' This writ petition is directed against order dated 29-11-1973 of the Settlement Commissioner with powers of the Chief Settlement Commissioner, whereby he cancelled the area equivalent to 239 P.I.Us allotted to the petitioner in lieu of his mortgagee units at Khata No,68/22/47 of Mauza Adhopari, Tehsil Depalpur, District Sahiwal and maintained order dated 1-11-1972 of the Additional Settlement Commissioner (Lands), Sahiwal passed in appeal against order dated 21-3-1972 of the Chairman, Allotment Committee, Depalpur.
2. The relevant facts in brief, giving rise to this petition, are that Guddar the predecessor-in-interest of the petitioners, had verified claim equivalent to 2203 P.I.Us of the proprietary area, and 577 units of mortgagee rights. He secured allotment of land in adjustment of his claim in three villages namely, Shahpur, Tehsil Depalpur (924 P.I.Us), Marook Kalan (586 P.I.Us) and Adhopari (598 P.I.Us).
He also obtained allotment of land equivalent to 239 P.I.Us in lieu of his mortgagee rights. On 21-3- 1972 the Chairman, Allotment Committee, noticed that he had obtained allotment of area for more than 1000 P.I.Us, therefore, he was not entitled to retain the area allotted to him against his claim for 239 P.I.Us. He accordingly cancelled the same from Khata No,68/22/47 of Mauza Adhopari, Tehsil Depalpur, District Sahiwal and simultaneously allotted and confirmed the same in favour of Hussaina son of Bahadar respondent No,4. This order was maintained in appeal and revision as aforementioned. Hence this petition.
3. Learned counsel for petitioners contended that the first order passed by the Chairman, Allotment Committee was without notice to the allottee. He also submitted that by virtue of letter dated 18-5- 1962 the mortgagees were given option to have proprietary rights in respect of the land allotted to them in lieu of that claim and he having already obtained the allotment was entitled to retain the same. It was also contended that the Settlement Commissioner exercising powers of the Chief Settlement Commissioner could not pass the impugned order with retrospective effect so as to validate the order passed by the Chairman, Allotment Committee which was otherwise legally untenable.
4. Learned counsel appearing on behalf of the contesting respondents, on the other hand, pointed out that it is for the first time that the petitioner claimed his entitlement on the basis of a letter issued on 18-5-1962. This point had never been urged previously and could not be pressed into service for the first time in writ jurisdiction. It was also submitted that the counsel for petitioner (Ch. Noor Elahi, Advocate) on 1-12-1972 had conceded before the Additional Settlement Commissioner (Lands), Sahiwal that the area allotted in lieu of mortgagee rights by the Deputy Settlement Commissioner (Lands) Depalpur was rightly cancelled and consequently his appeal was dismissed. It was submitted that the petitioner did not place on record till today affidavit of Ch. Noor Elahi, Advocate controverting the statement made by him before the Additional Settlement Commissioner, the petitioner is, therefore, estopped to re-agitate the matter any further. It was also submitted that Guddar had already got allotted land for more than 2000 P.I.Us whereas the respondent was allotted aforementioned piece of land only. It would be a matter of extreme hardship if he is derived from that piece of land at this stage. It was lastly argued that the Chief Settlement Commissioner was undoubtedly competent to cancel the area got allotted by Guddar in violation of para.7 of the Rehabilitaiton Settlement Scheme.
5. I have heard learned counsel for the parties and have gone through the documents on the file.
The provisions of para. 7 of the Rehabilitation Settlement Scheme read as follows:- "A Muslim mortgagee of both Muslim and non-Muslim mortgagor of land in the prescribed area will not be eligible for an allotment of land under the Scheme but he may be allotted land on such terms and conditions as the Rehabilitation Commissioner, West Pakistan may prescribe according to the area held by him under the mortgage subject to a maximum of 1000 produce index units. In case any and is allotted to such a mortgagee on the basis of an independent right under the Scheme the land so allotted shall be taken into account for the maximum limit specified above.
Similarly a mortgagee of occupancy or other specified rights will also be treated as an ordinary mortgagee for the purposes of the Rehabilitation Settlement Scheme."
Admittedly petitioner obtained allotment of land for more than 2000 P.I.Us in different villages. He was, therefore, not entitled to the allotment of land against his mortgagee rights at the relevant time under para. 7 of the afore mentioned Scheme. The allotment of the land was, therefore, liable to cancellation by the Chief Settlement Commissioner or his delegatee. It was so cancelled by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner. The subsequent letter referred to by the learned counsel for petitioners enabling the allottees of the land in lieu of the mortgagee rights for exercising their option to purchase the land so allotted did not override the prescribed limit of the allotted area equivalent to 1000 P.I.Us. It is also established on the record that Ch. Noor Elahi, Advocate counsel for Guddar conceded before the Additional Settlement Commissioner, Sahiwal that the mortgagee units were rightly cancelled by the Deputy Settlement Commissioner (Lands), Depalpur. Neither affidavit of the counsel nor any other document was placed on the record to show that he did not make such a statement which otherwise was specifically incorporated in the judicial order dated 1-11-1972 of the Additional Settlement Commissioner. The petitioner, therefore, could not re-agitate this matter.
' Even on the principle of equity the petitioner was allotted land for more than 2000 P.I.Us in different villages as against respondent No,4 who had been allotted the aforesaid land on 21-3-1972 in lieu of his valid claim. His claim having been rightly settled in 1972 it will be a matter of great hardship if he is derived from that area after lapse of about two decades.
6. In the result, I feel not inclined to exercise discretionary jurisdiction in favour of the petitioners so as to interfere in the impugned orders passed by the Settlement authorities and dismiss this petition with no order as to costs.