In this Constitutional petition order dated 18-3-1979 passed by the Settlement Commissioner
(Land) Punjab, Lahore accepting the revision petition against the order dated 21-2-1974 passed by the Deputy Commissioner/Addl. Settlement Commissioner (Land) with the powers of Chief Settlement Commissioner, Gujranwala, rejecting the Mukhbari application of the petitioners has been challenged.
2. The facts giving rise to this writ petition in brief are that Muhammad Rafiq Khan son of Abdul Aziz Khan deceased who was predecessor-in-interest of the present petitioners was allotted land at Khatas Nos.527 and 637 and other Khatas of RL-II Naushera Virkan Tehsil and District Gujranwala in lieu of his claim verified by the Claims Officer in respect of land left by him in India. The entitlement of Muhammad Rafiq Khan in terms of Produce Index Units was determined to be at 24836 P.I. Units against which the land was allotted to him. On 7-7-1951 respondent No,2 filed a Mukhbari application that the allottee has been allotted land to the tune of 26228 P.I. Units which are in excess of his entitlement. This application was made before the Inspection Team who made a report that the entitlement of the allottee was in fact to the tune of 23015 P.I. Units whereas he was allotted land equivalent to 27566 P.I. Units, as such, land equal to 4551 P.1. Units was in excess. The Addl. Settlement Commissioner by order dated 21-2-1974 dismissed the Mukhbari application. A revision petition was filed before the Settlement Commissioner who accepted the same and held that the allottee was allotted land in excess of his entitlement, therefore, the excess land be resumed and allotted to Mukhbar.
3. It was not on the ground of fraud or false representation committed by the allottee that the land in excess of his entitlement was allotted to him. It was due to miscalculations committed by the Settlement Officer who passed the allotment order. According to para. 3 of the Settlement & Rehabilitation Scheme the Deputy Rehabilitation Commissioner was directed to meet in full the claims of persons who were entitled to an allotment of land upto 20,000 produce index units and above that he would apply a cut of 50 per cent in respect of areas exceeding this limit but in no case the allotment will exceed 36,000 produce index units. The entitlement of the petitioners as reported by the Inspection Team was to the tune of 23015 P.I. Units upto 20,000 produce index units the allotment of land in full was to be made and thereafter the formula of a cut of 50 per cent was to be applied but the same was not applied and in this manner the land allotted to the allottee became in excess of his entitlement. The allottee and for that matter his legal representatives who are the present petitioners could not be deprived of the land allotted in excess of the entitlement of the allottee/complainant, in these circumstances as observed above, there was no question of fraud or false representation whereas the mistake was committed by the officer who allotted the land in miscalculating the entitlement of the allottee in accordance with para. 3 as noted above.
4. The impugned order dated 18-3-1979 passed by the Settlement Commissioner so far as it relates to resumption of excess land and its allotment in favour of Mukhbar cannot be sustained. This writ petition is partly accepted. The order dated 18-3-1979 regarding resumption of excess land and its allotment to Mukhbar is hereby declared to have been passed without lawful authority and of no legal effect and quashed. The quantum of excess land shall be determined according to the above formula and the excess land shall be allowed to be retained by the petitioners. The petitioners shall be allowed to make payment of the price to be determined by the officer concerned under the repealed settlement laws, and the scheme framed thereunder. There will be no order as to costs.