1. ' NASIM HASAN SHAH, J.-This appeal, by leave of this Court, is directed against the judgment of a Division Bench of the Lahore High Court dated 29-2-1972 in Letters Patent Appeal No, 43 of 1972.
2. ' The dispute in this case relates to the classification and computation of produce index units of certain lands described as Chahi Jhalari.
3. ' The present appellant was confirmed certain lands in Mauza Taraf Ravi, District Multan, on the 4th of March, 1958. Some of the lands included in this allotment were described as Chahi Jhalari and were calculated at the rate of 54 produce index units per acre. Subsequently, since this classification was not found in the official booklet regarding assessment, Chahi Jhalari land should not have been allotted 54 produce index units but evaluated as Chahi Nehri at 80 produce index units per acre. Accordingly, the Chairman Allotment Committee, on this evaluation, cancelled some of the lands confirmed in favour of the appellant on 26th June, 1965, holding that ne had obtained excess allotment and allotted the cancelled area to one Mushtaq Ahmad.
4. ' The present appellant filed two appeals against the said order and a third appeal was filed by one Muhammad Salim (now dead and represented by his legal heirs respondents Nos. 1 to 9 herein) claiming that he had a preferential right to allotment of the cancelled area than Mushtaq Ahmad.
5. The Additional Settlement Commissioner, by his order dated 4th of June, 1968, dismissed the appeal of the appellant but accepted that of Muhammad Salim. Against this order both the appellant herein and Mushtaq Ahmad went up in revision before the Settlement Commissioner who dismissed both of them on the 17th November, 1970. The appellant also then went up to the High Court in writ jurisdiction but the writ petition was dismissed by a learned Single Judge and that order was upheld in Letters Patent Appeal by a Division Bench of the High Court by its order dated 29-2-1972.
6. Leave was granted by this Court against the above order to consider the contention that the confirmation of the allotment in favour of the appellant created a vested right in the allottee and this right could not be A taken away with retrospective effect by certain instructions issued subsequently by the Chief Settlement Commissioner on the 17th of May, 1960.
7. ' We have heard Sh. Masud Akhtar on behalf of the appellant and Ch. Khalil-ur-Rehman on behalf of the contesting respondents.
8. ' It is admitted that the soil of the land in dispute was described as Chahi Jhalari even before 1947. It is also not disputed that the same is not mentioned in the official booklet of the Produce Indices.
9. However, in the booklet of the Produce Indices against assessment circle Utraf, the following four kinds of soil are mentioned:- Kind of soil Produce Index Units Chahi - 54 Chahi Nehri - 80 P)
10. Nehri - 80 Barani 18 ' It is, therefore, evident that there is no mention of Chahi Jhalari kind of soil against this assessment circle. The question is whether the Settlement authorities having once confirmed land in favour of the appellant on the basis that Chahi Jhalari land should be calculated at the rate of 54 produce index units and having confirmed land to him on that basis whether it was debarred from altering the rate of calculation later on?
11. ' Clause (3) of para. 16 of the Rehabilitation Settlement Scheme (Part-II), which is relevant in this context, provides as follows:- "If on verification of claim classifications of soil in respect of irrigated and unirrigated land is shown in the Nagai Fard Haqiat but it is not given (against the Assessment Circle concerned) in the Produce Index Booklet, the Produce Index of highest class of each kind of land (irrigated or unirrigated) as the case may be shall be taken for calculating the produce value of the abandoned land".
12. ' In pursuance of the above provisions, the impugned instructions were issued by the Chief Settlement Commissioner on 17th May, 1960, which read: - "Sub: Allotment of land in village Taraf Ravi and Taraf Daira, Tehsil Multan.
13. ' According to the provisions of paragraph 16(3), Chapter I, Part II of the West Pakistan Rehabilitation Settlement Scheme, the Chahi Jhalari class of soil is to be treated at par with the highest irrigated class of the assessm ent circle concerned. It has been reported that in villages Taraf Ravi and Taraf Daira, Tehsil Multan, cases of the same type have been accorded different treatment inasmuch as some allotments have been made according to the provisions of paragraph 16(3) referred to above, while in certain other cases the Chahi Jhalari class of soil has been treated as Chahi. You are, therefore, advised to look into the cases where allotments have been contrary to the instructions contained in paragraph 16(3), Chapter I, Part II of the Rehabilitation Settlement Scheme and decrease them proportionately in accordance with the provisions of law".
14. From the perusal of para. 16 of the Scheme read with the above-mentioned memorandum of the Chief Settlement Commissioner it is clear that Chahi Jhalari class of soil is to be treated at par with the highest irrigated class of the assessment circle concerned, namely, 8C produce index units and not 54 P. I. Units.
15. ' However, the contention of Mr. Masud Akhtar is that these instructions of the Chief Settlement Commissioner were issued subsequent to the allotment made in favour of the appellant and could not be given retrospective effect.
16. This argument suffers from several weaknesses. The first and foremost is that the principle enunciated in the impugned memorandum of the Chief Settlement and Rehabilitation Commissioner was already contained in the portion called "Introduction" attached to the booklet of produce indices in para. 6 thereof which reads as under:- "6. In cases where:- a. No Produce Indices are found prescribed for any particular class of irrigated or unirrigated land, the Produce Indices of the highest class of the irrigated or unirrigated soil, as the case may be, shall be taken for the purpose of evaluating the area concerned. b. Produce Indices have not been separately provided even for irrigated or unirrigated land, as the case may be, while any such category of land is actually found to exist, highest Produce Index Units of the same kind of soil in any of the adjoining Assessm ent Circle will be adopted for evaluating the area concerned."
17. The instructions issued by the Chief Settlement and Rehabilitation ID Commissioner dated 17th May, 1960, are merely a reiteration of the principle stated in para. 6(a) above, which stood enunciated right from the outset.
18. ' Moreover, the provisions of paragraph 23 of Part I of the Rehabilitation Settlement Scheme authorise the Authority concerned to issue instructions at any time consistent with Scheme for its proper implementation. In the present case, the matter was of an ambiguous nature, namely as to whether the area should be treated as Chahi or Chahi Nehri. Consequently, instructions could be issued consistent with the Scheme with regard to details which had not been so far catered for in the existing instructions with a view to securing proper implementation of the E Scheme. In the unsettled state of affairs that existed, the Chief Settlement and Rehabilitation Commissioner was, therefore, well within his jurisdiction in issuing the relevant instructions with a view to clarifying the matter and there is no question of retrospective effect having been given to these instructions.
19. Their purpose was only to clarify the instructions already in force and not to supersede or alter them.
20. The appellant having obtained excess allotment on account of the' wrong application of the Scheme, the excess area could be withdrawn from him at any time. Thus, subsection (e) of paragraph 4 of the Rehabilitation Settlement Scheme (Part-I) lays down that if an allottee is at any subsequent time found to have been allotted land in excess of what may actually be due to him, the allotment of the excess area shall be cancelled and, if necessary, he will be dispossessed therefrom. Again subsection (2) of section 11 of the Displaced Persons (Land Settlement) Act, 1958, also authorises similar action because if any person is found in possession of any land without a valid allotment the same can be withdrawn from him. In fact, this Court has already laid down that if any person has been allotted land in excess of his entitlement the G question of the said area permanently vesting in his favour will not arise, because it is only lawful settlement which can vest permanently in favour of an allottee and not an allotment which is in excess of his due entitlement, the excess area obviously being an unlawful settlement.
21. ' The result is that there is no force in this appeal which is dismissed hereby, leaving the parties to bear their own costs.