P L D 1975 Supreme Court 318 (PLP)

HAMOODUR RAHMAN, C. J.‑This appeal, by special leave, arises out of a judgment of a Division Bench of the former High Court of West Pakistan, Lahore, dismissing a Letters Patent Appeal in limine. The said L. P. A. itself arose out of a judgment of a learned Single Judge of the same High Court in a writ petition, which was filed by the respondents herein for calling in question an order of the Deputy Rehabilita tion Commissioner, Multan, passed on the 17th November 1961, and an order of the Additional Rehabilitation Commissioner dated 16‑4‑1962, cancelling their allotments in Chak No. 2, Gulzar, Tehsil and District Multan. The writ was allowed on the short ground that the Deputy Rehabilitation Commissioner had passed the order without making the respondents party to the proceedings before him and without giving them any notice. The respondents, who are claimant displaced persons, it appears, filed claim forms for lands abandoned by them in the Assessment Circle of Rangoi in Fatehabad Tehsil of Hissar District, in India. These allotments were described in the 'Farde Haqiat' issued to them as `Sailab Lands' but this type of sail found no mention in the Revenue records of the assessment ,circle of Rangoi in Fatehabad Tehsil of Hissar District. Consequently, no mention of this type of land was made in the booklet prepared for the calculation of the produce index units. The respondents, however, allege that on the direction of the then Financial and Rehabilitation Commissioner, Mr. Akhtar Hussain, 'Sailab lands' of Fatehabad Tehsil were to be calculated at 40 P. I. units per acre and the claim forms of all persons migrating from the said Tehsil were verified in accordance with the above formula at the rate of 40 P. I. units per acre and lands were confirmed to them at that rate as far back as the 9th ‑October 1952. The present appellants, who were also claimants displaced persons from Fatehabad Tehsil of Hissar District, moved the Revenue Assistant, Multan, in 1961, alleging that the respondents had wrongfully obtained allotments by falsely representing that 'sailab lands' left by them in their native village were to be evaluated at 40 P. I. units. In this way, it was alleged, the respondents had fraudulently obtained an excess allotment of 705 P. I. units equivalent to 26 acres of land. The Revenue Assistant referred the matter to the Deputy Rehabilitation Commissioner, who, by his order of the 17th November 1961, cancelled the excess area of the .Respondents holding that `sailab soil' in the Fatehabad Tehsil was to be .evaluated at only 22 P. I. units according to the booklet prepared for calculating the produce index units. The respondents alleged that they were not parties to these proceedings nor were they given any notice before the cancellation of their excess area. In fact, according to them, the complaint filed by the appellants was against some other persons regarding allotments in Chak No. 12/MR, Multan. They, accordingly, went up in appeal to the Additional Rehabilita tion Commissioner, but the same was dismissed on the 16th April 1952. A revision petition was then, it is said, filed before the Settlement Commissioner but during its pendency, the cancellation was given effect to on the 18th April 1962. Thereafter, the Settlement and Rehabilitation Commissioner on 29‑6‑1962 consigned the revision to the record until after the decision of a writ petition then said to be pending in the High Court concerning the same subject‑matter. The respondents then moved the High Court by Writ Petition No. 2106/R of 1962. The learned Single Judge also noticed that a Writ Petition No. 94/R of 1960 (Muhammad Ayoob Khan v. Muhammad Yar Khan) dealing with the same subject‑matter had been dismissed by another learned Judge on the 19th December 1960, but a Letters Patent Appeal No. 22 of 1961 had been admitted and was awaiting decision. Nevertheless, the writ was allowed by order dated 18‑10‑1965 on the ground that the order had been made without hearing the respondents. The impugned orders were set aside and the case was sent back for fresh decision after notice to the parties. The appellants then sought a review of the order on the ground that the respondents had suppressed the fact that they too were summoned by the Deputy Rehabilitation Commissioner and had made oral statements before him which were duly recorded. The respondents were also heard by the Additional Rehabilitation Commissioner. The review was, however, dismissed as being incompetent in the writ jurisdiction. The appellants then went up in Letters Patent Appeal but the same was, also dismissed in limine on a new ground not considered or taken before the learned single Judge. The Letters Patent Bench took the view that the entire proceeding for cancellation was without jurisdiction as section 10 of the Land Settlement Act, 1958, was not attracted at all. There was no finding by the Deputy Rehabilitation Commissioner that there had been any fraud or false represen tation on the part of the respondents. On the other hand, the order made it clear that originally the Central Record Office had fixed 22 P. I. units as the value of the land abandoned by the respondents and others in the Assessment Circle of Rangoi in Fatehabad Tehsil, District Hissar but on the migrants' representation, the Rehabilitation Commissioner had increased the, number of units to 40 produce index. Leave was granted in this case because it was felt that the disposal of the case in the High Court had not been on lines consistent with the requirement of justice or within the jurisdiction conferred by Article 98 of the Constitu tion of 1962. The learned Single Judge had proceeded on a ground which was not taken in the writ petition and was factually incorrect. The respon dents had, in fact, been made parties to the proceedings before the Deputy Rehabilitation Commissioner. The present appellant had, along with his application for review, filed documents to show that the respondents had notice of the proceedings before the Deputy Rehabilitation Commissioner, but the review was dismissed on the ground that no such power of review existed. The Letters Patent Bench proceeded on an entirely new ground. Learned counsel appearing in support of this appeal has contended that the Deputy Rehabilitation Commissioner had actually caused notices to be served on the respondents then recorded a joint statement of 17 persons, including some of the respondents and given a finding that the proper evalua tion of the land was 22 P. I. units. Against this order, the respondents went up in appeal and they were fully heard by the Additional Rehabilitation Commissioner. They did not challenge the order of the Additional Rehabili tation Commissioner in revision, but some of the other affected persons went up in revision to the Settlement Commissioner. It was at their request that the revision was consigned to the record. In this view of the matter, the ground on which the writ petition was allowed did not exist. So far as the review was concerned, the learned Single Judge in the High Court was again wrong in holding that he had no power of review. This question has now been finally settled by this Court in the case of Hussain Bakhsh v. Settlement Commissioner (P L D 1971 9 C 1). So far as the Letters Patent Bench was concerned, its decision was based on grounds which were not considered by the learned Single Judge at all. This the Letters Patent Bench could not do. It is a well accepted principle that where the new question of law sought to be raised before a higher Tribunal also involves investigation into questions of fact it ought not to be allowed to be raised for the first time in the higher forum. So far as the merits of the case are concerned, learned counsel states that the question of evaluation of 'sailab soil' in the Rangoi Assessment Circle, Fatehabad Tehsil, Hissar District, has now been considered in a number of cases by the Lahore High Court. The same High Court in the case of Mohammad Ayoob Khan v. Muhammad Yar Khan Writ Petition No. 94/R of 1960 held that 'sailab land' in this assessment circle has to be classified as "un-irrigated land" and evaluated at 22 P. I. units. This decision was upheld in Letters Patent Appeal and is now reported as Muhammad Ayoob Khan v. Chief Settlement Commissioner (P L D 1968 Lah. 495). Lastly, learned counsel maintains that in view of the fact that the res pondents had concealed material facts from the Court, the writ petition should not have been allowed as the result thereof has been that the res pondents have been allowed to keep their ill‑gotten gains. They should not have been allowed to do so, as was pointed out by this Court in the case of Wall Muhammad v. Sakhi Muhammad (P L D 1974 S C 106). Learned counsel for the respondents has not controverted the technical points raised by the learned counsel for the appellants but has requested this Court to resolve this question of the evaluation of 'sailab lands' of the Rangoi assessment circle, once for all. In fact, he has challenged the correctness of the decision of the High Court in the case of Muhammad Ayoob Khan v. Chief Settlement Commissioner and has contended that the High Court has wrongly applied sub‑paragraph (3) of paragraph 16 of the Rehabilitation Settlement Scheme. Actually, it is sub‑paragraph (4) which should have been applied. Sub‑paragraphs (3) and (4) of paragraph 16 read as follows:‑‑ "(3) If on verification of claim classification of soil in respect of irrigated and un-irrigated land is shown in 'Naqal Fard Haqiat' but it is not given (against the assessment circle concerned) in the produce index booklet, the produce index of highest class of each kind (irrigated or un-irrigated), as the case may be, shall be taken for calculating the produce value of the abandoned land. (4) If land has been shown in the 'Fard Haqiat' to be of a particular type of soil whereas no mention is made of this type of soil in the assessment circle in which the land is situated in the prescribed territory of India and consequently no provision has been made for this kind of soil in the produce index booklet nor, in some cases, have separate indices been given to irrigated or un-irrigated land, as the case may be, in that particular assessment circle, the Rehabilitation authority in order to cope with such cases will adopt the highest produce index units of the same kind of soil in any of the adjoining assessment circles for the purpose of calculating the produce value of the abandon ed land referred to above instead of returning the 'Fard Haqiat' to the Central Record Office for further scrutiny and instructions in the matter." The learned counsel contends that the learned Judges of the Division Bench in the case reported in P L D 1968 Lah. 495 had made a differentiation between classification of soil and class or kind of land although really no such differentiation existed. He has also referred to the booklet prepared by the department itself for the calculation of the produce index units to show that 'sailab land' had been treated by the Settlement Department itself as "irrigated" land in various tehsils and evaluated at a much higher rate than some other kinds of "irrigated" land. 1n any event, it is contended that under sub‑paragraph (4) since this type of soil has not been mentioned in the assessment circle concerned, the higher evaluation of the same or similar type of land in an adjoining circle should be taken. In the adjoining assessment circle of 'Nali.' similar type of land would be 'Zer Tughyani' land and its evaluation should be comparable to the evaluation made for 'sailab land' in Rangoi assessment circle in Fatehabad Tehsil. In view of this dispute regarding the formula to be adopted and the different evaluations given to 'sailab land' in different assessment circles in the booklet, we considered it advisable to call for the Tehsildar of the Central Record Office to appear before this Court. He has appeared and has now explained that there is no confusion in the judgment of the High Court reported in P L D 1968 Lah.

495. The differentiation between classification of the soil and the class or kind of land has actually been made in the Punjab Settlement Manual, by Sir James M. Doule, itself. Paragraphs 258 and l9 of this Manual which deal with soils and classes of land, are in the following terms:‑

258. Soils and classes of land.‑The knowledge of soils which a Settlement Officer should possess must be the fruit of close and constant observation. But as an aid to the understanding of what he observes or hears from the people he will find the 3rd Chapter of Moreland's "Agriculture of the United Provinces" useful. Soils differ naturally one from another in respect of their mineralogical and chemical com position, and what is often more important in a country of scanty or capricious rainfall) in respect of the mechanical arrangement of their component parts. Thus we have the broad classification of clay, loam, and sand. They are also distinguished by adventitious differences a5 irrigated and un-irrigated, manured and un-manured, difasli and ekfasli. It is best to use the word "soils" only to denote varieties resulting from the inherent qualities of the land and to describe varieties due to advantitious qualities as "classes" but this distinction is not always observed. When the differences, whether natural or adventitious, are so great as to cause a marked inequality of renting value, their recognition in the record is essential both for assessment purposes and for the proper distribution of the demand over holdings. A Settle ment Officer must make up his mind at an early stage of his operations what classification of land he will adopt. Till this is decided the field entries in the khatawani must remain incomplete.

259. Classes of land.‑In a country of small rainfall the most important division of land into classes is that founded on the source from which the moisture required for the growth of the crops is derived. Thus land is classified as:‑ (a) Barani‑dependent or rainfall; (b) Sailab flooded or kept permanently moist by rivers; (c) Abi‑watered by left from tanks, jhils, or streams. This term is also applicable to land watered from springs; (d) Nehri‑irrigated from canals. Where a Government Canal and small, private canals exist in the same district the land served by the former is sometimes distinguished chahi nehri; (e) Chahi, watered from wells. The terms is sometimes sketched so as t include irrigation from jhalars erected on the bank of a stream, It is better to describe land dependent on jhalars as ihalari or abi. The first two classes fall under the general head of un-irrigated, and the last three under that of irrigated land." From this, it will appear, that there is first a broad division into clay, loam and sand and then into two more broad divisions of "irrigated and un-irrigated" land. Thereafter, five most important classifications are made on the basis of the source from which the moisture for the growth of the crops is derived. One of these classifications is "sailab" but "sailab" land falls under the general head of "un-irrigated land" and, therefore, has been rightly treated by the High Court, in the above‑mentioned judgment, in that class and evaluated at the rate of 22 P. I. units. The Tehsildar, Central Record Office, Mr. Razi Haider, has explained that 'sailab land' has, nowhere, been treated in the Settlement Manual as "irrigated" land and, therefore, 'sailab land' in this Tehsil has not been treated in the P. I booklet as irrigated land. The evaluation of the land Tehsil-wise or circle‑wise has been made on proper examination of the nature of the soil, as required by the Settlement Manual, which is not a arbitrary classification and, therefore, there is no confusion in the booklet either. In certain 'Tehsils 'sailab land' may well have been differently evaluated in the booklet, although still treated as "un-irrigated" land. It does not, however, follow from this that because 'sailab land' is un-irrigated land, it must have the same evaluation in all Tehsils. The evaluation is made on a proper assessment of the nature of the "sailab" by the Revenue Authorities and, therefore, one cannot interpose the evaluation of 'sailab lands' in one Tehsil into another Tehsil. This Officer has also explained that sub‑paragraph (4) of paragraph 16 of the Rehabilitation & Settlement Scheme has no application, because, the words used in this paragraph are "the same class of land" and not similar class of land in the adjoining assessment circle. A reference to the booklet will also show that the same class of land is not to be found in the adjoining circles, Therefore, it is not possible to apply the provisions of sub‑paragraph (4) in the present case. The case was, therefore, rightly held by the High Court to be governed by sub‑paragraph (3). Having examined the record, we are satisfied that the respondents were duly heard before the Deputy Rehabilitation Commissioner and this is the reason why this ground was not taken in the petition. The ground, which prevailed with the learned single Judge, therefore, was not only factually incorrect but also not a ground which had been taken in the petition itself. In any event this defect was cured when they were heard by the Additional Rehabilitation Commissioner. The Letters Patent Bench also, in our opinion, proceeded on a point, which had not been raised by the parties or argued before the learned Single Judge. However, since we have now gone into the merits of the evaluation itself, we do not consider it necessary to dispose of this appeal purely on these technical grounds. We have come to the conclusion that the decision of the Division Bench of the Lahore High Court in the case of Muhammad Ayoob Khan v. Chief Settlement Commissioner was correct. It has been consistently followed in the Lahore High Court. It follows, therefore, that this appeal must be allowed. The cancellation was, in every way, just and proper. This appeal is, accordingly, allowed. The order of the High Court remanding the case for fresh decision is set aside and the order of the Additional Settlement Commissioner, passed in appeal on 18‑4‑1962, is restored. Since the question of the evaluation of the P.I. units of this class of land was not entirely free from difficulty, we make no order as to costs. K. B. A. Appeal accepted.