2000 PLP 1726 (MLD)

H. Saeedullah Khan for Respondents Nos. l and

2. S. Zafar Abbas Zaidi and Dost Muhammad Khan for Respondents Nos.4 to

6. Date of hearing: 11th December, 1998. Abdur Rashid, Abdul Waheed and legal heirs of Abdul Hamid, through the instant petition, under Article, 199 of the Constitution of Islamic Republic of Pakistan, have called in question the order, dated 19‑7‑1992, passed by the Deputy Commissioner, exercising powers of Collector and Chief Settlement Commissioner, D.I. Khan, whereby he set at naught the order, dated 21‑8‑1986 of the Additional Settlement Commissioner, D.I. Khan and restored one Kanal of land in favour of the contesting respondents Nos.4 to 6.

2. It is not disputed that Noor Muhammad, son of Bhuray, the claimant, displaced person, was allotted land, measuring 105 Kanals and 16 Marlas comprised in Khasras No.3883/1575, 3885/1576, 3884/1576, 1577, 1578, 3498/1581, 3510/1582, 1572, 3815/3198/1562, 3885/1564, 1565, 3882/1575, 1579, 3881/1564 in Mauza D.I. Khan against his verified claim by order, dated 2‑8‑1985 and was subsequently confirmed by the Assistant Rehabilitation Commissioner on 13‑8‑1958. RL‑11 was accordingly issued. Somewhere in 1963 on the report of the Inspection Team that said Noor Muhammad has been allotted land in the urban area against his verified claim for rural area without the permission of Central Government, the Deputy Rehabilitation Commissioner by order, dated 21‑9‑1963 cancelled the said allotment. Said order of the Deputy Rehabilitation Commissioner was challenged in appeal before the Additional Settlement and Rehabilitation Commissioner, who by order, dated 3‑6‑1965, set aside the order of cancellation whereupon the Central Government filed appeal in the Court of Settlement and Rehabilitation Commissioner who, too, dismissed it on 14‑10‑1965 as barred by limitation. A revision petition before the Chief Settlement Commissioner also was met with the same fate having been held as incompetent. In exercise of powers under section 11 of the Displaced Persons (Land Settlement) Act, 1958, the Chief Settlement Commissioner served Noor Muhammad a suo moto notice to show‑cause why the allotment should not be cancelled but the said notice was subsequently withdrawn on the ground that the Chief Settlement Commissioner was not competent to issue such a notice. The Province of the North West Frontier filed writ petition (No. 179 of 1973) for setting aside the allotment in question but the same, too, was dismissed on 12‑11‑1973. Despite all this, the Chief Settlement Commissioner served another notice to Noor Muhammad to show‑cause whey the allotment should not be cancelled and ultimately by order, dated 25‑5‑1974 cancelled the land in question obliging Noor Muhammad to file a writ petition in this Court (Writ Petition No.134 of 1976) and an Hon'ble Judge of this Court by his judgment, dated 6‑3‑1985 accepted the writ petition holding that the Settlement Commissioner had exercised the powers as delegatee of the Chief Settlement Commissioner and as such the latter was not left with the powers to vacate the order passed by the former. Consequently, the allotment made in favour of Noor Muhammad stood valid for all intents and purposes. Mst. Nawabzadi Sitara Begum etc., filed appeal in the Supreme Court of Pakistan and their Lordships of the Supreme Court by judgment, dated 16‑6‑1985, dismissed the appeal holding that repeated enquires on the same ground are not permissible under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, as principle of res judicata is applicable to the exercise of that powers. Their Lordships observed that in the circumstances the High Court justifiably set aside the order of the Chief Settlement Commissioner, dated 25‑5‑1974, unsettling the allotment of Noor Muhammad.

3. It appears that while the proceedings for cancellation of allotment of land in favour of Noor Muhammad, as a result of suo moto show‑cause notice, were pending before the Chief Settlement Commissioner, Fazal‑ur-?Rehman, respondent managed to get one Kanal of land allotted in his name by order, dated 25‑4‑1974. Once, it is clear, and surely it is so on record, that the land allotted to Fazal‑ur‑Rehman stood already allotted to Noor Muhammad, it was not available for allotment to Fazal‑ur‑Rehman and one fails to recapitulate as to how Fazal‑ur‑Rehman succeeded in getting the land allotted out of the Khasra numbers which already stood allotted to Noor Muhammad because as already observed the cancellation of the allotment of Noor Muhammad occurred on 25‑5‑1974.

4. Be that as it may, the allotment in favour of Noor Muhammad in respect of the land out of the Khasras numbers detailed above, including the one allotted to Fazal‑ur‑Rehman, stood judiciously resolved up to the highest leave of Supreme Court of Pakistan and is as such not open to further scrutiny/probe. The Settlement Department throughout the litigation in this Court as well as the Supreme Court of Pakistan was party to it and if there was any anomaly in the area of the Khasra numbers it could be and should have been worked‑out at the appropriate moment but once a dispute is finally resolved it cannot be allowed to be reopened at a subsequent stage. The order dated 19‑7‑1992 of the Chief Settlement Commissioner impugned herein, proceeds on the assumption that Noor Muhammad had been allotted land, measuring 105 Kanals and 16 Marlas out of the Khasras numbers detailed in para. 1 of his judgment. According to the Chief Settlement Commissioner, during settlement of 1967‑68 when new Khasras number were given to the existing Khasras numbers, the total of the land allotted to Noor Muhammad came to 108 Kanals and 18 Marlas, i.e. 3 Kanals arid 2 Marlas in excess of the entitlement of Noor Muhammad. It is not disputed that the new Khasras numbers have been given to the old Khasras numbers. The old Khasras were 15 in number and corresponding new Khasras are

24. It is also not disputed that old Khasra No.1572 has been given new "Khasras numbers 2675 and 2676. The area of Khasra No.2675 has been shows as 5 Kanals 9 Marlas while that of 2676 as one Kanal. Thus the total area of Khasra No. 1572, as a result of one Khasra Number has been worked out as 6 Kanals 10 Marlas. The old Khasra No‑1572 measured 5 Kanals 16 Marals. There is thus a disparity of 13 Marals while in the sum total the disparity has been shown as three Kanals 2 Marlas. This disparity if at all is deemed to be the result of proper measurement, still it happened during the settlement of 1967‑68 but the Settlement Department has woke‑up from the sleep, when volume of water passed under the bridge. No one cared to point out this disparity during the protracted litigation spread over a period of about 20‑ years when it was finalized in the Supreme Court but still alive in one shape or the other. Every thing is ultimately finished and this litigation, too, must now come to an end. The allotment the Khasras numbers, including the one in dispute, having attained finality after the verdict of the august Supreme Court, on flimsy grounds it should not be made a subject one further debate by running from post to pillor in one shape or the other, by hook or by crook, give judicious acknowledgement to altogether illegal, order, for, as remarked above, when the land was not even available for allotment it could by no stretch of imagination be allotted to Fazal‑ur‑Rehman. On the view of the matter that I look I accept this writ petition and declare that the land in Khasras No. 1572 (old) and 2676 (new) in the ownership of Noor Muhammad and its allotment to Fazal‑ur‑Rehman etc. is the result of the transgressed assumption of powers. No order as to costs. Q.M.H.iM.A.K./131 /P???????????????????????????????????????????????????????????????? Petition allowed