1985 PLP 1713 (SCMR)

Ch. Qadir Bakhsh, Senior Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners. Bashir A. Ansari, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents. Date of hearing: 16th June, 1985. SHAFIUR RAHMAN, J.‑‑The petitioners who are the successors- in‑interest of two ladies holding verified claim for urban as well as rural agricultural land seek leave to appeal against two separate judgments of the Peshawar High Court, dated 6‑3‑1985 allowing by one the constitutional petition filed by Noor Muhammad respondent and dismissing a part of the claim made by them in the other constitutional petition. Noor Muhammad, the respondent, had verified claim for rural agricultural land. He got allotment of urban agricultural land measuring 105 Kanals 16 Marlas in Dera Ismail Khan which was confirmed in his name. According to the instructions of the Central Government, dated 11‑2‑1959, urban area could not be allotted to Displaced Persons having verified claim for agricultural land of rural areas. An Inspection Team detected the irregularity of allotment of Nur Muhammad on which the Deputy Rehabilitation Commissioner on 21‑9‑1963 cancelled it. An appeal was filed by Noor Muhammad which was allowed by the Additional Settlement Commissioner on 3‑6‑1965. A revision petition against it was dismissed by the Settlement Commissioner on 14‑10‑1965. Subsequently, a notice was issued by the Chief Settlement Commissioner for proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act which was, however, recalled on 3‑7‑1971 by the Settlement Commis sioner. This order was challenged by the department by a writ petition which was dismissed on 11‑11‑1973. On a Government's reference, the Chief Settlement Commissioner on 25‑5‑1974 cancelled the allotment of Noor Muhammad and others who were similarly granted urban land. In all, four constitutional petitions were filed against the order, dated 25‑5‑1974 which were allowed by the impugned order of the High Court holding as follows:‑ "It is, therefore, very clear that the said officer was already exercising powers of the Chief Settlement Commissioner when he made the order on 3‑5‑1971. This order was made by the Settlement Commissioner exercising the delegated powers of Chief Settlement Commissioner and the respondent herein could not re‑exercise the same powers. The Settlement Commissioner had exercised those powers as delegate of the Chief Settlement Commissioner and the respondent herein was not left with the power to set aside the order made by the former." The other constitutional petition was filed by the petitioners on the ground that they had received their verified claim in Dera Ismail Khan for settlement, that Noor Muhammad allottee of urban land was not entitled to retain that land and on its cancellation it should be made available for adjusting their claim of verified agricultural land of urban area. The other grievance expressed in that petition related to allotment of 362 Kanals 11 Marlas of agricultural land confirmed to them which was not being implemented in the record and their rights as its allottees were not being recognised. At this stage, there is no dispute with regard to it because the High Court by the impugned order accepting their constitutional petition has allowed that part of the claim and rejected only their claim to the urban area on account of its being not available due to the allotment of Noor Muhammad having been kept intact. The learned counsel for the petitioners contended that the allotment of urban land against verified claim of agricultural land of rural area was against law and without jurisdiction. It could not be allowed to remain on record. The area becoming available should have been utilized for settling the claim of the petitioners which had been pending in that area since 1968‑

69. The learned counsel for the caveator has drawn our attention to the binding decision given by the Chief Settlement Commissioner and by the High Court earlier to the order passed by the Chief Settlement Commissioner on 25‑5‑1974 upholding the allotment in favour of Noor Muhammad. He has placed on record a copy of the order, dated 3‑6‑1965 passed in the case of Rahimuddin an allottee of urban area having identical case as was of Noor Muhammad. This order shows that all aspects of the entitlement of Noor Muhammad and others similarly affected by the Inspection Note and the subsequent order of Deputy Rehabilitation Commissioner was dealt with and the allotment was upheld. After examining the record and some of the orders not placed by the petitioners on record, we find that the controversy which was agitated by the petitioners by their constitutional petition was settled first by the order of the Settlement Commissioner on 14‑10‑1965 and subsequently on 3‑7‑1971 when the notice issued to him under sections 10 and 11 was discharged. Such a termination of the proceedings were upheld in constitutional petition on 11‑11‑1973. This Court has already held that in the case of Dahla v. Settlement Commissioner (Lands) and others 1983 S C M R 1039 that repeated inquiries on the same ground are not permissible under sections 10 and 11 and principle of res judicata is applicable to the exercise of that power. In the circumstances, we consider that the High Court justifiably set aside the order of the Chief Settlement Commissioner, dated 25‑5‑1974 unsettling the allotment of Noor Muhammad. In that view of the matter, the petitioners were left with no locus standi to seek settlement of their claim on the land which could be got vacated from Noor Muhammad but was not got vacated. We do not find any merit in the petitions and both are dismissed with costs. A.A. Leave refused.