WALI MUHAMMAD AND Other vs SAKHI MUHAMMAD AND Other

1. MUHAMMAD GUL, J.-This appeal by special leave is from the order of a Letters Patent Bench of the former High Court of West Pakistan, dated 1-3-1966, arming the judgment of a learned Single Judge of that High Court, by which he accepted a writ petition filed by the respondents herein and set aside the order of the Additional Settlement Commissioner dated 9-3-1961, restoring that of the Assistant Rehabilitation Commissioner dated 21-11-1958.

2. One Khaira, a right-holder and predecessor-in-interest of the respondents herein, filed his claim for verification in respect of 85 bighas of land abandoned by him, Either owing to a mistake or by a manoeuvre which is not quite clear, claim was verified for 369 bighas, 15 biswas, equivalent produce index units, far in excess of his genuine entitlement. He was provisionally allotted land in Chak No. 435/EB, Tehsil Vehari, District Multan, on that basis. On a re-verification, his claim was subsequently reduced to 948 units which was further reduced to 691 units on account of change in the produce index units.

3. One Abdul Aziz, who apparently claimed as "informer", the excess land allotted to Khaira, after his death in the meantime, filed a revision petition against his successors-in-interest, the respondents herein, before the Additional Rehabilitation Commissioner. This revision was disposed of by Mr. Muhammad Shafi Khan, by order dated 31-7-1957, which-for the material purpose reads "The learned D. R. C. Has allowed the respondents to retain area equal to 691 units on account of change in the produce index. It has been urged that no one in this Chak has been given area on account of beshi units. This area would, therefore, either go to the sitting allottees or to the petitioner.

4. I understand that there are several sitting allottees whose claims have not yet been satisfied. This area should therefore be allotted to them proportionately. The order of the lower Court is modified to this extent."

5. This was followed by an application by the respondents for the review of the above order which the same Additional Rehabilitation Commissioner, decided by the following order dated 2-4-1958 "I have heard the counsel for the applicants and have also gone through the order under review. It does not contain any error or omission apparent upon the face of the record to be supplied. The application for review fails and is rejected.

6. It is stated that the claims of the sitting allottees have been satisfied and, therefore, the area in dispute should be given to Sakhi Muhammad and others, against their beshi units for which they should approach the D. R. C. (L)."

7. The above order was given effect to by the Assistant Rehabilitation Commissioner (Land) on 21-11- 1958 against which the appellants herein, who were sitting allottees in the village filed an appeal which was dismissed as time-barred by the Deputy Rehabilitation Commissioner (Land). The appellants herein then filed a revision which was heard by another Additional Rehabilitation Commissioner (Khan Saeed-ud-Din Khan) who vide order dated 9-3-1961 accepted the same and directed that the appellants herein, who were sitting allottees in the village with their units still pending satisfaction, should be allotted beshi land cancelled from the names of the respondents herein.

8. Aggrieved by the above order, the respondents moved writ petition in the High Court. This was accepted by a learned Single Judge in the High Court, who took the view that in essence Khan Saeed-ud-Din Khan by his order dated 9-3-1961 reviewed the order of his predecessor, Mr. Muhammad Shaft Khan, which the former was not competent to do, because both the officers held the same rank. The contention on behalf of the appellants herein (who were the respondents before the learned Single Judge) that Mr. Muhammad Shaft Khan by his order dated 2-4-1958, in effect reviewed his earlier order dated 31-7-1957 though ostensibly holding that there being no arithmetical or clerical error apparent on the record, he could not review his order, was repelled by the learned Sine Judge. A Letters Patent Appeal by the appellants herein, also failed.

9. Leave to appeal was granted to consider-

(i) whether the findings of the High Court that Mr. Muhammad Shafi Khan, the Additional Rehabilitation Commissioner, while disposing of the review petition by order dated 2-4-1958, had not given any direction for the allotment of land to the respondents herein ; and

(ii) that in any event the said Additional Rehabilitation Commissioner had no jurisdiction to give the above direction in a review petition, more so when the claims of the sitting allottees had not been satisfied.

10. Learned counsel for the appellants submitted that after the initial order made by Mr. Muhammad Shall Khan, whereby he gave a direction in unequivocal terms that beshi land allotted to the respondents should be allotted to the sitting allottees whose verified claim was pending satisfaction in the village, he acted without jurisdiction to have modified that order and issued fresh direction for the re-allotment of the land to the respondents on the erroneous assumption that there was no sitting allottee in the village with the units pending satisfaction. It was also stressed that after the initial order by Mr. Muhammad Shafi Khan on 31-7-1957, out of the land cancelled from the names of the respondents herein, 12 kanals were proposed to the appellants in satisfaction of their pending units. This area was however, not confirmed, apparently because of the subsequent order dated 2-4-1958 by Mr. Muhammad Shafi Khan, which ran counter to his earlier order dated 31-7-1957 and both in substance and effect was a review of that order which in law he was not competent to make. There is sub--stance in the contention of learned counsel for the appellants. It is not controverted that on 2-4-1958, when Mr. Muhammad Shafi Khan reviewed his earlier direction, the appellants who were sitting allottees had their units still pending satisfaction in the village. Not only that: they were actually proposed some area out of the beshi land, which however was not confirmed because of the order dated 2-4-1958.

11. We also find force in the further contention of the appellants' learned counsel that the learned Single Judge was not right to read the order of Khan Saeed-ud-Din Khan dated 9-3-1961, which was impugned in the writ petition as a review order of the second order of Mr. Muhammad Shafi Khan. The learned Single Judge entirely overlooked the fact that the appellants herein had filed an appeal against the order of A. R. C. (L) dated 21-11-1958 for his refusal to confirm 12 kanals of land to the appellants. The appeal was dismissed by the D. R. C. As time-barred. It was against this order that the appellants took revision petition to the Additional Rehabilitation Commissioner which was heard by Khan Saeed-ud-Din Khan. Accordingly, we have no doubt in our mind that the findings of the learned Single Judge as also of the learned Judges of the Letters Patent Bench proceeded on wrong premises.

12. There is yet another important aspect of the matter which in our opinion was also overlooked by the learned Single Judge. It was not controverted before him, that the respondents herein were allotted land which was far in excess of their due entitlement, though there is no clear finding how this happened. The fact however, remained that the respondents wanted to retain the beshi land to satisfy, what to say the least, was a spurious claim. On the other hand, the appellants herein were the sitting allottees with genuine verified claim pending satisfaction in the village, which according to the first order of Mr. Muhammad Shafi Khan had to be given priority. By setting aside the order dated 9-3-1961, by Mr. Saeed--ud-Din Khan, the learned Single Judge exercised writ jurisdiction of the High Court to preserve the allotment in favour of the respondents herein resulting from their spurious claim entirely ignoring the fact that the equities leaned heavily in favour of the appellants herein. Grant of relief in writ jurisdiction being entirely discretionary with the High Court, the learned Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any A technical reason, the order of Khan Saeed-ud-Din Khan was not strictly found justifiable. It is well settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotton gains.

13. We accordingly accept the appeal, re-call the writ issued by the High Court, and restore the order of Khan Saeed-ud-Din Khan dated 9-3-1961. However, we make no order as to costs.