P L D 1975 Lahore 7 (PLP)

A. R. SHEIKH, J.-This judgment will dispose of Writ Petition Nos. 667/R/69 and 671/R of 1965 and Settlement Revisions Nos. 214 and 223 of 1969, in which common questions of law and fact are involved.

2. The dispute relates to land measuring 49 kanals 15 marlas situate in Gujranwala (Urban), known as Chowni village. It was allotted to Mian Irshad Ali (the petitioner in Writ Petition No. 667/R/ 1969) on the Ist of October 1951. Mian Irshad Ali was permitted to retain the same by order dated the 19th of October, 1953, in lieu of his claim verified for 10 kanals 2 marlas and 39 kanals 4 marlas as urban and rural land respectively. Mian Irshad Ali had moved for re-verification of his claim, because, according to him, the entire land abandoned by him in Batala, District' Gurdaspur, for which he bad preferred claim, was a compact block of," 50 kanals and should have been treated as urban and not rural. Before the correction could be made in the entries received from India, para. 24 of the Supplementary Scheme No. 2 to the West Pakistan Rehabilitation Settlement Scheme for Claimants in Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956, was amended and the second proviso (hereinafter referred to as the `second proviso') was added on the 20th of February 1960, whereby the Central Government was empowered to permit any person to retain his temporary urban area against his rural land provided he was in continuous possession of the same for not less than five years. Mian Irshad Ali accordingly made an application to the Central Government on the 13th of December 1960, in compliance with Memorandum No. 2456-60/1926-R (P) dated the 19th of May 1960, issued by the Chief Settlement Commissioner calling for particulars of all the cases which could get benefit from the newly promulgated `second proviso'. Before his application was finally disposed of, despite various com munications from the Government of Pakistan, Ministry of Rehabilita tion and Works, and the further fact that Mian Irshad Ali's case was sent to the Chief Settlement Commissioner along with other cases for being recommended to the Central Government, the legal position changed on account of afresh decision taken by the Central Government, whereby right of a person to retain area against verified rural units was restricted to temporary allotment or the maximum scale of allotment, whichever is less. subsequently as per communication of the 1st of July 1964, and again on the 15th of February 1965, a temporary allottee of urban land having verified rural units was completely barred from retaining his temporary area in lieu of his rural units. Meanwhile, by order dated the 4th of September 1963, two parcels of land measuring 28 kanals 14 marlas and 10 kananls 14 marlas were resumed from Mian Irshad Ali and given to Nawabzada Wilayat Ali Khan (respondent No. 2) and Ghulam Hussain (Predecessor-in- interest of respondents Nos. 3 to 12), respectively, and only an area of 10 .kanals 7 marlas was left with Mian Irshad Ali, who filed two appeals in the Court of the Additional Settlement Commissioner, one against Nawab zada Wilayat Ali Khan and the other against the successors-in-interest of Ghulam Hussain. These appeals were, however, rejected. Mian lrshad Ali preferred two revision petitions against the appellant's order and before ,the same could be disposed of, Government of Pakistan, by two orders, dated the 15th of February 1965, and the 2nd of April, 1965, allowed Mian Irshad Ali to retain the entire land under his temporary urban allotment against his verified claim, urban and rural combined. Accordingly, the learned Settlement Commissioner decided the two revision petitions before him by orders dated the 2nd of April 1965 in .terms of the orders of the Central Government and Mian Irshad Ali was ;permitted to retain the urban land, against his rural units as well. The Deputy Settlement Commissioner (Lands) implemented the orders of the .Central Government by order dated the 5th of April 1965, confirming an -area of 49 kanals 15 marlas in favour of Mian Irshad Ali. However, by a subsequent communication, dated the 29th of June 1965, the Central Government advised the Chief Settlement Commissioner that the Central .Government had reconsidered the case and decided that the orders issued previously in favour of Mian Irshad Ali should be deemed to be cancelled. Nawabzada Wilayat Ali Khan and the legal representatives of Ghulam Hussain separately filed two appeals against the order of confirmation of :allotment of 49 kanals 15 marlas of land in favour of Mian Irshad Ali in view .of the withdrawal of the orders issued by the Central Government on the 15th of February 1965, and the 2nd of April 1965. The Additional Settlement Commissioner allowed the appeals on the 24th of July 1957, and Mian Irshad Ali was again left with an area of 10 kanals 7 marlas of land out of his urban allotment in lieu of his entitlement of urban units to the tune of 92 produce index units verified against his urban claim. Mian Irshad Ali preferred two revision petitions before the Settlement and Rehabi litation Commissioner without success. Feeling aggrieved, he has come up to this Court in writ jurisdiction.

3. It may be stated at this stage that Writ Petition No. 671/R of 1965 .had been filed by Iftikhar Husain, etc. successors-in-interests of Ghulam Hussain against Mian Irshad Ali and Nawabzada Wilayat Khan impugning the orders dated the 15th of February 1965 and the 2nd of April 1965 of the Central Government permitting retention of the entire urban holding by Mian Irshad Ali against his verified combined claim of urban and rural units. This writ petition has, however, become infructuous in view of the orders of withdrawal of the earlier orders passed by the Central Govern ment, which orders of withdrawal are impugned in Writ Petition No. 667/R of 1969. As already stated above, subsequent to the cancellation of the allotment in favour of Mian Irshad Ali, the allotments in favour of Nawabzada Wilayat Ali Khan and Ghulam Hussain were restored. However, -their allotments of land have also been cancelled under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, and form the subject-matter of Settlement Revision Petitions Nos. 214 and 223 of 1969, filed by Nawabzada Wilayat Ali Khan and Iftikhar Hussain and others, legal representatives of Ghulam Husain, respectively.

4. In support of his claim that the Central Government was not legally justified to withdraw the orders of 15th February 1965, and the 2nd of April, 1965, learned counsel for Mian Irshad Ali has relied on the legal maxim: Actus curiae neminem gravabit (Jenk. Cent. 118). An act of the Court shall prejudice no man, appearing at page 73 of Broom s Legal Maxims. It is maintained that as a corollary, the wrongful act of a public functionary will not wrong a party because it is the duty of the Public functionary or the tribunal to rectify the wrongful act. Learned counsel has also invited our attention to Prem's Judicial Dictionary, Volume I, page 74, wherein the maxim actus curiae neminem gravabit has been explained to mean that `no act of Courts should harm a litigant and it is the bounden duty of the Court to see that if a person is harmed by a mistake of Court he should be restored to the position he would have occupied but for that mistake.' The authority relied on by learned counsel is Nailini Kanta Roy v. Kamaraddi and others A I R 1933 Cal. 239, where a decree was by mistake dated 16th February 1929, instead of the 11th February, and the decree-holder being misled thereby applied for execution on the 15th of February 1932, and it was held that the maxim applied and the decree ought to be regarded as having been passed on the 16th February 1929. The maxim actus curiae nemine gravabit' has also been. applied in Gadadhar Sarkhel v. Gopal Chandra Das A I R 1936 Cal. 343 when it was observed that 'it is the duty of the Court to relieve a party of the injury done to him by it, by reason of its mistakes and defaults of its officers inadvertently committed. It is further contended that Mian Irshad All's case having been initiated and processed when the second proviso' was in force, extending the principles of section 6 of the General Clauses Act, subsequent changes in law will not be considered to prejudice Mian Irsbad Ali's right. It is contended that when a benefit has been con ferred on a party, the general principle that he who grants can also withdraw the benefit, will not apply because entitlement in Mian Irshad Ali's case had been established. Learned counsel for Mian Irshad Ali referred to Article 250 of the 1962 Constitution, Article 295 of the Interim Constitution of 1972 and Article 264 of the 1973 Constitution in support of his con tention that the principle of law, contained in section 6 (c) and (e) of the General Clauses Act, has been recognised in the Constitutional Document and although it does not form part of the Pakistan Rehabilitation Act of 1956 or the Rehabilitation Settlement Scheme, or for the matter of that the Supplementary Scheme No. 2, the policy of law -in the country is well established that rights which have accrued under a particular benefit given, conferment thereof will not be refused by the grantor by a subsequent change in policy of granting the benefit, especially when there has been no inaction or negligence on the part of the citizen who is desirous of the grant of the benefit in his favour.

5. It is argued on behalf of the respondents that the `second proviso' having been added by way of amendment was no doubt a benefit extended to certain applicants but it was thereafter withdrawn by the grantor in the form of cancellation of the said benefit and could not be availed of by the petitioner. It is maintained that the Correction Slip No. 88 containing the 'second proviso' merely talks of mixed claim and postulates the utiliza tion of the urban claim out of the mixed claim. According to learned counsel, all that the second proviso means is that "a person with a mixed claim will get benefit of his urban claim under para. 24 and the 'second proviso' will apply to a case when a person has got only either the urban or the rural claim and not a mixed claim." When attention of learned counsel was invited to the fact that the plain language of the 'second proviso' does not yield to this construction, he did not give any satisfactory reply.

6. Learned counsel for the respondents next contended that the maxim `actus curiae neminem gravabit' is applicable only to acts of Court and it may be invocable for mistakes or defaults of the Court officials but the principle does not extend to functionaries other than Courts. It was argued that the Chief Settlement Commissioner, or for the matter of that the Central Government acts as an executive authority while considering the application for grant of allotment of urban land in lieu of both urban and rural claim combined and as such the principle of the maxim 'actus curiae neminem gravabit' is not attracted. Attention was invited to Muhammad Baqir v. The Government of the Punjab P L D 1954 Lah. 172, at p. 174 wherein while dealing with the argu ment that the order of extension of detention passed under the Punjab Public Safety Act on the 13th of June 1953 operated validly to extend the detention as the 12th of June 1953 was a gazetted holiday and section 8 of the Punjab General Clauses Act was attracted to the case, it was observed that "This section is evidently founded on the mixim 'lox non cogit ad impossibilia'-The law does not compel a man to do that which he cannot possibly perform-and actus curiae neminem gravabit'-an act of the Court shall prejudice no man. In my opinion, the argument is unsound. The important words in section 8 of the Punjab General Clauses Act, appear to be 'in any Court or Office.' The Punjab Public Safety Act nowhere lays down that an extension order is to be passed in relation to any Court or office and in terms, therefore, section 8 is not applicable to the case . . . The precedent case is clearly distinguishable and is not denied to be of little assistance.

7. The communication dated the 1st of may 1963 (Annexure N/1) pertaining to allotment of urban agricultural land against claims for rural agricultural land says that the Central Government has been pleased to direct as a matter of general policy, that the temporary allottees of urban land of the type in question should be permitted to retain against their verified entitlement for rural land or for urban and rural land combined, an area not exceeding the area held by them in temporary allotment, or the maximum scale of allotment fixed by the Chief Settlement and Rehabilitation Com missioner under Paragraph 8 of the Scheme for first round of allotments in the urban area in question, whichever is less, and that allotments already made in excess of this scale with the permission of the Central Government shall not, however, be disturbed. Learned counsel for the res pondents contends that this communication is of no avail to Mian Irshad Ali as his case had not been finalised by the Central Government before its withdrawal on the 7th of February 1964. The next communication is of the 26th of June 1963. (Appendix N/2), whereunder the Government has in pursuance of the provisions contained in the 'second proviso' to para. 24 of the Supplementary Scheme No. 2. decided as a matter of general policy that the displaced persons who qualify under the provisions contained in the second proviso, to para. 24 may be permitted to retain their temporary allotments of urban agricultural land against their verified entitlement for rural land, or for urban and rural land combined, not exceed ing the area held by them in temporary allotment or the maximum scale of allotment fixed by the Chief Settlement Commissioner under paragraph 8 of the Scheme and has also decided that allotments already made in excess of this prescribed scale with permission of the Central Government should not be disturbed. Counsel contends that by letter dated the 7th of February 1964, (Annexure N/31) the policy underwent a change and the original position was restored and, therefore, no benefit could have been drawn by the petitioner under the -communication of 26th June 1963, either. The 7th of February 1964, letter provides that such of the claimants who held urban as well as rural claims combined and who are holding temporary allotment in an urban area should be treated as purely urban area claimants and permitted to retain urban agricultural land to the extent of the urban portion of their entitlement only as permissible to urban area claimants under the Supplementary Scheme No.

2. It is contended that the benefit granted earlier by way of the 'second proviso' to para. 24 stands nullified, despite the fact that the Correction Slip has not been otherwise withdrawn by the Central Government so far. It is maintained that the principle of the competence of the authority granting a benefit and withdrawing the same applies with equal force to this case as well and the exception to the rule pleaded by the petitioner is not invocable.

8. Learned counsel for the Settlement Department argued that orders of the Central Government permitting tine petitioner to retain the land despite the fact that the benefit under the 'second proviso' had been withdrawn by that time. is ultra vises the Central Government as the Scheme stood amended. Under section 14 (1) of Act XLVII of 1958, the Central Govern ment empowers the Chief Settlement Commissioner to frame a scheme for allotment to displaced persons against their verified claims of land in the Compensation Pool. By virtue of subsection (3) of section 14, the scheme so prepared is subject to approval in writing by the Central Government. Under section 34 the Central Government has been delegated the power to make rules to carry out the purposes of the Act. The Supplementary Scheme No. 2 was promulgated with the approval of the Central Government. The Correction Slip No. 88 of 20th February 1960, was added with the approval of the Central Government. This Correction Slip is still a part of the Supplementary Scheme No.

2. It is not understood how the powers of the Central Government are considered to be fettered so as not the grant the benefit under the Correction Slip on a date subsequent to issuance of letter Annex. N/3 to a person whose case had been erroneously not considered along with other cases and bad, for some reasons unexplained, continued lying with the Chief Settlement Commissioner despite the fact that it had been processed and completed and , recommendation made by the competent authority in favour of the petitioner for grant of the benefit much prior to the change in policy.

9. It is further contended on behalf of the respondents that mere application for grant of a benefit does not create any right in the person. The petitioner merely asserted a right, whereas none vested in him at that time and if meanwhile the benefit had been withdrawn, he cannot say that 5, he had been wronged or that he had been deprived of a right. Mian Rafi- ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others P L D 1971 S C 252 is relied on. The contention in that case was that the appellants had acquired an indefeasible vested right in the transfer of the -Cinema House in dispute on the date they filed their application for transfer and the said right could not be taken away be a subsequent notification. It was held : ". . . . . to accept that a right becomes complete and accrued as soon as one elects to assert that right would, in any view, be accepting a startling proposition . . . . ." It has been next argued that cancellation of allotment, which was temporary, is not a right of which the petitioner has been deprived, entitling him to enforce the same by writ jurisdiction and for this, the authority quoted is Taj Din v. Mrs. Razia Begum Alvi and 2 others P L D 1971 S C 97, wherein the appellant and other allottees were found to be merely allottees or licensees. No permanent right in the land had passed to them and it was held that they were not entitled to a right of hearing on an application made for confirmation of the sale transaction as the-question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation.

10. Some argument has been raised on the question whether the principles of section 6 of the General Clauses Act can be extended in respect of withdrawal of a benefit by change in policy when the provisions of section 6 itself are not applicable. Learned counsel has referred to Crown v. Haveli P L D 1949 Lah. 550 in support of the argument that provision of section 6 of the General Clauses Act is applicable only if the conditions mentioned therein are satisfied. On the basis of this authority it is maintained that as per its plain language, section 6 is not attracted to sub-delegated legislations as, the words `Central Act' used therein had not been extended to any other kind of legislation, such as, rules or notifications. It has been further argued that as no power excepting approval of the schemes to be promulgated by the Chief Settlement Commissioner under section 7 and proviso thereto of the Displaced Persons (Land Settlement) Act, 1958, vested in the Central Government, for that reason also the approval given subsequent to the change in policy in favour of the petitioner was without authority and the subsequently order of withdrawal of an incompetent order cannot be dubbed as one without lawful authority. An argument was also addressed in respect of the orders passed by the Settlement Commissioner and implementation thereof by the Deputy Settlement Commissioner in confirming the land in favour of the petitioner in pursuance of the permission granted by the Central Government. It has been contended that the Settlement Commissioner never applied his mind to the facts of the case in the revisional proceedings pending before him and merely passed a mechanical order in compliance with the permission granted by the Central Government, which permission; according to learned counsel, itself lacked in lawful authority, Mr. Khalil-ur-Rahman Khan, Advocate, appearing for respondent No. 2, said that the communication of the Central Govern ment is not an order, which was to be implemented by the Settlement Authority. It was merely a direction and by passing the mechanical order, the Settlement Commissioner merely abdicated his powers which he was called upon to exercise. Maulana Abdul Qaddus Behari v. Chief Settlement Commissioner and others 1969 S C M R 561 and Ch. Bahar Muhammad v. The Chief Settlement and .Rehabilitation Commissioner, Pakistan, Lahore and another P L D 1962 Lah. 209 were referred to. He also referred to Ch. Riasat Ali Azad and others v. Mst. Bakhtawar Bibi and another P L D 1968 Lah. 56 wherein it has been held that the Additional Settlement Commissioner passing an order on the basis of instructions is illegal. With regard to withdrawal of the order of permission by the Central Government on the 29th of June 1965. Learned counsel argued, on the basis of Amanat Ali v. Syed Panah Ali Shah and another P L D 1973 Lah. 332 that it is perfectly legal and justified.

11. The question that falls for determination is whether the petitioner had acquired any right under the second proviso, and if so whether he could enforce the same through writ jurisdiction. The further question that arises is as to what is the effect of inertia on the part of the Central Government or the Chief Settlement Commissioner in not taking a decision on the application of the petitioner before the change in policy. The term `right' has been the subject of debate before the various superior Courts of the country exercising writ jurisdiction. The trend of authority now is that the word `right' for the enforcement whereof the Court will come to the rescue of the aggrieved person, is not in the strict juristic sense. In Mian Fazal Din v. Lahore Improvement Trust, Lahore and another P L D 1969 S C 223 at p. 231 the learned Judges of the Supreme Court have held: " . . . . the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal, interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal advantage or the curtailment of a privilege or liberty or franchise." The ratio decidendi of Mian Rafi-ud-Din and 6 others v. The Chief Settle ment and Rehabilitation Commissioner and 2 others in no manner militates against Mian Irshad Ali's contention. Here the Government did realize the hardship of Mian Irshad Ali and granted him the privilege of the second proviso. The assertion of the right had been accepted and thus it became a complete and accrued right. On that view of the matter it can be safely held that when Mian Irshad Ali put in his application along with other persons so situated, he was entitled to consideration of his case justly, fairly and equitably, as laid down in Montgomery Flour & General Mills Ltd. v.- Director, Food Purchases P L D 1957 Lah.

914. The principle enunciated in this case has been approved of and applied in Ikram Bus Service v. Board of Revenue P L D 1963 S C 564 with the following observations:- "Even an administrative body such as an R. T. A., is under Legal obliga tion to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administra tive body should determine the matter with whose decision it is charged, in accordance with the law." Extending the same principle, it can be said that if Mian Irshad Ali had applied within time in accordance with law for grant of benefit which had been declared by the Central Government to be available to all claimant of the type, it cannot be urged with success that because his application had not been placed before the Central Government till such time the benefit had been withdrawn, Mian Irshad Ali was precluded from pressing his claim before the Central Government on the ground that it was not his fault that his case was not forwarded to the Central Government for appropriate orders. The Central Government when approached, did recognise its omission and taking cognizance thereof proceeded to rectify the wrong done to the petitioner and gave him relief by issuing orders in the months of February and April 1965. The Central Government, if it has ,the power to approve of the schemes to be promulgated by the Chief Settle ment Commissioner and has further the power to amend, modify, very or cancel the schemes so recommended by the Chief Settlement Commissioner, it is not denuded of power to extend the benefit to a person whose applica tion has remained lying with the Chief Settlement Commissioner for no fault of his. The prejudice that may be caused to rights accrued because of repeal of a statute has been kept in view while enacting the provisions of section 6 of the General Clauses Act. It is the principle of equity that has been placed on the statute book and we see no reason why the same principle be not extended to cases of hardship when the policy of the Government is changed and the benefit, which could definitely be extended to a particular citizen, has not been given to him because of no remiss on his part. The Privy Council followed the principle laid down by Cairn, L. C., in Rodger v. The Comptoir D'Escompte de Paris (1871) 3 P C 465 "that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression `the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court". (See Jai Berham and others v. Kedar Nath Marwari and others AIR 1922 P C

269. The above quotation has been prefaced by the following observation at page 271 of the report: "It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved." Even if it be held that the maxim `actus curiae neminem gravabit' applies only to injury done by Court or the Court officials and strictly speaking fit is not to be extended to administrative tribunals and other functionaries, it cannot be said that the same principle will not apply to quasi-judicial tribunals. It has not been shown that the Chief Settlement Commissioner while considering the application of the petitioner was not acting as a quasi judicial functionary and was merely to forward the application on the executive side. It is too late in the day to say that such applications, which were to be considered objectively, were being considered only administra tively. The inaction of the Chief Settlement Commissioner in not forwarding the case to the Central Government is a sufficient reason for giving the benefit o: the principle and if the Central Government had remedied the injury inflicted on the petitioner, it was an act within the jurisdiction or the Central Government and the orders issued on the 15th of February 1965, and the 2nd of April 1965 were perfectly with lawful authority. Once we come to that conclusion, the subsequent withdrawal orders passed behind the back of the petitioner depriving him of the property already transferred to him is a case of absence of lawful authority (See Faridsonsy Ltd. v. Government of Pakistan (1). The result, therefore, is that the order's dated the 15th of February 1965, and the 2nd of April 1965, issued by the Central Government and implemented by the Settlement Commissioner and the Deputy Settlement Commissioner stand and hold the field. The subse quent orders of 29th of June 1965, of withdrawal are illegal and have been issued without lawful authority and are hereby quashed. The orders of 24th July 1967, and 2nd of June 1969, passed in favour of Nawabzada Wilayat Ali Khan and Ghulam Hussain also disappear as the land was not available for allotment at the relevant time. The writ petition succeeds and is allowed. In view of our finding above, we are not called upon to deal with, in detail, the two Settlement Revisions, which have otherwise become infructuous. The parties are left to bear their own costs. K. B. A. Petition allowed.