HURMAT KHAN Versus MOHD KHAN
The question for determination in this writ petition is whether a party having failed in appeal and revision before the Settlement Authority can re‑agitate the matter under sections 10 and 11 of the Displaced Persons (Land Settlement) Act. The question arises in the following circumstance. The disputed land comprised in Khata Nos. 27 and 28 in village Fateh Jang Singh Wala, Tebsil and District Lahore, standing in the names of Sardar and Nawab the original title‑holders, was mutated in favour of Muhammad Hanif (respondent No. 4) vide Mutation Nos. 5 and 6 recorded on 17‑1‑1956. The land was subsequently confirmed in his name on 23‑2‑1956. Muhammad Hanif sold it on 24‑1‑1962 to Ishaq, respondent No. 5, who then sold it to the present petitioners vide Mutation No. 140 attested on 28‑2‑1972. On 17‑6,1971 respondents l to 3, for the first time, challenged the aforesaid mutations dated 17‑1‑1956, by filing appeal in which they alleged that the entry of mutation had been secured fraudulently and that they and not Muhammad Hanif were the heirs of Sardar and Nawab. The appeal was dismissed by the Deputy Settlement Commissioner (Land) on 24‑1‑1972 on the ground of limitation and also on the ground that the D S. C. was not the proper forum for determining intricate questions of inheritance as mutation proceedings are of summary nature. Respondents 1 to 3 went up in revision but failing therein also, on 10‑ 6‑1972, they moved an application on 12‑7‑1972 invoking jurisdiction under sections 10 and 1 I of the Act. The petitioners appeared and contested the maintainability of the proceedings under sections 10 and 1 I but the Additional Settlement Commissioner with the posers of the Chief Settlement Commissioner decided, by his order dated 7‑10‑1972, to proceed in the matter. Hence this writ petition.
2. The case of respondents I to 3 in the aforesaid appeal and revision had been that the original title‑holders had been Abdul Rehman their predecessor‑in‑interest, his cousin Sardara and his uncle Nawab Ali, that all the three had been killed in the disturbances at the time of Partition in India, that they bad filed claims in respect of their properties, that the claim of Abdul Rehman had teen verified and against it land had been allotted to the said respondents, and that the other two claims had been received back unverified, whereupon they had filed duplicate claims but it had been reported by the Central Record office that claim in respect of the two title‑holders, Sardara and Nawab Ali, had been verified against claim No. 41350 and No. 51355 and sent to village Fateh Jang Singh Wala. According to the said respondents, the claims No. 51350 and No. 51355 had been filed by one Mst. Umran who posing herself to be the widow of Ali Muhammad, a cousin of the said Abdul Rehman, bas obtained the allotment of the disputed land when she had, in fact, been only a keep of that Ali Muhammad, and Ramzan, the father of Muhammad Hanif, bad not been her son from Ali Muhammad but from the previous husband also named Ali Muhammad. It was on this basis that they had alleged that the allotment made in favour of Mst. Umran and later mutated in favour of her grandson Muhammad Hanif respondent was fraudulent. After the dismissal of their appeal and revision, respondents 1 to 3 had filed their application under sections 10 and 11 upon precisely the same contentions.
3. In these circumstances, it was urged by learned counsel for the petitioners that respondents 1 to 3 having failed in their appeal and revision could not invoke the provisions of sections 10/11 on the same facts, for the decision recorded in the appeal and revision bad acquired a finality qua them. Support for this contention was drawn from Abdul Haq v. Chief Settlement Commissioner (P L D 1974 Note 136 at p. 196), Mirza Khan etc. v. Additional Settlement Commissioner (P L D 1973 Note 5 at p. 14), and Ghyasuddin etc. v. Mst. Fatima (P L D 1973 Kar. 213). In the first cited case, which is by a learned Single Judge of this Court, it had been held that the order of compe tent Settlement Authority having attained finality, the reopening of the matter by the Officer on Special Duty, Central Record Room under the advice of the Chief Settlement Commissioner was illegal and that the Chief Settlement Commissioner also was not competent to order reopening of the matter. Upon this view the proceedings under sections 10 and l l had been set aside. The second authority, too, is by a learned Single Judge of this Court and a similar view had been taken in the following words :‑
"The intention of the Legislature by providing the remedy as contained in section 11 of the Displaced Persons (Land Settlement) Act is not to reopen the matter finally decided on merits between the parties by competent Settlement authorities on judicial side. If the matter in dispute in a given case is allowed to be re-agitated before the Chief Settlement Commissioner then it would mean that he would be compe tent to revise the impugned orders. The law does not authorise him to do so. His jurisdiction, therefore, under section 11 of the Act can be invoked only in those cases which have not been finally decided by the competent settlement authorities. Moreover the issues already finally decided cannot be allowed to be re-agitated in another proceedings between the same parties according to the principle of res judicata."
The view in the third cited case of Karachi is in accord with the above view of Lahore and it had been held
"Even section 11 of the Displaced Persons (Land Settlement) Act would not be attracted after the allotment was made final:"
4. On the other hand, reliance had been placed on the authority of a Division Bench in Mst. Ncfeesa Baro v. The Chief Settlement Commis sioner (P L D 1969 Lab. 480), and of the Supreme Court in Muhammad Latif & Co. v. The Chief Settlement and Rehabilitation Commissioner (P L D 1974 S C 130). In Mst. Nafeesa Bano's case where no appeal or revision had been filed and the allotment had attained finality by lapse of time, it had been held ;‑
"In our opinion section 11 of the Act stands out separately by itself. It confers an altogether new and original jurisdiction on the Chief Settle ment Commissioner to terminate or cancel the allotment and must be distinguished from his revisional jurisdiction that was once vested in him under section 19(1) of the Act for the purposes of satisfying himself as subordinate. The scope of this section is even wider and the Chief Settlement Commiss;oner may cancel or terminate any allotment or lease made before this Act was introduced, under any Scheme.
This appears to us to be the only harmonious construction which must be adopted. Viewed from this angle, section 11 becomes quite compatible with the provisions contained in Chapter VI of the Act and is in no way hedged in by those limitations. Perhaps, that is the one reason as to why the Legislature in its wisdom, has retained section 11 of this Act intact, and yet at the same time deleted the provisions in section 19(1) for the revision by the Chief Settlement Commissioner, by the promulgation of Ordinance XIII of 1964. Section 11 of the Act, is `subject to the provisions of this Act and the rules made there under. It really means that section 11 is subject only to such of the provisions of the Act and the rules as may be applicable. In construing a similar expression occurring in section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the Supreme Court of Pakistan in Major J. H. Naqvi v. The Director. Enforcement Directorate, West Pakistan (P L D 1966 S C 512 at p. 519) held that these words `merely mean that the transfer in such mode too will be in accordance with and subject to such of the other provisions of the Act and the rules made there under as may be applicable'. For all these reasons we must hold with the Chief Settlement Commissioner that he was not debarred from canceling these allotments under section 11 of the Displaced Persons (Land Settlement) Act, 1958."
In the case of Muhammad Latif & Co., some land had been allotted in favour of Syed Takreem Hussain but prior to its confirmation a portion of it was transferred as a building site to Furqan Ahmad followed by a provisional transfer order. Furqan Ahmad filed a revision. While dismissing the revision the Settlement Commissioner had found that the property had been excluded from allotment by virtue of clause (c) of para. 5 of the Scheme and as such he had forwarded the case to the Chief Settlement Commissioner for cancellation under section 11, of the allotment made in favour of Syed Takreem Hussain. The allotment had accordingly been cancelled by the Chief S‑ttlement Commissioner under section 11. Their Lordships of the Supreme Court had upheld the cancellation and had in that connection observed :--
"The argument in our opinion is without substance. It rests on the erroneous assumption that the jurisdiction of the Chief Settlement Commissioner under section ti is assimilable to his revisional jurisdiction under section 19(1) of the Act. Section 11 occurs in Chapter IV of the Act beginning with section 9 which creates a hierarchy of various Settlement Authorities with the Chief Settlement Commissioner at the apex. Section 10 gives plenary power to the Chief Settlement Commissioner to cancel or to reduce an allotment when he is satisfied that the allotment has been obtained by "fraud or false representation". Exercise of power under this section is not subject to any period of limitation. S:etion 11 gives analogous but wider power to cancel or terminate an allotment or a lease made under a Scheme or under this Act. Power exercisable under this section is not hedged by any condition except that an allotment or lease can be cancelled or terminated for reasons to be stated in writing. It is important to observe that un ier this section power of cancellation or termination is to be exercised otherwise than for reasons of fraud or misrepresentation and is available both in `respect of allotments and leases."
5. A perusal of these authorities makes it clear that the exercise of the power under sections 10 and 11 is not restricted by the availability of the provision of appeal and revision under Chapter VI ; nor is such exercise circumscribed by any period of limitation. But this does not mean that in every case it will be open to a party which has failed in appeal and revision to re-agitate the matter on the same grounding under sections 10 and 11. For example, if a contention raised in appeal and revision has been properly adjudicated against a party and the decision has acquired finality, that party cannot be permitted to re-agitate the same contention under sections 10 and 11. For, that will militate against the known principles of adjudication of disputes, particularly the principle of res judicata.
6. In the matter before moreover, it cannot be said that the conten tion raised by respondents 1 to 3 in their appeal and revision had been properly adjudicated. The Appellate Authority had practically declined to go into the merits for the stated reason :‑
"Intricate questions, law, facts and inheritance are involved. It is to be decided as to whether the father of respondent No. 1 was an issue of Mst. Umran from her previous husband or from Ali Muhammad or as to whether Mst. Umran was the wife of Ali Muhammad or not? This Court is not a proper forum for the determination of these questions because the mutation proceedings are of summary nature."
7. The Revisional Authority, too, did not advert to the merits and simply observed: "The proper forum for the petitioners is to seek redress In a civil Court of competent jurisdiction". Respondents 1 to 3 cannot, therefore, be said to be precluded by the decision in the appeal and revision E from invoking sections 10 and 11. In any case, the Caief Settlement Com missioner or his delegate is in no way deyarred from exercising his jurisdiction under sections 10 and I I. In this view of the matter the writ petition fails and is accordingly dismissed, but, in the circumstance of the cas‑,, I leave the parties to bear their own costs. s. A. H. Petition dismissed.