' The dispute relates to 44 Kanals urban land situate in Shorkot Shamali, Tehsil Shorkot, District Jhang which was allotted to Nathay Khan petitioner No, 1 on 25-12-1951. He has since died and his legal representatives are being represented by M/s. Muhammad Rafiq Khan and Zafar Iqbal Chaudhry Advocates. In pursuance of this allotment, Mutation No, 446 was sanctioned by the Assistant Commissioner-I in the name of the heirs of Nathay Khan on 18-5-1973.
2. A consolidated Mukhbari application was filed against so many allottees including Mst. Ruqia Begum who was claiming the land in dispute. This Ruqia Begum has died and her legal heirs are represented by Ch. Muhammad Iqbal Vehniwal, Advocate. Mukhbari application of Ruqia Begum was split up. The Settlement Commissioner exercising the powers of Chief Settlement Commissioner by his order dated 13-8-1978 cancelled the disputed land of 44 Kanals under sections 10 and 11 on the ground that this was an urban land and the same could not be allotted to Nathay Khan as against his rural units. While passing the impugned order the learned Settlement Commissioner observed as under:-- "From the perusal of the evidence on record, it has been proved that the claim form of Nathay Khan deceased, was rural claim and the land under dispute was undoubtedly urban land. The respondent was not the temporary allottee of the disputed land and despite a note in Register R.L- II, this urban land was not cancelled and in lieu of that no rural land was obtained by the respondent (Petitioner)."
3. Before cancellation the learned Settlement Commissioner recorded the statements of PW 1 Munshi Muhammad Ayub Patwari, Central Record Office, Lahore, PW 2 Syed Nusrat Ali Shah, Office Kanungo, Tehsil Shorkot, District Jhang and PW 3 Munshi Haji Muhammad Patwari of village Shorkot Shamali, Tehsil Shorkot, District Jhang.
4. I have gone through the order of the learned Settlement Commissioner dated 13-8-1978 and find that the main ground of cancellation is that the urban land could not have been allotted to Nathay Khan as against his rural units. It is established law that the Settlement Commissioner can cancel the land under sections 10 and 11 only if there is fraud or misrepresentation on the part of the allottee. In this particular case the land was urban and the Settlement Department allotted the same as against the rural units of the original allottee. There is no evidence on the record to show that the petitioner ever committed any fraud or made misrepresentation. The allotting authorities knew that the land was urban and the same was being allotted as against the rural units of petitioner Nathay Khan. In this view of the matter the Settlement Commissioner could not have exercised his jurisdiction under sections 10 and 11 by cancelling the disputed land.
5. Ch. Muhammad Iqbal Vehniwal, Advocate for legal heirs of Mst. Ruqia Begum stated at the Bar that his clients are not interested in the land in dispute and that he has already filed an application in this Court under section 151, C.P.C. In this regard. He submits that a direction be issued to the learned Chief Settlement Commissioner for the satisfaction of the claim of the legal heirs of Mst.
Ruqia Begum elsewhere. This application is not on the record but a copy of it dated 5-6-1991 has today been placed before me duly signed by the said Advocate. This is Ex.R. 1 and will be treated as part of this file.
6. As the land in dispute could not have been cancelled by the Settlement Commissioner vide his order dated 13-8-1978 and the legal heirs of respondent No, 2 are also not interested in the same I declare the order of the learned Settlement Commissioner as having been passed without any lawful authority and of no legal effect. The Member, Board of Revenue/Chief Settlement Commissioner is directed to examine the claim of Mst. Ruqia Begum and if she is found entitled to the allotment of the land as against her claim, the same will be adjusted as against available area.
Admittedly the land is in possession of the petitioners for the last 40 years and it will be unjust to desettle them at this stage.
' In view of above the writ petition is accepted. There is no order as to costs.