P L D 1959 (W (PLP)

(i) Where the right‑holder died in India and his descendants have put in separate claims but the ownership in jamabandis is shown in the name of the deceased ; (ii) Where the right‑holder died in Pakistan after 15th August 1947, before registering the claim and his descendants have registered separate claims, and (iii) Where the right‑holder died in Pakistan after registering his claims and the descendants have not submitted separate claims. (2) The above procedure will also apply mutatis mutandis in non‑congested districts where the maximum allotment has been fixed at 36,000 produce index units (reference Punjab Government memo. No. 8948‑R (L), dated the 15th November 1951)". It will be observed that in accordance with this paragraph if a person had registered his claim and then died, his heirs are regarded as a single claimant. If, on the other hand, he had died without preferring a claim, then his heirs are regarded as separate claimants. It should be clear from this paragraph that it does not envisage a case where a claim is put in by the heir in spite of the fact that the deceased ancestor had already submitted a claim. The categories referred to in this paragraph relate either to a case where the deceased had not preferred a claim and his heirs submitted claims or to a case where the deceased had submitted a claim and his heirs had not submitted claims. There is little room for any argument that although claims had been submitted by the ancestor, the heirs can become separate allottees if they too put in claims. In any case, in order to succeed in the contention that they are separate claimants, the heirs have got to bring themselves under category (ii) and that category only covers a case where the ancestor had not submitted a claim. If they do not fall within category (ii) there is no provision by which they will become separate claimants.

4. The effect of the respondents being a single claimant would be that they would be confined to the limit prescribed by the Scheme or the Rehabilitation Commissioner. In the Scheme it is provided that in congested districts the limit of an allotment is 2000 produce units. Gujrat, however is not one of the congested districts. The allegations of the petitioners are that the Rehabilitation Commissioner had specially fixed the limit with respect of certain villages in the Phalia Tehsil where the respondents have been allotted land, as 2000 produce units. This is supported by the order of the Deputy Rehabilitation Commissioner in this case and in fact it has been conceded before me on behalf of the respondents that Mr. A. M. Leghari, when he was Deputy Commissioner, Gujrat, had fixed a limit, but they contend that the approval of the Financial Commissioner for this limit was never obtained. I had allowed an opportunity to the petitioners to prove that there was an approval of the Financial Commissioner. They quoted the number of a letter and the office of the Rehabilitation Commissioner was asked to send that letter. The reply received is not specific because it says that the letter "does not appear" to have been issued by that office. Prima facie, having regard to the fact that all the Rehabilitation authorities who have been dealing with this case have acted on the assumption that the limit was 2000 and in fact there would have been no contest in this case had there been no such limit. I would accept that limit for the purpose of this petition if I were obliged to give a decision but as will appear from the last portion of this judgment, it is not necessary for me to go into that matter, It is sufficient for me to say that the Rehabilitation authorities have proceeded on the basis that the respondents were separate claimants and if 1 hold that they are not separate claimants, I should direct them to reconsider the matter regarding the respondents as one claimant.

5. I am constrained to observe that there has been on the part of the respondents who are big landlords a persistent effort to get out of the bar created against them by the Rehabilitation Settlement Scheme and thus far they have succeeded. Feeling that the maximum limit stood in their way, they bad on an ex parte application, which was presented originally to the Minister for Refugees and Rehabilitation, secured an order from the Rehabilitation Commissioner (Lands) which purported to make them separate claimants. Whether the Rehabilitation Commissioner (Lands) intended to make them separate claimants and whether the order was legally effective are matters discussed later in this judgment. It is sufficient to say here that the order on this application did not help the respondents till the matter went to the Additional Rehabilitation Commissioner. The respondents succeeded in getting the appeal of twenty‑five out of the petitioners dismissed on the 18th of November 1954, 1 do not know for what reason, for neither party has placed that decision before me. When the appeal of Ismail and Salamatullah came up for hearing it was withdrawn by the appellants. They did so apparently not because the appeal was without force for in spite of the withdrawal the Deputy Rehabilitation Commis sioner refused to uphold the allotment. They did so apparently because of a compromise with the respondents. The Deputy Rehabilitation Commissioner, after a report from the Assistant Rehabilitation Commissioner, set aside the allotment as illegal. That, however, was an ex parte order and very legitimately the Rehabilitation Commissioner directed the Deputy Rehabilitation Commissioner to rehear the matter. The rehearing was by the successor of the first Deputy Rehabilitation Commissioner and this officer found an argument in favour of the respondents which has not been relied upon before me and which in the face of the application which these respondents had submitted to the Rehabilitation Commissioner (Lands) could not have been relied upon, for there was a clear admission in that application as to the filing of claims by Diwan Fazal‑i‑Haq. The Additional Rehabilitation Commissioner rejected this argument. (it may be stated here that the application above mentioned in which the respondents had admitted the filing of a claim by Diwan Fazal‑I- Haq had been produced before the learned Additional Rehabilita tion Commissioner). The learned Additional Rehabilitation Commissioner, however, came to the conclusion that the fact that. the respondents had also filed claim forms was sufficient to make them separate allottees. When a revision application was filed against this order by Allah Bakhsh, the respondents com promised with him and released to him land which was sufficient to satisfy his claim. They were apprehensive, however, that some one else may reagitate the matter and it is apparently on their suggestion that the Rehabilitation Commissioner gave a direction in his order prohibiting the reopening of the matter and thus debarring himself from hearing a revision petition by any other person challenging the allotment in favour of the respondents. I do not say that he actually debarred himself. Legally he could still entertain a revision, but any person who has read his order may have refrained from putting in a petition for revision in view of what was contained in it.

6. It has been urged on behalf of the respondents that even though there be an allotment in excess of the limit imposed by the Scheme or by the order of the Rehabilitation Commissioner, the allotment in their favour would be valid because the Rehabilitation Commissioner (Lands) had passed an order on an application by them that they were to be regarded as separate allottees. This application had been submitted by them to the Rehabilitation Commissioner (Lands) on the 11th of August 1952. In this application it had been stated that Diwan Fazal‑I- Haq who was owner of 40 squares of land had submitted ten claim forms for the lands held by him in two districts of the Fast Punjab, that he had given his choice for the villages men tioned in the application and that on his death separate claims had been submitted by the respondents but that the Rehabilita tion authorities were regarding the seven heirs as one claimant and not .as seven claimants. Two prayers were made in the application. The first was that they should be treated as allottees in all the villages for which the deceased had indicated his choice and secondly that they should be regarded as separate allottees. On this application there is an endorsement first by the Minister for Refugees and Rehabilitation, Mr. Fazal Elahi Piracha in the following words :‑‑‑ " F. C. R. & C. may please consider and see that no injustice is done to the applicants." Then there is an endorsement by the Rehabilitation Commissioner (Lands) in the following words :‑ " D. C. Gujrat. If the applicants submitted their claims separately as heir to their deceased father and are allottees in any one estate of the Tehsil, they should be considered allottees on transfer and allotted land separately." The contention of learned counsel for the respondents is that the limit to the allotment of land is provided in that part of the Resettlement Scheme which contains not the scheme itself but the instructions issued by the Rehabilitation Commissioner under para. 23 of the Scheme and that the Rehabilitation Commissioner could issue instructions inconsistent with those he had already issued. Para. 23 of the Scheme runs as follows :‑ "

23. The Rehabilitation Commissioner (Lands) may at any time pass such orders consistent with this Scheme and issue such instructions concerning details, etc., as may be found necessary with a view to securing the proper implementation of the Scheme". It is in exercise of the powers granted by this paragraph that the instructions contained in Part II of the Scheme have been issued by the Rehabilitation Commissioner and it is urged that as the limit is mentioned not in the Scheme itself but in the instructions, it was open to the Rehabilitation Commissioner (Lands) to fix a new limit for a particular party. In support of this argument, learned counsel has also relied upon a Division Bench judgment of this Court in Writ Petition No. 66 of 1956 decided on the 19th of June 1956 where in similar circumstances the allotment of land exceeding the limit was upheld on the ground that there was a specific order of the Rehabilitation Commissioner validating allotment of land in favour of the allottee.

7. As against this argument, reliance has been placed on behalf of the petitioners on para. 3 of the Scheme wherein it is provided that "the Rehabilitation Commissioner (Lands) may prescribc scales of allotment in keeping with local conditions". It is urged that the only authority given to the Rehabilitation Commissioner is to give general directions as to limits having regard to local conditions and that it is not within his power to create exceptions in favour of particular individuals so as to grant there land in excess of the prescribed limit. I find little difficulty in agreeing with learned counsel for the petitioners the: the Rehabilitation Commissioner is entitled only to give general directions and instructions and that so far as the limit of allotment is concerned he can, in accordance with para. 3 be influenced only by local conditions. If a limit had been prescribed for a locality, no particular individual could on any ground be made an exception.

8. I am not even accepting that the order passed by the Rehabilitation Commissioner on the application of the respon dents was really intended to create an exception to the general instructions. The order of the Rehabilitation Commissioner does not refer to any claim made by the deceased and I am not bound to presume, in the absence of evidence, that the learned Rehabilitation Commissioner had read the application. The order is in a conditional form and may be passed in respect of any heir who had submitted a claim. I have already stated that according to para. 5 of Part II of the Scheme it is not contemplated at all that claims could be submitted by heirs even though a claim had already been submitted by an ancestor. It appears to me, on the other hand, that when the claim of one person has been accepted in respect of a particular land a second claim with respect to that land can neither be preferred nor accepted. It is not envisaged that two claims with respect to the same land should be registered. As the claim of Diwan Fazal‑i‑Haq had already been registered, the subsequent claim put in by his heirs would be void and of no effect. The learned Rehabilitation Commissioner who had been told that the petitioner had filed separate claims would not expect that the claims would have been registered if already claims with respect to the same land had been filed by the ancestor. If he was told that the claims of the heirs had been registered he could assume that no claim with respect to the same land had been filed by the ancestor. The order of the Rehabilitation Commissioner (Lands) appears to me to be only a formal order in terms of the instructions attached to the Scheme. So on both grounds, I will reject the argument that in view of the specific order passed by the Rehabilitation Commissioner (Lands) the respondents are entitled to retain the land allotted to them. The judgment men tioned above is a Division Bench judgment and the law laid down therein would be binding on me but in that judgment para. 3 of the Scheme which has been quoted before me and which lays down that "the Rehabilitation Commissioner (Lands) may prescribe scales of allotment in keeping with local con ditions" was not quoted before the learned Judges and, therefore, the case is not an authority for the interpretation of this paragraph.

9. A strenuous argument was put forward that the petitioners have not exhausted their remedies before the Rehabilitation authorities and, therefore, they have no right to file a writ petition. I do not think it can be said in the present case that the petitioners have not pursued their remedies. All along they have been asking the Rehabilitation authorities to set aside this allotment. At first an appeal was filed admittedly by twenty-five out of the thirty petitioners. True, once the appeal was decided against them they did not file a revision petition but it is to be observed that before their appeal was decided the Deputy Rehabilitation Commissioner bad, on the 16th of September 1954, in spite of the withdrawal of the appeal by Salamatullah and Ismail, passed an order calling for a report as to how this allotment had been made. After receiving the report he had set aside the allotment. The date of this order does not appear from the record but it was either before 18th November 1954 or somewhere near it because even the order of his successor which was passed on the application submitted first to the Rehabilitation Commissioner and then transferred to the Deputy Rehabilitation Commissioner is dated only the 12th of February 1955. During the proceedings before the Deputy Rehabilitation Commissioner counsel for the twenty‑five petitioners who had filed the appeal had appeared. An appeal was admittedly filed by all but on account of the objection as to the necessity of separate appeals a single appeal had been allowed to be lodged in view of the advice given by counsel that the point being common, the decision in the appeal of one would cover the case of all. Against the order of the Additional Rehabilitation Commissioner, Allah Bakhsh did file a revision. The other petitioners expected that the revision would be decided on the merits. Truly I am not clear as to how the Rehabilitation Commissioner refrained from considering in this revision as to whether the allotment was valid or not. The point was simple enough. Not only did he not consider it but he directed that the matter was not to be reopened at all although he gave no reasons for this direction. The petitioners other than Allah Bakhsh who were waiting for a decision on the merits were thus debarred from filing a revision petition on account of what was contained in that order. When a rule is laid down that this Court would not, unless the petitioner had exhausted all other L remedies, exercise its equitable jurisdiction, what is meant is that there should be a bona fide effort on the part of the petitioner to pursue the other remedies which are available to him, but we cannot be very meticulous with respect to the manner in which he pursues those remedies.

10. Another point was raised that twenty out of the present petitioners had been allotted land in Thal and, therefore, they had given up their claims in Chak No. 21 and have thus no locus standi to file this petition. It is admitted that some of the petitioners have gone to That but it is alleged that the allotment in Thal did not mature because of the defect in the land which was allotted to them and they had to revert to their temporary allotments. Lt appears to me that what the petitioners say is correct for admittedly they are now not holding any land in Thal, But the decision of this point is not necessary for even if there be ten petitioners before me I would set aside the order of the Rehabilitation authorities and would remand the case for fresh decision.

11. I hold that the respondents, the heirs of Diwan Fazal‑i‑Haq, are to be regarded as one claimant and that the order of the Additional Rehabilitation Commissioner dated 25th E November 1955 holding the respondents to be separate claimants is illegal. The order of the Deputy Rehabilitation Commissioner is also set aside. I am of the opinion that the learned Rehabilitation Commissioner before whom it had been urged that the allotment in favour of the respondents was illegal should have considered and decided whether it was illegal and should not have disposed of the revision filed before him by Allah Bakhsh on the basis of a compromise alone. I think this matter should under the circumstances be reheard by the Rehabilitation Commissioner (Lands). I direct that the Rehabilitation Commissioner (Lands) should decide the matter afresh after notice to the parties. I have held that the respondents are to be regarded as one claimant, but as already stated I do not know what is the maximum limit of allotment prescribed for the villages in which the respondents have been allotted land. The Rehabilitation Commissioner shall determine what is the limit applicable and he should pass all such further orders as he can pass in accordance with law. The only matter which I have decided is that the respondents are to be regarded as one claimant and not seven claimants. The writ petition succeeds but the parties will bear their own costs. A. H. Petition accepted.