NAWAZA vs THE ADDITIONAL SETTLEMENT AND REHABILITATION

1. M. R. KHAN, J.-----This appeal, by special leave, is from the judgment of a Letters Patent Bench of the High Court of West Pakistan at Lahore, arming the decision of a learned Single Judge of that Court in a writ petition, whereby the order of the Assistant Rehabilitation Commissioner of Gujrat, dated the 29th May 1960, confirming certain agricultural lands in village Majra, District Gujrat, in favour of the appellant was quashed.

2. The dispute in respect of two said lands arose in the following circumstances:- The appellant Nawaza and the respondents' predecessor-in---interest Faiz Muhammad were displaced persons. The appellant claimed to have abandoned in Patiala State, India, his self- acquired 115 Bighas of lands. Besides, he claimed to have owned 46 bighas and 4 biswas of ancestral lands in that State. With regard to both the self-acquired and ancestral lands, he submitted Claim No. 2126 which was duly verifed on the 26th July 1950. In lieu of the said 115 bighas of lands, he was allotted lands in village Sarojada in the District of Gujrat on the 27th August 1953.

3. His claim in respect of the ancestral lands remained unsatisfied. Accordingly, he made an application on the 21st March 1-960, for the transfer of his said unsatisfied claim from village Sarojada to village Majra in the same district. On the basis of that application for transfer, he was given some lands in village Majra on the 13th May 1960 and the allotment was confirmed on the 29th May 1960 by the Assistant Rehabilitation Commissioner, Gujrat. The dispute relates to the lands so confirmed.

4. Faiz Muhammad, the predecessor-in-interest of the respondents had filed claims for the verification of his agricultural lands abandoned by him in Patiala, India. His Claim No. 245 was verified for 1814 produce index units out of which 1339 produce index units were confirmed to him in Chak Mansoora, District Gujrat on the 4th March 1953, and the left-over units were transferred to village Kunjah, District Gujrat where these remained unsatisfied. Faiz Muhammad made an application on the 2nd January 1960 for the transfer of his claim in respect of the left-over units to village Majra. This application remained undisposed of. Meanwhile, the appellant Nawaza secured allotment of the disputed lands and obtained its confirmation on the 29th May 1960. Having come to know of this allotment in favour of the appellant, Faiz Muhammad preferred an appeal before the Deputy Rehabilitation Commissioner, Gujrat, but the appeal was dismissed mainly on the ground that Faiz Muhammad's claim in respect of his left-over units was not transferred to village Majra and that the disputed lands were no more available for transfer, the same having been already confirmed in favour of Nawaza, the appellant herein. Faiz Muhammad then went on revision against the order dismissing his appeal. The revisional application was also dismissed on the very ground on which the appeal had been dismissed. Thereafter, Faiz Muhammad moved a writ petition in the High Court of West Pakistan, Lahore, calling in question the legality of the order, dated the 29th May 1960, confirming the disputed lands in favour of the appellant.

5. It was alleged in the writ petition that the appellant's verified claim was fully satisfied by the allotment of lands in village Sarojada; that he had no surplus units to be transferred from Sarojada; that the transfer of his alleged unsatisfied claim to village Majra was collusive and that the allotment of the disputed lands was obtained by him by fraud, forgery and misrepresentation. The learned Single Judge who heard the writ petition called for the relevant record from the Central Record Room in order to verify the real state of things and to satisfy himself about the respective claims of the parties and their entitlement to the lands in dispute. Having examined the record, the learned Judge arrived at the following findings of facts:-

(i) That 115 bighas of lands claimed by the appellant Nawaza belonged to a different person named Nawaza and these lands were wrongly verified in the appellant's favour.

(ii) That the appellant was entitled only to 46 bighas and 4 bistvas of lands and no more.

(iii) That before the allotment of the disputed lands, the appellant had already obtained an allotment in excess of his entitlement.

(iv) That the transfer of the appellant's claim in respect of his alleged surplus units from Sarojada to village Majra, if any, was, immaterial.

6. Having arrived at these findings of facts, the learned Single Judge concluded:- "In view of my above finding in regard to the dubious nature of the entitlement of respondent No. 1 to the land in dispute coupled with the absence of a valid order of hi; claim, I have no hesitation in holding that the Assistant Rehabilitation Commissioner's order, dated the 29th of May 1960, confirming allotment of disputed land in favour o: respondent No. 1, was illegal and in contravention of the scheme and policy of the Rehabilitation Department. The same is hereby quashed."

7. On Letters Patent Appeal by the appellant, a Division Bench of the High Court dismissed the appeal in limine, upholding the order of the learned Single Judge.

8. Leave was granted in this case to consider if the jurisdiction of the High Court extends to the making of such an order as that of the learned Single Judge.

9. It appears that the questions of fact decided by the learned Single Judge did not come up for consideration by the Rehabilitation Authorities. At any rate, the extent of the entitlement of the appellant and the validity of the allotment of lands in village Sarojada in his favour in lieu of his 115 bighas of lands were not even questioned by the respondent before the Rehabilitation Authorities.

10. The facts said to have been noticed by the learned Single Judge in the course of examination of the record called for from the Central Record Room gave rise to certain questions of fact. As, however, those questions were not considered and decided by the Rehabilitation Authorities, the learned Judge should have left the same to be decided by the said Authorities instead of deciding them, himself. He should have remanded the case to the Rehabilitation Commissioner with whose decision the impugned order of the Assistant Rehabilitation Commissioner had merged. The High Court, in the exercise of its writ jurisdiction, in a case like this, does not act as a Court of facts and ought not to enter into and decide disputed questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence. In the present case, the learned Single Judge himself decided certain questions of fact which the Rehabilitation Authorities had no occasion to determine. In this circumstance, the judgment and order of the learned Judge are plainly wrong inasmuch as he exceeded the writ jurisdiction available to the High Court and usurped the functions of the Rehabilitation Authorities. The judgment of the Letters Patent Bench which affirmed the decision of the learned Single Judge is, therefore equally bad in law.

11. We, therefore, allow the appeal, set aside the judgment and order of the Letters Patent Bench and remand the case to the Rehabilitation Commissioner for re-hearing of the matter in dispute according ' to law. Costs will abide the result of the proceedings before the Rehabilitation Authorities.