1. MUHAMMAD HALEEM, C.J. --The appellants are displaced persons from District Hissar who settled in Chak No. 408/GB, Tehsil Sarrundari, District Faisalabad. Their claims were verified but as the land was not available in the revenue estate their claims were transferred to District Multan for satisfaction. But as it happened to be a congested area they were able to get land equivalent to 2,000 produce-index-units in 1965 and it was confirmed in their names. However, the balance of produce-index-units remained unsatisfied.
2. It transpires that Ahmad, the predecessor-in-interest of respondents 1 to 6 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1959, complaining that the calculation of produce-index-units in favour of the appellants at the rate of 40 produce-index- units per Acre was wrong as it should have been tabulated at the rate of 20 per Acre according to the classification of -the land which was "sailabi" . The Deputy Rehabilitation Commissioner exercising the powers of Chief Settlement Commissioner by his order dated 17th of November, 1961 allowed the application, and the appeal against this order was dismissed by the Additional Settlement Commissioner on 18th of April, 1962. Thereafter, a revision petition was filed before the Settlement Commissioner, Multan, which was also dismissed on 17-8-1962, but the second revision filed in the High Court against this order was converted into a Writ Petition on account of an amendment in the law and numbered as 227-R of 1963. On 6th of February, 1963, the High Court granted a status quo order and on 3rd of November, 1965, it was allowed and the case was remanded to the Settlement Commissioner with the direction that if some land had to be reduced, then the appellants should be given a choice to surrender excess land out of the pending claim for satisfaction. Against this order an L.P.A. Was preferred which was also dismissed on 28th of September, 1972.
3. On remand, the Settlement Commissioner by order dated 27th of December, 1972, directed that the appellant should be allowed to retain the confirmed land in Chak No. 12/M.R. And "their allotments in D.G. Khan District at R.L. 11 Khatas Nos. 5 and 6 of village Haji Ghazi Bharqi and Bait Mori, may be cancelled, by the concerned Settlement authorities".
4. Again a Writ Petition No. 205-R of 1973 was filed which was allowed on 6th of November, 1974, for the reason as under: - "On the date of the impugned order of Settlement Commissioner dated 27-12-1972, there were no 'unsatisfied claims' of the respondents which could be adjusted for the land in question in Chak No. 12/M.R. Tehsil and District Multan. The learned Settlement Commissioner, fell in error when he allowed the respondents to have their confirmed allotments in D.G. Khan cancelled, get the units transferred to Multan District, and, then, to get the claims adjusted against the excess allotment earlier cancelled from their names with their consent. Not only that the order is unwarranted, but, would also upset the settlement of the claim of the petitioner. Claims of both the parties settled a decade ago would be unsettled. The exercise of public power in these circumstances is not justifiable, at all. 1, therefore, hold that the impugned order of the Settlement Commissioner dated 27-12-1972 has been passed without lawful authority and is of no legal effect".
5. Leave to appeal was granted to consider the legal question as to whether the impugned judgment of the High Court was correct in the perspective that by the earlier order of the High Court a choice was given to the appellants to adjust their unsatisfied claims reduced by cancellation of some of the allotments in village 12/M.R., Tehsil and District Multan, and whether this right could be denied against their will by the allotment of land without their consent and in their absence in District D.G.
6. Khan.
7. On behalf of the respondents, it was urged that the claim of the appellants was not pending in the village in question for satisfaction, but the Letters Patent Bench rejected this submission on the short ground that at that the it was with the Central Record Office for further verification, and that this eventuality could not operate to deprive the appellants of their right to get their unsatisfied claim adjusted in the village out of the excess land which had been ordered to be surrendered on account of re-valuation of their verified claim. However, the Letters Patent Bench further clarified the observations of the learned Single Judge in Chambers to the effect that the exercise of choice did not mean that they had, in fact, some unsatisfied claim which needed adjustment, and that this question was left to be determined by the Settlement and Rehabilitation Commissioner to whom the case was remanded.
8. Here before us reliance was placed on the order of the High Court that there were no unsatisfied claims of the appellants which could be adjusted for the land in Chak No. 12/M.R, Tehsil and District Multan as their claims had already been transferred to D.G. Khan and they now hold confirmed allotments which process could not be reversed.
9. In the context of the order passed by the Letters Patent Bench, which confirmed the exercise of choice, it is needless to mention that the appellants could not have been deprived of it when they still had the unadjusted claims pending for satisfaction. This right could not have been taken away on account of the finality of those decisions in proceedings instituted to challenge the order by the Settlement Commissioner on remand. According to the directions in the judgment of the Letters Patent Bench, the Settlement Commissioner had to determine as to whether the appellants had their unadjusted claims and the Settlement Commissioner did go into the question and held: "The allotment had been confirmed to the petitioners in village No. 12/M.R. In 1961. Their claims had been reduced due to wrong classification of soil without their fault. Even in case of excess allotment or allotment in a fraudulent manner, they could be given an option to retain the area according to their choice, but in the instant case the allotment in D.G. Khan was made against their wishes and without notice to the appellants, which is clear from the fact that the order of High Court dated 28- 9-1972, does not show that the appellants contended that they were allottees of land in D.G. Khan District. The respondents also did not raise this plea."
10. The Settlement Commissioner rejected the contention of the counsel for the respondents that the appellants could not get their claims adjusted in the Village 12/M.R. Against their satisfied claims meaning thereby that they had confirmed allotments in D.G. Khan. The rejection of this submission was in conformity with the right of choice to be exercised as according to the earlier judgment of the Letters Patent Bench and we see no error if the Settlement Commissioner had allowed the appellants to retain the area allotted to them and confirmed in their names in Chak No. 12/M.R.
11. While at the same the cancelling their confirmed allotments in D.G. Khan District.
12. In Muhammad Yousaf and others v. Settlement Commissioner (Land), Multan, Division and others (Civil Appeal No. 193 cf 1977), the right to exercise the choice was upheld by this Court in these words: "This is all the more so where the resumption of the excess area is only by way of rectification of an error committed by the allotting authorities and is not punitive as is in the case of fraud or misrepresentation on the part of the allottee. A denial of choice in the former situation will partake of a punitive incidence which is not the intention of the law."
13. Accordingly, we are of the view that the High Court was in error in taking the view as it did while denying the right of choice guaranteed to the appellants by the earlier judgment rendered by the Letters Patent Bench, which had assumed finality.
14. The appeal, therefore, succeeds and while allowing it we set aside the order of the High Court and award costs of the appeal to the appellants.