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Civil Petition for Special Leave to Appeal No. 612 of 1985, decided on 13th October, 1986.

(From the judgment/order of the Lahore High Court, Lahore, dated 11‑5‑1985 in Writ Petition No. 842/R of 1976).

‑‑‑Ss. 10 & 11‑‑Petitioner challenging allotment of land on ground that respondent had given consent before Settlement Authorities to surrender one of two allotments in his favour but had not complied with same and as such his second allotment stood cancelled‑‑Respondent establishing from record that he had acted bona fide and made written offer to Settlement Authorities within reasonable time to cancel said allotment‑ Failure on part of Settlement Authorities in that regard, held, could not be used in support of plea that respondent had witdraw‑‑‑n7rom his commitment or had not complied with order.

‑‑‑S. 11‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Res judicata‑ Second round of litigation‑‑Plea now raised was available to petitioners in earlier round of proceedings but despite that leave to appeal was refused‑‑Plea of res judicata, held, would be relevant in circumstances.

Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner.

M. Yousaf Khan, Advocate Supreme Court for Respondent No.1.

Date of hearing: 13th October, 1986.

In this petition leave to appeal has been sought from judgment, dated 11‑5‑1985 of the Lahore High Court; whereby a Constitutional petition arising out of a land settlement case filed by respondent No.1, was allowed.

The facts given by the learned counsel for the petitioner are that Mohammad Ramzan deceased husband of the present petitioner was allotted the urban agricultural land in dispute which falls within the urban limits of the town of Chishtian. In 1959‑60 there was litigation between the allottees of this and other similar land in Chishtian and the Settlement Department regarding the question whether it was urban or not. The matter came up to the High Court in Constitutional Jurisdiction. It was however ultimately settled that the land was urban agricultural land. In the meanwhile in 1960 Muhammad Yahya Khan respondent No.1 was allotted the land in dispute against his urban land claim. This allotment was in addition to another allotment made to him within the urban area of Lahore. Mohammad Ramzan and others had challenged this allotment on the plea that under the then existing instructions Muhammad Yayha Khan could not be allotted land against same claim in two urban areas. The Chief Settlement Commissioner by order, dated 9‑4‑1963 directed on consent of Muhammad Yayha Khan that the land in Lahore would be surrendered by him failing which the land confirmed in his name in Chishtian would be cancelled. Almost contemporaneously fresh Instructions were issued where under rural claimants could also in addition to the urban claimants seek adjustment of their rural claims against temporary allotments of urban agricultural land. Mohammad Ramzan could take benefit under these instructions, he therefore, filed a Constitutional Petition in the High Court seeking the said benefit. This petition was dismissed. His Letters Patent Appeal, however, succeeded and the case was remanded to the Chief Settlement Commissioner. He rejected Ramzan's claim on the ground that the land under his temporary allotment had in the meanwhile been allotted to Muhammad Yahya Khan respondent. This order was passed on 17‑6‑1970. It was challenged again through a writ petition in the High Court, the same and a Latter Patent Appeal were dismissed in 1971 and this Court also refused to grant leave to appeal from the judgments of the High Court. Notwithstanding this failure the petitioner‑side again approached the Chief Settlement Commissioner, this time on a fresh ground that the order regarding surrender of Lahore land passed on 9‑4‑1963 had not been complied with by Muhammad Yahya Khan, therefore, the allotment made to him in Chishtian automatically stood cancelled by the terms of the said order of 1963. The case was ultimately heard by a delegate of the Chief Settlement Commissioner as one of Mukhbari under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. The plea raised from the petitioner‑side was upheld and the allotment of Chishtian land from the name of Muhammad Yahya Khan was cancelled. This order was passed on 21st of May, 1976. It was challenged this time from the respondent‑side in a Constitutional Petition filed in the High Court which having been allowed by the impugned judgment, leave to appeal has now been sought.

Learned counsel for the petitioner has contended that the High Court should have declined to exercise its discretionary Constitutional jurisdiction in favour of Muhammad Yahya Khan because the order, dated 9‑4‑1963 which was the basis of the cancellation of his Chishtian allotment was passed with his consent. And further that he had not challenged the same but later on flouted it by not surrendering the land in Lahore. With regard to the petitioner's failure up to the Supreme Court in earlier round of litigation he has explained that the cancellation of land in dispute from the respondent's name by the Settlement Authorities in 1976 gave a fresh cause of action to the petitioner‑side t, seek allotment of the land under the revised Instructions which allowed rural claims to be adjusted against urban temporary allotments.

The learned counsel for the caveator brought to our notice letter written by respondent No .l on 27th May, 1963 about a month after the order, dated 9‑4‑1963 was passed wherein he had asked the D.R.C. (Lands) Lahore to cancel the allotment made to him in Baghbanpura within Lahore. He had also attached copy of the order, dated 9‑4‑1963 in compliance with which he was making this offer. Not only this he endorsed two copies: one to the Chief Settlement Commissioner who had passed the order, dated 9‑4‑1963 and the other to D.R.C. (Lands) Bahawalpur. This letter was noticed by the Chief Settlement Commissioner while rejecting Muhammad Yayha's plea in his order, dated 21‑5‑1976 which was successfully challenged in the High Court by him. He has also contended that the earlier Instructions where under an urban claimant could not obtain allotments in Pakistan in two urban were superseded by fresh Instructions issued in 1970 and that the effect of the order, dated 9‑4‑1963 stood nullified by the said instructions of 1970. Regarding the decisions of the Supreme Court in refusing to grant leave to appeal to the petitioner‑side in the earlier round of litigation he argued it would constitute a bar of general res judicata in so far as the present proceedings are concerned.

The offer of the respondent addressed to the D.R.C. (Lands) on 27‑5‑1963 which was no doubt made within reasonable time after the order, dated 9‑4‑1963 was passed against him, is a complete answer to the arguments raised by the learned counsel on the basis of the said order. The contents of the letter shows that he had not flouted it and that his having accepted the condition regarding surrender of the Lahore land it was a bona fide action and he had no intention to withdraw from the commitment. It was for the Settlement Authority concerned to whom the letter was sent to have taken prompt action on it. The failure on the part of the Settlement Authorities cannot be used in support of the plea that Muhammad Yahya Khan had not obeyed the order of 9‑4‑1963. And if in the meantime during which he continued to be the allottee of the Chishtian land, new instructions were issued under which he could keep allotments in more than one urban areas, he could legitimately take benefit thereof. The cancellation of the Chishtian land in 1976 was thus rightly declared by the High Court to be without lawful authority.

The plea of the learned counsel for the petitioner that the rural claim‑holders could under the 1963 Instructions seek allotments of urban areas and, therefore, the land in dispute could be confirmed to Muhammad Ramzan the temporary allottee was available to the petitioner‑side in the earlier round of proceedings in this Court. Despite that leave appeal was refused to them. The plea of res‑judicata in this behalf raised from the respondent‑side has force. Similarly, the argument raised by the learned counsel for the petitioner that the cancellation of land from the respondent's name by the Settlement Authorities in 1976 would furnish fresh cause of action to the petitioner, will be of no avail as the said order of 1976 was itself without lawful authority.

Looked at from whatever angle, there in no force in this petition and the same, is dismissed.

M. I . Petition dismissed

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