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Civil Petition for Special Leave to Appeal No. 257 of 1957. decided on 28th October, 1981.

(On appeal from the judgment and order of Lahore High Court dated 13‑1‑1975 in Writ Petition No. 883‑R of 1974).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑Allotment of excess area‑‑Leave to appeal granted to examine contentions, as to whether allotment up to 10% of entitlement of respondent was within exclusive discretion of Settlement Authorities and whether Settlement Authorities had exercised their discretion unreasonably and whether High Court exceeded its constitutional jurisdiction in interfering with concurrent exercise of discretion by Settlement Authorities in favour of respondent.

Khalilur Rehman Khan, Advocate and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents Nos. 1, 2 and 4.

A.R. Shaukat, Senior Advocate for Respondent No.3.

Dates of hearing: 25th and 28th October, 1980.

The dispute in this petition for leave relates to land in village Khairpur Sadat in Muzaffargalh District. The fourth respondent's claim: was apparently verified and thereafter transferred to this village in 1959. The third respondent had also got 186 P.I. Units transferred to this village at a date which is not specified. Then, in November, 1964, he had another 68 P.I. Units transferred to this village. Next, on the 7th of April, 1969, about ten years after land had been confirmed in his favour in the village, the fourth respondent exchanged it with the petitioner's land in another village. Three years later, the third respondent filed applications alleging that the fourth respondent had got excess land to the extent of 85 P.I. Units in the village on the basis of a wrong classification of land in the revenue records. And, that his own claim for 42 P.1. Units had not been satisfied.

These applications came up for hearing before the Additional Settlement Commissioner, who accepted the third respondent's claim that excess land had been confirmed in the fourth respondent's favour and that as against 524 P.I. Units he had been wrongly transferred land to the extent of 609 P.I. Units. This was also conceded by the fourth respondent, but as the Settlement authorities had power to condone an allotment of an excess area upto an extent of 10 , (the fourth respondent abandoned all claims to 85 P.I. Units and as to the balance of 50 excess P.I. Units he submitted that the Additional Settlement Commissioner should exercise his discretion in their favour with regard to these 50 P.I. Units as it was less than 10 of the entitlement of the fourth respondent. The Additional Settlement Commissioner observed in his order of 22‑12‑1973:‑

"He cannot claim the excess allotment by right. In view of the fact that the claim of the petitioner Sher Muhammad is lying unsatisfied. I cannot allow so much excess allotment to the respondent Niaz Muhammad. On the other hand, Sher Muhammad also can be allotted less area upto 10% by the Settlement Authority.

I accordingly direct that the excess units be divided equally between Sher Muhammad and Niaz Muhammad. Niaz Muhammad is allowed allotment of excess area upto 25 units only. The remaining excess allotment of 25 units is cancelled from the name of Niaz Muhammad and are allotted to Sher Muhammad petitioner."

The Additional Settlement Commissioner, however, directed that the third respondent's possession should not be distributed, therefore, the fourth respondent was not given any choice as to the land he was to retain.

In these circumstances, both parties challenged this order in a revision, but the revision of the third respondent was dismissed. The revision of the fourth respondent was dismissed subject to the modification that he was given the choice of the land that was to be retained by them.

Aggrieved by the orders of the Additional Settlement Commissioner and the Settlement Commissioner the third respondent filed a writ petition in the Lahore High Court. The learned, fudge, who heard this writ petition, held that the fourth respondent had been guilty of fraud and misrepresentation and so he allowed the writ petition and cancelled the excess allotment of the fourth respondent with regard to 25 P.I. Units. Therefore, the petitioner has filed this petition for leave.

Mr. Khalilur Rehman submitted that both the Additional Settlement Commissioner and the Settlement Commissioner had not accepted the third respondent's plea that the fourth respondent had obtained any excess allotment through fraud or misrepresentation. In view of this' finding, learned counsel submitted that the question of allowing excess land up to 10% of the entitlement of the fourth respondent was within the exclusive discretion of the Settlement authorities, and as they had given excess land only to the extent of 25 P.I. Units it could not reasonably be contended that the Settlement authorities had exercised their discretion unreasonably. Therefore, the further submission of the learned counsel was that the high Court had exceeded its constitutional jurisdiction in interfering with the concurrent exercise of discretion by the Settlement authorities in favour of the fourth respondent.

As this submission obviously requires examination, we grant leave to examine it. Security to the sum of Rs.2,000 and the appeal will be made ready on the present record with liberty

to the parties to file additional documents, if any.

The ad interim order passed by this Court on 25‑4‑1975 is confirmed.

M . Y . H . Leave petition allowed.

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