' The facts in brief leading to the institution of this Constitutional petition are that respondent Niaz Ahmad Khan, was allotted land measuring 101 Kanals, 8 Marlas including the land in dispute measuring one Kanal comprising of Khasra No,2553/547 at RL-II Khata No,32 in Mauza Garjakh, Tehsil and District Gujranwala in 1953. As the above said land was in excess of his entitlement therefore, the entire Khata of land measuring 101 Kanals 8 Marlas was cancelled on 31-7-1958 with the consent of Niaz Ahmad Khan and thereafter in 1959 the whole of the abovesaid land measuring 101 Kanals 8 Marlas including the above said land in dispute measuring 1 Kanal was allotted to the petitioner Ahmad Saeed at RL-II Khata No,807/87. The petitioner died during the pendency of this petition and his legal representatives have been impleaded as petitioners.
2. The complication has arisen because after the allotment in favour of the deceased petitioner the land in dispute was not incorporated in the revenue record although the rest of his allotment of land measuring 100 Kanals 8 Marlas was incorporated in the revenue record. In 1979 the petitioner gave an application to the Collector, Gujranwala for the incorporation of the above said land in dispute in the revenue record in his name. After conducting the inquiry and checking the relevant record the EACR/AS-I reported that the land in dispute had been duly cancelled from the name of the respondent and allotted to the petitioner and the entry in the name of the respondent has wrongly continued in the revenue record which needs to be corrected. This report was not controverted by the A.C. (R) but in his report dated 9-1-1980 he recommended the cancellation of the above said Khasra number measuring 1 Kanal from the allotment of the petitioner in view of the Letter No,1624/78/854-R(L) (Settlement and Rehabilitation Wing, Punjab) dated 19-6-1978 issued by Mian Waheed-ud-Din Rathore, Secretary (Rural) (Settlement and Rehabilitation Wing), Board of Revenue, Punjab on behalf of the Chief Settlement Commissioner. The Deputy Commissioner/Collector, Gujranwala vide his order, dated 13-6-1981, following the above said instructions of the Chief Settlement Commissioner cancelled the abovesaid Khasra number from the petitioner's Khata and forfeited it in favour of the State with a direction to the Tehsildar, Gujranwala to incorporate it in the revenue record in favour of the Central Government. It may be mentioned here that the Collector also found that according to the Register RL II at Khata No,807/87, several other Khasra numbers cancelled from Khata No,32 of the respondent were confirmed in favour of the petition including the disputed Khasra No, 2553/547 and all Khasra numbers except Khasra number 2553/547, had been incorporated in the revenue record but due to some mistake or negligence on the part of the revenue staff, Khasra No,2553/547 could not be incorporated in the revenue record in favour of the petitioner. The Additional Commissioner (Revenue) vide his order, dated 24-6-1981 also following the abovesaid instructions of the Chief Settlement Commissioner dismissed the petitioner's appeal in limine. The learned Member (Revenue), Board of Revenue, Punjab, Lahore vide his order, dated 7-12-1981, also dismissed the petitioner's revision in limine. The relevant portion of his order is reproduced below:-- "The petitioner had made application before the D.C./Collector in the year 1979 for correction in the revenue record, by incorporating Khasra No,2553/547 which he claims to have been allotted to him in the year 1958. The whole blame cannot be laid on the revenue officials. This Court is not competent to administer Settlement Act. The counsel for the petitioner has not produced any document showing that since the allotment of their Khasra number the petitioner is exercising right of ownership on it. I see no sound reason to interfere with the concurrent findings of the two lower Courts. The petitioner may seek, if so advised, remedy from the Civil Court of competent jurisdiction or from other concerned authority. The impugned order is maintained and the revision petition is dismissed in limine."
' Hence this Constitutional petition.
3. It is contended by the learned counsel for the petitioner that the above-mentioned instructions of the Chief Settlement Commissioner/Member, Board of Revenue (S and R), Punjab are ultra vires the Displaced Persons (Land Settlement) Act (XLVII of 1958), are without lawful authority and the Courts below have acted illegally in cancelling the land in dispute from the name of the petitioner merely on the basis of the instructions of Chief Settlement Commissioner contained in the abovementioned letter dated 19-6-1978. It is further contended that the land in dispute cannot be cancelled from the petitioner's allotment merely because it was not incorporated in the revenue record dile to the negligence of the revenue staff. It is also submitted that the non-incorporation in the revenue record will not make the allotment in favour of the petitioner as illegal because the revenue record does not create any right or title and the same can be corrected at any time on the basis of the rights or title created in the land independently of the revenue record. It is also contended that the Settlement laws were repealed w,e,f, 1-7-1974 by Evacuee Property and Displaced Persons Law (Repeal) Act (XIV of 1975) and thereafter the Settlement Authorities have no jurisdiction of cancelling any land. Learned counsel has also placed his reliance on Sher Afzal Khan and others v. Haji Razi Abdullah and others (1984 SCM R 228), Malik Shahab Din and 4 others v.
Imdad Ali Ghallu, A.D.C. (G), Bahawalpur and 7 others (1986 CLC 2194) and Muhammad Yaqub v.
Government of Punjab, Colonies Department, Lahore and 3 others (1996 CLC 264).
4. On the other hand, the learned counsel appearing for respondent No, 5 has merely, argued that in case the orders of the Courts below are upheld by this Court and the land in dispute remains cancelled from the name of the petitioner, then the respondent would be entitled to apply for the purchase of the same under section 3 of the abovementioned Repealing Act of Settlement Laws.
5. The letter dated 19-6-1978 under which the land in dispute has been cancelled from the name of the petitioner is reproduced below:-- "No,1624/78/854-R (L), (Settlement and Rehabilitation Wing, Punjab. Dated, Lahore the 19-6-1978.
' From ' Mian Waheed-ud-Din Rathore, Secretary (Rural) (Settlement and Rehabilitation Wing), Board of Revenue, Punjab.
' To
(1) All the wholetime Settlement Commissioners (L)/Addl. Settlement Commissioners (L), Punjab.
(2) All the Deputy Commissioners and Assistant Commissioners (ASC)(L) in the Punjab.
' SUBJECT: ALLOTMENT OF RESUMED LAND TO INFORMERS ETC. ' Mr. A. K. Khalid, C.S.C./Member, Board of Revenue (S and R), Punjab.
MEMORANDUM: ' The Chief Settlement Commissioner/Member, Board of Revenue (S&R), Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is inter, may be deemed to have been obtained fraudulently by antedating the entries in the Register R.L.II and should be cancelled forthwith, after bearing objections, if any, of the so-called allottee.
2. The Chief Settlement Commissioner/Member, Board of Revenue (S&R Punjab, has further been pleased to order that all cases where land has been resumed on Mukhbari applications filed by attorneys of the original claimants, should invariably be submitted to the Chief Settlement Commissioners for such orders as the things necessary with regard to the disposal/allotment of the land so resumed, under section 14(A) of the Displaced Persons (Land Settlement) Act, 1958, read with section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
3. You are therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/Member, Board of Revenue (S&R), Punjab, and take further action in the matter accordingly, without further delay.
(Sd.)
Secretary (Rural), (Settlement and Rehabilitation Wing), B.O.R., Punjab.
No, 1624/78/855/RL, dated 19th June, 1978.
' A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land), Punjab for information and necessary action.
(Sd.)
Secretary (Rural), (Settlement and Rehabilitation Wing), B.O.R., Punjab.
6. The abovementioned letter does not show as to under what law or authority the said instructions have been issued under which it has been directed that any allotment that has not been incorporated in the revenue record before coming into force of the Repealing Act of Settlement Laws or within one year of the passing of the allotment order, it may be deemed to have been obtained fraudulently by anti-dating the entries in the Register R.L.II and the same is to be cancelled forthwith. No such presumption is provided in the statute i,e, the Displaced Persons (Land Settlement) Act (XLVII of 1958). A valid allotment of the land in dispute was made to the petitioner by the Settlement Authority in 1959 at RL-II Khata No,807/87. There is no allegation that it was ever obtained through fraud or misrepresentation and such a presumption being drawn against the deceased petitioner merely on the basis of the abovesaid letter dated 19-6-1978 is illegal. The abovementioned letter/instructions is ultra vires the Displaced Persons (Land Settlement) Act, 1958.
According to section 15(3) of the Displaced Persons (Land Settlement) Act a displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government. This provision shows that if there is a valid allotment the same is permanent and can be cancelled only under any of the provisions as provided in the statute itself and the statute does not provide anywhere that if the valid allotment of land is not incorporated in the revenue record due to the negligence of the revenue staff then the same shall be deemed to have been obtained through fraud or misrepresentation. Similarly section 16 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person.
7. The abovementioned provisions of the Displaced Persons (Land Settlement) Act, 1958 show that vesting of the title in favour of the allottee is permanent and the same cannot be cancelled at the whims of the Settlement Authority and the abovesaid direction/instructions of the Chief Settlement Commissioner as contained in the letter dated 19-6-1978 reproduced above are illegal and without lawful authority and the same are declared to be a nullity in the eyes of law. The writ petition is, therefore, accepted and the above mentioned orders of cancellation of land in dispute from the allotment of the deceased petitioner Ahmed Saeed are set aside and the Collector; Gujranwala is directed to decide the deceased petitioner's application, for the correction of revenue record, afresh in accordance with law keeping in view the observations made by this Court in this judgment. The parties are left to bear their own costs.