P L D 1963 (W (PLP)

3. The validity of the orders dated the 22nd of June 1954 and the 17th of February 1955, passed by Messrs H. A. Majid and I. U. Khan, was questioned only by counsel for petitioner No. 1, Ch. Inayat Ullah. His contention was that both these orders came into conflict with certain provisions of Part II of the Rehabilitation Settlement Scheme and, therefore, had no binding force. In advancing this contention, the learned counsel over looked the fact that in accordance with paragraph 23 of Part I of the said Scheme, a Rehabilitation Commissioner is competent to pass such orders consistent with the Scheme and issue such instructions, concerning details etc., as may be found necessary with a view to securing the proper implementation of the Scheme. If the two orders had come into conflict with the provisions of Part I of the Scheme, their validity could be challenged, but as this is not the case the contention of the learned counsel is with out any force. For authority reference may be made to a judgment of the Supreme Court in Civil Appeal No. 3/1 of 1959 (Abdul Aziz v. Rehabilitation Commissioner, West Pakistan, Lahore and others). The question involved in this case was as to whether the Rehabilitation Commissioner was competent to issue such instructions under paragraph 23 of Part I of the Rehabilitation Settlement Scheme, referred to above, and whether such instructions had a binding force. Dealing with this matter, their Lordships observed as follows :‑ "It is, however, contended on behalf of the contesting respondents that by fixing a new relevant date with reference to which claimants had to be considered, the Darned Rehabilita tion Commissioner has introduced new categories of claimants who were not in the picture at the time previous allotments had been finalised in favour of the contesting respondents in this chak. The new date fixed in this chak was the 4th November 1953, whereas it is alleged that most of the allotments in this village had taken place early in October 1951, and April 1952. In this connection, it is pertinent to note that the learned Rehabilitation Commissioner has clarified in his order that he was fixing a specific date for revision in each chak, which was coincident with the date of the last order finalising allotments or at least the majority of them. There is no material on the record which could cast any valid doubt on this statement. It seems to us that this procedure was open to the Rehabilitation Commissioner and he was not really departing from any provision of the Scheme or any principle in fixing such a date. Moreover, under para 23 of Part I of the Rehabilitation Scheme, the Rehabilitation Commissioner (Lands) can, at any time, pass such orders consistent with the Scheme and issue such instructions as may be found necessary, with a view to securing the proper implementation of the Scheme. It is suggested on behalf of the Rehabilitation Commissioner and the appellants that even if there was a variation of the relevant date, by order of the Rehabilitation Commissioner, such a variation could be legally made by him, in exercise of powers conferred on him by paragraph 23 of the Part I of the Scheme, read with section 7(1) of the Ordinance, . . . . It makes little difference if the learned Rehabilitation Commissioner did not expressly refer to section 7(1) of the Ordinance and para. 23 of the Scheme while issuing the new instructions about the relevant date provided that he had the legal power in that respect. Such an instruction would be on a par with instructions embodied in Part II of the Rehabilitation Scheme which could be obviously varied from time to time in the light of experience, and in the interests of better implementation of the fundamentals of the Scheme included in Part I thereof. Even if, therefore, by fixing a new relevant date, those who were not claimants in the village at the time of the earlier allotments, 'had been brought in, e.g., those who got their claims transferred to this chak after this point of time but prior to the relevant date, and Government servants who were not originally claimants in this chak but had been allowed to become claimants in pursuance of orders passed by Government, no departure from the provisions of the Rehabilitation Scheme had resulted . . . . .". In view of these observations made by their Lordships of the Supreme Court and the clear provisions of paragraph 23 of Part I of the Scheme, I am of the opinion that the validity of the two orders passed by Mr. H. A. Majid and Mr. I. U. Khan cannot be questioned on any reasonable grounds, even if it could be held that those orders come into conflict with any provisions of Part II of the Scheme.

4. The order passed by Mr. I. U. Khan on the 17th of February 1955, was, according to him, "clarification" of the previous order passed by Mr. H. A. Majid, and, on the strength of the two orders, the land in dispute could be allotted to respondents Nos. 2 and 3, if they fulfilled the following conditions :‑ (i) They were allottees in this village, as defined in clause (f) of Mr. I. U. Khan's order, on or before the 28th of March 1952, namely, dither they were original sitting allottees or had been subsequently declared as such under the Rehabilitation Settlement Scheme; (ii) their claim forms had been transferred for allotment of land in this village on or before the aforesaid date ; and (iii) the orders of transfer of the claim forms had been passed by a competent authority.

5. It was conceded by the learned counsel for Mirza Munawwar Beg and Mirza Muhammad Ahmad Beg, respondents, that neither of them was a temporary allottee of land in this village and, hence, they were not "sitting" allottees, within the meaning of Mr. I. U. Khan's order, dated the 17th February 1955. He, however, contended that as Mirza Munawwar Beg was a Government servant, being employed in the Army, and as his near relative, namely, Mirza Hameed Ullah Beg, an uncle, had "settled" in this village, according to paragraph 7 (6) of Part II of the Rehabilitation Settlement Scheme, he was to be deemed to be a temporary allottee of land in this village. With regard to Mirza Muhammad Ahmad Beg, his contention was that as his guardian Mirza Hameed Ullah Beg, was a temporary allottee of land in this village, the minor, namely, Mirza Muhammad Ahmad Beg, according to paragraph 7(5) of Part II of the Rehabilitation Settlement Scheme, was to be deemed to be a temporary allottee and, hence, the first condition laid down in Mr. I. U. Khan's order was fulfilled by both these respondents.

6. Paragraph 7(6) of Part II of the Scheme, on which reliance was placed by the learned counsel, and which was inserted by means of a notification, dated the 6th October 1953, is in the following words:‑ "Government servants and local owners of the chak/estate or adjoining chak/estate will be considered of the same status as sitting allottees if‑ (a) in the case of Government servants their near relatives are settled in that chak/estate ; (b) local owners and Government servants had originally registered claims for that chak/estate." According to the order dated the 20th June 1960, passed by Mr. Muhammad Akram, Rehabilitation Commissioner, Mirza Hameed Ullah Beg was an uncle of Mirza Munawwar Beg respondent. It was admitted by the petitioners' counsel that Mirza Hameed Ullah Beg was a temporary allottee of land in this village, but his contention was that he had not "settled" in this village and, hence, Mirza Munawwar Beg, respondent, could not take benefit of the provisions of paragraph 7 (6) of part II of the Scheme. The expression "settle" has not been defined in the Rehabilitation Settlement Scheme, nor has the expression "allottee" been defined in it, but "temporary allotment", according to this Scheme, means allotment under the provisions of the Act, namely, the Pakistan Rehabilitation Act, 1956, other than allotment under this Scheme. The terms "allotted" and "settled" have been used in sections 8 (2) (b) and 8 (2)(d) of the Pakistan Rehabilitation Ordinance, 1948, corresponding to sections 7 (2)(b) and 7 (2)(d) of the Pakistan Rehabilitation Act 1956, and do not mean the same thing. The word "settle" or "settled" has been employed with reference to refugees and the word "allottee" with reference to all persons, whether refugees or not. The word "settled" occurring in paragraph 7 (6) of the Scheme can, therefore, be deemed to refer to the settlement of displaced persons and, hence, if' the respondent is able to show that any near relative of his had settled in this village, by fiction of law created by this paragraph of the Scheme, he could be deemed an allottee of land in this village. Admittedly, Mirza Hameed Ullah Beg was an allottee in this village and although he may not have been residing permanently in the village, he must be deemed to have "settled" in the village and as he has been held to be a rear relative of Mirza Munawwar Beg, respon dent, the latter would be deemed to be a sitting allottee in the village, for the purposes of allotment of land under the Scheme, according to Mr. I. U. Khan's order.

7. The learned counsel for the petitioners contended that on the 28th March 1952, paragraph 7(6) of the Scheme was not in existence and, therefore, in deciding as to whether Mirza Munawwar Beg was, or was not, a sitting allottee in the village, at that time, the Court has to see what the law was at the time when Mr. I. U. Khan passed the order dated the 17th February 1955. The Rehabilitation Commissioner, Mr. I. U. Khan, when he passed the order in question must have known that paragraph 7(6) was not in existence on the 28th February 1952, but as he defined the term "allottee" as including allottees who were subsequently declared as such under the Rehabilitation Settlement Scheme, he was giving the benefit of this provision of law to this respondent. As paragraph 7 (6) falls under Part II of the Scheme and 'as the said Part contains instructions and orders issued by the Rehabilitation Commissioner, in pursuance of the powers conferred on him by paragraph 23 of Part I of the Scheme, he was competent to permit the respondents, or other such persons, to take benefit of the changed law and, in doing so, he cannot be deemed to have violated any provisions of Part I of the Scheme. I, therefore, hold that Mirza Munawwar Beg, respondent, should be deemed to be an allottee of land in this village on 28th March 1952.

8. The case of Mirza Muhammad Ahmad Beg, respondent, who at that time, was a minor, is sought to be covered by paragraph 7(5) of Part II of the Scheme, which reads as follows :‑ "For the purposes of allotment of land under the Rehabilitation Settlement Scheme, widows, unmarried daughters and minors should also be considered as allottees in the village in which their relatives hold allotments. The term `relatives' implies brothers, sisters, uncles, first cousins and guardians in the case of minors." This sub‑paragraph was inserted on the 15th February 1953 and for reasons already given, although it was not a part of the Scheme on the 28th March 1952, this respondent, according to the order of Mr. I. U. Khan, can take benefit of it, if the conditions laid down therein are fulfilled. According to the order of 20th June 1960, passed by Mr. Muhammad Akram, Mirza Hameed Ullah Beg was a brother of Mirza Muhammad Ahmad Beg's grandfather and he had filed the claim form on behalf of the minor. It was contended by the learned counsel for the petitioners that Mirza Hameed Ullah Beg being neither one of the relatives of the minor, mentioned in paragraph 7 (5) of Part II of the Scheme, nor being his legal guardian, this respondent could not take benefit of this paragraph and, hence, could not be deemed to be a temporary allottee of land for the purposes of the Scheme. No doubt, Mirza Hameed Ullah Beg was not one of the relatives mentioned in this paragraph, but the word "guardian" used in this paragraph would be wide enough to include a case of this kind. This word would not necessarily mean a legal guardian, or a guardian appointed by a Court. It, is not known whether Mirza Muhammad Ahmad Beg, respondent, had any nearer relatives living at that time, but as Mirz Hameed Ullah Beg had filed the claim form on behalf of the respondent, it would not be unreasonable to hold that he was a de facto guardian of the minor, and, hence, the benefit of this provision of law should go to Mirza Muhammad Ahmad Beg respondent, I, therefore, hold that by fiction of law, created by paragraph 7(5) of Part II of the Scheme, Mirza Muhammad Ahmad Beg, respondent, will have to be considered to be a sitting allottee of land in this village. He also, therefore,) fulfils the first condition laid down in Mr. I. U. Khan's order.

9. According to the order dated the 20th June 1960, passed by Mr. Muhammad Akram, Mirza Munawwar Beg had filed his claim form in this village, on the 19th October 1949. As normally, in exercise of jurisdiction conferred by Article 2 of the Laws (Continuance in Force) Order 1958, which is now exercisable under Article 98 of the Constitution, this Court does not go into disputed questions of fact and as it was not even suggested that the finding of Mr. Muhammad Akram, on this point, was erroneous, it will have to be accepted as correct. As Mirza Munawwar Beg had submitted his claim form for allotment of land in this village long before the 28th March 1952, no question of transfer of his claim to this village arose.

10. The position with regard to the claim form of Mirza Muhammad Ahmad Beg is different. It appears from the order dated the 20th June 1960, passed by Mr. Muhammad Akram, Rehabilitation Commissioner, that in the claim form submitted by Mirza Hameed Ullah Beg, on his behalf, he had given his choice for allotment of land in the following order :‑ (1) Amar Kot. (2) Kot Rai Boota Mal. (3) Kot Sher Singh. No allotment could be secured by Mirza Muhammad Ahmad Beg in village Amar Kot, and some time before the 29th March 1952 (the exact date being not known) allotment of land was made in his favour in Kot Rai Boota Mal. This means that his claim form had been transferred to this village from Amar Kot prior to the 28th March 1952. If the order of transfer had been duly made, Mirza Muhammad Ahmad Beg would fulfil the second condition laid down in Mr. I. U. Khan's order.

11. This brings me to the question of fulfilment of the third condition, namely, as to whether the claim form of Mirza Muhammad Ahmad Beg was transferred to Kot Rai Boota Mal under orders of a competent authority. Mr. H. A. Majid, in his order dated the 22nd. June 1954, observed that originally the name of Kot Rai Boota Mal was mentioned as the second choice for re‑settlement and the initial registration, of the claim in this village was made on the date when the claimant himself made a statement in favour of that village, or the local Rehabilitation Staff transferred the claim to this village. He did not give a clear finding as to whether the orders in question had been passed by a competent authority, and if so, which that authority was. Mr. I. U. Khan, however, in his order dated the 17th February 1955, did say that only such transfers would be recognised which were made under orders of a "competent authority". He also did not say which that authority was. 11‑A. When these two orders were "passed, paragraph 13‑A of Part II of the Rehabilitation Settlement Scheme, as it now stands, was differently worded and, at that time, that paragraph did not make it obligatory that the order of transfer of a claim form within a district should also be passed by the Deputy Rehabilitation Commissioner. The amended paragraph was inserted on the 28th January 1957 and after the aforesaid date no such claim form could be transferred within, or outside, a district without the orders of the Deputy Rehabilitation Commissioner. Paragraph 13‑A, before it was amended on the 28th January 1957, had been inserted on the 13th November 1952. It dealt with the case of transfer of claim forms from one Province of Pakistan to another Province and riot to transfer of claim fortes from one district to another, or within the same district. Paragraph 13 of Part II of the Rehabilitation Settlement Scheme, as it existed prior to the 17th February 1955, had been inserted in the year 1954 and was in operation at the time when the two orders were passed by Messrs H. A. Majid and I. U. Khan. The marginal heading of this paragraph indicated that it applied to the transfer of certificates in respect of "surplus units" of a claim, but the note underneath this paragraph, which is in the following words, was intended to apply to all transfers of "units" from one estate to another, in the same tehsil or district :‑‑ "This procedure will also apply mutatis mutandis to the cases of transfer of units from one estate to another in the same tehsil or district." The procedure laid down in this paragraph was that certain forms were to be prepared and after they had been carefully checked and signed by the Deputy Rehabilitation Commissioner they were to be sent to various offices. 11‑B. The point to be noted is that no transfer of "units" could take place without the express orders of the Deputy Rehabilitation Commissioner, whether the transfer was from one district to another, or within the same district. When Mr. I. U. Khan passed the order, dated the 17th February 1955, he must have had in his mind the provisions of this paragraph, otherwise he would not have said that only such transfers would be recognised which had been made under orders of a "competent authority". It is, therefore, obligatory for Mirza Muhammad Ahmad Beg, respondent, to show that orders of a competent authority were obtained by him when his claim form was transferred from village Amar Kot, his first choice, ‑to Kot Rai Boota Mal, his second choice. No such orders have been placed on the record, nor is it stated in the order of Mr. Muhammad Akram that any such orders existed, or were at any time passed. 11‑C. The learned counsel for the respondents contended that in accordance with section 114 of the Evidence Act, this Court would be justified in presuming that the official act of transfer of the claim form was properly done and, hence, orders of the Deputy Rehabilitation Commissioner must have been obtained. This argument would have been of some avail to the respondent, if Mr. I. U. Khan, had not stated clearly that only such transfers would be recognised which had been made under orders of a "competent authority". It was, therefore, necessary for the respondent to show either to this Court, or to the Rehabilitation Commissioner, that this condition had been fulfilled and that a "competent authority" had passed an order of transfer in his favour. As this has not been done, I have no alternative but to hold that the third condition laid down by Mr. I. U. Khan was not fulfilled and that no competent authority had passed orders of transfer of the claim form of this respondent from village Amar Kot to village Kot Rai Boota Mal. This being the position, no part of the land in dispute could be allotted‑ to Mirza Muhammad Ahmad Beg, respondent, without satisfying the claims of the other sitting allottees, whose claim forms had been duly filed for this village, or had been transferred to it under orders of a competent authority.

12. The respondents have raised a number of objections against the maintainability of this petition in their written statement, which they have described as "preliminary objections" Only some of them need be mentioned.

13. One objection is that as Fateh Muhammad, Mst. Talea Bibi, Ahmad Ali and Abdul Majid, who were parties before the Rehabilitation Commissioner, have not been joined as respon dents, the petition is incompetent and no relief can be granted to the petitioners. A complete answer to this objection is furnished by Order I, rule 9, of the Code of Civil Procedure, according to which no suit can be defeated by reason of the misjoinder 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. I, therefore over‑rule this objection.

14. The second objection is, that as a previous writ petition filed by the petitioner was dismissed, as being premature, no second petition, on the same grounds, lay. This objection would have had some force if there had been no change of circumstances and without waiting for the orders of the Rehabilitation Com missioner, the petitioners had come to this Court, again. The position, however, is that after the previous petition was dismissed by this Court on the 15th April 1958, the matter was finally heard by the Rehabilitation Commissioner, who, on the 20th June 1960, granted certain reliefs to the respondents. The present petition has arisen out of this order and, hence, it is not open to the respondents to argue that by reason of dismissal of the previous petition, a second petition does not lie.

15. The third objection is that out of 30 petitioners, 23 have no locus standi to come to this Court for the following reasons :‑ (i) petitioners Nos. 4, 7, 8, 9, 10, 12, 16, 19, 26, 27, 28 and 30 have no verified claims against which land can be allotted to them in this village; (ii) petitioners Nos. 11, 14, 15, 18 and 20 did not register their claims for allotment of land in this village; and (iii) petitioners Nos. 4, 10, 12, 13, 14, 16, 17, 19, 21, 22, 25, 26, 27 and 30 were not parties in the proceedings before the Rehabilitation Commissioner, and had not challenged the orders of allotment passed in favour of the respondents.

16. So far as the first‑mentioned two categories of the petitioners are concerned, they, in my opinion, have no locus standi to come to this Court, for getting any relief against the respondents, but the objection with regard to the third category cannot prevail, because if they had a locus standi to object and for some reasons were unable to challenge the orders of allotment by filing a revision petition, they can take benefit of the orders to be passed in favour of the other petitioners, even though they have not exhausted all the remedies available to them under the relevant law. I, therefore, hold that the petitioners mentioned in categories (i) and (ii) had no locus standi to present this petition, and, hence their petition is, hereby, dismissed. So far as the remaining petitioners are concerned, no relief can be granted to them against Mirza Munawwar Beg, respondent, and their petition against him is dismissed. These petitioners are, however, granted a declaration to the effect that the allotment made in favour of Mirza Muhammad Ahmad Beg, respondent, is of no legal effect against them and so long as the petitioners' claim is not satisfied, Mirza Muhammad Ahmad Beg cannot be allotted any land in this village. It is further directed that these petitioners shall be allotted land against their verified claims, in accordance with the directions contained in the orders dated the 22nd June 1954 and 17th February 1955 passed by Messrs H. A. Majid and I. U. Khah. Parties are directed to bear their own costs. K. B. A./A. H. Petition partly accepted.