1. MUHAMMAD AFZAL ZULLAH, CJ: --This appeal through leave of the Court is directed against a judgment of the High Court; whereby in a land settlement case the respondents' side was allowed to retain area in excess of entitlement; notwithstanding the appellant informer side having not yet been able to satisfy their P.I. Units.
2. The facts and points noted in the leave grant order are as follows:--- The appellant laid information before the settlement authorities that Mst. Lalan had obtained allotment of land much in excess of her actual entitlement. The Additional Settlement Commissioner held an inquiry and found that she had obtained allotment in excess of her entitlement to the extent of 986 units. Accordingly, he cancelled the excess allotment and directed that the area becoming so available should be given to the appellant. His order was challenged in appeal by Jamal Din, predecessor-in-interest of respondents Nos.1 to 5, and some others but their appeal was dismissed. Jamal Din and the daughter of Mst. Lalan filed a writ petition in the High Court. Their case was that the excess allotment had been obtained on account of miscalculation of produce index units involved in the allotment and that under the instructions issued by the Chief Settlement and Rehabilitation Commissioner they were entitled to purchase the area which they were being made to surrender. A learned Single Judge in the High Court accepted the writ petition and remanded the case to the Settlement Commissioner for re-decision.
3. After the remand the Settlement Commissioner took the view that it was not a case of miscalculation but one of concealment of true entitlement. Accordingly, he upheld the earlier order of the Additional Settlement Commissioner. The order of the Settlement Commissioner was once again challenged in writ jurisdiction. A learned Single Judge set aside the order of the Settlement Commissioner and directed that the excess area should be sold to the allottees at the rate of Rs.100 per produce index unit in four equal instalments to be payable within two years.
4. In support of this plea it was contended that there was a definite finding by the Settlement Commissioner that the excess allotment had been obtained through misrepresentation and that it was not open to the High Court to interfere with this finding in writ jurisdiction. Apart from that, an informer had a statutory right to obtain the land becoming available as a result of the information supplied by him. The order of the learned Single Judge had the effect of depriving the appellant of this statutory right.
5. After reading of the leave grant order both the learned counsel were put on notice that we would hear a further question: as to whether in the circumstances of this case the High Court should have exercised its discretion in writ jurisdiction in favour of the respondents' side?
6. As is apparent from the record, there is a finding of fact that the respondents' side had obtained land in excess of their entitlement. The factual controversy, as to whether there was or was not any fraud or misrepresentation, does not make much difference.
7. It has been ruled in number of cases that when in the same matter a claimant having unsatisfied P.I. Units is pitched against a claimant who after having received his entitlement, seeks additional land or seeks to retain land already obtained in excess of the entitlement the former would have preference both in law and in propriety. This answer would resolve .All the questions which arise in this case.
8. The appellant being informer and claimant would be entitled to utilize the land in dispute for the satisfaction of his unsatisfied P.I. Units in preference to the respondents retaining area in excess of their entitlement. The High Court, 'therefore, to say the least, should not have exercised its discretion in Writ jurisdiction in favour of the respondents. Accordingly, we partly allow this appeal with the direction that if in case till now the appellant's unsatisfied units have already been satisfied, the land would be left with the respondents in accordance with the directions of the High Court. The same principle would apply mutatis mutandis to any part of the appellant's claim and the corresponding part of the excess land. There shall be no order as to costs.