1999 PLP 1719 (SCMR)

B.Z. KAIKAUS, J

The petitioners in this petition seeks leave to appeal against an order of the High Court of West Pakistan, refusing to entertain a writ petition on the ground that a writ petition on the same facts had already been dismissed. The petitioners are sons of Nawab Faiz Ali Khan they had filed an application before the Rehabilitation Commissioner for a determination of question whether the land belonging to their father devolved on all the sons or whether it devolved on account of the rule or primogeniture on the eldest son, Nawabzada Mumtaz Ali Khan, respondent in this petition, alone. The Rehabilitation Commissioner found that the land had been standing in the name of Nawabzada Mumtaz Ali Khan alone since 1917 and he dismissed the application. Against this order the petitioners moved the High Court in the exercise of writ jurisdiction but the petition was dismissed in limine and no appeal was filed against the dismissal. After this a Deputy Claim Commissioner verified the claim of the petitioners in so far as related the urban immovable property on the basis that inheritance was governed by Muslim Law, and the petitioners again moved the High Court against the order of the Rehabilitation Commissioner. This petition was dismissed as already stated on the ground that a previous petition against the said orders had been dismissed. Learned counsel for the petitioner is unable to put forward any good arguments against the grounds stated by the High Court for the dismissal of the writ petition. The second writ petition was directed against the very orders of the Rehabilitation Commissioner which was the subject of attack in the first writ petition. The fact that in the meantime a finding in favour of the petitioners was given by the Deputy Claim Commissioner does not alter the situation. The grievance of the learned counsel is that no tribunal has as yet determined on the merits the question as to whether the petitioners are entitled to inherit their father's land. That may be so, but the remedy lies only with the Rehabilitation Authorities who have a clear jurisdiction in. the matter. The petition is dismissed. (Sd.) Mr. Justice Fazle Ak-bar. (Sd.) Mr. Justice B.Z. Kaikaus Lahore: 19th July, 1962 Not approved for reporting

14. Then Nawabzada Fayyaz Ali Khan and others initiated third round of litigation whereby a suit for declaration and Injunction No.4-10/l/54 was instituted on 4-7-1954 before Senior Civil Judge, Lahore, wherein two preliminary issues regarding jurisdiction were framed. The suit was, however, dismissed on 12-12-1958 for want of jurisdiction. Relevant observations are reproduced below:-- "Issue No. 1;

3. Only arguments were addressed on these issues and no evidence was adduced. This suit is very obviously a suit for determining the rights and interest in immovable property situated outside Pakistan. The decision in Regular Appeal 30 of 1995 is that 'as Courts in the Country are not competent, in our opinion, to determine rights and interests in immovable property situated outside Pakistan' etc. etc. The jurisdiction of this Court is very clearly ousted from entertaining the present suit. Issue No.2;

4. No doubt that according to the interpretation and application of law at the date of institution of the suit and the disposal of the legal issue initially framed the Courts in this Country had the authority to entertain such suit. But the case cited above, has very clearly ousted the jurisdiction of the Court in this Country and as long as this order has the binding force of law on-a purely issue this Court cannot continue on with the trial on the plea that according to the application of law prevalent at the time of institution of the suit the Court here had such jurisdiction. This Court has ceased to have jurisdiction and the case of the plaintiff must fail.

5. The result is that the suit is filed for want of this jurisdiction. The respective parties to bear their own costs. Announced in presence of parties. 12th December, 1958 (Sd.) Shafi-ur-Rehman, (Seal of the Court). "

15. Above decision was challenged before Additional District Judge, Lahore, in Civil Appeal No.269 of 1960, which was dismissed as withdrawn on 17-10-1960.

16. It appears that after lapse of more than 25 years petitioners Fayyaz Ali Khan and others commenced new phase of litigation and moved certain applications before Chief Settlement Commissioner whereupon order was passed on 25-4-1988 rejecting their entitlement, which was communicated on 23-2-1989. This order was, however, challenged by Nawabzada Fayyaz Ali Khan and others through Writ Petition N0.121-R of 1989 before Lahore High Court. This order has not been attached with present petitions but nature order and its existence is reflected from title of Writ Petition No. 121 -R of 1989 appearing at page 127 of Civil Petition No.1769-L of 1998 and is reproduced here for convenience:-- "Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Praying that the order, dated 25-4-1988 communicated to the petitioner through the letter dated 23-2-1989 may be declared to have been passed illegally 'without hearing the petitioner and is in operative against the rights of the petitioner and may be set aside and the respondent No. 1 may be directed to decide the matter pending before him in accordance with law after affording the opportunity of being heard to the petitioner."

17. This petition was not pressed and accordingly disposed of on 1-2-1990, order is reproduced below: -- "1-2-1990. Sh. Abdul Aziz and Mr. Muh4mmad Anwar Waraich, Advocates for the Petitioner. Mr. Sagheer Muhammad Khan, Advocate for the Applicants in C.M. No.4084 of 1989.

After arguing the case at considerable length, learned counsel for the petitioner state that they do not press. this writ petition as- the petitioner shall take appropriate remedy before the relevant authorities on the basis of the observations made in the judgment of the Supreme Court of Pakistan dated 19-7-1962 rendered in petitioner s Civil Petition for Special Leave to Appeal No.77 of 1962. Writ petition accordingly stands disposed of as not pressed. Since the main petition has been disposed of no order is called for in the application (C.M. No. 4084 of 1989):which, too, stands disposed of."

18. It is the case of petitioners, that representations were addressed to Member, Board of Revenue (Settlement and Rehabilitation Wing), Punjab seeking verification of claims. Copy of said representations are neither placed on record nor were available with any of the learned counsel appearing for petitioners. According to them representations were made after disposal of Writ Petition No.121,-R of 1989. No proceedings were obviously pending on said date before Settlement or Rehabilitation Authorities, or Claims Commissioner of any Province.

19. Details are not available. 'However, it appears that above-referred representations and certain subsequent applications moved by Nawabzada Fayyaz Ali Khan and others were treated as. Case No.10-91 SC whereby entire area covering 80,000 Units on the basis of claim bearing No.6107 filed by only Nawabzada Mumtaz Ali Khan was directed to be given to all the four sons of deceased Nawabzada Faiz Ali Khan by means of order, dated 26-2-1992 passed by Mian Ehsanul Haq, Settlement and Rehabilitation Commissioner altogether ignoring return/rejection of their Claim Form No.8258. Operative portion is reproduced below:-- "

16. Considering all this, I have come to the conclusion that no substantial evidence exists to show that the succession of Nawab Faiz Ali Khan was to be governed by rule of primogeniture. Hence, following the principle laid down in 13 Punjab Records, 1875, as re-affirmed by the judicial pronouncement of the Authorities in the Claims Organization which have since attained finality. Nawabzada Fayyaz Ali Khan, Aftab Ali Khan and Rajab Khan being admittedly the sons of Nawab Faiz Ali Khan have to be treated at par with their eldest brother Nawabzada Mumtaz Ali Khan. Accordingly, they are declared to be entitled to the inheritance in the agricultural land of Malkana Estate in equal shares and consequently the right to get allotment of agricultural land to the extent of their respective shares.

17. The entire area of 6,597 Bighas abandoned in Village Malkana. India was verified against Claim Form No. 6107 filed by Nawabzada Mumtaz Ali Khan. The total Units of this claim come to about 80.000 out of which the claim to the extent of 36.000 P.I.Us. has already been got allotted to Nawabzada Mumtaz. Ali Khan in Villages Sanatpura. Akbar Ghanoke and Kingrianwali, Tehsil and District Gujranwala. As a result of this pronouncement, it is ordered that all the four brothers should be formally treated as heirs of Nawab Faiz Ali Khan and should be given equal shares in the Claim Form No.61-7 to the extent of 20,000 Units each. Since, however, Nawabzada Rajab Ali dies issueless, his share of units will be distributed equally among the three other brothers or their legal heirs. In this way, the entitlement of Nawabzada Mumtaz Ali, Nawabzada Fayyazy Ali Khan and Nawabzada Aftab Ali Khan or their heirs will be enhanced from 20,000 Units to approximately 26,666 Units each. Nawabzada Mumtaz. Ali Khan has already got allotment to the extent of 36,000 Units, which is in excess of his actual entitlement to the extent of 9334 Units. These allotments are very old and most of the allotted area has been sold to different vendees and has since changed hands. The present petitioners, who are heirs of Nawabzada Fayyaz Ali Khan and Aftab Ali Khan have voluntarily surrendered their claim to the excess allotment obtained by Nawabzada Mumtaz Ali Khan and have expressed willingness to accept proportionate reduction in their own entitlement. Accordingly, all the allotments of agricultural land obtained by Nawabzada Mumtaz Ali Khan or his heirs against Claim Form No. 6107 will not be disturbed and shall remain intact. The net result would be that the entitlement of Nawabzada Fayyaz Ali Khan and Nawabzada Aftab Ali Khan will be reduced from 26,666 Units to approximately 22,000 Units each and the present petitioners being their legal heirs will be entitled to get aflotment to the said extent i.e. up to 22,000 Units in each case.

18. It is, therefore, ordered that the concerned Authorities of District Gujranwala, where Claim Form No.61-7 is pending, should proceed further in accordance with para. 67 of the Rehabilitation Settlement Scheme to settle the shares of the present petitioners, as indicated above, by sanctioning necessary mutations of inheritance and issuance of Certificate of Units in their favour according to the shares as determined vide this order. The petitioners will be entitled to get allotment of evacuee agricultural lands available anywhere in the Province against these entitlement Certificates which should be transferred to any other place as per their choice, if so desired."

20. Three Writ Petitions namely 183-R of 1992, 62-R of 1993 and 10-R of 1993 were filed before Lahore High Court against above order of Chief Settlement Commissioner, which were dismissed by common order dated 18-4-1993. Concluding portion of said judgment appearing at paragraphs 8 to 11 reads as: "

8. Writ Petition No.62-R of 1993 has been filed by Mst. Qamar Sultan daughter of Faiz Ali and her case is that she is entitled to the share of land from her father and that- there is no legal justification to ignore her when her brothers have been allocated shares from the property of father.

9. Sh. Abdul Aziz learned counsel appearing in W. P. No. 10-11 of 1993 on behalf of legal heirs of Nawabzada Fayyaz Ali Khan and Nawabzada Aftab Ali Khan conceded that they are willing to surrender a portion of the shares and that this matter can be amicably settled. One of the petitioners was present and the statement was made by the learned counsel on the basis of the instructions of the petitioners. In this writ petition the learned counsel for Mst. Qamar Sultan agreed to this arrangement and in view of this it is directed that the parties shall settle the matter within two months otherwise Mst. Qamar Sultan would be at liberty to file a fresh writ petition.

10. The petitioners in W.P. No, 193-R of 1992 totally deny the claim of Mst. Qamar Sultan and are not willing to surrender any portion of the claim/land in her favour. In these circumstances a direction is issued to petitioners in W.P. No. 183-R of 1992 to settle with Mst. Qamar Sultan within two months failing which the latter would be at liberty to file another writ petition.

11. In the Writ Petition No. 10-R of 1993 it -is prayed that the petitioners are entitled to some more area and that the impugned order dated 26-2-1992 may be directed to be implemented. As to the first contention I do not find any force in the request of the petitioners. The learned Settlement Commissioner has already determined the entitlement and these petitioners have no right whatsoever to claim more units, As to the other contention the request is reasonable because the petitioners are in litigation for the last several years. One of their brothers Mumtaz Ali Khan had already been settled in 1950 and there is no reason whatsoever that the other brothers may not claim equal treatment and in view of this it is directed that the order of the Settlement Commissioner dated 26-2-1992 be implemented subject to compromise with Mst. Qamar Sultan as stated above. In view of above Writ Petition No. 183-R of 1992 is dismissed in limine and the other two Writ Petitions Nos. 10-R and 62-R of 1993 are disposed of in terms of direction made in this order. "

21. Civil Petition for Leave to Appeal No. I 153-L of 1993 filed by heirs of Nawabzada Mumtaz Ali Khan and others was dismissed refusing leave to appeal vide order dated 29-1-1995. Operative portion after narration of facts, from above judgment is reproduced here:-- "Syed Munir Hussain, learned counsel -for the petitioners argued that the Member, Board of Revenue, had no jurisdiction to entertain the matter or to pass on the same to the Settlement and Rehabilitation Commissioner, Punjab and that the allotment of land can take place only on the basis of record received from India without effecting any change in terms of para.29 of Settlement and Rehabilitation Scheme. It was also argued that he matter cannot be reopened at this stage. Ch. Khurshid Ahmed, learned counsel for respondents 2, 4, 5, 6 and 8 opposed the petition vehemently. He argued that the legal heirs of Faiz Ali except Mumtaz Ali Khan , were minors when he died and that order of the Settlement and Claims Commissioner, Lahore dated 5-11-1969 passed on revision petition of brothers of Mumtaz Ali Khan against Mumtaz Ali Khan was challenged in Writ Petition No. 915-R of 1993 filed by Mumtaz Ali Khan which was dismissed in default on 15-10-1984 and such dismissal was not challenged before any authority. The learned counsel further argued that distribution of the urban property left by Faiz Ali was according to Mohammedan Law except that female heir ' s were, excluded from inheriting. It was also argued that existence of custom by which entire property left by Faiz Ali was to go to his eldest son, was not established. It was added that even otherwise Mumtaz Ali Khan was not an aggrieved party because as per the settlement arrived at in the three writ petitions disposed of under the impugned judgment, the excess area would not be cancelled from the name of Mumtaz Ali Khan. These arguments were adopted by Mr. Abdul Aziz learned counsel for remaining respondents. Under the impugned judgment, the learned Single Judge in Chamber appears to have proceeded on sound and equitable principles. Since the urban property left by Faiz Ali was distributed amongst all his four sons, there is no reason why the rural agricultural property should be given in its entirety to the eldest son of Faiz Ali. There is force in the contention that Mumtaz Ali Khan is not an aggrieved party after passing of the impugned judgment. In our view no case is made out for grant of leave to appeal and this petition stands dismissed."

22. Thereafter, proceedings for implementation of order dated 26-2-1992 were drawn and different orders concerning adjustment of Produce Index Units were passed. It was noticed that lands were being procured by concealment of certain facts. Therefore, eventually Settlement Department challenged validity of order and proceedings in that behalf; through Writ Petition No,91-R of 1998. Another Writ Petition No.66-R of 1998 was also tiled by Muhammad Sharif owner of certain area of land which was being transferred to petitioners during process of implementation. It may be seen that somehow fraudulent action of the Department in procuring certain area of land was -placed by way of Summary before Chief Minister of Punjab who on 12-2-1998 directed Chief Settlement Commissioner, Punjab to proceed in accordance with law in dealing with fraudulent allotments, so that public interest was safeguarded, This order was challenged by Nawabzada Ayyaz Ali Khan and others through Writ Petition No.77-R of 1998. The above three petitions came up for consideration and were eventually disposed of through common judgment dated 6-7-1998. Petition No.91-R of 1998 was accepted holding the allotment to be without lawful authority, whereas Writ Petition No.77-R/98 was dismissed having no merits. The above judgment has been assailed before this Court through present petitions for leave to appeal.

23. Learned counsel for the parties have addressed arguments at considerable length. Main controversy in these petitions revolves around validity of order dated 26-2-1992 passed by Settlement and Rehabilitation Commissioner (Notified Officer); legality of common judgment dated 6-7-1998 of Lahore High Court and scope of interference by this Court in exercise of discretionary jurisdiction within the purview of Article 185(2) of the Constitution under peculiar circumstances of instant case. Firstly, it may be seen that after death of Nawab Faiz Ali Khan during year 1917 at Kamal; entire agricultural property left over by him was undisputedly transferred and mutated in favour of Nawabzada Mumtaz Ali Khan, the eldest son, This position remained intact until partition of Sub continent in 1947 when predecessor in title of parties migrated to Pakistan. This position was affirmed during verification of claims made by the Central Record Office. Lahore.

24. It is further an admitted feature that none amongst other three brothers or sister claimed any share or instituted proceedings before the Courts at Patiala State challenging mutation entries carried out in favour of Nawabzada Mumtaz Ali Khan concerning agricultural property left over by deceased Nawab Faiz Ali Khan. Learned counsel for petitioners had endeavoured to urge said three brothers being minors could not challenge validity of mutations before any forum in India. The argument may be attractive but obviously without legal force. Even if notionally it is assumed that one amongst them was posthumous, they would attain majority after 18 years. Thus, failure to challenge validity of mutation thereafter for next more than 12 years was fatal and certainly constituted bar of limitation. It may be seen that by lapse of time normal remedy could not be availed within Patiala State, where actual cause of action had arisen to petitioners, therefore, right to challenge the same stood fore-closed. In the above circumstances none amongst petitioners or their predecessors could challenge the validity of mutation relating to agricultural property recorded at Patiala State in favour of Nawabzada Mumtaz Ali Khan after their migration to Pakistan.

25. Now we turn back to available record which reflects that proceedings initiated by three brothers Nawabzada Fayyaz Ali Khan and others seeking entitlement for agricultural property left over by their father were not only rejected by the competent Rehabilitation Authorities (Lands) but claim in that behalf was also dismissed by West Pakistan High Court and finally by the Supreme Court vide-judgment dated 19-7-1962. In the last-mentioned judgment in C.P.L.A. No. 77 of 1962 instituted by Nawabzada Fayyaz Ali Khan and two others this Court had observed that counsel for petitioner was unable to put forward any sound argument against the grounds stated by the High Court for dismissal of Writ Petition. It was, however, elaborated that mere fact that Deputy Claims Commissioner has given finding in favour of petitioners would not alter the situation. However, as regards grievance that no tribunal had determined merits concerning petitioners' entitlement of inheritance in their father's land, a general observation was made that remedy lies only with Rehabilitation Authorities who have a clear jurisdiction in the matter. It is pertinent to note that general remarks in the concluding portion merely highlighted the legal position and did not provide liver or immunity to petitioner for instituting proceedings on that basis at any stage of time. Factually in the operative portion, of above judgment of this Court, dated 19th July, 1962, the orders of Land Settlement Authorities and High Court refusing to reopen question regarding validity of existing mutation were confirmed which had obviously attained finality and was binding upon the parties.

26. Subsequently even civil suit filed by predecessors of petitioners' seeking declaration and injunction concerning entitlement to inherit agricultural property left over by Nawab Faiz Ali Khan in State of Patiala, was rejected on 12-12-1958 expressly mentioning that Civil Courts have no jurisdiction to determine rights or interest pertaining to immovable property situated outside the limits of Pakistan. The appeal filed by Nawabzada Fayyaz All Khan and others was withdrawn on 17-10-1960, resultantly said decisions had also attained finality. It is relevant to mention here that petitioners are primarily relying upon order of Deputy Claims Commissioner dated 18-5-1959 which was initially set aside by Additional Claims Commissioner on 25-4-1961 but was subsequently restored vide order dated 5-11-1969 passed by Settlement and Claims Commissioner, Lahore which mentions about concession made by their predecessors concerning agricultural property. Therefore, they cannot turn around and later challenge the same once again.

27. Additionally Claim Form No.8252 filed by three brothers namely Fayyaz Ali Khan, Rajab Ali Khan and Aftab Ali Khan for obtaining their share of land which was recorded in the name of their brother Mumtaz Ali Khan was rejected. The said order also attained finality and could not be reviewed or called into question specially after more than two and half decades. Factually no forum could call into question the validity of decision made by forums constituted under Registration of Claims (Displaced Persons) Act 11 of 1956. Matter having attained finality was past and closed for all intents and purposes. This view is supported by observations of this Court in case Muhammad Siddique etc. v. Abdul Majid etc. (Civil Appeal No.506/93). Decided on 23rd February. 1999. Relevant observations are reproduced below- "The organizations created under Act III of 1956 and Act XLVII of 1958 are not only different in their functions but they exercise jurisdiction in different sphere which are well-defined, Fraud, no doubt vitiates most solemn proceedings, but an order obtained through fraud is only voidable and unless it is set aside in appropriate proceedings, it holds the field. To avoid the effect of an order obtained by fraud two courses are open. Either it can be challenged directly by way of proceedings prescribed for that purpose or it can be attacked collaterally. The view that a Tribunal of limited jurisdiction cannot recall an order obtained from it by practising fraud unless statutory provisions exist in this behalf, has undergone change. The preponderance of judicial authorities now is in favour of conceding such a power to every Authority, Tribunal or Court on the principle that fraud vitiates all proceedings. However, such power available to an authority or tribunal of limited jurisdiction to recall an order obtained through fraud does not extend to cases where the order is attacked collaterally in the proceedings. The power to disregard an order obtained by fraud or misrepresentation in a collateral impeachment, is available only to superior Courts or the Courts of general jurisdiction. Such power is not available to a tribunal which either acts in an administrative capacity or enjoys only a special or limited jurisdiction in defined sphere (see Chief Settlement Commissioner v. Muhammad Fazil, PLD 1975 SC 331). There is nothing in the language of sections 10 and 11 of Act XLVII of 1958 to indicate that an officer appointed under it could upset or recall the order passed by an officer appointed under the provisions of Act 11 of 1956. It is true that the officers in the hierarchy of Act XLVII of 1958 have been authorized to set aside or cancel the order of allotment obtained by practising fraud and misrepresentation by a claimant but this authority conferred on the officer appointed under Act XLVII of 1958 is confined only to the alleged fraud committed with reference to the proceedings arising under that Act. There is no doubt in our mind that an officer exercising power under Act XLVII of 1958 has no authority to recall or set aside an order passed under Act III of 1956. In the above-stated legal position, if there was an allegation of fraud with reference to any proceedings decided under Act III of 1956, the same could not be upset or interfered with by the officer exercising power under-Act XLVII of 1958. The whole case of the appellants is built upon the order passed by the notified officer/Chief Settlement Commissioner dated 29-12-1985. A bare reading of this order shows that the allotment of land in favour of Chand Bibi, under Act XLVII of 1958 has been held to be fraudulent on the ground that the claim of Mst. Chand Bibi under Act III of 1956 was verified as a result of fraud and misrepresentation. This collateral attack on the validity of the verification of claim of Mst. Chand Bibi under Act III of 1956 could not be entertained by the notified officer/Chief Settlement Commissioner who was exercising power under sections 10 and 11 of Act XLVII of 1958. It is admitted before us that until the repeal of Act III of 1956 by Act XIV of 1975, no proceedings were filed or initiated under Act III of 1956 to question the validity of claim verified in favour of Mst. Chand Bibi under Act III of 1956. therefore, attained finality, The Settlement Commissioner exercising powers under sections 10 and 11 of Act XLVII of 1958, therefore, could not interfere with the order passed in favour of Mst. Chand Bibi under Act III of 1956 even on the ground that the order was obtained by fraud. We are, therefore, of the view that the learned Judges of the Division Bench were right in observing that the order passed by the Chief Settlement Commissioner was not sustainable in law and that the heirs of Mst. Chand Bibi were entitled to the allotment of land in accordance with the entitlement of Mst. Chand Bibi determined under Act III of 1956. The learned counsel for the informer as well as Settlement Authorities, however, very vehemently argued that even according to verified claim of Mst. Chand Bibi, the allotment was in excess of the entitlement of Mst. Chand Bibi, as determined under Act III of 1956. If it was so then to the extent of the allotment made in favour of Mst. Chand Bibi or her legal heirs which was in excess of the entitlement determined under Act III of 1956, the same could be resumed and allotted to the Informer in accordance with the law. The teamed counsel for the appellants in support of his contention that while exercising power under sections 10 and 11 of Act XLVII of 1958, the Chief Settlement Commissioner could interfere with the verification of the claim made under Act III of 1956 if the same was obtained by fraud, has relied on the case of Qutubuddin v. Hidayat Ullah Khan Mokal (1976 SCMR 524). The judgment relied upon by the learned counsel for the appellants is not only distinguishable on facts but it is an order whereby leave was refused against the judgment of the High Court. In our view, the case relied upon by the learned counsel for the appellants must be considered in the light of the facts of that case. In that case, it was held that where fraud was committed both on the- Claims Registration Authorities as well as Settlement Authorities, the transaction in such a case as a whole will become void ab initio. " In the case Muhammad Yaqoob v. Nazar Khan (1983 SCMR 1252) a learned Division Bench of this Court while considering a similar contention, observed as follows:-- "

4. After hearing the learned counsel at length, however, we find no force in any of the contention. The findings arrived at by the learned Judge in the High Court are supported by the decision of this Court in Officer on Special Duty v. Bashir- Ahmed (1977 SCMR 208) which has been referred to and relied upon. We further feel that the case advanced before the Settlement Commissioner in the application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act being that Jaurey Khan had died in India would seem to relate to the registration of the claim under the Registration of Claims (Displaced Persons) Act. 1956 and consequently the Settlement Authorities would be incompetent to deal with the question of fraud committed upon the officers of the claims organization, under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, In the circumstances and for reasons assigned by the High Court, there attached no finality to the findings recorded by the Settlement Commissioner in his order dated 19-9-1975 so as to oust the Constitutional jurisdiction. We are, therefore, of the view that the order of the learned Division Bench of the High Court holding that the Chief Settlement Commissioner while exercising power under sections 10 and 11 of Act XLVII of 1958 could not interfere with the order of entitlement of Mst. Chand Bibi or her legal heirs determined under Act III of 1956, does not warrant any interference by this Court The appeals are, accordingly, dismissed but there will be no order as to costs . "

28. The record amply discloses that other three heirs of the deceased Nawab Faiz Ali Khan, had started pursuing their claim concerning urban property only and remained into deep slumber as regards controversy of the agricultural property which .had been factually set at rest. However, after about two and half decades during year 1989 some applications were submitted to Chief Settlement Commissioner, who rejected their request on 25-4-1989, which was challenged before Lahore High Court in Writ Petition No.121-R of 1989. It is interesting to note that ultimately on 11-2-1990 petitioners did not press said petition on the statement that they intend to approach relevant authorities on the basis of observations made by Supreme Court in its order dated 19-7-1962. Said petition was disposed of as not pressed. Evidently by the disposal of said writ petition for having not pressed, even the order of Chief Settlement Commissioner dated 2-5-4-1988 attained finality and same could not be ignored.

29. It is not disputed that petitions before Chief Settlement Commissioner or representation to Chief Minister were made by successors of two brothers namely, Fayyaz Ali Khan and Aftab Ali Khan because by that time Rajab Ali Khan as indicated from the record had expired issueless, during year 1986. Important question, therefore, would arise for consideration whether any proceeding for claiming agricultural lands could be instituted after February, 1990 before Settlement and Rehabilitation Authorities, when (i) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), (ii) Displaced Persons (Land Settlement) Act (XLVII of 1958), (iii) Registration of Claims (Displaced Persons) Act (III of 1956) and (iv) Pakistan (Administration of Evacuee Property) Act (XII of 1957) alongwith the other allied laws had been repealed by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975) (PLD 1975 Central Statutes 87) (hereinafter referred as "The Repealing Act') with effect from 1-7-1974. Simultaneously it would require consideration whether any petition freshly instituted during year 1990 could be deemed as pending matter merely because it had been filed by persons claiming to be aggrieved on the basis of general remarks appearing in judgment of this Court as far back as 19-7-1962. In order to appreciate whether the above proceedings could be treated or deemed as pending, it would be advantageous to refer subsections (2), (3) and (4) of section 2 of ' The Repealing Act' which are reproduced below for ready reference:

"

2. Repeal of certain laws.--(1)........... (2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. (3) As proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or regulation hereby repealed to which the proceedings relate. (4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."

30. Bare perusal of above provisions would disclose that only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers". The Settlement or Rehabilitation Authorities by express positive assertion have no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning agricultural property left over by Nawab Faiz Ali Khan in Patiala State was neither remanded by this Court in the above judgment, dated 19th July, 1962, nor any such directions were made by the High .Court while dismissing the Petition No.121-R of 1989 on 11-2-1990, whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation filed by the petitioners with regard to matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of 'The Repealing Act'. Therefore, proceedings drawn by Settlement Commissioner which culminated in passing of order, dated 26-2-1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground. There is plethora of case-law on this aspect, however, some of the reported judgments may be referred (i) Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104); (ii) Khuda Bakhsh v. Khushi Muhammad (PLD f976 SC 208); (iii) Munsab Ali v. Amir and others (PLD 1971 SC 124); (iv) Maj. Syed Walayat Shah v. Muzaffar Khan (PLD 1971 SC 184); (v) PLD 1975 SC 450 (Sindh Employees' Social Security Institution v . Dr. Mumtaz Ali Taj) and (vi) PLD 1997 SC 351 (Province of the Punjab v. Dr. S. Muhammad Zaffar Bukhari).

31. Now adverting to the other aspect, it may be seen that after finalization of claim and grant of maximum land to Nawabzada Mumtaz Ali Khan matter connected with disposal of agricultural property of late Nawab Faiz Ali Khan had been finalized and closed. On promulgation of 'The Repealing Act' entire rural and urban evacuee property vested in Provincial Government by operation of law. Therefore, except to the extent of pending matters specified in above enactment, said property was not available to Settlement or Rehabilitation Authorities for disposal in any manner. In this behalf reference can be made to following observations in case PLD 1991 SC 1255 (Syed Saifullah v. Board of Revenue, Balochistan):--

8. With the repeal of Evacuee Laws in 1975, the unalloted agricultural land vested in the Provincial Government against price paid for it. Thereafter its disposal had to take place according to the scheme to be framed by the Provincial Government. The scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified Produce Index Units. For this reason the allotment made after 1975, in favour of the persons from whom the appellant was claiming, was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact."

32. It appears that legal and factual position and import of orders passed by various forums in this case were neither correctly presented nor properly construed by the Notified Officer while passing order, dated 26-2-1992.

33. It was emphatically argued that said order of Notified Officer was upheld by the High Court and eventually by this Court while rejecting CL.P.L.A. No.1153 of 1993, decided on 29-1-1995, therefore, same could not be legitimately challenged in writ before High Court. It may be seen that objections regarding validity of order passed by Settlement Authorities was not raised before the High Court in Writ Petition No.183-R of 1992, abroad question about entitlement of all brothers and adjustment of land was dismissed. Similarly points relating to jurisdiction of notified officer in view of 'The Repealing Act' was not agitated or determined. The decision of this Court after narrating facts merely related to disbursement of rural agricultural property amongst all the four sons, therefore, petition for special leave was merely dismissed keeping in view principle of equity and maintainability by holding that Mumtaz Ali Khan was not aggrieved party after announcement, of impugned judgment by the High Court. Therefore, question with regard to competency of Chief Settlement Commissioner to pass the order, dated 26th February, 1992 OR entertaining fresh petition after lapse of 30 years were not attended to. It is well-settled that one Bench of the Supreme Court cannot sit as Court of Appeal over the orders or judgment of another Bench. Neither Article 184(3) of the Constitution confers jurisdiction nor any writ can be issued by the High Court in respect of a decision taken, by the Supreme Court. In this behalf authoritative observations wherein all previous case-law was considered appears in case Muhammad Ikram Chaudhry v. Federation of Pakistan (PLD 1998 SC 103).

34. However, with regard to entitlement of petitioners or their predecessors, we may mention that any course adopted to, directly or indirectly, challenging decision of Supreme Court cannot be approved, rather it is always deemed undesirable. Reference may, however, be made to observations appearing in case Abdul Majid v. Abdul Ghafoor (PLD 1982 SC 146). Normally any petition even obliquely aimed at interference with observations of Supreme Court would be deprecated with consequential action against all concerned in pursuing the same. Nevertheless in the instant case we have noticed that this Court had unequivocally rejected the claim of petitioners vide judgment, passed in C.P.L.A. No.77 of 1962, dated 19-7-1962. The general remarks which were contained therein have been misquoted subsequently and imports have been improperly utilized by the petitioners when pursuing their claim. Same impropriety was glaringly committed by the Notified Officer while passing final order, dated 26-2-1992, in Case No.10 of 1991/SC. Record manifests that petition filed by Ayyaz Ali Khan challenging above order was rejected by this Court primarily on the ground that he was not an aggrieved party. The question about validity of the order, dated 26-2-1992 and import of judgment, dated 17-6-1962 of this Court was not dilated upon. Therefore, placed in this awkward situation, even if the manner of challenging order of 'Notified Officer' or subsequent decisions is not appreciated on the above technical ground, the fact remains that patent illegality and inherent defect existing in the above order stands rectified through the impugned judgment of the Lahore High Court. The crucial point requiring consideration, therefore, would be whether at this stage when all the facts brought before us disclose that order, dated 26th February, 1992 of 'Notified Officer' inherently suffers from lack of jurisdiction and was passed completely without lawful authority, and being nullity in the eyes of law, could be legitimately supported and sought to be restored by invoking Constitutional jurisdiction for discretionary relief provided under Article 185(2) of the Constitution. From the facts discussed above it is apparent that confirmation of inherently defective or blatantly illegal order on the strength of technicalities would instead of f6stering justice perpetuate glaring illegality and promote retention of unlawfully obtained benefits therefore, in the background of above discussion 'and attending circumstances we do not find legal justification for exercising discretion to grant leave. The petitions are accordingly dismissed and leave to appeal is declined. M.BA./Z-28/S Petitions dismissed