1990 PLP 717 (SCMR)

6. Yet another Constitution Petition (Writ Petition No.1195‑R of 1965) was filed by the predecessor‑in‑interest of the appellants seeking the intervention of the Central Government which was authorised in terms of the correction slip. This was dealt with by the Court as hereunder:‑ "The learned counsel contends that the Department has not cared to respect the suggestion given by this Court and that it has not allowed the petitioner to retain the land in dispute. This may be so, but as already held in the same judgment, there is no legal right in the petition which this Court might enforce for him. The law gives to the Rehabilitation Commissioner the power to fix a ceiling in any particular area and since the land in dispute was in excess of the ceiling fixed in the village in question the Department was justified in ordering its cancellation. The petitioner contended that in paragraph 23(i) of the West Pakistan Rehabilitation Settlement Scheme, it is provided that a claimant should not be dispossessed from his temporary allotment unless he has obtained land in a place where this claim may have been transferred. Relying on this paragraph, learned counsel submits that since no alternative land has so far been given to the petitioner he cannot be dispossessed from the land in dispute. I am afraid that this contention again has no merits. Firstly, because on the principle of constructive res judicata, this cannot be raised in the present writ petition, especially, when the petitioner has failed in the earlier writ petition. Secondly, the paragraph relied upon deals with the cases of those persons who get their claim forms transferred from one village to another. The present is not a case of that type."

7. A Letters Patent Appeal (No 1237 of 1966) was preferred and the same was dismissed on 16‑11‑1960, observing as hereunder:‑ "As pointed out by the learned Judge in Chambers, the observation of the Letters Patent Bench stated no more than that it was the Central Government that had the discretion to allow persons situated in the position of appellants to retain the land in their possession or the alternative land. But it cannot be claimed as a matter of right by the appellants. The appellants had failed in their claim in the previous writ petitions filed by them and the writ petition out of which this appeal arises is no more than the repetition of the same claim, which has been dismissed." 8.Two Petitions for leave to appeal (C.P.S.L.A. No.25 of 1967 and 28 of 190,7) were filed and both were dismissed with the observations as hereunder:‑ "On their representations the Settlement Authorities allowed them to retain their urban lands up to a maximum limit of 8 acres only against their verified claims of rural and urban lands .In our opinion, the High‑Court has rightly held that the petitioners had no right to retain the said urban lands and that it was in the discretion of the Central Government whether it would grant any concession to them on compassionate grounds or not. Hence, as there was no question of enforcement of any legal right, the High Court, rightly declined to interfere with the orders of the Settlement authorities in its writ jurisdiction." 9.The predecessor of the appellants addressed an application on 12‑5‑1967 disclosing the history of the case and seeking the allotment of the area against the rural verified claim. After obtaining reports and hearing a learned counsel, the Chief Settlement Commissioner passed an Order on 21‑10‑1970 to the following effect:‑ "The learned counsel for the petitioner was duly heard on 19‑10‑1970. I have gone through the papers and agree with the conclusion arrived at by the Advocate that the claimant is entitled to the retention of 17‑1/2 acres at Sillanwali, District Sargodha, first against his urban and then rural claims. The net effect of this order will be that any unsatisfed urban claim of the petitioner shall be adjusted against the above said land first and the remaining area against his rural claim. The District Authorities should be advised accordingly and asked to finalize this matter at their end, after due scrutiny of the urban. and rural claims against which adjustment i5 Sought for the 17‑1/2 acres in question." When the orders were sent to the Additional Settlement Commissioner for implementation, he represented against it whereupon the Chief Settlement Commissioner on 19‑12‑1970 issued a show cause notice to the predecessor‑in -interest of the appellant and it is reproduced hereunder:‑ "SHOW CAUSE NOTICE: On receipt of my orders dated 21‑10‑1970 communicated vide No.3228 70/5226‑R(L) dated 4‑11‑1970, copy endorsed to you, the Additional Settlement Commissioner (Land) Sargodha, brought to my office a few material facts, which were not before me on 21‑10‑1970. You or your learned counsel also did not bring those facts to my notice, when I passed the executive order on your miscellaneous petition, which was not filed under any express provision of law.

2. You are, therefore, given this notice to appear personally or through a counsel or an authorised agent on 30‑12‑1970 at 9‑30 a.m. before the Chief Settlement and Rehabilitation Commissioner at his office at 11 Egerton Road, Lahore, and to show cause as to why the said order dated 21‑10‑1970 should not be withdrawn or modified.

3. The main facts warranting the re‑hearing of the case are that you lost your case in the superior Courts, and that the order in question was passed by me purely in my executive capacity without hearing the Additional Settlement Commissioner (Land) Sargodha or his representative, who is a necessary party to the issue in dispute. Any other point that may be brought to my notice during the course of hearing will also be duly considered."

10. After getting a detailed reply in the nature of written arguments from the predecessor‑in‑interest of the appellants and affording oral hearing also, the Chief Settlement Commissioner recalled his order dated 21‑10‑1970 by recording an operative order as hereunder:‑ "There has been obviously no intention to give to the petitioner anything more than due to him under the law otherwise the long series of litigation on his part to retain his temporary urban allotment against his rural claim would not have ensued. In the absence of any legal entitlement of the petitioner to the retention of disputed land, already finally adjudicated upon by the High Court, the orders dated 21‑10‑1970 holding that the claimant is entitled to the retention of the 17‑1/2 acres at Sillanwali, District Sargodha were obviously a nulity in law and without any legal effect. I feel fortified in arriving at this conclusion from the ratio decidendi in P L D 1953 Supreme Court 10.1 and P L D 1960 S C

237. Besides, ratio decidendi in P L D 19(4 (W.P.) Lah. 453 further helps in arriving at the above conclusion. My orders, dated 21‑10‑1970 and as communicated to the Additional Deputy Commissioner (Consolidation) and Additional Settlement Commissioner (Land), Sargodha, under No.3228‑70/5226‑R(L), dated 4‑11‑1970 by the Deputy Secretary Rural to the Chief Settlement Commissioner, with a copy to the petitioner, arc hence withdrawn:"

11. A Settlement Revision was filed against the latter order of the Chic( Settlement Commissioner under section 21 of the Act. It was dismissed after discussing all the points raised and after impleading the respondents Nos.2 to 4 who had been proposed a portion of the land in the temporary allotment of the predecessor‑in‑interest of the appellants on 14‑9‑1970.

12. Shaikh Shaukat Ali, Senior Advocate, the learned counsel for the appellants submitted that the decision of this Court in case of Iftikhar Hussain and others v. Mian lrshad Ali and others 1987 S C M R 2059 fully governs the case. According to him the revised Supplementary Scheme No.11 made provision for protection of urban allotments of land to those who had verified claim for rural land and provided for adjustment of such claims against the temporary allotment of urban land. The order of the Chief Settlement Commissioner dated 21‑10‑1970 was in accordance with the Supplementary Scheme No.11 and was a valid exercise of his power possessed in the background of observations made by the Supreme Court and the High Court while disposing of his Constitution Petition and the Leave to Appeal arising therefrom. As the first order of the Chief Settlement Commissioner was competently passed, there was left no jurisdiction with the Chief Settlement Commissioner to recall it on an assumption that it violated the law or it had been passed without jurisdiction or in ignorance of the full facts of the case. As a matter of fact all the antecedent litigations leading to the observations of the Court were pointedly brought to the notice of the Chief Settlement Court and the background of the case found the basis of the order of the Chief Settlement Commissioner. At that stage none of the respondents had the locus standi to be heard or to be impleaded in the proceedings. They had merely been proposed a portion of land which has yet to be confirmed after listening to the objections, if any, of the allottees and others.

13. Mr. S. M. Zaffar, Senior Advocate, representing the respondents has pointed out that there arc Five important distinguishing features of the judgment relied upon by the learned counsel for the appellants. In that judgment, according to the learned counsel for the respondents, it was recognized that only the Central Government was possessed of the power exercised by the Chief Settlement Commissioner under para 24 of the Settlement Scheme No.II. Therefore, the Chief Settlement Commissioner had no jurisdiction under any of the instructions to pass such an order as he did. In the reported case of Iftikhar Hussain the Central Government had passed the order while in the present case the Chief Settlement Commissioner has passed the order. Besides, in the reported case no reasons were given for recalling the order while in the present case not only all the reasons relevant for recording that order have been recorded but also notices had been issued to the affected. In the reported case the order was passed when a general stay order already existed, while in the Present case no such stay order existed. On the contrary, the learned counsel for the respondents drew strength from the judgment in Iftikhar Hussain's case to urge that the competent authority had not passed the order at any stage of the proceedings and no rights had come to vest in the appellants to claim urban land against the rural verified claim.

14. As regards the competency of the authority, all the Correction Slips on which reliance has been placed by the appellants were in fact reproduced in the judgment in lftikhar Hussain's case and the conclusion drawn was as hereunder:‑ "From these provisions, it is clear that under the Rehabilitation Act the Central Government could, by order, authorize the Rehabilitation Commissioner to allot the pooled evacuee property to persons resident in Pakistan. The disposal under the Act could take place only through the Scheme and such disposal could lead to permanent settlement of allottees in terms of section

15. The power conferred on the Central Government by second proviso on 20‑2‑1960 was under the Act (Section 14). The Central Government got a discretionary power to `permit any person who is in continuous possession of land or garden in the urban area for not less than 5 years to retain an area not exceeding land of the value of 2,000 produce index units in that urban area against his verified claim for urban or rural land by suitable adjustment irrespective of the maximum units fixed by the Chief Settlement and Rehabilitation Commissioner'."

15. In the present case, except for the general circulars issued by the Central Government, no individualized order was passed by the Central Government whereby the appellants could claim protection of their entire allotment of urban land i.e. 17.5 acres. 1n the absence of such an order, they had to be governed by the general orders of the Central Government whereunder they were to observe the ceiling fixed by the Chief Settlement Commissioner for that particular area. The learned counsel for the appellants contended that in fact no such ceiling had been fixed by the Chief Settlement Commissioner with respect to Sillanwali. On both the points under discussion, the appellants have a judgment. On the petition of their predecessor‑in‑interest it was held that the right which he was claiming could only be granted by the Central Government under the Second proviso to the Supplementary Scheme No.II. The Central Government had at no stage by individualized order granted him the concession. The concession granted by the Central Government by means of a general Policy letter was subject to the condition that the ceiling fixed by the Chief Settlement Commissioner in respect of any urban area shall be observed except in those cases where the Central Government had itself, on other conditions being satisfied, allowed in excess of the ceiling so fixed. AS the Central Government had not in the case of the appellants predecessor allowed excess of the ceiling he had to be limited to the ceiling fixed by the Chief Settlement Commissioner. As regards the factual question whether the Chief Settlement Commissioner‑had for the urban area of Sillanwali fixed a ceiling or not, again there is a decision on his own Constitution Petition and that part of the decision has been reproduced above which shows that there existed a ceiling of eight acres and that had to be observed.

16. In the background of these facts and decisions, the appellants can definitely claim benefit of the adjustment of their verified claim for rural areas upto the extent of eight acres provided the verified claim has not been got settled elsewhere and their petitions for adjustment and other conditions of the policy letter are satisfied. They cannot on the strength of Scheme or the decisions earlier given, claim the entire temporary allotment of 17‑1/2 acres adjusted against their claim verified for rural land.

17. As regards the powers of the‑Chief Settlement Commissioner to pass the order dated 21‑10‑1970 and the subsequent order dated 12‑2‑1971, all that can be said is that in view of the power reserved for itself by the Central Government, the Chief Settlement Commissioner could not have passed an order on 21‑10‑1970 allowing the confirmation of the whole of the urban allotment against rural claim. That order was without jurisdiction and without lawful authority and the Chief Settlement Commissioner could ignore it which he did by his order dated 12‑2‑1971. It is true that at that time the Chief Settlement Commissioner was not possessed of the power of reviewing his own order but what he did, did not amount to review of that order but treating as non‑existent something which had no existence in law.

18. No case is, therefore, made out by the appellants for interference with the decision given by the High Court while disposing of a Revision Petition filed by the appellants. Hence the Appeal is dismissed with costs. A.A./A‑676/S Appeal dismissed.