' According to the contents of this writ petition the petitioners are in cultivating possession of the suit-land in question since 1929. In the year 1941, Government acquired land temporarily in four villages of Jhelum to establish a Military Base known as Kala Base. The evictees of the said villages were leased out the suit-land in question. It has been stated that the physical possession was not delivered but the evictees were getting share of produce from the petitioners. In January, 1947, 3097 acres of the land was restored and remaining was permanently acquired and some cash compensation was given vide award dated 14-12-1970 by the Land Acquisition Collector, Jhelum. In 1973, a decision was taken by the Provincial Government to terminate the temporary lease of Kala Base Evictees who have received cash compensation, and upon cancellation of lease land would be leased out on temporary basis to the "Sitting Tenants' under said lessees with effect from Rabi, 1973. Kala Base Evictees filed Writ Petition No.1496 of 1973 which was dismissed. Ultimately on 5-5- 1975 Cabinet decided that all the persons who are genuine evictees and are "sitting tenants" may be given land at market price subject to a ceiling of 12/1-2 acres and the cost to be recovered in 10 instalments. Because of some misinterpretation cancellation of the lease of the petitioners was recommended by the Board of Revenue Punjab. Writ Petition No.1410 of 1975 was filed and vide judgment dated 18-3-1976, High Court directed that the Govermnent should elucidate and explain whether the term "Sitting Tenant" in decision dated 5-5-1975 is an intent to refer to the "Kala Base Evictees" who were allotted land or whether it refers to the "Kala Base Evictees" who were allotted land and were also in actual cultivating possession. On the application of the petitioners a clarification was issued on 10-8-1982 by the Board of Revenue that only the following Evictees are entitled for the grant of proprietary rights:---
(i) He should be genuine evictee of "Kala Base";
(ii) he should be a sitting tenant and cultivating the land himself which clarification was endorsed by the Law Department and Revenue Minister also agreed, endorsed and confirmed the said clarification of the term sitting tenants."
' It is then stated that the said decision dated 8-10-1982 of Revenue Minister was challenged by the "Kala Base Evictees" in Writ Petition No.1183 of 1982. It was allowed and Honourable Supreme Court confirmed the judgment. Then the writ petition proceeds to state that again matter was agitated and the Revenue Minister's observation on 4-10-2000 was that the land is to be allotted to the persons who are genuine evictees and are in actual possession. Prayer is being made that proprietary rights be granted to the petitioners.
2. Learned counsel for the petitioner contends that notwithstanding the earlier decision of the High Court and the Honourable Supreme Court of Pakistan the said observations of the Minister made in the year 2000 should prevail and proprietary rights of the land be conferred upon the petitioners.
He also relies on the case of Col. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019 to urge that since written statement has not been filed, the statement in the writ petition shall be deemed to be admitted. Learned Asstt. A.-G. Is of the opinion that the judgment of the Honourable Supreme Court of Pakistan finally and completely resolves the controversy. Learned A.A.-G. Has also informed that the said judgment is reported as Goverment of the Punjab through Chief Secretary v. Khadim Hussain 1999 SCM R 1639. Learned counsel for private respondents vehemently urges that this Court has given judicial verdict as to the meaning of the term "Sitting Tenant" for the purposes of conferment of proprietary rights which in fact have already been conferred in the light of the judgment of this Court. Learned counsel for private respondents also 'relied upon the said judgment of the Honourable Supreme Court of Pakistan to urge that not only the said judgment of this Court was upheld but it was further held that the petitioners who are admittedly holding lands under respondents have no rights whatsoever to make a claim for conferment of proprietary rights.
3. I have examined the file of this case. I may dispose of the said second contention of the learned counsel for the petitioner first. I find that on 16-4-2002, the case was taken up in presence of the learned counsel for the petitioner and learned A.A.-G. (on Court call) who was directed to file comments. These comments were duly filed along with report. The Member, Colonies has reported that the Government will act in accordance with the said judgment. A stay order was issued on 16- 4-2002. Thereafter the private respondents who had not been impleaded in the first instance filed application for being impleaded and they were accordingly impleaded and then the case was being adjourned from time to time. The position that emerges is that notice in the writ petition itself has never been issued and as such there was no occasion for the respondents to file written statement. Even otherwise for the purposes of this writ petition no such fact has been narrated in the writ petition itself which needs to be controverted. Admittedly the petitioners themselves alleged that they are occupying the land under respondents who are "Kala Base Evictees" and sitting tenants.
4. Now I have examined the judgment dated 7-9-1992 passed by this Court in Writ Petition No.1138 of 1982. In the first instance, Council of Ministers, Government of Punjab decided on 5-5-1975 as follows:-- "All persons who are genuine evictees and are sitting tenants ' may be given land at market price subject to ceiling of 12-1/2 acre. The total cost to be recovered in the ten equal; instalments."
' A memorandum was accordingly issued by the Deputy Secretary in the Colonies Department on 16-6-1975. The petitioners filed Writ Petitions Nos.336 of 1975 and 1410 of 1975. This Court took the view that the term "Sitting Tenant" requires further clarification by the Government of the Punjab the matter was accordingly remitted to the Government. A memorandum was accordingly issued in compliance with the said judgment dated 18-3-1976 on 27-7-1976. This memorandum was again challenged vide Writ Petition No.2015 of 1976 which was dismissed on 18-2-1977. I.C.A. No.27 of 1977 was also dismissed. C.P. No.94/R of 1977 was dismissed by the Honourable Supreme Court of Pakistan on 9-3-1981. After having failed upto the apex Court, the petitioners again moved the Minister for Colonies Government of the Punjab on 27-3-1982 and consequently Board of Revenue issued a memorandum dated 10-8-1982 being relied upon by the petitioners which is to the effect that proprietary rights will be granted only to the following persons i.e. (i) He should be a genuine evictee of Kala Base; (ii) He should be a "Sitting Tenant" and cultivating the land himself. Writ Petition No.1183 of 1982 was filed to challenge this memorandum and was allowed by this Court vide judgment dated 7-9-1992. Said, memo. Was set aside holding that earlier clarification by the Revenue Minister will remain in field.
5. C.Ps. Nos.247 and 248 of 1994 were filed in the Honourable Supreme Court of Pakistan. A note was taken of the all the facts and circumstances of the case. I deem it appropriate to reproduce here the following operative portion of the said judgment:-- "The impugned memorandum dated 10-8-1982 seems to have suffered from manifold defects. To start with, it was a unilateral retraction of one of the parties to circumvent a conclusive adjudication of. The issue. Upto the level of this Court. The controversy, re-agitated, thus, involved reopening of a past and closed transaction as also contravention to the principle of res judicata.
' It has been urged that many of the questions which suffered, pursuant to the memorandum dated 10-8-1982 and which thereupon came up again before the High Court, were not raised during the previous litigation, and therefore, could freely be re-agitated. The premise is erroneous both on the factual and legal planes. Thus, it does not seem that any of the crucial questions were not raised in the earlier round of litigation. Besides even if there were some such questions, each one of the same ought to have been raised in the previous adjudication and in the event any of them was not raised, such, as well, attracted the principle of constructive res judicata.
' Above all, a decision of the Cabinet or of a Minister could not be recalled at the level of the Board of Revenue, besides overlooking the concept of collective responsibility, even if the decision of the Minister in the earlier proceedings is not equated to that of the Cabinet, the fact remains that the High Court itself, in the previous round, had asked for a ,clarification from the Provincial Government and, surely the Secretary and the Minister represented such Government, a question dealt with squarely upto the level of this Court.
' While these appeals are liable to be dismissed for the reasons recorded above, there is yet another aspect of the matter, which needs to be dealt with. A sub-tenant, an under-tenant or licensee of a tenant is estopped under Article 115 of the Qanun-e-Shahadat Order, 1984, and its precursor statute, the Evidence Act, 1972, from questioning or bypassing the title (at the inception) of the tenant under whom he claims. The non-evictee cultivators in possession, if any, would be hit by this rule. Besides, and quite logically, it is the evictees of Kala Base who, on principle, were being provided alternative lands, that too none other than those, which they were already holding temporarily. The concept of "sitting tenant" in the context obviously, meant such affectees being in possession of the alternative lands, either physically or constructively. The entitlement dependent on a person being a Kala Base Evictee and in possession, actual or constructive, could under no stretch of reasoning, extend to a non-evictee, claiming under such an evictee or an unauthorized occupant. No such benefit, specific to Kala Base affectees, could be passed on to non-affectees either under a policy decision of the Government aforementioned or any clarification of it."
I confronted the learned counsel for the petitioners with the said judgment of the Honourable Supreme Court and called upon him to state as to how this matter can again be re-agitated in this Court in view of the findings recorded therein, he insists that on 4-10-2000, the Minister has again recorded a clarification that only "sitting tenants?' in possession should be given land. I am afraid the said contention borders on contempt. In view of the judgment recorded by the Honourable Supreme Court of Pakistan and particularly the observations that the matter is res judicata and that an attempt has been made to circumvent a conclusive adjudication of the issue upto the level of the Honourable Supreme Court of Pakistan. I have no manner of doubt in my mind that said clarification of the Minister in the year 2000 after completion of second round of litigation upto the Honourable Supreme Court of pakistan merits the same epitaph. Writ petition accordingly is dismissed with costs. Learned counsel fee is fixed at Rs.10,000.