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Civil Appeal No. 148 of 1983, decided on 2nd April, 1984.

(On appeal from the Judgment and Order of the Lahore High Court, Lahore dated 1‑2‑1983 passed in Writ Petition No. 754/R of 1979)

---Art. 185(3)‑Rehabilitation Settlement Scheme, paras. 3 & 11‑Leave to appeal granted to examine whether in facts and circumstances of case conditions precedent for invoking provisions of para. 11 of Scheme in relation to fixing a maximum area for allotment of land to various claimants were met.

‑‑-Paras. 3, 11 & 23 ‑Allotment of land situated in close proximity of town,‑Uniform treatment given to all claimants by Rehabilitation authorities with a view to accommodate as many claimants as possible upon valuable land in dispute‑Held, does not suffer from any illegality‑Application of principle of first come first served wholly irrelevant in such case.

Muhammad Daud Khan v. Rehabilitation Commissioner, Hyderabad P L D 1961 Kar. 224; Shah Nawaz . Niamat Ali Beg 1976 S C M R 227; Muhammad Shafi v. Chief Settlement and Rehabilitation Commissioner, Lahore 1968 S C M R 121; Noor Din v. Bashir Ahmed 1951 S C M R 1212; Muhammad Chiragh v. Muhammad Ali Khan 1983 S C M R 432 and Suleman v. Nur Jama1.1970 S C M R 525 distinguished.

Zakiuddin Pal, Senior Advocate Supreme Court instructed by Mehdi Khan Mehtab, Advocate‑on‑Record (Absent) for Appellant.

S. M. Zafar, Senior Advocate Supreme Court instructed by Tanvir Ahmed, Advocate‑on‑Record (Absent) for Respondents.

Respondent No. 5 : Ex parte.

Date of hearing : 2nd April, 1984.

This appeal by special leave of this Court arises from judgment dated 1‑2‑1983 passed by a learned Single Judge of the Lahore High Court, Lahore, dismissing the Writ Petition of the present appellant Masood Hussain Zahidi.

2. The dispute in this case relates to agricultural land comprising Killas Nos. 1 to 5 and 6/2 of Sq. No. 47 in Chak No. 44/NB, Tehsil and District Sargodba. The appellant was allotted lands against his claim equivalent to 337 PIUs in Chak No. 1115/NB. The balance of his claim com prising 1461 PIUs was transferred from the aforesaid Chak No. 115/NB to Chak No. 44/NB on 14‑5‑1960. Accordingly a proposal for allotment to him was made on 10‑6‑1960 in respect of land comprising Killa Nos. 1 to 16 and 17/1. of Sq. No. 47 measuring 150 Kanals situated in Chak No. 44/NB, in order to adjust his pending claim, In the events that happened however, on 23‑6‑1960 the Deputy Commissioner, Sargodha exercising powers of Deputy Rehabilitation Commissioner passed au order purporting to be in pursuance of principles of consolidation and in view of the Land Reforms whereby it was directed "that nobody should be allowed to get area more than the subsisting holding i.e. 121 Acres" as by doing so the Rehabilitation Authorities would be in a position to accommodate more claims. Therefore, when the proposal came up before the Assistant Rehabili tation Commissioner or 25‑6‑1960 he confirmed the land comprising Killas Nos. 6/I, 7 to 16 and 17/1 of Sq. No. 47 measuring 100 Kanals 15 Marlas in favour of the appellant and excluded the land in dispute described above, in view of the order dated 23‑6‑1960 of the Deputy Commissioner/ Deputy Rehabilitation Commissioner (Land), Sargodha. The land in dispute along with some other land was then proposed to be allotted to the deceased res pondent Aziz Ahmed against his pending claim of 460 P.I.Us. received on trans fer from Chak No. 42/N.B., Tehsil and District Sargodha. The latter proposal could ‑not be confirmed as the appellant challenged the order dated 25‑6‑1.960 of the Assistant Rehabilitation Commissioner (Land), Sargodha excluding the disputed land from, the proposal made in favour of the appellant. The appellant's appeal having dismissed the allotment of land in dispute was confirmed in favour of deceased/respondent on 8‑3‑1961. However, the appellant succeeded in his revision before the Additional Settlement Com missioner (Land) who directed that the land in dispute be cancelled from the khata of Aziz Ahmed and confirmed in the name of the appellant against his remaining P.I.Us. Aziz Ahmed having failed in his second revision before the Rehabilitation Commissioner, West Pakistan filed a Writ Petition before the Lahore High Court which was accepted and the case vas remanded for a fresh decision. But even after remand the Additional Commissioner/Settlement Commissioner (Land), Sargodha once again dismissed the revision petition of Aziz Ahmed, whereupon he filed another Writ Petition before the High Court which was allowed and the case was remanded for the second time for a fresh decision. This time the Addi tional Commissioner/Settlement Commissioner (Land), Sargodha allowed the revision of Aziz Ahmed, set aside the impugned order, dated 1k‑2‑1963 of the Additional Settlement Commissioner (Land), Sargodha and ordered the restoration of allotment of land in dispute in his favour vide order, dated 29‑6‑1978.

3. Aggrieved by the aforesaid order the appellant challenged the same in Writ Petition No. 754/R of 1978 before the Lahore High Court, which was dismissed by a learned Single Judge of that Court vide impugned order, dated 1‑2‑1983.

4. Leave was granted by this Court to examine the following question:‑

"The question whether in face of the fact that on 23‑6‑1960 there were only 6 sitting allottees in the Chak and only 15 persons whose claims stood transferred to the chak, the circumstances that in a recital in the application submitted by the petitioner to the effect that there were more applicants than this number, who had applied for allot ment in the chak and that subsequently 59 claims were in fact transferred to it, were circumstances wherein it could be held the conditions precedent for invoking the provisions of para. 11 of the Rehabilitation and Settlement Scheme in relation to axing a maximum area for allotment of land to the various claimants were met requires further consideration."

5. Paragraph 11 of Part II of the Scheme reads as follows :‑

"Rate able distribution of land among allotees--‑In cases where claimants of land under the Rehabilitation Settlement Scheme, whether in congested or non‑congested tracts, cannot be accommodated in the estates in which they hold temporary allotments on the plea that the land is not sufficient to meet the claims of all the allotee‑claim ants for the particular estate, all available land should be individually allotted to the entire group of allottee‑claimants in a particular estate for which a separate maximum should be fixed for each estate based on the extent of the availability of land. The allottees found entitled to allotments beyond that maximum should be accommodated on evacuee land that may be found available in other villages."

6. It has been observed by the Settlement Commissioner in his im pugned order, dated 29‑6‑1978 that Chak No. 44/N.B. is contiguous to Sargodha Town and the land comprised in this estate is partly urban and partly rural. The land in dispute formed part of the land owned by Sir Mahraj Singh and was not utilised for temporary rehabilitation of refugees as it was set apart for ‑extension of Sargodha Town. According to his findings respondent Aziz Ahmed had been applying for allotment in Chak No. 44/N.B. and on one of his applications, dated 21‑11‑1957 the Board of Revenue, Punjab had ordered that if the facts were correctly stated in the application and the urban land of permissible category was available in the chak, there would be no objection to an allotment being made to him under temporary urban scheme. However, since the land situated in this estate had been reserved for extension of Sargodha Town, no allot ment could be made in favour of Aziz Ahmed. The learned officer then referred to the report, dated 11‑2‑1957 of Muhammad Yaqub Girdawar submitted to the Revenue Assistant showing that the claim of Aziz Ahmed for 72 Kanals of land had been received by that time. Reference has also been made to a subsequent application of the year of 1957 and to the fact that the Rehabilitation Commissioner, West Pakistan by his order dated 4‑6‑1950 directed that the land situated outside the prohibited belt of Sargodha Town be used for allotment to entitled/claimants under the Rehabilitation Settlement Scheme. The ban on allotment of rural agricultural land falling outside the prescribed belt of Sargodha Town situated in Chak No. 44/NB was, therefore, removed on 4‑6‑1958. But the Deputy Commissioner being of the contrary view made a back reference for re-consideration of the matter. The further correspondence on the matter was not available but it appeared from the record that the Chief Settle ment and Rehabilitation Commissioner by his order, dated 16‑6‑1960 directed that the remaining 11 sq. of land out of landed property of Sir Mehraj Singh be utilised for settlement of claimants. It was in pursuance of this order that finally the removal of ban on allotments of rural agricul tural land belonging to Sir Mehraj Singh was approved.

7. The main grievance of the appellant is that both on the factual basis as well as on the legal plane, the Deputy Commissioner/Deputy Rehabilitation Commissioner (Land) was not competent to fix the limit of 121 acres on the allotments in the estate in question, which was the basis for the depriving the appellant of his entitlement to the adjustment of his entire remaining claim to this estate. It was submitted that on 23‑6‑1960 when the limit on the allotments was prescribed there were only 21 claims received in this estate which could be fully adjusted from the land available therein and con sequently there was no occasion for invoking the power under paragraph 11 of the Scheme. On the other hand it has been contended on behalf of the respondents that in the facts and circumstances of this case the order, dated 23‑6‑1960 was not passed in exercise of power under paragraph 11 of the Scheme but otherwise the Settlement Authorities were competent under the law to limit the extent of allotments and prescribe the scales of allot ments in keeping with the local conditions in particular areas as envisaged in paragraph 3 of Rehabilitation Settlement Scheme. A plain reading of paragraph 11 in the context of the admitted facts of the case makes out that this paragraph was not attracted in this case. It will be seen that paragraph 11 provides for rateable distribution of land among claimants of land under the Scheme, in case the claims of allottees in the estate who hold temporary allotments cannot be satisfied from the available land in the estate, by fixing the maximum limit on such allotments pro portionately. Admittedly the land comprised in Chak No. 44/N.B. was not open to allotment and none of the claimants was, therefore, a temporary allottee. There was no question of the Deputy Rehabilitation Commissioner fixing the limit on allotments in pursuance of paragraph 11. As regards the list of 21 claimants prepared by the Revenue Assistant on 1‑6‑1960 on which reliance was placed on behalf of the appellant, the factual background has been mentioned by the Additional Rehabilitation Commis sioner in his order. He has stated that Mr. Muhammad Aslam Bajwa took over as Deputy Commissioner, Sargodha on 13‑5‑1960 and he appears to have decided to allot the land to claimants. It was for this reason that he got .the list of claimants prepared which was submitted to him by the Revenue Assistant but he eventually fixed the scales of allotments on 23.6‑1960.

8. In the aforesaid factual background which is not contradicted on the record by any contrary evidence, it appears quite clear that the Deputy commissioner/Deputy Rehabilitation Commissioner, Sargodha did not pass order dated 23‑6‑1960, prescribing the limit of 121 acres for allotments in the estate, in exercise of his powers under paragraph 11 of the Scheme. The argument that there being only 21 claimants whose claims were transferred to the estate by the date of the said order which could be ad justed from the available land is therefore, without any substance. Indeed the copy of the order which has been placed on the record of this appeal sloes not indicate anywhere that the order was passed to exercise of the powers under paragraph 11 of the Scheme. The orders of the Settlement Authorities are, therefore, not open to challenge on the basis of any legal infirmity with reference to paragraph 11. Para. 3 of Chapter II of the Scheme confers power on the Rehabilitation Commissioner to prescribe scales of allotments in keeping with the local conditions and otherwise also the said Officer is competent under paragraph 23 of Part I of the Scheme to pass orders with a view to securing proper implementation of the Scheme. Mr. S M. Zafar, learned counsel appearing on behalf of the respondents argued that in final analysis the Rehabilitation Commissioner by upholding the order of the Deputy Rehabilitation Commissioner prescribing the upper limit on the allotments in this estate, validated the scales prescribed and in any case the final outcome is consistent with the overriding principle underlying the whole Scheme, namely, greatest possible satisfaction of those who are to be settled, as contained in para. 1 of the instructions issued by the Rehabilitation Commissioner for the implementation of the Scheme. We are in agreement with the submission and find no illegality in the uniform treatment given to all claimants by the Deputy Rehabilitation Commiss ioner with a view to accommodate as many claimants as possible upon the valuable land in dispute which was in close proximity of the town.

9. The next submission of the learned counsel was that the un Sat isfied claim of the appellant was transferred to Chak No. 44/N.B. much prior to the date on which the respondents' claim was transferred and, therefore, in consonance with the established principle of first come first Served the right of the respondents could not be given preference over the appellant's right. In this connection he submitted that the appellant applied fur transfer of his claim in March, 1960 and the Deputy Rehabilitation Commissioner ordered the transfer on 14‑5‑1960, whereas the claim of the respondents was transferred to Chak No. 44/N.B. on 21‑7‑1960. Reliance was placed by the learned counsel on the cases of Muhammad Daud Khan v. Rehabilitation Commissioner, Hyderabad (P L D 1961 Kar. 224), Shah Nawaz v. Niamat Ali Beg (1976 .S C M R 227), Muhammad Shafi v. Chief Settlement and Rehabilitation Commissioner, Lahore (1968 S C M R 121), Noor Din v. Bashir Ahmed (1981 S C M R 1212), Muhammad Chiragh v. Muhammad Ali Khan (1983 S C M R 432) and Suleman v. Nur Jamal (1970 S C M R 625).

10. After carefully considering the contention of the learned counsel also find no substance in the same. In the view that we have taken that the Rehabilitation Authorities were competent to take into consideration 1ocal conditions for the purpose of accommodating as many claimants as equitably possible, the question of the confirmation of the entire unsatisfied pits of a particular claimant does not arise. The application of the principle of 'first come first served' is accordingly wholly irrelevant. The cases cited at bar with the exception of the first and the last were decided on the peculiar facts of those cases and on grounds other than the principle invoked. The Karachi case in which the principle was considered is dis tinguishable on facts as the principle was held inapplicable in the case of non‑allottees. In the last Supreme Court case the order fixing the ceiling for allotment under paragraph 11 was upheld as between sitting allottees on the ground that the matter lay entirely within the jurisdiction of the Rehabilitation Authorities and the petitioner did not possess any vested legal right to enforce his claim for grant of land to the extent of his full entitlement in a particular area of his choice to the detriment of other claimants and allottees who had to be accommodated in the Chak. Be that as it may, it has been pointed out to us by Mr: S. M. Zafar that the first respondent had addressed an application as early as 21‑11‑1957 to the Minister Rehabilitation, West Pakistan Government for allotment of land from Chak No. 44. He repeated his application before the Board of Revenue, West Pakistan on 21‑11‑1957 which was endorsed to the Deputy Commissioner for allotment under temporary urban scheme if the land is available. These facts seem to have been taken into con sideration by the learned Additional Rehabilitation Commissioner in mak ing an observation in the impugned order before the High Court to the effect that the said respondent bad been applying for allotment in this Chak since long but his pending claim was not transferred in time for reasons best known to the Rehabilitation Authorities. In view of these facts we find no justification in the contention that the appellant has a preferential right as against the first respondent on the principle of first come first served'.

11. In the result there is no merit in this appeal which is accordingly dismissed with no order as to costs.

S. Q. Appeal dismissed.

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