P L D 1972 Supreme Court 302 (PLP)

4. 145/EB. 28-1-1954 5. 147/EB. 13-4-1952 6. 149/EB. 24-11-1953 7. 155/EB. 24-11-1953 8. 79/EB. 23-8-1954 9. 133/EB. 22-10-1956 10. 104/EB. 26-6-1953 11. 251/EB. 23-9-1953 12. 287/EB. 24-11-1953 13. 253/EB. 19-1-1953 14. 205/EB. 23-6-1953 (2) I have heard the persons present separately from each Chak. The facts necessitating a revision are almost identical in all of these estates. This order will, therefore, dispose of the cases of all the revisions relating to the 14 estates in question. (3) It has been frankly conceded that in all of these Chaks, non-allottees had been allowed to get allotments under the Rehabilitation Settlement Scheme against the interests of the sitting allottee-claimants. None of those present had any valid objection to the contemplated revisions, necessity for which is clearly indicated. After a careful consideration of all the circumstances, I quash the allotments already finalised and direct that fresh allotments in the estates concerned should be made, keeping in view the directions given below:- (i) Persons eligible for allotment will be these: (a) persons who were temporary allottees and gave their claim forms for this very estate and whose claims had been received by or were pending on the date noted against each estate in the margin of the first paragraph of this order when the first or the most of the confirmations were made; (b) who were temporary allottees and had registered their claim forms for different estates but had got the same trans ferred to this estate on or before the date specified above; (c) who were Government servants or such other non- allottees of the estate who had been permitted to be treated as allottees in accordance with the paragraph 7, Part II of the Rehabilitation Settlement Scheme and had put in claim forms for this very estate and whose claim forms were pending satisfaction on the said date; (d) Government servants and other classes of claimants mentioned fn item `C' above, who had given claim forms for a different estate but had got them transferred to the said estate on or before the said date. (ii) The verified claims of the claimants detailed in item (i) above will be satisfied in full subject to availability of land. If enough land to meet their verified claims is not available, a rateable distribution should be made in accordance with paragraph 11 of Part II of the Rehabilitation Settlement Scheme. In case of the claimants whose claims or objections were pending for verification or re-verification on the relevant date, 75 % of the area claimed or mentioned in the objection petition should be reserved, provided that if the claim or the objection petition has since been disposed of and the actual verified area is less than the area reserved, the reservation should be considered to have been made to the extent of the area actually verified. (iii) The normal rule of permitting the temporary allottees to secure the area held under temporary allotments under the Rehabilitation Settlement Scheme on the basis of the varified claim will be observed. In cases of the other types, if a person whose claim has already been satisfied and who is entitled to secure on allotment in this village under these orders has to part with any area, that area should be taken away according to his choice and in such manner that the area left is in a compact block. (iv) In calculating the entitlement of the claimants concerned, regard should not be paid to increase in produce indices ordered subsequent to the specified date. (v) If the area available is more than the requirements of the categories of claimants mentioned in item (i) above, the surplus may be utilised for allotment in the following order of priority:- (a) the sitting allottees who had got their claim form transferred from other estates up to 1st June 1956 and whose allotments have since been finalised, and thereafter. (b) the non-allottee claimants who had originally registered their claim forms for this estate, and if registered elsewhere had got the same transferred to the estate before the relevant date in accordance with the principles enunciated in the Rehabilitation Settlement Scheme. (4) It has been observed that orders in revisional proceedings have already been passed by me in case of Chak Nos. 133-EB, 155-EB, 215-ES and 253-EB. (Revisional Applications Nos. 206, 165, 200 and 169 decided on 22-10-1956, 17-9-1956, 15-10-1956 and 9-1-1956 respectively). The orders previously passed in the case of these Chaks should be considered as reviewed to the extent to which they may be found to differ from the principles enunciated in this order for making fresh allotments. (5) A copy of this order should be placed on separate file relating to each Chak.' This was the order challenged in the High Court by the several writ petitions. Civil Appeal No. 120 of 1969.-Relates to allotments of lands in Chak No. 133/E.B. of the same Tehsil. In this case, the appellants were sitting allottees but the respondents Nos. 1 and 2, who were temporary allottees in another Chak (No. 57/5-L) got an area of 240 kanals and 251 kanals and 13 marlas respectively confirmed in their favour in Chak No. 133/E.B. on 30-12-51, even though there was no order for the transfer of their unsatisfied claims from Chak No. 57/5-L to Chak No. 133/E.B. and there was no certificate in their favour that any of their claims were outstanding. Similarly, respondent No. 4, who was neither an allottee nor had any claim pending satisfaction in this Chak; was confirmed five acres pf land. The respondent No. 3 was allotted two squares of land in Chak No. 133/E.B. although he was a temporary allottee of only six acres. The sitting allottees protested against these allotments to the Colonization Officer, Pakpattan, who, on the 27th of October 1953, submitted a report to the Rehabilitation Commissioner (General) pointing out that the principle of pro rata allotment, as contemplated by paragraph 11 of Rehabilitation Settlement Scheme No. 2 hail been violated in this Chak, although the evacuee area available for allotment was less than the requirements of the sitting allottees. The Rehabilitation Commissioner (Land), on the 13th of November 1953, sanctioned revision of the allotments as recommended by the Colonization Officer in his above-mentioned report whereupon the Colonization Officer worked out the proposals and submitted a detailed statement to the Rehabilitation Commissioner for his approval on the 22nd of October 1954. His plan on the basis of the availability of the land worked out to 660 produced Index units each. While this report was pending consideration, the respondents Nos. 1 and 3 appeared before the Rehabilitation Commissioner on 22-10-56 and objected to the proposals of the Colonization Officer,, although the same were supported by the rest of the allottees present before the Rehabilitation Commissioner. The Rehabilitation Commissioner rejected the objections and accepted the proposals of the Colonizition Officer which were, according to him, equitable and in accordance with the policy of the Rehabilitation Depart ment. Thereafter came the omnibus order of the 11th of November 1956 which has already been quoted earlier. Civil Appeal No. 184 of 1969 concerns the allotments of lands in Chak No. 69/E.B., Tehsil Pakpattan. In this case, too, the appellants, who were sitting allottees, alleged that lands were given to the respondents, who were either temporary allottees of this Chak or of adjoining Chaks or were not allottees at all, up to the maximum limits, to the disadvantage of the appellants, even though the lands in this Chak were not sufficient to meet the claims of all the sitting allottees. Two sitting allottees. Azmat Ali and Ahmed Ali, filed five revision petitions against these irregular allotments, but the same were rejected on the 1st of December 1954 with the remark that the respondents in these revision petitions "should get only that area which is their due out of the land which was temporarily allotted to them. This would be at the rate of half, not 4/5th which increase was made on 30-8-52 and should have no retrospective effect." Notwith standing this, this order was also revised by the general order of the 11th of November 1956. Again, the affected persons filed writ petitions in the High Court which were accepted but on appeal to this Court the cases were remanded back to the High Court for fresh decision. These are briefly the facts of these cases but before we enter upon a discussion of the merits of these appeals we have to deal with some preliminary objections which have been raised on behalf of the respondents in civil Appeal No. 118 of 1969. The first preliminary objection seeks to question the constitution of this appeal on the ground that one of the respondents therein, namely, Major Tufail Muhammad, who had died as long ago as the 7th of August 1958, is still impleaded as a party. It appears that the said respondent died during the pendency of the original appeals filed in this Court against the order of the High Court allowing the writ petitions on the 15th of November 1957. The appeals wore accepted by this Court on the 7th of June 1962 and the cases were remanded back to the High Court. There, the legal representatives of Major Tufail Mahammad were brought on the record; but somehow or other the certified copy supplied by the High Court continued to show the name of Major Tufail Muhammad as a respondent. Hence the mis-description is repeated in this Court. This objection was not taken in the concise statement; nevertheless, we adjourned the appeal to enable the appellants to take necessary steps to correct the record. After the adjourn ment, it was discovered that this objection had been taken upon incorrect instructions, for, substitutions had been duly made in this Court too and the record had been properly corrected. In this view of the matter, the objection fails. The next preliminary objection sought to be raised is that certain persons who were parties in the High Court have not been impleaded as parties in this Court. This objection, again, has been taken for the first time now during the course of the hearing. It was not taken in the concise statement and therefore we disallow the learned counsel to raise this objection. Actually what has happened is this that, although 424 persons were made parties in the High Court, only 17 contested the proceedings in the High Court and it is only the contesting parties who have been impleaded in this Court. Lastly, a further attempt was made to challenge the validity of the substitution of the heirs of Major Tufail Muhammad on the ground that the substitution had been made after the expiry of the period of limitation. This objection, as pointed out earlier, should have been taken promptly when the application for substitution was made. That having not been done, we do not think that this technical objection should be allowed to prevail at this stage, for, this Court has the power to condone the delay even at this stage and does so to remove all doubts. Having disposed of the preliminary objections, we now take up for consideration the main question in this appeal, namely; as to whether the order of the 11th of November 1956 was an order passed in the exercise of the review jurisdiction of the Rehabilitation Commissioner ; if so, whether it was a valid order. Learned counsel, appearing on behalf of the appellants, has maintained that, so far as Civil Appeal No. 118 of 1969 is concerned, since there was no appeal or revision filed against the confirmations of the allotments made in 1951 and 1952, the order of the 11th of November 1956 was clearly not an order passed in the review jurisdiction but an order passed in the exercise of the revisional powers of the Rehabilitation Commis sioner under subsection (4) of section 11 of the Rehabilitation Act of 1956. Subsection (4) of section 11 reads as follows:-- "

11. Appeal, Revision and Review.-(1) . , (2) .

(3)

(4) The Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceeding relating to any of the purposes of this Act, which is pending before, or has been disposed of by an Additional, Deputy or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or authorized agent pass such order in relation thereto as he thinks fit: Provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard." It will be observed that, under this, very wide powers have been given to the Rehabilitation Commissioner. Without any limitation of time he can either sue motu or on perusal of an application made to him in that behalf call for the record of any proceeding which is either pending or has been disposed of by an Additional, Deputy or Assistant Rehabilitation Commis sioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and pass such order thereon as he thinks fit. The only condition imposed is that if the Rehabilitation Commissioner proposes to revise or modify an order affecting any person, then that person should be given an opportunity of being heard. In the present case, as was pointed out by this Court in Civil Appeal No. 3/1 of 1959; such an opportunity had been given, for everyone in the Chaks concerned had been notified by proclamation and a large number of persons had, in fact, appeared before the Rehabilitation Commissioner in response to such public notice by proclamation. The High Court has, however, in this case held that a revision application had in fact been filed in this case too, being No. 169 of 1955-56, and an order was passed thereon on the 9th January 1956. A great deal has been said with regard to this order of the 9th of January 1956 but having perused it carefully, we are inclined to agree with the learned counsel for the appellants that this was not a final order at all. It decided nothing. It merely issued an executive instruction to the Colonization Officer to make a detailed re-examination of all the cases according to the principles indicated in this order and to come up for revision only in such cases which had not complied with those principles. The principles laid down therein were that before making the allotment a calculation should first be made of the total number of units needed for the satisfaction of the verified claims as also of the number of units which would be equal to 75 % of the area claimed in respect of the claim forms which are still pending. Then on totalling these figures and comparing them with the area available, it should be firs ascertained as to whether the area available was more than what would be needed for satisfaction of the verified claims in full and the reserve of the 75 % in respect of pending claim forms. If so, then the verified claim forms could be satisfied in full ; but if the area was less, then the satisfaction of the claim forms should be made to the extent permissible. This direction also indicated that the calculation should be made on the basis that confirmations were being made on 27-10-51 as the bulk the confirmations had been made on that date. It will be noticed that this order did not lay down any new principle nor contemplate any review of any order but only contemplated a revision in such cases in which the principles of the scheme had not been followed. In view of the irregularities committed, such a direction would, as was pointed out by this Court in its judgment in Civil Appeal No 3/1 of 1959, have been in every way justified, under subsection (1) of section 7 of the Rehabilitation Act of 1956. The next question that arises is as to whether the order of the 11th of November 1956 was an order passed in review of the order of the 9th of January 1956. If the order of the 9th of January 1956, as earlier indicated by us, was not a final order, then the question of review of that order does not arise. But even if it was, we are of the view that the impugned order was not an order in excess of the jurisdiction of the Rehabilitation Commissioner. The Rehabilitation Commissioner could certainly in review, under subsection (5) of section 11 of the Rehabilitation Act of 1956, correct errors or supply omissions which are apparent on the face of the record. This is exactly what he did. He did not change the principles of allotment but merely changed the dates on the basis of which the allotments had to be confirmed in order to conform to the dates apparent from the record of the original confirmations. This impugned order was certainly made after summoning all persons affected through proclamations to appear before the Rehabilitation Commissioner at Pakpattan, and after hearing all persons present in pursuance of such a proclamation. Next the Rehabilitation Commissioner himself treated this order as a revisional order and purported to act in the belief that he was revising an order of a subordinate authority by reason of the irregularities committed by it in making the allotments. It was only towards the end when it was pointed out to him that in certain cases he had already passed orders in exercise of his revisional powers that he said that such orders should be "considered as reviewed to the extent to which they may be found to differ from the principles enunciated in this order for making fresh allotments" The High Court has taken the view that the impugned order did not merely correct errors or omissions apparent on the face of the record in the previous revision orders but proceeded on a basis materially different from that of the previous order in so far as the previous orders themselves proceeded on the basis that claimants were to be considered for allotment irrespective of the fact whether they were allottees or non-allottees. According to the impugned order, on the other hand, only allottees were to be considered for allotment in the first instance. The non allottees would come into the picture only if there was surplus land left after satisfying the claims of the allottees. The main argument advanced on behalf of the respondents is that, in any event, the order of the 9th of January 1956 was a final order passed in the revisional jurisdiction. It finally laid down the principles for the determination of entitlement to allotment as on the 27th of October 1951 and therefore it was not merely a preliminary direction but a detailed order finally determining too manner in which allotments were to be made. The variation of that date by the order of the 11th of November 1956 was, therefore, a material alteration of the entire basis of entitlement, because, it brought in new persons who were not entitled on that date and was not, therefore, a correction of a mere error apparent on the basis of the record. It has also been argued that the order of the 11th of November 1956 cannon possibly be construed as an order made under section 7(1) of the Rehabilitation Act of 1956. No order under this section could, it is urged, be made after it had become final under section 13 of the aforementioned Act and, therefore, whether it was an order in review or an order under section 7, subsection (1), it was a bad order, and the High Court had rr4htly set it aside. So far as the change of date effected by the order of the 11th of November 1956 is concerned, the matter is now no longer res integra as pointed out by the High Court itself. This Court, in its judgment in Civil Appeal No. 3/1 of 1959, had clearly held: "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 instruction about the relevant date, provided 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. We have not been referred to any provision of the Ordinance or the Scheme which would be inconsistent with such alteration of elate of final allotments, once a general revision of allotments had been legally ordered. The new situation created by such an order would justify fresh instructions as to the categories of persons in the field, who would merit consideration.. Surely, one of the principal objects of the Scheme was to rehabilitate as many refugees claimants and others, as possible, and even if the Rehabilitation Commissioner's order had the effect contended for by the respondents, it does not seem to be open to any valid objection. Similar considerations would hold good in the cause of a direction with regard to the scale of allotments being allowed on account of change in the produce indices to be kept in view." This passage makes it abundantly clear that in the view of this Court the change of date, even though it resulted in bringing in fresh claimants and changing the scale of allotments, was not outside the scope of a "special order" within the contemplation of subsection (1) of section 7 of the Rehabilitation Act of 1956. The contention of the High Court, therefore, that material alterations in the previous revisional orders had taken place by reason of the change in date, runs counter to the decision of this Court, which the High Court was bound to follow. To that extent, the judgment of the High Court cannot be upheld. The High Court, it appears, was also wrong in taking the view that the cases were remanded to the High Court only on the ground that the High Court had not considered whether, in cases which the parties had earlier brought, it was open to the Rehabilitation Commissioner to pass any order superseding a previous revisional order, but also on the ground that many persona who would have been affected by the orders of the High Court had not been given a hearing. If the change of date, as already held by this Court, was possible under subsection (1) of section 7 of the Rehabilitation Act of 1956, then it is immaterial whether the Rehabilitation Commissioner considered it necessary to say that it is an order passed in review or not. The order would not be bad merely because the Rehabilitation Commissioner wrongly described the power he purported to exercise. It is necessary, however, to examine the order of the 11th of November 1956, once again to consider as to whether there is any force in the argument that even if it was passed in review it had made material changes which went beyond the scope of correcting errors or omissions apparent on the face of the record. Now, the directions with regard to the eligibility of allotment given in the order of the 11th of November 1956 merely categorise the persons eligible. They do not lay down any order of priority. It is only in paragraphs 2(i) and 3(i) that the method of distribution is laid down. Here, again, no departure from the general principle laid down in the Rehabilita tion Scheme appears to have been made. All that has been said is that, if enough lands are not available, then a rateable distribution should be made in accordance with paragraph (11), Part II of the Rehabilitation and Settlement Scheme amongst the entitled persons mentioned in paragaph (i). The scheme of distribution laid down in paragraph (v) is not applicable in this case because, the area available is not more than the requirements of the categories of claimants mentioned in paragraph (i). In the circumstances, the contention of the appellants that the only relevant material alteration that has been made is with regard to the date, on the basis of which the calculation wilt have to be made, and this date has been fixed differently in different Chaks, according to the dates of the original confirmations in these Chaks. Whatever changes, therefore, that have been introduced by the order of the 11th of November 1956, have come in as a result of the alteration of the date, and if the alteration of the date, as already held by this Court, was valid under paragraph 7(i) of the Rehabilitation Act of 1956, then the objections as to the validity of the order of the 11th of November 1956 disappear. Learned counsel for the respondents have referred to certain decisions of this Court with regard to the scope of review and the scope of an order under section 7(i). These are the cases of Muhammad Tufail v. Abdul Ghafoor (P L D 1958 S C (Pak.) 201), Abdul Hafiz v. Rehabilitation Commissioner (P L D 1966 S C 483) and Muhammad Shafi v. Ch. Ilamuddin (1968 S C M R 1293), but the principles enunciated therein arc of no assistance to them. The first case laid down the scope of a review under section 13(5) of Ordinance No. XIX of 1948 (Pakistan Rehabilitation Ordinance). There is no dispute as to this. The second case upheld the legality of this very 'general order' of revision of allotments in a Chak. It is in fact the judgment in Civil Appeal No. 3/1 of 1959 referred to earlier. The last case also dealt with a general revision of allotments and following the judgment in Abdul Hafiz's case, recalled the writ issued by the Nigh Court. The impugned order of the 11th of November 1956 could, therefore, in our opinion, have been legitimately made both under subsection (1) of section 7 of the Rehabilitation Act of 1956 and under section 11(4) thereof. The only material difference between this order and the order of the 9th of January 1956 and other previous revisional orders is in respect of the date, on the basis of which the entitlement is to be determined, and since this as has already been held, could lawfully be done, no valid exception can be taken to the impugned order. We have also examined the revisional orders of 1-12-54 and 22-10-56 in Revisions Nos. 1573 of 1953-54 and 206 of 1955-56 respectively but are unable to agree that the impugned order of 11-11-56 made any material alterations in them. By the order of 1-12-54 allotments to temporary allottees of the Chak were upheld according to their due under the Rehabilitation scheme and by the order of 22-10-56 only certain objections to the proposals of the Colonization Officer were rejected. There is nothing to show that these proposals were materially altered by the impugned order apart from changing the dates of confirmation. We, therefore, allow these appeals with costs and set aside the orders of the High Court, recall the writs issued by it and restore the order of the Rehabilitation Commissioner. K. B. A. Appeal accepted.