M.S. H. QURAISHI, J.--This judgment will dispose of to appeals, namely, Civil Appeals Nos. 193 and 194 of 1977, in both of which the sole question requiring examination is whether the appellants should have been given a choice in the matter of surrender of land found to have been in excess of their entitlement.
2. In respect of land temporarily allotted to the predecessor-in---interest of the appellants, information was laid before the Settlement Authority that the Selab type of land had been calculated at the rate of 40 units per Acre whereas it should have been at the rate of 22. The Deputy Commissioner/ Deputy Rehabilitation Commissioner by order dated 17-11-1961 held that the calculation should have been made at the rate of 22 units and accordingly cancelled the excess land. This order, though agitated up to the Supreme Court, was maintained (see judgment of the Supreme Court dated 12-5-1975 reported in PLD 1975 SC 318. In the meantime in implementation of the aforesaid order of the Deputy Rehabilitation Commissioner, the excess lands were cancelled on 4th and 6th August 1962 in Civil Appeal No. 193 and 16th June, 1962 in Civil Appeal No. 1--4 and allotted to the respondents. The appellants filed appeals but as in the meantime the parties had gone to the High Court on the question of the rate of calculation of P.I. Units and stay orders had issued, the Deputy Rehabilitation Commissioner consigned the same to the record with the observation that the appellants could get them revived after the decision of the writ petitions. After the stay orders were vacated, the informants applied for putting them into possession of the excess land which was allowed by the Settlement Commissioner on 4-3-1975 On this the appellants in Civil Appeal No. 173 filed Writ Petition No. 253/11 of 1975 which was dismissed or 11-4- 1975 with the observation that the proper course for the appellants was to have applied for revival of their pending appeals and their disposal in accordance with law. The learned Settlement Commissioner accordingly revived the appeals and treating them as revisions dismissed the same by his order dated 7-5-1975, holding that the appellants had not challenged the order of allotment of the excess land made in favour of the respondents, that it was incorrect to say that they did not exercise choice and that if it was not according to their choice they should have agitated in the.
The appellants challenged the order by filing Writ Petition No. 392/11 of 1975. The appellants in the other appeal, after the decision of the Supreme-Court on 12-5-1975, got their appeal, to, resurrected. The same was treated as revision but was dismissed on 12-8-1975 upon the view that the order of A.R.C., dated 16-6-1962 being "by way of implementation of the order of the D.R.C.", no appeal lay against it. They then filed Writ Petition No. 869/R of 1975. Both the writ petitions were dismissed on 2-11-1976 by separate orders. It was held that it had not been shown that the appellants had a right of exercise of option and that the order of allotment of the excess lands in favour of the respondents having not been challenged had attained finality.
3. Aggrieved, the appellants filed Civil Petitions Nos. 218/11 of 1976 and 219/R of 1976, respectively. It was urged that the appellants were prepared to surrender their surplus land but that although in the different orders of cancellation the expression (sic) "or" (sic) is mentioned it was wholly incorrect to say that the excess area had been withdrawn in accordance with their wishes. Leave to appeal was granted consider the question whether the appellants were entitled to exercise to choice in the matter of surrender of their excess land.
4. It was urged on behalf of the appellants that the cancellation of the excess land had been made without affording them a choice and that the excess having been purely on account of error made by the Department and not of any misrepresentation or fraud on their part, they had got a vested right in the land which was still in their possession and that, therefore, the area to be surrendered must be according to their choice. It was further submitted that the High Court had erred in holding that the appellants had been afforded an opportunity of expressing their choice because although the appellants had been willing to surrender the lands allotted to them in District Jhang but land had been taken away from the allotments made in their name in villages Billiwala and Gulzar, respectively, in District Multan. Learned counsel, however, conceded that there was no law or instruction conferring a right of choice on the appellants but urged that they were nevertheless entitled to it in the light of the view expressed in Abdul Ghani v. Muhammad Sharif PLD 1971 Lah. 53.
5. Learned counsel for the respondents, on the other hand, argued that the respondents were entitled to the allotment of the land cancelled from the name of the appellants in terms of section 14(1-A) of the Displaced Persons (Land Settlement) Act, 1958, as amended by Act LV of 1973 and Act XXXVI of 1974, that the information having been laid in the District of Multan, the cancellation of land in that District was justified and that in any case the appellants had no right conferred on them by law to have a choice in the matter of surrender of land. Reliance was placed on Mushtaq v.
Settlement Commissioner 1974 SCMR 74.
6. After a perusal of the record with the help of counsel on both sides, we are satisfied that while cancelling the land from the name of the appellants, they had not been afforded due opportunity to express their choice. In Abdul Ghani v. Muhammad Sharif (supra) a Division Bench of the Lahore High Court had, in dealing with the apprehension on the part of the allottees that while taking the excess land the authorities might deprive them of good land which they had developed at considerable expense and labour, observed:- "There does not seem to us to be any justification, for 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 by the report."
In another case Fatta v. Ahmad Khan 1973 Law Notes 753 (Lah.), where the main grievance was that in taking away the excess area,, no notice or opportunity had been given to the allottees and they had thus been deprived of their choice, a learned Single Judge while repelling the contention put forward by the other side that choice was not a vested right of the allottees, observed:- "Even if it be conceded that choice is not a vested right of a party, in the absence of any fraud or false representation the petitioners should not be denied the same."
Mushtaq v. Settlement Commissioner, relied upon by the respondents, is distinguishable inasmuch as in that case total land abandoned had been inadvertently shown as 93 Bighas 16 Biswas as against the real figure of 43 Bighas 16 Biswas whereupon a question of cancellation of the excess area had arisen. The Settlement Commissioner had decided that allotment made subsequent to complete satisfaction of the due claim of the allottee should be cancelled, and the cancellation had followed accordingly. It was in this circumstance that this Court, while dealing with the contention that the allottee should be given a choice and the matter should not be left to the Settlement Authorities to withdraw the area whichever they liked, observed:- "The Settlement Authorities are entitled to deduct any area to the extent of 50 Bighas from the area of the land in dispute."
It will not be proper, in our view, to interpret the above observation in isolation of the context in which it was made and to stretch it to mean an outright negation of a choice in the matter of surrender of excess land. Where the allotments had been made on different dates, the Settlement Authority would certainly be justified in cancelling the allotments made subsequent to the satisfaction of the allottee's claim, but when the entire allotment had been made at one the and the land so allotted had remained with the allottee for a sufficiently long period so as to justify the assertion that he had developed the same at considerable expense and labour, it will be in the fitness of things to allow him a choice as to which area of the land he would surrender. 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. However, in consonance with the provision of para. 30 of the Supplemen--tary Scheme No. 2 the surrender of excess area must be as far as possible in a compact block.
7. We accordingly allow these appeals, set aside the orders of the High Court dated 2-11-1976 and of the Settlement Commissioner dated 7-5-1975 and 12-8-1975 and direct that the appellants be given a choice in the matter of surrender of the excess land subject to the condition that the land so surrendered shall be as far possible in compact block.
There shall be no order as to costs.