2004 PLP 80 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment, dated 29th April, 1999 passed by Lahore High Court, Lahore whereby writ petition filed by the petitioners has been allowed.

2. Precisely stating fact of the case are that the predecessor-in- interest of the petitioners on migration from India got allotted agricultural land in Chak No. 122 EB (former Tehsil Pakpattan; District Sahiwal presently falling in Tehsil Burewala, District Vehari) against their verified claim under the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the "Act"). In 1963 the predecessor-in- interest of the respondents Mana son. of Jamu lodged an information before the authorities under section 11 of the Act against the petitioners' predecessor-in--interest about getting allotted excess land. Accordingly in pursuance of such information the excess land was cancelled from the name of predecessor-in-interest of the petitioners as back as on 29th July, 1969. The petitioners preferred revision before the High Court, which was subsequently converted into a writ petition and was dismissed on 19th March; 1975. As such petitioners preferred civil petition for Special Leave to Appeal No.342 of 1975. Leave to appeal was declines confirming that the petitioners have in fact received excess allotment. While making such observations this Court observed as under:-- "The petitioners should go back and move the Settlement Authorities for allowing them to retain the excess area on payment of market value, on the ground that they have been in cultivating possession thereof since their original allotments and have developed the same. We feel certain that the Settlement Authorities will give due and sympathetic consideration to their cases." It is important to note that after cancellation of the land from the name of the petitioners the concerned revenue authorities transferred the available land to the predecessor-in-interest of respondents namely Mana son of Jamu as back as on 29th August, 1969 and confirmed the same on 1st September, 1969 in exercise of jurisdiction under section 14A(1) of the Act.

3. It so happened that after disposal of C.P.S.L.A. No.342 of 1975 by this, Court the petitioners submitted an application on 17th March, 1976 for allotment of excess land, which was previously cancelled from their name. The Assistant Commissioner vide order, dated 19th February, 1976 sold an area equal to 30 PIUs at the rate of Rs.10 per PIU in -favour of petitioner Chiragh Din son of Noor Muhammad whereas vide order, dated 17th March, 1976 an area equal to 49 PlUs was sold to petitioners at the rate of Rs.10 per PIU. The order referred to hereinabove was questioned by respondent Mana son of Jamu by filing Writ Petition No.1258-R/1977 before the Lahore High Court, Lahore which has been allowed by means of impugned judgment; dated 29-4 1999. As such instant petition for leave to appeal has been filed.

4. Learned counsel for the petitioners contended that order passed by this Court in C.P.S.L.A. No.342 of 1975 was a remand order in terms of section 2(2) of the Evacuee Property and Displaced Persons Laws Repeals Act, 1975, therefore, the Assistant Commissioner being a notified authority with lawful authority sold 79 PIUs to the petitioners respectively vide order, dated 19-2-1976' and 17th March, 1976, therefore, the High Court in exercise of its Constitutional powers had no jurisdiction to set aside these orders. In support of his contention he relied upon Farhat Azeem v. Waheed Rasul and others (PLD 2000 SC 18).

5. On the other hand learned counsel appearing for the caveators contended that this Court had not remanded the case to the Settlement Authorities by issuing a direction obviously for the reason that on merits no relief was, given to petitioners because the argument put forward on behalf of the petitioners before the High Court with regard cancellation of excess land from the name of the petitioners under section 11 of the Act was not accepted except making an observation that let the petitioners approach the Settlement Department for reconsideration of their case sympathetically because they were not holding excess land in their name on the basis of fraud etc. and they are also in cultivating possession. According to him reconsidering the case of the petitioners on sympathetically basis would not mean remand of the case but called upon the authorities to consider the case of the petitioners favourably and in accordance with law. He further stated that as the respondents got allotment of the land which was surrendered by the petitioners as far back as on 1st September, 1969 in terms of section 14A(1) of the Act, therefore, even if the authorities had considered the case of the petitioners sympathetically it had no jurisdiction to sell the same to the petitioners because it was not available having been sold earlier to the respondent.

6. We have heard parties counsel and have also gone through the impugned judgment carefully as well as earlier judgment passed by the Court as back as on 9th July, 1975, relevant portion there from has been reproduced hereinabove. There is absolutely no doubt that in pursuance of the judgment of this Court referred to hereinabove the cancellation of the land from the name of the petitioners was confirmed because the judgment of the High Court, dated 10th March, 1975 passed in Writ Petition No.806-R/1972 was operating against them and it was not set aside despite of the fact that specifically it was argued on behalf of the petitioners that under section 11 of the Act the decision of the High Court is in conflict. To strengthen the argument reference was made to PLD 1964 Lahore 469 and PLD 1972 Lahore 880. 'But this Court repelled the argument by making an observation to the effect that as regards second point is concerned, we do not think that the same needs to be decided. Therefore, no other conclusion can be drawn except that despite making favourable observations in favour of petitioners directing them to approach the Settlement Authorities, the latter was not asked sell the property to the petitioners except observing that their should be considered sympathetically. Therefore, we are of the that the case was not remanded to the Settlement Authorities redressal of grievance of the petitioners necessarily. This examined in view of the observations made by this Court in the case of Farhat Azeem (ibid) that under Article 189 of the Constitution of Islamic Republic of Pakistan the Supreme Court is the highest judicial forum in the country, it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. Invariably such matters are considered by more than one Judges having long experience and thrash out the proposition brought before them in the light of the chain of judgments rendered on the controversy in issue and ensure that continuity of law is maintained as it is essential for good judicial administration. The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and orders of the Supreme Court, for, it is necessary apart from the binding nature of the same for maintaining discipline in all ranks of judiciary, no other conclusion can be drawn that undoubtedly under Article 189 of the Constitution of Islamic Republic of Pakistan the judgments are required to be respected particularly if it has decided a question of law or enunciated a principle of law. We feel no hesitation in making observation that in the earlier judgment pronounced by this Court in C.P.S.L.A. No.342 of 1975 we have not remanded the case to the Settlement Authorities for doing the needful in favour of petitioners after setting aside the orders operating against them because our observations were that the claim of the petitioners can be considered sympathetically. Obviously the claim can of the petitioners only be considered if they succeed in establishing a legal right in their favour. Admittedly after the cancellation of land from the name of petitioners it was transferred permanently in favour of respondents, as back as in the year 1969 in terms of section 14A(1) of the Act, therefore, the land was not available for disposal in favour of the petitioners. Simultaneously the notified authority had no right to cancel the allotment from the name of respondents by recalling order, dated 1st September, 1969 which was passed under section 14A(1) of the Act because after allotment of land in favour of respondents a right has accrued in their favour' in terms of of this Court in the case of Jehangir Khan and 9 others v. Mst. Begum (1996 SCMR 1504).

7. It may also be noted that the contention of the learned counsel that the observations favourably made to favour of petitioners tantamounts to remand the case to the notified authority is not acceptable because considering the case of sympathetically means that he should be accommodated if possible but not at the cost of others, therefore, in our opinion the Assistant. Commissioner erred in law in passing order it favour of petition on 17th March, 1976 for number of reasons out of which one could be that when there is no property available for transfer how the petitions could be accommodated by considering their request sympathetically. Secondly the allotment of the cancelled land from the name of petition has already been confirmed in favour of respondents with effect from 1st September, 1969 and until and unless that order holds the field no subsequent sale of the property to the petitioners can take place. Therefore, we are of the considered opinion that this Court has not remanded the case to the notified authority/Assistant Commissioner a setting aside the order, dated 10th Match, 1975 in Writ Petition No.806 of 1972 operating against the petitioners and because order of cancellation of excess land has been confirmed by this Court, therefore, Assistant Commissioner had no authority to pass fresh order in their favour causing serious prejudice/injustice to the respondents who have acquired valuable rights in the property as held by this Court in the case of Jehangir and others (ibid). Thus under these circumstances learned High Court was quite justified in allowing the writ petition filed by respondents vide impugned judgment. As such for the foregoing reasons we see no merit in instant petition, therefore, the same is dismissed and leave to appeal declined. S.A.K./S-228/S Leave refused.