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Civil Appeals Nos. 83 and 84 of 1974, decided on 5th November, 1985.

(On appeal from the judgment of Lahore High Court, dated 14‑12‑1973 in W.P. 1023‑R of 1966 and 1024‑R of 1966).

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑Leave to appeal granted to consider question whether view taken by High Court "that after land had been confirmed in favour of respondents, Settlement Authority had no power to cancel same for benefit of petitioners merely on grounds that units of petitioners had been received in estate earlier than those of respondents" was against provisions of Settlement and Rehabilitation Scheme and instructions which contemplate that among claimants whose units were brought to estate from outside, earlier arrival should get preference over later.

‑‑Ss. 10 & 11‑‑Rehabilitation Scheme, Part II, Chapter I, para.12(3)‑ Allotment of land‑‑Parties non‑allottees‑‑Claim of appellants transferred to estate in question long before claims of respondents were received by transfer from other areas‑‑Perusal of instructions contained in Chapter I of Settlement Scheme Part II, principle of 'first come first served' appearing to be inherent in their application as requirement of fair play and equity‑‑Such principle having held field for a long time, held, could not be departed from the detriment of a party‑‑If matter of Proposal to settle claimants whose claims are received in a district is left entirely to relevant Settlement Authorities to choose claimants for purpose of settlement irrespective of date when their claims were received by transfer in district, it would only result in giving undue and arbitrary power to them which was not intention of statutory instructions‑‑View taken by Single Judge of High Court, that orders passed by relevant Settlement Authorities in exercise of their lawful jurisdiction were rendered illegal on ground of general principle that purpose of all settlement laws and Schemes was to settle displaced persons and not to disturb those already settled, held, was not tenable in circumstances.

‑‑‑ Public power‑‑All public power resting in public functionary, held, was required to be exercised reasonably and not arbitrarily.

Shahzad Jahangir, Advocate Supreme Court for Appellants (in both Appeals).

M. Bilal, Advocate Supreme Court, Sh. Zamir Hussain, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents (in both Appeals).

Date of hearing: 5th November, 1985.

‑These two appeals arise out of identical facts and a common question of law has arisen for determination therein, accordingly this judgment will govern both these appeals.

2. Briefly the facts giving rise to each of the appeal are as follows:

3. Ahsanul Haq and Sirajul Haq sons of Abdul Haque Qureshi, the appellants, are displaced persons hailing from Karnal District (India). Initially they settled down in Mandi Bahauddin, District Gujrat. They were allotted land in the said area to the maximum extent of 2000 produce index units. The produce index units that remained unsatisfied from their claim were transferred from Mandi Bahauddin to village Butter in Sheikhupura District, where also part of their units could be satisfied. Accordingly the remaining balance of their unsatisfied units were transferred on 9th April, 1961, to the estate of village Sheikhupura.

4. Naurang, respondent No. 1 is also a displaced person from Karnal District, (India). He filed a claim in village Kurlkey in District Sheikhupura and was allotted some land there temporarily. Subsequently, 56 units out of his claim were confirmed in his favour in that village and the remaining unsatisfied 56 units were transferred to Sheikhupura estate, on 10th August, 1963. The land in dispute in Sheikhupura estate, was proposed to the said respondent on 5th September, 1963 and was subsequently confirmed in his favour by the Assistant Settlement Commissioner vide his order, dated 9th November, 1963.

5. Being aggrieved by the aforesaid order, appellants filed an appeal before Mr. A. Sami Qureshi, Deputy Settlement Commissioner (Land), Sheikhupura, who took the view as under:‑

"The record produced by the Patwari show that the claims of the appellants were received in the village long before the claims of the respondents were received. The old pending claims should, therefore, have been satisfied earlier."

He, therefore, accepted the appeal vide his order dated 8th June, 1964, whereby the confirmation of the land in favour of the respondents was cancelled and it was directed that the disputed land be allotted to the appellants to the extent of their entitlement.

6. The respondent after having unsuccessfully challenging the aforesaid order of the Deputy Settlement Commissioner before the Settlement and Rehabilitation Commissioner, Lahore Division, in revision, challenged the adverse orders in a Constitutional petition in the Lahore High Court, which was accepted by a learned Single Judge of that Court, declaring the impugned orders to be without lawful authority and of no legal effect. The result of the judgment, dated 14th December, 1973, was that the confirmation of disputed land in favour of the respondent was restored.

7. The appellants in this appeal, are the same who are appellants in the abovementioned appeal. The history of their allotments and confirmation of land in partial satisfaction of their claim in Mandi Bahauddin and village Butter is the same as stated earlier and as observed their remaining units were eventually transferred to village Sheikhupura in Sheikhupura District on 9th April, 1961.

8. Allah Banda, father of respondents 1 to 3, in this appeal, was also a displaced person from Karnal District (India), and settled down in Sheikhupura District. He was allotted some land there temporarily and subsequently his 1964 units out of his claim were confirmed in his favour in that village and the remaining units were transferred to Sheikhupura estate on 10th August, 1963. The land in dispute in this appeal was proposed to the said respondents on 6th September, 1963 and subsequently confirmed on 29th October, 1963. On an appeal preferred by the appellants, Mr. A. Sami Qureshi, Deputy Settlement Commissioner, (Land), Sheikhupura, on a similar view as taken by him in the above said case reproduced above, cancelled the allotment made in favour of the said respondents and directed the land be allotted to the appellants to the extent of their entitlement, vide order, dated 8th June, 1964. Against this order also the respondents preferred a revision but the same was dismissed by the Settlement and Rehabilitation Commissioner, Lahore Division.

9. Respondents 1 to 3 also challenged the adverse orders passed against them in a Constitutional petition in the Lahore High Court which was allowed by the same learned Judge vide his judgment, dated 14th December, 1973, granting similar reliefs with ‑the result that the confirmation of the disputed land in favour of the respondents was restored.

10. The appellants being aggrieved by the aforementioned two judgments of the High Court filed separate petitions for leave to appeal in this Court and leave was granted in each case on identical grounds, to consider the question whether the view taken by the learned Judge in the High Court is against the provisions of the Settlement and Rehabilitation Scheme and instructions, which contemplate that among claimants whose units were brought to the estate from outside, the earlier arrival should get preference over the later.

11. Now the sole question for determination is whether the fact that the unsatisfied claim of the appellants was received by transfer in Sheikhupura estate earlier in point of time qua such claims of the respondents in the two appeals received subsequently, gave the appellants a preferential right to transfer of the land in dispute in the two cases according to law. The learned Judge in the High Court though that this did not furnish the sole criterion for holding that such a person whose claim was transferred earlier in point of time had any preferential right over those whose claims were received later. In the impugned judgment the reasons that prevailed with the learned Judge were recorded as under:‑

"It will not be out of place here to observe that the purpose of the entire Settlement Law and all the Settlement Schemes is to settle the displaced persons and not to disturb those amongst them who have already been settled. In the circumstances of this case, as already given in detail above, I am of the view that after land had been confirmed in favour of the petitioners in 1963, the Settlement Authorities had no authority to cancel the same for the benefit of the respondents merely on the ground that the units of the respondents had been received in the estate two years earlier while on all other counts the right of the petitioners was superior."

Thus it appears that the overriding consideration that weighed with the learned Judge was the underlying policy of the Settlement Schemes to settle displaced persons and not to disturb those who may have already been settled.

12. After hearing the learned counsel for the parties, however, we are unable to uphold the view taken by the learned Judge in the High Court that the appellants did not possess a superior right to the grant of land in dispute in preference to the respondents. It may be observed that it is common ground between the parties that both sides were non allottees and that the claim of the appellants was transferred to the estate in question long before the claims of the respondents were received by transfer therein from other areas. Paragraph 7 of the Rehabilitation Scheme Part II, Chapter I contains the relevant instructions for the' disposal of land in non‑congested districts, relevant part of which reads as under:‑

"In the non‑congested districts the Rehabilitation Authority competent to finalize allotments will allot land to both the categories of the allottees and non‑allottees in the same round while in the congested districts rights under the Rehabilitation Settlement Scheme will be given to allottees only. However, if in any estate of a non‑congested district sufficient evacuee land to meet the claims of both the allottees and non‑allottees is not available, preference will be given to persons who hold temporary allotments of land and the non‑allottees will be accommodated in the remaining land in the same or in some adjoining estate where surplus land may be available (Reference Board of Revenue Circular Endorsement No. 8714.56/5164‑R(P), dated 10^th December, 1956."

Paragraph 12(3) of the same Chapter enjoins the Deputy Rehabilitation Commissioner of the non‑congested district to take prompt action to settle claimants by making use of the available evacuee land. Reading these instructions together the principle of 'first come first served',' seems to be inherent in their application as a requirement of fair play and equity. If the matter of proposal to settle the claimants whose claims are received in a district is left entirely to the relevant settlement authorities, to choose the claimants for the purpose of settlement irrespective of the date when their claims were received by transfer in the district it would only result in giving undue and arbitrary power to them. Such cannot be construed to be underlying intention of the statutory instructions, because all public power vesting in a public functionary is required to be exercised reasonably and not arbitrarily. The rule of first come first served was applied and recognized by this Court in Muhammad Shafi and others v. Chief Settlement and Rehabilitation Commissioner, Lahore etc. 1968 S C M R 121 and followed in a recent case reported as Muhammad Yahya v. Misbahul Haq and others 1982 S C M R 269. This rule having held the field' for such as long time cannot be departed from to the determinant of a party. Learned counsel for the respondents relying upon Syed Masood Hussaini Zahidi v. Aziz Ahmad 1984 S C M R 945 sought to support the order of the High Court and contended that the principle of first come first served is not a universal rule applicable in such cases, but it is needless to consider that case in detail as the facts therein are distinguishable from the facts of the present case. In these cases the claim of the appellants was received by transfer in Sheikhupura estate on 9th April, 1961, whereas the respondents' claims were transferred after a period of about two years in 1963. No reasons have been pointed out from the record for not making a proposal to the appellants promptly on the transfer of their claims during this period. Notwithstanding this the action of the authorities in making proposal to the respondents and giving them preference over the appellants was, therefore, wholly arbitrary which cannot be countenanced. We are, therefore, unable to agree with the learned Judge in the High Court that the general principle applied by him was a sufficient ground to hold that the orders passed by the relevant authorities in exercise of their lawful jurisdiction were rendered illegal and without lawful: authority.

13. In the result both these appeals are allowed with no orders as to costs.

M.Y.H. Appeals allowed.

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