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Civil Appeals Nos. 122, 123 and 74 of 1973, decided on 12th November, 1985.

(Against the judgments and orders of the Lahore High Court, Lahore, dated the 22nd June, 1973 in Writ Petition No. 1868/R of 1963).

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S 21‑‑Leave to appeal granted to examine whether a question of fact was examined and determined by High Court though its jurisdiction was restricted to question of law arising in proceedings before Chief Settlement Commissioner.

‑‑‑S. 21‑‑Revision petition‑‑Competency of‑‑"Question of law" defined.

‑‑‑Art. 199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.21‑‑Writ jurisdiction‑‑Land Settlement‑‑Revision‑‑Finding of fact substituted by High Court based on report not mentioned in impugned order of Chief Settlement Commissioner‑‑Jurisdiction of High Court being confined to question of law, did not extend to controversial questions of fact‑‑Questions of law may be involved if there be misreading of certain documents and where documents having presumption of correctness were not given that presumption or an inference manifestly against record was drawn‑‑There being no misreading of record or drawing an incorrect inference from admitted facts a substitutive order, held, could not be passed in revisional jurisdiction under S. 21 of Act (XLVII of 1958)‑‑Judgment of High Court set aside and appeal accepted.

Yaqub Khan v. Settlement Commissioner (Lands) Lahore and another 1971 S C M R 679; Nafeesa Bano and others v. Chief Settlement Commissioner West Pakistan, Lahore P L D 1969 Lah. 480; Syed Shaukat Hussain Rizvi v. K.B. Dr. Yar Muhammad Khan P L D 1974 S C 276 and Muhammad Ayub Khan v. Chief Settlement Commissioner and others P L D 1968 Lah. 495 ref.

Produce Index Book published by Mansoor Book House quoted.

S.M. Zafar, Senior Advocate Supreme Court instructed by Tarvir Ahmad, Advocate‑on‑Record for Appellant.

Zakiuddin Paul, Senior Advocate Supreme Court with Rana M.A. Kadri, Advocate‑on‑Record for Respondents (in Civil Appeal No. 122 of 1973).

Raja M. Anwar, Senior Advocate Supreme Court with Rana M.A. Kadri, Advocate‑on‑Record for Respondent (in Civil Appeal No. 123 of 1973).

Respondents Nos. 15 to 17 (in Civil Appeal No. 122 of 1973).

Date of haring: 12th November, 1985.

Leave to appeal was granted in three matters arising out of a consolidated judgment delivered by the Lahore High Court in Settlement Revision under section 21 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act) to examine whether a question of fact was examined and determined by the High Court though the jurisdiction under the aforesaid section was restricted to a question of law arising in the proceedings before the Chief Settlement Commissioner.

2. Abdul Hakim Khan a claimant displaced person from Bikaner State in the prescribed area had alongwith his eight sons submitted claim forms for verification from District Sahiwal. The claim form of Abdul Hakim Khan was verified for 2,974 P.I. Units. The verified claim of his eight sons is not in controversy. Abdul Hakim Khan got his claim transferred from Chak No. 5/1‑R Ranala Khurd to village Bhuman Shah in Tehsil Dipalpur in the same district. From there it was got transferred to Bahawalgarh in Tehsil Lodhran, District Multan. Next, it was got transferred to village Kot Samba in District ttahimyar Khan and from there to Chak Nasirabad in Tehsil Sadiqabad in the same district. No portion of his verified claim was till then settled. It was in Chak Nasirabad that on the one hand the verified claim of 2,974 P.I. Units got inflated to 39,213 and on the other allotment was got made against 21,127 P.I. Units, on 16th of May, 1957. The balance was got transferred to village Muhammad Murad Dahar and village Nazar Muhammad Jhullan. Both the villages being in Tehsil Sadiqabad. He got settled 21,122 P.I. Units in village Dahar on 11‑1‑1958 and 5,905 P.I. Units settled in village Jhullan on 23‑3‑1958. It was on the 20th of March, 1958 that he got his allotment in Chak Nasirabad cancelled. In this manner, Abdul Hakim got land confirmed to the extent of 27,027 P.I. Units in the two villages. The eight sons of Abdul Hakim got their verified claims settled partly in Sahiwal and substantially in Multan District.

3. On the promulgation of Martial Law Regulation No. 49, Abdul Hakim made a declaration before the Settlement Authorities that he had excess allotment without indicating the exact excess and sought the cancellation of the allotments made to his sons in Districts Sahiwal and Multan, the transfer of their verified claim from those Districts to Sadiqabad and adjustment of their verified claim against the excess to be found resumable from him. The Chief Settlement Commissioner rejected that part of the request of Abdul Hakim whereby he wanted the cancellation of the confirmed land of his eight sons, the transfer of their verified claim to Sadiqabad and their settlement on excess land. A review against this rejection was also dismissed by the Chief Settlement Commissioner on 15‑10‑1959. Another review Miscellaneous application filed with the same end failed on 23‑11‑1959.

4. Abdul Hakim finally instituted a Constitutional petition, (Writ Petition No. 583/11 of 1959) which was dismissed in limine on 10‑11 ‑1959. He sought by this constitutional petition the deconfirmation of the allotment made to his eight sons and the transfer of their verified claim for settlement on the excess land allotted to him. A Letter Patent Appeal (L.P.A. No. 208 of 1960) was also dismissed on 5‑1‑1960 with the following observations:‑

"We cannot ask the Rehabilitation Authorities to give land to claimants in one place and not in another place. But it appears to us that the case has not been properly presenteu 1Ko the Chief Settlement Commissioner, for, if it is true that the father has received about 1,000 Bighas; in Sadiqabad although his claim, is confined to 600 and the remaining 400 Bighas can accommodate the claim of his sons, who have received land in Montgomery and Multan. The Chief Settlement Commissioner will perhaps be only too glad to release the Montgomery and Multan laid and transfer the claim on this land to Sadiqabad, where the land is already in the father's possession. We suggest to the petitioner an application to the Chief Settlement Commissioner for a review of his order."

5. Muhammad Mubin and others appellants in Civil Appeals Nos. 122 and 123 of 1974 in the meantime intervened as informers against Abdul Hakim and so did Muhammad Usman and others, the appellants in Civil Appeal No. 74 of 1974. The Deputy Settlement Commissioner by his order, dated 22‑2‑1960 held that 11,542 P.I. Units were alloted in excess to Abdul Hakim and on its resumption ordered its distribution allowing five thousand units to Muhammad Mobin and another five thousand units to Nazar Muhammad Khan, Muhammad Usman Khan etc. The remaining 1,542 units were allowed to Nazeer Hussain Shah. In the meantime, the Chief Settlement Commissioner on 10‑5‑1960 allowed the transfer of the verified claim of the eight sons of Abdul Hakim and their adjustment against the area of Abdul Hakim. Against these orders three Writ Petitions and a Settlement Revision were filed. Writ Petition No. 2/11‑1961 was filed by the sons of Abdul Hakim in so far as they were deprived of adjustment against the excess land held by their father clearly violating the order of the Chief Settlement Commissioner, dated 16‑5‑1960. Mobin and others filed a Writ Petition No. 417/11 of 1961 while Usman and others filed a Writ Petition No. 660/R of 1961 challenging the order of the Chief Settlement Commissioner, dated 16‑5‑1960 passed behind their back transferring the verified claim of the sons of Abdul Hakim. These were disposed of by the Lahore High Court by a consolidated judgment, dated 16‑2‑1962 holding as follows:‑

"The proper order in the case, therefore, seems to be to declare that the order, dated the 16th of May, 1960, is in excess of jurisdiction as it seeks to condemn parties who were not before the Chief Settlement Commissioner and it is certified as such. A writ of certiorari will issue on those lines, with the direction that the matter should be re‑opened by the Chief Settlement Commissioner with notice to all the interests that have been created before he passed that order, and then to take a fresh decision after examining all the contentions raised before him by the parties uninfluenced by any observations of this Court passed in preliminary hearings. It needs being clearly stated that the order in the Letters Patent Appeal as I have already expressed, neither enlarges nor abridges the power of review which is, in any event, regulated by the status. The same holds true about what Mr. Justice J.H. Rizvi has stated."

6. Pursuant to this judgment of the High Court, dated 16‑2‑1962 the Chief Settlement Commissioner took up the matter again in presence of the parties and after hearing all concerned decided the entire controversy by his order, dated 20‑11‑1962. He held Abdul Hakim to be entitled to 6,068, P.I. Units and his eight sons jointly to 4,574 P.I. Units. Thereafter, he proceeded to pass the following order:‑

"Normally if the claims are finally settled their transfer is not permissible. However, in view of the fact that Abdul Hakim's entitlement has been considerably reduced and the claims of all the parties including the sons of Abdul Hakim can be conveniently met out of the area to be resumed from Abdul Hakim it does not appear necessary to send the claim back to Multan and Montgomery specially when the area previously held by them is not available for allotment. I, therefore, direct that the claims of Abdul Hakim, his sons and grandsons should be satisfied on the land held by Abdul Hakim in Village Muhammad Murad Debar. The excess area in this village and entire area allotment in Village Nazar Muhammad Jhullan should be utilised for allotment of opposite parties. With these findings all the three cases are disposed of."

7. It was against this order of the Chief Settlement Commissioner that a revision petition under section 21 of the Act was filed by Abdul Hakim. He wanted that the land abandoned by him in India should not have been equated with 19 P.I. Units as was done by the Chief Settlement Commissioner but should have been equated with 66 P.I. Units per Acre or in the alternative he wanted a declaration under Article 98 of 1962 Constitution that the orders made by the Deputy Settlement Commissioner on 22‑2‑1960 and upheld in appeal on 24‑1‑1961 should be set aside as there was no excess land held by him.

8. A Constitutional petition (Writ Petition No. 1868/11 of 1963) was filed by Muhammad Mobin against the order of the Chief Settlement Commissioner in so far as it permitted the transfer of the verified claim of the eight sons which was already settled in District Sahiwal and Multan and their adjustment against the excess land held by Abdul Hakim.

9. Another Constitutional petition (Writ Petition No. 1029 of 1963) filed by Usman and others was directed against the same order and to the same extent, namely, the transfer of the settled verified claim of the sons of Abdul Hakim and their adjustment against the excess land held by Abdul Hakim.

10. While disposing of the settlement revision filed by Abdul Hakim that High Court after an elaborate survey of the facts held that the land abandoned by Abdul Hakim which was described as "Rez" "Nail Rez" or "Nali Rez Mazrua" in Village Talwara Kalan, Bikaneer State should be treated as irrigated land being Sailab land and allowed 66 P.I. Units per Acre against 19 P.I. Units allowed in the Jantari by the Central Record Office and by the Chief Settlement Commissioner. The Settlement Revision of Abdul Hakim was allowed and the two Constitutional petitions filed were dismissed.

11. The learned counsel Mr. S.M. Zafar, Advocate, representing the appellants in Civil Appeals Nos. 122 and 123 of 1973 contended that as per section 21 of the Act a Revision Petition to the High Court was competent against the order of the Chief Settlement Commissioner only if there was involved a question of law. What is a question of law has been indicated by this Court in the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690 at page 696, in the following words:‑

"It is true that a pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a place of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact."

12. The learned counsel has then drawn our attention to the elabroate inquiry conducted by the High Court on the basis of assessment report of Tibi Pargana of which no mention is to be found in the order of the Chief Settlement Commissioner and that report alone was made the basis for recording a substituting finding on a question of fact. The learned counsel also pointed out that the finding of fact recorded by the High Court is also conjectural as will appear from the observation made by the High Court in its judgment. He has cited an example which is as follows:‑

"It is also denied that Telver Jhil, as the same itself indicates is situated near village Talwara and, therefore, this river while passing through that Jhil must be irrigating the land of this village through floods."

13. The learned counsel has also referred to decisions in Yaqub Khan v. Settlement Commissioner (Lands), Lahore and another 1971 SCMR 679, for contending that jurisdiction under section 21 of the Act was confined to a question of law and did not extend to controverted questions of fact. He has also relied upon Nafeesa Bano and others v . Chief Settlement Commissioner West Pakistan, Lahore P L D 1969 Lah. 480, which has been approved in Syed Shaukat Hussain Rizvi v. K.B. Dr. Yar Huhammad Khan P L D 1974 S C 276, that classification of soil was a question of fact and it had to be decided by the Settlement Authorities. He has then referred to Muhammad Ayub Khan v. Chief Settlement Commissioner and others P L D 1968 Lah. 495, to show that the question whether a Sailabi land was to be treated as un-irrigated land was considered to be a question of fact and liable to interference in the Constitutional jurisdiction of the High Court. The learned counsel for the appellant pointed out to an instruction of the Rehabilitation Commissioner in which this specific question of the Produce Index Units of Nali land was dealt with in 1958.

14. The learned counsel for the respondents on the other hand heavily relied on the assessment report of the Tibi Pargana of Hanumangarh Tehsil of the year 1945 which was made the basis of determination by the High Court and extensively relied upon and quoted in the judgment. The learned counsel has also relied upon para. 23, Part‑I and para. 29, Part‑II of the Rehabilitation Scheme whereby the classification of soil as in existence at the time of Independence had to be accepted and reflected in the Special Jamabandies and on the instruction of the Rehabilitation Commissioner, dated 5‑3‑1953 whereby the land shown as Sailabi had to be treated as irrigated land and allocated Produce Index Units accordingly.

15. Section 21 of the Act provides that any person aggrieved by' any order of the Chief Settlement Commissioner involving a question of law may within sixty days of the order filed a petition for revision to the High Court. The question whether the land is irrigated or not by reference to Special Jamabandis prepared for exchange at the borders was essentially a question of fact. However, if there is misreading of certain documents and where documents having presumption of correctness have not been given that presumption or an inference has been drawn which is manifestly against the record then of course there' may be a question of law involved. The very elaborated order of the High Court now impugned before us gives us the clear impression that it was not a case of misreading of record or of drawing an incorrect inference from admitted facts which was dealt with but in fact a substi tutive finding of fact was recorded as would appear from the following conclusions recorded by the High Court:‑

"Thus, the adjoining Tehsil of Sirsa (of which Tibi Pargana was a part at one time) in Nali Circle the land described as (Sailab) is treated at par with Chahi and Nahir Ghaggar, etc., and gives the produce index units. It is an admitted fact that the condition in this part of Sirsa Tehsil are more or less the same, i.e., the same river Ghaggar passes through that area and the two canals northern and southern also irrigate that area. The same river and the same canals pass through the Nali Circle of this Pargana. In addition, there is a (Jhil) near village Talware known as Talwara Jhil. In these circumstances, it can safely be inferred that the Sailab land in this area should also be treated at par with other irrigated land like Nehri."

16. The report which has been made the basis for reversing the qualitative classification of the soils and their equivalence to Produce Index Units has two portions; one the descriptive portion which forms the report of the assessment officer and the other portion consists of the order of the Government of Bikaneer on that assessment report. The background to the entire material is provided in the imperial Gazetteer of India Volume II of 1885 in the following words:‑

"The Bikaner country contains no rivers or streams. In the rainy season, a Nala sometimes flows from Shaikhawati over the eastern border, but it soon lost in the sands. The Ghagar, called also the Satra or Hakra in the Punjab, once flowed through the northern part of the present Bikaner territory; but it is now dry, and wells are dug in its bed, where it is said the only sweet water in that region is to be found. During the rains, however, it sometimes contains water for a few miles of' its course; and the Tibi Pargana is greatly benefited by it. Some water from the Western Jumna Canal occasionally enters that State West of Hissar. Two little fresh water lakelets, formed by the drainage of the rocky country southwest of Bikaner, lie on the route from Bikaner to Jaisalmir. The first Ganjer, about 20 miles from the capital, has clear water and wooded margin; its place and garden and fields are a pleasing contrast to the surrounding wilds; the other, 12 miles further on the route, is a sacred spot, numerous bathing Ghats having been built on the banks. The lake of Chaper in the Shujangarh District is the principal source of the salt supply of Bikaner; it is about 6 miles long by 2 miles wide but it is very shallow, and almost dries up before the hot weather begins. There is another salt lake about 40 miles north‑east of Bikaneer. The salt produced from these lakes is of inferior quality, valued at about half the price of Sambhar salt. It is only consumed by the poor, or used for curing skins and other antiseptic purposes."

17. The classification of soils adopted by the assessment officer in 1945 was the same as existed in the previous assessment which took place in 1917 and is as follows duly taken note of by the High Court:‑

"The official classification of soil for assessment purposes adopted in that last Settlement has been maintained now. It is based on the means of irrigation and quality of land. The definitions approved by the Government vide Revenue Minister's letter No. 895/1034‑RG, dated 2‑7‑1945 are the following:‑

(a) Cultivated land

(i) Chahi‑‑Lard which gets irrigation from wells.

(ii) Nali‑‑Barani area of the Ghaggar bed which is occasionally in undated by the Nab, when in flood.

(iii) Barani (Rohi)‑Land dependent on rainfall.

(b) Uncultivated land

(iv) Barani Jadid‑‑Cultivated land which has remained unsown for four successive harvests.

(v) Barani Kadim‑‑Cultivated land which has remained unsown for eight successive harvests.

(vi) Ghair Mumkin‑‑Land which has for any reason become un-cultur able, such as, land under roads, railways, buildings, canals, tanks and the like.

The divisions in classification of cultivated soil was recognised in the last Settlement and these sub‑divisions are shown in the Record of‑rights uptil now. Government have ordered that these sub‑divisions should be shown in the Patwari's records in future also. The sub divisions are the following:‑

(i) Nali‑Sailab (rez)‑‑Nali area subject to inundation from floods.

(ii) Nali‑Nahri‑‑Nali area having also the advantage of canal irrigation.

(iii) Nali Barani‑‑Nali area dependent on rainfall.

(iv) Barani‑‑Area solely dependent on rainfall.

(v) Barani‑Nahri‑‑Land dependent on rainfall, but also having the advantage of canal irrigation.

(vi) Barani‑Sailab (rez)‑‑Land dependent on rainfall but having the advantage of flood inundation."

18. The Government's orders on the assessment report were as follows: ‑

"For assessment purposes the tract has been divided into three circles namely, Northern, Nali and Southern. Circles Nos. I and III solely depend upon rainfall, which has averaged during the last years to 11.55 inches, whereas the Nali circle receives irrigation from two non‑perennial channels of the Ghaggar canal. In years of good rainfall. the area is also inundated by Nali water. Well irrigation is appreciably small owing to paucity of sweet water (in Rohi area). During the currency of the last Settlement the Nali has flown 25 times over an annual average area of 4,148 Bighas, the peak being 17,477 Bighas in 1942‑43."

19. It is clear from this narration of events that the classification of soil and its equivalence in terms of Produce Index Units had a historical background and required understanding of the soil of each assessment area and the nature and the degree of the aviailability of resources for exploiting it for cultivation, its cost and its return. A substitutive order in the matter could not be passed by the High Court while exercising revisional jurisdiction under section 21 of the Act.

20. In the Produce Index Book published by Mansoor Book House the division of land in Bikaner and its equivalence in terms of P.I. Units is shown at page 70. The three categories recognised are Abpash Chahi Abpash Nehri and Barani. There is an amendment found at page 73 whereby land classified as Parat was to be treated as Barani.

21. A letter of the Rehabilitation Commissioner, dated 5‑3‑1953 reproduced in pare. 9 of the High Court's judgment clarifies that in the case of Bikaner State where the area is shown cultivated it should be treated as irrigated. The learned counsel for the appellant has drawn our attention to another letter of the Rehabilitation Commissioner, dated 7‑2‑1963 which makes a mention of instructions issued on 28‑11‑1958 on the subject. It is as follows:‑

"Instructions already exist, vide memo. No. 8445‑58/4462‑R(P), dated 28‑11‑1958 addressed to your officer that Nali class land of Bikaner State is to be treated as unirrigated and as such 19 Produce Index Units per acre to be assigned to this class of land.

The C.R. Officer is not competent to issue any instructions regarding fixation of produce index units for various classes of soil and the endorsement in question seems to have been fraudulently issued. It is, therefore, requested that all the allotments made against Nali class of land pertaining to Bikaner State as irrigated at 66 Produced Index Units per acre may be checked and suitable action taken to reduce the excess allotment according to law wherever necessary.

It is further suggested that in case of other applications similarly endorsed from C.R. Office may have been received in the district. These may kindly be arranged to be collected and sent to me."

22. These instructions leave no manner of doubt that the land under consideration, namely, Nali Rez was to be treated as unirrigated and allocated 19 P.I. Units. This supersedes the earlier instructions referred to and relied upon by the High Court.

23. Finally, there is a mention in the judgment of the High Court as to how the verified claims received from Bikaner were treated in Multan District. It is in the following words:‑

"During the course of arguments the petitioners also placed on record a copy of register R.L. II of village Kirpalpur. Tehsil and District Multan of one Muhammad Sadiq Hussain who originally belonged to Village Talwara Kalan in Bikaner State. In this register R.L. II the kinds of soil mentioned under the heading Mazrua are Nehri Nali, Nali Rez Barani and Barani Nehri. All these three soils are treated at par and given the same produce index units namely 55. From this document also it is clear that all these soils have been treated as irrigated land."

24. It is nobody's case and not even the High Court has allowed 55 Per Index Units for irrigated land which was allowed in the case referred to. As a matter of fact, by the impugned judgment, the High Court has allowed 66 P. I. Units and the example cited could not be determinative particularly so when the Rehabilitation Commissioner had taken note of such deviations and had provided for their correction.

25. In the circumstances, we find that the judgment of the High Court in the Settlement Revision cannot be maintained and must be set aside. As regards the two other Constitutional petitioner whose main grievance is directed against the transfer of settled verified claim of the sons of Abdul Hakim, we find that this had happened under the order of the Chief Settlement Commissioner. They had been deprived of the land already settled against their verified claim in Sahiwal and Multan Districts under order of the Chief Settlement Commissioner. They could go back to that land. They could not be left in the lurch either. The order passed by the Chief Settlement Commissioner which was impugned by the writ petitioners was eminently a just and fair order as it provided for the adjustment of the verified claim of the sons received on transfer and requiring settlement. The interest of the writ petitioners did not in any manner prejudicially suffer to any material extent as their claims were also ordered to be settled against the area which would still be available on resumption from Abdul Hakim even after settling the verified claim of his sons. For these reasons, while accepting all the appeals, the judgment of the High Court in the Settlement Revision is set aside but the dismissal of the two Constitutional petitions is maintained. No order as to costs.

M.I. Order accordingly.

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