Mst. KHURSHID and another vs Mst. LATIF FATIMA and 8 others
This matter arises from a petition for leave to appeal against the judgment of the High Court which accepted a writ petition concerning the disposal of evacuee property and set aside certain departmental orders as without lawful authority. The core legal question involves whether the High Court failed to adjudicate upon certain prior impugned orders and an alleged transfer made in favour of the petitioner in 1968 prior to the repeal of settlement laws. The Supreme Court observed that the High Court's judgment did not formally set aside an order dated 18-11-1978 nor addressed the alleged 1968 transfer order in favour of the petitioner. Consequently, the Supreme Court disposed of the petition while granting liberty to the petitioner to approach the High Court for clarification or further hearing regarding these specific unresolved questions. The key principle laid down is that matters not explicitly adjudicated or clarified by the High Court in writ proceedings should be remitted back to it for clarification rather than being entertained initially by the Supreme Court.
- Can the Supreme Court entertain arguments regarding an impugned order that was not formally set aside or adjudicated upon by the High Court?
- Whether a party can seek clarification from the High Court regarding unaddressed claims such as a pre-repeal property transfer?
- What is the appropriate recourse when the High Court's judgment omits adjudication on specific orders impugned before it?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought; against the acceptance by the High Court, of a Writ Petition filed by respondents' side.It had arisen out of orders passed regarding disposal of Evacuee property.
2. The High Court in the operative Para 8 of the impugned judgment has set aside "the orders dated 24-9-1985 and 11-8-1985" as without lawful authority.It is true that the order deted 18-11-1978 which was also impugned before the High Court has not been formally set aside.The arguments of the learned counsel in relation thereto, therefore, cannot be entertained till a clear verdict of the High Court in that behalf is available.The petitioner may if so advised seek clarification or further hearing in the High Court on this qucstion.The main argument of the learned counsel is based on alleged transfer in favour of Mst.Khurshid Begum petitioner in 1968--before the repeal of the Settlement Laws. According to learned counsel this order was never set aside and that being so, even if the petitioner's claim on any other basis was not tenable or acceptable, her claim on the basis of the said order should have been accepted and her rights declared accordingly. This aspect of the case also does not seem to have been dealt with by the High Court.The alleged order dated 21st March, 1968 said to have been passed in favour of Mst. Khurshid Begum has not been set aside by the High Court, therefore, prima facie, no grievance can be made in that behalf against the impugned judgment of the High Court. Be that as it may, if so advised the petitioner can seek clarification from the High Court in this behalf also.
3. ' With the foregoing observations this petition is disposed of.