1979 PLP 70 (SCMR)

MUHAMMAD AKRAM, J.‑This is an appeal by special leave from the judgment dated 8th of September 1971, whereby a learned Division Bench of the Lahore High Court at Lahore, accepted the Settlement Revision No. 69 of 1965 filed by respondents Nos. 1 to 5 herein against the present appel lants. Briefly the relevant facts are these. The respondents are the heirs of Muhammad Shakkar, a displaced person from village Tehsil Sarsa, District Hissar. On his migratiba to Pakistan as a refugee he filed his claim form from Chak No.'265/EB, Tebsil Pakpattan, District Sahiwal. On his death the mutation for the land allotted to him was attested in the names of the respondents. It appears that in the first instance the entitlement of Muhammad Shakkar for the land abandoned by him in India was verified for 50 Bighas 6 Beswas on the 24th of January, 1951. But on the 25th of March 1954, a certificate wag issued by the Central Record Office to the effect that he was entitled to additional land verified in his name to the extent of 34 Bighas 14 Biswas and accordingly a Fard‑e‑Haqial was issued in his name. for his total entitlement for 82 Bighas 72 Biswas on the. 29th of January 1955. According to this latest verification he was entitled to 2319 produce index units which were pending satisfaction. Out of these land equivalent to 884 units was confirmed in the name of the respondents in Chak No. 265/EB on the 29th of December 1951. About 633 units were transferred to village Muhammad Azim, Tehsil Chistian, District Bahawalnagar and the land was confirm, in lieu thereof on the 26th of March 1958. The rest of 802 units we. transferred to Dera Ghazi Khan and land in satisfaction thereof was allot: to them in village Gaide Shah in District Dera Ghazi Khan on the 7th . March 1960. But it appears that afterwards the Central Record Office on further -verification reduced the entitlement of the respondents to. 1602 product, index units only on the 30th of June 1964. But before this could be don the present appellants filed a Mukhbari application on the 7th of May, 19 to the effect that the respondents had obtained land in excess of their entitle ment and it was prayed that the land allotted to them in Chak No. 265,/EB, District Sahiwal may be cancelled and allotted to them. as informants. On this Captain Aftab Ahmad Khan SDO/DRC(L), Pakpattan accepted the Mukhbari application of the appellants and directed that the area allotted to the respondents should be calculated on the basis of re-verified Fard‑e -Haqiat issued by the Central Record Office and the excess allotment cancelled from their names according to their choice and should be allotted to other deserving claimants including the appellants. Dissatisfied with the order, the respondents went up in appeal against it. On the 3rd of May 2965, Malik: Mahboob Khan A. D. C./Additional Settlement Commissioner (Land) Montgomery observed that according to the instructions laid down in memo No. 4591‑63/5361‑R (L), dated 3rd of September 1963 only the Deputy Commissioner in his capacity as Deputy Settlement Commissioner (Land under the delegated powers vested in him could deal with the Mukhbari application under section 10 of the Displaced Persons (Land Settlement) Act 1958, and that the SDO/DRC (L) had no lawful authority to dispose of the application. He therefore, accepted the appeal and the case back to the Sub-Divisional Officer, Pakpattan for submission to the Deputy Commissioner for orders. It appears that after the order passed by the S. D. O. Pakpattan on the 28th of January 1965, the respondents had themselves moved for the cancellation of the area allotted to them in Dera Ghazi Khan and accordingly A. R. C. Rajanpur on the 27th of March 1965 cancelled the land from their names which was confirmed to some third party. As it is, the Mukhbari application of the appellants was finally put up for hearing before the. Deputy Commissioner and Ex Office Additional Settlement Commissioner, Montgomery with powers of the Chief Settlement Commissioner. Before him the reduction in the entitlement of the respon dents was not questioned. But it was prayed that the area allotted to them in Dera Ghazi Khan or to Bahawalnagar in excess of their entitlement may be cancelled. But the learned Deputy Commissioner rejected this prayer with the observation that he had no jurisdiction to pass orders regard ing cancellation of any land in other Districts not falling within his jurisdic tion. He therefore, proceeded to cancel the allotment of the respondents excess of their entitlement in Chak No. 265/EB and allotted the same to the appellants against their verified claim on the 3rd of November 1965. In these circumstances, the respondents therefore, filed the Settlement Revision No. 69 of 1965 under section 21 of the Displaced Persons (Land. Settlement) Act, 1958 against the order dated 3rd of November 1965 passed by the Deputy Commissioner/Additional Settlement Commissioner (Land), Montgomery exercising the delegated powers of the Chief Settlement Commissioner. On the 8th of September 1971 a learned Division Bench of the Lahore High Court at Lahore accepted the revision, set aside the impugned order of the Deputy Commissioner/Additional Settlement Commissioner cancelling the land situated in Chak No. 265/EB from their names. It was not disputed before the High Court on behalf of the respondents that the entitlement of the respondents on the 3rd of November 1965 when the impugned order was passed was to the tune of 1602 produce index units. It was however, submitted that in lieu of this entitlement they were entitled to retain the lands allotted to them in the Districts of Sahiwal and Bahawalnagar equivalent in value to the extent of 1586 produce index units and that they had already got the excess land allotted to them in Dera Ghazi Khan cancelled on the 27th of March 1965. The fact that the respondents had already surrendered the excess land allotment in Dera Ghazi Khan was very much before the Deputy Commissioner who bad passed the impugned order. According to the High Court the respondents were given a right of choice which they could exercise in surrendering the land held in excess. by them. The High Court was of the opinion that the respondents had not obtained the excess land by any fraudulent practice. Their claims were verified by the Central Record Office and there was not an iota of evidence to show that the excess claim was verified in their favour due to any fraudulent misrepresentation or forgery practised by them. In the opinion of the Court it was just an ordinary case of miscalculation of the produce index units of the entitlement of the respondents. In conclusion therefore, the High Court held that there was no justification for the Deputy Commissioner to have cancelled the land allotted to the respondents in Sahiwal District which was within the bounds of their claim and that the land allotted to them in Dera Ghazi Khan was voluntarily surrendered by them and was rightly cancelled from their entitlement. In these circumstances the appellants filed their petition for special leave to appeal from the judgment of the High Court dated 8th of September 1971. On the 11th of May, 1973, this Court called for a report from the Officer Incharge Central Record Office about the reasons for reducing the verified claim of the respondents with specific reference as to whether they had been guilty of misrepresentation or fraud in regard to the original verification of their claim. In pursuance to this the Officer on Special Duty, Central Record Office, West Pakistan, Lahore submitted his report to this Court. After going through the report on the 2nd of October .1972, this Court granted leave to appeal in the case with the observation that the report submitted by the Officer on Special Duty revealed that the respondents bad obtained a double verification of their entitlement to the extent of 31 Bighas 13 Biswas as a result of a certificate secured by unfair means with the connivance of the staff. In this view of the matter it was urged on behalf of the appellants that the allotment of the excess land was secured by the respondents by fraud bringing their case within the mischief of section 10 of the Displaced Persons (Land Settlement) Act, 1958. It was further submitted that at best the proper course for the High Court in revision was to have remitted the case to the Chief Settlement Commissioner for his decision and not to have exercised its revisional jurisdiction in upsetting the order of the Additional Settlement Commissioner. We have heard the learned counsel for the parties and also gone through the record. From the report submitted by the Officer on Special Duty Central Record Office, it is no doubt evident that there was a double verification of the claim in the name of Shakkar Ali to the extent of 31 bighas 13 Biswas. This was obviously due to the wrong calculation made by the Central Record Office in which the respondents had no hand. Apart from the bald allegations in this report no sufficient facts have been brought to light in order to hold that the respondents had procured this double verifica tion in excess of their entitlement with the connivance of the staff by unfair means. In this connection the High Court was of the opinion that excess verification of the entitlement of the respondents was dune by mistakes and not on account of any fraud practised on the part of the responder. Be that as it may, in the first instance the allotment of the land in favoure of the respondents was obtained in Chak No. 265/EB, and in village Muhammad Azim, Tehsil Chistian, District Bahawalngar to the extent 1585 produce index units in value within their entitlement which must preserved in their favour. The land in excess of their entitlement was allotted to the respondents in District Dera Ghazi Khan which was in fact afterwards cancelled at their own instance on the 27th of March 1965. Therefore, on the 3rd of November 1965, the respondents had in fact no excess land held by them in their allotment and the impugned order dated 3rd of November 1965 passed by the Deputy Commissioner cancelling the lands in Chak No. 265/EB was against law and had no legal effect. For the foreging reasons we find that there is no force in this appeal which is dismissed with no order as to costs. Appeal dismissed.