' Constitution Petitions bearing Nos.795-R and 1135-R, both of 1977 are interconnected and arise out of the order of the learned Additional Settlement Commissioner dated 5-4-1977 passed in execrise of power as a delegatee of Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act and involve the examination of common question of law and facts, hence arc being disposed of by a common judgment.
2. A few facts essential for determination of these petitions are; that the original right-holder was Mst. Kaniz Batul who came to Pakistan as a refugee from village Salim Pura, Tehsil Narain Garh, District Ambala. She submitted claim of agricultural land left by her in India. She was issued entitlement certificate by the Central Record Room on which the relevant authorities worked out her claim to be of 4684 produce index units (hereinafter referred as P.I.U.) She was allotted argicultural land measuring 359 kanals 12 marlas in revenue estate Sodhan Wali, Tehsil Wazirabad, District Gujranwala by means of RL.II No,90 in satisfaction of 2612 P.I.Us. The proposal was made on 31-10-1953 and the order of confirmation was passed on 26-9-1955. Thereafter, she obtained allotment of agricultural land in lieu of 205 P.I.Us. In the same Mauza. This happened vide R.II No,148/90 on 30-9-1964. She is stated to have died on 19-31962. Her remaining units were mutated in favour of her heirs namely Mazhar Hussain, Mujahid Hussain and Mst. Iqbal Bibi in accordance with Muslim Personal Law. Mazhar Hussain and Mujahid Hussain became entitled to 829 P.I.Us. While Mst. Iqbal Bibi inherited 414 P.I.Us.
3. Thereon Mazhar Hussain was allotted agricultural land in Mauza Dharam Pura, Tehsil Wazirabad, District Gujranwala by means of RL.II. No,60. Proposal in his favour was made on 20-1-1961 and the order of its confirmation was passed on 23-10-1961. The said allottee made the sale of land in favour of Fazal Karim by means of registered sale-deed dated 28-10-1961. Mutation No,422 was attested on 28-11-1961 on the basis of this registered sale-deed by the Revenue authority.
Meanwhile Fazal Karim-vendee passed away on 18-10-1963 and was survived by Barkat Begum, Khan Begum and Shafqat Iqbal in whose favour the mutation of inheritance bearing No,13 was attested on 30-10-1963. The legal heirs of Fazal Karim made the sale of 273 kanals 4 marlas in favour of Shaukat Iqbal and others. Mutation of sale in their favour was attested on 26-9-1973. One Inayat filed a suit for pre-emption in respect of this sale which was decreed on 13-5-1975. This decree-holder is (petitioner) in W.P. No,795- R/77.
4. Mujahid Hussain respondent No,6 in W.P. No,1135-R/77 secured allotment in revenue estate Hardo-Pandoke, Tehsile Wazirabad, District Gujranwala. Proposal was made on 19-3-1962 and order of confirmation was rendered on the same date. This happened vide RL.II No,24, the land allotted to him was 826 kanals 4 marlas. The said allottee made the sale of whole land in favour of Agha Baha-ud-Din through registered sale-deed dated 30-3-1962. Agha Shahid Haroon, Agha Sajid Haroon and Mst. Hijab Yasmin (petitioners in W.P. No,1135-R/77) are the legal heirs of Agha Baha-ud-Din vendee. On 30-3-1974 Sher Muhammad, Hafiz-Ullah and Ghulam Sarwar (herein respondents Nos. 2, 3 and 4 in W.P. No,1135-R/77) submitted a complaint under section 10/11 of the Displaced Persons Land Settlement Act to the Deputy Commissioner/Additional Settlement Commissioner, Gujranwala, alleging therein that Mst. Kaniz-Batool has obtained allotment in Mauza Hardopandoke in excess and prayed that allotment in her favour be cancelled.
5. The learned Additional Settlement Commissioner conducted the inquiry, obtained the verification regarding the entitlement of right-holder from the Central Record Room, undertook the calculation of units which came to be 3645 P.I.Us. On the basis of this inquiry, the learned Additional Settlement Commissioner by impugned order accepted the application, cancelled the allotment in favour of right-holder in Mauza Hardopandoke and Dharamur. He maintained the confirmation of right-holder, in village Sadhanwali. The cancelled and resumed land was equivalent to 829 units which were cancelled proportionately in the aforenoted revenue estates. The petitioners have challenged the legality/validity of this order in the aforenoted Constitution petitions.
6. Mr. A. Waheed Saleem, Advocate, learned counsel appearing on behalf of the petitioner in Constitution Petition No,795-R /77 raised following points:-- ' Firstly, That the Additional Settlement Commissioner cancelled the allotment on the ground of miscalculation of units. According to the learned counsel it was the case of no party that Mst. Kaniz Batool the original right-holder had committed deception or practised misrepresentation on Settlement Authorities in the calculation of units. According to the learned counsel the provisions of sections 10 and 11 of the Displaced Persons Land Settlement Act were not attracted to this case.
' Secondly, It was then maintained that even if it was a case of excess entitlement the case was not covered by section 10 of the Act of 1958 but fell within the ambit of section 11 of the Act. On the basis of this, it was canvassed that the informer had no right under section 14-A of the Displaced Persons Land Settlement (Amendment Ordinance) (VI of 1974) to seek allotment in preference to the petitioners/vcndees who were entitled to purchase this land as occupant under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 ' Thirdly, The allotment in favour of right-holder was neither challenged in appeal nor in revision and so it became immune from further attack.
7. Mr. Jamshed Ali, Advocate appearing on behalf of the petitioners in W.P. 1135-R/77 placed emphasis on the following points:-- ' It was contended that the learned Additional Settlement Commissioner had committed error of law by determining the entitlement of original right-holder by calculating Morousi ({{URDU TEXT}}) land abandoned by the right-holder in India on 1/2 basis. This method of calculation was resorted to without any factual basis and without regard to para. No,31 of West Pakistan Rehabilitation and Settlement Scheme, 1956. According to the learned counsel, this factual finding by the Additional Settlement Commissioner was built upon totally unfoundational premises. Learned counsel strongly suggested that on this ground the impugned order was totally coram non judice and merited to be set aside. Reliance was palced on Sher Muhammad v. The Chief Settlement Commissioner and others 1971 SCM R 339, Raza Muhammad v. Deputy Commissioner/Settlement Commissioner (Lands) and another 1980 SCM R 629, Ali Muhammad and others v. The Additional Commissioner (Consolidation) with powers of Settlement Commissioner and others 1985 SCM R 1128. It was then contended that the informers had no right to seek allotment of land so resumed if the land was cancelled on the basis of any other reason except fraud and misrepresentation.
8. Sh. Abdul Aziz, learned counsel appearing on behalf of informers/respondents strenuously supported the impugned order. He strongly relied upon two circumstances, firstly, that both the sides have accepted the calculation made by the Additional Settlement Commissioner to be correct. In view of this circumstance, the learned counsel asserted that the petitioners were precluded to raise the question of calculation of units on the principle of approbation and reprobation. Secondly, it was stated that the excess allotment was one of the species of fraudulent allotment. It was contended that once the allottee came to know that his allotment was in excess of his/her entitlement, this retention tantamounted to keeping ill-gotton claim. Strength was sought from Chotu v. Chief Settlement Commissioner, Lahore and 6 others 1978 SCM R 350, Dahla v.
Settlement Commissioner and others 1983 SCM R 1039 and Muhammad Siddique v. Officer Incharge Central Record Office Lahore and others 1984 SCM R 319.
9. Regarding the point of informer, it was urged that the informer had a vested right to secure the allotment of land cancelled and resumed by the Authority in proceedings under section 10/11 of the Displaced Persons (Lane Settlement), Act. The reference was made to the rule laid down in Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214 and Barkat Ali and others v. Syed Shahzad Nazir and others 1981 SCM R 693.
10. Learned counsel appearing on behalf of the Settlement Department also supported the impugned decision with usual vigour.
11. I have heard the learned counsel for the parties at a considerable length and had perused the record of the case. Fortunately the subtantial portions of facts are admitted. Neither there is a dispute with respect to genuineness of claim of right-holder nor there is a quarrel with respect to the fact that the right-holder was neither privy to calculation of units nor she had made any misrepresentation or committed fraud while securing the allotments. Similarly there are no such allegations against the vendees. Add to it, all the parties seem to have admitted the calculation of units made by the Additional Settlement Commissioner. In the context of aforesaid factual background, it is clear that the parties themselves induced the Additional Settlement Commissioner to undertake the exercise of calculation of units and accepted his calculation. So, the petitioners are not entitled in constitutional jurisdiction to turn back and challenge this calculation in Constitutional jurisdiction on the principle of approbation and reprobation. Reference be made to Hafeez-ud-Din v. Mian Khadim Hussain, Additional Deputy Commissioner, Lahore and another PLD 1965 Lah.
439. The contention of the learned counsel for the petitioners in regard to calculation of units is hence found to be totally untenable and is hereby repelled.
12. Coming to the second contention, it is well-known that right of informer to the allotment of land resumed was introduced by section 14-A of the Displaced Persons (Land Settlement) Act, which was added by Act LV of 1973 which is as follows:-- "(1-A) Where, on the information of a claimant about any bogus or fraudulent allotment of land, the information has been proved to be correct and the land so acquired has been cancelled and resumed by the competent authority, the resumed land shall be allotted to the informant to the extent of his claim pending for allotment in the same Province."
This section was further amended by the Displaced Persons (Land Settlement) (Amendment)
Ordinance VI of 1974 and is as follows:-- "(1-A) Where at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973) any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled--
(a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resume land has already been allotted to some other person, to the allotment to the extent, of such other land available for allotment in the same Province as he may choose; and
(b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."
' This section was retained more or less in the same form by the Displaced Persons (Land Settlement) (Amendment) Act, XXXIX of 1974. The aforesaid law i.e, Displaced Persons (Land Settlement) Act was repealed by Evacuee Property and after hearing the learned counsel for the petitioner we are satisfied that Displaced Persons Law (Repeal) Act XIV of 1975. The relevant subsection (2) of section 2 in this Act is caste in following words:- 2(1) .
2(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
2(3) ......................................
13. If the contention is examined in the light of aforenoted legal provision, it becomes clear that the right of informer to receive the land was conferred under section 14-A, wherein it was prescribed that the informer shall be allotted resumed land to the extent of his pending claim or be allotted any available evacuee land in the Province. This right was dependent upon the conclusion of his information to the effect that allotment had been secured through practising fraud or allotment was bogus meaning thereby that it was a sham transaction. It is further clear that right to purchase the resumed land was bestowed on occupant under section 3 of Act XIV of 1975. This was subject to the result of proceedings pending under section 10 of the Act, 1958. The right of purchase granted to an occupant is consequent to the right of informer. Reference may be made to the rule enunciated in Shah Nawaz and others v. Member, Board of Revenue PLD 1978 SC 286 and Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214. The question is as to whether the allotment secured in excess of entitlement on account of miscalculation of units came within the ambit of section 10 of the Displaced Persons (Land Settlement) Act, 1958. This question came into consideration in Mst. Nasiran v. Mst. Rabia etc. 1978 Law Notes SC 47. It is necessary to examine the case in detail. Mst. Nasiran, in this case, lodged an information against Abdul Majid under section 10/11 of the Displaced Persons (Land Settlement) Act. In pursuance thereof, the learned Additional Settlement Commissioner held that said Abdul Majid had obtained the allotment of land in excess of his entitlement and resumed the excess land from his name. He further observed that since Abdul Majid had not obtained the allotment through fraud and it was only due to miscalculation.
He, therefore, rejected the claim of informer for allotment of excess area allotted to right holder. The petitioner filed a Constitution petition challenging the order to the extent of refusing to transfer the excess land to her as informer. This petition was dismissed by the learned Single Judge of the High Court. Undetered, Mst. Nasiran filed C.P.S.L.A. Before the Supreme Court which was also dismissed. It was held by the Supreme Court:-- the impugned order passed by the High Court was unexceptionable under section 10(1-4) of the Displaced Persons (Land Settlement) (Amendment) Act, 1974, an. Informer is entitled to the transfer of the excess area only if the allotment of the cancelled land was found to have been obtained by fraud or was bogus. In the instant case, the Additional Settlement Commissioner was of the opinion that the excess land obtained by Abdul Majid deceased was due to the miscalculation on the part of the field staff and not due to any fraud practised by him. In this view of the matter this petition has no force and is dismissed."
' The same view was reiterated in Muhammad Siddique v. Officer Incharge Central Record Office, Lahore and another 1984 SCMR 319.
14. Applying the principle laid down in the aforenoted authorities to the facts and circumstances of this case, I have no difficulty in reaching the conclusion that Mst. Kaniz Batul did not obtain the allotment by means of fraud or by commission of misrepresentation on the Settlement Authorities.
Excess allotment was made .Due to inadvertent error of the field staff. So, this case fell within the sphere of section 11 of the Displaced Persons (Land Settlement) Act, 1958. I have, therefore, no doubt in my mind that the informer has no vested right to claim the allotment of excess area.
15. Now I revert, as to what is the right of respondent/informer in the context of circumstances and facts noted above. There is no cavil with the fact that the informer submitted application before the target date; that the informer was the owner of a pending claim; that in pursuance of informer's application, excess settlement was found. The informer, therefore, had a right to seek allotment of evacuee land available within the territory of Province of Punjab. From the plain look at section 14- A, it is clear that if the informer cannot seek allotment in respect of land resumed, he is entitled to seek allotment of available evaucee land within whole of the Province to the extent of his pending units. If it cannot be done, he is entitled to cash award of such amount as the Chief Settlement Commissioner may decide.
16. From the facts and circumstances of the case noted above, I am of a considered opinion that the informer's claim is pending, he is entitled to its satisfaction against the evacuee available land within the Province of Punjab under the repealed laws. His case may approach the Member, Board of Revenue/Chief Settlement Commissioner for securing allotment in lieu of his claim.
17. Having dealt with the aforenoted contentions, the only question left for determination is as to what relief the petitioners are entitled. It has already been concluded that the impugned order of the Additional Settlement Commissioner to the extent of miscalculation of units is eminently just, correct and in consonance with law. From the study of the impugned order, it is clear that the learned Additional Settlement Commissioner had not granted the benefit of 10% increase in such excess. It is a well-recognised principle of settlement that if the allotment is found to be in excess due to miscalculation of P.I. Units the allottee is entitled to 10% excess on his entitlement under the provisions of West Pakistan Rehabilitation and Settlement Scheme, 1956.
18. Applying this principle to the facts of this case, it is evident that the right-holder had secured allotment in lieu of 4684 P.I. Us. The Additional Settlement Commissioner had worked out .Her entitlement to be 3645 P.I. Units. She was entitled to the benefit of 10% i.e, 365 P.I. Units. Excess allotment was found to be 820 units. This excess area was cancelled in two revenue estates in equal proportions. To this extent the impugned order cannot be sustained. I accordingly set aside the impugned order of cancellation to the extent of 365 units and maintain the order to the extent of 464 units in Mauza Dharmpur and Hardopandoke. The excess land shall be treated as cancelled in two revenue estates in equal proportions. The vendees are entilted to purchase the land under occupation under section 3 of the Act XIV of 1975, in accordance with their rights.
19. In the light of foregoing analysis, these petitions are accepted, the impugned order to the extent indicated above is hereby set aside, the land resumed shall be sold to the petitioners/vendees who are admittedly in occupation of the land, in accordance with law. There shall be no order as to costs.