SHER MUHAMMAD vs THE CHIEF SETTLEMENT COMMISSIONER AND Other

1. HAMOODUR RAHMAN, C. J.-The petitioner had, it appears, obtained an allotment of 386 kanals of land in village Sahu Bhallu, Tehsil Narowal, District Sialkot, but on the complaint of one, Allah Rakha, the Additional Settlement Commissioner exercising delegated powers under sections 10 and it of the Displaced Persons (Land Settlement) Act, 1958, on the 3rd of October 1970, cancelled 355 kanals from his khata. He was, however, allowed to retain 31 kanals and 8 marlas is lieu of his actual entitlement of 169 produce index units.

2. The petitioner then went up to the High Court in revision against the said order under section 21 of the above-mentioned Act. His first contention before the High Court was that the Additional Settlement Commissioner had not been delegated the powers of the Chief Settlement Commissioner under sections 10 and 11 of the said Act but this was found to be incorrect, as such delegation had, in fact, been made by a notification issued on the 16th of July 1970.

3. It was next contended on his behalf that he had a verified claim for 260 bighas and 12 biswas which was equivalent to 732 produce index units. But the High Court after calling for the original special Jamabandi from the Central Record Room found that his actual verified claim was only for 20 bighas and 16 biswa s, though by inadvertence the verification had been recorded for 260 bighas and 12 biswa s. The third contention raised before the High Court was that the petitioner should have been given a share in the shamilat lands as well but this was repelled, because, according to the policy instructions of the Chief Settlement Commissioner shamilat lands were to be distributed only amongst those persons who were shown to have been in possession of some portion of shamilat lands in India. In the case of the petitioner he was not shown in the special Jamabandi received from India to have been in possession of any shamilat land in his village. He was, therefore, not entitled to share in the shamilat lands.

4. The learned counsel appearing in support of this petition contends that neither section 10 nor section 11 of the Displaced Persons (Land Settlement) Act, 1958, was applicable in this case, for, the cancellation had not been made, because of any fraud or misrepresentation of the part of the petitioner. 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 for the petitioner to contend that he did not know what his actual entitlement was.

5. 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.

6. The next contention of the learned counsel is that sections 10 and 11 of the said Act empower the Chief Settlement Commis--sioner to cancel only an "allotment" but not a "settlement". In the present case, since the petitioner had been permanently settled on the land within the meaning of section 15 of the said Act, the permanent settlement could not be cancelled either under section 10 or section 11.

7. A Settlement, as has already been held by this Court in the case of Bhano and another v. A. M.

8. Saeed and others (1969 SCMR 299), means a lawful settlement or a settlement in accordance with law. A settlement obtained by fraud or misrepresentation cannot be treated as a lawful settlement and, therefore, it remains an allot--ment which can be cancelled under sections 10 and 11.

9. Lastly, learned counsel contends that the-petitioner should have been allowed to purchase the excess area which was in his possession. The petitioner has no le-al right to purchase the excess area. Apart from this to allow his to do so would be clearly improper, for, he would thereby be permitted to take advantage of his own fraud.

10. In any event, this "was a matter purely in the discretion of the Settlement Authorities and since that discretion has been lawfully exercised a upon cogent and valid grounds the petitioner can have no cause for complaint.

11. The petition is, accordingly, dismissed.