' MUNIR A. SHEIKH, J.--- By this common judgment, we propose to decide all the titled petitions for leave to appeal involving identical questions of law and facts which have been directed against a consolidated judgment, dated 11-2-2002 of the Lahore High Court through which five writ petitions were decided.
2. The petitioners in Civil Petition No,1151-L of 2002 were allotted evacuee land in dispute measuring 90 Kanals temporarily under the settlement laws. The matter for confirmation of the said allotment in their names was pending when on 3-1-1958, a notification was issued by the Federal Government for transfer of the said land to the Provincial Government to be utilized as State land.
3. W.P. No,1743 of 1966 was filed by the said petitioners before the High Court that they being temporary allottees of the said land were entitled to confirmation of the said allotment under the settlement laws, as such, the notification allowing transfer of the said land to the Provincial Government dated 3-1-1958 was against law. It was accepted through judgment, dated 12-6-1970 and a direction was made that the said land shall be taken to have not ceased to be part of compensation pool, as such, remained available for confirmation of temporary allotment of the said petitioners.
4. Thereafter, protracted litigation started, one on behalf of Siddique Textile Mills who claimed to be the lessee of the said land by the Provincial Government and the other on behalf of the petitioners in the said Civil Petition No,1151-L of 2002 for implementation of the said judgment for confirmation of their temporary allotment under judgment, dated 12-6-1970. Having failed to get land, Civil Appeal No,75 of 1983 was ultimately filed by Siddique Textile Mills before this Court which was accepted through judgment, dated 6-7-1983 and the case remanded to the Member, Board of Revenue to re-consider the case of the Textile Mills either for grant of lease/transfer of entire land measuring 11 acres, 5 Marlas or part of it, for previously, it was found to have been granted lease only in respect of land measuring 1 Acre; 5 Marlas about which also it was in breach. Civil Appeal No,25 of 1988 filed by the Provincial Government against judgment of acceptance of W.P. No,716-R of 1981 filed by temporary allottees seeking implementation of judgment, dated 12-6-1970 was dismissed.
5. Siddique Textile Mills after having obtained judgment by this Court for remand of its case through judgment, dated 6-7-1983 filed application under section 12(2), C.P.C. In Civil Appeal No,25 of 1988 which was accepted through order, dated 4-12-1991 by observing that all the orders passed in these matters after 6-7-1983 when the appeal of Siddique Textile Mills Limited was accepted, were not effective as the said mill was not a party, therefore, the case of the petitioners/temporary allottees was also clubbed with the case of Siddique Textile Mills Limited which had earlier been remanded to the Board of Revenue for decision.
6. After remand, the Board of Revenue held that Siddique Textile had no claim against the land, for it was in breach of the terms and conditions of the lease as it did not pay the lease money of land measuring 1 Acre, 5 Marlas which was allotted to it and as a whole it was not entitled to any portion of the land and further that Tufail deceased petitioner in Civil Petition No,1151-L of 2002 was entitled to confirmation of land measuring 68 Kanals, 5 Marlas. The remaining land was available but could not be transferred to anybody else according to the decision of Martial Law Authorities, therefore, the matter for the disposal. Of the said remaining land was closed against which W.Ps. Nos.106-R of 1992 and 241-R of 1995 were filed both by different groups of Katchi Abadi, W.P. No,165-R of 1992 by Muhammad Anwar claiming part of the land as graveyard, W.P. No,129-R of 1992 by Siddique Textile Mills, W.P. No,23-R of 1995 by Rehmatullah a sublessee from Siddique Textile Mills, which have been disposed of through common impugned judgment dated 11-2-2000 by the learned Judge in Chambers of the High Court against which all these petitions have been directed.
7. The learned Judge of the High Court held that the Member, Board of Revenue could not go behind the judgment of this Court dated 6-7-1983 through which the case was remanded and without deciding about the merit or otherwise of the findings of the Board of Revenue, Siddique Textile Mills was held to be entitled to the transfer of the entire land measuring 11 Acre, 5 Marlas as a consequence of which the temporary allottee-Tufail deceased, etc. Were deprived of the right of confirmation of the temporary allotment.
8. It has been, inter alia, contended by Mr. S.M. Naseem, learned counsel for the petitioners in Civil Petition No,1151-L of 2002:--
(a) that by virtue of judgment, dated 12-6-1970 passed in W.P. No,1743 of 1966, the transfer/exchange of evacuee land in dispute through notification dated 19-5-1958 did not alter the position that the land continued to be part of compensation pool, as such, Tufail deceased as temporary allottees were entitled to its confirmation as such, it was not a State land which could be disposed of by the Provincial Government in favor of Siddique Textile Mill or anybody, etc.;
(b) that Siddique Textile was never given lease of land measuring 11 Acre, 5 Marlas whereas mere proposal was made and possession was delivered to it without such lease, therefore, there was no question of transfer of the said land to it as lease;
(c) that the Member, Board of Revenue had held that Siddique Textile was in breach of the terms of conditions of lease of the land measuring 1 acre, 5 Marlas as it did not pay the dues in time and further sub-let the area to Rehmatullah but the learned Judge of the High Court did not adjudicate upon the merits of these findings and mechanically proceeded to hold that by virtue of judgment of remand of this Court, the Board of Revenue had no choice but mechanically to transfer the land to Siddique Textile which was not correct interpretation of the said order, for the case of temporary allottees had also been clubbed with the said remand order;
(d) that in view of the land being not available as State land, no part of it could be claimed to be part of graveyard or part of Katchi Abadi.
9. The question, inter alia, as to what is the scope and legal position of judgment of remand of this Court, dated 12-6-1970 passed in W.P. No,1743 of 1966 and whether Siddique Textile was entitled to the transfer of the land after it had been held to be in breach of the conditions of lease require examination in depth, therefore, leave is granted to re-examine the case in its entirety.
10. The interim order, dated 4-9-2002 shall continue till the disposal of the appeals.