P L D 1966 Supreme Court 483 (PLP)

S. A. RAHMAN, J. This is an appeal by special leave, directed against the order of the High Court of West Pakistan, dated the 15th of November 1957, by which an order of the Rehabili tation Commissioner directing revision of allotments in several Chaks, was quashed in certiorari. The order in question covered several writ petitions and Chaks. This appeal, however, is concerned with Chak No. 149/E.B., Tehsil Pakpattan, and has arisen out of Writ Petition. No. 103 of 1957, presented to the High Court. The appellant was impleaded as, a respondent to the Writ Petition in the High Court at his own request. He was a tempo rary allottee in this Chak with a verified claim, but it was alleged that he had failed to get any quasi-permanent allotment, while the second to the fifth respondents to this appeal, had received the benefit of such allotments, to his prejudice. The impugned order of the Rehabilitation Commissioner, dated the 11th November 1956, was made effective in fourteen Chaks. The intention to revise- the allotments in these Chaks as a whole, had been made manifest by proclamation by, beat of drum, in the respective Chaks, in advance of the date fixed for hearing of objections to that course. People from the various Chaks appeared before the Rehabilitation Commissioner who first called residents of one Chak collectively and heard them. He then called in turn the residents of other Chaks and accorded them similar collective hearings. The ground for revision was common to all of them and, therefore, a consolidated order was passed by the learned Rehabilitation Commissioner with reference to these Chaks. The learned Rehabilitation Commissioner started by saying that it had come to his notice that the allotments under t1ie Rehabilitation Settlement Scheme in the various Chaks, shown in the margin of his order, had not been made in accordance with that Scheme and that a very large number of sitting allottees had been deprived of their rights. It was "frankly conceded" before him that in all these Cbaks, non-allottees had been allowed to get allotments under the Rehabilitation Settlement Scheme, against the interests of the sitting allottee-claimants. He had observed in the course of that order that none of those present had any objection to the contemplated revision, necessity for which was clearly indicated. He then proceeded to say that "after a careful consideration of all the circumstances, I quash the allotments already finalised and direct that fresh allotments in the estates concerned should be made, keeping in view the directions given below:- (i) Persons eligible for allotment will be these:- (a) Who were temporary allottee and gave their claim forms for this very estate and whose claims had been received by or were pending on the date noted against each estate in the margin of the first paragraph of this order when the first or the most of the confirmations were made; (b) Who were temporary allottees and had registered their claim forms for different estates but had got the same transferred to this estate on or before the date specified above; (c) Who were Government Servants or such other non- allottees of the estate who had been permitted to be treated as allottees in accordance with Paragraph 7, Part II of the Rehabilitation Settlement Scheme and had put in claim forms for this very estate and whose claim forms were pending satisfaction on the said date; (d) Government servants and other classes of claimants mentioned in item (c) above, who had given claim forms for a different estate but had got them transferred to the said estate on or before the said date. (ii) The verified claims of the claimants detailed in item (i) above will be satisfied in full subject to availability of land. If enough land to meet their verified claims is not available, a rateable distribution should be made in accordance with paragraph, 11 of Part II of the Rehabilitation Settlement Scheme. In case of the claimants whose claims or objections were pending for verification or re-verification on the relevant date, 75 % of the area claimed or mentioned in the objection petition should be reserved, provided that if the claim or the objection petition has since been disposed of, and the actual verified area is less than the area reserved, the reservation should be considered to have been made to the extent of the area actually verified. (iii) The normal rule of permitting the temporary allottees to secure the area held under temporary allotments under the Rehabilitation Settlement Scheme on the basis of the verified claim will be observed. In cases of the other types, if a person whose claim has already been satisfied and who is entitled to secure an allotment in this village under these orders has to part with any area, that area should be taken away according to his choice and in such manner that the area left is in a compact block. (iv) In calculating the entitlement of the claimants concerned, regard should not be paid to the increase in produce indices ordered subsequent to the specified date. (v) If the area available is more than the requirements of the categories of claimants mentioned in item (i) above, the surplus may be utilised for allotment in the following order of priority:- (a) The sitting allottees who had got their claim forms transferred from other estates up to 1st June 1950 and whose allotments have since been finalised, and thereafter, (b) the non-allottee claimants who had originally registered their claim forms for this estate, and if registered elsewhere, had got the same transferred to the estate before the relevant date in accordance with the principles enunciated in the Rehabilitation Settlement Scheme." The main contention raised on behalf of the petitioners asking for a writ in the High Court was that the Rehabilitation Commissioner had no power to pass an omnibus order in exercise of his revisional jurisdiction under section 11, subsection (4) of Ordinance XVII of 1956 (hereinafter referred to as the Ordinance), without giving notice to and considering separately the cases of individuals likely to be affected by the order and that he could not review his own orders on the merits as he had appa rently done in the case of four of the estates. The question of review is not pertinent to the facts of the instant case. The contention was raised on behalf of the Rehabilitation Commis sioner in the High Court that the impugned order may be relatable to his powers exercise-able under section 7(1) of the Ordinance, to pass a "Special Order". The learned Judges found that if the impugned order could be said to have been passed under section 7 of the Ordinance, as a "Special Order", it would have the effect of setting aside a multitude of orders which had become final, in respect of allotments made; by virtue of section 13 of the Ordinance. In the opinion of the learned Judge such a power did not exist as an order passed under section 7 had to be consistent with the statute and any orders made thereunder, on the judicial side. At the same time, the learned Judges pointed out that the Rehabilitation Commissioner had not purported to act under section 7 but had professed to have exercised his revisional jurisdiction under section 11 of the Ordinance. As he had not called for the record of each separate person and did not give opportunity to the petitioners of being individually heard in respect of a particular case, the learned Judges thought that the requirements of subsection (4) of section 11 of the Ordinance had not been strictly complied with and the impugned order was, therefore, vitiated. It was further held that the impugned order, if carried out, would "invalidate" the Rehabilitation Scheme itself in several important details. The variations introduced into the situation by the new Order were in two respects. By fixing a new "relevant date" with reference to which fresh allotments had to be made, the Rehabilitation Commissioner was found to have introduced new categories of persons as claimants, who had no right to be considered as such at the time when allotments had been confirmed in favour of the petitioners before the High Court. Secondly, the produce indices on which the allotments had to be based, had been varied from time to time and by fixing a new date of reference, the scale of allotments might also be enhanced to the prejudice of those who had secured allotments earlier. As a result of these findings, the learned Judges decided to quash the impugned order with costs in favour of the petitioners to the High Court. Our attention has been invited to the averments in Writ Petition No. 103 of 1957, made by the contesting respondents it this case. They appear to have pleaded that "no sufficient notice was given to them as to the intended visit of the Rehabilitation Commissioner to Pakpattan on the 11th November 1956. Para graph 8 of the petition makes it clear that the contesting respondents had presented themselves before the Rehabilitation Com missioner but their only complaint was that their individual case were not considered and individual hearing was not granted to each one of them. It was not denied that proclamation by beat of drum had been made in the Chak intimating that the Rehabilita tion Commissioner proposed to revise all the allotments in this Chak owing to irregularities that had come to his notice. The question that falls for determination is whether the impugned order in so far it directed a general revision of allotments, could have been passed in exercise of the revisional powers of the Rehabilitation Commissioner under section 11 of the Ordinance. Subsection (4) of section 11 of the Ordinances s in the follow ing terms:- "The Rehabilitation Commissioner, may, at any time, either of his own motion or on perusal of an application, made to him in this behalf, call for the record of any proceedings rela ting to any of the purposes of this Ordinance, which is pending before, or has been disposed of by an Additional, Deputy or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or authorised agent pass such order in relation thereto as he thinks fit: Provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person, without giving such person an opportunity of being heard." Rule 8 of the Pakistan Rehabilitation Rules, 1951, provides various modes of service of notices, summonses or orders under the Ordinance. One of the modes prescribed is by publication in a newspaper or proclamation by beat of drum or other customary method in the locality. Since a large number of persons was involved in the present case, the mode chosen for giving notice of an intention to revise all the allotments, by means of beat of drum in the village, could not be described as inappropriate. The proceedings would have become unnecessarily prolonged if individual notices had to be served on all the residents of the Chak, who might be affected. Speedy settlement of the question was obviously called for and in the circumstances we do not think that any fault could be found with the mode of publication of the notice adopted, specially when it is remembered that the ground of the proposed revision was common to them all. It must, therefore, be held as a consequence that the relevant persons of this Chak had due notice of the intended revision and were given opportunity to represent their case to the Rehabi litation Commissioner, if they so desired. Apparently as the pleadings showed, the contesting respondents had put in appear ance before, the Rehabilitation Commissioner. Their only grievance seems to be that individual attention was not paid to their cases and they were not asked separately to state their objections. The learned Rehabilitation Commissioner has, however, pointed out in the course of his order that the objection was common to all these persons. With respect, it seems to us that the High Court omitted to make allowance for this most important circumstance. Reference to the respondent's record individually would have obviously afforded no assistance in resolving the difficulty that had been created by ignoring some of the temporary allottees of the Chak and giving allotments to non-allottees, to the prejudice of the former category of persons. The sitting allottees had to receive preference over non-allottees under the Rehabilitation Scheme. Indeed a consideration of each individual record would have revealed nothing, as on the face of it could not be said that the allotment taken in isolation was bad. It could only become objectionable when considered in the general context of all the claimants in the Chak and the non-claimants, as a whole. No illegality was therefore committed in calling upon the persons concerned collectively, to state whether any one of them had any specific objection to make before the general revision was ordered. The fact that irregu larities of the kind mentioned by the Rehabilitation Commissioner had been committed while making allotments in this Chak by the subordinate Rehabilitation authorities was not controverted before him. We consider that the requirements of subsection (4) of section 11 were satisfied in the circumstances of this case, as it could not be said that no opportunity of being heard was granted to the persons likely to be affected by the proposed revision. The order passed, is seen to fall within the ambit of the power conferred on the Rehabilitation Commissioner by subsection (4) of section 11 of the Ordinance. It was not the respondents case in the High Court that the Rehabilitation Commissioner had any occasion to confirm their allotments in revisional jurisdiction, at any previous date. This was not a case of revision of an already revised order. We are, therefore, disposed to hold that the learned Judges were in error in deciding against the validity of the general order of revision merely on the ground that it was an omnibus order, passed e without granting individual hearing or consideration of the record of each individual case. It was pointed out to us that Pakpattan Tehsil was a non congested area and under the Rehabilitation Scheme, its temporary allottees and non-allottees could have been allotted lands in the same round, in accordance with the instructions issued under the scheme. But the instructions also make it plain that even in a non-congested area, if the land was insufficient to meet all the claims, the existing allottees had to receive preference and non-allottees had to be considered only after the claims of the former had been satisfied. In this connection reference may be made to paragraph 7 of Part 11 of the Rehabilitation Scheme, Punjab, printed at page 383 et seg of the Evacuee, and Rehabili tation Laws, 1957. It is clear that in the present case the dispute between the parties has arisen because there is not sufficient land to go round them all. In the circumstances, allotment of lands, to non-allottees over the heads of others, holding) temporary allotments in the village, with registered claims, was certainly irregular and called for interference at the hands of the Rehabilitation Commissioner. In correcting such an irregularity the Rehabilitation Commissioner obviously, intended to ensure the proper implementation of the Scheme. It is, however, contended on behalf of the contesting respon dents that by fixing a new "relevant date" with reference to which claimants had to be considered, the learned Rehabilitation Commissioner has introduced new categories of claimants who were not in the picture at the time previous allotments had been finalised in favour of the contesting respondents in this Chak. The new date fixed in this Chak was the 4th November 1953, whereas it is alleged that most of the allotments in this village had taken place early in October 1951, and April 1952. In this connection, it is pertinent to note that the learned Rehabilitation Commissioner has clarified in his order that he was fixing a specific date for revision in each Chak, which was coincident with the date of the last order finalising allotments or at least the majority of them. There is no material on record which could cast any valid doubt on this state ment. It seems to us that this procedure was open to the Rehabilitation Commissioner and he was not really departing from any provision of the Scheme or any principle in fixing such a date. Moreover, under para. 23 of Part I of the Rehabilitation Scheme, the Rehabilitation Commissioner (Lands) can at any time pass such order consistent with the Scheme and issue such instructions as may be found necessary, with a view to securing the proper implementation of the Scheme. It is suggested on behalf of the Rehabilitation Commissioner and the appellants, that even if there was a variation of the relevant date, by order of the Rehabilitation Commissioner, such a variation could be legally made by him, in exercise of powers conferred on him by paragraph 23 of Part I of the Scheme, read with section 7(1) of the Ordinance. It is pleaded that an order of this kind would be a Special "Order" within the meaning of sub section (1) of section 7 of the Ordinance and could follow an order of general revision of allotments passed under section 11(4) of the Ordinance. Subsection (1) of section 7 reads as follows:- "A Rehabilitation Commissioner may make such general or special orders, not inconsistent with this Ordinance, as he may consider necessary for the proper discharge of his functions. Provided that no order of a general nature shall be made without the previous approval of the Central Government." It was strenuously contended on behalf of the respondents that the order in question, fixing a new relevant date, was a "general order" requiring sanction of Government and not a "special order" within the meaning of subsection (1) of section 1 of the Ordinance. This argument is based on the consideration that it affects a large number of people and was passed with reference to a large number of cases collectively. On the other hand, it has been maintained on behalf of the Rehabilitation Commissioner and the appellants that this was a "special order" in so far as it pertained to a particular Chak and was not meant to be a general order in the nature of a rule of universal application. It was designed to meet the exigencies of a particular situation that had arisen in this Chak, and was to be given effect to, once for all. We think these considerations are very material and help to fix the special character of the order. The argument raised on behalf of the appellants and the Rehabilitation Commissioner must, in our opinion, be allowed to prevail. It makes little difference if the learned Rehabilitation Commissioner did not expressly refer to section 7(1) of the Ordinance and para. 23 of the Scheme while issuing the new instruction about the relevant date, provided he had the legal power in that respect such an instruction would, on a par with instructions embodied in Part II of the Rehabilitation Scheme, which could be obviously varied from time to time in the light of experience, and in the interest of better implementation of the fundamentals of the scheme included in Part I thereof. Even if therefore, by fixing a new relevant date, those who, were not claimants in the village at the time of the earlier allotments, had been brought in, e.g. those who got their claims transferred to this Chak after this point of time but prior to the relevant date, and Government servants who were not originally claimants in this Chak but had been allowed to become claimants in pursuance of orders passed by Govern ment, no departure from the provisions of the Rehabilitation Scheme had resulted. We have not been referred to any provision of the Ordinance of the Scheme, which would be inconsistent with such alteration of date of final allotments, once a general revision of allotments had been legally ordered. The new situ ation created by such an order would justify fresh instructions as to the categories of persons in the field, who would merit con sideration. Surely, one of the principal objects of the Scheme was to Rehabilitate as many refugee-claimants and others, as possible, and even if the Rehabilitation Commissioner's order had the effect contended for by the respondents, it does not seem to be open to any valid objection. Similar considerations would hold good in the case of a direction with regard to the scale of allotments being allowed on account of change in the produce indices to be kept in view. The contention was then put forward that in some individual cases, revisions may have taken place upto the highest level in respect of allotments made, that they had therefore acquired finality under section 13 of the Ordinance and that by the present order, their finality was being destroyed contrary to the provisions of the Ordinance itself. Section 13 declares any order passed by a Rehabilitation authority to be final, subject to the provisions of sections 11 and 12, which relate to appeals and revisions. No such objection appears to have been urged before the Rehabilita tion Commissioner at the time when the impugned order was passed. It is, therefore, open to grave question if such a point, involving as it does a question of fact as to whether any such final order existing or not, should have been permitted to be raised in the High Court. The respondents could not fight other people's battles. It is clear on their own averments that no previous revisional order in respect of the respondents' allotments existed, and consequently there could be no exception possible to their cases being included within the purview of a justifiable general revision in the Chak. In the end, we might remark that the learned Judges omitted to notice that they were passing an order which might affect other persons in the Chak, who were not made parties to the writ petition before them and who had, therefore, no opportunity of being heard. With all respect, therefore, it seems to us that the learned Judges were themselves committing the same mistake, which they had apparently charged against the Rehabilitation Commissioner. We have not considered it necessary to remand the case to the High Court for a redecision, on this ground, as on the view we take on the legal points raised in the case they have been disposed of in this judgment, after hearing counsel for the parties. The grounds on which the High Court decision rests are found to be unsustainable in law. We, therefore, allow this appeal and set aside the order passed by the High Court. The operation of that order had been suspended by this Court pending hearing of this appeal. In view of the circumstances of the case, we leave the parties to bear their own costs throughout. A. H. Appeal allowed.