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Civil Petition No. 24‑R of 1986, decided on 19th March, 1986.

(On appeal from the judgment, dated 20‑11‑1985 of the Peshawar High Court Peshawar in Writ Petition No. 418 of 1980).

‑‑‑S. 10‑‑Chief Settlement Commissioner/ Government Circular No. F. 3(II)/60‑‑S. II, dated 14‑4‑1961‑‑Land Settlement‑‑Cancellation of excess allotment‑‑Order impugned in writ jurisdiction‑‑Case remanded with direction that claimant be allowed option to purchase land upto extent of four Acres at prescribed rate of produce index unit‑‑Additional Settlement Commissioner, complying with direction, extended option to petitioners to purchase land‑‑Order upheld by Supreme Court.

Ch. Muhammad Farooq, Senior Advocate Supreme Court and Karam Elahi Bhatti, Advocate‑on‑Record for Petitioners.

N.M. Khan, Advocate Supreme Court and Qasim Imam, Advocate -on‑Record (absent) for Respondents.

Date of hearing: 19th March, 1986.

‑Sharafat Hussain, petitioner No. 1, a claimant displaced person was allotted evacuee land equal to 401 produce index units in village Tordher Matni Changan, Tehsil Swabi, District Mardan. Petitioners Nos.2 to 23 are the bona-fide purchasers for value of the land in dispute.

An application was submitted on behalf of Mst. Saghir Fatima, predecessor‑in‑interest of respondents Nos.l to 5, under section 10 of the Displaced Persons (Land Settlement) Act, 1958 that Sharafat Hussain (petitioner No.l) had managed to obtain allotment to the extent of 173 P.I. Units in excess of his true entitlement. Consequently, the proceedings were started against him in the Court of the Additional Settlement Commissioner (Lands), Mardan, and, in the result, the learned Additional Settlement Commissioner by his order dated 31‑12‑1973 found that petitioner No.1 had indeed obtained surplus area equivalent to 173 P.I. Units. He, therefore, ordered that the same be cancelled and allotted to Mst. Saghir Fatima, the informant. Meanwhile, the petitioner No.l was given a choice to decide which area he wished to surrender out of the allotted land, to the extent of 173 P.I. Units.

Feeling aggrieved the petitioners moved a Writ Petition (W.P. No.251 of 1974) before the Peshawar High Court. A learned Single Judge of the said Court (Abdul Hakim Khan, J.‑‑ as he then was) heard the matter and came to the conclusion that petitioner No.l, no doubt, had secured allotment in excess of his entitlement but that he was entitled to purchase the excess area under instructions issued by the Chief Settlement Commissioner/ Government whereby the claimants were allowed to retain excess land upto four Acres at the rate of Rs.8 per produce index unit vide Circular No.F 3 (11)/60‑S.11, dated 14‑4‑1961. The exact terms in which the writ petition was accepted arc reproduced below:‑

"On the view of the matter that I take, I will accept the petition and setting aside the impugned orders, remand the case to the Additional Settlement Commissioner (Lands) with the direction that he should give an opportunity of hearing before that he passes any order as respects the disposal of the land in question, nothing that there are instructions under which claimant‑petitioner 23 can be allowed to purchase the excess land upto the extent of four acres at the rate of Rs.8 per produce index unit."

This order was passed on 30‑5‑1975.

On remand, the Additional Settlement Commissioner (Lands), Mardan, however, once again by his order dated 13‑11‑1975 upheld the earlier order of the Additional Settlement Commissioner dated 31‑12‑1973, although according to the petitioner the same stood set aside by the High Court vide its dated 30‑5‑1975. The petitioners, therefore, filed a writ petition before the Peshawar High Court (W.P. No. l6 of 1976). This was heard by Muhammad Daud Khan, J. (as he then was), who by his judgment dated 30‑10‑1979 accepted the same and gave his interpretation of the earlier judgment of Abdul Hakim Khan, J. dated 30‑5‑1975 and again remanded the case to the Additional Settlement Commissioner observing as follows:‑

"It is evident that learned Additional Settlement Commissioner did not carefully go through the direction given by the High Court. It was clearly mentioned that option to be exercised by the petitioner was to retain the excess area upto the extent of four Acres. If such an option was ever given to the petitioner, is nowhere evident from the order of the Additional Settlement Commissioner. Consequently, the learned authority has failed to accord due compliance to the aforementioned order. The counsel appearing for the respondent Settlement Authority could not contradict the allegation. In consequence, the Additional Settlement Commissioner is directed to look into the matter for strict compliance with the order dated 30‑5‑1975 (passed by the High Court in W.P. No.251/74)."

This judgment of Muhammad Daud Khan, J. was not challenged any further and, thus, became final.

Thereafter, in compliance with the above judgment passed by the High Court, the Additional Settlement Commissioner once again took up the case and, by his order dated 28‑5‑1980, extended an option to the petitioners to purchase the excess land in terms of the directions issued by the High Court in its order dated 30‑10‑1979. The last mentioned order was, however, challenged this time by respondents Nos. l to 5 by a Writ Petition (W.P. No. 418 of 1980) before the Peshawar High Court and Inayat Ali Khan, J., accepted the same vide order dated 20‑11‑1985 and set aside the order of the Additional Settlement Commissioner dated 28‑5‑1980 and again remanded the case for fresh decision observing that in the order passed by the High Court dated 30‑5‑1975 there was no positive and specific directions that petitioner No.l must necessarily be allowed to purchase the excess land upto the extent of 4 Acres at the rate of Rs.8 per P.I. Unit. According to the learned Judge, this order gave complete freedom to the Additional Settlement Commissioner to decide whether petitioner No.l had the right to purchase the excess land or was not eligible to it in case, for instance, he had obtained the excess allotment by fraud. On this view of the matter the order dated 28‑5‑1980 was set aside and the case again remanded for decision afresh according to law vide his judgment dated 20‑‑11‑1985 This petition for leave to appeal has been filed to challenge the last‑mentioned order dated 20‑11‑1985 passed by the High Court.

Notice was issued to the respondents and Mr. N.M. Khan, Advocate has appeared on their behalf and has been heard at full length.

After having heard the learned counsel on both sides we are clear in our minds that the learned Judge in the High Court delivering the judgment dated 20‑11‑1985 has erred in remanding the case for determination afresh. In our opinion, the High Court in its order dated 30‑10‑1979 had interpreted the earlier judgment of the said Court passed on 30‑5‑1975 to the effect that the petitioners entitled to purchase the excess land upto the extent of 4 Acres at the rate of Rs.8 P.I. Unit. Since the said order of the High Court (dated 30‑10‑1979) had not been challenged any further it had attained finality and the learned Additional Settlement Commissioner, who passed the order dated 28‑5‑1980, had done so correctly, strictly in accord with its import and his order was fully in conformity therewith. In these circumstances, there was no warrant for interference with the aforesaid order of the Additional Settlement Commissioner dated 28‑5‑1980.

We would, therefore, convert this petition into an appeal, and allow it with the result that the impugned judgment of the High Court dated 20‑11‑1985 is set aside and the order dated 28‑5‑1980 passed by the Additional Settlement Commissioner is restored. However, in all the circumstances there will be no order as to costs,

M. I. Appeal accepted.

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