MUHAMMAD AFZAL ZULLAH, J.----The petitioners claim to be the successors-in-interest of one Muhammad Baqir, a right-holder, who died 12 or 13 years ago. In lieu of the verified claim of Muhammad Baqir, land was allotted in Tehsil Pakpattan.. Some surplus units of the right-holder lying in Dera Ghazi Khan were also alleged to have been transferred to Tehsil Pakpattan.
Muhammad Zaman Khan and Muhammad Saleem Khan respondents filed a complaint in or about January 1963, alleging that the allotment of land was in excess of the entitlement of Muhammad Baqir. On this complaint, the claim of Muhammad Baqir was sent to the Central Record Office for re-verification. On re-verification, it was reported that the allotment was, in fact, in excess of the entitlement of Muhammad Baqir. The matter was pending before the Deputy Commissioner, presumably exercising the delegated powers of Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, when 'the petitioners approached the Chief Settlement Commissioner in November 1963, by means of a direct application, seeking the stay of proceedings before the Deputy Commissioner. It is significant that in this application, the re-verification from the Central Record Office was not disputed. The Chief Settlement Commissioner, it is averred in this settlement revision, stayed the proceedings before the Deputy Commissioner "and proceeded to examine the matter himself." During the pendency of these proceedings, the petitioners filed another application in April 1964, stating that due to earlier miscalculation by the Central Record Office, excess land was allotted to them and that on re- verification the excess units having been found out, the land allotted to them in excess of their entitlement be allowed to be purchased by them, because they had invested a large sum of money for bringing the land under cultivation. The Chief Settlement Commissioner, after a prolonged enquiry, passed the order on the 19th of May 1967, which is reproduced below:- "The Chief Settlement and Rehabilitation Commissioner is pleased to vacate the status quo issued vide this office memo under reference. The land held by the claimants in excess of their entitlement should be cancelled and utilised for settlement of pending claims."
This order has been impugned by means of the present settlement revision. In order to satisfy ourselves with regard to the nature of the proceedings before and order passed by the Chief Settlement Commissioner, the file was sent for on the 8th of November 1968. The records have been perused. The learned counsel for the petitioners has made the following statement:- "I have received the instructions from Hazir Khan who is the attorney of the petitioners and is present in Court. It is admitted that the petitioners have been allotted 1160 units in excess of their entitlement and the finding of the Chief Settlement Commissioner in this behalf, as is on the record, is correct."
2. In spite of the above factual position, the learned counsel has contended that the order of Chief Settlement Commissioner is bad in law, because the petitioners were not given an opportunity of hearing. Reliance is placed on proviso to sub--section (1) of section 11 of the Displaced Persons (Land Settle--ment) Act which requires reasonable opportunity of hearing before the cancellation of an allotment. In this case, the Chief Settlement Commissioner passed the order on the application of the petitioners. It appears from the file that they remained in touch with the proceedings before the Chief Settlement Commis--sioner and occasionally made applications.
The application of April 1964, referred above, clearly shows that the re-verification by the Central Record Office was not disputed. Similarly, the initial application contains an averment that the re- verification was correct. In these circumstances, particularly when the petitioners themselves were the applicants and remained in touch with the proceedings, they cannot complain that the order has been passed without hearing them: What is a reasonable opportunity, depends upon the circumstances of each case. We are satisfied that the petitioners in this case had sufficient opportunity of hearing before the Chief Settlement Commissioner. Therefore, there 's no substance in this contention of the learned counsel.
3. Next it was contended that the Chief Settlement Commis--sioner had, by his order, dated the 8th of January 1965, allowed the petitioners to purchase the land in excess of their entitlement. In presence of this order, according to the learned counsel, the Chief Settlement Commissioner could not pass an order of resumption of the excess land. The so-called order which the learned counsel has relied is, in our view, not a final order passed by the Chief Settlement Commissioner. On the 2nd of December 1964, the Deputy Settlement Commissioner (Rural; submitted a lengthy report to the Settlement Commissioner (Lands). In this report after narrating the circumstances of the case which included the fact that the allotment in favour of the petitioners was in excess of the entitlement, the Deputy Settlement Commissioner made the following suggestion:- "Chief Settlement Commissioner may, therefore, kindly consider to allow the land to remain with the petitioner in the alternative the request of the petitioner to permit him to purchase the land at the rate of Rs. 10 per P. I. Unit, etc., it the circumstances of the case is for consideration and orders."
The Settlement Commissioner passed this note on to the Chief Settlement Commissioner who wrote "as proposed". This so---called order of the Chief Settlement Commissioner is not dated.
However, the subsequent endorsement of the Settlement Commis--sioner (Lands) underneath this order is dated the 8th of January 1965. The suggestion of the Deputy Settlement Commissioner, quoted above, has been found to be side lined and marked as `A' on the file. It appears that the Chief Settlement Commissioner did not apply his mind to the facts narrated in the report; nor did he consider the two alternative proposals made by the reporting officer. His order, i.e., "as proposed", is meaningless, because both the proposals indicated by margin line `A' could not be accepted at the same time. After this, the matter went to the Acquisition Branch of the department where the doubt arose as to the nature of the order passed by the Chief Settlement Commissioner; and before the said order could be communicated to the field staff for implementation, the matter was reconsidered. The Deputy Settlement Commissioner again submitted a detailed note to the Settlement Commissioner (Lands) on the 30th of March 1967. The Settlement Commissioner (Lands) agreed with the note of the Deputy Settlement Commissioner and sent the case to the Chief Settlement Commissioner for orders who thereupon passed the impugned order. In the note of the Deputy Settlement Commissioner, dated the 30th of March 1967, it was clarified that the excess being of 1160 units could not be treated as "only petty case of small excess"; therefore, the instructions, relating to the sale of excess land to the allottees, then in force, could not help the petitioners. In the circumstances narrated above, the order of the Chief Settlement Commissioner, dated the 8th of January 1965, relied upon by the learned counsel for the petitioners, is of no avail to the petitioners; because it does not appear that he applied his own mind to the facts of the case. E He appears to have mechanically approved a report of the Deputy Settlement Commissioner. In this connection, the ruling of their Lordships of the Supreme Court in Ghulam Mohi-ud---Din's case (PLD 1964 SC 829), can be referred with advantage. Their Lordships in that case set aside an order of the Chief Settlement Commissioner, on the ground that he had not applied his independent mind to the questions involved in the cage and that he had only counter- -signed a note put up by a Settlement Commissioner (Policy). We find that the impugned order, dated the 19th of May 1967, was passed by the Chief Settlement Commissioner after a thorough consideration of the whole matter. In this context, it is necessary to mention that the Settlement Commissioner while passing on the matter to the Chief Settlement Commissioner had indicated that the note of the Deputy Settlement Commissioner, dated the 30th of March 1967, be read with the previous note of the same officer, i.e., the report, dated the 2nd of December 1964, referred above. We have ourselves perused the Memo. No. 176-' 4/300-R(L), dated the 11th of January 1964; Memo. No. 5641-64/6233-R(L), dated the 10th of December 1964: Memo. No. 7511-651894/R(L), dated the 24th of February 1966; and Memo. No. 7511-66/239-R(L), dated the 6th of May 1966, issued by the Chief Settlement Com--missioner from time to time. Instructions from 1959 to 1962 have already been fully considered in Sattar's case (PLD 1966 Lah. 750). The petitioners could not, in our view, be held entitled to the purchase of the excess land.
4. Lastly, the learned counsel contended that the allotment in favour of the petitioners having been confirmed, it should be treated as settlement under sections 15 and 16 of the Displaced Person's (Land Settlement) Act; and that being the case, the allotment could not be cancelled. The precise argument is that under section 15, after the -allotment, the Settlement authority settles the displaced persons permanently on the lands and thereafter under section 16 that land "vests in the allottees absolutely". The learned counsel only stated this proposition and did not support the contention by any cogent reasons. In fact, he raised this contention after having made the statement mentioned above. It appears to be the last attempt of saving the allotment by means of a technical plea, in spite of the fact that the said allotment was in excess of the entitlement.
5. We do not agree with the contention of the learned counsel. The permanent settlement of the allottee on the land under section 15 or the vesting of that land in the allottee under section 16 are, in no way, independent incidents and cannot be said to be unconnected with the other provisions of the Act. Sections 10 and 11 were enacted simultaneously with the enact--ment of sections 15 and
16. It is true that in subsection (3) of section 15, which deals with the permanent settlement, or in section 16, the words "subject to the other provisions of this Act" are not mentioned, yet these provisions by the very nature of the matter dealt therein are subject to the other related provisions of the Act. These related provisions, undoubtedly, amongst others are sections 10 and 11. This conclusion is supported by the provisions of subsections (1) and (2) of section 15 which read as follows:- "(1) A Settlement Authority specially empowered by the Chief Settlement Commissioner in this behalf, shall in respect of such verified claims against which no allotment has been made before the commencement of this Act, proceed to make an allotment to the displaced persons concerned in accordance with any of the Schemes executed under section 14.
(2) Subject to the provisions of subsection (1) of section 11, an allotment to a displaced person under subsection (1) shall be made on the basis of his entitlement as determined 0under this Act, or the rules made thereunder.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
If read together, the above-quoted two subsections provide that the allotment to a displaced person can be made, only on the basis of his entitlement. In other words, the allotment cannot be more than the entitlement. Moreover, this allotment has been mentioned, as being subject to the provisions of subsection (1) of section 11. Subsection (1) of section II provides for the cancellation, termination, amendment or variation of the allotment made under a Scheme or under the Act.
Therefore, it is apparent that the settlement, which takes place under sub--section (3) of section 15, is subject to section 11. The omission of section 10 from subsection (2) of section 15 will not make any difference, because section 10 deals with fraud and misrepresentation which, if proved, vitiate all proceedings. Under the general principles also, the provisions of that section could not be made subservient to the provisions of section 15, because the Legislature did not intend the settlement to take place if the allotment was tainted with fraud. In this very connection, it is significant to note that section 16, which deals with the vesting of the land in the allottee after settlement, pro--vides that the vesting will take place, notwithstanding anything contained in any other law. It does not provide that the vesting: will take place, notwithstanding anything contained in the Act itself. Had the Legislature intended that section 16 was not subject to sections 10 and 11, some words indicating that intention could have been added to the phrase "notwithstanding" anything contained in any other law". Therefore, it is clear that sections 15 and 16 are subject to the provisions contained in sections 10 and 11 of the Act.
The same conclusion is reached by another reasoning. Sub--section (3) of section 15 provides for permanent settlement of 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 Settle--ment Authority under subsection (1)." (of section 15).
Evidently, if the allotment which is the subject-matter of the settlement is in excess of the entitlement of the displaced person, it could not be considered to have been made under the Rehabilita--petition Law or under the Settlement Law. Under the Rehabilitation Scheme prepared by virtue of the Rehabilitation Laws, a person could not be allotted more than what he was entitled to. Similarly, under subsection (1) of section 15 read with subsection (2) thereof, a person could not be allotted any land in excess of his entitlement. Keeping these provisions in view, one cannot escape the conclusion that the allotment in excess of entitlement being not under the relevant laws, could not be made the subject of permanent settlement. If it could not be made the subject of permanent settlement, it could not, at all, be made the subject of the absolute vesting provided in section 16; because that vesting can take place only if there is a permanent settlement. Thus allotment of land in excess of entitlement cannot be made the subject of permanent settlement or that of absolute vesting.
Apart from the above reasoning based on the provisions of sections 15 and 16, the excess allotment cannot be made the basis of permanent settlement because of another reason relating to appeal etc. There is no warrant for the proposition that any Rehabilitation or Settlement authority has any power of making the allotment of land in excess of entitlement, subject, of course, to permissible discretion relating to increase or decrease of a certain percentage a reference to which will be made hereinafter. If such an authority allots the land in excess of entitlement, it will be without lawful authority. If that is so, the basic order of allotment will lose its legal effect. Any subsequent order passed on the basis of such a defective allotment will also lose its legal effect and could not be made the basis of a valid defence. In almost similar circumstances, it was observed in Yousaf A.I v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104):- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subse--quent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.
We have already held that the language of sections 15 and 16 does not provide any validation to allotments made illegally under the relevant laws. That being so, the observations of the Supreme Court are fully applicable to the present case and the petitioners cannot take benefit of anything contained either in sections 15 and 16 of the Act, or the provisions contained in Chapter VI of the Act. These provisions cannot have the effect of repealing sec--tions 10 and 11 of the Act.
6. There is another aspect of the matter. We have noticed that in section 15, it is provided that a permanent settlement shall not take place in the case of an allotment made under a Scheme framed under the Pakistan Rehabilitation Act of 1956 on the Baluchistan Rehabilitation Regulation of 1960, if that allotment is the subject-matter of an appeal, revision or review before a Rehabilitation authority. It appears that the Law-makers assumed that under the Displaced Persons (Land Settlement) Act, the allotments are subject to the provisions of sections 10 and 11 and also the provisions relating to appeal, revision and review; but they are not subject to appeal, revision and review as provided by the Rehabilitation Act; therefore, they specifically provided for the allotments which were not yet final under the Rehabilitation Act and did not touch the subject of the finality of the allotments dealt in the Displaced Persons (Land Settlement) Act itself. It cannot, of course, be argued that the allotment made under the Displaced Persons (Land Settlement) Act, if being subject-matter of an appeal, revision or review, can be made the subject of permanent settlement under section 15. But this exception is not mentioned as one of the exceptions under the proviso to section 15; apparently because it was not necessary, in view of that section being subject to the other related provisions of the Act. Similarly, it can safely be assumed that that section is also subject to sections 10 and 11 of the Act which are undoubtedly related to the subject of allotment.
There is another view of the matter. A Scheme can be made for allotment of lands to displaced persons against their verified claims, under section 14 of the Act. The Settlement authority makes the allotment in pursuance of the Scheme so made, by virtue of the power given in subsection (1) of section 15. The Settlement Scheme made under section 14 has adopted almost the, entire Scheme prepared under the Rehabilitation Act of 1956. In that Scheme, it is provided in sub-para.
(c) of para. 4 Chapter II of Part I that if an allottee is, at any time subsequent to the allotment, found to have been allotted land in excess of what may actually be due to him, the Allotment of the excess area shall be cancelled and, if necessary, he will be dispossessed thereof. Sub--para. (5) of para. 16 of part II of the Scheme Provides that the allotting authority, in determining the area to be allotted, should keep in mind that the subject of allotment being of exceptional nature and absolute exactitude being impossible, a discretion to increase or decrease the area by about ten percent was permis--sible, of course, keeping in view the location and quality of land to be allotted and also the quality and location of land left by the claimant. Reading the two provisions together, no doubt is left by the framers of the Scheme that the allottees cannot be allowed to retain the excess area, subject of course to the dis--cretion allowed in sub-para. (5) of para: 16 mentioned above. The Settlement Rehabilitation Scheme has, by now, attained the status of a complete code, and we have no doubt in our mind that it is a part of the law relating to the Rehabilitation and Settlement of the displaced persons. If full effect is given to these provisions of the Scheme, the area in excess of entitlement, subject of course to the ten percent increase or decrease, which increase or decrease is subject to the discretion of the authority concerned, cannot be retained by the petitioners.
There is yet another aspect of the matter. Undoubtedly, when the allotment of land is in excess of the entitlement of the allottee, it cannot be said that he has any right to retain the land so in excess. It is necessary in this connection to refer to section 4 of the Act which provides for the acquisition of the land for any of the purposes of this Act. It cannot be imagined that ft is the purpose of the Act to allow persons, who have no right in the matter, to retain the excess land allotted to them, particularly when there are claims of displaced persons still to be satisfied. It will not be for the purpose of the Act to settle the land permanently on persons who are not entitled to it, when there are so many claims still to be satisfied. In such circumstances, the purpose of the Act is best satisfied by the allotment of the excess land to the unsettled displaced persons rather than to let it remain with the persons who are not entitled to it. While dealing with a similar subject, i.e., the purposes of the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958, their Lordships of the Supreme Court were placed to observe in Sh. Rahmatullah v. The Deputy Settlement Commissioner (PLD 1963 SC 633) as- "The preamble to the D. P. Act states that it is expedient "to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the Rehabilitation of others". Compensation in the preamble is thought of in relation to persons who have suffered losses, that is claimants, but the Act also makes provision for "the Rehabi--litation of others" and it is among these others" that a non---claimant displaced person must be placed. The Schedule and the Scheme deal extensively with the provision of relief out of evacuee property not only to claimant but also to non-claimant displaced persons as well as locals, for the purposes of their Rehabilitation, and it is one of these provisions, namely, para-- graph 9 of the Schedule upon which the petitioner based his case. But in order to give himself a vested right in the com--pensation pool, it was necessary, in my opinion, that he should also be a claimant, for the relevant section is clearly worded so as to constitute a compensation pool for the benefit of claimants."
This view was reiterated in Hamud-Din's case (PLD 1965 SC 615).
The preamble of the Land Settlement Act states- "Whereas it is expedient to provide for the permanent settlement of displaced persons on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and for matters incidental thereto or connected therewith."
Reading the preamble with the provisions of sections 4 and 14 of the Act together with those contained in sections 10 and 11 of the Act, makes it amply clear that the vested beneficiaries for the purpose of the Act are the claimants displaced persons in order to compensate them for the losses suffered by them (Preamble) and to the extent of their entitlements on the basis of verified claims (sections 10, 11, 14(1), 15(1) and 15(2)). The ten per cent increase or decrease mentioned in sub-para.
(5) of para. 16 of the Settlement Scheme and the provision to allow purchase in "only petty cases of small excess (already mentioned in another p connection) can be considered as some of the matters incidentally or consequentially connected with the main purpose of compen--sating the displaced persons for the losses suffered by them. Allowing the displaced persons to retain the excess allotments of comparably large number of units or extensive areas, will be the negation of the purposes of the Act. Therefore, we hold that the G provisions relating to cancellation, termination, amendment., variation, etc., of the allotments contained in sections 10 and 11 of the Displaced Persons (Land Settlement) Act control and over--ride the provisions relating to permanent settlement and absolute vesting contained in sections 15 and 16 of the Act.
7. Before parting with the discussion of this subject, it is necessary to indicate that under section I1 of the Displaced Persons (Land Settlement) Act, a discretion has been given to the Chief Settlement Commissioner, in respect of the cancellation and variation of the allotment. In case he exercise his discretion and cancels the allotment in excess of the entitlement of the allottee, it cannot be said that he is acting illegally or without any lawful authority. On the contrary, he, in such exercise of his discretion, will be fulfilling the purposes of the Act. Therefore, we refuse to exercise our discretion in the revisional jurisdiction granted to the High Court under section 21 of the Act in favour of such allottees who want to retain an area in excess of their entitle--ment. We see no justification in their claim.
At the same time, it is clarified that in another situation, if in a given case, the Settlement authority refuses to exercise the discretion allowed to it under section 11, against an allottee, for cancellation of an allotment, keeping in view, say the smallness of the excess area or some other cogent reason, the High Court may not interfere and may not order the cancellation itself; because in such a case, the order of the Settlement authority will be in exercise of its discretion granted by law and thus will neither be illegal nor without lawful authority. The exercise of such dis--cretion by those authorities may, however, in proper cases, call for interference, if it is capricious or arbitrary.
8. No other point was urged. There is no substance is this revision petition. It is dismissed.