P L D 1964 (W (PLP)

(3) The claim of respondents Nos. 3 to 7, which was much less than that of the appellant has been fully satisfied and even if the respondents' allotments were cancelled the appellants will have to be satisfied in some other area. It does not matter very much if he had to go for 500 or 400 acres of land and he should get his full claim satisfied from other lands available under the Settlement Scheme. The respondents being petty claim‑holders were thus saved from further harassment. The appellant has challenged the dismissal of his writ petition on these grounds in this Letters Patent Appeal. It may be mentioned that respondent No. 8 is not contesting the appeal as he had surrendered his claim under the Martial Law Regulation and is no longer interested in the land in dispute. Mr. Shaikh Haider, the learned counsel for the appellant has strongly urged before us that the considerations which weighed with the learned Single Judge in chambers in declining to exercise the writ jurisdiction are not based on sound judicial considerations. The learned counsel contended that in the original writ petition no relief was claimed by the appellant against respondents Nos. 3 to 8 and since the possession of the land was still with the appellant, it was not necessary to implead them as parties to the writ petition. He further justified the appellant's action in not impleading the contesting respondents as parties to the writ petition on the ground that they were not parties in the proceedings disposed of by the Rehabilitation Authorities. He referred us to the record of these proceedings in order to show that only Mr. Naqvi, one of the respondents once addressed a letter to Rehabilitation Authorities in revision as attorney of his other relatives without disclosing their addresses. He further contended that no prejudice was caused to the contesting respondents who were impleaded as parties at the earliest stage and the final order in the writ petition was passed in their presence. According to the learned counsel the appellant did not deliberately suppress the contesting respondents' names and the learned Single Judge was not justified in attaching so much import ance for declining the discretionary jurisdiction vested in this Court.

6. The contention raised by the learned counsel for the appellant has received our anxious consideration. After going through the record, with the aid of the parties' counsel, of the proceedings before the Rehabilitation Authorities, it is perfectly clear that the appellant did not implead respondents Nos. 3 to 7 as parties to the revision application filed before the Rehabilita tion Commissioner. On the other hand, on the 7th of July 1960, Mr. Z. P. Naqvi, one of the respondents addressed a letter to the Additional Rehabilitation Commissioner complaining that the appellant was not allowing them to take possession of the land in dispute and the pending matter should be disposed of at an early date. In this connection neither the names of all the allottees were mentioned nor were their addresses given. No other document was referred at the hearing to establish that the appellant had the knowledge of the full names and addresses of the respondents, who were permanently settled on the land in dispute. In these circumstances the appellant cannot be blamed for suppressing material facts to mislead the Court. In the light of these facts the explanation of the appellant in the affidavit filed on his behalf dated 26th September 1960, "that in the Rehabilitation Department the respondents 3 to 7 failed to give full addresses and particulars hence due to ignorance of full address they could not be added in petition as parties," is not without basis and should have been given due weight.

7. Apart from this, admittedly the possession of the land in dispute was not delivered to respondents Nos. 3 to 7 by the time the original writ petition was tiled in this Court. The appellant for this reason only claimed in the writ petition, relief against the Rehabilitation Authorities about the illegal cancellation of his allotment order. It seems to us that in this way the appellant could get adequate and effective relief in respect of the lands in dispute, which were already in his possession. At best on the filing of the writ petition the contesting respondents could be considered to be proper parties in the subject‑matter in dispute. We are satisfied that on this view of the matter, the conduct of the appellant is not impleading respondents Nos. 3 to 7 as parties to the writ petition was not based on any ulterior motive. This view is further fortified by the fact that when the contesting respondents challenged the confirma tion of the interim injunction on merits, the case of the appellant was found to be prima facie good and it was made absolute, In these circumstances, we have come to the conclusion that the conduct of the appellant was not of such au objectionable nature that the learned Single Judge should have declined to exercise the discretion vested in this Court.

8. In coming to this conclusion we have also taken into consideration the provisions of the Civil Procedure Code which have been found to be applicable to writ petitions in a number of decisions of this Court. In Order 1, rule 9, C. P. C. it is provided that "no suit shall be defeated by reason of mis‑joinder or non‑joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." 'The effect of this provision of law in writ petition was considered by a Division Bench of this Court at Lahore in Zubair and others v. Bashir and another (P L D 1963 Lah. 178). It was held that the provisions contained in section 141 of the Code of Civil Procedure can be invoked under writ jurisdiction and the provisions of the Code of Civil Procedure can be pressed into service for determining the question under consideration. In that case also a learned Single Judge in chamber dismissed the petition of the appellant on the ground that they had not impleaded necessary parties which view was not accepted as a sound view by the Division Bench. In this connection it observed as under "While it is not possible to disagree with the principle that omission to make parties those officers whose action is to be reviewed, and who are interested therein and affected thereby, goes to the very root of the relief sought by a writ petition, in relation to law as it exists at present, the principle Is applicable not as an inflexible rule of procedure but as one to be adjusted to the circumstances of each case. There is no statute or rule which lays down that any particular party must necessarily be impleaded as a respondent to a petition under Article 98 of the Constitution (1962) or a petition under Article 170 of the Constitution (1956). Nor is there a provision that the Court must dismiss a petition under the said Article 98 or the said Article 170, if a party that it considers necessary has not been impleaded as a respondent by the petitioner, and is precluded from sending for that party itself or from permitting the petitioner to amend his petition. In law, the Court is free to determine in relation to each case whether the order it proposes to make can be made without violating the essence of the principle even though a particular officer was not technically impleaded as a respondent in the case. The question really was whether the order proposed to be passed in the writ petition will, if passed in the absence of the officer concerned, affect him, or his interest, if any, in a way that should prevent the High Court from making it."

9. In the present case, as discussed above, the facts are not so bad as in the Lahore case. The parties likely to be affected have already been impleaded as parties to the writ petition and were before the Court. It could not therefore, be held that the Court was not in a position to issue an effective writ. On this view of the matter with great respect, we do not find ourselves in C agreement with the finding of the learned Single Judge that the appellant did not invoke the writ jurisdiction with clean hands. We would, therefore, hold that on this ground the discretion vested in this Court could not be declined.

10. The second ground on which the learned Single Judge declined to exercise the discretion vested in this Court cannot also be supported on the facts brought to our notice. There is no satisfactory proof on the record to establish that the appellant was himself to blame for the cancellation of his allotment. The contesting respondents have failed to refer to any document in support of the Assistant Rehabilitation Commissioner's remark about the failure of the appellant to respond to the notice issued to him to prove his claim. On referring the record what appears is that in January 1960, a Press‑Note was issued by the Rehabilita tion Commissioner Hyderabad by which all the claimants were required to produce proof as to whether their cases were pending before the Claims Organisation. According to the report the appellant did not make any response to this Press‑Note and, therefore, his allotment order was cancelled. In our opinion, a general notice of this nature through a Press‑Note was not sufficient to cancel the appellant's allotment. Thus no blame can be put on him for the cancellation of his allotment. In fact immediately thereafter, on coming to know of the cancellation he approached the Rehabilitation Authorities for the redress of his grievances, without success. The last ground that weighed with the learned Single Judge by itself cannot come in the way of this Court for exercising its discretion in appellant's favour. The appellant has asked for the relief of a writ of certiorary. In such matters no consideration can be given to the fact that one of the parties is a petty claim holder. The primary consideration in such cases is whether the impugned order was passed in accordance with law or not. Once the Court comes to the conclusion that it is passed in utter disregard of the law applicable and the conduct of the aggrieved party is not found to be objectionable, the rule of law is that a writ of certiorari will issue. It seems to us that no compassionate L considerations should come in the way of the Court to grant a constitutional remedy in such matters. In our view, this was a fit case in which a writ should have been issued to the respondents.

11. Mr. Naqvi, on behalf of himself and on behalf of other respondents, attacked the judgment of the learned Single Judge on merits. He contended that since the claim of the appellant had been rejected, it was not obligatory on the part of the Rehabilita tion Authorities to wait for the decision of the revision petition filed by him. He referred us to rule 21 of the West Pakistan Rehabilitation Scheme which is in the following terms :‑ "The competent Rehabilitation Authority need not delay the confirmation of proposals for the whole village because of one or two recalcitrant refugees. If he is satisfied that he has done his best and that the objections of refugees concerned are frivolous he may proceed to confirm the allotment to the others". (Reference paragraph 16 of the instructions circulated with former Punjab Government Letter No. 4217‑R (L), dated 11th December 1948). This has no application to the facts of the present case. The relevant rule applicable to the case of the appellant referred to in the judgment of the learned Single Judge, is rule 4‑A, sub‑clause (vii) which is to the following effect :‑ "4‑A.‑The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme :‑ (vii) land allotted to refugees from non‑agreed areas who have filed claims in Schedule V under the Registration of Claims (Displaced Persons) Act, 1956." This direction is of a mandatory nature and under it is not open to .the Settlement Authorities to allot any land which was allotted to a refugee from non‑agreed areas, whose claim is pending verification under the Registration of Claims (Displaced Persons) Act, 1956. It is not disputed that the appellant had registered his claim under the above provision of law for verification. The contention of the respondents' counsel that on the rejection of the claim by the subordinate Claims Authorities, the Settlement Authorities were not bound to wait further, has not impressed us. In the present case the appellant's revision in respect of his claim was awaiting decision of the Claims Commissioner. In view of the above rule, therefore, his case was still pending and his temporary allotment was sufficiently protected. As a matter of fact the appellant's claim was accepted by the Claims Commis sioner as good by the time the revision was heard by the Rehabil itation Commissioner. Having been apprised of this fact, this officer clearly acted illegally in not granting adequate relief to the appellant. The Settlement Authorities even disregarded rule 20 of the Settlement Scheme which in the case of un‑verified claims enjoined on them to reserve an area equal to 75 per cent of the equivalent of the area claimed by a claimant as if the claim has been verified to that extent. There is thus no doubt that the appellant's allotment in respect of the land in dispute was cancelled in direct contravention of the rules laid down in the Settlement Scheme.

12. As a last resort to justify the cancellation of appellant's allotment Mr. Naqvi, referred us to section 15 of the Displaced Persons Land Settlement Act, 1958, which is in the following terms "(1) A Settlement Authority specially empowered by the Chief Settlement Commissioner in this behalf, shall in respect of such verified claims against which no allotment has been made before the commencement of this Act, proceed to make an allotment to the displaced person concerned in accordance with any of the schemes executed under section 14. (2) Subject to the provisions of subsection (1) of section 11, an allotment to a displaced person under subsection (1) shall be made on the basis of his entitlement as determined under this Act or the rules made thereunder. (3) A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a scheme as defined in clause (7) of section (2) of by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and subject to such terms and conditions and payment of such fees as may be prescribed by the Central Government Provided that no order of settlement shall be passed in cases where‑ (a) the land held by the allottee concerned is the subject matter of an appeal, revision or review before a Rehabilitation Authority ; or (b) the land has been allotted in lieu of rights as a mortgagor or mortgagee and the allottee has not fulfilled the prescribed terms and conditions ; or (c) the land has been allotted provisionally on the basis of inconclusive data." Mr. Naqvi contended that since the land in dispute was allotted provisionally on an inconclusive data, it could not be settled in appellant's favour and the Settlement Authorities were fully justified in cancelling his allotment. The contention of the learned counsel has not impressed us in the least. Section 15 (3) referred to above only lays down that a displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a Scheme as defined in clause (7) of subsection (2) or by a Settlement Authority under subsection (1) shall be settled permanently on that land in such manner and subject to such terms and conditions and payment of such fees as may be prescribed by the Central Government. This provision further provides that in those cases where the land has been allotted on the basis of inconclusive data no permanent settlement would be made on a party. This provision of law does not provide that in such circumstances a temporary allotment should be cancelled. Admittedly the land in dispute was not permanently, settled on the appellant and this subsection has no bearing on the dispute between the parties.

13. After careful consideration of the whole matter we arc satisfied that the appellant's grievance against the action of the Rehabilitation Authorities is fully justified. Under the West Pakistan Settlement Scheme it was obligatory on the Settlement Authorities not to settle the land which was temporarily allotted to a refugee from a non‑agreed area, who had filed his claim under the relevant law for verification to any other party. It was further obligatory on them to reserve 75 per cent. of the land for parties whose claim was pending for verification. The Settlement Authorities disregarded the rules in the case of the appellant. It further appears to us that the appellant cannot be charged with any objectionable conduct which should result in refusing to exercise the judicial discretion vested in this Court. We would, therefore, allow the appeal and quash the impugned orders. In consequence the allotment order of the land in dispute in favour of the respondents Nos. 3 to 7 is also quashed.

14. In the result, the appeal is allowed. But in the special circumstances of the case, parties are directed to bear their own costs. S. Q. Appeal allowed.