1991 PLP 1598 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑‑This appeal by leave arises from the judgment of a learned Division Bench of the Lahore High Court, dated 5‑6‑1983.

2. The facts in brief are that a delegate of the Chief Settlement Commissioner accepted the Mukhbari application of the appellant in which it was alleged that whereas the true entitlement of Baboo respondent No.3 was 199 P.I. Units, he had obtained allotment to the extent of 315 units i.e. 116 P.I. Units in excess of his entitlement. Accordingly land equivalent to 116 P.I. Units was cancelled out of the allotment of Baboo respondent and allotted the same to the appellant, on whose information the excess allotment had been discovered vide order, dated 8‑10‑1976.

3. It seems that in the meantime Baboo respondent had sold the allotted land in favour of respondents Nos.4 to

10. The said respondents filed a writ petition in the High Court wherein the order, dated 8‑10‑1976 was challenged but this petition was dismissed by a learned Single Judge on 27‑12‑1976. Feeling aggrieved, respondents Nos.4 to 10 filed an Intra‑Court Appeal which was accepted on 5‑6‑1982 on the ground that it was not a case of bogus Allotment but a case wherein only question of miscalculation of P.I. Units was involved and therefore the Settlement Authorities were not justified to cancel any part of the allotment in exercise of powers vested in them under section 14(A‑1) of the Displaced Persons (Land Settlement) Act, 1958.

4. Leave was granted to consider the legality and propriety of the orders passed in this case.

5. We have heard the learned counsel for the parties and have gone through the three judgments in this case. In this case respondents Nos.4 to 10 had raised, amongst others, the following two points in the writ petition filed by them in the High Court:‑‑‑ "(1) That according to Parchi Taseeh No.137 P.I. dated 23‑2‑1956 land shown as Ghair Mumkin according to Indian Forest Act, 1927 is to be considered as Barani thus according to Parchi Taseeh No.137 and Punjab Gazette Notification of 1945 the land situated in village Laha, Tehsil Narain Garh District Ambala as Ghair Mumkin may kindly be considered Barani. Thus the entitlement of 9 Beegha 16 Marlas if calculated into P.I. Units comes to 169.154 units because according to Parchi Taseeh No.48 dated 31‑3‑1952 lands situated in Tehsil Ambala Chak Tashkeesh Suti recorded as Barani be deemed as Silab and thus the total entitlement of the respondent No.3 as produced by the Patwari C.R.O. (Annexure B) comes to 322.470 units i.e. the entitlement of Babu as recorded and produced by the C.R.O. Bila Rehan 100.98 5‑16 1.206 Malkayat Rehn 31.955 1‑17 03.05 Baghbarani 6.572 0.5 0.052 Banjar Qadeem 14.691 1.14 0.354 Ghair Mumkin 169.154 9‑16 2.038 _________________________________________ 322.470 19.8 4.035 (2) That as submitted above the entitlement of the respondent No.3 comes to 322.470 units and he has been allotted only 315 units, thus there are still 8 units which remain unsatisfied and the question of bogus excess does not arise and the finding of the learned lower Court that the entitlement of the respondent No.3 comes to 199 units only is not supported by record and based on assumptions and conjecture." though these points go to the root of the case but neither the High Court nor the learned I.CA. Bench have examined the case from this angle which in our view has resulted in the miscarriage of justice.

6. As a result of the above this appeal is accepted, the orders of the Chief Settlement Commissioner dated 8‑10‑1976, of the learned Single Judge, dated 24‑11‑1982 and that of the learned I.C.A. Bench dated 5‑6‑1983 are set aside and' the case is remanded to the Notified Officer to decide the matter afresh in view of the points raised by respondents Nos.4 to

10. There is no order as to costs. A.A./S‑621/S Case remanded.