1999 PLP 1610 (SCMR)

Gul Muhammad predecessor-in-interest of appellants Nos.8 to 16 who had got his claim transferred to Chak No.350/JB was proposed some of the land allotted to Fateh Muhammad against Khata No.101. The said proposal was subsequently cancelled on 29-6-1954, as a consequence of which litigation ensued.

4. Mr. I.U. Khan. Rehabilitation Commissioner through order dated 30-9-1955 held that Gul Muhammad being A-Class allottee should be given preference over B-Class allottee, for which if necessary, some B-Class allottee could be disturbed. In compliance with the said order, some of the land allotted to Fateh Muhammad was cancelled vide order dated 29-12-1963 and the same was allotted to Gul Muhammad.

5. The order dated 29-12-1963 was appealed against by Fateh Muhammad before the Additional Settlement and Rehabilitation Commissioner who remitted the case for a fresh decision vide his order dated 24-2-1964. The D.S.C./D.R.C.(L) in remand proceedings maintained the allotment in favour of Fateh Muhammad per order dated 15-4-1964 and set aside the order dated 29-12-1963 passed by the A.R.C.(Q.

6. The successors-in-interest of Gul Muhammad made a representation before the A.R.C.(L) in the end of 1963 to the effect that the order of Mr. I.U. Khan dated 30-9-1955 confirmed on 12-12-1955 by rejecting the review petition of Fateh Muhammad was not duly implemented. The A.R.C.(L) ordered the cancellation of the confirmed land from the Khata of Fateh Muhammad vide order dated 14-1-1964 and confirmed the same in the name of Gul Muhammad.

7. The matter ultimately came to this Court in C.A. No.81 of 1974 (Anwarul Haq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others) and the appeal of Anwarul Haq was allowed on 11 -11- 1985. The operative part of the judgment is as under:

"The appellant Fateh Muhammad, then alive, feeling aggrieved of the aforesaid order dated 14-1-1964 filed an appeal in the Court of the Additional Settlement and Rehabilitation Commissioner which was heard and accepted vide his order dated 25-2-1964 and the case was submitted back to the Deputy Settlement Commissioner for a fresh decision. The Deputy Settlement Commissioner in remand proceedings, maintained that the land was rightly confirmed in favour of Fateh Muhammad and the order of Mr. I.U. Khan was already implemented. The respondents were neither aggrieved persons against this order passed by the Deputy Settlement Commissioner (L) nor had they any locus standi to agitate against the same before any superior Court. The purpose of order dated 15-4-1964 was nothing, more than to maintain the confirmation of the land made in favour of the present appellants as far back as on 25-3-1964 on a legal place that there was no ground for interference into the same as the order passed by Mr. I.U. Khan on 30-9-1955 was already implemented and the appeal filed by Gul Muhammad against the confirmation of the land in his favour in lieu of 20-19 P.I. units was rejected by the then Deputy Rehabilitation Commissioner (L) vide his order dated the 12th July, 1956, list of which has been reproduced in the foregoing paragraph."

8. A review petition was filed in the Supreme Court with which an order dated 25-9-1968 passed by the D.S.C.(L) was appended in order to contend that in the proceedings under section 10/11 of the Displaced Persons (Land Settlement) Act, the said allotment of Fateh Muhammad obtained through order dated 18-2-1954 was cancelled on the ground that he had already got land in some other village against his entire claim and was not left with any right to get land in Chak No.350/JB. The review application was, however, dismissed in which no mention was made about the order dated 25-9-1968.

9. The D.S.C. (L) passed an order on 26-6-1988 restoring the allotment of Fateh Muhammad in pursuance of order dated 18-2-1954 in compliance with the judgment of the Supreme Court.

10. Munir Ahmad Khan etc., the successors-in-interest of Gul Muhammad Khan filed W.P. No. 145 of 1988 in the Lahore High Court, contending that during the pendency of the litigation in the High Court and the Supreme Court about the land in Khata No.101 allotted to Fateh Muhammad through order dated 18-2-1954, the D.S.C. (L) in proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, had passed an order on 25-9-1968 holding that since the claim of Fateh Muhammad had been duly satisfied in some other Chak, therefore, the said allotment was in excess of his entitlement and as such it could not have been restored to him. As no appeal or revision had been filed by Fateh Muhammad or his legal representatives against the said order it attained finality. The learned High Court dismissed the writ petition in limine by order dated 24-6-1990 impugned herein. Operative part of the said order reads as under:

"The impugned order dated 26-6-1988 has been passed by the D. S.C. (L) in order to give effect to the judgment of the Supreme Court in which allotment of Fateh Muhammad through order dated 18-2-1954 in Chak No. 350/JB against Khata No. 101 was upheld. The effect of the Supreme Court's judgment in my view was that the allotment of Fateh Muhammad as per order dated 18-2-1954 was restored as it was. If in the intervening period there is any other order passed on 25-9-1968 by the Settlement Authorities for cancellation of the said allotment in the name of Fateh Khan on the ground that this allotment was obtained in excess or that his claims had been satisfied somewhere else the remedy of the petitioners is to initiate appropriate proceedings for giving effect to this order in the relevant record,. I am informed that such proceedings have been initiated which are pending before the Revenue Authorities. So far as implementation of Supreme Court's judgment by the D.S.C. (L) through impugned order is concerned the same cannot be objected to. "

11. Feeling aggrieved, Mst. Jamila Begum etc. the successors-in-interest of Gul Muhammad Khan, filed a petition in this Court. Leave was granted to them on 12-2-1992 to examine whether the statutory Authorities and the High Court had examined in the correct perspective the existence, finality and the effect of proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 said to have been startco in 1965 and concluded in 1968. The order dated 25-9-1968 passed by the D.S.C. (L) in proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, pressed into service by the appellants, had also come under consideration in the Court of Assistant Commissioner/Collector, Gojra, Sub-Division Gojra, in the proceedings titled Munir Ahmad Khan v. Fatch Muhammad and was not given any weight for the following reasons mentioned in his order dated 20-9-1988:

"The petitioners have applied for implementation of order of Deputy Settlement Commissioner, Toba Tek Singh, dated 25-9-1968. This order which is passed and referred in the Court is not mentioned anywhere in the subsequent litigation which ended in Supreme Court of Pakistan. Aere is no mention of any Appeal preferred from this decision and this seems irrational that the party which has contested its rights in the highest forum of Pakistan have not mentioned it. It is clear from the logical perusal of the record that the document dated 25-9-1968 is doubtful and a clear implementation order cannot be granted in the favour of petitioners until and unless they produce all the relevant original record including the Settlement Commissioner's order which are mentioned in the appeal of Supreme Court. As this document appears doubtful therefore I dismiss the petition."

12. The Assistant Commissioner Gojra, as Notified officer, under Act XIV of 1975, in implementation of the Supreme Court's judgment, dated 11-11-1985, by order dated 26-6-1988 had ordered the cancellation of the area' of 78 Kanals 1 Marla from R.L. 11 No. 112 of Chak No.356/JB standing in the name of Gul Muhammad Khan and restored Khata No. 10 1 in the name of Fatch Muhammad. Even at that stage the order dated 25-9-1968 reportedly passed by the D.S.C.(L) had not been brought to the notice of the Notified Officer by any one. The review application filed against the order dated 20-9-1988 of the Assistant Commissioner Gojra Suh-Division, whereby he hid refused to implement the order dated 25-9-1968 considering it to be doubtful was also dismissed by the D.S.C. (L), Saddar Sub-Division, Faisalabad, on 19-12-1990.

13. The' Writ Petition No.2-R of 1991 challenging the order dated 19-12-1990 was also dismissed for the reason that there was no reference of the order dated 25-9-1968 in any of the proceedings which had gone up to the Supreme Court. The learned High Court had observed that "had there been any such order passed genuinely by Settlement Officer in regularly initiated proceedings duly entertained and registered, the same would not have withheld".

14. Learned counsel for the appellants has failed to furnish any explanation for non-mentioning of the order dated 25-9-1968 in the proceedings before the Supreme Court or before the Settlement Authorities at the time when order dated 26-6-1988 restoring the allotment of Fatch Muhammad in pursuance of the order dated 18-2-1954 in compliance with the judgment of this Court dated 11 -11- 1985 was passed.

15. There appears to be no reason for not pressing into service the order dated 25-9-1968 by the appellants at the proper time, if it actually existed. In this view of the matter, the learned High Court had rightly declined to interfere with the order dated. 19-12-1990 passed by the D.S.C.(L) Faisalabad, whereby he had refused to act upon the order dated 25-9-1968 purportedly passed by the D.S.C. (L) under sections 10 and 11 of the Displaced. Persons (Land Settlement) Act, 1958 Resultantly, the appeal being devoid of any substance is dismissed leaving the parties to bear their own costs. M.B.A./J-27/S Appeal dismissed