ANWARUL HAQ, J.--This appeal under clause 10 of the Letters Patent has arisen out of an order made by our learned brother Muhammad Fazle Ghani Khan, J. on the 21st of January 1970 whereby the question of the verification of the claim of the appellant has been left to be decided by the relevant Rehabilitation Settlement Authority in the light of the observations made by the learned Single Judge. It appears that as a result of the view taken by the learned Judge in Chambers the appellants would have to surrender some land in their possession as being in excess of their true entitlement. An argument was raised before the learned Judge that in view of the provisions contained in section 16 of the Displaced Persons (Land Settlement) Act, 1958 the entire area must be deemed to have been permanently settled on the appellants and no portion thereof could therefore, be taken away even though if it be in excess of their entitlement. This argument was, however, repelled by the learned Judge by relying on an unreported judgment of a Division Bench in L. P. A. 351 of 1968 (Mst. Kaniz Fatima v. S. C., Sargodha etc.), decided on 16-12-1968.
2 It is submitted by Mr. Minto that the view taken by the learned Judge with regard to the effect of section 16 of the Act is not correct, as the land having once been permanently settled, it vested absolutely in the appellants and at best it could be taken away only if there was any element of fraud, but that is not the case here. In support of this contention, the learned counsel has referred us to Sardar Muhammad and others v. The Deputy Commissioner and others and Mst. Bhano and others v. Mian A. M. Saeed and others.
3. Before we refer to the cases relied upon by the learned counsel, it would be well to refer to the statutory provisions themselves which have a direct bearing on the question raised before us.
Section 15 of the Act, in subsection (1) thereof, lays down that :-1 2 "A Settlement Authority specially empowered by the Chief Settlement Commissioner in this behalf, shall in respect of such verified claims against which no allotment has been made before the commencement of this Act, proceed to make an allotment to the displaced person con-cerned in accordance with any of the Schemes executed under section 14." Subsection (2) of the same section contemplates that-- "An allotment to a displaced person under subsection (I) shall be made on the basis of his entitlement as determined under this Act, or the rules made thereunder."
Subsection (3) then enjoins that-- "A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a scheme as defined in clause (i) of section 2, or by a Settlement Authority under subsection (1) shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government." Then comes section 16 which lays down that-- "Notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person."
4. It will be seen that the intention of the two provisions of law reproduced above is to grant permanent rights to displaced persons in land which has been validly allotted to them either under a Settlement or Rehabilitation Scheme or under the provisions of the Act itself, and once that land has been permanently settled in terms of subsection (3) of section 15, then it shall vest absolutely in the displaced person concerned under section 16 of the Act. If the allotment has not been validly made in accordance with the terms of the Scheme or the provisions of the Act, then it is clear to us that no question of permanent settlement of such land would arise. To put it differently, it is a necessary condition for permanent settlement that the allotment in favour of a displaced person must be in accordance with the terms of the Scheme or the Act. No permanent rights accrue on the basis of an allotment obtained by fraud or in violation of the terms of the Scheme or the statute or in excess of the displaced person's entitlement, for such an allotment would be a nullity in the eye of law.
5. In this view of the matter it is clear to us that the learned Judge in Chambers was right in thinking that no permanent rights could accrue in favour of the appellants in the excess area to which they were not entitled in accordance with their verified claim.
It is true that in the case of Sardar Muhammad and others v. The Deputy Commissioner and others, referred to by Mr. Minto. A Division Bench of this Court has expressed the view that excess land could not be taken away after it had been permanently settled on the displaced person concerned, and in support of this conclusion their Lordships have referred to the fact that sections 10 and 11 of the Act empower the Chief Settlement Commissioner to cancel or terminate only "allotment" and not "Settlement". The learned Judges have observed that these two expressions have been used as terms of art, as is borne out by section 2, subsections (1) and (8) where they have been separately defined and clothed with absolutely different meanings. The observations contained in paragraphs 4 and 5 of this judgment, however, appear to us, speaking with great respect, to be contrary to the view taken by their Lordships of the Supreme Court in the second case mentioned by Mr. Minto, namely Mst. Bhano and another v, Mian A. M. Saeed and otherin which the learned Judges have clearly stated, in the course of their judgment, that "it is true that section 16 of the Displaced Persons (Land Settlement) Act, 1958, vests the land permanently settled on a displaced person in that person but section 10 of the same Act gives to the Chief Settlement Commissioner power to cancel an allotment if he is satisfied that an allotment had been obtained by fraud or misrepresentation. The provisions of the Land Settlement Act must be read as a whole and considering them as a whole section 16 of the Act can only mean that where the land has been permanently settled in a lawful manner then the person upon whom the said lawful settlement has been made, acquires vested rights therein. Fraud vitiates everything and a settlement or allotment obtained by practising fraud is not an allotment or settlement at all in the eye of la v. It would be a startling proposition to suggest that one can, with impunity, reap the advantage of his own fraud." The case before their Lordships was one where fraud had been alleged, but the ratio decidendi of the dictum of the learned Judges appears to be that permanent settlement could only follow a lawful allotment, and where there is no lawful allotment the question of the vesting of the land permanently and absolutely could hardly arise. We consider that in view of this dictum of their Lordships of the Supreme Court it can no longer be argued that a displaced person is entitled to retain excess land by reference to section 16 of the Act. This being the only point in the appeal, it fails and is hereby summarily dismissed.
7. The learned counsel, however, submitted that there was an apprehension on the part of the appellants that while taking away the excess area the authorities may deprive the appellants of good land which they had developed at considerable expense and labour. There does not seem to us to be any justification, Pot such an apprehension as we find that in the departmental report, submitted to this Court during the course of the proceedings in the writ petition, it was stated against paragraphs 10 and 12 of the parawise comments that the appellants would be entitled to exercise their choice in the matter of surrendering the excess area. As such a choice would be in accordance with the provisions of the Rehabilitation Settlement Scheme, we see no reason why the appellants would not be afforded this facility as contemplated in the report. Law Notes 1968 Lah. 205 1969 SCMR 299