' ABDUL SHAKURUL SALAM, J.--This appeal is directed against the order of the learned Single Judge in Writ Petition No,1112-R of 1968 whereby the appellant's writ petition against the order of the Settlement Commissioner/Chief Settlement Commissioner, dated 25-5-1966 was dismissed.
2. Relevant facts for the disposal of this appeal are that the appellant filed a claim for verification of the land abandoned in village Chikhana, Tehsil and State Alwar (India). Record having not been received from India, the claim was verified per the instructions of the Chief Settlement and Rehabilitation Commissioner, dated 16-4-1959 on the analogy of Schedule V to the Registration of Claims (Displaced Persons) Act, 1956. On the basis of the verified claim, land measuring 148 Kanals 12 Merles equivalent to 1230 P.Y. Units in village Orara, Tehsil and District Kasur was allotted in favour of the appellant on 13-2-1960. The allotment was subsequently cancelled on, 9-8-1961. Since large number of people similarly placed were being affected, instructions were issued by the Chief Settlement and Rehabilitation Commissioner on 12-4-1965 to deal with the situation and it was directed that "the land allotted against the original entitlement which may have been cancelled as a result of the subsequent action" (which was on account of receipt of record or intimation from India) but which have not been allotted to other claimants under West Pakistan Rehabilitation Settlement Scheme may be restored by reviewing the orders of cancellation. It has further been decided that these claims should be treated on the analogy of those or Non-agreed Areas Schedule V claimants and subjected to the progressive cut prescribed in paragraph 5 of Martial Law Regulation No,89. "Annexure 'G' with the writ petition). In pursuance thereof, the appellant's appeal against cancellation of allotment was allowed by the Deputy Settlement Commissioner (L) vide order, dated 2-11-1963 and the allotment was restored on Khata No,461 in her favour on 6-4- 1965. On a report from the Enforcement Department, the Deputy Settlement Commissioner/Chief Settlement Commissioner, cancelled the allotment on the ground that the appellant's father was alive in India and had come on a temporary visit to Pakistan and, therefore, the allotment was obtained by fraud and misrepresentation. He directed that possession be taken and the appellant be called upon to render accounts of the mesne profits for the period the land in dispute had remained in possession in accordance with the Jhar Paidawar. This order was challenged by the appellant through Writ Petition No,1112-R of 1968 which has been dismissed by the learned Single Judge on the grounds that it suffered from lathes and on merits as well. Hence, this appeal.
3. Learned counsel for the appellant has contended that the appellant had filed claim in respect of the land in dispute in Alwar State whose Jamabandis had not been received and it was verified in accordance with the instructions, dated 16-4-1959. After receipt of the record or other intimations, the allotments similarly made were cancelled. Since large number of people wre involved, the Chief Settlement and Rehabilitation Commissioner issued instructions on 12-4-1963 that the allotment shall be restored, original claim would be progressively reduced and if there is any excess area, that shall be sold to the allotees. Learned counsel submitted that the allotment in favour of the appellant is in accordance with the reverified entitlement in pursuance of the aforesaid instructions, dated 12-4-1963. The allotment was made on 2-11-1963 and confirmed on 6- 4-1965. It was, further, submitted that the allotment has been cancelled on the ground that the appellant's father was alive in India in possession of his land and appellant had no right. It was submitted that firstly the appellant's father had died in India and secondly in any case the appellant had filed the claim herself, which had been verified in accordance with the instructions, and she is entitled to remain in peace of the allotment made to her more than 20 years ago.
4. Learned counsel for the Settlement Department has vehemently opposed the appeal and submitted that the writ petition has been dismissed on the ground of 'aches and this Division Bench has no jurisdiction to interfere in the said order. He placed reliance on Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1966 SC 276. It was then contended that the instructions relied upon by the learned counsel for the appellant, dated 12-4-63 are no good law now.
' Those were issued the time when allotment was taken as "grant" but now it has been declared by the Supreme Court of Pakistan that the allotment is in lieu of the land abandoned in India. Reliance was placed on Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others PLD 1974 SC 236. Learned counsel next submitted that the case is concluded by a finding of fact recorded by the Deputy Settlement Commissioner/Chief Settlement Commissioner and upheld by the learned Single Judge. Therefore, there is no jurisdiction to interfere in the said finding.
5. We have heard the learned counsel for the parties at length and perused the record with their assistance. The contentions of the learned counsel for the Settlement Department have to be seen in the background taut the Deputy Settlement Commissioner/Chief Settlement Commissioner and other Settlement authorities, whose orders were brought under challenge before the High Court, have non-suited the appellant on the ground that her father was alive in India in possession of land. But this is not the point. The appellant had filed claim in her own name and it was verified in accordance with the instructions of 1959 on the analogy of Schedule V. When the record or other intimation was received and verification were found not inconsonance with the record, allotments were cancelled. Since that entailed unsettlement of large number of refugees, the matter was taken up by the Chief Settlement and Rehabilitation Commissioner who issued instructions on 12- 4-1963 that orders of cancellation of allotments should be reviewed and allotments restored according to the progressively reduced entitlement leaving first 1,500 P.I. Units intact-- the idea being that the allottees of small holdings, may not be unsettled and rendered destitutes, who had taken refuge and got settled, all over again. These instruction have not been kept in view by Officers of the Settlement Department. The argument with reference w the instructions was made before the learned single Judge but was misdirected towards another angle regarding the application of M.L.R.
89. The learned Single Judge rightly found that he whole of M.L.R. 89 had not been made applicable. The case of the appellant has not been dealt with by the Settlement authorities with reference to the law applicable to the situation. The instructions referred above were not known or ignored. They have gone astray in cancelling the allotment on the ground that the father of the appellant was alive in India in possession and had temporarily visited Pakistan at one time.
Whether that was so or not, is not quite relevant. The relevant point is that whether the claim had been verified by the Central Record office under the instructions issued from time to time and whether the existing allotment in the name of the appellant is within the entitlement everified by the Central Record Office. It is undisputed that the claim had been verified by the Central Record Office. It was reverified under the latest instructions, dated 12-4-1963. The land was reallotted accordance therewith on 12-4-1963 and confirmed on 6-4-1965. No appeal or revision was filed.
Orders became final. The contention of the learned counsel for the Settlement Department that the petition was delayed and the appellant's filing of appeal and revision against the order of the Deputy Settlement Commissioner/ Chief Settlement commissioner was not found sufficient is to be seen in the context that land has not been allotted to anybody else and delay per se is not tal, as held in Mian Miraj-ud-Din v. The Senior Superintendent of police, Lahore District, Lahore and others PLD 1970 Lah. 569 at 580.
The contention that the instructions relied upon by the learned counsel or the appellant have no force because those were issued at the time en the allotment was taken as 'grant' and it is no mere so because it has been declared by the Supreme Court that it is in lieu of land left India, is without force for the reasons that it is factually incorrect. The latest instructions in 1963 were issued when law had already been declared by the learned Supreme Court of Pakistan and these very instructions have been upheld as valid by the learned Supreme Court as late as Muhammad and others v. Settlement Commissioner (Lands) Multan and others 1979 SCMR 245. As regards the contention that the finding of fact recorded by the Settlement authorities as upheld by the learned Single Judge call for no interference is concerned, it is quite correct as far as it goes but it has no relevance to the facts of the case as observed above that the claim of the appellant was verified in accordance with the instructions issued from time to time.
6. In view of what has been stated above, since the law applicable has not been applied, the impugned orders of the Settlement authorities were without lawful authority and of no legal effect.
These are so declared. The appellant is entitled to remain in peace of the little land confirmed to her 20 years ago. The appeal is thus allowed with costs throughout.