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Civil Petition for Special Leave to Appeal No. 96 of 1973, decided on 8th October 1973.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 10th January 1973, in Writ Petition No. 294‑R of 1972).

‑‑‑ Art. 186(3)‑Entitlement of petitioners finally determined by Settlement authority and, such order not challenged any further Question could not be agitated over again‑Petitioners also not parties to proceedings could have no locus stand to challenge orders passed in such proceedings.

Muhammad Ilyas Khan, Advocate Supreme Court instructed by Ch. M. Z. Khalil,

Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 8th October 1973.

.‑The dispute in this case relates to property No. P/5, Block No. A, Samundari, Distt. Lyallpur. It belonged to a non Muslim evacuee v ho had mortgaged the same in 1944 with possession to the petitioners herein as security for the loan of a sum of Rs. 1,000. After August 1947, the Hindu owners migrated to India without redeeming the mortgage. The mortgagees, however, who were in possession, kept quiet and continued to treat the property as their own without disclosing that the equity of redemption did not belong to them or that it had become evacuee property.

Even after the coming into force of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, the petitioners did not approach the Custodian for a declaration that they were only mortgagees in possession of the property. Even under Martial Law Regulation No. 49 they did not disclose that the equity of redemption was an evacuee interest.

It was in this state of affairs that the first two respondents herein, after the coming into force of the Administration of Evacuee Property Act, 1957, complained to the Chief Settlement Commissioner that the petitioners were in possession of Hindu evacuee property and claimed its transfer as informants.

An investigation was started on the basis of this complaint and ultimate ly on the 20th of November 1911, the Settlement Commissioner authorised the Deputy Settlement Commissioner to transfer the property to the infor mers in accordance with the Notification No. SRO 834 (K)/61 dated 1‑9‑61 and to recover from the mortgagees the rent realised by them during the past years from tenants inducted into the premises by them.

In spite of this order no action was taken until April 166, when the respondents again moved the Deputy Settlement Commissioner for the transfer of the property. The order was passed on the 8th of April 1966. The petitioners sought to challenge this order but failed throughout, right up to the Settlement Commissioner. The last order of the Settlement Authorities was passed on the 24th of April 1968. This order became final as it was not challenged any further.

In is not clear whether the respondents obtained possession even after this, but on the 14th of September 1968, a notice purports to have been issued to them calling upon them to pay the balance of the transfer price by the 26th of November 1968, or in default suffer cancellation of the transfer and forfeiture of 1/4^th of the price already paid by them.

This notice was not served and the order of cancellation was passed ex parte behind the backs of the transferees. The respondents, however, as soon as they came to know of this, applied to the Deputy Settlement Com missioner pointing out that they had already deposited their compensation books in 1971. The Deputy Settlement Commissioner after hearing the parties set aside the order of cancellation and resumption of the property and restored the property to the respondents on the 17th of July 1969.

The petitioners then sought to challenge the order of the Deputy Settle ment Commissioner by filing three separate appeals. These were dismissed on the 29th of November 1969. Subsequently notices were again issued to the respondents for the hearing of a revision petition said to have been filed by the petitioners. The respondents alleging that no such revision was filed in time challenged these notices by a writ petition in the High Court, and the High Court admitted the writ petition to consider whether under sub section (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Settlement Commissioner had the jurisdiction to re‑open the question of entitlement of the parties which bad already been determined in earlier proceedings in a subsequent proceeding started on the basis of default notice under Settlement Scheme No. VIII.

At the hearing, however, this point was not argued, but the case was argued on merits. The High Court took the view that the property had been rightly held to be hidden evacuee property and to have been rightly transferred to the respondents as informers on the basis of the law then prevailing. The writ petition was, accordingly, allowed and the impugned notices were quashed.

It was argued before the High Court on behalf of the petitioners that since proceedings were pending in revision before the Settlement Authorities, the writ jurisdiction could not be invoked.

This is the contention on which leave is also sought in this Court, but we see no substance in this contention, as the writ petition was filed for quashing the proceedings sought to be started on the basis of those notices. Such a writ petition could certainly be entertained to consider whether the notices had been competently issued and whether the persons called upon to show cause were bound to submit to harassment if the notices were clearly without any jurisdiction.

In this case, as we have already pointed out, so far as the entitlement of the petitioners was concerned, it had been finally determined by the Settlement Commissioner by his order of the 24th of April 1968. This order was not challenged any further. So, therefore, so far as the petitioners are concerned, they could not agitate the same question over again. If they acquired any independent or other right for the transfer of these properties after the same were resumed from the transferees under Scheme No. VIII, then they should have started separate proceedings on that basis. They were not parties to the show‑cause notice issued under Scheme No. VIII and, therefore, they bad no locus standi to challenge the order of the Deputy Settlement Commissioner whereby it was held that the notices were uncalled for and the ex parte order of resumption of the property made in pursuance thereof was open to grave challenge. We see no ground, therefore, for interfering in this matter.

This petition is, accordingly, dismissed.

Petition dismissed.

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