1. SALAHUDDIN MIMED, J.-In this appeal leave was granted to consider the propriety and legality of the order of the former High Court of West Pakistan, Karachi Bench, dismissing the appellants' application under Article 98 of the Constitution.
2. The parties herein are disputing about the right of allotment of 1 acre and 19 Ghantas of garden land situated in village Odher Walli, Taluka Ghotkhi, District Sukkur. In the year 1953 this land was allotted temporarily to respondents Nos. 3 and 4, Murad A.I and Bashir, who had left no garden in India. When the Settlement Scheme for Agricultural Land including Gardens, was promulgated the allotment in favour of the said respondents was cancelled and allotment in favour of the appellants, who had abandoned a garden in India, was made by an order dated the 14th June 1958. Possession was delivered to the appellants on the 2nd of August 1958.
3. The respondents filed a revision petition before the Chief Settlement Commissioner. In the meantime is the respondent were interfering with the possession of the appellants, the latter brought a suit against the former and some others in the Court; of Sub-Judge, Rohri. The suit was, however compromised on the 11th June, 1959, on the terms, inter alia, that the garden should remain with Mr. R. A. Naqvi, Advocate, of Sukhur, till the applications filed by the respondents before the Chief Settlement Commissioner' had been disposed of. The 3rd and 4th respondents, who had apparently got into possession in the mean--time, were also required to deposit the price of the fruit sold by them with Mr. Naqvi.
4. Eventually, the revision petitions of the respondents were dismissed by the Chief Settlement Commissioner by his order dated the 15th July 1959. Thereupon the respondents challenged the orders of the Chief Settlement Commissioner by a petition for a writ in the former High Court of West Pakistan. During the pendency of the writ petition, the respondents again took forcible possession of the garden.
5. On the 19th February 1962, the High Court remanded case to the Deputy Rehabilitation Commissioner, Sukkur ground that when the allotment of the respondents Nos. 3 and was cancelled, they were not heard After the remand by the High Court the Deputy Rehabilita--petition Commissioner, Sukkur heard both the parties and held that the appellants were entitled to the said garden. It was, therefore, ordered that the said garden should be permanently transferred to the appellants. This order was in conformity with the Circular laying down the principles of priority to tile allotments of gardens issued by the Chief Settlement Commissioner on the 30th April 1958, and the 4th February 1959.
6. Against this order of the Deputy Rehabilitation Commissioner the respondents tiled an appeal to the Rehabilitation commissioner, Khairpur Division, who allowed the appeal and reversed the decision of the Deputy Rehabilitation Commissioner.
7. The appellants challenged the legality of the aforesaid order passed by the Settlement Commissioner by a writ petition before the High Court. A Division Bench of the High Court dismissed the writ petition and observed that it a as true that according to the policy letters relied upon by the appellants they had a preferential claim to the allotment of the disputed garden area as compared to the respondents. The learned Judges of the Division Bench further observed thus :--- "This small area of land was allotted to the respondents as far back as 1953 and it would be hard to deprive them of it particularly when the Settlement Commissioner has chosen to let it remain with them."
8. Learned Advocate appearing on behalf of the appellants, Mr. Khalid M. Ishaq has contended that in view of the observa--tions of the High Court that according to the aforesaid two policy letters the appellants have a preferential claim to the allotment of the disputed garden, the order dismissing the appel--lants' writ petition merely on the ground that it would be hard to deprive the respondents of the garden which had been allotted to them as far back as 1953, was neither legal nor proper.
9. It may be noticed that the allotment made to the respondents in the year 1953 was purely on a temporary basis. The Deputy Secretary, Board of Revenue, West Pakistan, by his Memorandum dated the 30th April 1958, issued the following directions :- "Allotment of Evacuee Gardens Below 3 and 4 Acres Memorandum.
10. The Rehabilitation Commissioner, West Pakistan is pleased to order that gardens below 3/4 acres in area allotted by the Deputy Rehabilitation Commissioners in pursuance of the pro--visions of para. 6, Chapter I, Part II of the West Pakistan Rehabilitation and Settlement Scheme should be allotted to Displaced claimants in the following order of priority :-
(i) Refugees from agreed areas with verified claims for gardens below 3/4 acres ;
(ii) Refugees from non-agreed areas with documentary proof of their having abandoned gardens in India less than 3/4 acres ;
(iii) Refugees from agreed areas with verified claims for agricultural land and who want garden areas be allotted to them ;
(iv) Refugees from non-agreed areas who can convince the Deputy Rehabilitation Commissioner that they have abandoned agricultural land in India.
11. It should be noted carefully that allotments to refugees under categories 3 and 4 should be made only when you are satisfied that the claims and applications from refugees of categories 1 and 2 above have been fully met.
12. You are requested to take action in the matter accordingly. Separate action is being taken to amplify the Rehabilitation and Settlement Scheme."
13. The appellants tall within item II of the Memorandum. It is evident from the Memorandum that refugees falling under items III and IV could receive allotments only after the claims and applications from refugees of category Nos. I and II have been fully met. The respondents fall under item III or IV. It is thus evident that they are not entitled to the allotment of the disputed garden which consists or only l acre and 19 ghantas of land in the presence of any claim and application from refugees of category Nos. I and II.
14. The learned Judges of the High Court appear to have omitted to consider this very relevant aspect of the matter. We accord--ingly allow the appeal and set aside the impugned order of the High Court. We, however, make no order as to costs. The result is that the order of the Deputy Rehabilitation Commissioner, Sukkur, passed on remand stands restored.