The facts are that on 27-1-1954 land measuring 17 Kanals 11 Marlas equivalent to 178 produce index units, was, confirmed in the petitioners' name, against their verified claim. On the basis of Mukhbari application, filed by respondent No.2 and Ali Muhammad deceased, now represented by his legal representatives, the Additional Settlement Commissioner (Land) by his order, dated 22-1-1968 cancelled the petitioners, allotment to the extent of 51 produce index units equivalent to 5 Kanals 2 Marlas. He maintained that the petitioner's entitlement, was, of 127 produce index units only, against which they obtained an allotment equivalent to 178 units. They were thus, found in possession of an area equivalent to 51 produce index units, in excess of their entitlement.
2. Before the Tribunal below an argument, was, raised that in the light of the instructions issued by the Chief Settlement Commissioner, the petitioners were eligible to retain the excess land. But this contention was rejected as according to the instructions, on the subject, retention of excess land could only be allowed where some special improvement, such as installation of tube-well, was done. No such improvement was claimed by the petitioners. This order, dated 22-1-1968, is, under challenge in this writ petition.
3. I have heard the learned counsel for the parties. It, is in the impugned order, that the petitioner's "Mukhtar" appeared before the learned Additional Settlement Commissioner and their counsel argued the case. In this behalf, before me, it has vehemently been contended that the petitioners neither appointed any attorney, nor engaged any counsel to represent them in the proceedings before the Tribunal below.
According to the petitioners' learned counsel, a fraud was practised on them and they were neither served nor heard. He also referred to section 11 of the Displaced Persons (Land Settlement) Act, to point out that no order could be made without giving the persons, affected thereby, a reasonable opportunity of being heard. The learned counsel also endeavoured to make some capital out of the delay in giving effect to the impugned order, in the revenue record.
4. On merits the learned counsel contended that it was not a case of allotment obtained by fraud or misrepresentation. He argued that the produce index units of the land of Hoshiarpur District to which the petitioners claim related, later on, as a result of the re-assessment, were enhanced. He further submitted that the learned Additional Settlement Commissioner proceeded on a wholly wrong assumption, that the petitioners held an entitlement of 127 produce index units only. In his submission as per instructions of their Chief Settlement Commissioner, if then, excess allotment comprised only a small area the cases finalised years ago could not be re-opened. In this behalf, he drew my attention to the Chief Settlement Commissioner's Memorandum No.176-64/300-R(L), dated 11-6-1964 and No.176-64/300-R(L), dated 11-1-1964, appearing at pages No.415 and 269 of the Settlement Manual (First Edition by M.A. Latif ) .
5. I have examined the available record to evaluate these arguments. None of the parties have applied for requisitioning of the record of the "Mukhbari" application. It is, therefore, not possible to accept that the petitioners were not duly represented in the proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act, and a fraud was practiced on them. In holding so, I am not unmindful of the fact that the write petition is supported by an affidavit of one Bashir timed, through whom it has been instituted and that the contesting respondents have not filed any written statement. I, however, do not consider it safe to rely upon this affidavit. There is no rule that an unrebutted affidavit, in all circumstances, must be taken as a gospel truth. In such like cases burden heavily lies on the party alleging fraud. In the absence of the record of the Tribunal below and consequential Bench's inability to verify the petitioners allegations from said record. I am unable to strike down on the ground of the fraud, the impugned order, which expressly states that the petitioners attorney appeared before the Additional Settlement Commissioner and pay were also represented by a counsel. It is to be presumed that the presiding Officer below, was satisfied that petitioners were properly presented.
6. As regards the merits of the petitioners case the learned additional Settlement Commissioner on the footing of the record before came to a definite conclusion that the petitioners entitlement was of 127 produce index units only. The learned counsel has not placed before me any order or instruction issued by the Settlement Authorities powering that the produce index units of the area, from which the petitioner hailed, were re-assessed and increased entitling them to the excess land.
My attention has also not been drawn to any such instructions, that where the allotment of excess land detected, of a few Kanals only, it was immune from scrutiny. I have gone through memorandum, dated 11-1-1964. There is nothing therein, to advance the cause of the petitioners.
Under the other Memorandum plied upon by them, the departmental authorities were advised to re-open Tatter finalized years ago, only in case of glaring fraud and misrepresentation. These instructions were primarily meant for the guidance of the subordinate Settlement authorities. In any case these were clarified, vide Memorandum No.7511-65/894-R(L), dated 24-2-1966 another subsequent instructions (See page 275 of the Manual) and it as directed:- "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 thereof ---
7. There are positive indications on the file that the petitioners old land in excess of their entitlement. It was, therefore, for them to established that they were eligible to the excess land. But they lave failed to substantiate their claim, before me. I am, therefore, not dined to hold that the cancellation of the excess land was illegal. Upon the facts of the case, even if the petitioners' contention that a baud was practiced on them, is, accepted, no useful purpose shall be served in remanding the case to the Settlement Authorities for its -hearing. Such a course is bound to lead to an unnecessary prolongation of this litigation.
8. For all these reasons I do not find any merit in this writ petition is dismissed but with no order as to costs.
H. B.T. Writ refused.