' SYED ZAHID HUSSAIN, J.---The property in dispute in this petition and connected petitions (Writ Petition No,51-R/2007, W.P. No,75-R/2007, W.P. No,82/2007, W.P. No,83/2007, W.P. No,84/2007, W.P.
No,85/2007 is Bungalow No,P-145/1, Ward No,10, Railway Road, Faisalabad. Multiple litigation before the Settlement Authorities and Courts, including the Honourable Supreme Court of Pakistan had been going on concerning this property, which has continuously kept the parties engaged till date.
It is now order dated 20-4-2007 passed by the respondent Member (Judicial-V) Board of Revenue/Chief Settlement Commissioner, Punjab, which is sought to be assailed through this petition. By means of this order the petitioner has been non-suited on the ground that "Amir Fayyaz Ali Khan lost his case up to the Supreme Court of Pakistan, therefore, he is not eligible to file the application under section 12(2), C.P.C. Before the CSC." So far as the case of Sheikh Saeed Ahmed petitioner in Writ Petition No,51-R of 2007 is concerned, he has also been non-suited by means of the same order on the ground that "the transfer of the property in favour of Sheikh Saeed Ahmad, made by ADC(G), vide his order, dated 16-8-1988, the transfer order is illegal and without jurisdiction for reasons that the matter was not remanded by the Superior Court of the country. The ADC(G) acted illegally and without jurisdiction in transferring the property to Sheikh Saeed Ahmad.
The Settlement Laws stood repealed w,e,f, 1-7-1974 and the claim of Sh. Saeed Ahmad for transfer of suit property was not covered by section 2(2) of the Repealing Act, 1975." The rest of the petitioners in the respective petitions claim to be occupants in the same property. Qua them, the observation in the impugned order is that "The miscellaneous applications filed by the encroachers for transfer of the vacant plot are hereby rejected for the reason that their ejectment was ordered by the competent authority as back as 1988 and secondly none of the applicant fulfills the conditions of R.P. Scheme, 1977." It was thus ordered that the property "shall be available for disposal by unrestricted public auction under the Scheme for the Management and Disposal of Available Properties, 1977."
' In view of the commonality of impugned order and the controversy the learned counsel have been heard in the matter. The learned counsel for the Department did not turn up due to his engagements elsewhere, but as these petitions were adjourned for today in presence of all the learned counsel, there is no justification for adjournment.
2. In the background of past litigation and the impugned order passed by the respondent, the right/entitlement of Amir Fayyaz Ali Khan and Sheikh Saeed Ahmad in the first instance need to be considered. For that matter, brief reference to the previous litigation concerning the property in dispute with factual background mentioned in the various judicial orders need to be kept in view.
3. On 4-6-1956 the Deputy Rehabilitation Commissioner, Lyallpur, allotted the bungalow in dispute to the Executive Engineer, PWD Building and Roads, Provincial Division for his residence as a Government servant. Amir Fayyaz Ali Khan, (petitioner herein) was then a Government servant. On his posting as Executive Engineer at Lyallpur, the possession of the bungalow in dispute was handed over to him on 16-11-1959. On 11-4-1961 he approached the Chief Settlement Commissioner seeking permission to file belated NCH Form for its transfer. The Chief Settlement Commissioner condoned the delay. In consequence the Assistant Settlement Commissioner with powers of Deputy Settlement Commissioner vide order dated 4-7-1961, transferred the bungalow in dispute to the petitioner, on the basis of his sole occupation. The informers, namely, Mirza Khurshid Beg and Rai Abdul Razzaq, lodged information before the Evacuee Properties Authorities that Amir Fayyaz Ali Khan, petitioner, was a local and not a displaced person. In consequence of that information, the transfer made in favour of Amir Fayyaz Ali Khan, petitioner, was set aside. The bungalow was transferred to Rai Abdul Razzaq. The petitioner filed petition Writ Petition No,1310-R of 1962. Mirza Khurshid Beg, informer, also filed petition Writ Petition No,21-R of 1963. The writ petition filed by the petitioner was dismissed while that of Mirza Khurshid Beg was remanded by order dated 16-3-1965 for determining afresh the question as to which of the two informants had first laid the information.
The petitioner filed C.P.L.A. No,217 of 1965, which was dismissed on 7-10-1965 with the observation that Amir Fayyaz Ali Khan was the resident of Bahawalpur District and not a displaced person. Rai Abdul Razzaq also filed Civil Petition for Leave to Appeal No,200 of 1965, which was also dismissed by order dated 6-10-1965.
4. Pursuant to the remand order passed in Writ Petition No,21-R of 1963, the bungalow in dispute was transferred to Mirza Khurshid Beg by order dated 26-2-1966 passed by the, Settlement Commissioner. Rai Abdul Razzaq filed Writ Petition No,591-R of 1966 against the said order. The petitioner Amir Fayyaz Ali Khan was also a party to this petition. This petition was dismissed on 2- 12-1968, wherein it was held that none of the informers were entitled to the transfer of the bungalow in dispute. L.P.A. No,34 of 1969 and L.P.A. No,35 of 1969 were filed by Rai Abdul Razzaq and Mirza Khurshid Beg, respectively, against the said judgment. Both the appeals were, however, dismissed by the Division Bench of this Court vide order dated 14-1-1985. C.A. No,468 of 1988 and C.A. No,469 of 1988 were filed in the Supreme Court by them. Both the appeals were dismissed by order dated 19- 11-1991. It may be pointed out that petitioner remained posted as Executive Engineer PWD Faisalabad, from 16-11-1959 to 30-8-1961 when he was transferred as Executive Engineer Bahawalpur and was never transferred back to Faisalabad.
5. After remaining unsuccessful for transfer of the bungalow in dispute under Settlement Scheme No,1, as a result of the judgment dated 7-10-1965 passed in C.P.L.A. No,217 of 1965 Amir Fayyaz Ali Khan, petitioner, applied on 20-10-1966 under Settlement Scheme No,VIII for the transfer of the bungalow on the basis of his occupation/possession w,e,f, 16-11-1959. He also submitted an application under the Scheme for the Management and Disposal of Immoveable Urban Property for transfer of the bungalow in dispute on the basis of his possession since 1959. Sh. Saeed Ahmad, petitioner in Writ Petition No,51-R of 2007 had applied for allotment of House No,106, Civil Lines, Sargodha on 17-5-1959. The aforesaid house was, however, transferred to one Khalil Ahmad in the earmarking scheme. Consequently, his CH Forms were rejected by the Deputy Settlement Commissioner on 13-7-1966. He filed an appeal against the said order, which was dismissed on 7- 9-1966. On revision the learned Settlement Commissioner remanded the case by order dated 3-4- 1967. In the remand proceedings he and Khalil Ahmad expressed no objection for transfer of the house in favour of Khalil Ahmad but prayed for issuing a choice certificate in his favour. This was rejected by the Deputy Settlement Commissioner vide order dated 20-6-1967. On appeal filed by him, the learned Additional Settlement Commissioner vide order dated 9-2-1978 issued direction that available alternate evacuee property of his choice in the region be allotted to him.
Consequently the choice certificate was issued to him by the Deputy Settlement Commissioner vide order dated 12-2-1978. He exercised his choice in respect of the disputed bungalow on 12-3- 1978. The matter could not be taken up and decided by the Settlement Authorities due to pendency of L.P.A. Nos. 34 of 1969 and L.P.A. No,35 of 1969 because of a status quo order, although he had been pressing for it.
6. As regards application of Amir Fayyaz Ali Khan under Settlement Scheme No,VIII the same was dismissed on the ground that there was no available property against which his application could be considered, in that, the bungalow in dispute stood already transferred to Mirza Khurshid Beg by order dated 26-2-1966 passed by the Settlement Commissioner. Amir Fayyaz Ali Khan preferred appeal against the said order before the Addl. Settlement Commissioner, Faisalabad, which was dismissed on 15-8-1988, on the grounds:- (i) He was not in possession in pursuance of on valid order passed by any competent authority on or before 20-12-1958 as Settlement Scheme No,VIII requires that property in possession or as allotment order before that date; (ii) That he had no locus standi to file the form as the property had already been transferred to Mirza Khurshid Beg on the date the application was filed; (iii) Amir Fayyaz Aliu was admittedly a licensee of the P.W.D. And, therefore, he could not be said to be in possession; (iv) Whatever was the nature of the possession, it was discontinued on his transfer from Faisalabad on 30-8-1961; and (v) After the petitioner's failure to get the property transferred as a displaced person he filed form under Settlement Scheme No,VIII and that he had earlier misrepresented the facts.
7. Subsequently, the matter was taken up by the Additional Deputy Commissioner, General/Deputy Settlement Commissioner, Faisalabad as Notified Officer who after hearing Amir Fayyaz Ali Khan and Sheikh Saeed Ahmad by order dated 16-8-1988 transferred the property in dispute in favour of Sh. Saeed Ahmad on the basis of findings recorded by him that under Settlement Scheme No,VIII Amir Fayyaz Ali Khan should have been in possession of the property on the basis of a valid order on or before 20-12-1958, whereas he claimed possession of the bungalow w,e,f, 16-11-1959; that he was transferred from Lyallpur to Bahawalpur on 30-8-1961 and discontinued his occupation or possession after his posting and, therefore, he had no locus standi to apply for the property in dispute. As regards the, availability of the property, it was held that the same had already been transferred to Mirza Khurshid Beg at the time when the application was filed and, therefore, he was not entitled to claim its transfer. As regards disposal of his form under Settlement Scheme No,IX it was observed that "No doubt bungalow is now available for transfer. The previous orders of transfer and P.T.D. Issued in favour of Amir Fayyaz Ali Khan had been cancelled and this cancellation stands confirmed up to the Supreme Court of Pakistan. There is no other person, except Sh. Saeed Ahmad to claim the transfer of the disputed bungalow. Sheikh Saeed Ahmad was a regular allottee and occupant of bungalow No,106, Civil Lines, Sargodha, for which he filed CH Form in time as a claimant displaced person. He was debarred from this house covering 19 Kanals and 10 Marlas on account of the erroneous attitude of the Settlement Commissioner Staff. So the learned Settlement Commissioner, Sargodha, directed all the Deputy Settlement Commissioners of the Region to accommodate him against an available property transfer."
8. The claim of Amir Fayyaz Ali Khan based on the assertion that he was refugee displaced person did not find favour with the Courts up to the Honourable Supreme Court of Pakistan as his petition was dismissed on 17-10-1965 and about local in possession in the subsequent round of litigation also as his writ petition (Writ Petition No,125-R of 1988) was dismissed on 1-11-1993. His appeal (C.A.
No,340 of 1995), against the said judgment was dismissed by the Honourable Supreme Court of Pakistan on 8-5-2001, upholding the judgment dated 1-11-1993, with the observation that "even his claim to the property on the ground of being a local was not tenable under the law." He filed Review Petition No,285 of 2001, which was dismissed on 12-1-2004. It appears that he had also filed an application (C.M. A. No,2392 of 2001) under S.12(2) of the Code of Civil Procedure, 1908, which was dismissed as withdrawn to approach the departmental authority under the relevant provisions of law. He then made application under S.12(2) of the Code of Civil Procedure, 1908 before the respondent who entrusted the case to Deputy Settlement Commissioner (S&R) for detailed inquiry and report. The Deputy Settlement Commissioner, however, after holding inquiry, proceeded to dismiss his application on 31-5-2004. Writ Petition No,101-R of 2004 was then filed by Amir Fayyaz Ali Khan, primarily on the ground that the Chief Settlement Commissioner/Member Board of Revenue should have passed the order on the said application himself. The said petition was disposed of on 29-9-2005 with the direction to the respondent to dispose of the matter himself. It was observed that "there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the learned Member, Board of Revenue/Chief Settlement Commissioner, and this order will not be construed as a remand order."
Eventually order dated 20-4-2007 has been passed by the respondent who has non-suited Amir Fayyaz Ali Khan petitioner on the ground that he had failed in the contest for the transfer of the property up to the Honourable Supreme Court of Pakistan.
9. There can be no denial as to the verity and efficacy of the findings and judgments of the Superior Courts in this case, nor any scope is left for anyone to ignore, bypass or overlook these judgments.
As far back as in the year 1965, petition of Amir Fayyaz Ali Khan (C.P.L.A. No,217 of 1965) was dismissed by the August Bench of Supreme Court comprising late Chief Justice A.R. Cornelius and late Justice Fazal-eAkbar, but his audacity and persistence has continued despite successive defeats/findings that he was not a displaced person and could not be transferred the property on NCH Form. Even afterwards C.A. No,340 of 1995 was dismissed by the Apex Court on 8-5-2001 and also the review petition on 12-1-2004, meaning thereby that he was not entitled to transfer as a local under any scheme. To his extent the matter had become past and closed and attained finality for all intents and purposes. He was precluded to re-agitate the matter over again. Any attempt to erode the affect of previous judgments should be curbed out rightly.
10. It need to be noted again at the cost of repetition that on 12-1-2004 there were two matters before the Honourable Supreme Court of Pakistan, one was the review petition qua judgment dated 8-5-2001 and the other application under section 12(2) of the Code of Civil Procedure, 1908.
The review petition was dismissed by a reasoned order and whereas the application (under section 12(2) of the Code of Civil Procedure, 1908) was withdrawn. It was a voluntary act of withdrawal of the said application on the part of the petitioner. It is not possible to assume for a moment that after dismissal of his appeal and review petition, any scope for re-agitation and reopening of the matter was left open. However, in the garb of application under section 12(2) of the Code of Civil Procedure, 1908 he once again launched another attack by abusing and misusing the process of law and of the Courts. Undoubtedly the import, object and purpose of Articles 189 and 190 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be defeated by adopting such devious means. Nor it can be permitted to be done by this Court in writ jurisdiction.
The contention of his learned counsel as to the alleged fraud/misrepresentation by any other has no legs to stand. He cannot be allowed to drag others into litigation on flimsy allegations when he had lost his case repeatedly up to the Apex Court.
' In such view of the matter, the petition of Amir Fayyaz Ali Khan is liable to be dismissed with costs.
11. So far as the case of Sheikh Saeed Ahmad, petitioner in Writ Petition No,51-R of 2007 is concerned, it needs no reiteration that in L.P.A. No,34 of 1969 (filed by Rai Abdul Razzaq and L.P.A. No,35 of 1969 filed by Mirza Khurshid Baig), which concerned the same property, Sheikh Saeed Ahmad was one of the parties. Since long he has been in the contest for the transfer of property. Even order dated 9- 2-1978 of the Settlement Commissioner, granting to Sheikh Saeed Ahmad, choice certificate and ultimate certificate dated 12-2-1978 issued by the Deputy Settlement Commissioner, Sargodha in his favour, were very much part of the said file of L.P.A. No,34 of 1969. He has Veen clamouring and litigating for transfer of some property. By no means the approach adopted by the respondent in the impugned order qua him could seek factual or legal justification to non-suit him. It was in all respects a matter pending qua him in terms of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Indeed, the import and effect of judgment of the Honourable Supreme Court of Pakistan dated 8-5-2001 (C.A. No,340 of 1995), which had assumed finality, could not be nullified. Reference in this context may be made to Pir Bakhsh represented by His Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145. With the dismissal of the above, appeal of Amir Fayyaz Ali Khan on 8-5-2041 against Sheikh Saeed Ahmad, as also the dismissal of Review Petition No,285 of 2001 on 12-1-2004, it had become a matter past and closed leaving no scope for anyone to reopen the same. In the garb of proceedings under section 12(2) of the Code of Civil Procedure, 1908, which was entirely a misconceived attempt, the legal efficacy of the judgment of the Honourable Supreme Court of Pakistan could not be impaired through any indirect methodology when the judgment in appeal had also been affirmed by dismissing the review petition.
On no discoverable principle or basis, any subordinate functionary can undo or stultify the effect of the judgment of a superior Court, what to say of the verdict of the Honourable Supreme Court of Pakistan. The remedy provided by section 12(2) of the Code of Civil Procedure, 1908 operates within its own folds as interpreted by the Superior Courts. The executive and State functionaries are duty bound to carryout, honour and respect the judgments of the Honourable Supreme Court and not to find faults with the same or act as a stumbling block in implementing the same.
12. While going through the record of the previous litigation between the parties and dealing with this matter I am reminded of the dismay expressed by Late M.R. Kayani, J., in Abdul Ghafoor and thirty others v. The Rehabilitation Commissioner West Pakistan, Lahore PLD 1958 W.P. Lahore 48, who perhaps was constrained to observe that "Dispensation of justice must be in recognized legal forms, so that at some stage in his struggle for existence a person in these surroundings could have a sigh of relief and say to himself: "This is my own, my second native land". Such was the observation made by the great Judge of the time in the year 1957. Half a century has passed by, but the parties are still litigating in Courts for the transfer of erstwhile evacuee properties. Sheikh Saeed Ahmad who had been litigating for decades and had ultimately been transferred the property in his favour in the year 1978 and was successful in defending the said transfer up to the Honourable Supreme Court of Pakistan, had once again been deprived of the same through the impugned order on incompetent proceedings and untenable grounds. Nothing can compensate or alleviate the anguish, agony and sufferance of such a litigant, except to declare the impugned order qua him, as wholly without jurisdiction and of no legal effect and that his petition should be accepted with costs.
13. As noted in the earlier part of the order, fate of the other petitions is dependent upon the fact as to whether the property was available or not. The property having lawfully been transferred in favour of Sheikh Saeed Ahinad (petitioner in Writ Petition No,51-R of 2007) all such petitions hold no ground whatsoever.
' As a result of the above, Writ Petition No,41-R of 2007 filed by Amir Fayyaz Ali Khan is dismissed with costs, Writ Petition No,51-R of 2007 filed by Sheikh Saeed Ahmad is accepted with costs,, whereas Writ petition No,75-R of 2007 filed by Ch. Wali Muhammad etc., Writ Petition No,82-R of 2007 filed by Malik Khizar Hayat etc. Writ Petition No,83-R of 2007 filed by Malik Inayat Ullah Awan, Writ Petition No,84-R of 2007 filed by Muhammad Afzal etc. And Writ Petition No,85-R of 2007 filed by Muhammad Iqbal Zafar are dismissed with no order as to costs.