1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted in five separate petitions to examine the true meaning, scope and applicability of second proviso to para. 24 of Supplementary Scheme 2. These appeals arise out of a judgment of P Division Bench of the Lahore High Court, dated 14-3-1974 disposing of the following matters before it: -
(i) W.P. 671-R of 1965 Iftikhar Hussain v. Mian Irshad A.I etc.
(ii) W.P. 667-R of 1969 Mian Irshad A.I v. Government of Pakistan etc.
(iii) Settlement Revision No. 214 of 1969 Nawabzada Wilayat A.I Khan v. Additional Settlement and Rehabilitation Commissioner etc.
(iv) Settlement Revision No. 223 of 1969 Iftikhar Hussain v. Capt. Mahabat Khan, Deputy Commissioner/ Additional Settlement Commissioner and others: Mian Irshad A.I, a respondent in these appeals, migrated from Batala, District Gurdaspur. On 1-10- 1951 Urban agricultural land measuring 49 Kanals 10 Marlas was temporarily allotted to him, in an urban area which later came to be known as Gujranwala Cantonment. He filed a claim in Schedule IV for land abandoned by him. It was verified on 25-4-1960 after hearing him by Claims Officer, Central Record Office, Lahore. The operative part of this order forms the genesis of the controversy arising subsequently and is reproduced hereunder:- , "The record received from India was seen and the following land is shown to exist in the name of the claimant, Irshad A.I son of Ata Muhammad case Sheikh within the Urban area of Mauza Batala Sharqi H . B. No. 211 Tehsil Batala District Gurdaspur.
2. Nature of.ChahiBaraniGhairTotal rightsmumkin Khata No. Malikiat Bilarehn Zir Qabza.
3. Rehn9.140.810.2 (Ten Kanals and two Marlas only)
4. The claim is verified accordingly.
5. During the consideration of the case it has been represented that the entire area viz. 50 Kanals claimed was situated within the urban area of Batala East. The record has been scrutinized thoroughly. The village map accompanying the Jamabandi received from India clearly indicates that only the land verified alone is situated within the Municipal limits and the rest of the area claimed though adjacent is outside the Municipal limits. There is no doubt that according to the registered document in possession of the claimant the entire area is shown to exist in Qasba Batala Chah Fazal Wala and the area now shown as rural was as valuable as other adjacent area being verified as urban but according to instruction the rural shown area cannot be treated as urban. The claimant can if he so desires seek permission from competent authorities to claim the rest of the land on rural side."
6. Mian Irshad A.I appealed against this order but it was dismissed on 12-5-1960 by Deputy Claims Commissioner. A revision was then filed by him which too was dismissed on 2-6-1960. He then filed an application for the correction of the entries in the Jamabandis received from India without any success. In the meantime on 20-2-1960 second proviso was added to para. 24 of Supplementary Scheme No. 2 empowering the Central Government to 'permit any person who is in continuous possession of land or garden in the urban area for not less than 5 years to retain an area not exceeding land of the value of 2,000 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'. Mian Irshad A.I applied on 13-12-1960 seeking the benefit of this dispensation, and the matter remained un-disposed of.
7. On 4-9-1963 an area measuring 28 Kanals 14 Marlas was resumed from the allotment of Mian Irshad A.I and allotted to Nawabzada Wilayat A.I Khan, the appellant, against his verified urban claim. On the same date another piece of land measuring 10 Kanals 14 Marlas was taken away from the allotment of Mr. Irshad A.I and settled against the verified urban claim of Ghulam Hussain, whose successors-in---interest are now the appellants. In this manner Mian Irshad A.I was left with only 10 Kanals 7 Marlas corresponding to his verified urban entitlement of 10 Kanals 2 Marlas equal to 92 PIU. Mian Irshad A.I filed two appeals against these allotment which were dismissed but his two revisions against the dismissal of these appeals succeeded on 2-4-1965 only on the ground that Central Government had by orders, dated 15-2-1965 allowed Mian Irshad A.I to retain the entire land under his temporary urban allotment against his verified claim, urban and rural combined.
8. This was given effect on by confirming the entire area of 45 Kanals 15 Marlas in favour of Mian Irshad A.I. Nawabzada Wilayat A.I Khan and heirs of Ghulam Hussain filed separate appeals against it and both these appeals were accepted on 24-7-1967 on the sole ground that the Central Government had revoked on 29-6-1965 its earlier order, dated 15-2-1965 which accounted for the acceptance of the two Settlement Revisions of Mian Irshad A.I. Again Mian Irshad A.I filed two revision petitions but these were this time dismissed on 2-6-1969. Mian Irshad A.I thereafter filed a Constitutional petition (W.P. 667/69).
9. The heirs of Ghulam Hussain had already filed a Constitutional petition (W.P. 671-11/65) challenging the decision of the Central Government contained in its letters dated 15-2-65 and 2-4-65 which were subsequently revoked.
10. Apart from the proceedings already described there were taken proceedings under sections 10 and 11 of the Displaced (Land Settlement) Act (hereinafter referred to as the Act) against the allotments made in favour of Nawabzada Wilayat A.I Khan and in favour of Ghulam Hussain. On the basis of these proceedings too their allotments were cancelled by the delegate exercising the powers of the Chief Settlement Commissioner. Hence Nawabzada Wilayat A.I Khan filed Settlement Revision No. 214-R/69 and Ghulam Hussain filed Settlement Revision No. 223/69 challenging the resumption of their allotments under section 10/11 of the Act.
11. These four matters, namely, the two Settlement revision petitions and the two Constitutional petitions were heard together by the High Court and disposed of by a consolidated judgment now impugned before us.
12. Mian Irshad A.I, the respondent in his Constitutional petition (W.P. 667/69) disclosed that on the enforcement of second proviso to para. 24 he moved on 13-12-1960 the Minister for Rehabilitation and Works in order to secure its benefit. He repeated the request in writing before Secretary, Ministry of Rehabilitation and Works and all his applications were marked to Chief Settlement Commissioner who asked for a report from Deputy Commissioner on similar cases. The Assistant Settlement Commissioner recommended the request made by him and the recommendations were duly received by the Chief Settlement Commissioner. In the meantime the policy of the Central Government in the matter changed. Nevertheless, on the representation of Mian Irshad A.I the Central Government on 15-2-1965 allowed him to retain the entire allotment against his combined rural and urban verified claim. Subsequently on 29-6-1965 the Central Government withdrew this order without notice to him. The legal grounds taken up by him were that the Central Government was at all stages possessed of the powers to grant the concession and this it could do on the strength of section 6 of the General Clauses Act notwithstanding the revocation of second proviso to para. 24. The benefit had been properly conferred and the order having been acted upon it could not be unilaterally revoked, more so at the behest of Nawabzada Wilayat A.I Khan who was left with no locus standi to move the Central Government in the matter. He also alleged that the impugned action of the Central Government was discriminatory as many others similarly affected had been accommodated by the Central Government.
13. The learned Judges after noting the main features of the arguments addressed by the parties recorded the findings that:- "(i) The right for the enforcement whereof the Court will come to the .Rescue of the aggrieved person, is not in the strict juristic sense 'and as' the assertion of the right had been accepted it became a complete and accrued right."
(ii) In view of the law laid down in Montgomery Flour & General Mills Ltd. v. Director, Food Purchases PLD 1957 Lah. 914 and Ikram Bus Service v. Board of Revenue PLD 1963 SC 564 Mian Irshad A.I having moved the Central Government for the grant of benefit which was not granted within time for no fault of his was not precluded from pressing his claim for it nor was the Central Government denuded of the power to deal with his pending application fairly and justly.
(iii) The Central Government being empowered 'to amend, modify, vary or cancel the schemes so recommended by the Chief Settlement Commissioner, it is not denuded of the power to extend the benefit to a person whose application has remained lying with the Chief Settlement Commissioner for no fault of his.
(iv) There was no reason why the principles of equity enacted in section 6 of the General Clauses Act should not be 'extended to cases of hardship when the policy of the Government is changed and the benefit, which could definitely be extended to a particular citizen, has not been given to him because of no remiss on his part'.
(v) The Chief Settlement Commissioner in recommending to the Central Government the grant of benefit under second proviso to para. 24 performs a quasi-judicial function and his failure to deal with the matter expeditiously and diligently attracts the maxim actus curiae neminem gravabit' and the Central Government could lawfully apply it to the case of Mian Irshad.
(vi) The orders passed by the Central Government on 15-2-1965 and 2-4-1965 'were perfectly with lawful authority'. That being so they could not be revoked'.
14. On these findings the following operative order dealing with all the matters was passed:- "The result, therefore, is that the orders, dated the 15th of February, 1965 and the 2nd of April, 1965, issued by the Central Government and implemented by the Settlement Commissioner and the Deputy Settlement Commissioner stand and hold the field. The subsequent orders of 29th of June, 1965 of withdrawal are illegal and have been issued without lawful authority and are hereby quashed. The orders of 24th July, 1967 and 2nd of June, 1969, passed in favour of Nawabzada Wilayat A.I Khan and Ghulam Hussain also disappear as the land was not available for allotment at the relevant time. The writ petition succeeds and is allowed. In view of our findings above, we are not called upon to deal with in detail, the two Settlement Revisions, which have otherwise become infructuous."
15. The successors-in-interests of Ghulam Hussain are appellants in three appeals, one (C.A. 212/76) against the dismissal of their own constitutional petition (W.P. 671-R of 1965) the other C.A. 214/76) against the acceptance of the constitutional petition (W . P . 667/ R of 1969) filed by Mian Irshad A.I, the third (C.A. 213/76) against the disposal of their Settlement Revision (S.R. 223-R/69) as infructuous. There are two appeals by Nawabzada Willayat A.I Khan, one (C.A. 215/76) against the acceptance of the Constitutional petition (W.P. 671/R of 1965) filed by Mian Irshad A.I, the second (C.A. 216/76) against the disposal of his Settlement Revision (S.R. 214/69) as infructuous.
16. The crucial question to the answer of which the fate of all these appeals depends is whether on 15- 2-1965 and 2-4-1965 the Central Government was legally possessed of the power to pass the orders which it did, in terms of second proviso to para. 24 of Supplementary Scheme No.2. The next question is if it was possessed of such a power and had exercised it in the manner it did, was it left with the power to revoke it in the manner that was adopted. The High Court in the impugned judgment upheld the power of the Central Government to pass such orders on the ground that it always possessed under section 14 the power to 'amend, modify, vary or cancel the schemes so recommended by the Chief Settlement Commissioner'. It was not, therefore, 'denuded of the power to extend the benefit to a person whose application had remained lying with the Chief Settlement Commissioner for no fault of his'. The equitable principles of section 6 of the General Clauses Act and the benefit of maxim actus curaie neminem gravabit was also extended in protecting those orders.
17. A review of the instructions and the statutory instruments in the field gives a definite impression that second proviso to para. 24 of Supplementary Scheme No. 2 still remains intact as a part of the Scheme, formally unrepealed and undeleted. Supplementary Scheme No.2 prescribed for allotment of agricultural land to claimants on the basis of claims verified in Schedule IV to the Registration of Claims (Displaced Persons) Act, 1956. A claimant was defined in the Scheme as 'any person whose claim in Schedule V to the Registration of Claims (Displaced Persons) Act, 1956, has been duly verified in accordance with the provisions of that Act, and includes a person who abandoned agricultural land in the rural Bastis of Nau, Shah Quli, Mitha Sahib, Baba Khel Pirdad Khan and the estates of Garha Wehndan, Dokoha Sayedan surrounding Jullundur City and estates situated in the Suburban Assessm ent Circle of Tehsil and District Amritsar, and whose claim was registered and verified under any of the following Acts ...." Para. 24 of Supplementary Scheme No. 2 before its amendment read as hereunder.
18. "The allotments of urban land, if any, held by claimant under the Temporary Urban Scheme shall be adjusted subject to entitlement. If a claimant is entitled to an allotment of land in excess of the area held by him under the Temporary Urban Scheme he shall, subject to the general limitation imposed under clause 7 above, be entitled to get the balance out of any other urban land declared by the Rehabilitation Commissioner as being available for the purpose or, if he so desires, any rural land available for allotment under the Scheme: Provided that in case there are more applicants for allotment of land in an urban area than can be settled, preference will be given to such applicants who have already been allotted agricultural land within the same district or who own property in the same urban area or have been given property in that area under the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
19. On 20-2-1960, the following correction slip was issued:- "Supplementary Scheme No. 2 to the West Pakistan Rehabilitation Settlement Scheme.
20. Correction Slip No. 88-2, dated the 20th February, 1960.
21. Insert the following as second proviso to clause 24 of the Supplementary Scheme No.2: 'Provided further that the Central Government may permit any person who is in continuous possession of land or garden in the urban area for not less than 5 years to retain an area not exceeding land of the value of 2,000 produce index units in that urban 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."
22. The Chief Settlement Commissioner on 19-5-1960 issued a circular to all his subordinates to collect the necessary data in order to enable the Central Government to exercise meaningfully the power conferred on it by the second proviso to para. 24 of the Supplementary Scheme No.2. The circular is reproduced hereunder:- "Attention is invited to the second proviso to clause 24 of the Supplementary Scheme No. 2 as inserted by correction slip No. 1-SS2, dated 20th February, 1960 circulated with this office Endorsement No. 975-60/1-R(P) of even date, wherein it has been provided 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 2,000 produce index units in that urban area against his verified claim for urban or rural land by suitable adjustment. In order to take stock of the over all position in this respect it is necessary to collect full particulars of all such cases. You are, therefore. Requested to please report all the cases of the categories mentioned above in the enclosed pro forma with your recommendation for further action.
23. The required information should please be supplied by 15June, 1960, after the expiry of which information in respect your district would be considered as nil."
24. The Settlement and Rehabilitation Commissioner circulated to all his subordinates on 8-12-1960 a circular of the Central Government, dated 30th November, 1960 to the following effect:- SubjectAllotment of urban agricultural land against verified claim for Rural Agricultural land.
25. Reference:In continuation of this office circular memo. No. 456-60/1926-R(P), dated the 19th May, 1960.
26. A copy of Ministry of Rehabilitation and Works' letter No. D.2126/60-511, dated the 30th November, 1960 is enclosed herewith.
(2) You are requested not to disturb the allotments of this category of claimants cited as subject till a final decision regarding adjustment of urban agricultural land against rural claims, has been taken by the Central Government."th On 1-5-1963, the Central Government informed the Chief Settlement and Rehabilitation Commissioner in the following words with regard to its powers under second proviso to para. 24 of the Scheme:- Subject: Allotment of urban agricultural land against claim for rural agricultural land.
27. Sir, With reference to your letter No. 913-61/4018-RL, dated the 30th May, 1962, I am directed to say that the issues raised therein have been carefully considered. The Central Government has been pleased to direct, as a matter of general policy, that the temporary allottees of urban land of the type in question should be permitted to retain against their verified entitlement for rural land or for urban and rural land combined, an area not exceeding the area held by them in temporary allotment, or the maximum scale of allotment fixed by the Chief Settlement and Rehabilitation Commissioner under paragraph 8 of the Scheme for first round of allotments in the urban area in question, whichever is less. Allotments already made in excess of this scale, with the permission of the Central Government shall not however, be disturbed."
28. The Chief Settlement and Rehabilitation Commissioner issued the following circular dated 26-6- 1963 to all his subordinates with a view to ensure the implementation of the decision of the Central Government:- Subject:Allotment of urban agricultural land held by claimants with the verified rural agricultural land claims.
29. ReferenceContinuation of this office circular memorandum No. 5057-60/4073-R(L), dated the 8th December, 1960.
30. Mr. M.H. Sufi, C.S.P., Chief Settlement and Rehabilitation Commissioner, West Pakistan.
31. Memorandum: On 7-2-1964, the Chief Settlement and Rehabilitation Commissioner issued the following circular to his subordinates:- Subject:Allotment of urban agricultural land against combined claim for urban and rural land instructions under Supplementary Scheme No.2.
32. Reference:This office circular Memo. No. 2586-63/4268-R(L), dated the 26th June, 1963.
33. Mr. B.A. Kureshi C.S.P., Chief Settlement and Rehabilitation Commissioner, West Pakistan.
34. Memorandum On 1-7-1964, the Deputy Commissioner, Gujranwala was specifically and others were generally informed from the office of the Chief Settlement and Rehabilitation Commissioner to the following effect:- Subject:Allotment of urban agricultural land.
35. Reference:In continuation of this office circular memo. No.2586-63/4248-R(L), dated the 26th June, 1963.
36. Mr. B.A. Kureshi, C . S . P. , Chief Settlement and Rehabilitation Commissioner, West Pakistan.
37. The Central Government has further decided that the urban agricultural land held for not less than 5 years by temporary allottees having verified rural land claims but allotted to the claimants under the Supplementary Scheme No. 2 on or prior to 6th December, 1960 (being the date of general stay order) should not be withdrawn from the claimants referred to above.
38. The concession extended to rural area claimants for allotment of urban land against rural claims as contemplated by this office circular memorandum under reference, can be availed of by these rural area claimants only whose temporary urban area allotments were intact on or before the 8th December, 1960 and had not been disposed of or allotted to any other claimant under Supplementary Scheme No.2."
39. The office of the Chief Settlement and Rehabilitation Commissioner issued another circular on 15- 2-1965 in the following words with reference to the earlier order communicated on 7-2-1964 and already reproduced:- Subject: Allotment of urban agricultural land against combined claims for urban and rural land.
40. Instructions under Supplementary Scheme No.2.
41. Reference:In continuation of this office circular memorandum No. 6467-63 /793-R(L), dated the 7th February, 1964.
42. Memorandum It is clarified that in case where a claimant has an urban as well as a rural claim and is holding temporary allotment in an urban area, such a claimant is entitle to be treated as purely urban claimant for purpose of the settlement of his urban claim under Supplementary Scheme No. 2 and as far as rural area claim is concerned, he should be entitled to obtain allotment against this claim in the rural area."
43. It was in this background that on the 2nd of April, 1965, the office of the Chief Settlement and Rehabilitation Commissioner communicated in the following words the orders of the Central Government to the Deputy Commissioner, Gujranwala:- Subject: Representation of Mian Irshad A.I in the matter of confirmation of urban area measuring 49 Kanals and 10 Marlas in Gujranwala against his urban/ rural verified claim.
44. Memorandum: On the representation of Mian Irshad A.I to the, Central Government on the subject cited above, his case has been further examined and the Central Government has observed that his application for permanent retention of his temporarily allotted urban area in Gujranwala under the original provision of Supplementary Scheme No. 2 (para. 24 proviso 2) was not decided with the result that on account of subsequent amendment, his right to retain the urban land his combined urban and rural claim was lost due to an omission on the part of the Settlement Organization for no fault of Mian Irshad A.I himself. The Central Government has further observed that Mian Irshad A.I should not be penalised but allowed to retain his entire temporary urban allotment against his rural and urban claim combined subject to entitlement.
45. Finally on 29-6-l965, the Chief Settlement and Rehabilitation Commissioner passed the following orders:- SubjectAllotment of urban land.
46. Reference:Correspondence resting with this office memorandum No. 1685-65/1426-R(L), dated the 2nd April, 1965.
47. Memorandum: On the representation of Nawabzada Wilayat A.I Khan, who had been allotted an area of 28 Kanals 14 Marlas of land out of the area previously held as temporary allotment by Mian Irshad A.I, the Central Government has reconsidered the case and decided as under:-
(a) The advice contained in para. 2 of this Ministry's letter No.F.3(I)/62-511, dated 13th February, 1965 (copy enclosed) is withdrawn.
(b) The matter should be allowed to be decided by the Settlement Authorities in accordance with law and the rules.
48. Supplementary Scheme No.2 was framed under section 6(1) of the Pakistan Rehabilitation Act which provided as hereunder:- "6. Right to pool and allot property.-- (1) The Central Government may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified, and to allot the same to persons resident in Pakistan, whether refugees or not, and upon such order being made, the Commissioner shall have all such powers, not inconsistent with the provisions of this Act, as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid.
49. (2)
50. "Scheme means a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) or section 7 of the Baluchistan (Rehabilitation)
51. Regulation, 1950 (II of 1950)."
52. Section 14 subsection (1) as it stood during the relevant period (1960-65) provided as follows:- "Subject to the provisions of this Act rind the rules made there under the Chief Settlement Commissioner or any other officer specially empowered by the Central Government in this behalf, shall prepare one or more schemes for allotment to Displaced Persons against their verified claims of land in the Compensation Pools constituted under section 5."
53. Section 15, subsection (3) of the Act provided as hereunder:- "A displaced person to whom any land has been allotted by a Rehabilitation authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government.
54. From these provisions, it is clear that under the Rehabilitation Act the Central Government could, by order, authorize the Rehabilitation Commissioner to allot the pooled evacuee property to persons resident in Pakistan. The disposal under the Act could take place only through the Scheme and such disposal could lead to permanent settlement of allottees in terms of section 15. The power conferred on the Central Government by second proviso on 20-2-1960 was under the Act (section 14). The Central Government got discretionary power to 'permit any person who is in continuous possession of land or garden in the urban area for not less than 5 years to retain an area not exceeding land of the value of 2,000 produce index units in that urban 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".
55. What the Central Government or its authorised officer, the Chief Settlement Commissioner were achieving by these policy circulars is well understood in Administrative Law (Kenneth Culp Davis) and expressed in the following words:- "When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power."
56. (p. 94)
57. "When an officer with discretionary power states how he will exercise his power in given circumstances, he may be in some degree making law, but the degree to which the statement is legally binding on him or on affected parties is far from simple. That may depend on such troublesome distinctions as the one between interpretative and legislative rules, the one between rules and interpretations, and the one between advisory opinions and declaratory orders." (p. 144)
58. "------ the non-delegation doctrine is an inadequate protection against arbitrary exercise of discretionary power, that the hope for better protection lies not in better statutory standards but in administrative standards and safeguards, that the best instrument for providing administrative standards is the rule-making power, and that the Courts should require clarification of standard through rules.
59. The requirement should gradually grow into a requirement judicially enforced, that administrators must strive to do as much as they reasonably can do to develop and to make known the needed confinements of discretionary power through standards, principles, and rules." (p. 147)
60. These policy decisions of the Central Government positively indicate that at the initial stages the attempt was to enforce an.: implement second proviso's beneficial object in a generalized manner uniformally thereafter there was an attempt to revert back to its pristine form of individualized action, but in the process neither expressly nor impliedly was the second proviso repealed or deleted. The order, dated 2-4-1965 fully bears out the existence and availability of such a proviso.
61. So neither the principle of actus curaie neminem gravabit nor section 6 of the General Clauses Act are required to be invoked for justifying the order of the Central Government, dates:, 2-4-1965.
62. Second proviso to para. 24 provides the fullest justification for it. It is not the case of anyone that the jurisdictional requirements needed for the exercise of discretion under second proviso were lacking in the case of the respondent.
63. There is another way of looking at the entire controversy raised in these appeals. Sub-para. (2) of para. 23, Part II, Chapter I of West Pakistan Settlement and Rehabilitation Scheme protected the rural claimants in possession of urban landed property. On the 27th of April, 1959, the Chief Settlement and Rehabilitation Commissioner issued a circular to all the Deputy Commissioners in the following words: - "In certain cases, rural claimant for agricultural land on temporary basis. They have been protected from disturbances temporarily vide para. 23 (ii) Part II, Chapter I of the West Pakistan Rehabilitation (Settlement Scheme). A stage has now reached when things should not remain in suspense any longer and the Chief Settlement Commissioner has accordingly decided that all claimants for rural agricultural holding temporary allotment in urban areas should be immediately settled on the alternative rural land. The process of readjustment must be completed by the 15th of May, 1959 and the allottees concerned should please be warned immediately that if they do no secure the alternative rural allotment by the prescribed date, the land in their possession in the urban area will be withdrawn and used for the settlement of claimants for urban agricultural land.
(2) Para. 23(11) of the West Pakistan Rehabilitation Settlement Scheme should please be considered to have been cancelled. Necessary correction slip will be issued shortly."
64. On 20-2-1960 second proviso to para. 24 of Supplementary Scheme No. 2 was added. The alleged resumption of 23 Kanals of land out of the urban allotment of respondent No.1 on 18-5-1960 is seriously disputed and Ghulam Hussain having submitted to its re-allotment on 4-9 ;1963 when another larger portion was allotted to Nawabzada Wilayat A.I Khan cannot take back his case of allotment earlier to 4-9-1963. On 8-12-1960, the Central Government itself issued a stay order protecting the possession of allottees like the respondent No.1 till a final decision was taken. The memo, dated 1-7-1964 (reproduced) continued this position. Therefore, the resumption that was ordered on 4-9-1963 of two parcels of land measuring 28 Kanals and 14 Malras and 10 Kanals and 14 Marlas from the allotment of respondent No. 1 and their allotment to Nawabzada Wilayat A.I Khan and Ghulam Hussain was clearly in violation of the orders of the Central Government and could not clothe Wilayat A.I Khan or Ghulam Hussain with any locus standi whatsoever.
65. The revised order of the Central Government, dated 29-6-1965 itself shows that it was passed at the instance of an adversary of respondent No.1, namely Nawabzada Wilayat A.I Khan. His plea was accepted by the Central Government unilaterally, without notice or hearing to the affected person, Mian Irshad A.I. Even if a power of recession of the earlier decision was available, it could not be exercises in adversary proceeding against a person without affording him an opportunity of hearing. The discretion having been once exercised by the Central Government could be revoked in such proceedings only on good and valid grounds. It was not a discretion available at large to act in any manner that the Central Government pleased. It is needless to refer here to a large number of cases but that principle is well-accepted will appear from the following recital in H.W.R.
66. Wade's Administrative Law, fourth edition:- "Inconsistency of conduct may also amount to an abuse of discretion. The Court of Appeal has held that a public authority has a duty to act with fairness and consistency in its dealings with the public, and that if it makes inconsistent decisions unfairly or unjustly it misuses its powers."
67. "The common theme of all the passages quoted is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered Governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act."
68. This order of revocation suffers from too many infirmities. Firstly, it does not disclose any reason for it. None plausible is discernable either from the record or from the stand taken by the Central Government. Secondly, locus ponetentia was not available to the Central Government because the earlier order had been acted upon, the allotment of Mian Irshad A.I had been restored and his revision petitions had succeeded on 2-4-1965. Thirdly, this order was passed at the instance of an apparently aggrieved party, namely, Nawabzada Wilayat A.I Khan, in proceedings which were adversary it nature, but it was passed without notice or hearing to the affected party namely, Mian Irshad A.I. Fourthly, the party at whose instance and for whose benefit this order was passed was in breach of Central Government's order of stay and but for such a breach he could no have a locus standi to successfully put forward any claim in respect of this land.
69. Our conclusions, therefore, are that the second proviso to para. 24 of Supplementary Scheme No. 2 was never formally or by necessary implication repealed. It was in exercise of the powers possessed under it that the Central Government at first extended its benefit to all those who qualified under it. It was in exercise of the same powers that subsequently such generalized benefit of it was discontinued, preserving nevertheless the individualized action authorized under second proviso. The orders of the Central Government passed on 15-2-1965 and repeated on 2-4-1965 were competently passed in exercise of powers under this proviso. Its, revocation by order, dated 29-6-1965 was without lawful authority and of no legal effect. The result is that the judgment of the High Court allowing the constitutional petition (W.P. No. 667/69) of Mian Irshad A.I, respondent, and dismissing those of Ghulam Hussain (W.P. No. 671/R-65) and Nawabzada Wilayat A.I Khan (W.P. No. 667/69) are upheld dismissing thereby C.A. No. 212/76 and C.A. No. 215/76.
70. As regards the order of disposal of tyro Settlement Revisions (S.R. No. 223/R-69 and S.R. No. 214/69) as infruetuous, the High Court's order cannot be sustained because in the first, the area in dispute was about thirteen acres, located in two other estates also, while in the second the area in dispute was sixty-one Kanals 12 Marlas. Their allotments in their entirety were held to be bogus and fraudulent. Even if the area allotted to Mian Irshad A.I was held to be not available for allotment, their status as genuine temporary allottees with unsettled excess units required determination.
71. Hence appeals arising out of these revisions (C.A. No. 213/76 and C.A. No. 216/76) are accepted, that part of the judgment of the High Court, which holds them to be infructuous is set aside and these are remanded to the High Court for disposal in accordance with law. The parties are left to bear their own costs.