ZAFFAR HUSSAIN MIRZA, J.--This appeal by leave arises out of the order of a learned Single Judge of the Lahore High Court, dated 9th January, 1974, whereby a constitutional petition filed by the appellant herein was dismissed with the result that the order passed by the Settlement Commissioner, dated 28th December, 1966, was maintained.
2. The facts leading to this appeal are that Feroze Khan, the present appellant, was a right holder and a temporary allottee in Chak No.113/12-L, Tehsil and District Sahiwal. His claim was verified for 854 P.I. Us. Out of which he was able to utilize 576 units in the aforesaid Chak, with the result that the remaining unsatisfied units were transferred on his request to Chak No.140/9-L, Tehsil Sahiwal.
Ahmad Khan since deceased and now represented by the first four respondents here in, was also a right holder and temporary allottee in Chak No.88/6-R in the same Tehsil. Like the appellant he also obtained the transfer of his surplus units, after satisfaction of some of his units, to Chak No.141/9-L.
The important and material fact to be noted is that the two Chaks, namely, Chak No.140/9-L and Chak No.141/9-L are both adjacent to each other and are within the same Patwar Circle.
It may be mentioned that deceased Ahmad Khan, at one time was allotted land in Chak No.141/9-L, equivalent to 188 PA.Us. But this allotment was later cancelled at his request, so that his surplus units remained pending for satisfaction in 'that Chak.
3. On a Mukhbari application made by the appellant and some others, certain land allotted to one Nazra and others in Chak No.140/9-L was cancelled vide order of the Additional Settlement Commissioner (Land), Sahiwal, dated 14th April, 1966. The appellant's units were actually brought to Chak No.140/9-L on 15th April, 1966 under the orders of the Deputy Settlement Commissioner (Land), Sahiwal. As the land cancelled from the allotment of Nazra and others was available the Settlement Authorities took up the matter of allotment of that land and the Patwari of the said Chak recorded a note on 7th May, 1966, that no units of any allottee or non-allottee except the appellant, were pending satisfaction in the said Chak on the said date. Accordingly the Deputy Settlement Commissioner, on 18th May, 1966, proposed to the appellant land comprising Kila Nos. 1 to 10 in square No.78, measuring 73 Kanals 5 Marlas, which is in dispute in this case, alongwith other land.
Ahmad Khan deceased tried to challenge the proposal made in favour of the appellant by means of an appeal but his appeal was dismissed as premature and incompetent, since a proposal is not a final order. The land was later on confirmed in favour of the appellant on 26th June, 1966.
4. Being aggrieved Ahmad Khan filed an appeal which was accepted by the Additional Settlement Commissioner vide order, dated 29th September, 1966 and as a result Ahmad Khan was given the disputed land in square No.78. The remaining area confirmed in favour of the appellant, was, however, allowed to remain with him. The appellant being dissatisfied unsuccessfully challenged the aforesaid order before the Settlement Commissioner and ultimately challenged the adverse orders passed against him by the said Settlement Authorities in the constitutional petition which was also dismissed by the impugned order.
5.It may be stated here that the learned Additional Settlement Commissioner held that Ahmad Khan had a preferential claim to allotment of the disputed land on the ground that his unsatisfied units were pending in Chak No.141/9-L since, 1963 and since these units were pending in the same Patwari Circle, he had a better claim as compared to the appellant who had brought his units to Chak No.140/9-L on 15th April, 1966. Before the learned Settlement Commissioner it was contended by the appellant in support of his right that he was the sitting allottee of Tehsil Sahiwal and the area in dispute was made available as a result of his Mukhabari application. More importantly it was urged by him that the area could not be allotted to Ahmad Khan as none of his units were pending in the same Estate i.e. Chak No.140/9-L. The learned Settlement Commissioner rejecting the claim of the appellant observed:- "The only point for determination in this case is that as to which of the parties has a preferential claim to get this land. None of them is a sitting allottee of this estate but the claim of the respondents was received in this estate in the year 1963 whereas that of the petitioner was received in the year 1966. It is surprising that the evacuee land in question was resumed by the learned Deputy Commissioner exercising the powers of Additional Settlement Commissioner
(Land) on 14-4-1966 and the petitioner put in his application on 15-4-1966 and obtained the orders on the same day. On the other hand unsatisfied units of the respondents were pending in Chak No.141/9-L since 1963 and they were not even considered for the allotment of this area. Obviously the respondents have a preferential claim to get this land."
6. Before the learned Single Judge the main contention advanced was that the units of Ahmad Khan were not actually transferred to Chak No.140/9-L from Chak No.141/9-L and consequently his case for allotment could not be considered, particularly when the appellant's units stood formally transferred to Chak No.140/9-L at the time the area was proposed and confirmed. The learned Single Judge was, however, not impressed by this contention as in his view formal transfer order was not necessary in cases where the villages were situated within the same Patwar Circle, as held in an earlier case by the Rehabilitation Commissioner (Land), Punjab, vide Revision No.1712/53-54 (Ghulam Rasul v. Ihsanullah Khan). The said decision was considered at par with instructions issued under paragraph 23 of the Rehabilitation Settlement Scheme.
7. Leave was granted by this Court on a petition filed by the appellant to consider whether the view taken by the High Court was wrong in principle since the- precedent relied upon by the High Court was a case between different parties and the decision was inconsistent with the procedure prescribed in paragraph 13 of the Rehabilitation Settlement Scheme.
8. Learned counsel for the appellant sought to support the preferential right of the appellant qua the respondents on two main grounds. In the first place it was urged that as the disputed land became available by cancellation of bogus allotment on the information of the appellant, he had an indefeasible right as against any other person for the allotment of the land. The second submission was that there being no formal order for transfer of the units of Ahmad Khan to the Estate in question or the physical presence of the units in the said Estate, he was ineligible for allotment and no right accrued in his favour to an allotment in the Estate. So far as concession to the informers of bogus and fraudulent allotments of land is concerned, the same was extended, inter alia, by virtue of paragraph 71-A of the West Pakistan Rehabilitation Settlement Scheme on 20th August,. 1962. However, this concession was withdrawn on 14th May, 1964. The final order on the Mukhbari application of the appellant resulting in cancellation of the allotment of Nazra and others was passed on 14th April, 1966. Therefore, at the relevant time the concession was not in force.
However, learned counsel for the appellant referred to the Evacuee Property and Displaced Persons (Amendment) Act, 1973, whereby with effect from 30th July, 1973, a new provision was inserted in the Displaced Persons (Land Settlement) Act, 1958, in section 14(1-A), which once again conferred a right upon informers to be allotted the land which has been resumed by competent authority as a result of information about any bogus or fraudulent allotment of land. This provision was prospective in nature and, therefore, obviously did not confer any right upon the appellant whose case was a past and closed transaction. However, by Act XXXVI of 1974, subsection (1-A) of section 14 of the aforesaid Act was substituted as under:- "(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled-
(a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and
(b) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide."
On the basis of subsequent change of law recognizing, retrospectively the right of the informers to allotment of land resumed as a result of information furnished by them to the relevant authorities, learned counsel for the appellant submitted that the appellant's right to allotment of this land is fortified by these provisions of law.
9. Learned counsel for the contesting respondent was unable to controvert the argument that Act XXXVI of 1974, has retrospective effect but contended that at the relevant time when the land was allotted to his client by the Additional Settlement Commissioner vide Order, dated 29th June, 1966, he had a preferential right by virtue of the fact that his unutilized units were transferred to the adjoining Estate in the same Patwar circular much before the units of the appellants were brought to Chak No.140/9-L. In this connection learned counsel submitted that the High Court had rightly taken the view that the learned Rehabilitation Commissioner (Land), Punjab, had laid down in the previous case of Ghulam Rasul Khan v Ihsanullah Khan that formal transfer order was not necessary in cases where the villages were situated within the same Patwar Circle. According to the learned counsel this decision of the learned Rehabilitation Commissioner had statutory effect under paragraph 23 of the Rehabilitation Settlement Scheme, so that it had overriding effect as against any instructions previously issued as contained in Part iI of the aforesaid Scheme.
10. Now it is not disputed before us that according to paragraph 13 Part II, Settlement Scheme the procedure provided therein for transfer of units from one Estate to another in the same Tehsil or District is to be complied with. It is also clear that each of the Chaks Nos. 140/9-L and 141/9-L was a separate Estate. On 18th May; 1966, when the proposal was made in favour of the appellant the units of only the appellants were transferred to this Chak, whereas on the said date the units of Ahmad Khan were still lying in Chak No.141/9-L. Indeed the admitted position is that the units were never formally or actually transferred from Chaks Nos. 141/9-L to 140/9-L at all. The learned Additional Settlement Commissioner in appeal set aside the allotment of the appellant, however, on the basis that the unsatisfied units of Ahmad Khan 'were pending in the circle of the same Patwar since 1933'. No reference was made to the case of Ghulam Rasul Khan in which the Rehabilitation Commissioner was stated to have laid down the rule that units pending in the same Patwar Circle need not be transferred from one Estate to the other for the purpose of allotment. We have examined the decision of the Rehabilitation Commissioner in Revision No. 1712/53-54, Ghulam Rasul v. Ihsanullah Khan. This was also a case where the unsatisfied units of the allottee were pending in the adjoining village and the allotment was made without transferring the units formally in the village where the land under allotment was situated. The allotment was cancelled by the appellate authority on the ground that the claim forms were not transferred under the orders of any competent authority. On these facts, in revision, the Rehabilitation Commissioner restored the allotment in favour of the original allottee and in the operative part observed as under:- "The petitioner says that the claim forms were transferred under the orders of the Additional R.A. No order, however, is forthcoming. This is immaterial in view of the fact that both the villages are within the circle of the same Patwari. Formal orders are not necessary in such cases."
11. Apart from the other arguments advanced to the effect that this was an inter parties decision and not an order of the nature contemplated by paragraph 23 of Part I of the Rehabilitation Settlement Scheme, the text of the operative part as reproduced above does not seem to materially affect the right of the appellant to be considered for allotment in preference to Ahmad Khan. All that it lays down is that formal orders are not necessary in cases where the villages are within the same Patwar circle. It is quite clear from the order that the units were in fact and physically transferred to the village in which the land was available for allotment, but no formal orders authorizing such transfer were forthcoming. This is the distinction which must be borne in mind so far as the present case is concerned, in that, in this case the units of Ahmad Khan were never actually transferred to Chak No. 140/9-L. The Deputy Settlement Commissioner was, therefore, justified to make proposal in favour of the appellant who was the only claimant whose unutilized units were available in the Chak. This is sufficient to dispose of the contention of the learned counsel for the respondent that Ahmad Khan was better entitled to the land in view of the fact that his units were pending in the adjoining village in the same circle since 1963. It may further be observed that this Court has consistently upheld the principle of first come first served and as the record stands the appellant's units were transferred in this Chak before Ahmad Khan put in a claim for allotment to the disputed land.
12. On the legal plane also we do not think that the decision of the Settlement Commissioner in Ghulam Rasool Khan's case (dated 22nd April, 1954) was intended to modify the instructions contained in para. 13 of Part II of the Scheme. The power conferred by paragraph 23, Part 1 of the Scheme is subordinate legislative power whereby the Rehabilitation Commissioner could issue instructions having statutory force Therefore, the Rehabilitation Commissioner could at any time modify the instructions issued by him which are contained in Part II of the Scheme. The principle is well-settled that administrative instructions contained in any memorandum issued by the authority competent to alter or amend the rules, can be as effective and binding as statutory rules.
The Province of West Pakistan v. Ch. Din Muhammad PLD 1964 SC 21 and Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105. However, the substance of the order has to be seen whether it was intended by the competent authority to be an instruction of general application, before concluding that it was intended to modify the existing instructions. We do not think that the operative part of the order, as reproduced above, satisfies the test laid down for holding that the same was intended to be a modification of the existing instructions to be applied generally to all cases of the same nature. It does not appear to be a case of assertion of the power under paragraph 23 of Part I of the Scheme. An instance of such assertion while considering a case inter parties can be seen in Abdul Hafiz v. The Rehabilitation Commissioner, West Pakistan and others PLD 1966 SC 483, in which clearly the directions given were in the nature of general instructions for better implementation of the Scheme in regard to certain area and, therefore, these instructions were held to be on par with instructions embodied in Part II of the Rehabilitation Scheme.
13. For the foregoing reasons we feel that transfer of the land in favour of the appellant was proper and not open to exception on the grounds that prevailed with the superior Settlement Authorities.
We, therefore, allow this appeal and accept the constitutional petition filed by the appellant. With the result that the orders of Additional Settlement Commissioner, dated 29th September, 1966 and the order of the Settlement Commissioner, dated 28th December, 1966, are declared to have been passed without lawful authority and to be of no legal effect. The appeal is allowed with costs.