P L D 1971 Supreme Court 779 (PLP)

"On a careful consideration of the facts of the case I am of the view that the property had vested in the Custodian on the 1st of March 1947, and it had acquired immunity from interference by the Courts or other authorities and the Custodian alone had the exclusive jurisdiction to decide the matter relating to it, I, therefore, decline to confirm the order of Mr. Muhammad Umar, Deputy Custodian of Evacuee Property,dated the 7th of December 1960, and accepting the recom. mendation made by Mr. Shamshad Hussain Zaidi, by his order dated the 2nd of October 1961, rejected application of Chaudhry Rehmat Ali and others, which they had filed under section 22 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957)." Sh. Bashir Ahmad, the learned counsel for the appellants, has rested his arguments before us mainly on the contention that in view of section 3 of Act X11 of 1957, the property not having been treated as evacuee property before the 1st of January 1957, could not thereafter be treated as evacuee property and settled on .respondents Nos. 4 to

22. It was pointed out by the learned counsel that since 1.951 after the Rehabilitation Commissioner released the land in dispute in favour of the Barrage authorities, it has continued to remain under the latter's control. It is true that the appellants have continued to remain in possession of the land since 1951 as lessees of the Barrage authorities. They had also made offers to purchase it on instalments basis, which, however, were rejected, and the, amount deposited by them for this purpose were ordered to be refunded. But this fact does not at all advance the appellant's claim for determining the evacuee or non-evacuee character of the property. The learned counsel for the respondents has raised a preli minary objection that the question whether the property is evacuee or non-evacuee is res judicata btween the parties, in view of the clear finding of the High Court, already mentioned above, made in Writ Petitions Nos. 101 and 129 of 1960. Reference has teen made to a case reported as Radha Shyam Datra v. Patna Municipal Corporation, Patna (A I R 1956 Pat. 182) wherein it was held: Even if one were to agree that the provisions of res judicata, as incorporated in section 11, Civil Procedure Code, may not strictly apply to successive writ applications, the general principle of res judicata, apart from section III, Civil Procedure Code can be made applicable to writ applications also." To the same effect is a Bombay case reported as Manahem S. Yeshoava v. Union of India (A I R 1960 Bom 196). In a case from the Supreme Court of India reported as Daryao v. State of U. P. (A I R 1961 S C 1457), some guiding principles were formulated in this respect,, which may be reproduced with advantage:- "If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 (Indian Constitution). If a writ petition is dismissed in limlne and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on merits, it would be a base if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in limine without passing a speaking order, then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie,, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes ft difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res iudicata against a similar petition filed under Article

32. If the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article 32, because In such a case there has been no decision in the merits by the Court." The principle of res judicata is invoked on the basis that a party who has lost the cause once, should not be allowed to agitate it on the same facts and on the same cause of action to unnecessarily harass the outer party. In the previous judgment of the High Court given between the same parties against the appellants; it was categorically held that the property in dispute was evacuee property. This does operate as a bar in the way of the appellants for agitating this matter once again against the respondents. Again the appellants had themselves taken the matter to the Custodian under section 22 of the Act XII of 1957, who also gave a finding adverse to them after examining the whole question. If, as argued by the learned counsel for the appellants, the Custodian had the exclusive and final jurisdiction to determine the character of the property to be evacuee or non-evacuee, it is difficult to see how can he get over this hurdle of the finality of the order of the Custodian made in the matter. Similarly, they had them selves also invoked the jurisdiction of the High Court at the earlier stage, and it does not lie in their mouth to say that the proceedings taken by them were of no effect and were merely taken in vacuum, as the High Court co;tld not deal with this matter because the jurisdiction lay conclusively with the Custodian. As remarked in the judgment under appeal, even on merits the appellants have no case. The general order of the Rshabi-i litation Commissioner in 1959 directing not to allot the Barrage) lands any more to the refugees, could not have changed the nature of the property. The property, which was admittedly evacuee property and which had vested in the Custodian as such could not by a simple declaration like this be changed into non evacuee property by an officer of the Rehabilitation Department. The Custodian alone could decide this issue regarding the charac- 8 ter of the property, and he has, in his final order, dealt with all the aspects of the matter and come to the conclusion that it was evacuee property. It is not disputed that the evacuees were grantees of this property and they had paid certain instalments also for acquisition of proprietary rights therein. It is also not disputed that in 1948, the lands were allotted to the appellants by the Rehabilitation authorities. In these circumstances, the a .sur.ption of the controi of tire lands by the Barrage authorities could aot extinguish the rights of the evacuees iu thess lands fur, any default committed by them after their evacuation. Section 8 of Ordinance XV of 1949, as repeateJ in Act Xl1 of 1957, fully protected their rights. It may also be mentioned that subsection (1) of section 3 of Act XII of 1957, on which reliance is placed by the learned counsel for the appellants, is not applicable to those cases which are covered by subsection (2) of the same section. Under sub section (3)(b) of the Act, it is provided that section 3(1) of the Act will not apply to property, which is occupied, supervised or managed by a person whose authority to do so after the 28th day of February 1947, has not been accepted or approved by the Custodian. The appellants are merely claiming the properties in dispute as the lessees of the Barrage authoriti.-s without any proprietary title to the same. They cannot, therefore, claim any thing more than what the Barrage authorities could themselves have claimed. The Barrage authorities could not have assumed the right to supervise or manage the properties nor could they have authorised appellants to occupy the same without the Custo dian's permission. Since the property is agricultural property, it is governed by section 3 of the Displaced Persons Land Settle ment Act of 1958. Under this provision, it was the duty of the Barrage authorities to disclose the nature of the properties in their posses3ion to the Rehabilitation authorities. Under sub section (2) of this section, any property referred to in sub section (1) shall, notwithstanding the provision of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of the Act. In view of what has been stated above, we are unable to find any fault with the judgment of the High Court, dismissing the writ petition of the appellants. This appeal is dismissed, but there shall be no order as to costs. K. B. X.x' Appeal dismissed.