This judgment will dispose of writ Petition No. 67/11 of 1973 (Con--verted from Settlement Revision No. 69 of 1967), Writ Petition No. 68/11 of 1973 (converted from Settlement Revision No. 64/1967) and writ petition No. 69/11 of 1973 converted from Settlement -Revision No. 24 of 1969) as they arise out of the two different orders of the same charac--ter passed by the same authority in regard to the Allotment of Ali Hussain respondent in exercise of the powers under section: 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958.
2. Before deciding these cases on merits, I would like to state that an order of service of certain respondents by citation had been made in Writ Petitions Nos. 67/R and 69/11 of 1973. The fee for citation paid by the petitioners was deficient by a sum of Rs. 20 in each case. A notice dated the 22nd March, 1975 was, therefore served upon the learned counsel for deposit of the balance amount of Rs. 20 within a fortnight. This direction was not complied with. After hearing the learned counsel for the petitioners I do not find any sufficient ground for condonation of the delay. These petitions are, therefore, liable to be dismissed for non-prosecution.
3. However, I have heard the learned counsel for the petitioners on these petitions also, since on my query from them I found that in view of the latest pronouncements by their Lordships of the Supreme Court, these matters could be decided without calling upon the unserved respondents to put in appearance before the court.
4. The facts given to me by Khawaja Muhammad Akram are that Ali Hussain, respondent, a claimant displaced person from Jammu and Kashmir State was found entitled to 7, l00 P. I. Units for the land left by him in Jammu and Kashmir State and QPR-1 No. 18470/794, was issued to him. Land in different villages, partly in District Sialkot and partly in District Gujranwala, was allotted in satisfaction of these units. In December, 1964, one Qaim Din filed an application under section 10 of the Displaced Persons (Land Settlement) Act, 1958, before the Deputy Commissioner, Gujranwala, alleging that fraudulent transfer had been obtained by Ali Hussain. At that time the number of QPR- 1 which was quoted by him was 18476/794. On a report from the Central Record office that this QPR-1 Form pertained to the claim of one Nur Din son of Fateh Ali, the allotment of Ali Hussain was cancelled in its entirety.
5. Before this cancellation was made, Muhammad Sarwar, Petitioner in Writ Petition No. 68/11 of 1973 also posed as an applicant under sections 10 and 11 and the order dated the 1st November, 1961, cancelling the allotment of Ali Hussain in toto was passed at that stage.
6. One thousand three hundred fifty five P.I. Units of Ali Hussain were satisfied in Chak Chaudhry Tehsil and District Gujranwala, where land equivalent to 449 kanals 16 marlas was allotted in his favour. He transferred this land to the petitioners in Writ Petition No. 67/11 and 69/11 of 1973 on the 4th August, 1964 form a sum of Rs. 10,000 which transaction was duly incorporated in mutation No.
527. Since the petitioners were hit by the order dated the 1st November, 1965, they pointed out by way of clarification/review application to the Deputy Commissioner that the number of the claim form given by Qaim Din was incorrect. Another report was thereafter called from the Central Record Office. This report was submitted on the 7th February, 1967. It was reported that Ali Hussain's entitlement was 100 Acres of Barani areas in Jammu and Kashmir State and ht; was entitled to 3,700 units, but while calculating the units it was assumed that the area was Nehri in character.
7. It may be stated that before these proceedings were started, the allottee, namely, Ali Hussain had transferred. Every inch of the land which had been allotted to him against 7,300 and odd units.
On the 20th March, 1967, the Deputy Commissioner passed an order reducing the allotment of Ali Hussain to the extent of 3,700 units and cancelled the balance area. The area liable to be cancelled which included the area transferred to the petitioners was determined on the basis of the principle of priority in allotment and sales, It was found that this principle did not apply to Abdul Hamid and Rahmat Ullah, Petitioners. Settlement Revision No. 24 of 1969 was filed by Abdul Hameed and Rehmat Ullah against this order while Muhammad Sarwar informant challenged a portion of that order by Settlement Revision No. 64 of 1967. As stated above these two revisions have been converted into writ petitions Nos. 68/11 of 1973 and 67/11 of 1973 respectively. The grievance of Muhammad Sarwar was that the land allotted in Thatta Chawan, which has been ordered to be retained by the transferee of Ali Hussain should have been cancelled since Ali Hussain had given a choice for retention of some other areas instead of areas allotted in that village. The claim of Muhammad Sarwar had also been verified for the above village.
8. Ali Hussain along with Mian Nisar Ahmed Saleem to whom the land was formerly allotted also challenged the same order by Writ Petition No. 875/11 of 1967. This Writ Petition was allowed on the 23rd May 1968, on the ground that "the functionary has not associated all the persons to whom the land had been sold." It was observed that it was necessary for him to issue notice to those persons as Ali Hussain had sold the land upto the extent of 7,393 units. The order of the Deputy Commissioner dated the 20th March, 1967 was, therefore, quashed and the learned Additional Settlement and Rehabilitation Com--missioner, Gujranwala (D.C.) was directed to issue notice to the allottee and to all the persons to whom the land had been sold by him and reduce his entitlement according to law after hearing them.
9. After hearing all the parties the Deputy Commissioner, Gujranwala exercising powers of the Chief Settlement Commissioner (Lands) cancelled the allotment on the principle of propriety of transfer.
He directed the retention of allotment in villages Monay, Naike, Ghaggarke Thatha Chawan and Chahal Mian Nisar Ahmed Saleem was excluded for the reason that the units had not been transferred to the village in which the land transferred to him had been allotted in the name of Ali Hussain, Abdul Hameed and Rahmat Ullah were not only excluded on the principle of priority followed by the Deputy Commissioner but also on the ground that the allotment of Chak Chaudhry in favour of Ali Hussain was not valid since it was clear from the record that "up to 26th October, 1964 the so called P. I. Us had not been challenged by Abdul Hameed and Rahmat Ullah by Settle-- ment Revision No. 24 of 1969 which, as stated above, has been converted into Writ Petition No. 69/11 of 1973.
10. Writ petitions Nos. 67/11 and 68/11 of 1973 are liable to be dis--missed as infructuous since the order against which they have been filed had already been quashed in Writ Petition No. 875/11 of 1967. They are dismissed as such without costs.
11. In regard to Writ. Petition No. 69/11 of 1973 the following points were raised by the learned counsel for the petitioners :-
(a) The Deputy Commissioner, Gujranwala had acted as a delegate of the Chief Settlement Commissioner in his capacity as Addi--tional Settlement Commissioner but the delegation of powers under section 11 had been made to only those Additional Settle--ment Commissioners, who were Additional Deputy Commis--sioners of the Districts.
(b) In his capacity as Deputy Settlement Commissioner, the Deputy Commissioner is invested with the powers to decide cases under section 10 of the Displaced Persons (Land Settlement) Act, 1958, but the facts of this case prove that it was not a case of fraud but miscalculation of the units to which Ali Hussain was entitled and this miscalculation was made by the Agency of Rehabilitation Settlement Department itself.
(c) According to paragraph No. 23 of the Supplementary Rural Scheme No. 1, the Deputy Commissioner should have acted on the choice of Ali Hussain and ought not to have fixed arbitrary principles of his own. The same consideration obtains by a bare reading of paras I and 14 of Part Second of Rehabilitation Settlement Scheme. Reference has also been made to the instructions of the Chief Settle--ment Commissioner, copy of which has been placed on the record of Writ Petition No. 68/11 of 1973 as Annexure 'Q'.
(d) In regard to the finding that the Produce Index Units had not been transferred to Chak Chaudhary till October, 1964, no adequate opportunity of being heard was given to the petitioners since this matter came up before the Deputy Commissioner during the arguments of the case.
12. None of these contentions have any force. The first point has been conclusively determined in Habib Ahmad and two others v. Chief Settlement and Rehabilitation Commissioner (1972 SCMR 274). It was held there that power under section I1 of the Displaced Persons (Land Settlement) Act, 1-958 was conferred by delegation by the Chief Settlement Commis--sioner upon Deputy Commissioners of the Districts as Deputy Settle--ment Commissioners. Subsequently, the Deputy Commissioners were also invested in their capacity as Deputy Settlement; Commissioners with powers of the Additional Settlement Commissioners also but this notifica--tion of appointing the Deputy Commissioners as Additional Settle--ment Commissioners did nor override the first' notification issued to invest them with powers under section II nor took away the powers (under section 11 of the Act) already conferred upon them as Deputy Settlement Commissioners. The Deputy Commissioner, therefore clearly had the jurisdiction under section 1 I of the Act in his capacity as Deputy Settlement Commissioner.
13. It is conceded that the power under section 10 of the Act was conferred upon the Deputy Settlement Commissioner by a notification dated the 20th March, 1962. The sum and substance of these notifications is that the Deputy Commissioner was invested not only with the power under section 10 of the Act but also under section 11.
14. This is also not correct that the case in hand involves the exercise of power only under section I1 of the Act. It was held in Sher Muhammad v. The Chief Settlement Commissioner (1971 SCMR 339) that if the allottee persists in claiming to retain the area after his actual entitlement has been worked out there is a touch of fraud in it and the matter is covered by both the sections, i. e. Section 10 and section 11 of the Act.
15. Paragraph No. 23 of Supplementary Rural Scheme No. I pro--vide: that :- If an allottee under this scheme is subsequently found to hold land in excess of his actual entitlement calculated in accordance with prescribed procedure, the allotment of the excess area shall, as directed be cancelled and he shall surrender possession according to his choice in a compact block as far as possible."
Paragraph No. 1 of the Rehabilitation Settlement Scheme Part II relied upon by the learned counsel for the petitioners lays down the policy to settle right-holders in the shortest possible time, with the minimum of dislocation and the greatest possible satisfaction of those who are to be settled. The emphasis is on the "greatest possible satisfaction of those, who are to be settled." Paragraph No. 14 of the Scheme in Second Part deals with the Principle of allotment that no refugee is to be displaced against his will from land regularly allotted to him by a competent Rehabilitation authority. If an withdrawal is necessary as a result of the change in the P. I. Units, the withdrawal of excess area should be made with the consent o the allottee concerned. It is not necessary to consider whether these instructions apply to a case under section 11 of the Displaced Person (Land Settlement) Act, 1958. These instructions cannot be invoked for the reason that as held by me by continuing to challenge the order of can--cellation of a part of the area notwithstanding the fact that Ali Hussain was found entitled to the reduced area after a report obtained from the Central Record Office. Ali Hsssa in's conduct was fraudulent and the' case was also covered by section 13 of the Act.
16. Even if it is conceded that section 10 is also covered by these instructions. I would not like to exercise the extraordinary jurisdiction under Article 199 of the Constitution in favour of the petitioners.
These instructions are not applicable and cannot benefit the peti--tioners for another reason also.
It has been held that the allotment made to Ali Hussain in Chak Chaudhary had been made before actual transfer of the so-called pending Units of Ali Hussain to that Chak. That allotment, was, therefore, irregular.
17. I am not impressed by the arguments that no adequate opportunity was given in regard to this particular point to the petitioners. The were present before the Deputy Commissioner. The matter admittedly was raised before them. If this particular point did not reflect the true position it was open to the petitioners to apply to the Deputy Commissioner to allow them further opportunity to meet this case. This neither appears to have been done nor is there any allegation to this effect.
18. The order of the Deputy Commissioner is very reasonable and is based on soured principles. In this case Ali Hussain had no in--terest left in the property. He bad transferred every inch of the land allotted to him to different persons. The rights of a number of transferees were involved. In these circumstances, to give effect to his choice would be giving effect to the fraud played upon them by him. The correct principle should, therefore, be the priority of the sales effected in favour of each person. It is very clear that the petitioners do not get anything on that score. The conduct of Ali Hussain in giving a choice in favour of the petitioners to detriment of persons from whom he had recovered valuable consideration at the time of earlier transfers is itself fraudulent. The choice, if at all, should be to his transferees of first come first served basis.
19. I, therefore, find no merit in this petition on merit's also and dismiss it. Since no one has appeared on behalf of the respondents, there will be no order as to costs.