NOOR MUHAMMAD And Others vs ASSISTANT COMMISSIONER, VEHARI And Other

ORDER

1. SHAFIUR RAHMAN, J.--The petitioners in the second round of litigation reaching this Court seek leave to appeal against the judgment of the Lahore High Court, dated 18-5-1982 whereby their constitutional petition directed against an order of the notified officer passed on 12-12-1978 under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act (Act XIV of,1975), was dismissed.

2. The petitioners claim to be locals. They also claim to belong to criminal tribes who had been settled according to an established scheme on lands other than the one now in dispute. It was contended by them that as a measure of better management and greater control over them they were allowed to get their allotments transferred from elsewhere to a Chak in Vehari which was reserved for members of the criminal tribes anti had actually been allotted to such persons who on becoming evacuees had left the place on independence. It was in 1962 that the land so becoming available from evacuee members of the criminal tribe was dealt with under the Rehabilitation Settlements Laws and allotted to various persons. The petitioners claim to be rightful allottees of the same. The Government of the Punjab and the allottees sought protection of their allotments. In the first round of litigation on a constitutional petition, the High Court had allowed their claim and protected the allotments made to them. When the matter came up to this Court, the proceedings were remanded with the observations reproduced below: "Admittedly, the respondents in these cases are not displaced persons from India and did not hold any verified claim.. They were, therefore, not eligible for the allotments of evacuee lands to them under the Rehabilitation and Settlement Scheme in force in the Province."

3. Following such a remand, the notified officer has upheld the viewpoint advanced by the Punjab Government and the allotments made in 1962 in favour of the respondents have been upheld. It was this determination which was once again challenged by the petitioners in the High Court. The High Court examined the history of these allotments and the manner in which they were made and the rights accruing there from. For various reasons given, it found no merit in the writ petition and the same was dismissed in May, 1982.

4. An intra-Court appeal was thereafter filed which was withdrawn in October, 1984 when a decision with regard to the competence of such an intra-Court appeal was given in Mst. Karim Bibi v.

5. Hussain Bakhsh PLD 1984 SC 344. It was thereafter presented in this Court after a delay of 832 days computed from the original order of the High Court in writ petition.

6. The learned counsel for the petitioners has explained the delay on the ground that the High Court had admitted the intra-Court appeal and it was a controversial matter whether an appeal did in fact lie against such a decision. It was only when an authoritative pronouncement was given by this Court that the law was firmly laid down and such appeals were found to be incompetent. It was according to the learned, counsel for the petitioners a bona fide pursuit of litigation and the petitioners have been diligently pursuing the available remedies to them. The delay according to the learned counsel was liable to be condoned.

7. On the merits the learned counsel for the petitioners has contended that the notification which issued under section 4 of the Displaced Persons (Land Settlement) Act brought to the pool only the land which had been allotted and not all evacuee land. For this reason even if the land is treated as evacuee property it could not be allotted as was done in favour of the respondents in 1962 because it did not form a part of the pool.

8. We asked the learned counsel for the petitioners to point out whether this was a ground taken up before the High Court and dealt with in the judgment under appeal. It is not so mentioned. The High Court had taken care to enumerate all the grounds taken up and we find it at page 103 of the Paper Book and page 30 of the High Court judgment. This ground is not there. There is no assertion in the memo. Of petition either that it was urged before the High Court and has not been dealt with. In the second round of litigation before the Supreme Court we would not allow a new ground to be taken up which was not taken up argued and dealt with at any earlier stage.

9. The crucial question in the case is whether the allotment made to the evacuees was of evacuee property and it could be allotted to the respondents in 1962. The High Court has affirmed the finding of the notified authority that this property qualified as evacuee property, was dealt with as evacuee property and could be allotted to the respondents. The allotments made in favour of the petitioners, if at all they were made, were by unauthorised functionaries and it could not be sustained under the evacuee laws. We find, therefore, that the determination suffers from no legal infirmity and leave to appeal is refused both on the ground of petition being time-barred and on merits as well.