P L D 1978 Supreme Court 270 (PLP)

NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the order dated 10‑1‑1978 of a learned Single Judge of the Lahore High Court passed on a review application moved by respondent No. 2 seeking certain clarifications of its order dated 15‑3‑1978 deciding the petitioners' W. P. No. 1464/R of 1977; leave is also sought from the order dated 16‑4=1978 of a Division Bench upholding the order dated 10‑4‑1978. The petitioners are vendees of the land in dispute from one Saeed Ahmad who had purchased it from Pultoo, an allottee under the Border Area Scheme. Subsequently, on the application of respondent No. 2 alleging that the allotment had been secured through misrepresentation and fraud by Pultoo, the Border Area Committee proceeded to cancel his allotment by its order dated 1‑11‑1977. The petitioners filed a writ petition in the High Court contending, inter alia, that they being bona fide purchasers from Pultoo the latter's allotment could not be cancelled without hearing them. A learned Single Judge found that this was indeed so and the order of the Border Area Committee was, on this score, found to be without lawful authority. In the judgment an observation was made by the learned Judge that prima facie the allotment had not been procured by misrepresentation because Pultoo had been duly identified before the Tahsilder. However, no definite finding was recorded and we think rightly so, because the learned Judge in the exercise of writ jurisdiction could not himself substitute a finding on a question of fact. The learned Judge repelled the petitioner's contention that with the repeal of the Displaced Persons (Land Settlement) Act, 1958 the Border Area Committee was no longer competent to review the allotments made by it. He relied on the decision of this Court in Mohammad Khan v. Border Area Committee (PLD 1965 SC 623), to the effect that Martial Law Regulation No. 9 under which the Border Area Committees were constituted was distinct from and independent of the Displaced Persons (Land Settlement) Act, 1958, and held that notwithstanding the repeal of the latter Act the Border Area Committee was competent to scrutinize the allotment in question. In the concluding paragraph of his judgment the learned Judge while declaring the order of the Border Area Committee to be without lawful authority inadvertently omitted to give a clear direction remanding the case, although that a remand was intended was quite manifest from the body of the judgment. Because of this, respondent No. 2 apprehending that the judgment of the learned Single Judge may not be understood as deciding finally and conclusively the writ petition and consequently the lis between the parties, sought review of the order dated 15‑3‑1978. The learned Judge by his order dated 10‑4‑1978 clarified that he had in fact ordered a remand while deciding the writ petition. It was further clarified that the application of respondent No. 2 before the Border Area Committee was deemed to be pending and had to be disposed of by it. The petitioners filed an Intra Court Appeal, inter alia, on the grounds that the remand was not justified particularly in view of the observation of the learned Single Judge that Pultoo was not a fictitious person and this is tantamount to a finding that his claim was not bogus. A Division Bench, while declining to interefere with the order dated 10‑4‑1978, affirmed that the application of respondent No. 2 was pending and the Border Area Committee would dispose it of in pursuance of the remand ordered by the learned Single Judge. Before us the learned counsel for the petitioners has reiterated the same legal question which he had unsuccessfully urged before the High Court. So far as the first contention that with the repeal of the Displaced Persons (Land Settlement) Act the Border Area Committee was no longer competent to review the allotments made by it earlier is concerned, we are clearly o the view that the West Pakistan Border Area Regulation (M. L. R. 9) is an independent enactment quite distinct from the Displaced Persons (Land Settlement) Act, 1958; and the repeal of the latter enactment does not affect the operation of the former in any way. Hence we find no force in this contention. It is also submitted that the order dated 10‑4‑1978 accepting the review application of respondent No. 2 is not sustainable because it was passed without notice to the petitioners. The learned Single Judge, as he himself stated in his order, had recorded a decision remanding the case in his Note Book and the omission, if at all can be considered to be one when the order dated 15‑3‑1978 is read in its entirety, was inadvertent and could be corrected. No prejudice has been caused to the petitioners thereby because the decision in the writ petition was in their favour and continued to be so even on review. We have in the earlier part of the order observed that in the circumstances of this case the only appropriate order that could be passed by the High Court was one of remand particularly when the petitioners themselves claimed that they bad not B been heard by the Border Area Committee before passing the order canceling the allotment of Pultoo. Besides, it is possible to look at the application on which the clarification was made by the learned Single Judge on 10‑4‑1978 as not a review petition stricto sensu, and h was open to the Court t correct its judgment and order upon the principle embodied in section 152, C. P. C. It was finally submitted by the petitioners that they were bona fide purchasers and the rights which they bad acquired in that capacity were not affected by the cancellation on grounds stated in the order of the Border Area Committee dated 1‑11‑1977 of the allotment of the original allottee unless they themselves are held to be privy to the fraud and misrepresentation committed by the original allottee. Reliance is placed on an order dated 12‑2‑1978 of a Bench of this Court granting leave to appeal to consider a similar question, a photostat copy whereof is placed before us, Perusal of the order shows that it is distinguishable. In the present case the main stress has been that the petitioners were not afforded opportunity to show to the Border Area Committee that they being bona fide purchaser had a certain right and some locus standi even in the matter of cancellation of allotment of the original allottee. Apparently this does not seem to be the case in the other matter, upon a plain reading of the said order. Since the case has been remanded t6 the Border Area Committee by the High Court, with which order we are not inclined to interfere being quit just and appropriate in the circumstances, the petitioners would be a liberty to raise this point before the Border Area Committee. In these circumstances it is difficult to see how the petitioners consider themselves as aggrieved by the order of the High Court. This petition muse fail and is hereby dismissed. s. A. H. Petition dismissed.