1. NASIM HASAN SHAH, J.-This appeal, with the leave of this Court, is directed against the judgment dated 17-5-1974 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.104-R of 1967.
2. The dispute between the parties is in respect of land measuring about 8 Kanals in Kills. No.15 situate in Square No.57 of Chak No.75/J.B., Tehsil and District Lyallpur (now Faisalabad). The above piece of land, alongwith 7 Kanals 16 Marlas of land situate in Kills. No.21 of the same Square, was 'transferred to Noor Muhammad son of Ali Muhammad in lieu of his land abandoned in village Kokri Kalan, Tehsil Moga, District Ferozepur (East Punjab) India. The entire land was purchased by Ali Muhammad, appellant No .1, and his brother Sher Muhammad (now dead and represented by his legal representatives, namely, Sardar Muhammad and Mst. Sughran Bibi--appellants Nos. 2 and 3 herein) Prom Noor Muhammad for 88.6,000 through a registered sale-deed, dated 6-3-1965. A few days later, on 13-3-1965, a Mukhbari application was submitted by one Sher Muhammad son of Pir Bakhsh under section 10 of the Displaced Persons (Land Settlement) Act, 1958, before the Additional Settlement Commissioner alleging that the original allottee, Noor Muhammad, had obtained the land in excess of his entitlement and the excess area was liable to be cancelled and allotted to him.
3. While this application was pending, the Patwari of the area, on scrutiny, himself submitted a report to the Deputy Settlement Commissioner (Land) to the effect that Noor Muhammad had secured the area in excess of his entitlement. In pursuance of this report, 8 Kanals 13 Marlas in Killa No.15 of Square No.57 were cancelled by the Deputy Settlement Commissioner (Land) from his allotment vide order dated 6-5-1965 and allotted to one Jameel Khan.
4. Dissatisfied with this order, the vendees, who are the appellants herein, filed an appeal before the Additional Settlement Commissioner (Land), Lyallpur (now Faisalabad). The learned Additional Settlement Commissioner accepted the appeal on the legal ground that in view of the issuance of the Chief Settlement Commissioner's Memo. No.176-64/300-R(L), dated 11-1-1964 to the effect that only allotments secured on account of fraud or misrepresentation and not those made on account of wrong calculations of P.I. Units should be interfered with under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, the order of the Deputy Settlement Commissioner, dated 6-5- 1965, which was made on account of the calculations worked out on the basis of wrong classification of soil not involving any fraud or mis--representation, was bad and accordingly set aside vide order, dated 19-3-1966.
5. Dissatisfied with the above order, the heirs of Jameel Khan, who had been allotted this land, filed a revision petition before the learned Settlement Commissioner, who accepted the same observing as follows: "The respondents (appellants before us) were entitled to get an area equivalent to 88 units bit he has been, by the impugned order, given area equal to 170 units. I have got calculated the entitlement of the respondents (appellants before us) and find that the area given to them by the D.S.C.(L), dated 6-5-1965 was quite correct. There was no miscalculation of units. Since the area given to the respondents (appellants before us) by the D. S. C. Was correct hence the impugned order is set aside by accepting the revision petition."
6. This order was passed on 5-12-1966.
7. In the meanwhile, the Mukhbari application submitted by Sher Muhammad son of Pir Bakhsh on 3- 3-1965 regarding excess land obtained by Noor Muhammad came up for hearing on 14-12-1965 before the Additional Settlement Commissioner, Lyallpur (now Faisalabad) with powers of the Chief Settlement Commissioner. The learned Additional Settlement Commissioner, in his order passed on that date, observed that the calculations had not been made correctly. He, therefore, accepted the Mukhbari application and remanded the case with the direction that the units of Noor Muhammad should be worked out very carefully in confirmity, with the latest instructions and amendments and that if after that any excess was found in his allotment the same may be withdrawn and given to the rightful claimants among whom the case of the informant should receive prior consideration.
8. A review application was filed by the appellants against the order, dated 14-12-1965. The same learned Additional Settlement Commissioner (Land), Lyallpur (now Faisalabad), who had decided the matter on 14-12-1965, reheard the matter. The informant Sher Muhammad was not present and was proceeded ex parte. After hearing the appellants the learned Additional Settlement Commissioner proceeded to review his earlier order observing that he had remanded the case because he had erroneously taken into consideration the produce indices of Rohi assessment circle of Ferozepur Tehsil whereas the land left by the respondent in. India was situated in Moga Tehsil of Ferozepur District. He further observed that the mistake was clerical and, therefore, his remand order, dated 14-12-1965 could be reviewed under the law. Accordingly, he allowed the review application and set aside his previous order, dated 14-12-1965.
9. Since, however, the Settlement and Rehabilitation Commissioner had, thereafter, 'passed an order on 5-12-1966 cancelling 8 Kanals 13 Marlas from Noor Muhammad's allotment, the appellants herein, filed a writ petition in the Lahore High Court (W.P.No.104-R of 1967) to challenge-the said order. The main contention in support of the said writ petition was that the order of the Settlement and Rehabilitation Commissioner, dated 5-12-1966 was without jurisdiction because an Additional Settlement Commissioner with powers of the Chief Settlement Commissioner had found the entire allotment made in favour of Noor Muhammad to be proper and not in excess of his entitlement vide order, dated 29-12-1965.
10. In the High Court, the main question, that was debated, related to the effect of the last mentioned order, dated 29-12-1965 and, in this connection, the further question that came under consideration was whether, in the face of the earlier order, dated 14-12-1965, the learned Additional Settlement Commissioner could have reviewed the said order and, if not whether the order, dated 29-12-1965 could be considered to be a valid order at all?
11. The learned Single Judge held that the said order could not be upheld because by the Displaced Persons Laws Amendment Ordinance, 1964 (XIII of 1964) the only power available to the Additional Settlement Commissioner at that the was to rectify clerical or arithmetical mistakes whereas the above-mentioned order fell outside the ambit of section 20(3) of the Displaced Persons (Land Settlement) Act, 1958, and accordingly this order was without jurisdiction and without lawful authority.
12. The learned Judge then considered the question as to whether the Deputy Settlement Commissioner (Land) could withdraw the excess land allotted to Noor Muhammad vide order, dated 6-5-1965 and it was held that this was possible and, accordingly, the appellants' writ petition was found to be without merit and dismissed vide order, dated 17-5-1974.
13. Before us to the same contention that the order of the Additional Settlement Commissioner, dated 29-12-1965 was a legal order was raised. It was submitted that under subsection (3) of section 20 of the Displaced Persons (Land Settlement) Act, the Additional Settlement Commissioner had the powers to review his order for rectifying any clerical error or accidental slip and this power was wide enough to cover the instant case.
14. We are, however, after hearing the learned counsel for both the parties at some length, of the opinion that the above question is not really the crucial question in the case. We find that much before the order, dated 29-12-1965 was passed the question whether Noor Muhammad had obtained allotment in excess of his entitlement was occupying the attention of the Settlement authorities and as early as 6-5-1965 it was held that he had indeed obtained allotment in excess of his entitlement. The order, dated 6-5-1965 was challenged before the Additional Settlement Commissioner and the matter came up for hearing before him on 19-3-1966 and no plea that the order, dated 6-5-1965 stood negatived by the order of the Additional Settlement Commissioner, dated 29-12-1965 was raised, instead a totally different contention was urged.
15. Similarly, when the matter came up, on revision, before the Settlement Commissioner, the appellants again did not rely on the order, dated 29-12-1965 and instead the matter was argued on the merit, namely, whether the allotment made in favour of Noor Muhammad was or was not in excess of his entitlement. The learned Settlement Commissioner found that Noor Muhammad had, indeed, obtained allotment in excess of his entitlement.
16. We to agree with this view, after having given an opportunity to the parties to demonstrate before us that the order of the Settlement Commissioner, dated 5-12-1966 holding that Noor Muhammad had obtained allotment in excess of his entitlement was erroneous. This they were unable to do. In these circumstances, the order of the Settlement A Commissioner, dated 5-12-1966 being a correct, fair and just order could not be assailed in writ jurisdiction.
17. We may also point out that this Court has held in several cases that the settlement authorities have the power to withdraw the area B allotted to a claimant which is in excess of his entitlement on grounds other than fraud and misrepresentation under section 11 of the Displaced Persons (Land Settlement) Act.
18. No ground exists for interference in this case. This appeal is, accordingly, dismissed, but the parties, are however, left to bear their own costs.