1980 PLP 991 (SCMR)

SHAFI‑UR‑REHMAN, J‑The petitioner seeks leave to appeal against an order of the Lahore High Court dated 2‑3‑1977 whereby the Constitutional petition filed by him was dismissed with costs.

2. A property belonging to Dev Raj, an evacuee, comprised two sepa rate units bearing different numbers being adjacent to one another. The properties were transferred to various persons on their applications or by means of auction. The petitioner purchased portions transferred to two such persons, namely, Ruqqia Begum and Nawab Muhammad Farahim Khan, In respect of another portion he alongwith Fida Muhammad applied for joint transfer by negotiation under M. L. R.

86. He also sought demarca tion of the property transferred to various persons so that his own entitlement as purchaser from such transferees may be placed' beyond any doubt. This application came up before the Deputy Settlement Commissioner for its final disposal on 27‑3‑1975. He found that M. L. R. 86 had been withdrawn by the Government and the property on that account could not be transferred by negotiation. As regards the other prayer it was held by the Deputy Settlement Commissioner that it had already been disposed of by an earlier order of the Deputy Settlement Commissioner passed on 9‑5‑1966 and he could not sit in judgment over it. This order of the Deputy Settlement Commissioner was challenged in the High Court. The learned Judge came to the conclusion that the demarcation sought for by the petitioner was a repetition of the request earlier made and disposed of by the Deputy Settle ment Commissioner on 9‑5‑1966. It was also found that from the record it appeared that the petitioner was a purchaser of Property No. 204 and could not claim any portion of the Property No. 206 and that he had dis entitled himself for a relief for the reason that he had put in forged documents and tried to get an order in his favour by false representation.

3. The learned counsel for the petitioner has taken us through the record to demonstrate that though the property belonging to the same evacuee had different numbers and the boundaries of each were identifiable and the transfers and the sales that had been taking place could be shown to bear out the case projected by the petitioner.

4. According to the learned counsel himself the petitioner has been time and again and since he purchased the property, making applications to get the property identified by demarcation or description and that he was never successful in getting it done. This objection an examination of the request earlier made and the order passed thereon which has been taken to preclude the petitioner from now repaginating the same matter. He made an application on 29‑4‑1966 addressed to the Deputy Settlement Commissioner and in that application he mentioned the fact that "the upper storey of the main gate of the portion still to be auctioned has been auctioned inclusive to the portion in the possession of undersigned and purchased by the above mentioned Nawab and the entrance (deorhi) is common for both the por tions". After narrating the rental of various portions he requested that the possession of the portion of the property to be auctioned on 10th May may be notified before the commencement of the bid to avoid any dispute and litigation between the purchasers and the department". An Inspector of the Rehabilitation Department submitted a report under the orders of the Deputy Settlement Commissioner on 9‑5‑1966 which, was approved by the Deputy Settlement Commissioner and it mentioned that "the portion occupied by Dr. Nisar Hussain is on the main gate of Property No. IV‑9‑R‑206, which is being auctioned in the recent auction list". This order was pointedly brought to the notice of the petitioner in the Deputy Settlement Commissioner's order dated 27‑3‑1975. He challenged it but in a different manner. In ground No. (iii) of the grounds of revision he stated that "the reference of the order dated 9‑5‑1966 is totally misconceived while there is no such order passed by Khan Nasir‑ud‑din Khan the then D. S. C. on the file while there was a report by the Settlement Inspector dated 9‑5‑1966 and there was no order passed by any competent authority. Thus the findings in this respect are also void." The same ground was repeated as ground No. (iv) to the grounds of the writ petition. In the petition before us however the same matter has been dealt with in ground (f) in the following terms: ‑ "That the order of the Deputy Settlement Commissioner dated 9‑5‑1966 on which the reliance has been placed by the Settlement authorities as well as the learned High Court was not at all relevant for the purpose of determining any of the controversies involved in the present case. There was no mention in the report of the Settlement Inspector which had been endorsed by the Deputy Settlement Commissioner."

5. From a reproduction of these facts it is abundantly clear that there was an order deciding an identical grievance, which had been passed as early as May 19.66 and in the face of it the Settlement Authorities were justified in not reopening the matter. The petitioner could not command them by invoking Constitutional jurisdiction to perform a duty, which had already been performed. The petition has, therefore, no merit and is dismissed.

6. Nothing said in this order should be taken to be a reflection on the bona fide or the mental state of the petitioner for this is a matter which is to be examined by the High Court as we find that while dismissing the petition a notice under section 476, Cr. P. C. had been ordered to issue to him for which separate proceedings were ordered to take place. Petition dismissed.