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Civil Appeal No. 97 of 1974, decided on 3rd March, 1986.

(Against the judgment and order dated 3‑12‑1973 of the Lahore High Court, Lahore, in W.P. No. 416/R of 1967).

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑Leave to appeal granted to examine whether on basis of para. 23, Supplementary Rural Scheme No.l to West Pakistan Rehabilitation Settlement Scheme, appellant was entitled to exercise of choice in matter of surrendering land, held, in excess of his verified claim.

‑‑‑Ss.10 & 11‑‑Supplementary Rural Scheme No.l to West Pakistan Rehabilitation Settlement Scheme, para. 23‑‑Allotment of land to displaced person‑‑Entitlement reduced on revivification of claim‑‑Cancellation of excess land on which appellant had planted orchard, impugned‑‑Plea that cancellation order was passed behind his back, without notice and without allowing him opportunity to exercise choice, not established from record‑‑Impugned order was passed in appellant's presence and after allowing him choice‑‑Instructions contained in para. 23 of Supplementary Rural Scheme No.l, held, was not applicable at all in such case‑‑Appeal being devoid of merits, dismissed.

Khuda Bakhsh v. Deputy Rehabilitation Commissioner (Lands), Lyallpur 1968 S C M R 1084 ref.

Din Muhammad v. Ahmad and another 1971 S C M R 490 distinguished.

Mian Inamul Haq, Advocate Supreme Court with Ghulam Dastgir Advocate‑on‑Record for Appellant.

Ex parte for Respondent.

Date of hearing: 3rd March, 1986.

Leave to appeal was granted to examine whether on the basis of para. 23, Supplementary Rural Scheme No.l to the West Pakistan Rehabilitation Settlement Scheme, the appellant was entitled to the exercise of choice in the matter of surrendering land held in excess of his verified claim.

The appellant is a displaced person. His verified claim was received in Chak 199/J.B., Tehsil and District Faisalabad and the land was allotted to him and confirmed on 8‑6‑1952. On the basis of Robkar dated 2‑6‑1959 received from the Central Record Office, his earlier Fard Haqiyat was cancelled, and instead reduced area was verified against his claim. On the basis of such a re‑verification, the Assistant Rehabilitation Commissioner on 26‑4‑1960 reduced his allotment and the land cancelled included, inter alia, Kills No. 18 of Square No. 55 which is now the subject‑matter of this appeal. He appealed against the cancellation but his appeal was dismissed as time‑barred. His revision also failed. He filed a constitutional petition which was dismissed.

The learned counsel for the appellant contended that though the record showed otherwise, the order of cancellation of allotment was passed behind the back and without notice to the appellant. Besides, according to the learned counsel for the appellant, Supplementary Rural Scheme No.l, Paragraph 23 allowed a choice to the appellant and if he had been extended the benefit of this he would have certainly retained Killa No. 18 on which he had planted an orchard. According to the learned counsel, the High Court had taken the view that there was no law in the field entitling the exercise of choice in the matter.

The respondent Chhajju on whose information the earlier Fard Haqiyat of the appellant was cancelled, who was treated as an informer and who got the allotment of the resumed land has not appeared to contest the proceedings and has been proceeded ex parte.

From the record, as admitted by the learned counsel for the appellant, it appears that the order of the Assistant Rehabilitation Commissioner was passed on 26‑4‑1960 in the presence of the appellant. He had not objected to the re‑verification by the Central Record Office then or ever thereafter. It appears that a re‑verification had taken place on a complaint made, and that on such verification his entitlement was reduced, and he had reconciled to it. It also appears from the record that on 21‑12‑1960 an order was passed after allowing him the choice. He claimed and obtained the restoration of Killas Nos.16 and 17 by surrendering another portion of his allotment in lieu thereof. So he had exercised the choice.

So far as the law on the subject is concerned, para. 23 of the Supplementary Rural Scheme No.l is not attracted to the case of the appellant, for it relates to allotments of agricultural land against verified claims in Schedule V of the Registration of Claims (Displaced Persons) Act, 1956, i.e. land abandoned in non‑agreed area. Those instructions are, therefore, not applicable at all. Even if they were applicable, they provide that:‑

"If an allottee under this scheme is subsequently found to hold land in excess of his actual entitlement calculated in accordance with the prescribed procedure, the allotment of the excess area shall, as directed be cancelled and he shall surrender possession according to his choice in a compact block as far as possible."

He was allowed the choice. He exercised it. He has not urged or shown that what he is claiming, if denied, interferes with the compactness of the allotment as envisaged in para. 23.

The law applicable to the case of the appellant is actually paragraph 4, clause (c), Part. 1 of the Rehabilitation Settlement Scheme which provides that:‑

"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, in necessary, he will be dispossessed thereof."

This provision, in a case like that of the appellant, came up for consideration before this Court in Khuda Bakhsh v. Deputy Rehabilitation Commissioner (Lands), Lyallpur 1968 S C M R 1084. It was found that due to erroneous verification of the Central Record Office the allottee had got allotment of land in excess of his entitlement. It was held that there was no law to allow choice to the claimant and if such a choice, in the absence of law, was allowed, it would amount to permitting him to reap the benefit of his own fraud.

The case of Din Muhammad v. Ahmad and another 1971 S C M R 490 relied upon by the appellant at the stage of granting of leave to appeal and finding a mention in the order has no application to the facts of the case because it concerns the entitlement of the allottees having excess allotment to purchase the excess land on payment of its price. Such an option was available only in N.W.F.P. and Sind and in Din Muhammad's case it was held that the Additional Rehabilitation Commissioner was not competent to transfer the excess land if it happened to be situate in Punjab. This view is based on a clarification issued by the Chief Settlement and Rehabilitation Commissioner vide Memorandum No. 6358‑62/66428‑R(L), dated 1st of July, 1965.

We find no merit in the appeal and it is dismissed. No order as to costs as the appeal has been heard ex parte.

M . I . Appeal dismissed.

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