ZAFFAR HUSSAIN MIRZA, J.-This is an appeal by special leave against the judgment and order, dated 2-7-1974 passed by a learned Single Judge of the Peshawar High Court, Peshawar, whereby the writ petition filed by the appellants was dismissed.
2. The question of law that requires consideration in this case is whether the instructions issued by the Rehabilitation Commissioner, West Pakistan, contained in his Memorandum No. 4704-58/2919.8 (P), dated 12-8-1958, addressed to the Additional Rehabilitation Commissioner, Peshawar, and Dera Ismail Khan, to the effect "that the evacuee land situated in village Kurai, Shor Kot, Kotla Saidan, Techen, Diwan Sahib Wala etc. Of Dera Ismail Khan Tehsil which was recorded as Banjar Qadim or Banjar Jadid in special Jamabandis of 1946-47 but is now commanded by Tube-wells should be treated as canal irrigated for the purpose of allotment" are valid and have effect of law by virtue of para. 23 of Part IT of the West Pakistan Rehabilitation and Settlement Scheme (hereinafter to be referred to, as the Scheme).
3. The facts leading to the present appeal may now be briefly stated :- The appellants are displaced persons from a non-agreed area. Against their verified claim agricultural land measuring 8,596 kanais 14 marlas in village Shorkot and 243 kanals and 4 marlas in village Kurai, District Dera Ismail Khan was allotted to them on 31-12-1959. On the promulgation of 'Martial Law Regulation 89 as amended by Martial Law Regulation No. 91, the entitlement of the appellants was reduced to 7,371 Produce Index Units. In terms of the Scheme framed under the aforesaid Regulation, the appellants were entitled to obtain allotment of the land in accordance with their entitlement and to purchase excess area on instalment basis. It is perti--nent, however, to mention that before the initial allotment of land to the appellants in lieu of their verified claim, the Additional Settlement Commis--sioner, Peshawar, and Dera Ismail Khan through a letter, dated 26-3-1958, sought instructions from the Deputy Secretary, Board of Revenue West Pakistan, as to the reclassification of lands in villages, inter alia, Shorkot and Kurai as they were entered in the special jamabandi for the year 1946-47 as Banjar Qadeem and Banjar Jadeed', under paragraph 29 of the . Rehabilita--petition and Settlement Scheme, but now due to the installation of tube- wells in these villages, there was possibility of land being reclassified as irrigated. In such eventuality, the value of these lands would increase considerably and, therefore, keeping in view the imminent increase in the produce value of these lands restrictions had been imposed by the Gover4ment on the sale and purchase of land in that area. In order to avoid keen competition between the claimants in view of the enhanced value of the land, it was suggested by the Additional Rehabilitation Commissioner that for the purpose of allotment under the various schemes, the area under tube-wells should be considered as canals irrigated area. On considering this request the Secretary (Rural) to the Rehabilitation Commissioner, West Pakistan, issued Memo- -randum No. 4704-58/2919-R (P), dated 12-8-1958, in the following term :-- MEMORANDUM: (Sd.) S. L. Latif.
Secretary(Rural)to the Rehab. Commissioner, West Pakistan."
4. The controversy in the present appeal turns on the question as to whether the land could be reclassified in the face of para. 29 of the Scheme.
It is to be noted that admittedly the initial allotment to the appellants was made on the basis of the Memorandum, dated 12-8-1958, treating the land as canal irrigated land. However, as a result of the Martial Law Regulation, the appellants raised the question of the classification of land before the Additional Settlement and Rehabilitation Commissioner, Peshawar, and Dera Ismail Khan, urging that the land covered under the allotment of the appellants be treated as Banjar Qadeem according to the entries in the special Jarnabandis on the plea that there were no tube-wells in the area. Mr. Iftikhar Ahmad Khan, Additional Settlement and Rehabilitation Commissioner advised the appellants to wait for some time since new tube--wells were being installed in the area and with this observation dismissed their prayer. In an appeal filed by the appellants the Settlement and Rehabili--tation Commissioner (L), Dera Ismail Khan by his order dated 4-4-1963, sent back the case to the Deputy Rehabilitation Commissioner for re-considera--petition in order to determine the question whether the land was being irrigated by tube-wells after local inspection. A report was then submitted by the Assistant Rehabilitation Commissioner, Dera Ismail Khan, dated 20-12-1963, after perusing which the Deputy, Rehabilitation Commissioner Captain Sibghatullah Khan passed orders, dated 13-12-1963 directing that an area of 18 field numbers actually irrigated by the tube- wells be treated as canal irrigated land for the purpose of allotment and the rest of the area be treated as 'Banjar Qadeem/Banjar Jadeed" as the case may be. The appellants being dissatisfied took an appeal before Mr. Gul Khan, Additional Settlement and Rehabilita--petition Commissioner, Dera Ismail Khan, who passed orders on 11-7-1966, accepting the appeal and directing the Deputy Rehabilitation Commissioner, Dera Ismail Khan, to correct the allotment of the appellants in accordance with the entries in the special jamabandis of 1946-47. This is the only order passed in favour of the appellants which they rely strongly in the present appeal. However, this order was not complied with until March, 1969, and therefore, the appellants moved the Deputy Rehabilitation Commissioner, Dera Ismail Khan, for implementation of the order. The order was eventually complied with and a report was made to the Deputy Rehabilitation Commis--sioner who informed the Deputy Secretary (R) to the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, for review of allotment made to the appellants and change of classification of soil on the basis of the aforesaid orders. On considering the case Mr. Hussain Haider, Chief Settlement and Rehabilitation Commissioner, West Pakistan, came to the conclusion that the instructions issued by the Rehabilitation Commissioner in his Memorandum, dated 12-8-1958 changing the classification of the soil of the land situated in the areas in question was a perfectly proper exercise of power and, therefore, the Settlement Authorities subordinate to him had no authority whatsoever to challenge his orders regarding reclassification of soil. By his order, dated 7-10-1969, he informed the Deputy Rehabilitation Commissioner that the order of the Additional Rehabilitation Commissioner, dated 11-7-1966 passed in favour of .The appellants was without jurisdiction and of no legal effect. In consequence of this order steps were taken to cancel the allotment of the appellants if they failed to pay instalments according to the classification of the lands as canal irrigated.
5. In the background of the aforesaid facts, the appellants challenged the validity of the Memorandum, dated 12-8-1958, issued by the Rehabilitation Commissioner, West Pakistan, order dated 7-10-1969 passed by Mr. Hussain Haider, Chief Settlement and Rehabilitation Commissioner, West Pakistan, and consequential orders demanding payment of price for the re-surrendered and repurchased land on the basis of classification as canal irrigated land or in default for cancellation of allotment, in the Constitutional jurisdiction before the Peshawar High Court, Peshawar. As already observed a learned Single Judge of the Peshawar High Court dismissed the petition by his im--pugned order and hence this appeal.
6. In support of this appeal, learned counsel for the appellants con--tended asunder :-
(1) The impugned instructions cannot override the statutory instructions contained in para. 29 of Part II of the Scheme, according to which the appellants were entitled as claimants to allotment of land in accordance with the classification of evacuee land as entered in the special Jamabandis of 1946-47. The only departure permissible was in case of hardship in individual cases, but the Rehabilitation Commis--sioner bad no power to amend or substitute para. 29 generally in regard to a specified area in the erstwhile Province of West Pakistan.
(2) Assuming but not conceding that the impugned Memorandum had the effect of statutory instructor even in the specified areas mentioned in the Memorandum, only such lands were Classified to be treated as irrigated, which were actually commanded by the tube-wells on the date of the allotment.
(3) The judicial orders passed by Mr. Sibghatullah, Deputy Rehabilitation Commissioner, dated 23- 12-1963, as modified in appeal by Mr. Gull Khan, Additional Settlement and Rehabilitation Commissioner, dated 11-7-1966, having attained finality, were not liable to be ignored by the Settlement Authorities.
7. On the other hand, it was argued on behalf of the respondents that the impugned Memorandum was competently issued in exercise of powers vesting in the Rehabilitation Commissioner, West Pakistan, under para. 23 of the Scheme and had the effect of pro anto amending para. 29 of Part II of theScheme in its application to the area in question. It was further submitted that the orders passed by the Deputy Rehabilitation Commissioner and Additional Settlement and Rehabilitation Commissioner relied upon by the appellants were ex facie void and without jurisdiction being in conflict with the Memorandum, dated 12-8-1958, issued by the Rehabilitation Com--missioner.
Accordingly, they were liable to be ignored. Lastly, it was urged that the entitlement certificate and the allotment having been issued under the provisions of Martial Law Regulation No. 89 as amended by Martial Law Regulation No. 91, were immune from attack before the Court of Law by virtue of Article 12 of the Martial Law Regulation No.89.
8. The. West Pakistan Rehabilitation Settlement Scheme was issued by the Rehabilitation Commissioner, West Pakistan under section 6(1) of the Pakistan Rehabilitation Act, 1956 and has been adopted for purposes of the Displaced Persons (Land Settlement) Act, 1958, by virtue of section 2 (2) of the said Act. Therefore, it has statutory force. Para. 23 of the Scheme lays down as under : - "23. The Rehabilitation Commissioner, West Pakistan, may at any time pass such order consistent with this Scheme and issue such instructions concerning details, etc., as may be found necessary with a view to securing the proper implementation of the Scheme."
It would, therefore, appear that the Rehabilitation Commissioner, West Pakistan had been delegated the power to issue orders consistent with the Scheme for the proper implementation of the same. In exercise of this power, the Rehabilitation Commissioner issued instructions" with a view to securing the proper implementation of the provisions of that Scheme." This instructions are contained in Part II immediately following the Scheme in M. A. Latif's Book on the Displaced Persons (Land Settlement) Act, 1958 (1970 Edition) at page 139. It will be convenient at this stage to reproduce para. 29 of these instructions which reads as under :- "29. Right to be given in accordance with entries in Jamabandis.-Rights under the Rehabilitation Settlement Scheme should be given to a claimant in accordance with the entries in the special jamabandis received from the prescribed area of India. Classification of evacuee land should be taken into account according to the entries in the special jamabandis prepared for exchange with India and subsequent variations in the classification of soil should be ignored. 1f any hard--ship is caused by the application of this rule in individual cases a reference should be made to the Rehabilitation Commissioner, West Pakistan (Reference former Punjab Government Memorandum No. 8553-(L), dated 2nd September, 1950).
9. It was emphatically contended on behalf of the appellants that the directions contained in this paragraph unequivocally enjoined upon the subordinate Settlement Authorities to take into consideration the classifica--petition of evacuee land according to the entries in the special jamabandis of 1946-47 for purposes of allotment and to ignore subsequent variations in the classification of the soil. But for the impugned Memorandum, the argument of the learned counsel would be valid. However, it cannot be denied that within the limits prescribed by the provisions of the Scheme, the power vested in the Rehabilitation Commissioner under paragraph 23 of the Scheme was plenary, to pass orders for the implementation of the Scheme., According to section 21 of the General Clauses Act, 1897, the power conferred on IC statutory functionary to pass orders includes the powers to amend or vary the same. The Rehabilitation Commissioner was, therefore, competent to issue the Memorandum in question, even if it bad the effect of modifying para. 29 of the instructions already issued "by him in exercise of the same power. The only limitation on the exercise of this power was to pass order consistent with the Scheme and learned counsel was unable to show us any provision of the Scheme with which the reclassification order passed by the Rehabilitation Commissioner was at variance. The learned Single Judge, therefore, rightly held that the instructions contained in the impugned Memorandum bad the effect of superseding the general instructions contained in para. 29 of the instructions earlier issued. A subsidiary argument in this connection, advanced by the learned counsel that the instructions contained in the Memorandum do not satisfy the tests laid down in the case of Pakistan v. Abdul Hamid (PLD 1961 SC 105) is devoid of force as the terms in which the Memorandum is couched are precise and could be applied with exactness to a large number of cases of allotments in the areas specified.
However, we do not see any analogy between the two cases, as the reported case pertained to the ques--petition of Service Rules whereas the powers granted under para. 23 of the Scheme seems to us to be exercisable according to the exigencies of the implementation of the Scheme, as already observed contained instructions issued by the Rehabilitation Commissioner in exercise of his powers under para. 23 of the Scheme and are not a part of the Scheme itself and, therefore, there is no substance in the argument that, no further exercise so as to be in conflict with the instructions already issued. The question of hardship is not relevant in the circumstances of this case nor does the Memorandum purport to deal with a case of hardship.
10. As regards the next contention emphasis was laid on the words "is now commanded by the tube-wells should be treated as canal irrigated for the purpose of allotment" occurring in the impugned Memorandum. It was argued that these words constitute a direction that only such lands which were actually irrigated by tube-wells were intended to be covered by the Memorandum. They cannot agree with this interpretation. The Memo--randum is to be read alongwith the letter of the Additional Rehabilitation Commissioner, Peshawar dated 26-3-1958, by which instructions were sought and the Memorandum was issued. Reading them together, it is quite clear that the impugned instructions changing the classification of the land in the areas in quest-ion was issued in view of the Tube-wells Scheme introduced in these areas which had the effect of enhancing the produce value of the land.
11. The last contention that judicial orders passed by the Rehabilitation Authorities in favour of the appellants had attained finality as they were not challenged further in the hierarchy of the Settlement Authorities, already stands disposed of. These orders are palpably against the instructions contained in the Memorandum in question and are, therefore, void ab initio. They were rightly directed to be ignored.
12. The aspect of the case pointed out by the learned counsel for the respondents that the orders passed under Martial Law Regulation 89 were not liable to be challenged in any Court of Law also seems to us to be note--worthy.- On behalf of the appellants, no argument was advanced in rebuttal of this contention. By Article 7 of Martial Law Regulation 89 all Certificates in Forms Q. P. R.- V and U. R.-V and Certificates showing title to land issued under the original Regulation (M. L. R. 84) and any allotment of land on the basis of the Entitlement Certificates issued under Martial Law Regulation 89. Under the original M. L. R-84, detailed provision was made for submission of written statements by all the claimants giving particulars of their claim etc. After scrutiny of these written statements the claims had to be reverified on the basis of the record and Form M. Ri.-V was to be issued to the claimant and thus final orders were to be passed about the entitlement of each claimant. Under Article 7 (2) of the M. L. R. 89, fresh orders for allotment of land were made on the basis of Entitlement Certificates freshly issued under the said Regulation. It is not disputed before us that the appellants' case of entitlement was processed under the provisions of this Regulation and fresh allotment issued thereafter. Article 12 of the said Regulation provides for finality of orders and ousts the jurisdiction of the Courts from questioning such orders. It is pertinent to note that Constitu--tional protection was extended to M. L. R-89 under Article 6 (3) of the 196 Constitution, vide Article 8 (3) (b). It, therefore, follows that the orders of allotment were beyond the reach of the Court's jurisdiction.
12. Be that as it may, it being conceded before us that even the original allotment was issued in favour of the appellants on the basis of the impugned Memorandum treating the land included in the allotment as canal irrigated land, it is not open to the appellants to seek to challenge the validity of these orders, as that will upset the very basis on which the initial orders were passed in favour of the appellants on their own choosing. For the foregoing reasons, there is no merit in this appeal, which is accordingly dismissed with costs.