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Writ Petition No. 1433/R of 1974, heard on 13th November, 1984.

---Ss. 10 & 11--Term 'fraud' or 'false representation' used in S.10 of Act are of very strong import.--[Words and phrases].

---Ss.10 & 11--Constitution of Pakistan (1973), Art. 199--Allotment of land--Fraud or false representation--Land allotted to petitioner found Ghair Mumkin Darya and petitioner applying for change of land and getting another land allotted in her name after fully disclosing to officer concerned that earlier allotment made in her favour was not acceptable to her--Petitioner by getting second allotment in existence of first allotment in her name, held, committed no frauq or misrepresentation and could not be said to have duped anybody including Settlement Officer--No allegation of fraud or misrepresentation made or that she had no genuine claim, no bar existed on powers of Deputy Settlement Commissioner to allot petitioner alternate land in lieu of her earlier allotment--Mere fact, that due to inaction or negligence of some agency earlier allotment still stood in her name, could not be stretched to an extent to say that petitioner in obtaining subsequent allotment was guilty of fraud or false representation.

---Ss. 10 & 11 -Civil Procedure Code (V of 1908), S.115--Constitution of Pakistan (1973), Art. 199--Allotment of land--Respondent acquiesced in order of allotment of land made by Settlement 'Commissioner in favour of petitioner passed in revision and matter stood concluded and traveled into realm of res judicata--No fraud or misrepresentation found on part of petitioner--Respondents, held, could not reagitate matter which was finally closed in appeal and revision before Settlement Authorities.

---Ss.10 & 11--Constitution of Pakistan (1973), Art. 199--Allotment of land--Land allotted to petitioner, against verified claim was set aside by Settlement Commissioner on ground of fraud and misrepresentation put forth against petitioner by respondent in second round of litigation (by presenting fresh petition Wore Settlement Commissioner (Lands) after matter stood finally closed in appeal and revision wherein allotment of petitioner was upheld by Settlement Authorities--Order passed by Settlement Commissioner in fresh round of litigation was outcome of material irregularity and illegal exercise of jurisdiction--Order declared without lawful authority and set aside in circumstances. Habib v. Sardar Ali and others 1982 S C M R 382 and Hakim-ud Din v. Additional Settlement Commissioner (Lands) and another 1982 SCMR 967(2) ref. Mirza Khan and others v. Additional Settlement Commissioner etc. P L D 1973 Note 5 at p. 14 rel. Raja Afrasiab Khan for Petitioners. M. Ehsanul Haq for Respondents. Date of hearing: 13th November, 1984.

Facts relevant and necessary for deciding the controversy raised in the constitutional petition are that on 8-1-1964, agricultural land measuring 44 Kanals 15 Marlas situated in village Poran, Tehsil Kharian, District Gujrat was allotted to Mst. Sardar Begum, a claimant displaced person from the Occupied State of Jammu and Kashmir in lieu of her verified claim.. Land in question allotted to Mst. Sardar Begum on site was found Ghair Mumkin Darya. The petitioner allottee applied for alternate available evacuee land and made a statement before the Deputy Settlement Commissioner (Lands) /Revenue Assistant stating that she did not wish to retain the land allotted to her as it was all Darya Burd. This statement was made on 24-5-1965. Same day, the Deputy Settlement Commissioner is stated to have reviewed the earlier allotment order. In lieu of the land earlier allotted in village Poran, Tehsil Kharian, District Gujrat, now land measuring' 37 Kanals 12 Marlas situated in village Ganga was confirmed in the name of Mst. Sardar Begum vide RL II No. 9 on 5-1-1981. Against this order of allotment, Ghulam Mohy-ud-Din, respondent No. 2 in the writ petition, appealed to Additional Settlement Commissioner (Lands), Gujrat on 8-3-1972. Appeal was dismissed. on 23-8-1972. Revision .preferred before Settlement Commissioner (Lands) by the said Ghulam Mohy-ud-Din also, was dismissed on 10-1-1973. Waiting for sometime, respondent No. 2 Ghulam Mohy-ud-Din entered on a fresh round of. litigation and presented a fresh petition under section 10/11 of the Displaced. Persons Land Settlement Act, 1958, since repealed, for cancellation of the allotment made in favour of Mst. Sardar Begum on the ground that she had obtained a double allotment inasmuch as earlier allotment of land measuring 44 Kanals 15 Marlas situated in village Poran Tehsil Kharian still stood in her name. It was stated that without disclosing the factum of earlier allotment, she had obtained double benefit in respect of her verified claim. After calling for a statement of defence, recording evidence, Sardar Hidayat Ullah Moakal, Settlement - Commissioner (Lands) with powers of Chief Settlement Commissioner Punjab on 23-6-1974 accepted Ghulam Mohy-ud-Din's petition and set aside the allotment standing in the name of Sardar Begum on the ground of fraud and misrepresentation. Correctness of the order recalling the allotment from the name of Mst. Sardar Begum by the Settlement Commissioner vide order, dated 23-6-1974 has been agitated by her in Constitutional jurisdiction of this Court. Writ petition was admitted to examine the contentions raised challenging the impugned order. 2. I have heard learned counsel for the parties namely Mst. Sardar Begum and Ghulam Mohy-ud-Din, respondent No. 2. Raja Afrasiab, Advocate, represented Mst. Sardar Begum wheareas Mr. Ehsan-ul-Haq, Advocate, appeared on behalf of respondent No. 2 None appeared on behalf of respondent No. 1. Raja Afrasiab, learned counsel appearing in support of the writ petition raised the following grounds in support of writ petition-- (i) Mst. Sardar Begum was a bona fide genuine claimant displaced person from the State of Jammu and Kashmir and held a duly verified claim entitling her to the allotment of land in lieu thereof. Land was confirmed in her name in substitution of the earlier allotment which was not acceptable to her being Darya Burd, yielding no profit. The allotment was upheld in appeal and revision by the Settlement Authorities under sections 18 and 19 of the Displaced Persons (Land Settlement) Act, 1958 since repealed. Order, dated 23-8-1972 passed by the learned Additional Settle ment Commissioner (Lands) and 10-1-1973 passed by the Settle ment Commissioner (Lands) upholding and maintaining the order of allotment, dated 5-1-1971, operated as res judicata debarring any further inquiry into her entitlement and the allotment made, more so when the person agitating against the allotment of Mst. Sardar Begum was the same namely Ghulam Mohy-ud-Din. Once the matter had been agitated and decided against him by the Court of appeal and revision in the competent forums, it was no longer open to him to vex and bother the writ petitioner a widow second time on the grounds of alleged fraud and mis representation which allegations, according to learned counsel for the petitioner had no basis. (ii) Powers for recalling allotment under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act, 1958, since repealed, are subject to the other provisions of the Act relating to appeal and revision. Once the matter was tested and concluded by the competent forums it could not be reopened for the two judgments, dated 23-8-1972 and 10-1-1973 obtained finality under law. The finality so attached could not have been whittled down in any manner through an indirect attempt under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. (iii) Jurisdiction under sections 10 and 11 of the Displaced Persons (Lands Settlement) Act can only be invoked if fraud and mis representation is proved to have been perpetrated by the peti tioner allottee. In the case under consideration, the petitioner, an illiterate lady, uprooted from her home had neither concealed nor suppressed the fact of earlier allotment. In fact she applied for alternate land to be given to her in lieu of her verified claim. In this, she is not shown to have committed any fraud or misrepresentation. Mere fact that after allotment of land situated in village Ganga on 5-1-1971, the earlier allotted land was allowed to stand in her name would not go to show that she was in any way contributory to the acts of fraud or misrepresen tation process of settlement of displaced persons which started with influx of the displaced persons must by passage of time come to an end. She has been settled and land has been allotted to her in lieu of her verified claim. Purpose of the Settlement Laws is to rehabilitate and settle the persons uprooted in the wake of the Partition of the Sub-continent and not to unsettle. Argument has been raised that this poor lady who had succeeded in settling down should not have been unsettled by the learned Settlement Commissioner vide his order dated 23-6-1974, particularly in the absence of any proof of fraud or mis representation on her part. Learned counsel placed reliance on Habib v. Sardar Ali and others 1982 S C M R 382 and Hakim-ud-Din v. Additional Settlement Commissioner (Lands) and another 1982 S C M R 967 (2) to support, that once the matter had been finally adjudicated upon by the Settlement Authorities in appeal and revisional jurisdiction, the same could not have been reopened under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. Mr. Ehsan-ul-Haq, Advocate, learned counsel appearing for the respondents, refuted the contentions raised by Raja Afrasiab, learned counsel for the petitioner. He contended that the earlier allotment still stood in the name of Mst. Sardar Begum. Keeping this allotment in tact, she was not entitled to have allotment of alternate land in lieu of her verified claim. The fact of earlier allotment was suppressed by her when she succeeded in obtaining land measuring 37 Kanals and 12 Marlas in village Ganga. This being a case of double allotment, learned Settlement Commissioner, with powers of Chief Settlement Commissioner, rightly interfered under sections 10 and 11 of the Act to undo the effects of the subsequent allotment which clearly, according to learned counsel, was outcome of fraud and misrepresentation committed by Mst. Sardar Begum. Learned counsel further submitted that the Deputy Settlement Commissioner (Lands) could not review his earlier order without following the regular procedure and obtaining sanction of the superior authority under the provisions of Land Settlement Act, 1958, since repealed. He further submitted that the petitioner's claim (Units) were not transferred to the revenue estate of Ganga where allotment has been made in favour of Mst. Sardar Begum. It has been further emphasized that proceedings under sections 10 and' 11 of the Act are independent and are not controlled or subject to the results of the judgments passed in appeal/revision under section s 18 and 19 of the Displaced Persons (Land Settlement) Act, 1958. Ghulam Mohy-ud-Din's claim still awaited Settlement in the Revenue estate and under instructions regulating the allotment of agricultural land he had a prior claim as compared to Mst. Sardar Begum. Mst. Sardar Begum is a genuine displaced person from the State of Jammu and Kashmir and has also a verified claim to her credit. She was no doubt allotted some land in village Poran, Tehsil Kharian. This allotment of land was not accepted by her as the same was Ghair Mumkin Darya and was not capable of yielding any income/profit to her. In this background she applied for getting the alternate land against her verified claim. In this attempt she succeeded and the learned Deputy Settlement Commissioner (Lands) accepting her request allowed her 37 Kanals and 12 Marlas of land in village Ganga against her claim. Dissatisfied, Ghulam Mohy-ud-Din tried his luck before Additional Settlement Commissioner and Settlement Commissioner (Lands) in appeal and revision but it did not prove fruitful. Appeal and revision admittedly failed. In the new attempt to dislodge the poor lady, Ghulam Mohy-ud Din, respondent, invoked provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. This time he succeeded before the learned Settlement Commissioner who in exercise of his powers as Chief Settlement Commissioner, recalled the allotment holding that the subsequent allotment made in favour of Mst. Sardar Begum was outcome of fraud and misrepresentation. The term "fraud" or false representation used in section 10 are of very strong import. There was no evidence available to show that Mat. Sardar Begum was a contributory to any misconduct constituting fraud or misrepresentation in obtaining allotment in village Ganga on the basis of her verified claim. She had fully disclosed to the officer concerned that the earlier allotment made in her favour was not acceptable to her as the same was Ghair Mumkin Darya and she claimed alternate available land. In this I do not think that she was guilty of any fraud or misrepresentation or that she duped anybody including the Settlement Officer. There is no allegation, at least, none has been asserted, that she had no genuine claim. No legal bar existed on the powers of Deputy Settlement Commissioner (Lands) to allot her alternate land in lieu of earlier allotted land which was not found acceptable to her. Mere fact that due to inaction or negligence of some agency, earlier allotted land, still stood in her name cannot be stretched to an extent to say that Mst. Sardar Begum in obtaining subsequent allotment was guilty of fraud or false represen tation. She, as stated above, had already placed full cards before the Deputy Settlement Commissioner who realising her difficulty allotted her the available land in village Ganga which till the impugned order was passed, stood in her name. Ghulam Mohy-ud-Din had tried to dislodge her but not succeeded. The order passed by the Settlement Commissioner dismissing his revision was not further agitated before the High Court in its constitutional jurisdiction. This ,would evidently show that he accepted it as correct and felt content with it. After having been defeated and lost the battle, in the normal hierarchy of the Settlement Laws it was no longer open to him to reagitate the matter finally closed in appeal and revision. The litigation that ensued after the revisional order passed, was a bare repetition of respondent's pleas in support of his entitlement which had finally been rejected earlier. Respondent Ghulam Mohy-ud-Din having acquiesced in order, of the Settlement Commissioner passed in revision could not have sebsequently questioned allotment made in favour of Mst. Sardar Begum under sections 10 and 11 of Act, 1958. In Mirza Khan and others v. Additional Settlement Commissioner etc. P L D 1973 Note 5 at p. 14, a learned Single Judge of this Court, relying on instructions issued vide memorandum, dated 11-1-1964, in regard to the application of sections 10 and 11 of the Act observed:- "Respondents Nos. 2 to 5 agitated the matter before the Deputy. Settlement Commissioner as well as the Additional Settlement Commissioner in their appeal and revision respectively, that the petitioners were not entitled to the transfer of the land as tl allotment of the said land stood in the name of their predecessor in-interest Jamal Din. Both the Deputy Settlement Commission and the Additional Settlement Commissioner referred to this aspect of the case in their impugned orders and keeping in view t' same, they decided against the respondents. The same point already by the impugned orders. cannot now be allowed to agitated under section 11 of the Act before the Chief Settlement Commissioner, whose powers of revision have already been take away. The provision as contained in section 11 of the Act dopy, not confer any revisional jurisdiction upon the Chief Settlement Commissioner the matter in dispute in the given case allowed to be reagitated before the Chief Settlement Commissioner then it would mean that he would be competent to revise the impugned orders. The law does not authorise him to do so. His jurisdiction, therefore under section 11 of the Act can be invoke r only in those cases which have not been finally decided by the competent settlement authorities. Moreover, the same matter can' not be reagitated in another proceeding between the same parti according to the principle of res judicata." The principle enunciated in the report fully applies to the fact of this case. Herein also, the allotment has stood the test of appeal, and revision and was not agitated further. In this view of the matter it was not, aproper exercise of jurisdiction to have reopened the controversy relating to the allotment of land made in favour of Mst. Sardar Begum in the year 1971 at the instance of Ghulam Mohy-ud-Din who had lost his case in appeal and revision. The matter was concluded and travelled into the realm of res judicata. As stated above, there was no element of fraud or misrepresentation of false representation on the part of Mst. Sardar Begum which could have been used to deprive her of right to get alternate allotment as against the area earlier allotted to her in village Poran. Her counsel, Raja Afrasiab Khan, Advocate, categorically stated at bar that she lays no claim to the land situated in village Poran which she had already abandoned before the Deputy Settlement Commissioner when she was given alternate allotment. I had asked learned counsel for the respondent, Ghulam Mohy-ud-Din, whether he was prepared to get his claim adjusted against the land situated in village Poran allegedly standing in the name of Mst. Sardar Begum. He after consulting his client replied in the negative. Looking at this disputed matter from all angles. I have reached the conclusion that the Settlement Commissioner has proceeded on totally wrong premises is depriving Mst. Sardar Begum of the land allotted to her against her verified claim in the year 1971 by a competent officer. Learned Officer has absolutely kept out of consideration the legal effects of the two orders passed by the Additional Settlement Commissioner and Settlement Commissioner (Lands) in appeal and revision against Ghulam Mohy, ud-Din. Impugned order otherwise does not serve the cause of the Settlement of the displaced persons. For what has been stated above the order passed by the learned Settlement Commissioner on 23-6-1974 in exercise of powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, is outcome of materially irregular and illegal exercise of jurisdiction. Writ petition is allowed, order, dated 23-6-1974 passed by the learned Settlement Commissioner is set aside and is declared to have been made/passed without lawful authority. Allotment made in favour of Mst. Sardar Begum on 5-1-1971 by the Deputy Settlement Commissioner (Lands) is maintained. No order as to costs. M.Y.H. Petition allowed.

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