Mst. Maryam Bibi, a refugee from Panipat, was made allotment of land measuring 444 Kanals, 6 Marlas at Khata RL-II No,917 of Village Bhikki, Tehsil Sheikhupura. One Abdul Rasheed, another refugee from Panipat, was allotted land measuring, 1509 'Canals, 18 Marlas at Khata RL-II No,918 in the same village. The allotments to both the refugees were made on 9-1-1958. The petitioners herein in both the writ petition i.e Writ Petition No:322-R of 1986 and writ Petition No,323-R of 1986 are vendees from the above mentioned allottees. The dispute arose at the initiative of Girdawar Halqa that the allotment had been made in excess of the entitlement of the allottees as the basis for calculation of units was Packa Bighas, whereas, it should have been Kham Bighas. Naqsha Bezabtgi was submitted by him before the Additional Settlement Commissioner, who after some proceedings in the matter and examination of the record, came to the conclusion that the allottees were entitled to secure the allotment against Kham Bighas and found allotment to the extent of 799 units as excess against Khata No,917. Similar report was submitted by the Girdawar about Khata No,918. Taking the view that the allottees were entitled to secure allotment against Kham Bighas and that there was element of fraud in the allotment, the learned Additional Settlement Commissioner vide order dated 20-10-1969 found excess allotment to the extent of 4019 units (Khata No,918) ordered cancellation and resumption. These orders of the Additional Settlement Commissioner (Land), Sheikhupura exercising the powers of Chief Settlement Commissioner were challenged by the petitioners through Settlement Revision No,231 of 1969 and Settlement Revision No,232 of 1969 which were accepted by a learned Division Bench of this Court for the reason that the orders had been passed without hearing the petitioners with the following direction:- We therefore, accept this revision and send back the case to the delegate of the Chief Settlement Commissioner, who would take steps to have de parties personally served before he takes further proceedings under sections 10 and 11 of the Act and also he should take into consideration various memorandums, issued by the Chief Settlement and Rehabilitation Commissioner, regarding the improvement of lands by installing tubewells. The parties would be at liberty to produce the relevant memorandums before the delegate of the Chief Settlement Commissioner."
This was vide judgment dated 2-9-1971. It may be noted here that the land so cancelled was proposed for allotment to one Umrao Bi on 26-11-1969 and confirmed on 15-12-1969. She had thus been impleaded as party in the above Settlement Revisions. It was in pursuance of the above judgment of the learned Division Bench that respondent No,1 passed order dated 31-7-1986 taking the view that "the Bighas in Tehsil Panipat, District Karnal were Kham Bighas beyond any doubt."
The actual entitlement of Mst. Maryam Bibi was found to be 269 units whereas, allotment of land to the extent of 1155 units had been secured by her which was excess to the extent of 886 units. Since she had been allowed Beshi, she was given this concession which came to 54 units. It was found that the allotment to the extent of 832 units was still in excess of the entitlement. Since area to the extent of 799 units had already been confirmed in favour of Mst. Umrao Bi, the balance of 33 units were allowed to be purchased by the vendees of Mst. Maryam Bibi. About Khata No,918 i,e, the allotment of Abdul Rasheed, it was found that his entitlement was up to 1462 units; whereas, he had secured allotment to the extent of 6070 units. 4608 units were. thus found to be in excess of his entitlement. Since as a result of the order of the Additional 'Settlement Commissioner, dated 20-10- 1969 resumed land to the extent of 4019 units had been allotted to Mst. Umrao Bi, the said allotment was allowed to remain intact and the balance to the extent of 589 units were allowed to be purchased. As these orders were passed separately by respondent No,1, the same have been challenged by the petitioners through Writ Petition No,322-R of 1986 and Writ Petition No,323-R of 1986. The petitioners were heard by a learned Single Judge and disposed of on 7-5-1995 by remitting the matter to the Chief Settlement Commissioner with direction "to decide it afresh keeping in view the direction given in the order of the remand dated 2-9-1971, in Settlement Revision No,232 of 1969".The said judgment was, however challenged by respondent No,2 herein (vendee from Mst. Umrao Bi) before the Honourable -Supreme Court' of Pakistan where the parties appear to have agreed for remand of the matter to this Court. The order of their lordships passed in C:A No,1326 of 1995 and C.A No,1327 of 1995 reads as follows:- By consent of the learned counsel for the parties the above mentioned two appeals are allowed.The impugned judgment dated 7-5-1995 are set aside and Writ Petition No,322-R of 1986 and Writ Petition No,323-R of 1986 are remanded to the Lahore High Court, Lahore with the direction that the same be decided on merits in accordance with law within 4 months from the date of receipt of this Order. "The petitions have accordingly been heard.
2. After hearing the learned counsel for the parties and considering their contentions, the real controversy that emerges in these petition is as to whether the entitlement of the refugees from Panipat was to be calculated on the basis of Packa Bighas or Kham Bighas; whether the land though in excess of the entitlement of the allottees could not be cancelled in view of the memorandum dated 11-1-1964: and. whether respondent No,1 has violated any law, instructions or memorandum while passing order dated 31-7-1986.
3. In so far as the unit calculation on the basis of Pacca Bighas or Kham Bighas in Panipat, Tehsil and District Karnal is concerned, the matter stands settled by a Division Bench of this Court in Alimuddin and 10 others v. Additional Settlement Commissioner (L), Sialkot and others. (NLR 1979 Civil (Lahore) 908 wherein it was observed that "the reliance by the Settlement Authorities on the general instructions/directions of Rehabilitation Commissioner (Land), issued in 1953 for the discovery of the scale of the measurement in Panipat Tehsil on the basis of the Kham Bighas is unexceptionable. It appears that although this policy decision was promulgated in a standard form referred in the order of the Chief Settlement Commissioner as P.1, but in this case it was not followed at the time of original allotment. The impugned correction was not only essential and lawful, but also just and proper." The said judgment was upheld by their lordships of the Honourable Supreme Court i,e, Alimuddin and others v. The Additional Deputy Commissioner (C), Additional Settlement Commissioner (L) and others (NLR 1979 Civil (SC) 689). The controversy has thus substantially been set at rest. The view of respondent No,1 being consistent with the instructions issued from time to time and in accord with the above precedents, is amply justified.
4. The reliance of the learned counsel for the petitioners on memorandum dated 11-1-1964 is inappropriate and of no avail. The said memorandum had received attention of the Chief Settlement and Rehabilitation Commissioner from time to time as and when implications thereabout surfaced, and the import thereof had to be clarified. In memorandum dated 24-2- 1966, it was clarified that "the object of issuance of the above cited instructions was to condone only petty cases of small excess and it was not intended to permit large area obtained in excess of entitlement for one reason or the other on the grounds that the claimant concerned had not misrepresented. It was emphasized that nobody was entitled to allotment in excess of his entitlement and the excess land withdrawn should be utilized for the satisfaction of the outstanding claim. The position was further explained and clarified through memorandum dated 6-5-1966 as memorandum dated 11-1-1964 was being misunderstood. These memoranda's were in the field when the Additional Settlement Commissioner exercising the powers of Chief Settlement Commissioner had passed order dated 20-10-1969 and ordered the cancellation of land in excess of the entitlement of the of the allottees. No instructions or policy, contrary to the above, has been brought to the notice of the Court. Memo. dated 11-1-1964 cannot be read in isolation and has to be considered with the later instructions on the subject. Indeed, there are number of precedents that land allotted in excess of the entitlement can validly be cancelled and resumed from the allottees.
In Alimuddin and others v. The Additional Deputy Commissioner (C), Additional Settlement Commissioner (L) and others (NLR 1979 Civil SC 689), it was one of the contention of the petitioners who were refugee from Panipat that the allotment of land made in excess of the entitlement could not be cancelled but was repelled observing that "the land in excess of entitlement of a claimant could always be cancelled by the authorities concerned in accordance with the law relevant on the subject. which authorized allotment only to the extent corresponding to the land left in India and nothing beyond that." In Sher Muhammad v. The Chief Settlement Commissioner and others (1971 SCM R 339) it was observed that "the allotment of excess area was due to an inadvertent mistake on the part of the officers of the Central Record Room who had wrongly verified his claim for 260 Bighas and 12 Biswa s. It is idle tor the petitioner to contend that he did not know what his actual. entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudulently". It was also observed in that case that "the petitioner has no legal right to purchase the excess area". Similar view was taken in Chotu v. Chief Settlement Commissioner, Lahore and 6 others (1978 SCM R 350).
In Dahla v. Settlement Commissioner (Lands) and others (1983 SCM R 1039), it was observed that "we do not share his view that an allotment which is in excess of the entitlement of a displaced person made in his favour by public authorities cannot be cancelled. Such a cancellation is clearly possible under section 11 of the Displaced Persons (Land Settlement Act and the necessary powers thereunder would be available even where the excess allotment has been made on account of a bona fide mistake of the Settlement Authorities." In Ali Muhammad and others v. The Additional Commissioner (Consolidation) with powers of Settlement Commissioner. (L) and others (1985 SCM R 1128) wherein memo. dated 11-1-1964 also finds mention, it was held that "this Court has held in several cases that the Settlement Authorities have the power to withdraw the area allotted to a claimant which is in excess of his entitlement on grounds other than fraud and misrepresentation under section 11 of the Displaced Person (Land Settlement) Act." In Abdul Sattar through Legal Heirs and others v. Muhammad Shafiq Khan and others (1994 SCM R 2021), it was held that "the allotment which is in excess of the entitlement can be cancelled under section 11 of the Displaced Persons ('Land Settlement) Act, 1958 even if the allotment was made by sheer mistake by the Settlement Authorities." The order of the High Court paved in writ jurisdiction was set aside by their lordships and that of the Settlement Authorities was restored. In Bashir Ahmad and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others (1983 SCM R 1199) which was also a case of excess allotment, it was observed that "since an allotment of land is subject to the provision of sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor." The contention of the learned counsel for the petitioners that the allotment found in excess of the entitlement of a person cannot be cancelled, is thus too wide a proposition, not tenable in view of the above legal position.
The import of memo. dated 11-1-1964 which was clarified through later memoranda is clearly misunderstood.
5. It is the grievance of the petitioners that they were entitled to certain concessions for having developed the land and installed the tubewell and that they were entitled to purchase the land but respondent No,1 has ignored the directions contained in the remand order passed by this Court in the Settlement Revision. The grievance of the petitioners is not well-founded inasmuch as their vendors/allottees were founds to have secured allotment in excess of their due entitlement. The excess land was cancelled, out of which. Mst. Umrao Bi was proposed the available land on 26-11- 1969, which was confirmed on 15-12-1969. Respondent No .2 herein is vendee from the said allottee.
The said allottee, who was also a refugee/claimant and was entitled to settlement under the law, acquired rights to the allotted land by virtue of proposal and confirmation thereof. Her right therein has rightly been recognized by respondent No,1. Reference may be made to Mst. Jannat v. Mst.
Saeeda Begum and others (1974 SCM R 514). It may be observed that on cancellation of the land on 20-10-1969. it had become available for allotment, which was proposed and confirmed in the name of Mst.Umrao Bi. Settlement Revisions Nos,231 of 1969/ 232 of 1969 came up for hearing before a learned Division Bench of this Court on 15-12-1969 when status quo was ordered to be maintained. It may be observed that nothing has been brought on record that the abovementioned status quo order was brought to the notice of competent Authority on 15-12-1969 before the confirmation of allotment. It is in this context that respondent No,1 has, on the one hand kept in tact the allotment of Mst. Umrao Bi and allowed the petitioners to purchase the balance excess land at the rate of Rs,100 per P.I.U. although the petitioners were not entitled to such a concession strictly in accordance with law as their holding apparently was already in excess of the subsistence holding. The petitioners should have been content with the same. In Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491), it was observed with reference to earlier view of their lordships that the High Court in exercise of, its discretionary jurisdiction was not bound to interfere in all the circumstances. The petitioners, in the present case, have neither been dealt with illegally nor unjustly or unfairly. Such a just and equitable order, passed by respondent No,1, hardly calls for interference by this Court.
In view of the above, this petition is dismissed. No order as to costs.