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Writ Petition No. 1642-R of 1976, decided on 18th November, 1985.

---Ss. 10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)--Evidence Act (I of 1872), Ss.101 & 102- Allotment of land--Cancellation of--Allegation of fraud--Burden of proof--Burden to prove allegation of fraud, heavily lay on party alleging same--Mere filing of unrebutted affidavit by petitioners that fraud was committed on them and they were condemned unheard by Settlement Authority, held, could not be taken as gospel truth as order passed by Authority expressly stated that petitioners in proceedings under Ss. 10 & 11 of Act, 1958 were represented by attorney and counsel- Petitioners having failed to discredit presumption arising from such statement of authority, order passed by it could not be struck down on ground of fraud in circumstances.

--Art. 199--Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) .Act (XIV of 1975), S. 2(2)--Allotment of excess land, cancellation of--Record positively found petitioners holding land in excess of allotment-- petitioners failed to justify such excess allotment on basis of any directive of Settlement Department--Cancellation of excess land, held, was not illegal in circumstances--High Court in constitutional jurisdiction would avoid unnecessary prolongation of litigation thus declined to remand case to Settlement Authority.

Ch. Hamid-ud-Din for Petitioners.

A. K. Dogar for Respondent No. 2 and L.R. No. 3.

Nemo for the Remaining Respondents:

Date of hearing: 18th November, 1985.

The facts are that on 27-1-1954 land equivalent to 172 produce index units, was, confirmed in the petitioners' name, against their verified claim. On the basis of a Mukhbari application, filed by respondent No.2 and Ali Muhammad deceased, now represented by his legal representatives, the Additional Settlement Commissioner (Land) by his order dated 24-4-1968 cancelled the petitioners' allotment to the extent of 45 produce index units (equivalent to 4 Kanals 18 Marlas). .The operative part of this order is reproduced below:

"Sardar, one of the petitioners alongwith his counsel and Ghulam Muhammad Special Attorney for Sher Muhammad Faqiria and Mst. Bhago, respondents, were present and were heard at length. Wali Muhammad respondent did not attend the Court, in spite of duly issued notices and proclamation in the newspaper. He was proceeded against ex parte. The record was also examined.

It appears from the record that the respondents were entitled to secure allotment equal to 127 Produce Index Units, but were confirmed 172 units. Obviously they secured allotment equal to 45 units to excess of their entitlement, which is liable for cancellation.

In the light of the above discussion, the application is accepted. the excess of 45 units should be withdrawn from the respondents and confirmed to the rightful refugee claimants including the petitioners, strictly according to the latest instructions, issued by the Chief. Settlement Commissioner (Land).

This order is under challenge in the instant writ petition.

2. I have heard the learned counsel for the parties. It is argued that the petitioners Nos. 1 to 3 neither appointed Ghulam Muhammad as their attorney nor engaged any counsel to represent them in the proceedings before the Tribunal below. According to the petitioners' learned counsel, a fraud was practised on them and they were neither served nor heard. In his submission, the impugned order was violative of section 11 of the Displaced Persons (Land Settlement) Act, which expressly ordained that no order could be made without giving the persons affected thereby a reasonable opportunity of being heard.

'3. On merits the learned counsel contended that it was not a case of procuring allotment by fraud and misrepresentation. He argued that subsequently the produce index units of the land of Hoshiarpur District to which the petitioners claim related, were, re-assessed and enhancement was allowed. The argument, was, that the assumption that the petitioners held entitlement of 127 produce index units only, on which the impugned order was rested was wholly incorrect. He also submitted that the area in dispute measures, 4 Kanals and 18 Marlas only and the Chief Settlement Commissioner had already directed that the cases involving small areas, finalized years ago should not be re-opened. In this behalf he drew my attention to the Chief Settlement Commissioner's Memorandum No. 176-641300-R(L), dated 11-6-1964 and No. 176-641300-R(L) dated 11-1-1964, appearing at pages No. 415 and 269 of the Settlement Manual (First Edition) by M . A . Latif.

4. I have examined the available record to evaluate these arguments. None of the. parties have applied for requisitioning of the record of the Mukhbari application. It is, therefore, not possible to accept that the petitioners were not duly represented in the proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act and a fraud was practised on them. In holding so, I am not unmindful of the fact that the Writ Petition is supported by an affidavit of one Bashir Ahmad through whom it has been instituted and the contesting respondents have not filed any written statement. There is also another affidavit by one Ghulam Muhammad son of Rahim Bakhsh to the effect that he wad never appointed by petitioners Nos.l to 3 as their attorney. But I am not inclined to rely upon these affidavits. There is no rule that an unrebutted affidavit, in all circumstances must be taken as a gospel truth. In such like cases, burden heavily lies on the party who alleges the fraud. In the absence of the record of the Tribunal below and the Bench s consequential inability to verify the petitioners allegation from said record, I am unable to strike down on the ground of the fraud, the impugned order, which expressly states that the petitioners' attorney appeared before the Additional Settlement Commissioner and they were also represented by a counsel. It is to be presumed that the Presiding officer below, was satisfied that petitioners Nos.l to 3 were properly represented. The petitioners have not succeeded in dislodging this presumption. It would be seen that Wali Muhammad Petitioner No.4 herein, who was co-respondent before the Additional Settlement Commissioner was duly served but he did not enter appearance and thus, as observed in the impugned order was proceeded against ex parte. Quite obliquely, about him, too it has been urged that no notice was issued to him. There is hardly any basis to accept such a contention..

5. As regards the merits of the petitioners' case the learned Additional Settlement commissioner on the footing of the record before him came to a definite conclusion that the petitioners' entitlement was of 127 produce index units only. Their learned counsel has not placed before me any order of the Settlement Authorities, showing that the produce index units of the area from which the petitioners hailed, were increased entitling them to retain the excess land. My attention has also not been drawn to any instructions, laying down that detection of allotment of excess land, involving a few Kanals only, was immune from scrutiny. There is nothing in the Memorandum dated 11-1-1964 to advance the cause of the petitioners. Under the other Memorandum relied upon by the petitioners, the departmental authorities were advised to re-open matters finalized years ago only in case of glaring fraud and misrepresentation. These instructions were primarily meant for the guidance of the subordinate settlement authorities. Ir. any case these were clarified vide Memorandum No.7511-65/894-R(L) dated 24-2-1966 and other subsequent instructions (See page 275 of (he Manual) and it was directed:-

"If an allottee is at any subsequent time 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 disposed thereof."

6. There are positive indications on the file that the petitioners held land in excess of their entitlement. It was, therefore, for the petitioners, to have justified the allotment of excess land to them, on the basis of some directive of the Settlement Department. But they have failed to make any such justification. I am, therefore, not persuaded to hold that the cancellation of the excess land, was illegal. In this view of the matter even if the petitioners contention as to the commission of fraud on them, is accepted, no useful purpose shall be served in remanding 'the case to the Settlement Authorities resulting in an unnecessary prolongation of this litigation.

7. For all these reasons, I do not find any merit in this writ petition and dismiss the same but with no order as to costs.

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