MUBARAK HUSSAIN And Others vs GOVERNMENT OF PAKISTAN Through Secretary, Rehabilitation And Works Division, Islamabad And Other

IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the order dated 15- 1-1994 passed in Settlement Revision No. 162 of 1971 by the Lahore High Court arising out of the order dated 6-5-1971 of the Settlement Commissioner with the powers of Chief Settlement Commissioner whereby the matter relating to the allotment of disputed land was remitted to the Board of Revenue/Chief Settlement Commissioner for entrusting it to a competent notified officer to decide the case afresh.

2. This case has a chequered history. It is not necessary to go into the previous history of the case in detail. Suffice it to say that on 11-2-1970 a reference was received by the Additional Settlement Commissioner that an area of 3 Bighas was verified in favour of Niaz Muhammad, respondent No.4 herein on Claim No.6974 but he changed the claim number of 16974 with an area of 133 Bighas 4 Biswa s by fraudulently increasing the number of units to 2538. It was also alleged that allotment of 317 Bighas in village Chak Chaudhry, Tehsil Hafizabad, District Gujranwala was fraudulently obtained. Consequently, proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 were initiated against the aforesaid respondent and others for cancellation of allotment.

3. The petitioners herein resisted the proceedings before the Settlement Commissioner (Land) with the powers of the Chief Settlement Commissioner vide their application dated 14-9-1970 inter alia on the ground that the case, relating to allotment against the claim of Niaz Muhammad, had been conclusively decided by the Lahore High Court vide order dated 19-3-1969 passed in Settlement Revision No.48 of 1966, therefore, it could not be re--opened. The Settlement. Commissioner with the powers of Chief Settlement Commissioner accepted the plea of the petitioners herein by rejecting the reference. The respondents filed settlement revision before the High Court which had been accepted by the impugned judgment and the matter was remitted to the Board of Revenue/Chief Settlement Commissioner for entrusting it to the notified officer competent to decide the case afresh. The petitioners now seek leave to appeal.

4. Ch. Khalil-ur-Rehman, learned counsel for the petitioners contended that all settlement laws were repealed under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975) and under section 2(2) thereof, cases decided by the Supreme Court or a High Court after repeal of the settlement laws which but for such repeal would have been remanded to authorities appointed under such laws have to be remanded to officers notified by the Provincial Government to decide them. It was argued that in the instant case the High Court was not acting as High Court but as a revisional authority under section 21 of the Displaced Persons (Land Settlement) Act, 1958, therefore, it had no jurisdiction to remand the case for disposal of the same even if it be assumed that it was notified authority by the Provincial Government although the Provincial Government had not notified any authority to dispose of the revision petitions filed under section 21 ibid. On these premises, it was argued that the proceedings before the High Court were coram non judice.

5. We are afraid that notwithstanding the ingenuity and originality of the submissions made by Ch. Khalil-ur-Rehman, we find no force in them. The revisional jurisdiction of the High Court, under section 21 of the Displaced Persons (Land Settlement) Act, 1958 could be validly exercised in a pending case after the repeal of the Settlement Laws by virtue of section 6 of the General Clauses Act. 1897 (X of 1897), clause (e) whereof provides that repeal shall not:-- "(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act, or Regulation had not been passed."

We are, therefore, clear in our mind that by virtue of clause (e) of section 6 ibid the proceedings under the settlement revision pending in the High Court at the the of repeal of the Settlement Laws were saved and the impugned order of remand was competently and validly made by the High Court.

6. Ch. Khalil-ur-Rehman, the learned counsel for the petitioners next contended that verification order of the claim of Niaz Muhammad as well as the allotment obtained against the said claim was upheld by` the High Court in Settlement Revision No.48 of 1966, therefore, neither the verification of the claim would be open to challenge nor the allotments made there under including even to villages in dispute. The contention is untenable. The Chief Settlement Commissioner himself took the view that the inquiry proceedings initiated in respect of the allotment in dispute were not the subject-matter of litigation earlier. The same view was taken by the High Court in the impugned judgment which suffers from no illegality. Clearly the doctrine of res judicata in the facts and circumstances of the case was not attracted: In the case in hand, there are serious allegations of tempering with the claim and securing the disputed allotment through fraudulent means. This being so, the remand order by the High Court directing the notified officer to inquire into the alleged fraud does not call for interference by this Court. Needless to say unless where remand of a case will be an exercise in futility or is wholly unjustified on facts found and law declared by this Court, no interference is ordinarily made. Here the impugned order had not occasioned any injustice to the parties by remanding the case to inquire into the alleged fraud. This is therefore, not a fit case for the exercise of our discretionary jurisdiction under Article 185(3) of the Constitution of Islamic, Republic of Pakistan, 1973. Leave is refused.