1990 PLP 239 (SCMR)

‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑High Court's view in accordance with law and based on facts not in dispute‑‑‑Appeal dismissed. A. R. Sheikh, Senior Advocate Supreme Court and Tanveer Ahmad, Advocate‑on‑Record (absent) for Appellants. Respondent No.l: Ex parte. Ch. Hameedud Din, Senior Advocate Supreme Court and Ejaz Ahmad, Advocate‑on‑Record for Respondent No.2. Date of hearing: 23rd May, 1989. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in this case and a number of other similar appeals to examine the validity of the cancellation of allotments of lands to persons in the category of the appellants in purported compliance of the revisional order passed by Mr. I.U. Khan, Rehabilitation Commissioner on 23‑11‑1956 notwithstanding decisions of the superior Courts with regard to its validity and efficacy.

2. Din Muhammad, the father of appellant No.l and the husband of appellant No.2 had two claims entitling him to 507 P.I.Us. Mst. Bakhshi, the widow/appellant No.2 had independently a claim of her own with regard to the property left by her in India. Din Muhammad was allotted 73 Kanals 18 Marlas of land in Chak No. 180/E.B. Tehsil and District Vehari. Mst. Bakhshi received an allotment on 30th October, 1951. Finding that wide spread illegalities had taken place in making the allotments in this Chak and the other adjoining Chaks. Mr. I.U. Khan, the then Rehabilitation Commissioner after notice to the allottees generally, and after hearing those who appeared in response to notice, by an omnibus order, set aside all the previous allotments made upto 23rd of November, 1956. He also provided the guidelines in terms of which the future allotments had to be made. The two appellants alongwith a number of others, instituted Constitutional Petition No. 605/R of 1958 challenging the order of Mr. I.U. Khan and succeeded in the High Court in avoiding that order on 29‑1‑1960. Review of that judgment was sought by Allah Bakhsh, but his review petition was dismissed on 10‑7‑1960 and the Civil Petition for Leave to Appeal (No. 149 of 1962) was also dismissed. Notwithstanding the stay order obtained by the appellants in these proceedings it appears that part of the land allotted to them was allotted on 25‑9‑1958 and confirmed on 21‑11-1958 to the respondent. The appellants claim to have remained in possession of their allotted land throughout.

3. During the interregnum, efforts were made by certain other entitled persons to get the order of Mr. I.U. Khan implemented by the Rehabilitation Authority and ultimately Constitution Petitions were filed seeking its implementation and settlement of their verified claims. The High Court by a judgment in two Writ Petitions (Writ Petition No. 280/R of 1972 and 298/R of 1972) held that the order/judgment of Mr. I.U. Khan held the field and was required to be implemented except for the parties who were bound by the decision in Writ Petition No. 605/R of 1958. This decision was given by the High Court in view of the matter having been finally decided by the Supreme Court in the case of Abdul Hartz v. Rehabilitation Commissioner, West Pakistan and 4 others (P L D 1966 S C 483). In that case the Supreme Court held that the omnibus revisional order passed by Mr. I.U. Khan as Rehabilitation Commissioner after a notice to the concerned and collective hearing was a valid and proper order. This judgment of the High Court in Writ Petitions Nos. 280/R of 1972 and 298/R of 1972 was challenged by filing Civil Petition for Leave to Appeal No. 1037/1976, which was dismissed on 31‑3‑1977 and a review of the judgment (Review Petition No. 25‑R/1977) was also dismissed on 29‑10‑1977. It was while implementing the judgments of the High Court in these two Writ Petitions that the Settlement Authorities reaffirmed the allotments made to the respondent out of the allotments earlier made to the appellants and these orders were passed in July, 1977 and August, 1977. These were challenged by the appellants by filing Constitution Petition No. 1127/R of 1978 which was dismissed by the impugned order.

4. Mr. A.R. Sheikh, Senior Advocate the learned counsel for the appellants has argued this appeal alongwith other similar appeals and his contentions were that the allotment made to the appellants was never formally cancelled on the RL‑1I. and that without hearing them and during the operation of a stay order proposals or allotments could not be made in favour of the respondent. In any case, it is contended by the learned counsel for the appellants that the Rehabilitation authority being a party to the proceedings in Constitution Petition No. 605/R of 1958 it was bound to give effect to it notwithstanding the tact that the other private respondents were not made parties in that proceedings. The learned counsel wants that the benefit of the judgment in Constitution Petition No. 605‑R of 1958 should be extended to the appellants because it attained finality as between the appellants and the Rehabilitation Authorities. He has invoked the decision of this Court on inter parties adjudication as given in the case of Pir Bakhsh represented by his L.Rs and others v. The Chairman, Allotment Committee and others (P L D 1987 SC 145) and decision of the High Court in Writ Petition No. 280/R of 1972 and Writ Petition No. 298/R of 1972 for his benefit.

5. The effect of the revisional order of the Mr. I.U. Khan was that it set aside, of its own force, all the allotments that had been made upto 23rd November, 1956. The implementation and the incorporation of that order against the R.L.II entries of the individual allottees was neither necessary nor determinative of the rights of the parties with regard to the allotments. The fact that the appellants' allotments made in 1.951 were never formally revoked in the R.L.II Register or modified is correct but no entitlement can be made out of it as the order of Mr. I.U. Khan holds the field.

6. It is correct that the two appellants alongwith a few others had challenged that order of Mr. I.U. Khan but it appears that they had not impleaded respondent to whom a portion of the land earlier allotted to the appellants had been proposed and finally confirmed. The Rehabilitation Authority may be bound by the judgment but the private respondent who had obtained the allotment at a time when the appellants had no vested or enforceable right in that land could not be made to suffer without being impleaded in the proceedings. The appellants having not impleaded him and the allotments having already been made in his favour, the appellants cannot bind him by a decision obtained in Constitution Petition No. 605/11 of 1958 in his absence and without notice to him. As regards the effect of this omission and the binding effect of that judgment on persons not parties to it, the matter has been dealt with elaborately, in Pir Bakhsh's case and on account of it the appellants cannot claim that the respondent should be deprived of the allotments on the basis of a judgment to which he was not party.

7. The view taken by the High Court in the impugned judgment on the merits of the claim' of the appellants is as hereunder:‑ "In 1951, some area was confirmed to them at Khata Nos.11 and 49 of the Register R.L.1I. This was cancelled under orders of Mr. I.U. Khan dated 23‑11‑1956. Proposal for fresh allotment was made in their favour on 25-9‑1958. Final confirmation of this proposal was accorded on 21‑11‑1958. I have compared the two allotments. They have been deprived of some area as was confirmed to them in the year 1951. The area taken away from the petitioners was, in the meantime, allotted to other persons including Ghulam Haider respondent No.2. They are neither party before me nor were they party in Writ Petition No. 605/11 of 1958. Ghulam Haider has been allotted only killa No. 11 which was confirmed to him on 21‑11‑1958. The petitioners did not implead Ghulam Haider as party in Writ Petition 605/11 of 1958. No relief, therefore, can be granted to petitioners. When confronted with this, it was argued that Ghulam Haider had no pending claim. This point has not been taken up in the writ petition. Even otherwise I find that this point was mooted separately in the Mukhbari application filed by Nizam Din which was dismissed on 15‑9‑1977. This petition, therefore, has no merit and is dismissed accordingly. There will be no order as to costs."

8. The view taken by the High Court is in accord with law and is based on facts not in dispute.

9. There is no merit in this appeal and the same is dismissed with no order as to costs. A.A./N‑188/S Appeal dismissed.