1969L117 (PLP)

This judgment will dispose of Civil Revision Nos. 266, 267, 270, 271, 272, 273, 274, 284, 285, 289, 322, 345, 268, 305, 306, 307 and 338 of 1967. The first 12 revision petitions relate to the Ejected Tenant Scheme while the last five petitions‑relate to the Grow More Food Scheme under the Colonization of Government Lands (Punjab) Act (V of 1912). They arise out of suits filed by the petitioners. Along with the suits, applications for temporary injunction were filed ; but the same have been rejected by the learned trial Court and the learned .District Judge, in first appeal ; therefore these revision petitions. As common questions arise ; therefore, all of them are being disposed of together.

2. Briefly stated, the circumstances leading up to the present petitions are that in 1952, the Government enforced a Scheme popularly known as `Ejected Tenants Scheme' under the Colonization of. Government Lands (Punjab) Act (V of 1912). It provided for the allotment of State land to local and refugee tenants and small land‑owners subject to various conditions, including the one that the allotments were liable to resumption without any compensation if, at any time, the allotted land was needed by the. Government, for any other purpose which the Government may consider essential. In 1960, a Scheme for the transfer of proprietary rights to the allottees under the Ejected Tenants. Scheme was enforced. This was subject to the condition that lands within ten miles of the limits of First Class Municipality and within five miles of Second Class Municipality were excluded ; meaning thereby that those allottees whose lands fell within, the above limit of distance could not be granted proprietary, rights nor could they be granted alternative land under the Ejected Tenants Scheme.. In implementation of this latter Scheme, some of the allottees were granted proprietorship while others were refused ; allegedly, because they did not fulfil the conditions of the above‑mentioned Schemes. Out of the latter category, particularly those falling within the prohibited limits mentioned above, were required to surrender the lands for the purpose; of auction, by means of tender on yearly lease basis. The petitioners, in the first 12 petitions, belong to this last‑mentioned category of ejected tenants. They filed civil suits, contending that they had not committed any breach, of the conditions ; therefore, they could not be dispossessed from the land and sought permanent injunction against the Government. Some of them, of course, asked for the grant of proprietary rights as well. Those of these petitioners, who admitted that their allotments fell within five/ten miles limits mentioned above, further contended that the said fact might be relevant for not granting them the proprietary rights but, by itself, it was not sufficient to resume the lands from them. To be precise, they took the position that unless they committed the breach of any of the conditions of the lease, the lands could not be resumed from them. There are some petitioners who disputed the fact that the lands under their allotment fell within those limits. Ho never, almost all of them specifically raised the plea in the plaints that the impugned action was illegal and also mala fide. As stated earlier, they filed applications for grant of temporary injunction. The same having been refused by the learned Courts below, they filed the revision petitions seeking temporary injunction, as prayed, pending the final disposal of their suits. Another Scheme popularly known as `Grow More Food Scheme' was enforced by the Provincial Government under the Colonization of Government Lands (Punjab) Act, in 1956. As the name of the Scheme indicates, it was in aid of the Grow More Food Compaign. Land was allotted to the cultivators initially, for three years but the period was subsequently extended to five years. In 1962, the Government decided to grant proprietary rights to the allottees under the Grow More Food Scheme. The right to acquire proprietorship in this land was subject to some conditions. One of them was that the term of lease should have subsisted uptill Rabi, 1962, or thereafter ; meaning thereby that the leases which expired before that time were allegedly not covered by it. The prohibitive condition as to the land being within the prescribed distance of Mandis, Towns, Municipalities and Railway Stations was also imposed. The lands which could not fall under this latter Scheme were to be auctioned. The petitioners, in the last‑mentioned five petitions, were allottees under the Grow More Food Scheme. Their lands were ordered to be resumed and were included in ‑the auction Schedule. Therefore, the petitioners therein filed civil suits, seeking the declaration that they, having fulfilled the terms and conditions of the Scheme, were entitled to the grant of proprietary rights. They also filed applications along with the suits, seeking temporary injunction. The learned Courts below having refused this relief, they have filed the revision petitions seeking temporary injunction, as prayed.

3. The matter came up before my learned brother Muhammad Akram, J., in motion hearing on 25th May 1967, on Civil Revision No. 272 of 1967. His Lordship, in a detailed order, after having mentioned the background of the case, noted the following arguments on behalf of the petitioners :‑ "(a) That the case of the petitioners is not in terms covered by the directions contained in Memo. No. 5978/63‑268‑GG‑III, dated 25‑1‑1964 from the Secretary (Colonies) Board of Revenue, West Pakistan, Lahore, to the Deputy Commissioner, Lyallpur. That latter contains the direction against the tenants who were found to be `ineligible to get the proprietary rights'. In the present case, according to the learned counsel the land in suit was excluded from the operation of the Scheme for the grant of proprietary rights‑to the allottees by virtue of its location within the 5 miles radius from the limits of the Municipal Committee and it cannot be said that the petitioners were ineligible to get the proprietary rights within the meanings of the said Memorandum and as such liable to ejectment. (b) The learned counsel has vehemently relied on another Memorandum No. 3928/64‑1311‑GG‑III, dated 6‑5‑1964, from the Secretary (Colonies) Board of Revenue, West Pakistan, to all the Deputy Commissioners in the former Punjab Province and Bahawalpur State issued in consultation with the Law Department whereby it was decided that the rent of State land lying within 5 miles radius of the outer limits of second class Municipalities and leased out to the ejected tenants should be charged at the rate of twelve times the land revenue with effect from 31‑3‑1961. The learned counsel has also relied on similar other letters (issued) in this connection issued from time to time. From this he wishes me to infer that the continuing possession of the allottees of the land falling in this category was expressly recognised by the Government. (c) The learned counsel has also drawn my attention to the order dated 20‑1‑1967, passed by the Supreme Court in Civil Petition for Special Leave to Appeal No. 604 of 1966, Khushi Muhammad and others v. The Board of Revenue and another admitted to a full hearing." After noticing the above arguments, his Lordship observed as follows :‑ These arguments deserve to be seriously considered. He has got a case to argue which is not bound to fail on the face of it. His Lordship then passed the following order :‑ The petitioners are threatened with the dispossession of the land any moment ..issue the temporary injunction in favour of the petitioners against the respondents restraining them from interfering with their possession of land in suit till further orders. During the regular hearing of these petitions, the learned counsel for the petitioners have sought the confirmation of the above order, while Raja Said Akbar Khan, the learned Advocate -General, has vehemently argued that there being no jurisdiction for temporary injunction, the revision petitions be dismissed ; which obviously will have the effect of the withdrawal of the above order.

4. Almost all the learned counsel for the petitioners, in their arguments, have tried to show that none of the petitioners have committed any breach of any of the conditions of the schemes mentioned above ; that the Board of Revenue has no power or jurisdiction to modify a Scheme promulgated by the Government ; and that, in any case, if any of the petitioners are not entitled to the grant of proprietary rights, they are not liable to ejectment so long as they continue to satisfy the conditions of their lease. The learned Advocate‑General, in reply, stated that the revision petitions are not to be decided on the merits involved in the individual cases. The question to be determined for the purpose of grant of temporary injunction is not distinguishable in any of the petitions. The all important question, according to him, is that the lease, whether under the one or the other Scheme, being of State land, the petitioners have no vested right, to either claim the grant of proprietorship or to continue in possession on fulfilment of the conditions ; because, as he put it, it was a concession and, in any case, an ex gratia (grant) and the withdrawal thereof does not involve the infringement of any right whatsoever. In the alternative, the learned Advocate‑General has argued that the revision petitions are not competent. In fact, he wanted to raise the second contention as a preliminary objection but he preferred to argue the other major contention, at some length ; and thereafter raised the objection as to competency of the revision petitions.

5. I agree with the learned Advocate‑General that the main question involved in all these revision petitions is whether or not the alleged rights, if any, under the Schemes and Instructions connected therewith can be enforced by means of civil suits. If his argument, that the allotment/lease and the so‑called right to acquire proprietorship or to continue in possession is only a concession or ex gratia (grant), is accepted, the petitioners have no prima facie case and would thus be not entitled to a temporary injunction. The learned Courts below have also proceeded on the line of argument advanced by the learned Advocate‑General and have, without going into the merits of the claims of each petitioner/plaintiff in the suit, refused the grant of temporary injunction, mainly because it was found that the petitioners/ plaintiffs have no prima facie case. Therefore, in these petitions, the only question to be determined is the one decided by the learned Courts below and raised by the learned Advocate- General, as stated above. Evidently, if on the determination of that question it is found that the view taken by the learned Courts below is not maintainable, the petitioners might succeed ; and if that view can be maintained, there is no chance of their success. On this approach to the revision petitions, in fact all the learned counsel, at one stage, agreed and thereafter addressed arguments and cited case‑law on this question, subject of course, to their position on maintainability of the revision petitions.

6. The learned Advocate‑General, in elaboration of his plea as to the ex gratia nature of the allotments, has relied on a Division Beach judgment of this Court reported as Raja and others v. Member, Board of Revenue and another (P L D 1967 Lah. 329). In fact, this judgment has been relied upon by the learned Courts below as well. This was a case relating to the Ejected Tenants Scheme and it is true that the contention raised by the learned Advocate -General did find favour with their Lordships. The following observations from the judgment are reproduced, for reference sake :‑ "On the above principle, therefore, if in any given case, the Government declines to accept the option of any eligible tenant, then a tenant even if eligible cannot on any known principle enforce his option by means of a writ unless it is accepted by the Government. It is equally erroneous to view the memorandum of the 8th of October 1960, as an agreement for the transfer of proprietary rights in the land by the Government, for there is no mutuality in terms of the memorandum. The instructions contained therein were entirely in the nature of ex gratia concession allowed unilaterally by the Government to the grantees under Ejected Tenants Scheme, as a result of policy decision and it was open to the Government to make any exception without assigning any reason. The very fact that lands situate within 10 miles of a First Class Municipality and within 5 miles of a Second Class Municipality have been excluded from the grant of proprietary rights is highly significant." It was vaguely suggested by one of the learned counsel for the petitioners that the above cited case is not applicable to the matter before the because the question involved, in that case, was whether or not a writ petition was competent. I do not agree with this interpretation. In my view, their Lordships, while mentioning that the so‑called rights could not be enforced by means of a writ petition, also considered the nature of the right claimed and held it to be an ex gratia concession in respect of which no claim could be enforced in law. Whether the enforcement is through a writ petition or through a civil suit, I am of the view that the observations made by their Lordships will be fully attracted. But the matter does not end with the above analysis of the case cited by the learned Advocate‑General. In a recent judgment of this Court in the case of Muhammad Ashraf v. Board of Revenue, West Pakistan and another (P L D 1968 Lah. 1155), a Division Bench considered, at length, the above cited judgment as well as the unreported judgment in Writ Petition No. 684 of 1960, referred to in the impugned order passed by the learned trial Court, and have declined to follow the reasoning and ratio decidendi of those judgments. Raja Said Akbar Khan, the learned Advocate. General, himself appeared, in Muhammad Ashraf's case, in the High Court and raised the same plea as he has raised before me. In a detailed judgment written by Qadeeruddin Ahmad, A. C. J., after referring to some observations made in the famous cases of the Montgomery Flour and General Mills Ltd. v. The Director, Food Purchases, West Pakistan and 2 others (P L D 1957 Lah. 914) and 1kram Bus Service and others v. Board of Revenue, West Pakistan and 2 others (P L D 1963 S C 565) his Lordship observed as follows The last‑mentioned two judgments were delivered under the late Constitution and the Laws (Continuance in Force) Order, 1958. The law has subsequently developed distinctly in favour of that point of view. Article 2 of the present constitution recognizes that it is the right of every citizen that he should be treated in accordance with law and only in accordance with law . This right is described in the Article to be the inalienable right of every citizen . Reading this provision with the provisions of Article 98 of the Constitution, we are led to the conclusion that a party who stands to gain a benefit or advantage by the observance of law can consider itself to be an a aggrieved party if the law is not observed and thus it stands to be deprived of that benefit or advantage. In this view of the matter, we are not able to see the problem from an angle which may give to the observance of law the look of an ex gratia act. It will not be out of place if we advert to the meaning of the expression "ex gratia" because it has been used in this connection by a Revenue Officer as well as by the Advocate- General in his address. The expression literally means "out of, or as a matter of, grace". The word "grace" here means "favour". The Advocate‑General said that transfer of proprietary rights to the lessees was a favour because the lessees were to get these rights without paying consideration for them. According to him they had no enforceable claim. There was a provision, he said, to transfer the rights to them, but it was unenforceable in law like an agreement to make a gift. This point of view, to our minds, has an entirely wrong angle. The scheme and all transfers to be made under it are for the benefit of the State. All the wealth, assets and resources of the country vest is the State, for the benefit of the citizens, because we are a Republic. (See L R (1866‑7) 2 Ch. A 582 at p. 587). They are not the property of any indivi dual. It follows, therefore, that nobody has a right to squander away the national wealth, nor to gain private advantage by making gifts out of it, irrespective of whether the advantage is substantial or sentimental. The State can give presents as well as make gifts, but they must be given or made for the advantage of the citizens the State or the State itself which is the paramount organisation of the citizens ; otherwise such acts would amount to misappropriation of the property of the State. The State has policies, objectives, rights, interests, obligations and duties but no mere sentiments, with the result that there can be no sentimental transfers which do not serve the State in the advancement of any of one or more of its purposes. We cannot, therefore, accept the argument of the Advocate‑General that the transfer of rights in the leased lands was like a gift made by an individual without any purpose of the State. If we are right in holding this view then, in this case, the transfer of rights, was, to be made in furtherance of the schemes of the State to encourage the inhabitants of the country to grow more food, and thus to advance a policy of the State. The fulfilment of the conditions of the Schemes, therefore, made it incumbent on the State that the law be thus honored. Was the Scheme and its conditions a law. In our view the instructions issued by the Board of Revenue in connection with the allotment of and transfer of proprietary rights in, the land had the force of law and were not mere departmental instructions issued internally for the information of the Revenue Officers . I entirely agree with all the above‑quoted observations and most respectfully follow and adopt the view taken therein. The discussion of the question involved is so elaborate, in the above cited judgment, that I need not add anything to what has been said therein. However, it may be mentioned that the concept of the dealing of the State with the individual citizen and his rights has undergone an important change in the judicial history of this country in the last decade, particularly in the recent half of it. In‑ a case, dealing with the legal force of decisions by the Rehabilitation Commissioner, laying down general rules and conditions for the managing allottees of cinemas, under the Rehabilitation Laws, reported as Hamidullah and another v. Rai Khurshid Ahmad Khan etc. (PLD 1958 SC (Pak.) 516), their Lordships of the Supreme Court were pleased to observe at page 521 of the report, as follows :‑ Although these decisions were not expressed in legal form, there can be no doubt that they were taken by the Rehabilita tion Commissioner in exercise of his statutory powers, and were of a general nature applicable to all persons falling within the category of managing allottees of cinemas. It was stated before us that these decisions have been applied in the case of all cinemas generally. I, therefore, although it might be thought that these decisions did not create any legal or vested right in any managing allottee, yet, being of a general nature, applicable to all managing allottees, and having been reached in exercise of powers vested in the Rehabilitation Commissioner by statute, they constitute a law of which the application may be invoked by an affected person at least on the basis of the constitutional provision that "all citizens are equal before law and are entitled to equal protection of law" (Article 5). (Underlining* is mine). The observations of their Lordships of the Supreme Court about the connotation of law and its observance fully cover the `Schemes' in this case. The Government is bound to observe and follow this law and cannot put forward the considerations and plea as to `concessions and ex gratia (grant) which notions in the particular context are only the concepts of past. While dealing with the rights and claims of the ordinary citizen, the Government functionaries, how‑high‑soever they may be, cannot ignore the mandate of `law' as defined by the Supreme Court. The above change, which I must say, is in the philosophy of law of this country, has been given the constitutional recognition in the 1562‑Constitution in the forth of Article 2 thereof. The substantive/fundamental law in Article 2 has been supported and supplemented by other substantive and jurisdictional provisions in Part 11, Chapter 1 and Article 98 of the Constitution. The right of every citizen to enjoy the protection of law, and to be treated in accordance with law, and only in accordance with law, is inalienable and inviolate. In my view, this Article also recognizes the sovereignty of the people in the form of authority delegated as a trust from the Almighty ash the sole Sovereign ; but it is not necessary in this case to discus that aspect. The use of the selected words like ; `enjoy' ; `protection' ; `treated' ; and only in accordance with `law' ; and `inalienable', is highly significant and important. This Article came up for interpretation before their Lordships of the Supreme Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14). The case is so well‑known that I need not give the background, which otherwise too is not directly relevant for the present discussion of the scope of Article

2. It will suffice to reproduce the observations made by their Lordships in this behalf. They are :‑ In my view the words "in an unlawful manner" in sub‑clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down bylaw. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner." If the above interpretation of Article 2 is applied to the present case, the Schemes an other material relied upon by the petitioners would have to be treated as law. They are then clearly entitled to its protection an to a treatment according to it.

7. The question of mala fide has also been raised in the suits out of which these revision petitions arise‑ Their Lordships also dealt with the definition and scope of mala fides in the case of Begum Agha Abdul Karim Shorish Kashmiri in the following observations at pages 32 and 33 of the report :‑ "If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fides or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala tide action is not action in accordance with law. Decisions are also, not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reasonableness would be pertinent in an enquiry as to mala fides." The real question, to my mind, in every case of mala fides is ; Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did? ‑ A person acing in pursuance of a statute cannot be said to be acting bona fide if he hay no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner." In the light of the above observations, the petitioners are entitled to, the adjudication of their plea in the suits that the impugned action as to their allotments was `illegal' and also `mala fide'. The result of the above discussion is that considering the position of the law, as explained and defined above, it is not possible to say that the petitioners have no case, on the arguments mentioned in the judgments of the learned Courts below tar raised by the learned Advocate‑General. On the contrary, the petitioners have a prima facie case. Therefore, the main ground for refusing the temporary injunction to the petitioners, taken up in the learned Courts below, being that they had no prima facie case, which obviously as discussed above is not correct, they are entitled to the grant of temporary injunction. It may be mentioned that in some of the orders passed by the learned District Judge, it was observed that the petitioners would not suffer an irreparable loss and that they had not come to the Court with clean hands ; therefore, these were mentioned as additional grounds for dismissing the appeals. The learned trial Court had, earlier, held that the petitioners would suffer irreparable loss and that the balance of convenience was in their favour ; but due to the major question, of right involved in the matter, had refused the temporary injunction. I agree with the assessment of the learned trial Judge on the question of balance of convenience and that of irreparable loss. The petitioners are cultivators of small holdings, If they are ejected and the lands are auctioned, they would, undoubtedly, suffer irreparable loss and it will not be possible to measure the damage suffered by them, particularly at the time that their suits are decided in their favour. They are not likely to stay at or near the land involved and the question of compensation will become very complicated so as to permit any measurement. With regard to the question of the petitioners having not come with clean hands in the Court, the matter is very simple. The learned District Judge was of the view that the petitioners having no right to remain in possession of the land should not have retained the possession. This amounts to arguing in a circle. If the petitioners have a prima facie case, their remaining in possession and then seeking for its protection is not, at all, unjustified on the basis of any principle whatsoever. Therefore, I am of the view that all the conditions including that of "balance .of convenience and prima facie case" having been fulfilled in these petitions the petitioners are entitled to the temporary relief claimed.

8. Before passing on to the next question, it is necessary ,to refer to some other cases relied upon by the learned Advocate -General. He cited Ghulam Muhammad and another v. Board of Revenue and another (1968 SCMR 455) and Bashir Ahmad and another v. West Pakistan Government and others (1968 SCMR 491). These two cases dealt with ‑some of the questions which are to be finally determined in the suits relating to the Ejected Tenants Scheme, out of which these revision petitions arise. However, it is most significant to note that their Lordships of the Supreme Court did not decide those cases on the consideration of the question, as to ex gratia nature of the allotment, raised by the learned Advocate‑General before me. Moreover, the matter before their Lordships arose out of a decision by the High Court on writ side and at a stage when all the questions, in individual cases, had not yet been scrutinized by means of enquiry during regular trials. The following observation at page 457 of the report in Ghulam Muhammad's case is relevant in this behalf :‑ "In all the circumstances, the entertainment of a challenge to the proposed action would have been best postponed until the threat to the position of each writ petitioner had become immediate, i.e., when there had been eviction notices issued individually." In the suits relating to Ejected Tenants Scheme filed in the present matters, the plaintiffs have raised the question of mala fides also. They are entitled to adduce evidence on this question. Each case may be examined by the trial Court with reference to the points raised therein ; and in that context it may be possible for a party to argue that, in a particular case ; either it was not essential for the Government to evict the plaintiff‑petitioners ; or that it was not beneficial for the Government, in the particular set of circumstances, to auction the land by means of tender ; as it may not be advantageous to She Government nor may it be essential. In any case, the question of mala fide having been raised in the suits, the respective rights of the parties are yet to be examined. In the case of Bashir Ahmad, the decision by their Lordships of the Supreme Court is based on the fact that the appellants therein: were not qualified, initially, for the grant of the land under the Ejected Tenants Scheme. Therefore, that case is also distinguishable. The learned Advocate‑General then cited Allah Diwaya Shah v. Member (Colonies), Board of Revenue, West Pakistan (1968 S C M R 1197) and Province of West Pakistan v. Rahim Bakhsh (1968 S C M R 1328). In addition, to that, he cited the order of their Lordships, dated 12th. February 1969 in P. S. L. A. Nos. 386 to 402 of 1963, whereby leave to appeal has been granted in the case of Muhammad, Ashraf decided by this Court, referred to above. In the case of Allah Diwaya Shah, leave to appeal was refused because their Lordships of the Supreme Court were of the view that the petitioner therein had committed breach of the conditions of, tenancy. In the case of Rahim Bakhsh, leave to appeal has been, granted to consider the question, namely, whether the promise of concession of sale contained in a ; Memorandum of the Board of Revenue was not, by its nature or expression, an enforceable undertaking. And in the last‑Mentioned order, dated 12th February 1969, leave was granted by reference to the earlier orders passed on several other petitions. These orders do not, help the learned Advocate‑General. Undoubtedly, leave has been granted to examine the main question discussed above and which, at present, stands decided by the Division Bench judgment of this Court P

1. D 1968 Lah. 1155. In this view of the matter, it is not possible to agree with the learned Advocate‑General that the petitioners have no prima facie case.

9. There is another aspect of the matter. At one stage of the arguments, the learned Advocate‑General took a definite: position that after the Division Bench judgment in the case of Muhammad Ashraf, the situation as to the question of law, involved is that the latest Division Bench ruling on the point is that of the High Court which favours the petitioners, while the: Supreme Court has granted leave to appeal in many cases, including that case ; therefore, as he put it, the law should be treated as in a `fluid' state. I do not agree with him that the decision by the Division Bench in Muhammad Ashraf's case has left the law in a "fluid state", as viewed by the learned Advocate‑General. And in so far as the grant of leave to appeal by the Supreme Court is concerned, it is premature to assume as to what the decision of the Supreme Court may be. Therefore, till the time that the Supreme Court gives a ruling and that too upsetting the view taken in Muhammad Ashraf s case, I am of the view that the law is, in no way, uncertain and in the matters before me, I find myself to be bound by the Division Bench: authority.

10. There is still another aspect of the matter. After the. decision by the Division Bench ; and, it was stated at bar, even before that decision but after the decision in the case of Raja that several writ petitions relating to questions. pertaining to the `Ejected Tenants' as well as `Grow More Food' Schemes have been admitted by different Division Benches of this Court (some. with myself as a Member of the Bench) ; and orders for the maintenance of status quo have been passed. Sitting now in Single Bench, and particularly when I agree with the reasoning in Muhammad Ashraf's case I do not feel constrained or even inclined to adopt a different view or line of action. In the light of the above discussion, I hold that, in they circumstances of these cases, the view taken by the learned lower Courts on the main question of law and prima facie nature of the case is erroneous and it has led to their failure to exercise a jurisdiction vested in them. Therefore, both the impugned orders of the learned lower Courts merit to be set aside and the petitioners are entitled to the temporary injunction as prayed.

11. The learned Advocate‑General, in support of his technical objection as to maintainability of the revision petitions, has contended that the learned Courts below have neither failed to exercise jurisdiction vested in them nor have they exercised any jurisdiction not so vested in them nor have they committed the breach of any provision of law and that no material irregularity has been proved which could affect the course of the trials of the suits. He relied on N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras (P L D 1949 P C 26), Joy Chand Lai Babu v. Kamalakha Chaudhury (P L D 1949 P C 114) and Muhammad Swaleh v. United Grain and Fodder Agencies (P L D 1964 S C 97). The first‑mentioned case related to the construction of a will on which the High Court differed with the District Judge and consequently interfered in revision. Such interference, it was held, was not justified. Reiterating the view taken in two earlier decisions of the Judicial Committee reported as Amir Hassan Khan v. Sheo Bakhsh Singh (11 I A 237) and Balakrishna Udayar v. Vasudeva Aiyar (44 I A 261), their Lordships laid down the following principles : "Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters: (a) That the order of the Subordinate Court is within its jurisdiction. (b) That the case is one in which the Court ought to exercise jurisdiction and (c) That in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the Subordinate Court upon questions of fact or law." It is pertinent to point out that in the situation mentioned at (c) in the above quotation, their Lordships clearly envisaged the interference by the High Court when the subordinate Court, in exercise of its jurisdiction, acted illegally, that is, in breach of some provision of law. When it was pointed out to the learned Advocate‑General that this may possibly cover the present case, if ultimately it is found that the learned Courts below have acted illegally, in not acting according to law, as has subsequently been laid down by the High Court in the case of Muhammad Ashraf, he replied that the provision of law, referred to in the above quotation, is only the law relating to jurisdiction and that, in the present case, would be Order XXXIX, rules 1 and 2, C. P. C. I do not agree with this reading of the judgment of the Judicial Committee. As it stands, it does not make any distinction between a provision of law relating to the jurisdiction of the subordinate Court and another provision of law relating p to the issues involved in the case before the Court. In this view of the matter, the learned lower Courts having acted illegally, the High Court can interfere in revision. Moreover, this case is covered by situation (b) visualized in the above quotation, i.e., `the case is one in which the subordinate Court ought to have exercised jurisdiction' wrong decision on a question of law involved in the merits of the case may, in a given case, lead to the exercise of a jurisdiction E or failure to exercise a jurisdiction. This approach to the subject finds support from the second ruling by the Judicial Committee cited by the learned Advocate‑General. In Joy Chand Lal Babu's case, it was specifically laid down that "although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b), and subsection (c) can be ignored". In that particular case, a Subordinate Judge had held that a certain loan was a commercial loan and failed to exercise the jurisdiction under sections 30 and 36(5)(a)(ii) of the Bengal Money Lenders Act, 1940. The High Court took the view that the loan was not a commercial loan and on this view of the matter interfered in its revisional jurisdiction. It was held by the Judicial Committee that the interference by the High Court was justified under section 115(b), C. P. C. In the present case before me, I have already held that the learned Courts below have, due to mistaken view of law, reached the conclusion that the petitioners had no prima facie case. This has led to both the Courts failing to exercise the jurisdiction vested in them under the Civil Procedure Code. Therefore, the High Court has full power to interfere in such a case. The third case cited by the learned Advocate‑General is that of Muhammad Swaleh. It is true that their Lordships of the Supreme Court, while interpreting section 115, C. P. C., observed that by merely showing that an order passed was in violation of some provision of law or procedure, the conclusion that the order is nullity would not follow. It should further be shown that there was such a violation of some statutory provision of such a procedure as would render the proceedings coram non judice. However, before making that observation, their Lordships visualized cases where the difference between the total lack of jurisdiction and a mere irregularity will be only a matter of degree. The observation is as follows :‑ "The difference between a total lack of jurisdiction and an irregularity is sometimes one of degree and is a matter of difficulty. A reference to the provisions of section 115 of the Civil Procedure Code would show that every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction." Therefore, while interpreting the law as to the jurisdiction of the High Court, their Lordships did visualize that, in a given case, the facts and circumstances thereof may show that an irregularity (or for that matter an illegality) mentioned in section 115(c) may, subject to the difference of the degree mentioned above, be a case of total lack of jurisdiction ; and when it could be total lack of jurisdiction, it could as well be a failure to exercise a jurisdiction. In that particular case, their Lordships, in fact, did interfere where the High Court had not acted under section 115, C. P. C., and in doing so observed as follows :‑ "It is true that the learned Single Judge had a discretion to set aside or not to set aside the order of 22nd April 1960, but the discretion is judicial and subject to the appellate powers of this Court and in this case the failure to exercise jurisdiction was due to a mistaken view of law. At the same time it should be stated that if there be jurisdiction in a Court to act the jurisdiction should be exercised if the failure to exercise it will lead to injustice and there is no principle of public policy which forbids its exercise in the particular circum stances." Respectfully following the dictum of their Lordships in the above ruling and the observation particularly underlined by me, I find that there is ample power with the High Court for exercising the revisional jurisdiction under section 115, C. P. C., in this case. Rather on the finding that I have given above about the merits of the case, the failure to do so, as their Lordships have observed, "will lead to injustice and there is no principle of public policy which forbids its exercise" in the particular circumstances of this case. Therefore, finding no merit in the technical objection as to the maintainability of these revision petitions, I repel the same.

12. Before concluding this judgment, I may mention that in, at least, five of the revision petitions, applications have been made by different, third, parties praying that they be impleaded as parties and that the order as to status quo or granting temporary injunction, at the time of admission of these petitions, be withdrawn. The point, which is common in all those applications, is that the possession of the land under allotments, in those cases, was delivered to the said applicants, m a result of allotments made in their favour under various other Schemes. This question, raised in these applications, cannot be resolved without an enquiry, in each case, as to the factum of physical possession having been transferred from the petitioners, in the revision petitions, to the said applicants. It is not proper, in these proceedings, to enter into that enquiry. Therefore, in view of the order that I propose to make, it is left to the trial Court to consider such applications on their own merit and the order, in these revision petitions, be read as subject to the Trial Court withdrawing the temporary injunction, if it is proved, in a particular case, that before the grant of the temporary injunction, or the order by this Court as to status quo, the physical possession of land in dispute had been transferred to any other person ; to be more precise, if before that, another person came into possession and the revision petitioner/petitioners were not in physical possession on the day the order was passed.

13. With and subject to the above observation, these revision petitions are accepted. The orders passed by the learned trial Court and the learned District Judge, in all these matters are set aside ; and the order passed by my learned brother Muhammad Akram, J., on 25th May 1967, granting temporary injunction, as prayed, in favour of the petitioners in Revision Petition No. 272 of 1967 and all other similar orders as to the temporary injunction or status quo passed on the other revision petitions on different dates are hereby confirmed. There shall be no order as to costs. The statements of fact or observations made, on the merits of the case, in this judgment are, by the very nature of the subject‑matter and the jurisdiction being exercised by me, only tentative and in the context of the points raised during the hearing. They shall not influence the learned lower Courts in deciding the suits on merits. A.E. Petitions accepted.