1990 PLP 401 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in these and a number of other similar appeals to examine the validity of the cancellation or readjustment of the allotments of land to persons in the category of the appellants in purported compliance of the revisional order passed by Mr. I.U. Khan the then Rehabilitation Commissioner, on 23‑11‑1956 notwithstanding the decision of the superior Courts with regard to its validity and efficacy. Civil Appeal No. 505 of 1980.

2. Khuda Bakhsh, the predecessor‑in‑interest of the appellants settled in Chak No. 180/E.B., Tehsil and District Vehari where he received allotment of agricultural land on 30th October, 1951 against his verified claim. Discovering widespread illegalities in making the allotments in this and the other adjoining chaks, Mr. I.U. Khan Rehabilitation Commissioner, by a general order dated 23‑11‑1956 annulled all the allotments till then made and ordered that fresh allotments be made in accordance with law, keeping in view the policy guidelines given by him in that order. Khuda Bakhsh, alongwith others challenged this revisional order of the Rehabilitation Commissioner by filing Writ Petition No.605/R of 1958 which was allowed on 29‑1‑1960 whereby the order of the Rehabilitation Commissioner was quashed. This judgment attained finality a‑, a review petition riled against it and a petition for leave to appeal both failed. To appears that a part of the land allotted to the appellants had already been allotted to the respondents in September, 1958 and confirmed on 21‑11‑1958. But these respondents were not impleaded as parties. Subsequently on the decision of this Court in Abdul Harzar v. Rehabilitation Commissioner (P L D 1966 S C 483) the Settlement Authorities started implementing order of the Rehabilitation Commissioner in respect of those persons who were unaffected by the concluded judgment earlier rendered. This prompted the appellants to invoke the Constitutional jurisdiction of the High Court and they instituted Writ Petition No.1225/R of 1977 out of which this appeal has arisen. It was disposed of by the learned Judge observing as hereunder:‑‑ "Part of the land taken away from the allotment of Khuda Bakhsh was confirmed to the contesting respondents in this case. A preliminary proposal in their favour was made on 25‑9‑1958 and final confirmation accorded on 21‑11‑1958. This was even before the stay in Writ Petition No. 605/R of 1958, issued on 19‑I1‑1958. The contesting respondents were not made party to Writ Petition 605/R of 1958. The petitioners, therefore, cannot be permitted to question the allotment made to the contesting respondents in the year 1958. No relief therefore can be granted to the petitioners. The petition is, therefore, accordingly dismissed. There will be no order as to costs."

3. Elahi Bakhsh and Gamoo, the predecessors‑in‑interest of the appellants on migration settled in Chak No. 180/E.B., Tehsil and District Vehari and were allotted land against their verified claim on 30‑10‑1951. Finding widespread illegalities in making allotments in this Chak and the adjoining chaks, the Rehabilitation Commissioner by a general order dated 23‑11‑1956 annulled the allotments till then made and directed that fresh allotments be made' in accordance with law and in the light of the guidclincs provided by him. This was challenged by the predecessor‑in‑interest of the appellants by Writ Petition No.605/R of .1958 which was allowed and the judgment attained finality as the review petition filed by Allah Bakhsh and a Civil Petition for leave to appeal both failed. It appears that in September, 1958 in implementing the order of the Rehabilitation Commissioner (Mr.

1. U. Khan) a portion of the land allotted to the predecessors‑in‑interest of the appellants was taken from them and proposed and confirmed in the name of the respondents. However, these respondents were not impleaded by the predecessors‑in‑interest of the appellants in Writ Petition No. fi05/R of 1958. When the decision was given by the Supreme Court in the case of Abdul Hafee7 y. Rehabilitation Commissioner (P L D 1966 S C 483) upholding the validity of Rehabilitation Commissioner's order the Settlement Authorities started implementing it and confirmed the allotments made in 1958 to the respondents. This aggrieved the appellants who instituted the Constitution Petition (Writ Petition No. 1234/11 of 1977) which was disposed of by the 4, 1, impugned order. The learned Judge observed as under: In the year 1951 both Elahi Bakhsh and Gamoo predecessors, if the petitioners were made allotment in this Chak. After the order of N1r 1.U. Khan in 1958, fresh allotments were made to them. They were deprived of a portion of their allotment, comprising of killa number 11/1, 12/1, 13/1, 8 and 10 of Square No. 45 and Killa No. 23 of Square No.17. This proposal was made on 25‑9‑1958 and confirmed on 21‑11 1958. Land inter alia Killa No.l or 3 and 4/1 of Square No. 45, however, remained in their allotment. Writ Petition 005/11 of 1958 was accepted by this Court on 29‑1‑1960. Petitioners 1 to 6 and at least one of the heirs of Gamoo were party to this Writ Petition. Their allotment, therefore, could not be cancelled in implementation of the order of Mr. 1.U. Khan dated 23‑11‑1956 which would ensure, as noticed above for their benefit. For the reasons recorded in Writ Petition No. 1127/11 of 1977, the area taken away from the petitioners in 1958 and confirmed to the contesting respondents on 21‑11‑1958 cannot be restored to the petitioners. However, the area of 1951 allotments which had not been confirmed to some other persons before 29‑1‑1960, though might not have been included in the 1958 allotment, cannot now be taken away from the petitioners. Petitioners are therefore, entitled to the restoration of Killa Nos.l, 2, 3 and 4/1 of Square No.

45. This writ petition, therefore, succeeds to this extent. The case is remanded to the Deputy Settlement Commissioner to give effect to this order and if he finds that this area was in the 1951 allotment of the petitioners and was not allotted to any other claimant before 29‑1‑1960, the same will be restored to the petitioners."

4. Nizam Din, the predecessor‑in‑interest of the appellants had on migration settled in Chak No. 180 E.B., Tehsil and District Vehari where land was allotted to him against his verified claim on 30‑10‑1951. Mr. I.U. Khan, the then Rehabilitation Commissioner discovered widespread illegalities in 1956, in making the allotments. By a general order of revision he annulled all the allotments made upto 23‑11‑1956 and directed that the allotments should be made afresh in accordance with the law and guidelines provided by him by the same order. Nizam Din challenged that order of the learned Rehabilitation Commissioner alongwith others in Writ Petition No. 605/11 of 1958 and on 29‑1‑1960 obtained an order quashing that order of the Rehabilitation Commissioner. That judgment of the High Court attained finality as a review petition filed against it and thereafter a Civil Petition for leave to appeal were all dismissed. Notwithstanding the success of Nizam Din, the land allotted to him was partly taken over and allotted in September, 1958 to Fauja (predecessor‑in‑ interest of respondents Nos.2 to 7) and Dulla (respondent No.8) who were not impleaded as respondents in the High Court. Fauja and Dulla, who had come to acquire interest in that portion of the land which was resumed from the predecessor‑in‑interest of the appellant were subsequently held not bound by the decision in Writ Petition No.605/R of 1958 being not parties to it. The appellants invoked the Constitutional jurisdiction of the High Court in 1977 to challenge the order of the Deputy Settlement Commissioner whereby the earlier allotments made to the respondents were reaffirmed. Their claim was that having succeeded in the Writ Petition No. 605/11 of 1958 they could not be deprived of the fruits of the litigation. The High Court rejected their claim observing as hereunder:‑ "This petition has been filed by Suleman son of Nizam Din and Rehmat Bibi grand‑daughter of Nizam Din. There was some confusion in the nomenclature of this Writ Petition but instead of dismissing this petition on this technicality, I by my detailed order in Writ Petition 1232‑R of 1977 corrected the record and decided to dispose of the matter on merits. Some of the petitioners, i.e., Suleman was a party to Writ Petition No. 605/11 of 1958. Allotment was, however, made at a joint Khata as Rehmat Bibi had inherited rights from her mother Alam Bibi. Petitioners were made allotments in 1951. Order of Mr.I.U. Khan had not been implemented in their case. However, as all allotments undo: order of Mr. I.U. Khan stood cancelled, steps were taken to impendent that order in other cases. Some area out of 1951 allotments of the petitioner was confirmed to the contesting respondents. Proposal was made to the contesting respondents in the case in 1958. They were not impleaded as respondents in W.P. 605‑R of 1958. Allotment made to the contesting respondents in 1958 was not otherwise challenged till today. The petitioners, therefore, cannot be permitted to assail that allotment at this stage. This petition too, therefore, has no merit and is dismissed. There will be no order as to costs." Civil Appeal No. 508 of 1980.

5. Ibrahim, the predecessor‑in‑interest of the appellants received allotments of land against his verified claim in Chak No. 180/E.B., tehsil and district Vehari on 30‑10‑1951. On discovering widespread illegalities in the allotments made, the Rehabilitation Commissioner (Mr. LU. Khan) by a general order revised all the allotments made in this Chak and adjoining Chaks and annulled them by his order dated 23‑11‑1956. It is claimed that Abdul Rehman, appellant No. 1 challenged this order of the Rehabilitation Commissioner in Writ Petition No. 605/R of 1958 titled "Fattoo and 19 others v. The Rehabilitation Commissioner and another". It was allowed and the order of the Rehabilitation Commissioner was annulled. A Review Petition (No. 15 of 1960) filed against this judgment was dismissed and so was the C.P.L.A. No. 149 of 1962. The appellants invoked the constitutional jurisdiction of the High Court for challenging the resumption of part of their allotment in compliance with the order of the Rehabilitation Commissioner dated 23‑11‑1956. Their case was that they were entitled to the benefit of the result of litigation in Writ Petition No. 605/R of 1958, and that no allotment made could prejudice their claim, recognized by the decision of the High Court in that case. The High Court by the impugned order rejected their claim observing as follows:‑ "

37. This petition has been filed by hers of Ibrahim. He was not a petitioner in Writ Petition No. 605/R of 1958. Some land was confirmed to him at Khata No. 177 of the Register R.L‑II in the year, 1951. This Khata has been cancelled by the order of the Deputy Settlement Commissioner dated 12‑9‑1977. The order reads thus:‑

38. Allotments to the contesting respondents were made in the year 1958. For reasons recorded in Writ Petition No. 1329‑R/ 77, petitioners cannot be permitted to assail these allotments at this stage. However, for the same reasoning it,, in Writ Petition No. 1329/R of 1977, the order of the Deputy Settlement Commissioner dated 12‑9‑1977 at Khata No. 177 of the Register RL‑11 is declared to be without lawful authority and the case is remanded to him for decision afresh in the light of the observation: made in Writ Petition No. 1329/R of 1977. The petition qua respondent; No. 2 to 17, however, stands dismissed. The writ petition stands disposed of in the above terms. There will be no order as to costs." Civil Appeal No. 509 of 1980.

6. The appellants who were successors‑in‑interest of Khushiya and Bakhshu, received allotments against their verified claim on 30‑12‑1951 21‑4‑1952 and 21‑7‑1952 in Chak No. 180/E.B., Thesil and District Vehari. The Rehabilitation Commissioner (Mr. I.U. Khan) discovering that widespread illegalities had taken place in making the allotments in this and other Chaks revised all the allotments made and annulled them by a general order. He directed that fresh allotments be made keeping in view policy guideline prescribed by him, in that order. Mst. Azmat Bibi, one of the appellants joined others similarly affected in Filing a Constitutional Petition in the High Court (Writ Petition No 605/R of 1958). By the judgment dated 29‑1‑1960 this Writ Petition was allowed and the general order of the Rehabilitation Commissioner annulled. A review against that judgment and a petition for leave to appeal filed by one of the respondents in that Constitutional Petition failed. In the meantime, it appears, that while implementing the orders of the Rehabilitation Commissioner (Mr. I.U. Khan) a part of the land allotted to the appellants was taken over from them and allotted to respondents in 1958. Subsequently it was held that only the parties to the litigation were bound by the judgment and that as the respondents were not parties in Writ Petition No. 605/R of 1958, they could not be held bound by that decision and the allotments made in their favour were to remain intact. This prompted the appellants to institute a Constitution Petition (No. 1364/R of 1977). This petition was, however, dismissed by the impugned consolidated judgment by the learned Judge observing as under:‑‑ "

31. This petition has been filed by heirs of Khushiya and Bakhshoo who died in India. Ali Muhammad's father was the real brother of Bakhshoo and Bana who was father of Khushiya. Mst. Azmat Bibi was a party to the Writ Petition No. 605‑R/58. Certain allotments were made to the petitioners in the year 1951. After the order of Mr. I.U. Khan dated 23‑11‑1956 some portions out of this allotment were confirmed to the contesting respondents ‑‑‑‑‑Killa No. 22 of Square No.33 at Khata No. 297 of the Register R L‑11 to respondent No.2, Killa No.15 of Square No. 21 at Khata No. 52 of the Register RL‑11 to respondents Nos.3 to 5.

32. For the reasons recorded in Writ Petition No. 1127‑R/77, this land cannot be restored to the petitioners and the writ petition to that extent stands dismissed.

33. Some area was also allotted to the petitioners at Khata No. 65, as is clear from the order dated 12‑9‑1977. This allotment had not been interfered with. It was then contended that some land out of 1951 allotment is still with them and has not been allotted to any other claimant. If this be so, petitioners can be given benefit of the order of this Court dated 29‑1‑1960 and the order of Mr.I.U Khan cannot be implemented in their case. This petition otherwise has no merit and is dismissed accordingly. There will be no order as to costs."

7. Qadir, predecessor‑in‑interest of the appellants on migration to Pakistan received temporary allotments in Chak No. 180/E.B., Tehsil and District Vehari. After verification of claim land was confirmed to him on 30‑10‑1951. In 1956, Rehabilitation Commissioner discovering widespread illegalities committed in the making allotments in this and other adjoining Chaks, by a general suo motu revisional order dated 23‑11‑1956 annulled the allotments made till then and directed that the allotments be made afresh in accordance with law and the guidelines prescribed by him. Some of the appellants joined others in challenging this order of the Rehabilitation Commissioner by Writ Petition No. 605/R of 1958 which succeeded on 29‑1‑1960. That judgment attained finality as a Review against it and a petition for leave to appeal filed by Allah Bakhsh failed. It appears that in the meantime a part of the allotment of the appellants was taken over and allotted to respondents on 12‑9‑1958 and confirmed on 23‑9‑1958. Another portion of the land taken over was allotted to Sardar Muhammad on 23‑9‑1958 and confirmed on 21‑11‑1958. A third portion was taken over on 19‑11‑1978, but that is not the subject‑matter of appeal because to that extent the appellants have received protection. The other two allotments were held protected because the appellants had not impleaded the allottees in Writ Petition No. 605/R of 1958 as respondents. The appellants challenged this by Writ Petition No. 499/R of 1979. The High Court gave the following reason for not accepting a part of the claim made by the respondents by observing as follows:‑ "Out of this allotment, in implementation of the order of Mr. I.U. Khan, dated 23‑11‑1956 and before status quo was issued in writ Petition No.605/R/58, Killa Nos. 21, 22, 23 and 24 were proposed to respondent Jhanda at Khata No. 91 on 25‑9‑1958. This allotment was confirmed to him on 21‑11‑1958. Similarly Killa Nos. 2, 3, 4, 5, 6 and 7/2 were confirmed under similar circumstances to Molu predecessor of respondents Nos. 3 to 8, at Khata No. 76 of RL‑II. In the same way Killa No.7/2 was confirmed to respondent No.9 Jhanda son of Khera in 1958. Likewise, Killa Nos.25, 16 and 15 of Square No.27 now 28 were confirmed to Sardar son of Rahman predecessor of respondents Nos.11 to 15 at Khata No.148. On the principles laid down in W.P. 1127/R/77, this land cannot be restored to the petitioner. Petitioner, moreover, had earlier filed Writ Petition No. 1216/R/77 on the same cause and has filed the present writ petition with disclosing the fact that their earlier writ petition had been rejected. This petition, therefore, is dismissed as against these respondents. Area measuring 2 kanals out of Killa No.7 of Square No.29 (now 30) has been withdrawn on 19‑11‑1978 for the first time. This could not be done. This petition is, therefore, admitted as against respondents Nos.1 and

10. To be listed on 25‑11‑1979. Respondent No.l accepts notice. Notice to be issued only to respondent No.10. Mr. Hassan Ahmad Khan Kanwat, Adv. accepts notice on his behalf. He wants to file written statement. Case is now complete. To be listed on 25‑11‑1979:"

8. Mr. A.R. Sheikh, Senior Advocate, the learned counsel representing the appellants in these appeals contended that the allotments made to the appellants in 1951 in R.L.11 were never formally cancelled from the record and they continued to be the allottees notwithstanding the order of the Rehabilitation Commissioner dated 23‑11‑1956. Whatever may had been the effect of that order after it was annulled by the High Court in Writ Petition No. 605/R of 1958, the allotments regained their pristine validity and efficacy. Before any part of the land which was allotted to the appellants and taken over from them and adjusted against the claim of the respondents it was necessary that hearing should have been afforded to the appellants and their participation in the proceedings ensured. That having not been done the allotments made in September, 1958 in favour of some of the respondents could rightly be ignored by the appellants. Notwithstanding the fact that the allottee‑respondents were not impleaded as parties in Writ Petition No. 605/R of 1958 the admitted fact was that the Rehabilitation Authorities were parties to it and were effectively bound by the decision annulling the order of Mr. I.U. Khan. They could not, therefore, interfere with the allotments made in favour of the appellants simply because subsequently Supreme Court had in the case of Abdul Harz v. Rehabilitation Commissioner, West Pakistan and 4 others (P L D 1966 S C 483) held that the revisional order of the Rehabilitation Commissioner was competently passed. There are two decisions, one of the High Court and the other of this Court which deal with the efficacy and validity of judgment in personam inter parties. The first one was pronounced by the High Court in Writ Petition No. 280/R of 1972 and 298/R of 1972 on 10‑12‑1976 and the other was the decision of this Court in Pir Bakhsh represented by his L.Rs. and others v. The Chairman Allotment Committee and others (P L D 1987 S C 145). The Rehabilitation Settlement Authorities were parties to all the decisions given starting with that of Abdul Ghafoor and Thirty others v. the Rehabilitation Commissioner, West Pakistan, Lahore (P L D 1958 Lah. 48) followed by Writ Petition No. 605/R of 1958 in which decision was given on 29‑1‑1960 and the decision of this Court in Abdul Hafiz's case (P L D 1966 S C 483).

9. The Rehabilitation and Settlement Authorities were parties to both types of decisions wherein the revisional order of the Rehabilitation Commissioner was held to be without lawful authority and of no legal effect and of being within lawful authority and of fill legal effect. The decisive element in determining the binding effect of the judgments has to be the presence of the other parties in the litigation. An examination of the order of the Rehabilitation Commissioner passed on 23‑11‑1956 shows that it had the effect of annulling all the allotments till then made by its own force. Individual orders against the R.L. 11 entries were not required to be passed in each case. The allotments of the appellants having been revoked and cancelled by such general order they have no vested right in respect of such allotments. The preliminary proposal in favour of the appellants in respect of part of their land allotted to them was made before the institution of Writ Petition No. 605/R of 1958 and before they obtained the stay order. In the circumstances these respondents/allottees had to be made parties if it was intended to bind them with the decision in Writ Petition No. 605/R of 1958. It is for this reason that the High Court has by the impugned order held that those who were not parties to this Writ Petition cannot be bound by the decision given therein. Therefore, the allotments made in September, 1958 were held protected because what happened in 1977 in respect of them was only a reiteration of the fact of allotment made in 1958. No fresh order as such was passed in 1977. In the statement of facts it has already been noted that where the allotments made in 1977 for the first time, the same was struck down because the benefit obtained by the judgment in Writ Petition No. 650/R of 1958 was extended to the Appellants but not so in the case of allotments made in 1958 and not challenged then but subsequently in 1977 and 1978.

10. We find that the decision of the High Court has proceeded on correct lines and is in accord with law on the subject and follows the decisions given by this Court particularly in Pir Bakhsh's case. No interference is called for and the appeals are dismissed. A.A./B‑122/S Appeals dismissed.