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Civil Appeal No. 40 of 1968, decided on 20th August 1911.

(On appeal from the judgment and order of the former High Court of West Pakistan, Karachi Bench, Karachi, dated the 9th December 1964, in Writ Petition No. 585 of 1963).

-Successive writ petitions-Res judicata, principle of-High Court in previous petition, concerning dispute between same parties, holding property in ques tion to be evacuee-Unsuccessful party barred from agitating same matter over again by invoking writ jurisdiction afresh-Pakistan (Administration of Evacuee Property) Act (Xll of 1957), S. 2(3).

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 other party. Where in the previous judg ment of the High Court given between the same parties in writ petition it was categorically held that the property in dispute was evacuee property, it was held that the decision did operate as a bar in the way of the petitioner for agitating this matter once again by another petition.

Radha Shyam Datta v. Patna Municipal Corporation, Patna A I R 1956 Pat. 182; Manahem S. Yeshoova v. Union of India A I R 1960 Bom. 196 and Daryao v. State of U. P. A I R 1961. S C 1457 re

-Lands (held by Sukkur Barrage Autho rities) granted on instalment basis to Hindus--Such lands became evacuee properties on migration of Hindus and vested in Custodian Rehabilitation Authorities declaring, however, that land belonged to Sukkur Barrage Authorities and they could deal with properties in any manner they liked-Held, evacuee nature of property could not be changed by any such declaration by the Rehabilitation Autho rities-Custodian alone competent to determine nature of property.

Bashir Ahmad, Senior Advocate Supreme Court (Mahmood Ahmad Qureshi, Advocate Supreme Court with him) instructed by Masud Akhtar, Advocate-on-Record for Appellants.

Mian Muhammad Shafi, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate-on-Record for Respondents Nos. 4 to 22.

Respondents Nos. 1 to 3: Ex parte.

Dates of hearing: 22nd, 23rd and 24th June 1971:

.-The brief history of this case, which has been brought to this Court by special leave, is as follows:

The land in dispute was originally held by the Sukkur Barrage authorities, and was granted to some Hindus, who paid a fen instalments for acquiring proprietary rights therein, but defaulted in making payment of the remaining, and subsequently became evacuees on the Partition of the sub-continent. The appellants, who are refugees from India, on arrival in Pakistan in the year 1948, were temporarily allotted these lands by the Rehabilitation Department. It appears that the Barrage authorities, acting on the terms and conditions of the grants made to the Hindu evacuees, cancelled the grants and resumed the lands on the 26th of April 1949. Following this cancellation, the Rehabilitation Commissioner informed the Barrage authorities on the 22nd of May 1951, that the lands in dispute belonged to the Barrage authorities and that they could deal with them a9 they liked. Upon this, the Barrage authorities made fresh grants of these lands in favour of the appellants on payment of the initial instalment of Ith of the price. Notwithstanding this disposal of the lands by the Barrage authorities, the Rehabilitation Commis sioner in the year 1959 again allotted some land out of the dis puted area to the respondents, who obtained ejectment orders against the appellants, on which the latter filed two writ petitions in the erstwhile High Court of West Pakistan, Karachi Bench. The writ petitions were allowed to the extent that some of the orders of the Assistant Rehabilitation Commissioner, which appeared to be contrary to the permanent settlement scheme, were quashed, and the case was referred back to the Rehabilitation authorities to examine whether the appellants had contravened any of the provisions of the permanent settlement scheme. All the same, the High Court held that the lands in dispute had been rightly held to be evacuee properties by the Rehabilitation autho rities. The appellants sought to challenge the allotment orders made in favour of the respondents before the Rehabilitation authorities and ultimately filed a petition under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, for a declaration that it was non-evacuee property. This application was finally rejected by the Custodian on the 12th of October 1962. They then moved the Central Government for their relief, which referred the matter to the Chief Settlement and Rehabilitation Commissioner. The latter, by his order dated the 8th of May 1963, rejected their petitions. Thereafter, the appellants filed another writ petition in the High Court on the 26th of July 1963, which was dismissed by a Division Bench of the High Court on the 9th of December 1964, leading to a petition for special leave to appeal in this Court, which was granted to examine the con tention raised on behalf of the appellants that the High Court has erred in withholding from the appellants the protection given by subsection (1) of section 3 of Evacuee Property Act XI[ of 1957. It was contended in this behalf that after the Rehabilita tion Commissioner had in 195 t treated the property as non. evacuee, and had allowed the Barrage authorities to dispose of the same, the Deputy Rehabilitation Commissioner could not after the 1st day of January 1957, again treat the property as evacuee property, particularly as no appeal or revision of any kind had been filed to challenge the validity of the order of the Rehabilitation Commissioner, whereby the lands were returned to the Barrage authorities. In the decision of the Writ Petitions Nos. 101 and 129 of 1960, by the order dated the 19th of Septem ber 1960, already referred to above, the High Court inter alia held--

"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 the best consideration to this question and I have come to the conclusion that the right and interest of the Hindus in the lands settled on then by the Barrage authorities was evacuee."

It was further found that "the land in dispute vested in the Custodian with effect from the 1st of September 1947, and the occupants were in possession on behalf the Custodian." The learned Custodian of Evacuee Property. vide his order dated the 12th of October 1962, while disposing of the appellants' petition under section 22 of the Pakistan (Administration of Evacuee Property) Act X(I of 1957, which was filed after the decision of the High Court, mentioned above, recorded his finding as follows:-

"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.

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