1975 PLP 61 (SCMR)

HAMOODUR RAHMAN, C. J.‑One, Muhammad Ali son of Malang, father of the respondents Nos. 1 to 4 herein submitted three separate claim forms for the agricultural lands left behind in village Ladhewala in Kapurthala State. These forms were registered as Nos. 3367, 3168 and 12712 in village Manawala Nehar Singh, Tehsil and District Sheikhupura. Claim Nos, 3367 and 3368 were verified for 465 produce index units and claim No. 12712 was at first verified for 297 produce index units. Subsequently, on increase of produce index units, the said Malaug was found entitled to 406 units against claim form No. 12712. Lands were allotted to them in village Manawala Nehar Singh, Tehsil and District Sheikhupura against their verified claims in three khatas, via., Khata No. 277 for claim form Nos. 336 " and 3368 and Khata 177/145 and 6/177 against claim form No. 12712. These khatas comprised of Khasra Nos. 1.457, 1459, 1442, 1443, 1481, 1384, 1385, 1492‑95 and 737‑

738. The heirs of Boota, another deceased‑right holder, one of whom is now the petitioner before us, challenged the allotment of the lands in Khata No. 277 to the respondents on the ground that Muhammad Ali, their father, had already got lands in Khata Nos. 177/145 and 6/177 in satisfaction of their claims, by an appeal before the Deputy Rehabilitation Commissioner. The latter. by his order of the 30th April 1956, cancelled the whole Khata No. 277 from the name of the respondents. The petitioners were not satisfied with this, so they went up in revision. They complained that only the khata had been cancelled without allotting the cancelled lands to them. The Rehabilitation Commissioner in revision, by his order dated 19‑12‑1956, cancelled the lands and allotted the Khasras Nos. 1492 to 1495 to the father of the petitioners at Khata No. 296 of Register R. L. Ir. He also cancelled the inferior land allotted to the father, and directed that the short‑falls so created should be made up from the other available areas in the village. The respondents did not file any appeal or revision against this order. They, however, it is alleged, with the connivance of the Circle Patwari tampered with Khatas Nos, 177/145 and 6/177 by substituting Khasra No. 1492‑1495 in place of Khasra Nos. 1442 and 1472/1. In 1963, furthermore, the respondents filed a belated appeal before the Deputy Settlement Commissioner, against the confirmation of the land made in favour of the petitioners at Khasra No. 296 on 19‑12‑1958 in pursuance of the order of the Rehabilitation Commissioner dated 19‑12‑1956. Notwithstanding the inordinate delay of about 5 years, the appeal was admitted and Khasra Nos. 1492 to 1495 were cancelled from Khata No. 296 of the petitioners and the case was referred to the Tehsildar for holding an enquiry into the allegations of alteration and forgery in Khata Nos. 177/145 and 6/177. The Tehsildar submitted his report on the 16th April 1966, and this was accepted by the Deputy Settlement Commissioner by his order of the 25th April 1966. The petitioners, complaining that the allegations of forgery and altera tion had not been enquired into or adjudicated upon or the petitioner or his co‑heirs given any hearing, applied under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, for cancellhig Khasra Nos. 1492‑95 from Khata No. 6/177 and Khasra Nos. 1457/1472 from Khata No. 177 allotted to the respondents. The Deputy Commissioner/ Additional Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, accepted this petition by his order of 15th February 1968, cancelled the khasra numbers from their respective khatas holding that these had been substituted as alleged by the petitioner after erasing the original khasra numbers. Against this order, the respondents went to the High Court in the writ jurisdiction. A learned Single Judge of the Lahore High Court has set aside this order, holding it to be not only illegal but also contrary to the true spirit and intention of the Settlement Laws. The main ground on which the High Court has set aside the impugned order is that the allotment orders having been earlier challenged on the same grounds on the judicial side had attained finality and, therefore, after such final adjudication made by the competent Settlement Authorities in appeal and revision, the same matter could not be re‑opened under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. The effect of the decisions on the judicial side could not, in the opinion of the High Court, be washed away in this indirect manner. The High Court has also observed that :‑ "Since the parties and the subject‑matter in the earlier litigation in appeal and revision as well as in the present proceedings under sections 10 and 11 are the same, the principle of res judicata can be pressed into service." One of the heirs of Boota has now come up for special leave to appeal and the first contention advanced in support of the petition is that the learned Judge of the High Court was wrong in taking the view that the principles of res judicata were attracted in this case, because, the Settlement Authorities had not, on the judicial side, given any decision on the question of erasures in the khata and forgeries made therein. The question is as to whether the petitioner and his co‑heirs could have challenged the order of the Deputy Settlement Commissioner of the 25th April 1966, directing implementation of the report of the Tehsildar dated 16‑4‑1966 before the higher Settlement Authorities and ultimately, come to the High Court under section 21 of the Displaced Persons (Land Settlement) Act. If so, the recourse to the provisions of sections 10 and 11 of the Act of 1958 was not only uncalled for but also misconceived. The next contention of the learned counsel is that the writ petition should not have been entertained because even against this order, a revision lay to the High Court under section 21 of the Act, 1958 and that should have been treated as an adequate alternative remedy. This point was raised before the High Court and has been considered a by it. Whether the remedy under section 21 was an adequate remedy or not within the meaning of Article 98 of the Constitution of 1962, was for the High Court to consider. It has not treated it as such. It cannot be said that its decision is arbitrary or whimsical. Lastly, it is contended that the High Court has misread the order of the Deputy Commissioner/Additional Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, Sheikhupura. The decision of the High Court is based on the propriety of the procedure adopted and not on the correctness thereof. The High Court has taken the view that the application under sections 10 and 11 was misconceived and should not have been entertained by the authority concerned. The question of misreading, therefore, does not arise. In these circumstances, we see no ground for interference. The High Court was also right in its view that if there was no dispute as to the entitle ment of the respondents then their claims had to be satisfied in preference to those of the petitioner and his co‑heirs. This was not only legally just but also unexceptionable. There is no ground for interference. This petition is, accordingly, dismissed. Petition dismissed.