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Settlement Revision No. 32 of 1971, decided on 4th April,1983.

‑‑Ss. 21, 9(3) & 20 (before repeal)‑‑Displaced Persons Laws (Amendment) Ordinance(XXIII of 1964)‑‑Supplementary Settlement Scheme No. II, paras. 8, 24 second proviso & 33‑‑General Clauses Act (X of 1897), S. 21‑‑Transfer of land‑‑Predecessor‑in‑interest of petitioners allotted 17) Acres of land against his verified claim‑‑Settlement and Rehabilitation Authorities later cutting down said allotment to 8 Acres which was said to be the ceiling prescribed for place where disputed land was located‑‑Chief Settlement and Rehabilitation Commissioner subsequently, on his application, passing an order on 21‑10‑1970 to the effect that claimant allottee (predecessor‑in‑interest of petitioners) was entitled to retain 17z' Acres already allotted to him and that his unsatisfied urban and rural claims should be adjusted against the disputed land‑‑Meanwhile, during pendency of said application, local Settlement Authorities making proposals for allotment of part of disputed land in favour of respondents‑‑Petitioners on receiving about such proposals obtaining stay order with the result that confirmation of proposals held in abeyance‑‑Additional Settlement and Rehabilitation Commissioner on receipt of order of Chief Settlement and Rehabilitation Commissioner, dated 21‑10‑1970 passed in favour of predecessor‑in‑interest of petitioners, bringing previous history of case to notice of Chief Settlement and Rehabilitation Commissioner who ultimately withdrew his said order‑‑Contention that such order of withdrawal was in substance one of review of his order, dated 2‑10‑1970 and that S.20 of Displaced Persons (Land Settlement) Act, 1958 having been repealed by Displaced Persons Laws (Amendment) Ordinance, 1964, Chief Settlement Commissioner did not possess power to review an earlier order‑‑Chief Settlement Commissioner in circumstances also having ceased to be appellate and revisional authority after repeal of S.20 he could not make the order, dated 21‑10‑1970‑‑Such order could not be passed even under S.9(3) of Displaced Persons (Land Settlement) Act, 1958 which confers only powers of general superintendence and control on Chief Settlement Commissioner or under para. 33 of Supplementary Scheme No. II as orders and instructions envisaged therein were of administrative nature‑‑Held, authority competent to make an order has also implied power to withdraw same‑‑Chief Settlement Commissioner, considering his position in hierarchy of offices created by Displaced Persons (Land Settlement) Act, 1958, could not be denied the power to rescind or withdraw an earlier order made by him either during course of general superintendence and control over his subordinate officers or while ensuring proper implementation of a scheme prepared under the Act‑‑Contention of petitioners that Chief Settlement Commissioner was not competent to withdraw his order dated 21‑10‑1970, could not, therefore, be accepted‑‑Order of withdrawal could also be sustained on ground that before passing order of 21‑10‑1970, respondents adversely affected were not heard and thus it violated important principle of natural justice‑‑Order of withdrawal of Chief Settlement Commissioner, therefore, could not be interfered with in circumstances of case.

Jamal Din v. Jan P L D 1967 Lah. 1085 ref.:

Major Ishaq Muhammad Khan for Petitioners.

Ch. Muhammad Nazir for Respondent No. 1.

A.R. Shaukat for Respondents Nos. 2 to 4.

Ch. Muhammad Sadiq for Respondent No. 5.

Dates of hearing: 2nd, 6th and 10th November, 1982.

.‑‑In this settlement revision the petitioners have challenged the legality of the order of the Chief Settlement Commissioner, dated 12‑2‑1971 whereby he withdrew an order earlier made by him on 21‑10‑1970.

2. Although the point involved in this settlement revision is a short one but the case has an extraordinarily long history. The petitioners are the successors‑in‑interest of one Qazi Sharif Hussain and the property in dispute is urban agricultural land measuring 17 Acres, falling within the limits of the notified area committee of Sillanwali in District Sargodha. Qazi Sharif Hussain was a claimant. He migrated to Pakistan from Karnal District of East Punjab. In 1952 Mr. Akhtar Hussain, the then Rehabilitation Commissioner (Land), directed the allotment of the land in dispute in his favour. This allotment was later made semi‑permanent. This was before his claim was verified. However that may be, he and after his death, his heirs have been continuously in possession of the said land.

3. In 1959 the claim of Qazi Sharif Hussain was verified to the extent of 24 units urban and 2682 units rural. He obtained allotment of rural land against some of the rural units but we are not concerned with that allotment. Suffice it to say, after obtaining allotment of rural land he was left with an unsatisfied balance of 20 units urban and 1025 units rural. He wanted all his unsatisfied units to be adjusted against the allotment of the land in dispute. Apparently the Settlement and Rehabilitation authorities were not prepared to oblige him and his allotment was cut down to 8 Acres which was said to be the ceiling prescribed for the Sillanwali notified area committee. To save his entire allotment he filed a writ petition (W.P. 155/11 of 1960). This writ petition was dismissed by J.H. Rizvi, J. on 20‑2‑1961 mainly on the grounds that his allotment even though described as semi‑permanent was essentially of a temporary nature and that a claim verified for rural land could not be adjusted against urban immovable property. He preferred a Letters Patent Appeal (L.P.A. No. 63 of 1961) but later withdrew it on 21‑3‑1963 when counsel for the Rehabilitation Commissioner informed the Court that the Government was contemplating to give some concession to persons who were already in occupation of urban land.

4. On 28‑8‑1959 the Rehabilitation Commissioner prepared a scheme known as Supplementary Scheme No.II for allotment of agricultural land to displaced persons on the basis of claims verified under Schedule IV to the registration of claims (Displaced Person) Act, 1956. The learned counsel for the petitioners stated that this scheme was later adopted as one of the schemes under the Displaced Persons (Land Settlement) Act, 1958. Clause 8 of the scheme permitted the Rehabilitation Commissioner to prescribe scales for allotment in any particular area. Paragraph 24 stated that the allotments of urban land already held by a claimant under temporary urban schemes should be adjusted against his entitlement. On 20‑2‑1960 a second proviso was added to paragraph 24 to the effect:‑---------

"Provided further that the Central Government may permit any person who is in continuous possession of land or garden in an urban area for not less than 5 years to retain an area not exceeding land of the value of 2000 produce index Units in that area against his verified claim for urban or rural land by suitable adjustment, irrespective of the maximum units fixed by the Chief Settlement and Rehabilitation Commissioner under clause 8 above. "

Qazi Sharif Hussain wanted to take advantage of this proviso in order to save his entire allotment of the land in dispute but he was not permitted to do so by the Settlement and Rehabilitation Authorities. Upon this he filed another writ petition (W.P.2376/R of 1963). This was again placed before J.H. Rizvi, J. It was dismissed on 26‑11‑1963 on the ground that it was primarily for the Central Government to give relief and that the Central Government had a discretion in the matter which could not be regulated by a direction of the High Court. Qazi Sharif Hussain was advised to file an application before the Chief Settlement and Rehabilitation Commissioner for obtaining the order of the Central Government. From the order of J. H. Rizvi, J. Qazi Sharif Hussain preferred a Letters Patent Appeal (L.P.A. 620 of 1963) which was dismissed on 24‑3‑1964. While dismissing the appeal the Division Bench observed that the Central Government might take a compassionate view in the matter.

5. It is stated at the Bar by the learned counsel for the petitioners that the petitioners did make an application to the Settlement and Rehabilitation Commissioner for moving the Central Government in the matter but he is not aware of its fate. However that may be, on 26‑6‑1963 the Central Government issued the following direction to the Settlement and Rehabilitation Authorities:‑------

"In supersession of the provisions contained in 2nd proviso to para. 24 of the Supplementary Scheme 2, the Central Government has decided as a matter of general policy that the displaced persons who qualify under the provisions as contained in the 2nd proviso to clause 24 of Supplementary Scheme No.2 circulated vide this office and Endorsement No. 975‑60/1‑R(P), dated the 20th February: 60 may be permitted to retain their temporary urban allotments of urban agricultural land against their verified entitlement for rural land or for urban and rural land combined, not exceeding the area held by them in temporary allotment or the maximum scale of allotment fixed by Chief Settlement Commissioner under paragraph 8 of the Scheme for the first round of urban allotments, which ever is less subject to title. It has also been decided by the Central Government that allotments already made in excess of this prescribed scale with permission of the Central Government under the previous provision should not be disturbed. These cases should, therefore, be checked and allotments made accordingly."

Qazi Sharif Hussain was still not allowed to retain his entire allotment On this he filed another writ petition (W.P.1195/R of 1965 in the High Court. It was dismissed by K.E. Chauhan J. on 14‑10‑1966 with the following observation:‑----

"Learned counsel for the petitioner contends that in the order of the Letters Patent Bench dated 24‑3‑1964, in Letters Patent Appeal. No.488 of 1963, it had been observed that there vested a discretion in the Central Government to allow the petitioner to retain land in dispute which had been in his possession for the last many years. The learned counsel contends that the Department has not cared to respect the suggestion given by the Court and that it has not allowed the petitioner to retain the land in dispute. This may be so, but as already held in the same judgment, there is no legal right in the petitioner which this Court might enforce for him. The law gives to the Rehabilitation Commissioner the power to fix a ceiling in any particular area, and since the land in dispute was in excess of the ceiling fixed in the village in question the Department was justified in ordering its cancellation. The petitioner contended that in paragraph 23(i) of the West Pakistan Rehabilitation Settlement Scheme, it is provided that a claimant should not be dispossessed from his temporary allotment unless he has obtained land in a place where his claim may have been transferred. Relying on this paragraph, learned counsel submits that since no alternative land has so far been given to the petitioner he cannot be dispossessed from the land in dispute. I am afraid that this contention again has no merits. Firstly, because on the principle of constructive res‑judicata, this cannot be raised in the present writ petition, especially, when the petitioner has failed in the earlier writ petition. Secondly, the paragraph relied upon deals with the cases of those persons who get their claim forms transferred from one village to another. The present is not a case of that type. "

From this order Qazi Sharif Hussain filed a Letters Patent Appeal (L.P. A. 1237 of 1966) which was dismissed on 16‑11‑1966. The relevant extract from the order of the Division Bench reads as follows:‑----

"This appeal arises out of the writ petition primarily on the observations of the Letters Patent Bench in Letters Patent Appeal. No. 602 of 1963, that the Central Government had the discretion to allow the appellants to retain the land in dispute which had been in their possession for many years. As pointed out by the learned Single Judge in Chambers, the observation of the Letters Patent Bench stated no more than that it was the Central Government that had the discretion to allow persons situated in the position of appellants to retain the land in his possession or to give them alternative land. But it cannot be claimed as a matter of right by the appellants. The appellants had failed in their claim in the previous writ petitions filed by them and the writ petition out of which this appeal arises is no more than the repetition of the same claim, which has been dismissed."

Qazi Sharif Hussain then sought leave to appeal in the Supreme Court but his application was dismissed on 20‑3‑1967. While dismissing the application for leave to appeal the Supreme Court observed that if he had acquired any right under any instrument issued after the addition of the proviso he should assert the same before a Settlement Authority.

6. On 12‑5‑1967 Qazi Sharif Hussain made an application before the Chief Settlement Commissioner (Mr. Manzoor Elahi). In this application he made reference to the decisions of the High Court only in his Writ Petition No. 2376/11 of 1963 and Letters Patent Appeal No. 620 of 1963 and prayed that this entire allotment should be confirmed in his favour. Upon this application Mr. Manzoor Elahi called for a report from his office, but apparently no further action was taken. Subsequently, on 21‑2‑1970 another application was repeated before Mr. M.A. Haq who had succeeded Mr. Manzoor Elahi as Chief Settlement Commissioner. On 12‑10‑1970 the land branch of the Chief Settlement and Rehabilitation Commissioner reported that Qazi Sharif Hussain was entitled to retain his entire entitlement of 17 Acres against his claim of urban and rural units. In this report no reference whatever was made to the various decisions of the High Court or of the Supreme Court in the various writ petitions filed by Qazi Sharif Hussain. This report was accepted by Mr. M.A. Haq who on 21‑10‑1970 made the following order:‑

"I have gone through the papers and agree with the conclusion arrived at by the administrative Advocate that the claimant is entitled to the retention of 17 acres at Sillanwali, District Sargodha, first against his urban and then rural claims. The net effect of this order will be that any unsatisfied urban claim of the petitioner shall be adjusted against the above‑said land first and the remaining area against his rural claim. The District Authorities should be advised accordingly and asked to finalize this matter at their end, after due scrutiny of the urban and rural claims against which adjustment is sought for 171 Acres in question. "

The above order was communicated by a memorandum, dated 4‑11‑1970 by the office of the Chief Settlement and Rehabilitation Commissioner to the Local Additional Settlement Commissioner at Sargodha.

7. While the application of Qazi Sharif Hussain was pending with the Chief Settlement Commissioner, the Local settlement authorities made proposals for allotment of part of the land in dispute in favour of respondents Nos.2, 3 and 4, These proposals were made on 14‑9‑1970. On learning about these proposals, the petitioners who had in the meanwhile succeeded to Qazi Sharif Hussain obtained a stay order from the local Settlement Commissioner with the result that the confirmation of the proposals was held in abeyance. However that may be, on receipt of the memorandum of 4‑11‑1970 the Additional Settlement and Rehabilitation Commissioner, before implementing the same, brought the previous history of the case to the notice of Mr. M.A. Haq. Upon this Mr. M.A. Haq decided to withdraw his order of 21‑10‑1970. Before doing so he issued a show‑cause notice to the petitioners. The petitioners submitted a detailed reply to the show‑cause notice. After considering the same Mr. M.A. Haq by his order dated 12‑2‑1971 withdrew his earlier order of 21‑10‑1970. Through this settlement revision the earlier order of 21‑10‑1970. Through this settlement revision the petitioners have challenged the legality of the order of 12‑2‑1971.

8. In this settlement revision the petitioners had impleaded Mr. M.A. Haq Chief Settlement and Rehabilitation Commissioner as the sole respondent. After the admission of the revision respondents Nos. 2, 3, 4 and 5 applied for being made a party. Their prayer was allowed subject to all just exceptions. Learned counsel for the petitioners contended that these respondents should be struck off as they had no locus‑standi in the land in dispute. So far as respondents Nos.2,3 and 4 are concerned we are unable to accept this contention. As already noticed after the decision of the Supreme Court a part of the land in dispute, after allowing the petitioners to retain 8 Acres, was proposed for allotment in favour of respondents Nos.2,3 and 4. Had the order of 21‑10‑1970 not been made the allotments made in their favour would have been confirmed in due course. In case this settlement revision is accepted the proposals made in their favour would stand cancelled. We should therefore, think that these respondents are entitled to be heard before any order is made in this revision Thus, they are proper parties and were rightly allowed to be impleaded. As regards respondent No. 5 it may be mentioned that he too was allotted a part of the land in dispute but the appellate authority cancelled his allotment. He did not pursue the matter further and completely dropped out of the picture. He has therefore, no interest whatsoever in the land in dispute and for that reason he is not a proper party to the proceedings before us. His name may therefore, be struck off.

9. The only question for consideration in this settlement revision is whether the Chief Settlement and Rehabilitation Commissioner was competent to withdraw his order of 21‑10‑1970. It is contended on behalf of the petitioners that the order of withdrawal was in substance one of review of the order of 21‑10‑1970 and that under the Displaced Persons (Land Settlement) Act, 1958 the Chief Settlement Commissioner did not possess power to review an earlier order made either by himself or his predecessor‑in‑office. In this context learned counsel for the petitioners pointed out that section 20 of the Displaced Persons (Land Settlement) Act, as originally enacted, did invest the Chief Settlement Commissioner with such a power but then this section was repealed by the Displaced Persons (Laws Amendment) Ordinance, 1964. Consequently, after the repeal of the said section the Chief Settlement Commissioner ceased to enjoy any such power.

10. It is to be noticed that the Displaced Persons (Land Settlement) Act, as originally enacted constituted the Chief Settlement Commissioner both as appellate and revisional authority. It also empowered him to review an earlier order made either by himself or by his predecessor. The Displaced Persons (Law Amendment) Ordinance, 1964 changed this position. Under this Ordinance the Chief Settlement Commissioner ceased to be an appellate or revisional authority. It also took away his power to review an earlier order. In the circumstances when the Chief Settlement Commissioner ceased to be both appellate and revisional authority a question arises, under what provisions of law the Chief Settlement Commissioner had made the order of 21‑10‑1970. When we put this question to the learned counsel for the petitioners he could refer to section 9 (3) of the Displaced Persons (Land Settlement) Act and paragraph 33 of the Supplementary Scheme No Section 9 (3) reads as follows:‑--

"Subject to the provisions of this Act and of such order as may from time to time be made by the Central Government in this behalf, Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners and any other officers shall perform the duties and discharge the functions assigned to them by or under this Act under the general superintendence and control of the Chief Settlement Commissioner."

It will be noticed that this subsection confers the powers of general superintendence and control on the Chief Settlement Commissioner. It is intended only to enable him to ensure that the various authorities mentioned in the subsection perform functions assigned to them properly and do not transgress the bounds of their respective competence. This subsection does not constitute him as an appellate or revisional authority for the reason that these functions have been expressly taken away from him by the legislator by the Displaced Persons (Laws Amendment) Ordinance. Reference in this context is invited to the case of Jamal Din v. Jana P L D 1967 Lah. 1085. Paragraph 33 of the Supplementary Scheme No.II is in the following terms:‑--

"The Rehabilitation Commissioner West Pakistan may at any time pass such orders and issue such instructions as he may consider necessary for the proper implementation of the Supplementary Scheme."

A perusal of this paragraph indicates that the order and instructions envisaged therein are of administrative nature, aimed at ensuring the proper implementation of the Scheme. It is an accepted principle of interpretation of a statute that an authority competent to make an order has also the implied power to withdraw it. This principle finds recognition in section 21 of the General Clauses Act which reads:‑--

"Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued."

Considering the position which the Chief Settlement Commissioner occupies in the hierarchy of offices created by the Displaced Persons (Land Settlement) Act, we do not see how he can be denied the power to rescind or withdraw an earlier order made by him either during the course of exercising general superintendence and control over the officers subordinate to him or while ensuring proper implementation of a scheme prepared under the Act. We are, therefore, unable to accept the contention of the learned counsel for the petitioners that the Chief Settlement Commissioner was not competent to withdraw his order of 21‑10‑1970. We have already mentioned that his order was withdrawn before it was actually implemented.

11. The learned counsel for the petitioners then contended that the Chief Settlement Commissioner was not right in assuming that there was a ceiling fixed for allotment within the limit of Sillanwali notified area of committee. In support of this contention he referred us to a memorandum issued by the Chief Settlement and Rehabilitation Commissioner on 15‑9‑1589 which contained a list of the urban areas for which ceilings for allotment had been fixed. Sillanwali was not included in the list. He also relied upon a memorandum issued by the Deputy Secretary (Rural) in the Board of Revenue wherein it was stated that Sillanwali was not included in the list of the urban areas for which a ceiling had been prescribed.

12. On their part the respondents referred us to a judgment of this Court in Writ Petition. No. 764/11 of 1975 wherein after examination of all the relevant instructions a learned Single Judge of this Court came to the conclusion that there was a limit of 8 Acres prescribed for Sillan wall.

13. It is unnecessary for us to examine the question whether any limit for allotment had been prescribed for Sillanwali or not for we are of the opinion that the order of the Chief Settlement Commissioner can be sustained on another ground as well. As already mentioned before the Chief Settlement Commissioner made the order of 21‑10‑1970 a part of the land in dispute had already been proposed for allotment in favour of respondents Nos. 2, 3 and 4. There can be little doubt that the order of 2t‑10‑1970 adversely affected these respondents, for had it not been passed their allotments would have been in normal course confirmed. Thus, these respondents were entitled to be heard before the order of 21‑‑10‑1970 was made. As this was not done the said order violated an important principle of natural justice. We are, therefore, not inclined to interefere with the subsequent order of withdrawal of the Chief Settlement Commissioner.

14. For the reasons stated above we find no merit in this settlement revision which is hereby dismissed with costs.

S.Q./A‑3/L Revision dismissed

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