1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to Barkat' Hussain, a vendee from the confirmed allottee of urban agricultural land to examine whether the High Court had competently to set aside in' constitutional jurisdiction orders of the Additional Settlement Commissioner (exercising the powers of the Chief Settlement Commissioner) passed on 31-1-1974.
2. Allah Dad since dead, predecessor-in-interest of the appellant had a verified claim for urban agricultural land.
3. He got it transferred to Rawalpindi and the land measuring 8 Kanals 1 Marla was proposed against part of his verified claim. It appears that the proposal was confirmed on 24th of July, 1965. On 24th of June, 1967 the heirs of Allah Dad who were brought on revenue record by means of a mutation by a registered deed sold the land in favour of the appellant. In the meantime, it appears, the confirmation made in favour of Allah Dad was somehow taken to be still pending or confirmation and due to non-appearance of Allah Dad later notices, the proposal as such was cancelled on 8th of February, 1969. The land was subsequently confirmed as available land in favour of heirs of Iqbal Muhammad respondents 2 to 10. On coming to know of this state of affairs, the appellant filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act seeking cancellation of the duplicate allotment of the same land in favour of the; heirs of Iqbal Muhammad. The Additional Settlement Commissioner (exercising the powers of the Chief Settlement Commissioner) held that it was a fact that a proposal in the name of Allah Dad had been confirmed on 24th of July, 1965; that the subsequent cancellation of the same on 8th of February, 1969 from his name was misconceived and that subsequent allotment of the same land to the heirs of Iqbal could not be maintained. On these findings of fact, the delegate of the Chief Settlement Commissioner set aside the orders, dated 8th of February,1969 and 6th December, 1972.
4. The heirs of Iqbal Muhammad the subsequent allottee had first tried to challenge the order of the Additional Settlement Commissioner as delegate by way of revision but having failed there they instituted a constitutional petition. It was allowed by a learned Judge of the High court.
5. The learned counsel for the appellant contended that the findings of facts recorded by the delegate of the Chief Settlement Commissioner has been substituted by the learned Judge in the High Court without advancing any good ground for doing so. Besides, the case of duplicate Allotment expressly fell within the purview of powers enjoyed by the Chief Settlement Commissioner under section 11 of the Displaced Persons (Land Settlement)
6. Act and rectification order could not be interfered with. The subsequent allotment in favour of the heirs of Iqbal being a nullity in law, the same could be interfered with and ignored altogether.
7. The reasoning found in the judgment of the High Court for reversing the finding of fact recorded by the delegate of the Chief Settlement Commissioner appears from the following portion of the judgment-- "All these facts combined together coupled with the written statement of respondents Nos.3 to 8 and affidavit of Hakim Ali speak volume of fraudulent part played by Barkat Hussain. The proposal was subsequently cancelled from the name of Allah Dad by the Learned Additional Settlement Commissioner on 8-2-1969 after the claimant was served by publication in the newspaper. The land was proposed in the names of petitioners Nos. 1 to 4 and confirmed by A . D . C . (R) on 6-12-1972 . T he learned Additional Settlement Commissioner (Lands) entertained application on behalf of Barkat Hussain under sections 10 and 22 of the Displaced Persons (Lands)
8. Settlement Act, on 19-12-1972 and passed the impugned order. In view of the circumstances of the case, it was not a case of obtaining allotment by means of fraud or misrepresentation. Tanvir Ahmad Khan petitioner had 'interest in disputed property. He had died on 4-11-1973. His legal heirs respondents Nos.5 to 9 were not impleaded in application filed by Barkat Hussain under sections 10 and 11 of the Displaced Persons (Land)
9. Settlement Act. The learned Additional Settlement Commissioner could pass no order under sections 10 and 11 of the said Act without giving the persons affected a reasonable opportunity of being heard. The provisions of sections 10 and 11 of the said Act could not validly be invoked by the learned Additional Settlement Commissioner and his order dated 31-1-1974 is without jurisdiction and of no legal effect."
10. It is not disputed by any one and cannot be disputed that if there is a manifest duplicate allotment of land then powers under section 11 would be available for interfering with the allotment subsequently made. In the case in hand the finding of fact recorded by a delegate was that the allotment against the verified claim of Allah Dad was valid and proper. The learned Judge in the High Court assumed that it was only a proposal in the name of Allah Dad and that it could be cancelled and was cancelled lawfully. The learned Judge further held that Allah Dad had been served by way of publication in the newspaper before the proposal was cancelled from his name.
11. From the same judgment it appears that Allah Dad was dead even before the proposal was confirmed in his name and the confirmation had taken place after his death and on appearance of one of his heirs before the Revenue Officer. They notice which was published in the newspaper was in the name of Allah Dad. Such a service could not have been proper service nor could it inure to the benefit of any one. The land, which already stood confirmed, could not be cancelled without proper notice and on good ground.
12. None appears whatsoever in the order dated 6th of December, 1969 and none was found to justify it by the delegate of the Chief Settlement Commissioner. The subsequent allotment of the land, which stood allotted and was not available for allotment to any one had to be treated as a nullity and of no avail to the subsequent allottee. It appears that the High Court misconceived the scope of application under sections 10 and 11 to hold that the applicant Barkat Hussain himself had committed a fraud on the heirs of Allah Dad. This was not the subject-matter of inquiry. The allotment made in favour of Allah Dad was not treated as a valid allotment but was taken to be only a proposal and on that assumption the cancellation of the allotment on 8th of February,1969 was held proper.
13. We find that the judgment of the High Court proceeds on erroneous assumption with regard to facts and on the facts established it could not interfere with the findings of fact recorded by the delegate of the Chief Settlement Commissioner. We, therefore, accept this appeal, set aside the judgment of the High Court and recall the writ, which issued thereby restoring the order of the delegate of the Chief Settlement Commissioner. There shall be no order as to costs.