M. S. H. Quttasat, J.---This is an appeal by special leave against the judgment dated 9-12-1969 of a Division Bench of the Lahore High Court by which the appellant's L. P. A. No. 402 of 1969 was dismissed in l1mime.
2. An arrea of land measuring 167 kanals equivalent to 1413 P. I. Units was allotted in favour of Fazal Muhammad, respondent No. 2, in village Gurjakh, Tehsil and District Gujranwala, on 12-5-1953. Out of this land, he sold 80 kanals on 6-12-1957 to Muhammad Hussain, appellant No. 1 and Muhammad Ismail, predecessor-in-interest of the remaining appellant:, for Rs. 21,000. A subsequent investigation, however, revealed that Fazal Muhammad was entitled to land equal to 604 P. I. Unit only. His claim was. Accordingly, revivified and the excess area was ordered to be resumed. Fazal Muhammad who was given a choice in the matter, surrendered the land which he had sold to the appellants and consequently the land purchased by the appellants was cancelled on 9-3-1959 from the name of Fazal Muhammad. The appellants first agitated the matter before the Settlement authorities but remained unsuccessful and their revision petition was dismissed by Malik Ahmad Khan, Settlement Commissioner (Land). Lahore, on 8-10-1969. They then invoked the constitutional jurisdiction of the High Court by instituting Writ Petition No. 1115-R of 1969 but the same was dismissed on 13-11-1969 whereupon they moved the aforesaid L. P. A. No. 402 of 1969 which too failed.
3. In the proceedings before the Department, Fazal Muhammad had offered to refund the purchase money to the appellants but they did not agree. It also appeared that Fazal Muhammad had already disposed of the remaining area to different persons who had raised construction on the same and as such be had been left with nothing to surrender in lieu of the land which he had already surrendered to the Department on the reverification of his claim. The Division Bench of the High Court took due note of these facts. It repelled the appellants' contention that Fazal Muhammad was not entitled to exercise an option in the matter of surrender of the excess land and held that the excess allotment not being the result of any fraud, a choice had to be given to him by virtue of paragraph 14 of Part II of Rehabilitation Settlement Scheme. The Bench also held that "it was no duty of the Department to protect the purchase of land from the allottees" and as such rejected the contention that the departmental authorities were under a duty not to accept surrender of land by the allottee, which he had already sold to the appellants. The learned Judges further ruled that sanction under section 41 of the Transfer of Property Act was not applicable to the circumstances of the case and that the sanction said to have been given by the Custodian to the sale made in favour of the appellants, not having been brought on the record, it was not possible to say that the consideration on which the Custodian had to decide whether permission was to be given or not in any way involved the consideration of interest of the appellants.
4. The argument advanced before us by Sheikh Ghias Muhammad, learned counsel for the appellants, centered round the question whether Fazal Muhammad was entitled to a choice in the matter of surrender of the excess land. He urged that paragraph 4 (c), Part I of the Rehabilitation Settlement Scheme did not speak of a choir, while paragraph 14 of Part II of the Schemewas not applicable and that even if a choice was possible, Fazal Muhammad was not entitled to it because of his fraud. For this he relied on Khuda Bakhsh v. Deputy Rehablitation Commissioner (Lands), Lyallpur (1), Sher Muhammad v. Chief Settlement Commissioner (2), Mushtaq v. Settlement Commissioner (Land), Lahore (3). and Chotu v. Chief Settlement Commis--sioner (4). In the first cited case, the allottee had exploited an erroneous verifi--cation by the Central Record Office by adding 160 kanals to his entitlement in his claim form by an interpolated overwriting. In the second cited case, a proceeding bad been taken under sections 10 (relating to fraud) and 11 of the Displaced Persons (Land Settlement) Act, 1958, and although the allotment of excess area had been due to an inadvertent mistake on the part of the Central Record Office, the Court had held that "It is idle for the petitioner to contend that he did not know what his actual entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudu--lently". In the third cited case of Mushtaq, the entitlement bad been verified as 93 Bighas, 16 Biswas whereas the actual area abondoned was 43 Bighas and 16 Biswas. On reverification the excess area was ordered to be withdrawn. The allottee claimed a choice but the Settlement Commissioner decided that "the allotment subsequent to the complete satisfaction of the due claim of Mushtaq should be cancelled excluding the area which was sold by him or which is under a stay from the Custodian". The Settlement authorities, it was held, were entitled to deduct any area to the extent of the excess. In the last cited case of Chotu, where the Central Record Office had by an inadvertent mistake verified the allottee's claim for
(1) 1968 SCMR 1084 (2) 1971 SCMR 339
(3) 1974 SCMR 74(4) 1978 SCMR 350 India which had resulted in the allotment of some 28 acres of land in excess of the entitlement, a question arose whether the allottee had practised fraud or made misrepresentation. It was held that in securing the allotment, the allottee had taken advantage of the mistake by the Department and as such had acted fraudulently.
5. In the matter before us, the appellants had no doubt urged in ground (e) of the writ petition that "It would be against the principles of justice and equity if the respondent was to be allowed to benefit from his own fraud", but no fact had been mentioned which could be said to constitute such fraud. In fact, no ground of fraud appears to have been pressed before the learned Single Bench and there is thus no discussion or finding on that point. On the other hand, it was observed: "Now in the present case the entitlement of the 'respondent had clearly been erroneously verified in the firt instance and the mistake was apparent upon the :ace of the record upon re-verification".
The Division Bench, however, expressly recorded. "W may add that in so far as the present case is concerned it cannot be said that B the excess allotment was the result of any fraud. It could have been an error or the result of a misconception". There is no proper material to controvert this finding and as such we are unable to agree that the respondent had, by conduct or knowledge, been guilty of fraud in securing the excess allotment.
6. There was, therefore, nothing to prevent the Rehabilitation authorities from allowing Fazal Muhammad a choice in the matter of surrender of the excess land. It is true - that paragraph 4(c) which authorises the Department to cancel excess area does dot expressly provide for an option to the allottee and that paragraph 14 is concerned mainly with the principle of allotment but no rule was referred to which can be said to have barred the authorities from giving the allottee such a choice in the particular circumstances of the C case. Fazal Muhammad as already mentioned could not surrender the portion other than that sold to the appellants because he had also already disposed of the same to persons who had built upon it and whom it was difficult for him to compensate. On the other hand, he did offer to refund Rs. 21,000 to the appellants which was the price he had obtained from them. It is to be noted that this offer was being made within about 15 months o the sale at a time when the price had not changed much and as such the offer was fair and capable of affording substantial compensation to the appellants. It was they who declined to accept it.
7. No case is thus made out for interference with the concurrent decisions of the Settlement authorities and the High Court. The appeal is dismissed with costs.