1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against the judgment of a Division Bench of the former High Court of West Pakistan, Karachi Seat, in a Letters Patent Appeal (No. 212 of 1965) arming the judgment of a learned Single Judge of the same High Court in Petition No. 576 of 1962 under Article 98 of the Constitution of 1962.
2. This petition was filed to challenge the legality of the order of the Settlement and Rehabilitation Commissioner, Karachi, Hyderabad and Khairpur Divisions, passed on the 26th of July 1962, cancelling the allotment of a garden known as "Dholandas Garden", situated within the municipal limits of Hyderabad and measuring 37.1 acres, in favour of the respondent No. 2 and re-allotting the same to the appellant herein.
3. The respondent No. 2, who is a displaced person from Delhi and claims that he holds a verified claim for 3957 units of urban garden lands left behind at Delhi in his own name, was, in 1950, allotted a garden, situated in Deh Gangra within the municipal limits of Hyderabad and measuring some 18.15 acres, as the head of his family consisting of his wife, three sons and a daughter.
4. We are informed that he is still in possession of this garden which has since been permanently settled with him under the Displaced Persons (Land Settlement) Act, 1958.
5. There is no dispute with regard to the allotment of the above--mentioned garden, but the dispute now relates to the allotment of "Dholandas Garden". This garden was originally, by an order of the 14th of June 1951, allotted to the Hyderabad Municipality; but subsequently, in pursuance of an order passed by the Rehabilitation Commissioner, Sind, on the 14th of July 1954, the garden was taken away from the Hyderabad Municipality and allotted to the respondent No. 2 on a temporary basis, under the provisions of paragraph 14(b) of Appendix II of the "Provisional Permanent Settlement Scheme" called the "Rehabilitation Settle--ment Scheme within the Province of Sind"
6. (vide order dated 23-8-54 of the Collector and D. R. C., Hyderabad, Sind at pages 75-76 of the main Paper Book).
7. Appendix II of this Scheme laid down the principles for working out the Rehabilitation Settlement Scheme. Paragraph 14 of this Appendix reads as follows :- "No allotment shall be made from urban immovable property as covered by the Inter-Dominion Agreement.
(a) Efforts will be made as far as possible to allot gardens in rural areas to those who have abandoned similar gardens in agreed areas.
(b) It should be explained to the refugees from the agreed areas who are entitled to land or gardens that no permanent rights under this scheme can be granted to them over land or gardens within Municipal limits and therefore they should obtain land in rural areas under this scheme. If they do not agree they should be clearly given to understand that they will lose their rights under this scheme."
8. This was a purely provisional allotment and, under the principles themselves, was liable to cancellation, if, at any stage, it was found that the allottee had obtained land in excess of what was actually due to him.
9. At this stage, the claim of the respondent No. 2 had not yet been finally verified. Thus, on receipt of a complaint that he had been allotted more area than was verified in his favour by the Central Record Office, an enquiry was held by the Rehabilitation Commissioner, Sind, and the allotment of "Dholandas Garden" in his favour was cancelled on the 20th of November 1954, but he was allowed to hold it on a purely temporary basis till the final verification of his claim.
10. Presumably, after such verification, the respondent No. 2, on the 24th of October 1957, again, applied for the allotment of "Dholandas Garden" in his favour, without disclosing that an earlier allotment of the same garden in his favour had been cancelled on the 20th of November 1954. On this application, the Garden Allotment Committee, Hyderabad Division, on the 15th of February 1958, maintained the status quo without making any final order of allotment. This order reads as follows :- "The applicant has a verified claim for 22.7 acres only. For the present he is allowed to continue to hold the gardens already allotted to him till the produce index is revised or re-fixed."
11. Thereafter, the Displaced Persons (Land Settlement) Act, 1958, came into force on the 23rd of September 1958, and claims for permanent settlement began to be considered. Under this scheme of permanent settlement, the Garden Allotment Com--mittee, on the 16th of April 1959, issued a notice to the respondent No. 2 calling upon himto show cause as to why he should not be evicted from the said garden. The respondent No. 2 filed a representation on the 25th of April 1959, in response to the said notice ; but,the 11th of May 1959, the Garden Allotment Committee rejected his claim, cancelled his allotment and ordered his eviction therefrom. By the same order, the garden was directed to be given on lease to the Nawab of Junagadh, the present appellant, and some other persons as heirs of Her Highness Dadi Bibi Sahiba of Junagadh to whom, it appears, this garden had at one stage been allotted by an order of the 3rd of March 1959.
12. The respondent No. 2 applied for the review of this order under subsection (5) of section 11 of the Pakistan Rehabilitation Act, 1956, to the Additional Rehabilitation Commissioner who had signed the earlier order, but this was rejected on the 25th of May 1959, by the Rehabilitation Commissioner, Hyderabad Division (vide page 135 of the main Paper Book).
13. The respondent No. 2 came to the High Court by Writ Petition No. 148 of 1959. A learned Single Judge allowed the same holding that the Garden Allotment Committee had no jurisdiction under the Pakistan Rehabilitation Act of 1956 to make allotments of urban garden lands, but the learned Judge did not decide as to which authority was competent to deal with the allotment of such lands under the law then prevailing. This was left to be decided by the authorities themselves. The matter, therefore, went back to the Rehabilitation Commissioner who caused a fresh notice to be issued to the respondent No. 2 on the 17th of December 1959, again, to show cause as to why he should not be ejected from "Dholandas Garden". The respondent No. 2 showed cause claiming to be entitled to the allotment under the Supplementary Scheme No. 2, on the basis of produce index units. The Rehabilitation Commissioner did not accept this claim, and after hearing the respondent No. 2 again, by his order of the 29th of December 1959, cancelled the allotment.
14. This order too was challenged by another Writ Petition (No. 54 of 1960) in the High Court, but this time it was dismissed by a learned Single Judge. On appeal, however, under the Letters Patent, a Division Bench reversed the judgment of the learned Single Judge and quashed the order of the Rehabilitation Commissioner dated the 29th December 1959 (wrongly mentioned as 17th December 1959, in the judgment of the Letters Patent Bench) for the reason that "it proceeds on a ground which did not form the subject-matter of notice issued to the appellant" (now respondent No. 2) on the 17th of December 1959.
15. The effect of this declaration was that the proceedings before the Rehabilitation Commissioner were revived from the stage the illegality was committed.
16. The Rehabilitation Commissioner, therefore, on the 12th of March 1962, again issued a Fresh show- cause notice to the respon--dent No. 2 specifying the grounds on which the cancellation was sought to be made, namely , "that was not entitled to more than 22.27 acres on the basis of the calculation made by the Garden Allotment Committee, according to the orders of the Chief Settlement Commissioner, whereby urban areas had been divided into six categories on the basis of population and no produce index value had ever been fixed for landsin urban areas. The respondent No. 2 showed cause and re-asserted his claim that he was entitled to the allotment on the basis of produce index units. The Rehabilitation Commissioner, by his detailed order of the 26th of July 1962, again, rejected his claim and held that the cancellation was rightly made and that the said respondent was not entitled to claim the allotment of urban gardens on the basis of produce index units.
17. It may be pointed out there that, although on the basis of acres the respondent No. 2 had a verified claim for only 22.27 acres, his verified claim on the basis of produce index units worked out to about 57 acres.
18. The respondent for the third time challenged this decision by another Writ Petition No. 576 of 1962.
19. This time, a learned Single Judge upheld his contention that the Garden Allotment committee was not empowered to deal with urban gardens and this decision was upheld on appeal by a Division Bench of the same High Court on the 17th of October 1968.
20. The main question that had been considered in the High Court was as to whether the allotment of an urban garden could be made in terms of the main Scheme framed in exercise of powers given by section 6 of the Pakistan Rehabilitation Act, 1956 or under the Supplementary Scheme No. 2 which was framed in 1959.
21. Having examined the provisions of both the main Scheme and the Supplementary Scheme, the learned Judges came to the conclusion that, since "urban land" was expressly excluded from the ambit of the main Scheme, the provisions thereof could not apply to the allotment of urban gardens, but urban garden lands could be allotted only under Supplementary Scheme No. 2 which was framed with reference to the provisions of Schedule IV of the Registration of Claims (Displaced Persons) Act, 1956. The Letters Patent Bench also upheld the order of remand which was made by the learned Single Judge.
22. According to the learned Single-Judge, at the remand, what had to be considered was as follows :- "The question for decision would be whether upon the true basis of allotment the petitioner is entitled to hold this garden. In determining the entitlement of the petitioner the fact that he holds the allotment of another garden will also have to be taken into consideration. It will be for the Settlement and Rehabilitation Commissioner to consider as to what is the effect of the claim of the petitioner's sons and daughters who are joint allottees with the petitioner of the other garden in deh Ghangra. In deciding the matter finally the Rehabilitation Commissioner would be entitled to take into consideration any scale which may have been prescribed by the Rehabilitation Commissioner, West Pakistan under clause 8 of the Supple--mentary Scheme. I may add, however, that no such scale was produced before me."
23. Leave was granted in this case to consider "whether the allotment of urban garden is governed by the provisions of the West Pakistan Rehabilitation and Settlement Scheme and the instructions thereto, or by the provisions of Supplementary Scheme No. 2."
24. Learned counsel appearing in support of this appeal first attempted to establish, on the basis of paragraphs 3 and 4 of the main Scheme and the definition of "land" given in Chapter I thereof, that the Scheme applied also to urban gardens ; but, when his attention was drawn to paragraph 4-A thereof, which reads as follows :- "The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme
(1) Urban land, He realised his difficulty and frankly conceded that in view of ---the express exclusion therein contained it would not be possible for him to urge that the allotment of urban gardens could be made under this Scheme.
25. It seems to us to be clear, from the provisions of the above--quoted paragraph 4-A, that the framers of the Rehabilitation and Settlement Scheme clearly did not intend the Scheme to apply to urban lands of any category. "Urban gardens" come within the category of "urban land" and are not allottable under the Rehabilitation and Settlement Scheme by reason of this express exclusion and not by reason of any ambiguity in the definition of "land" given in this Scheme. "Gardens" referred to in para--graph 4 (f ) of Chapter II of this Scheme, therefore, mean gardens situated in rural areas and not gardens situated in urban areas. The Garden Allotment Committee, set up by paragraph 6 of the instructions set out in Part 11 of the Rehabilitation Scheme, could be empowered only to deal with gardens which were allottable under this Scheme and not other gardens.
26. The position, therefore, that now emerges is that urban lands were allottable under the Supplementary Scheme No. 2 which was framed on the 28th of August 1959. The respondent No. 2 relies upon paragraph 7 of this Scheme and claims that under this Scheme read with section 15 of the Displaced Persons (Land Settlement) Act, 1958, he is entitled to claim on the basis of produce index units ; but this argument does not take into account the provisions of paragraph 8 of the Supplementary Scheme No. 2 which read as follows "The Rehabilitation Commissioner, West Pakistan, may prescribe scales of allotments in any particular area in keeping with local conditions : Provided that such scales subject to the provisions of the proviso to Clause 24 of this Scheme shall be so prescribed that no allotment under this Scheme can be made for an area in excess of that allotted under the Temporary Urban Scheme in the case of towns with a population of one lac or more according to the census of 1941."
27. This proviso seems to indicate that, before the Supplementary Scheme No. 2 came into force, there was a Temporary Urban Scheme for allotment of lands in towns with a population of one lac or more, according to the census of 1941. Unfortunately, this Temporary Urban Scheme was not placed before the High Court, nor has the High Court considered the implications of paragraph 8 of Supplementary Scheme No. 2. The proviso to paragraph 8 indicates that no allotment under this Supplementary scheme No. 2, could be made of an area in excess of that allotted under the Temporary Urban Scheme in such towns.
28. This necessarily invites a reference to the provisions of the Temporary Urban Scheme, a photostat copy of which has now been produced before us. This Scheme was framed for the temporary allotment of urban lands under the Registration of Claims (Displaced Persons) Act, 1956 and clause 7(iii) thereof required that temporary allotments should be made as far as practicable of urban land shaving the same classification as the was made of a higher or lower classification than that to which an applicant is entitled, the total area verified should be increased or decreased respectively for each class prescribed in clause 7(i) representing the difference between entitlement and allotment as indicated in a table appended below the said clause. This table shows that for Class I lands, abandoned in an urban area in India, an evacuee would be entitled to an equivalent urban area in acres in Pakistan of the same class. Under clause 7(i), Municipal Com- -mittees, having a population of one lac, or above, were classified as Class I, and the Municipality of Hyderabad, which according to the 1944 census had a population of 1,27,521, fell in this class.
29. There can be no manner of doubt that the Delhi Municipality had also a population of more than one lac. Therefore, both were Class I areas, and the respondent No. 2, under this Temporary Allotment Scheme for urban land, was only entitled to an equivalent area in acres according to the table given under clause 7 thereof. Thus, if his verified entitlement was for 22.27 acres, he could only get an area equivalent to that in Hyderabad City which was a Class I area and not 37.1 acres, as claimed by the respondent No. 2, in addition to 18.15 acres already allotted to him.
30. Learned counsel for the respondent No. 2, however, contends that the reference to the Scheme for the temporary allot--ment of urban lands framed under Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956, will serve no purpose in the present case, for, the allotment in favour of respondent No. 2 was made much before the Scheme came into force under paragraph 14 of the Sind Rehabilitation Scheme of 1950. This argument overlooks the fact that, by clause 8 of Part II of the Temporary Urban Scheme, it has been provided that, as far as practicable, temporary allotments of urban lands made before the promulgation of the Scheme should be included in the area proposed to an applicant, as far as possible, in one compact block according to his entitlement. This shows that temporary allotments made prior to the promulgation of the said Scheme were to be adopted by the Scheme and adjusted in accordance therewith on the basis of acres as provided in clause 7 of Part I thereof.
31. Learned counsel for the respondent No. 2 next contended that this was a new point which had not been taken in any of the Courts below and should not be allowed to be raised at this stage. It is true that none of the Courts below, at any of the several stages when this matter came up before them, noticed this point, although the original order of allotment in favour of the respon--dent clearly stated that the temporary allotment was being made under Clause 14(b) of Appendix 11 and that could only have had reference to the Rehabilitation Scheme applicable to Sind, as the main Rehabilitation Scheme under the Pakistan Rehabilitation Act, 1956, did not come into being until the 24th of March 1956. It was the duty of the Courts below to have noticed this and then to have applied the proper law. Whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law. Reference to these provisions cannot therefore, be shut out.
32. Waking these provisions into consideration, it-seems to us that the insistence of the Department that the respondent No. 2 was only entitled to allotment of garden land in an urban area on the basis of the verified acreage of land left behind in an agreed area in India and not on the basis of produce index units, was in every way justified.
33. It is unfortunate that the case for the Department was never properly presented before .The High Court, although, each time the High Court remanded the case back to the Rehabilitation Commissioner, he maintained that the respondent No. 2 was entitled only to an equivalent acreage and, therefore, he was holding "Dholandas Garden" in excess of his entitlement. Each time the matter came up before the High Court, the High Court, looking only at the Rehabilitation Settlement Scheme and Supple--mentary Scheme, cane to the conclusion that the Garden Allotment Committee could not prescribe the scales of allotment, without noticing that it was not the Garden Allotment Committee which prescribed the scales but it was the Chief Rehabilitation and Settlement Commissioner who prescribed the scales. The Chief Settlement and Rehabilitation Commissioner clearly had, both under the Rehabilitation Scheme and Supplementary Scheme No. 2, the power to prescribe the scales of allotment, according to local conditions.
34. On a perusal of the provisions of the Sind Rehabilitation Scheme which was a purely temporary scheme and the proviso to paragraph 8 of Chapter III of Supplementary Scheme No. 2, we have come to the conclusion that the respondent No. 2 was not right in his claim that he was entitled to allotment of an area equivalent to the produce index units verified in his favour. The learned counsel for the respondent No. 2 has not been able to draw our attention to any other provision, apart from para--graph 7 of Supplementary Scheme No. 2, which would lend support to his claim.
35. The Supplementary Scheme must be read as a whole and reading it as a whole, we are unable to accept his contention.
36. Learned counsel for the respondent has, however, raised a few more questions, namely, as to whether the allotment of the other garden measuring 18.15 acres was to the respondent No. 2 alone or to him jointly with his cousin sister, Saidunnessa, who had a separate verified claim of her own, and other members of his family. He has also contended that the whole of those 18 acres do not consist of garden lands. According to him, an enquiry into these matters, as also to the entitlement of the appellant on acreage basis, was necessary, even if it be accepted by this Court as the basis of entitlement.
37. It does appear from both the order of the learned Single Judge as well as of the Letters Patent Bench in the High Court that these questions were also raised there and the Settlement and Rehabilitation Commissioner was directed to consider these questions.
38. These are disputed questions of fact which cannot be determined in this Court at this stage.
39. We would, therefore, allow this appeal to the extent that the finding of the High Court that the entitlement of the claimants should be determined on produce index units will be set aside and it will be declared that the authorities were competent to prescribe f that entitlement of urban garden lands in Municipal towns will t be made on the basis of the verified claim in acres of lads left behind in similar class of areas in India. The order of remand will, therefore, be maintained and the Rehabilitation Commissioner will determine the entitlement of the contesting claimants, according to the principles laid down by this Court taking into account allotments of other garden lands made to anyone of the aforesaid claimants within the same Municipal area. It will also be open to the Rehabilitation Commissioner to determine whether the appellant is entitled to the whole of the garden in dispute on the basis of his entitlement in acres.
40. This appeal is disposed of accordingly.
41. Since success is divided, there will be no order as to costs.