1990 PLP 1225 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court, is directed; against the judgment of the Lahore High Court, whereby respondent's Constitutional Petition arising out of a Land Settlement case was allowed. The land in dispute was in the allotment of appellant side when it was cancelled by the Border Area Committee (Respondent No.3) on the asking of Respondents No. 1 and 2 on 11‑6‑1965. The land was allotted to them. All this happened allegedly without affording due and proper opportunity of hearing to and, behind the back of the appellant. He filed writ petition No.1155 of 1966 in the High Court; which could not be disposed of in time due to the transfer thereof to the Bahawalpur Registry of the Lahore High Court. It is stated to have been fixed for hearing on 31‑10‑1989. In the meanwhile the appellant also moved the respondent No.3 for restoration of the allotment. The prayer was allowed on 23‑8‑1971. However, on the respondent's Constitutional petition the High Court while accepting the same treated the Order dated 23‑8‑1971 as a review order. It was further held to be without jurisdiction. Accordingly the order of cancellation of appellant's allotment was restored. Leave to appeal was granted to examine the effect of the pendency of the appellant's Writ Petition No.1155 of 1966 on the proceedings in the respondent's Writ Petition No.739‑R/LHR of 1971; out of which this appeal arises. The plea regarding the competency of respondent No.3; particularly of only one member thereof, amongst others, was also noted as another point for examination. Learned counsel for the appellant has reiterated all the points noted in the leave granting order and also wanted to press those raised in the petition for leave to appeal. He also referred to the relevant observations in Haji Fateh Muhammad v. Maula Bakhsh PLD 1963 SC 311 as also in Mst. Zainab Khatoon v. Mian Ghulam Shabbir PLD 1965 SC 55 with regard to the argument that the order of respondent No.3 restoring appellants allotment could not have been treated 'as having been passed in review‑‑hence the High Court fell into error when accepting the respondents Constitutional Petition. On this ground he also took us through the various orders passed by respondent No.3 prior to the disputed order of cancellation; in order to show that it was a confirmed allotment and that being so, on the principle applied by the High Court, could not have been set aside by respondent No.3, as it would have amounted to review. On the question of the pendency of the Writ Petition No.1155 of 1966 filed by the appellant's side, none of the learned counsel being aware of its fate we directed the office to make inquiry. As a result, we have been informed that the same is still pending and is likely to be heard on 31st October, 1989, for which date it has been fixed for disposal. It seems correct that on account of bulk transfer of cases from the Lahore High Court main Registry to the Branch Registry Bahawalpur the appellant's Writ Petition No.1155 of 1966 could not be heard and disposed of with the respondents Writ Petition No.739‑R of 1971 and thus, the former petition is still pending. Both the learned counsel agreed that if both the petitions would have been heard together the results might have been different. Although on the points noted in the leave grant order and the arguments addressed at the Bar this appeal could have been decided on merits;' but, it is not possible to visualise as to what would be the result of the hearing m the writ petition relating to the same subject‑matter which is still pending in the High Court. It might result in conflict of judgment. Accordingly in the interest of justice we deem it fit and proper to remand this case also to the ‑High Court for hearing and disposal alongwith the said case arising out of Writ Petition No.1155 of 1966. The hearing in the said case shall remain stayed till the copy of this order and the records in this case reach the Branch Registry concerned, of the High Court. In the light of the foregoing discussion this appeal is allowed. The impugned judgment is set aside and the case is remanded, as above, to the High Court for re‑hearing alongwith Writ Petition No.1155 of 1900 and fresh decision in accordance with law. A.A./G‑236/S Case remanded.