1. ' NASIM HASAN SHAH, J.-This appeal is directed against the judgment of a learned Single Judge of the Lahore High Court dated 4-3-1976, whereby he accepted the writ petition filed by the predecessor-in-interest of respondents Nos. 1 to 6 herein, Abdul Razzaque (W. P. No, 458-R 75) and set aside the order of the Additional Settlement Commissioner with powers of the Chief Settlement Commissioner (Lands), Sheikhupura dated 5-5-1975, ' The relevant facts are that Abdul Razzaque predecessor-in-interest of respondents Nos. 1 to 6 migrated to Pakistan on the partition of the Sub-Continent and filed two claim forms bearing Nos.
2. 540 and 543 for the land abandoned, by him in Kot Karim Khan, Tehail Zira, District Ferozepur, East Punjab. On the basis of the said two claims, the area abandoned by Abdul Razzaque was calculated to be equivalent to 2935 P. I. Units. In lieu thereof, he was allotted land from time to time from 1952 to 1961 equivalent to 2894 P. I. Units in Village Chuharkana, Tehsil and District Sheikhupura.
3. ' In 1974, the petitioner, who is also a claimant displaced person and had held a verified claim which was still pending adjustment, submitted an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 alleging that the respondents by practising forgery and fraud had succeeded in obtaining allotment in excess of their entitlement and further including allotment against the mortgagees unit which was not possible as their area verified as owners exceeded the limit prescribed by Para. 7 of Chapter II of Part I of the Rehabilitation Scheme.
4. The Additional Settlement Commissioner with powers of the Chief Settlement Commissioner, thereupon, held an inquiry into the matter, recorded the statement of the Circle Patwari and passed an elaborate order, wherein he held that Abdul Razzaque, in fact, had abandoned area equivalent to 2001 P. I. Units in which he held ownership rights and 127 P. I. Units, wherein he had mortgagee rights. Consequently, he was, in fact, entitled to allotment of area equivalent only to 2001 P. I. Units only. Accordingly, he directed that the respondents should surrender land equivalent to 893 P. I. Units, which was in excess of their entitlement in accordance with their choice.
5. Accordingly, the excess land was surrenslered on 28-5-1975 and the area thus resumed from the respondents was confirmed to the petitioner against her verified claim on 28-5-1975.
6. ' The respondents, however, were not satisfied with this action and on that very day, t. e. 26-34975, they filed a Writ Petition (W. P. No, 458-R/75) in the Lahore High Court seeking a declaration that the order passed by the Additional Settlement Commissioner dated 5-5-1975 was without lawful authority and of no legal effect. This petition was heard by Mr. Justice A. S. Salam of the Lahore High Court. The learned Judge observed that Abdul Razzaque had filed two claim forms bearing Nos.
7. 540 and 543, which were verified by the authorities and in making the calculations he had no hand.
8. Thereafter, he had got allotment of land on the basis of the aforesaid verification, which allotments were made as long ago as in 1952 to 1961 and the possession duly delivered and the respondents had been living there for all these years. In these circumstances, the learned Judge thought that it was both illegal and unjust to take up the dead past on the mukhbari application of the petitioner herein after about two decades. In the course of his order, the learned Judge also gave details of the area verified in favour of the respondents in terms of kanals and marlas and not in terms of P. I.
9. Units. However, he failed to give any clear finding on the question as to whether the area verified in favour of the respondents was, indeed, in excess or not of their true entitlement. In fact, it appears that the respondents did not challenge the correctness of the area verified in terms of the P. I. Units either with respect to the area obtained by them or with respect to the area cancelled by the order of the Additional Settlement Commissioner on 5-5-1975. In the order passed on review, to which reference will be made subsequently, this matter is alluded to and it is observed that there was hardly a difference of 14 kanals and the petitioners (respondents herein) had no hand either in the verification or calculation thereof in terms o.P. I. Units. Consequently, the allotments made on its basis could not be interfered with after nearly two decades on a mukhbari application in exercise of the powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. On this view of the matter, the writ petition filed by the respondents was accepted and the order of the Additional Settlement Commissioner with powers of the Chief Settlement Commissioner dated 5- 5-1975 declared to be without lawful authority and of no legal effect.
10. ' The petitioner herein, instead of challenging this order by an IntraCourt Appeal filed a review petition before the same learned Judge contending, inter alia, that when the verified area in the Fard-e-Haqiat of Claim No, 540 was incorporated on the RL-II, a mistake had been committed by which one category of land, namely, Chahi was recorded as 186 kanals and 5 marlas instead of 118 kanals 5 marlas and that on account of this mistake more units were allotted to the respondents than they were entitled to and that these should be cancelled and allotted to the petitioner. This review, petition was dismissed by the learned Judge observing :- "Consequently, if the authorities had either by mistake, or otherwise made a mistake in incorporating the entries or making a calculation, in which the writ petitioners had no hand whatsoever, no interference could be made in their rights after two decades. Therefore, no case is made out to review the previous order."
11. ' The review petition was, accordingly dismissed.
12. ' The petitioner has now moved this Court against the main order passed by the learned Judge in the High Court accepting the writ petition of the respondents vide judgment dated 4-3-1976.
13. ' Ch. Muhammad Hassan, learned counsel for the respondents, raised a preliminary objection to the effect that the petitioner could have tiled a Letters Patent Appeal against the order of the learned Single Judge and as the said remedy was available it could not have been bypassed and that this petition for Special Leave to Appeal was liable to be dismissed on that short ground. In support of this submission, reliance was placed on Dauran .Khan v. Naseer Muhammad Khan (1). In that case Dauran Khan sought special leave to appeal against an order of the learned Single Judge of the West Pakistan High Court, Karachi and the office raised the question whether this petition could be registered in view of the fact that the appeal to the Division Bench from the Single Judge's order would be competent. The matter was, therefore, placed before the Court with a view to deciding whether the petition may be registered in the Supreme Court or not. It was argued on behalf of the petitioner that under Article 58(3) of the (Constitution of 1%2) there was no legal bar to the grant of special leave to appeal in such a case even though a remedy of appeal under the Letters Patent had not been availed of. This Court observed that the matter nested in its discretion but it would be extremely reluctant to take a step which prevented the High Court from exercising its undoubted jurisdiction under the Letters Patent. It was further observed that "it is, indeed, meet and proper that before a matter came up by way of appeal to this Court, the final judgment of the High Court should be available by way of assistance to this Court".
14. ' The situation in the present case is somewhat different. The office raised no objection to the entertainability of the petition, nor was any objection raised by the respondents when the matter came up before the Court, which could be done as the matter was fixed after notice served upon them by the Advocate-on-Record of the petitioner. The Court also did not raise any objection on this point. On the other hand, considering that the fundamental point in the case whether the respondents had, indeed, obtained allotments in excess of their true entitlement was not at all dealt: with by the learned Judge in the High Court, decided to summon an official of the Central Record Office as also the Circle Patwari for submitting statements on the point of the entitlement of Abdul Razzaque predecessor-in-interest of respondents. After the relevant statements were received from them which showed that the latter had obtained 853 P.
1. Units in excess of his entitlement this Court granted leave to appeal to the petitioner on 4-4-1979.
15. ' On the question whether a petition for leave to appeal should be granted against the order of a learned Single Judge, when an appeal before a Division Bench of the High Court is competent, this Court, as observed in the precedent case, would be extremely reluctant because by doing so, the High Court would be prevented from exercising its, undoubted jurisdiction under the Letters Patent (now exercised by virtue of the provisions of the Law Reforms Ordinance, 1972). However, in the circumstances of the present case, as noted above, it is too late a stage to rescind the order granting leave to appeal and refuse to proceed further to decide it.
16. ' Reverting to the merits of the case, it will be recalled that the learned Judge in the High Court was of the view that as the respondents had no band in the verification of their claims and had been allotted the land in question, some two decades ago, it would not be just and proper to interfere with the allotment and confirmation made so long ago. This view is not supportable in law. If the respondents had obtained verification of their lands by underhand means, then their case would have fallen within the mischief of section, 10 of the Displaced. Persons (Land Settlement) Act, 1958,
(1) PL_D 1964 SC 136, ' whereunder the Chief Settlement Commissioner may pass an order cancelling the allotment or reducing the area of the land allotted without prejudice to any other penalty to which such person may be liable on account of obtaining the allotment by fraud or false representation. Where, however, an allotment has been obtained in excess of the true entitlement of the allottee for which the latter cannot be blamed, the said excess can still be taken away but no other penalty shall be imposed upon him. This is provided for by section 11 of the Act which empowers the Chief Settlement Commissioner to cancel or terminate the allotment order or amend terms of the allotment for the reasons recorded. Furthermore, no time limit is specified under the said provision for taking the above action. If the Legislature had intended to impose may limitation of time, the same would have been laid down in the statute. But no such limitation has been provided. Hence the learned Judge in the, High Court clearly erred in assuming that the Additional Settlement Commissioner with powers of the Chief Settlement Commissioner could not cancel the excess area on the ground that the allotment had been made to the respondents in the distant past and they had no hand in securing it. While examining the validity of the order of the Additional Settlement Commissioner, the High Court was acting in exercise of the jurisdiction vesting in it under Article 199 of the Constitution, whereunder an order passed by the statutory authority can only be set aside, if it has been passed without lawful authority and is against the provisions of law.
17. No such defect was decipherable in the order of the Additional Settlement Commissioner. Hence the order of the learned Judge declaring it to be without lawful authority and of not legal effect cannot be sustained.
18. ' However, we find that in the latest calcuation of the entitlement of the predecessor-in-interest of respondents Nos. 1 to 6, made by the Central Record Office and submitted to us, the land allotted to Abdul Razzaque is stated to exceed his true entitlement by 853 P. L Units. In the statement submitted the land verified of the respondents is stated to be 3431 Units which is subject to a cut of 20% on account of thur and sem. But as an arithmetical error has been committed in calculating the cut, which has been shown to amount to 566 Units instead of 675 Units. In this way, the verified area is stated to be 2865 Units (i. e. 3431 Units minus 566 Units leaving the area verified as 2865 Units) against the true 2012 Units. However, the correct amount to be deducted is 675 Units. Thus, the verified area on this basis would work out to 2756 Units as against the true entitlement of 2012 Units and the excess area would, therefore, be 744 Units only. This figure was not challenged by either of the learned counsel appearing before us. Consequently, the area liable to be cancelled from the allotment of the respondents was an area equivalent to 744 Units and not 893 Units as held by the Additional Settlement Commissioner in his order dated 5-5-1975. According to the appellant she has been allotted land equivalent to 853 Units. Consequently, the respondents can select an area equivalent to 109 Units, if this is correct, or 149 Units, if the area allotted to the appellant was 893 Units, from the area which now stands allotted in her favour.
19. ' This appeal is allowed with the above observations with no order as to costs.