kanals, 14 marlas shall be resumed. Upon resumption, the informer was to be allotted land after verification of his entitlement (after locating the petitioners by the Assistant Settlement Commissioner exercising the powers of the settlement authority Hafizabad.

5. In pursuance of the order dates 16-4-1977 allowing the petitioners to retain the land and directing them to move the Chief Settlement Com missioner for purchase thereof under. section 12 of the Land Settlement Act, 1958, the petitioners applied to the Chief Settlement Commissioner on 14-5-1977, i.e. well within a period of one month allowed by the Settlement Commissioner in this behalf,

6. The respondent No. 2, however; approached the Assistant Com-. missioner, Hafizabad, and eras successful in securing the transfer of this land in his favour by an order dated 11-5-1977. The petitioners thereupon filed Writ Petition No. 786/R/77 challenging the validity of the order dated 11-5-1977 passed by the Assistant Commissioner, Hafizabad, contending inter alia that the order has been passed without hearing the petitioners and deprived them of their rights to retain the disputed land by purchasing the same from the Chief Settlement Commissioner under section 12 of the Land Settlement Act, 1958. The writ petition was disposed of by a judgment dated 19-7-178 passed by my learned brother Mr. Justice Ghulam Mujaddid Mirza His Lordship came to the conclusion that the application moved by the petitioners before the Chief Settlement Commissioner was pending. He, therefore, directed the Chief Settlement Commissioner to hear the parties before taking a final decision on the application presented by the petitioners. The learned Chief Settlement Commissioner disposed of the application filed by the ,petitioners with the following observations :- "I have considered the arguments advanced from both the sides and have come to the conclusion that the informant has got the vested rights for allotment of the resumed land. If any area is left out after satisfaction of informant's claim it has to be offered for sale to the occupant in terms of proviso to section 3(1) of Act, XIV of 1975. As in the instant case no area is left out after meeting the claim of the informant the respondent's request to retain the resumed area cannot be acceded to. The area has been rightly given to the informant. No action is required to be taken on the present applica tion of the informant."

7. A perusal of the order leaves no doubt that the order of the learned Chief Settlement Commissioner proceeds on the assumption that the land has been resumed and in the second place that the entitlement of the petitioners would extend only to that portion of land which is in excess of the entitlement of the informer.

8. Before me the learned counsel for the petitioners contended that the powers conferred by section 10 of the Land Settlement Act, 1958, to resume any land are discretionary and that it is open to the settlement authorities to allow the allottee to retain land at a price to be fixed. Reliance in this behalf is placed on the observations of the Supreme Court in Din Muhammad v. Ahmad (1971 S C M R 490), where their Lordships observed that- "We may, however, add that under Letter No. 7511-66/239-R(L) dated the 6th May 1966, it is open to the Settlement authorities in special deserving cases not to resume the land from an allottee who obtained excess land to sell the land to him at a price fixed by the Chief Settlement Commissioner. It is open to the petitioner to have the Chief Settlement Commissioner in this behalf."

9. It appears that in the present case there was an intervening difficulty. The powers of the Chief Settlement Commissioner under section 10/ 11 of the Land Settlement Act were exerciseable by the Settlement Commissioner in pursuance of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, but he did not enjoy the powers under section 12 of the Land Settlement Act, 1958. If he had been invested with the powers of the Chief Settlement Commissioner under section 12 or in the Chief Settlement Commissioner had himself been designated as the notified authority under the aforesaid provision, there was nothing to prevent him from transferring the land to the petitioners by one and the same order.

10. The Settlement Commissioner appears to be conscious of this difficulty and while he recorded positive findings of fact that the excess land had not been procured by fraud and that the petitioners had put in substantial labour to develop the land he came to the conclusion that rather than resuming the land under section 10 of the Land Settlement Act, 1958, it would be appropriate if the land in question is sold to the petitioner under section 12 of the Land Settlement Act, 1958. It is hardly that under section 10 of the Chief Settlement Commissioner was not bound to acquire the land acid the powers in this behalf are discretionary exercisable by him in appropriate cases. Not being able to transfer the land to the petitioner for reasons explained earlier, the Settlement Commis sioner directed the petitioners to approach the Chief Settlement Commissioner in this behalf. The mere fact that the powers originally exerciseab!e by the Chief Settlement Commissioner are now being exercised by the two Authorities should not prejudice the party whose case is thus considered by two Authorities as a result of delay in administration of the Land Settlement Act, 1958.

11. The informant's right to claim transfer of the land arises from section 14 (1-A1 of the Land Settlement Act, 1958, the provisions read as follows :- "14(1-A). Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information have been or is proved to be correct and such land hay been or is resumed be competent authority upon cancellation of the allotment of such land the informant shall be entitled :- (a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent of any other land of his choice available for allotment in the same Province; and (b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."

12. A bare reading of the section leaves no manner bf doubt that the right of an informer to claim transfer of agricultural land arises only upon the land being resumed in pursuance of the information furnished by him. The order of the Settlement Commissioner declining to resume the land clearly gave the petitioners the option to acquire land at a negotiated price' under section 12 of the Act. Upon a careful consideration of the provisions of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, 1 have no manner of doubt that an order passed under section 10/I1 of the Land Settlement Act, 1958 by the Settlement Commissioner with the powers of the Chief Settlement Commissioner is final an is not open to revision or review by the Settlement Commissioner.

13. The jurisdiction to transfer land to the respondent/informer would arise only upon the land being resumed, undoubtedly there was no order of the competent, authority: resuming the land on 11-5-1977 when the learned Deputy Settlement Commissioner passed the order transferring the land to the informer. In fact. in the context of the final order of the learned Settlement Commissioner dated 16-4-1977 the informer would be entitled to get the land only after its resumption. ,

14. The Action of the Assistant Commissioner/Deputy Settlement Commissioner, Hafizabad in passing the order dated 11-5-1977 apart from being open to attack on the ground of absence of jurisdiction is calculated to circumvent the order of the Settlement Commissioner and is open to more than one objections.

15. The Settlement Commissioner in his order dated 16-4-1977 had allowed the petitioners to approach the Chief Settlement Commissioner within one month from the date of the learned Settlement Commissioner had taken pains to explain that the petitioners would be further entitled to the time taken in obtaining a copy of the order. The petitioners applied to the Chief Settlement Commissioner on 14-5-1977, i.e. within one month of the date of the order of learned Settlement Commissioner for purchase of land under section 12 of the Act.

16. Without waiting for result of the petitioner's application the Deputy Settlement Commissioner .passed the order on 11-5-1977 transferring the land in dispute to the respondent No. 2; i.e. some 25 days after the' date of order of the learned Settlement Commissioner. The order of the learned Deputy' Settlement Commissioner is violative of the fundamental principles of the administration of justice based as it is on a hierarchy of Courts.

17. In the second place the petitioners were denied natural justice an condemned unheard. The learned counsel for the respondent is unable to dispute the fact that no notice was issued to the petitioners by the learned Deputy Settlement Commissioner, Gujranwala before transfer of the land in dispute to respondent No.

2. The principle of natural justice enshrined in the maxim audi alteram partcm.-No man shall be condemned unheard is now well settled rule of administration of justice in this country. It applies to all proceedings by whomsoever held, which may affect the person of property or other right of the parties concerned in the dispute. In the case reported as Abdus Saboor Khan v. Karachi University (P L D 1966 S C 536). The Supreme Court of Pakistan observed :- "Whenever any person, or body of persons is empowered to take decisions after ex post facto investigation into facts which will result in conse quences affecting the person, property or other right of another person, then, in the absence of any express words in the enactment giving such power, excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case. This is the principle embodied in the maxim audi. alteram partem and has been applied by this Court in other cases where orders passed by administrative tribunals or authorities, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned. `No one can be condemned unheard is one of the settled principles of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. A duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation." The rule of natural justice has been examined in the context of variety of facts arising in a very large number of cases and has been explained in great detail. One may refer to the decision of the superior Courts in Chief Commissioner of Karachi v. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), University of Dacca v. Zakir Ahmad (P L D 1965 S C 90), Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673), C. I. T. v. Fazal-ur-Rehman (P L D 1964 S C 410), Province of East Pakbran v. Nur Ahmad (P L D 1964 S C 451), Abdul Rahim v. Deputy Collector (71, P L D 1967 Lah. 1204, P L D 1970 Lah. 416 and P L D 1973 Note. 36 at p. 46,

18. The learned counsel for the respondent attempted to argue that the Settlement Commissioner was a subordinate settlement authority an the Chief Settlement Commissioner had the power to review the judgment) delivered by him. Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which confers power on the appropriate Authority designated under that provisions to pass final orders. The argument has no foundation in law and appears to be wholly misconceived.

19. In the second place the learned counsel for the respondent placed] reliance upon the case reported as Sher Muhammad v. Chief Settlement Commissioner (1971 S C M R 339) and Chotu v. Chief Settlement Commissioner (1978 S C M R 350.), to contend that where land in excess of the entitlement is acquired by an allottee that inference of fraudulent acquisition is implicit in it.

20. I regret I am unable to find anything in the two judgments to war rant the. generalised conclusion. Both the cases were decided on their own facts. In Sher Muhammad v. Chief Settlement Commissioner, the facts were that the petitioner obtained the allotment of 386 kanals of land in village; Bhallu, Tehsil Narowal. However, in the course of proceedings under section 10;11 of the Displaced Persons (Land Settlement) Act, 1958, the Additional Settlement Commissioner cancelled 355 kanals leaving him with 31 kanals 8 morlas equivalent to 169 Produce Index Units. Before the High Court the petitioner put up a false plea that he had a verified claim of 260 bighas and 12 biswas equivalent to 732 P. I. U. But the High Court after calling for the original special jamabandi from the Central Record Room found that his actual verified claim was only 20 bighas and 16 biswas. It was in the context of these facts that the Supreme Court approved the finding of the Additional Settlement Commissioner under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, and refused to accept the petitioner's contention that the allotment of the 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 16 biswas. The Court observed : "It is idle for the petitioner to contend that he did not know what his actual entitlement was. If knowing be same he tried to take an unfair advantage of the inadvertant mistake made by the officials of the Central Record Room, be acted fraudulently." 21. ' In Chotu v. Chief Settlement Commissioner, the Supreme Court had to deal 'with a case where the petitioner being the holder of only 3 bighas and 10 biswas of land in District Hisar, India. was verified a claim for 89 kanals and 14 marlas and then managed to get allotted 28 acres and 36 ghantas of land in Bharia Road, District Nawabshah. The Settlement Commissioner in the course of proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 came to the conclusion that the "petitioner was proved to have committed fraud and misrepresentation in getting allotted to himself 28 acres and 36 ghuntas of land in excess of his ' entitlement. The writ petition filed before the High Court of Sind & Baluchistan was rejected. Dismissing his petition for leave' to appeal the Court observed : 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 Nawahshah 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 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, 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."

22. It will appear that in both the cases the plea of fraud and mis representation was recorded by the Settlement Authorities on the peculiar facts of the cases and the inference drawn by the Settlement Authorities was approved by the Supreme Court. The observations of the Supreme Court were made on the peculiar facts of the cases which have many common elements, vie. the ridiculously small holding in India, (ii) the disproportionate allotment in Pakistan, (iii) the finding of fact that such allotment was secured through fraud or misrepresentation and (iv) the conduct of the petitioner. None of the factors go against the petitioners in the present case. On the contrary the finding of fact recorded by the learned Settlement Commissioner was that the allotment of land was not the result of any fraud or misrepresentation by the petitioners.

23. Relying on the two judgments of the Supreme Court the learned counsel for the respondent wants me to record the finding that the petitioners acted fraudulently. I am afraid it is not possible for me to do so. The Supreme Court's judgments proceed on certain findings of fact, vie. (i) the knowledge by the petitioner about his actual entitlement, (ii) the unfair advantage that the petitioner had taken of the inadvertent mistake of the Central Record Room and (iii) the finding of fraud and misrepresentation recorded by the Settlement Authorities. None of the facts were found by the Settlement Commissioner in the present case.

24. The remarks of the Supreme Court were made on the circumstances of the cases before it and I am not inclined to deduce from these observa tions any generalised principle which would warrant an inference of fraud or misrepresentation in every case of excess allotment of land. The attack launched by the learned counsel for the respondent on the order of the Settlement Commissioner is without substance. The Settlement Commis sioner was exercising jurisdiction under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 and his order even if shown to be erroneous in regard to any question of fact or even of law would be maintainable unless it is shown to be without lawful authority. In any case, it was not open to the learned Deputy Settlement Commissioner to transfer the land to the respondent in utter disregard of the orders of. his superior which recognised valuable rights of the petitioners in regard to the land in dispute. His action was as such without jurisdiction. The learned counsel for the respondent is unable to show how it was one to the Deputy Settlement Commissioner to assume jurisdiction to transfer the land to the informer without there being any order for resumption o land under section

11. To my mind, the order of the Deputy Settlement Commissioner is wholly without jurisdiction and void at law.

25. On a careful consideration of the order passed by the learned Settlement Commissioner, I have come to the conclusion that the findings of fact recorded by him are neither perverse nor capricious. The order of the Chief Set0emert Commissioner dated 26-6-1978 disposing the peti tioner's application under section 12 of the Act proceeds on the erroneous assumption that the land has been lawfully resumed and allotted to the informer. To my mind, the learned thief Settlement Commissioner was not mindful of the fact that the order of the Settlement Commissioner dated 16-4-1977 was in law an order passed by the Chief' Settlement Commissioner under section 10/11 of the Land Settlement Act, 1958. The intention not to resume land was explicit and in the context of the entitlement of the petitioner to retain the land, the Chief Settlement Commissioner had to dispose of their application tinder action 12 of the Land Settlement Act.

26. Having given the matter my anxious consideration, I have come to the conclusion that the order dated 11-5-1577 passed by the Deputy Settlement Commissioner and the order dated 26-6-1978 passed by the Chief Settlement Commissioner, were without lawful authority and must be quashed and the case remitted to the Chief Settlement Commissioner for decision of the petitioner's application under section 12 of the Land Settlement Act afresh in the light of the observations made above.

27. In the result, the writ petition is allowed with costs. M.A.K . Case remanded.