1990 PLP 232 (SCMR)

SHAFIUR RAHMAN, J.‑‑The appellants who are successors‑in‑interest of one Sham Din, a verged claim‑holder, had been granted leave to appeal against the judgment of the Lahore High Court, dated 26‑9‑1978 whereby their Constitution petition seeking protection of their allotments made in 1951‑52 against the revisional order of Mr. I.U. Khan, the then Rehabilitation.: Commissioner, was dismissed. In a number of similar appeals the same question of law had come up for‑ examination and this appeal was heard alongwith those appeals.

2. Sham Din had settled in Chak No. 184/E.B. Tehsil and District Vehari. He was successful in securing allotment against his verified claim in Chak No.180/E.B. In 1956, the Rehabilitation Commissioner discovering that illegalities had taken place in making the allotment in this and other Chaks gave a general notice and heard the allottees in their respective villages and passed an order on 23‑11‑1956 annulling all the allotments till then made. By the same order the Rehabilitation Commissioner also laid down the guidelines for revising all the allotments and making future allotments. Pursuant to this directive the allotment of the appellants' predecessor‑in‑interest was tampered with and part of it was allotted to Fazla respondent No.2. This happened in 1958.

3. Abdul Ghafoor one of the persons affected by the order of the Rehabilitation Commissioner (Mr. I.U. Khan was the first to challenge the order of Mr. I.U. Khan) annulling all the allotments made till 23‑11‑1956. The matter came up before a Division Bench and has been reported as Abdul Ghafoor v. Rehabilitation Commissioner (P L D 1958 Lahore 48). There were 29 others but not the appellants or their predecessors‑in‑interest who had challenged that order in that petition. It was allowed and that order of the Rehabilitation Commissioner was quashed by the High Court. One of the parties to that Constitution Petition namely, Abdul Hafeez, finally preferred an appeal to this Court and succeeded. His case was reported as Abdul Hafeez v. Rehabilitation Commissioner (PLD 1966 SC 483). The order of the Rehabilitation Commissioner dated 23‑11‑1956 was held to be within his competence and valid and proper. Between the years 1958 and 1966 many other petitions challenging the same order were filed. One such Petition was Writ Petition No. 605/R of 1958 filed by certain affected allottees, in which too the appellants or their predecessors‑in‑interest were not the parties, and they challenged the same order of the Rehabilitation Commissioner passed on 23‑11‑1956. This Writ Petition was allowed following the decision in Abdul Ghafoor's case. A review of that decision sought by one of the parties to it namely, Allah Bakhsh failed on 10‑7‑1960 and the Civil Petition for leave to appeal filed against it by him also failed.

4. Different types of Constitution Petitions were also filed by which the verified claim‑holders sought the implementation of the orders of the Rehabilitation Commissioner passed on 23‑11‑1956 which had been upheld by the Supreme Court as valid in Abdul Hafeez's case. There were four such Petitions which came up for decision on 3‑3‑1970. Reasons given for dismissing them were as hereunder:‑ "In the absence of all the relevant facts out of which this case has arisen I am unable to pronounce any satisfactory judgment in favour of the petitioners. Needless to emphasise that it is the bounden duty of the subordinate Rehabilitation Settlement Authorities to apply the law pronounced in the different judgments of the superior Courts to the facts of each case before them, and in the exercise of my jurisdiction in these proceedings I am not called upon to interpret the law, for their benefit in the absence of the full facts of this case before me. For the foregoing reasons, 1 am constrained to reject this petition. But there shall be no order as to costs under the circumstances."

5. Subsequently two other Constitution Petitions were filed and this was done after obtaining orders from the Settlement Authorities with respect to the allotment against verified claim. These were Writ Petition No. 280/R of 1972 and Writ Petition No.298/R of 1972 and these were decided by the High Court on 12‑10‑1976. The operative part of the judgment of the High Court is as hereunder:‑ "The only point involved is whether all the judgments referred to above passed in various cases were judgments in personam or judgments in rem and whether the petitioners are bound by them or only those parties would be bound by the said judgments who were parties thereto. As mentioned above, it is admitted on record that the petitioners were not parties to any of the cases, referred to above whether setting aside the order of the Rehabilitation Commissioner or upholding the same. In this view of the matter they cannot be bound by any of the said judgments. It is also not denied that the land under their allotments was never subject matter of any litigation whatsoever and for that reason they were never made party in any case instituted before the High Court or the Supreme Court. Since the order of the Rehabilitation Commissioner dated 23‑11 1956, was never set aside in their case by any competent Court, therefore, the same will be applicable for decision of the petitioners' case."

6. As regards the efficacy of the judgments earlier rendered with respect to the validity and efficacy of the revisional order of the Rehabilitation Commissioner dated 23‑11‑1956, the learned Judge held as hereunder:‑ "The Rehabilitation Commissioner in spite of being party in the said writ petitions would be bound by that judgment qua the other parties not involved therein. In other words he would be obliged under the law to implement the order of Mr. I.U. Khan, passed in 1956 for the sake of the petitioners. He may, however, not be competent to implement the said order in the case of Allah Bakhsh as his writ petition against the order of Mr. I.U. Khan was accepted."

7. A fact to be noted and kept in view all the time is that the appellants and the contesting respondent No.2 were arrayed as parties not in any other litigation except Writ Petition No. 280/R of 1972 decided on 12‑10‑1976. This judgment was in fact attacked by C.P.LA. No. 1037/76 by some of those who were affected but leave was refused on 31‑3‑1977 and a review petition (No. 25‑R/77) against that order was also dismissed on 29‑10‑1977.

8. It was pursuant this litigation just referred to that the Settlement Authority in July and August, 1977 reaffirmed the allotments made in 1958 while implementing the revisonal order of the Rehabilitation Commissioner. This once again aggrieved the appellants and they instituted the Constitution Petition from which this appeal has arisen. It was Constitution Petition No.1150/R of 1977. The claim of the appellants was that the allotment made in favour of their predecessor -in‑interest did not violate any provision of law when made, could be protected even under the revisional orders of the Rehabilitation Commissioner and should not have been interfered with in the professed implementation of the revisional order. The learned Judge took note of all these submissions and disposed them of by observing as hereunder:‑ "Petitioners in this case are the successors of Sham Din. He was not a party in writ petition No. 605/R/58. Petitioners or for that matter their predecessor was confirmed land on 30‑12‑1951. After the order of Mr. I.U. Khan, in 1958 a portion of the land out of his 1951 allotment was confirmed in favour of respondent No.2 at Khata No. 155 of the register RL‑1I. The order has been reaffirmed by the Deputy Settlement Commissioner on 18‑8‑1977. Petitioners' grievance is that he should have been allowed to retain the entire land confirmed to him in the year, 1951. For reasons recorded above, petitioners cannot be permitted to question the allotment made to the respondent in the year 1958. This petition, therefore, has no merit and is dismissed. There will be no order as to costs."

9. Mr. A.R. Shaukat, Senior Advocate, learned counsel for the appellants has nothing more to add than what was urged in the Constitution Petition and has been dealt with in the judgment of the High Court.

10. The basic ground taken in this and all such Petitions is that the allotment made to the appellants' predecessor‑in‑interest in 1951 was never formally cancelled or revoked and the allotment made to the respondent subsequently was without notice to them. This ground omits to take note of the fact that the revisional order had the effect of its own force to annul the previous allotments and to direct allotments de novo in accordance with the guidelines provided in the same order. Hearing had preceded that general order. In view of such procedure having been adopted and the order getting protection of this Court in the case of Abdul Hafeez (P L D 1966 S C 483), the appellants cannot make out any case on the ground that individually the cancellation of the allotment had not taken place or a hearing was not afforded,

11. The allotment made in favour of the respondent in 1958 and re‑affirmed I in 1977 was at a stage when the appellants had no vested right in the land and they could not challenge it on any such ground. The High Court was, therefore, justified in not reopening the case. A strong ground for disentitling the appellants was that they were not parties to any of the litigations in which the order of the Rehabilitation Commissioner was quashed or declared as null and void. On the contrary, the appellants were parties to the litigation in Constitution Petition No.280/R of 1972 alongwith the contesting respondents where implementation of the order of the Rehabilitation Commissioner had been ordered. In view of the decision given by this Court in the case of Pir Bakhsh represented by his L.Rs. and others v. The Chairman Allotment Committee and others (P L D 1987 S C 145) such a decision inter parties would be binding notwithstanding the ratio of the decision in other cases referred to where the revisional order of the Rehabilitation Commissioner was quashed.

12. We find no merit in the appeal and dismiss the same. No order as to costs. A.A./5‑426/S Appeal dismissed.