P L D 1966 (W (PLP)

WAHIDUDDIN AHMED, J.

This writ petition is directed against the orders of the Custodian, Evacuee Property, West Pakistan, Lahore, dated 12th October 1962 and the Chief Settlement & Rehabilitation Commissioner, dated 8th May 1963.

2. The facts leading to this writ petition are: that the agricultural lands described and detailed in Annexure `A' of the petition situated in Deh Malwah, Deh Tahli and Deh Manaro, Tehsil Moro, District Nawabshah, originally belonged to the Barrage Department. Prior to 1947 these lands were granted to some Hindus under the Barrage Scheme on instalment basis. On the establishment of Pakistan the Hindu grantees migrated to India. In the year 1948 Chaudhry Rehmat Ali and other petitioners, who are refugees from East Punjab were temporarily allotted these lands by the Rehabilitation Authorities. It, however, appears that on 25th April 1949, the Barrage Authorities cancelled the grants in favour of the Hindu grantees due to non-fulfillment of the conditions on which the lands in question were granted to them. The question of Barrage lands came up for consideration before. the Rehabilitation Commissioner, ,Sind, who by letter dated 22nd May 1951, addressed to the Collector of Nawabshah, communicated the following decision to him:

"Allotment of persons, mentioned against S. Nos. 1 to 4 of list No. 1 and of those shown in list No. 2 received with your letter under reference may be cancelled. The lands released as result of cancellation of those allotments, being Government Nakabuli, may not be re allotted but placed at the disposal of the Barrage authorities.

2. The allotment of refugees mentioned at S. Nos. 5 to 15 of the list may be renewed as they are reported to be genuine refugees and present at the site vide Mukhtiarkar's No. 278, dated the 31st March 1951. The lease money recovered should be credited to Barrage Head.

3. As regards the application of Mohd. Yakoob and 3 others, the Revenue Officer Barrage is being moved to give hem preference in purchasing the lands. In the meantime their allotments may also be renewed." It may be mentioned that this letter does not show in respect of which land the direction was issued by the Rehabilitation Commissioner. But the petitioners have relied on this document to show that the Rehabilitation Commissioner has taken out the lands in question from the Rehabilitation pool and placed these lands at the disposal of the Barrage Authorities for further action. It is alleged by the petitioners that on receipt of this letter they contacted the Barrage Authorities and made offers to purchase these lands on instalment basis and deposited 1/4th of the price in the Government Treasury. But as the grant of these lands was banned by the Government they continued as lessees under the Barrage Authorities.

3. It, however, appears that in the year 1959, the Additional Rehabilitation Commissioner, Hyderabad & Khairpur Divisions settled some of these lands on respondents Nos. 4 to

23. The petitioners made several attempts to challenge this allotment in order to avoid their ejectment from the lands in dispute. They filed two writ petitions, viz., Writ Petition No. 101/1960 and Writ Petition No. 129 of 1960. Both these writ petitions were disposed of by one of us by order dated 19th September 1960. The contention of the petitioners that the property in dispute was not an evacuee property was repelled on the' following observation:- "The main contention of Mr. Raza, the learned Advocate for the petitioners in both the petitions was that the right and interest of the Hindus who left some time in 1947 for India was not evacuee property and therefore, it could not be allotted in favour of the contesting respondents. I have given my best consideration to this question and I have come to the conclus ion that the right and interest of the Hindus in the lands settled on them by the Barrage Authorities was evacuee." It was further observed that the lands in dispute had vested in the Custodian from 1st of September 1947 and the persons who remained in possession of the land in question remained in possession on behalf of the Custodian. The order of the Assistant Rehabilitation Commissioner, Moro, for ejectment of the petitioners was, however, quashed on the ground that under Para. 18 of the Permanent Settlement Scheme, persons who occupy land under a valid permit from the Rehabilitation Authorities are to be treated as tenants of the permanent allotees under, the said Scheme. Such tenants could be ejected only on contravening the conditions laid down under Para. 19 of the Scheme. It was found that the allottees had not contravened the provisions of the Permanent Settlement Scheme and, therefore, the Assistant Rehabilitation Commissioner had no jurisdiction to eject them.

4. The petitioners did not stay their hands after the decision of these writ petitions. They then filed on 11th October 1960, an application under section 22 of the Pakistan (Administra tion of Evacuee Property) Act XII of 1957, for a declaration to the effect that the lands were not evacuee property. The matter was finally disposed of by the learned Custodian in F. 4 (594) 1960, by order dated 12th October 1962. The learned Custodian came to the following conclusion:

"On a careful consideration of the facts of the case, I am of the view that the property had vested in the Custodian on 1-3-1947, 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 7-12-1960 and accepting by the recommendation made by Mr. Shamshad Hussain Zaidi, by his order dated 2-10-1961, reject the applica tion of Chaudhry Rehmat Ali and others, which they had filed under section 22 of the Pakistan -(Administration of Evacuee Property) Act XII of 1957." The petitioners taking advantage of the observation of the learned Custodian that the property now vests wholly, and absolutely in the Central Government and it is for Central Government to take such action as it may deem fit in respect of this property, moved the Central Government for the transfer of the property in dispute to them. This letter was forwarded to the Chief Settlement Commissioner by the Government who in a sun moto revision by order dated 8th May 1963, upheld the allotment in favour of respondents Nos. 4 to 23 and rejected the application of the petitioners on the following observation:- "The Central Government vide their letter No. F. 8(25)/59 Clms., dated 15-9-59 had issued instructions that such resumed grants as had been disposed of by the Barrage Department should not be utilized under the West Pakistan Rehabilitation Resettlement Scheme. In the meanwhile arrangements had been arrived at with the Board of Revenue that the price of such lands as had been re-sold by the Barrage Department would be adjusted towards the amount payable by the Rehabilitation Department to the provincial Government towards the unpaid instalments of the evacuees. In the present case the land had mostly been permanently allotted to the respondents earlier than the issue of the instructions dated 15-9-59 to the local officers by the Settlement Organisation and as such there was no bar against allotment of such lands to claimants with verified claims by the local Rehabilitation Authorities. As a matter of fact the offer made by the petitioners had not been approved by any competent authority in the Barrage Department and was actually rejected and refund ordered. Since the Barrage Department itself did not approve of the sale to the petitioners, there is no justification at this stage to cancel the allotments validly made in favour of the petitioners against verified claims long ago in 1959, etc. The land in dispute which is purely evacuee property has already been disposed of under the West Pakistan Rehabilitation Resettlement Scheme and is not available ,for sale to the petitioners even under section 12 of the Displaced Persons (Land Settlement) Act, later. Most of the petitioners are non-claimants and those who had verified claims have already obtained allotments against the same. In these circumstances, I see no reason to interfere under sec tion 11 (4) of the Pakistan Rehabilitation Act with the allot ments already finalised in favour of the respondents and, therefore, reject this miscellaneous petition." The petitioners have challenged these two decisions in this writ petition.

5. It will be noticed that Chaudhry Rehmat Ali has filed this writ petition on behalf of himself and as Attorney for petitioners Nos. 2 to

16. In this connection, according to the allegations made in para. 1 of the petition, it is stated that this writ petition is filed in continuation of Writ Petitions Nos. 101 and 129 of 1960, and has been filed by Ch. Rehmat Ali on the basis of the power of Attorney given to him by petitioners Nos. 2 to 16 in the above-mentioned writ petitions. The respondents have challenged this fact. We have also perused the record of Writ Petitions Nos. 101 and 129 of 1960, and the special power of Attorney relied upon by Ch. Rehmat Ali is not traceable on these files. It is really very strange that the office accepted this writ petition without checking whether Ch. Rehmat Ali, petitioner No. 1 was competent to file the writ petition on behalf of the petitioners Nos. 2 to 16 as special Attorney. Since the special power of Attorney is not traceable on the record and there is no other proof that the petitioners Nos. 2 to 16 have authorised Ch. Rehmat Ali, petitioner No. 1 to file this writ petition on their behalf it could be disposed of on the short ground that it was not filed through an authorised agent. But since Ch. Rehmat Ali is also one of the petitioners and has raised certain questions which vitally affect his rights in the lands claimed by him arising out of the two above-mentioned orders, we would dispose of this writ petition on merits also.

6. Mr. Qureshi Mahmood Ahmed, the learned counsel for the petitioners has urged the following points in support of the petition:- (1). That the D. R. C. was not competent in 1959 to allot the property in dispute to respondents Nos. 4 to 23 in view of the order of the Rehabilitation Commissioner passed in 1951 not to allot the land in dispute. (2) That the Settlement Authorities should not have made distinction in the case of the petitioners in view of the fact that other parties in similar position have been transferred the land in their possession. (3) That the Settlement Authorities are estopped in law to resume the lands in dispute from the petitioners and allotting it to respondents Nos. 4 to 23. (4) That in view of section 3 of Act XII of 1957, the property having not been treated as evacuee property immediately before 1st January 1957, cannot thereafter be treated as an evacuee property. We propose to discuss these points separately.

6. The learned counsel for the petitioner is unable to point out any provision of law under which the Settlement Authorities could be said to be not competent to allot the property in dispute to respondents Nos. 4 to

23. He only contended that since in 1951 the Rehabilitation Commissioner had given a direction not to allot such lands, it being a final order was binding on the Settlement Authorities. This contention has no force. In the first place, once it is found that the property in dispute is an evacuee property, the Settlement Authorities had ample jurisdic tion to settle it on respondents Nos. 4 to

23. Secondly, the Rehabilitation Commissioner had no power to determine the status of any property. This was within the exclusive jurisdiction of the Custodion. Similarly, it is not possible to hold on the material brought on the record that the Settlement Authorities made any distinction in the case of the petitioners. Besides even if the alleged discrimination had been shown, it could have no material bearing on their competency to settle the evacuee properties acquired under section 3 of the Displaced Persons (Land Settlement) Act, 1958.

7. Petitioners' counsel further contended that the petitioners are in possession of the lands in dispute for a. long, time. They have developed it, raised construction and employed good deal of money and labour on its improvement. Since all this happened within the knowledge of the Settlement Authorities in law they ate estopped to deprive the petitioners of the property in dispute. This contention too is without substance. There is not a shred of evidence about the conduct of the Settlement Authorities which can lead to any such conclusion. Besides, there can be no estoppel against any statute.

8. The most important question, however, for consideration in this matter is whether in view of section 3 of Act XII of 1957, the property having not been treated as an evacuee property immediately before 1st January 1957, could be treated as an evacuee property and settled on respondents Nos. 4 to

23. In this connection also Mr. Qureshi, has referred us to the order of the Rehabilitation Commissioner passed in 1951. It will be noticed that that order makes no reference to the lands in dispute: It is also not clear as to whether this order of the Rehabilitation Commissioner was in fact implemented by the Deputy Rehabilita tion Commissioner. But on the material placed on the record there is good deal of force in the contention of the petitioners that the land in dispute thereafter remained under the control of the Barrage Authorities. The petitioners did make offers to purchase it on instalment basis, which as pointed out both by the Chief Settlement Commissioner and the learned Custodian were never accepted. On the contrary these offers were rejected and the amount deposited for this purpose was ordered to be refunded. It further appears from the impugned orders that after 1951 the petitioners continued to remain in possession of the lands in dispute as lessees of the Barrage Department. It is on this basis that Mr. Qureshi contended that from 1951 to 1st January 1957, the property in dispute was not treated as evacuee property and, therefore, could not be treated as evacuee property under section 3 of Act XII of 1957.

9. Before this question is considered on merit it will be necessary to dispose of the preliminary objection of the contesting respondents that its determination is barred on the general principle of res judicata. In this connection our attention was drawn to a clear finding of this Court in Writ Petition Nos. 101 and 129 of 1960 that the property in dispute is an evacuee property. Mr. Idris Qureshi, the learned Advocate for the contesting respondents has urged before us that this finding is res judicata between the parties and the petitioners cannot be allowed to reagitate the same question in this writ petition. He contended that the general principle of res judicata applies to the judgments passed in writ jurisdiction; In support of his conten tion the learned counsel referred us to certain Indian decisions. In Radha Shyam Datta v. Patna Municipal Corporation, Patna (A I R 1956 Pat. 182), it was held by a Division Bench of the Patna High Court that filing of successive applications on the same cause of action by the same person on grounds which could have been taken in the earlier application should be discouraged on general principle of res judicata so that the opposite-party may not be unnecessarily harassed on more than one occasion in respect of the same matter. In this connection the learned Judges observed as under:

"Even if one were to agree that the provisions of res jndicata, 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 11, Civil P. C., can be made applicable to writ applications also." In a Bombay case Manahem S. Yeshoova v. Union of India (A I R 1960 Bom. 196), it was held that the principles of section 11 of the Code of Civil Procedure are applicable to a matter which is initially decided in a writ petition under Article 226 of the Constitution. It was further observed that where a Judge of the High Court has finally decided on merits the contentions raised in writ petition under Article 226 of the Constitution the High Court would not allow the same contentions to be re agitated in subsequent litigation. In Daryao v. State of U. P. (A I R 1961 S C 1457) this principle was extended by the Supreme Court of India in a writ petition filed before them under Article 32 of the Indian Constitu tion. In this connection they formulated certain guiding principles which are reproduced below:-- "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. If a writ petition is dismissed in limine 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 the merits it would be a bar; 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 it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata 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 on the merits by the Court". We are in respectful agreement with these observations because the general principle of res judicata is based on the need of giving a finality to judicial decisions. The underlying principle is that once a res is judicata, it shall not be adjudged again. It is quite correct that the principle of res judicata is embodied in relation to suits under section 11 of the Code of Civil Procedure; but there is good authority to hold that even where section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The fundamental principle in such cases is that the Court in any future litigation proceeds on the basis that the previous decision was correct. Considering the question in this light, it is quite patent that the plea that the property in dispute could not be treated as evacuee property in view of section 3 of Act XII of 1957 could have been raised in the earlier application. In law since this objection was not taken at the proper stage, it cannot be allowed to be raised in this writ petition on the general principle of res judicata on the ground that the opposite-party should not be allowed to be unnecessarily harassed on more than one occasion in respect of the same matter.

10. Moreover, the plea whether under section 3 of Act XIII of 1957, the property in dispute could not be treated as an evacuee property cannot be agitated by the petitioners because they themselves moved the Custodian under section 22 of Act. XII of 1957, for a declaration that the property in dispute is not an evacuee property. It was at their request that the whole question was considered by the Custodian and a finding was given, against them.

11. On merits too the petitioners contention has no substance whatsoever. Admittedly, the property in dispute was allotted to them in the year 1948 as evacuee property. The mere G fact that in 1951, the Rehabilitation Commissioner by a genera order directed the Rehabilitation Authorities not to further allot Barrage lands could not change the nature of the property. Mr. Qureshi, the learned counsel for the petitioner has not been able to draw our attention to any provision of law under which the Rehabilitation Commissioner was competent to decide the status of any property dealt with under the Rehabilitation Laws. This power is only vested in the Custodian and with nobody else under the relevant Evacuee Laws. The learned Custodian has dealt with all the aspects of the case at length. Admittedly, the evacuee grantees did not commit any default in the payment of instalments in respect of the lands in dispute before 1947. In this connection certain documents have been placed on our record to establish that they have been paying the instalments regularly to the Barrage Authorities up to March 1947. It is also not disputed that in 1948, the lands in dispute was allotted by the Rehabilitation Authorities to the petitioners as evacuee property. In these circumstances even if the Barrage Authorities in 1949 assumed control of the lands in dispute, it cannot be doubted that under section 8 of Act XII of 1957, which was also the law in 1949, the rights of the evacuee could not be extinguis hed in the evacuee property for any default committed by them later on. In this connection the following observation of the learned Custodian throws abundant light on the question under consideration:- It will thus be seen that the rights of the Hindu-grantees could not have been extinguished by the Barrage Authorities. Section 5 of the Act provides that the provisions of this Act, and any rule or order made thereunder, shall have effect nothing anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law'. It means that the matter had to be dealt with only under the evacuee Law and any other law which was inconsistent with it could have had no effect whatsoever." The learned Custodian further observed: "Learned counsel for the applicant has contended that the Hindu grantees had made default in payment of instalments more than a year before the Partition, therefore, the authorities concerned had the right to cancel the grants in view of the provisions of section 8 of the Pakistan (Administration of Evacuee Property) Act, 1957, referred to above. In support of his contention he has produced before me certain docu ments to show that some of the Hindu had committed default for more than a year before Partition in the payment of instalments, but as I have pointed out above, the Barrage Authorities had not taken any action on the basis of those defaults before the year 1947. In fact, they took the action in the year 1949, but before that the property had vested in the Custodian and it was the Custodian who had the exclusive jurisdiction to decide this question. If the Barrage Authorities had felt that on account of the breach of the conditions the grant should be cancelled then they should have applied under section 20 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, but this was not done. Section 16 of the Act is a complete bar for taking any action in respect of such property by any officer of a Court or by any other authority and it also provides that the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force. I am, therefore, of the view that the Barrage Authorities had no jurisdiction whatsoever to deal with this property after the first day of March, 1947, and they could not have cancelled the grants." In our opinion the approach of the question by the Custodian is in accordance with the law applicable and no exception can be taken to it.

12. Besides, 'on the facts of the present case even under section 3 of the Act XII of 1957, it cannot be held that the property in dispute could not be treated as evacuee property. In order to appreciate this point it will be useful to reproduce section 3 of the Act which reads as under:

"3.- Property not to be treated as evacuee property on or after 1st January 1957.- (1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. (2) Nothing in subsection (1) shall apply

(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian." It will be noticed that subsection (1) of section 3 provides that no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. But this subsection is not applicable to those cases which are found to be covered by subsection (2) of the above-mentioned section. This subsection is divided into two sub-clauses. Sub-clause (a) has no application to this case. We, however, find much force in the contention of the respondents counsel that section 3(2) (b) of the Act is fully applicable to the facts of this case. It provides that if any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947 has not been accepted or approved by the Custodian, section 3(1) of the Act will not apply to such cases. The petitioners have not claimed any proprietary right in the property in dispute. They are only claiming the property in dispute as the lessees of the Barrage Authorities. Thus, they cannot claim anything further than what the Barrage Authorities can claim. The simple ques tion, therefore, is whether the Barrage Authorities could resist the right and competency of the Custodian to determine the status of the property in dispute. Admittedly the property in dispute is evacuee property, which vested in the Custodian.

13. The mere facts that the Barrage Authorities assumed control of the lands in dispute, could not change its status or authorised their right to supervise or manage it. In the same way it could not authorise the right of the petitioners to occupy it. Since their right to occupy is not authorised by the Custodian, it was open to him to treat the property in dispute as evacuee property. Further we agree with the contention of the learned counsel for the respondents that this being a case of agricultural lands is governed by section 3 of the Displaced Persons (Land Settlement) Act, 1958. This section is to the follow ing effect:- (3). - Information relating to certain land to be furnished.- (1) As soon as may be after the commencement- of this Act, but not later than ninety days therefrom, every person who is in possession, supervision or management of any lands which he knows or has reason to believe to be concealed evacuee property shall submit to the Rehabilitation Authority, or the Settlement Authority of the area concerned full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or management thereof. (2) Any such property as is referred to in subsection (1) shall, notwithstanding the provisions 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 that Act." Under this provision of law it was the duty of the petitioners to disclose the nature of the property in their possession to the Rehabilitation Authorities or to the Settlement Authorities. It will be further noticed that under sub-clause (2) any such property which is referred to in subsection (1) shall; notwithstand ing the provisions 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 that Act. Thus from whatever, angle the matter is considered it is abundantly clear that the property in dispute is an evacuee property and was rightly settled on respondents Nos. 4 to

23. It will be interesting to note that some of the petitioners, who are claimants have been transferred some of the lands in dispute under the Settlement Scheme. In this connection reference may be made to the written statements filed on behalf of the respondents in which it is clearly stated that petitioners Nos. 2, 8, 9 and 11, who are claimants have been transferred some of the lands in dispute by the Settlements Authorities on the basis of their claims and not on the basis of their possession as lessees of the Barrage Authorities. It will, therefore, be seen that the petitioners have not come with clean hands and are not entitled to any, relief.

14. The contention of the petitioner that the Settlement Authorities have disregarded the direction of the Central Govern ment in respect of Barrage lands has also not impressed us. As pointed out by the Chief Settlement Commissioner the letter dated 15-9-1959 has no application to the petitioners' case. Admittedly the Barrage Authorities had not sold the land in dispute to them. Besides even if it applied, it could not be implemented as the lands in dispute had already been settled on respondents Nos. 4 to 23. . In these circumstances, no fault can be found with the order of the Chief Settlement Commissioner dated 8-5-1963.

15. In the result there is no force in this petition and it is dismissed with costs. R.B.A. Petition dismissed.