1. FAKHRUDDIN G. EBRAHIM, J.-The controversy between the petitioner Divisional Forest Officer, Sialkot, and the respondent Ganda relates to land measuring 219 kanals 9 marlas situated in village Nanoke, Tehsil Daska, District Sialkot which land was on 15-12-1964 allotted to respondent Ganda by the Settlement Department in lieu of his verified claim.
2. On 18-11-1969 the petitioner, the Divisional Forest Officer moved the Additional Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act for cancellation of the said allotment on the ground that the land allotted formed part of 295 kanals and 16 marlas (36'9 acres) land which was, as far back as 15-12-1951, notified under section 38 of the Forest Act, 1927 as protected forest area. This application was by order dated 4-6-1972 granted.
3. In appeal the Settlement Commissioner maintained the order which was challenged in Writ Petition No. 1077-R of 1973 filed by respondent Ganda in the High Court of Lahore.
4. In the High Court the parties' pleadings disclosed that the land notified as protected forest area under notification dated 15-12-1951 had, in the year 1961-62 became subject-matter of consolidation proceedings in consequence whereof 7 acres out of the area of 36.7 acres was excluded and an equivalent area added in lieu thereof. The High Court took note of the concession made by the Forest Department that at least 7 acres of land in question was excluded from the original notification of the Forest Department and went on to observe that the -respondent Ganda could not at any rate be deprived of the allotment of this area and therefore in the opinion of the learned Judge, a Revenue Officer could more appropriately settle the question of the specification of the area still available for allotment.
5. On behalf of respondent Ganda it was also contended that the notification issued had never been duly published nor any action taken thereunder and that in fact the land in question had not been declared as protected forest area. The respondent had relied upon the notification itself to show that the land allotted to him was not declared protected forest area. The learned Judge rejected the Department's contention that as this second point had not been raised in the writ petition, the respondent Ganda ought not be allowed to canvass it for the first time in the High Court. The learned Judge remanded the case to decide afresh and allowed the respondent Ganda to raise this second plea in the remand proceedings for which purpose he was also granted leave to place any further material that he may wish to do so. It was finally observed that in case the respondent Ganda succeeds in his con--tentions, the allotment in his favour will remain intact in toto.
6. Mr. Gulzar Ahmad Qureshi, learned counsel for the Department in support of this petition, was at pains to point out that notified forest area under section 38 of the Forest Act, 1927 was not open for allotment under Settlement Law and that the respondent at best was entitled to retain 7 acres of land which had been excluded by the Revenue Officer in the course of consolidation proceedings, to which a reference has been made earlier. To this the short answer is that the High Court has left open the question regarding the effect of notification under section 38 of the Forest Act to be considered afresh and it will, therefore, be open to the parties to urge their contentions relating thereto. In the circumstances it will be inappropriate for us in this petition to make any observation relating thereto.
7. It was next contended by the learned counsel that the Department has since then purchased the land which was the subject-matter of notification under section 38 of Forest Act from the Settlement Department. Though this sale is said to have been negotiated as far back as 1964 and completed some years later, it is significant that the Department did not advert to it in any proceedings here to before. Be that as it may, since the question whether or not the allotment made in favour of respondent Ganda can or cannot be cancelled and if so to what extent, is to be resolved afresh on remand ordered by the High Court, the petitioner may urge if he is so permitted, this or any other ground while questioning the allotment made in favour of respondent Ganda.
8. All that has happened in the present case is that the learned Judge in the High Court deemed it fit to order that the matter be heard afresh by competent authority and since parties' rights are still to be determined, there is no room for interfering by this Court. This petition is, therefore, dismissed.