Shitab Khan and one Noor Khan predecessor-in-interest of Mst. Kapuri Petitioner No. 2, were allotted in land measuring 54 kanals, 19 marlas and 85 kanals respectively against their verified claims, but their entitlement was reduced, it is being asserted, during consolidation operations as in the consolid--ation scheme confirmed on 13-8-1967 land allocated to them was less than the land to which they were entitled in lieu of the allotment made.
The petitioners challenged the' order of Assistant Consolidation Officer in appeal before the Collector (Consolidation) who vide order dated 10-5-1969 accepted the appeal and allowed them the land which had by then been proposed in favour of Wali Muhammad, respondent at Khata No. 114 of 1956 of the R. L. II. It is admitted that Wali Muhammad respondent was not a party to the appeal in which the proposal of allotment standing in the name of Wali Muhammad was set aside.
It was now turn of Wali Muhammad to file a revision before the Settle--ment Commissioner (Lands). This revision was accepted vide order dated 12-3-1970 of the then Settlement Commissioner with the direction to confirm the allotment in favour of Wali Muhammad respondent. In pursuant to this order, an order dated 4-6-1970 was passed thereby restoring Khata of Wali Muhammad.
3. The petitioners challenged the order of restoration dated 12-3-1970 by filing Writ Petition No. 743/R of 1970. This petition was dismissed by a learned Judge of this Court vide judgment dated 2- 3-1980. A petition for review filed by the petitioners also met the same fate and was dismissed on 27-4-1980. Thereafter the petitioners filed a Civil Petition for Special Leave to Appeal No. 857 of 1980 and the same was also dismissed by the learned Judges of the Supreme Court on 25-4-1980.
Pending this appeal another order dated 18-1-1981 was passed on the Khata of the respondent which reads :- The earlier order dated 4-6-1970 passed in pursuant to the order of the Settlement Commissioner reads as under :- The petitioners in this petition have challenged the order dated 18-1-1981 on the ground that the aforesaid order of confirmation having been passed without affording an opportunity of hearing to the petitioners stands vitiated as this order has prejudicially affected the rights of the petitioneRs.It is contended that no proposal of allotment could have been made till finalisation of consolidation proceedings and the proposal so made being itself illegal, the same could not have been confirmed so as to confer rights in the land. It was also asserted that the allotment has been made without entitlement and had an opportunity been given; the petitioners would have proved that the claim of the petitioners was bogus. I asked the learned counsel whether the pleas which are being raised now were not available to the petitioners in the earlier writ petition and if the same were available, how he is entitled to canvass the said plea when the order dated 12-3-1979 of the Settlement Commissioner has already been implemented on 6-4-1970 and when both these orders have already been upheld upto the level of Supreme Court. The learned counsel for the petitioners could not deny that the points being urged were available to the petitioners at the time of filing of the earlier writ petition. Moreover, it appears that similar points were raised earlier but were repelled. Reference may be made to the judgment dated 2-3-1980 passed in writ petition as it was noted therein as under :- It was pointed out that land having been confirmed in favour of the respondent on 4-6-1970, in pursuance of the final order passed by the Settlement Commissioner (Land) dated 12-3-1970 the property was no more available in the compensation pool for alleged sale in favour of the petitioners."
"Now, viewing in this context, the first point raised by the learned counsel that confirmation of the allotment at Khata to the respondent Wali Muhammad was not made on 4-6-1970 in pursuance of the order of Settlement Commissioner dated 12-3-1970 loses its significance. When the order dated 12-3-1970 passed by the Settlement Commissioner has been maintained in the impugned judgment, its imple--mentation automatically would stand ........
4. The learned Judges of the Supreme Court 1 dismissed the petition it after quoting para. 4 of the judgment of the High Court in ex tenso including the following portion :-- ---.------The order dated 10-5-1969 being void was rightly set aside by the Settlement Commissioner and the latter ordered confirmation of the proposal in favour of Wali Muhammad, respondent. The land having been confirmed on 4-6-1970 in pursuance of the order of Settlement Commissioner dated 12-3-1970 could not have been validly sold on 22-8-1975 by the Settlement."