SHAH NAWAZ Versus MUHAMMAD SHARIF

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order, dated 31st of March, 1976, passed by the Assistant Commissioner/Additional Settlement Commissioner (Land), Narowal, whereby he proceeded to cancel the allotment of 46 Kanals 14 Marlas of land of the petitioner at Khata No.39 of RL‑II Bharwali Tehsil Narowal District Sialkot.

2. The facts forming background of this dispute are that Sher Muhammad, father of respondent No.1, was allotted the land in 'dispute but it was cancelled on 1st of July, 1961. He filed a Writ Petition bearing No.1013‑R of 1961, wherein he challenged the cancellation of his allotment as well as the re‑allotment in the name of the petitioner. This writ petition was dismissed on 28th of September, 1966. An application for re-hearing of that writ petition was filed, which, too, was dismissed on 7th of December, 1967. Thereafter, another writ petition bearing No. 136‑8 .of 1968 was instituted, which too was rejected on 26th of February, 1968. Respondent No. 1 took the matter to the Supreme Court by filing C.P.S.LA. No. 131 of 1968 which was dismissed by the order, dated 31 st of October, 1968.

3. Notwithstanding that respondent No.1 had failed upto the level of the Supreme Court of Pakistan, he filed an application before the Deputy Settlement Commissioner (Land) for cancellation of the allotment which was rejected by him on 11‑11‑1969. A revision against this order was filed by the said respondent on which an order was passed on 10th of March, 1970 by the Settlement Commissioner, who was apparently oblivious of the previous litigation. By this order the case was remanded to the Additional Settlement Commissioner (Lands) for decision afresh. According to the case of the petitioner, in pursuance to the remand order, on an application filed by him, the matter was taken up by the Additional Settlement Commissioner, who, vide order, dated 3rd of September, 1973, held that the allotment in favour of respondent No.1 had been properly cancelled and the land was validly allotted and confirmed in his favour. That order was challenged by Muhammad Sharif, respondent No.1, by filing a revision which he withdrew on 15th of March, 1975. Strangely enough, later on, another order was passed by the Additional Settlement Commissioner on 31st of March, 1976, by virtue of which it was held that the allotment in favour of respondent No. 1 had not been cancelled in accordance with law and the subsequent allotment in favour of the petitioner was not valid. This order has now been assailed by the petitioner by filing the instant Constitutional petition.

4. I have heard Chaudhry Riasat All, the learned counsel" for the petitioner, and Mr. Hamid Ali Mirza, the learned counsel for respondent No. 2. No one has entered appearance on behalf of respondent No. 1.

5. The two‑fold contentions raised by the learned counsel for the petitioner are that as the question of allotment in favour of the petitioner had attained finality upto the level of the Supreme Court of Pakistan, it could not be subsequently reopened by the Settlement Authorities and secondly that in compliance of the order of remand, dated 10th of March, 1970 of the Settlement Commissioner (Lands), the matter was taken up by the Additional Settlement Commissioner, who, vide his order, dated 3rd of September, 1973 held that the allotment in favour of respondent No.1 had been properly cancelled and the allotment in favour of the petitioner was valid; and in the face of that order, . no jurisdiction was vested in the Additional Settlement Commissioner to pass any order subsequently, as the aforesaid order had attained finality especially as the revision petition filed by the petitioner against that order was withdrawn by him on 15th of March, 1975.

6. Both the contentions raised by the learned counsel are well‑founded.. It appears from the order of the Supreme Court, dated 31st of October, 1968 that the allotment in favour of the petitioner has been upheld on account of dismissal of Writ Petition No.1013‑R of 1961 and the subsequent writ petition bearing No.136‑R of 1968 filed by respondent was, held to be not maintainable. In the face of this judgment, it was not open to the Settlement Authorities to have entertained any subsequent application with regard to the same dispute.

7. The other contention of the learned counsel is equally forceful. From a perusal of the order, dated 3rd of September, 1973 of the Additional Settlement Commissioner, it is obvious that the Additional Settlement Commissioner, in pursuance to the order of remand, has examined the case and come to the conclusion that the allotment in favour of respondent No.1 had been cancelled in accordance with law and the subsequent allotment in favour of the petitioner was unexceptionable. However, on 31st of March, 1976, the Additional Settlement Commissioner again took up the matter and arrived at a contrary conclusion. It is axiomatic that the Additional Settlement Commissioner could not have set aside the earlier order passed by his predecessor on 3rd of September, 1973. It. appears from the perusal of the order of the Additional Settlement Commissioner that he was not even aware of the fact that earlier the matter had been dealt with by the Additional Settlement Commissioner in pursuance to the order of remand.

For the reasons aforesaid, this petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect. There shall be no order as to costs.

AA./S‑993/L Petition accepted.