1984 PLP 319 (SCMR)

NASIM HASAN SHAH, J.‑This appeal, by leave of this Court, is directed against the judgment dated 27‑2‑1976 by a learned Single Judge of the Lahore High Court passed in Writ Petition No. 506‑R of 1975. The relevant facts briefly are that the predecessor‑in‑interest of respon dents Nos. 3 to 4 was allotted land equivalent to 682 P. I. Units by the order of a Settlement Commissioner dated 5‑1‑1973. Muhammad Siddique, appellant herein, acting as an informant submitted on 11‑9‑1973 a mukhbari application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, alleging therein that the respondents had secured allotment far in excess of his true entitlement because it was calculated on an erroneous basis. According to hint the measure to he adopted for calculating the P.I, Units of the respondents should have been by reference to kanals and not to bighas, as was done in this case. An Additional Settlement Commissioner (Land) with powers of the Chief Settlement Commissioner (Land) heard this matter and by his order dated 14‑4‑1975, wherein he found the said allegation to be correct, reduced the entitlement of the respondents from 682 P. I. Units to 191 P. I. Units. The excess area which was ordered to be taken away, from the respondent, was ordered to be given to the informant (appellant herein). Aggrieved by the above order, the respondents filed a Writ Petition (W. P. No. 506‑R/75) to challenge it. Three grounds were urged in support of this writ petition:--‑ (i) that the respondents had not been properly served, inasmuch as there was no justification to direct service upon them by a proclamation in a newspaper without first trying to serve them through personal service etc. ; (ii) that a mere error in calculation of the area of the land left in India, in terms of P. I. Units did not come under the mischief of sections 10 and 11 of the Displaced Persons (Land Settlement) Act and, therefore, the existence of such an error could not constitute a basis for exercising jurisdiction under sections 10 and 11 of the Act and lead to a curtail ment of the extent of allotment in any manner and (iii) that the Additional Settlement Commissioner, even though a dele gatee of the powers of the Chief Settlement Commissioner under sections 10 and 11 of the Act could not revise an order of a Settlement Commissioner, or any other officer who was superior to him in rank. The writ petition was accepted on 27‑2‑1976 as these grounds were found to have substance and the order of the delegatee of the Chief Settlement Commissioner dated 14‑4‑1975 was declared to be without lawful authority and of no legal effect. Hence this appeal, by leave of this Court. We have heard learned counsel for the appellant, Ch. Muhammad Ahmad Bani, as also that of the contesting respondents, Ch. Qadir Bakhsh. There may be some force in the contention raised on behalf of the respondents that the service through proclamation in the newspaper was not justified and, in the circumstances of the case, the learned delegatee of the Chief Settlement Commissioner should, not have proceeded ex parte against the respondents on their failure to appear before him, in pursuance of the said proclamation in the newspaper. However, the fundamental question, which remains to be seen, is whether the respondents' entitlement, as worked out by the delegatee of the Chief Settlement Commissioner (Land), namely, that it amounted only to 191 P. I. Units and not to 682 P. I. Units, suffered from any error and further that if, indeed, the respondents' entitlement was only 191 P. I. Units whether the allotment made to them to the extent of 682 P. I. Units could be reduced to 191 P. I. Units in exercise of the powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act. The question whether the respondents were properly served or that the order reducing the extent of their allotment has been passed by an authority not strictly competent to do so would pale into insignificance if the respondents entitlement, indeed, was no more than 191 P. I. Units and they wanted it to remain at 682 P. I. Units and were requiring the High Court to exercise its writ jurisdiction for this purpose We, therefore, asked Ch. Qadir Bakhsh to satisfy us if the rate of calculating the entitlement of the respondents, as adopted by the Additional Settlement Commissioner with powers of the Chef Settlement Commissioner, was incorrect? This he was utterly unable to do. In fact, he did not even attempt to show this. As for the other aspect whether the Chief Settlement Commissioner can reduce the allotment of an allottee in exercise of the powers under sections 10 and 11 of the Displaced Persons Act, where no fraud or misrepresentation is involved and only an error has been committed in calculating the entitlement, by an officer of the Settlement Department we have already held in several cases that although section 10 of the Displaced Persons (Land Settlement) Act, 1958, could not be invoked in such a case but such an error can be corrected under section 11 of the Act, which empowers the Chief Settlement Commissioner, inter alia, to amend or vary the terms of an allotment. In this view of the matter we consider that the High Court was not justified in setting aside the order dated 14‑4‑1975 passed by the Additional Settlement Commissioner with powers of the Chief Settlement Commissioner (Land). We would, accordingly, allow this appeal and set aside the order of the High Court passed on 27‑2‑1976 with the result that the order of the Additional Settlement Commissioner with powers of the Chief Settlement Commissioner (Land) dated 14‑4‑1975 shall stand revived. Parties, however, shall be left to bear their own costs. M.Z.M Appeal accepted.