' According to the memo. of the petition, the petitioner, "a local" under the Settlement Laws, had taken on rent shop bearing survey No.1748 Ward 'C', Seo Bazar, Larkana, from its Hindu owner some time in March, 1947. The Hindu owner migrated to India and the shop became evacuee property and it was allotted to the petitioner vide allotment order bearing No.S.C.165 of 1948, dated 12-8- 1948. It has further been averred in the memo. of petition that the petitioner also acquired possession of godown bearing survey No.1747, which is adjacent and attached to the said shop, and said to belong to another Hindu evacuee, and that the said godown was also allotted to the petitioner by allotment order dated 5-11-1953. Copies of the two allotment orders have been filed alongwith the memo. of petition. The petitioner had also paid rent to the Custodian of Evacuee Property in respect of these two propertied and photo copies of some rent receipts were filed with the plaint showing payments of rent by the petitioner of the two properties to the Custodian: According to the memo. of petition, the petitioner being a 'local' within the meaning of the term employed in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not entitled to the transfer of the aforesaid shop and godown and the same could only be disposed off through public auction under the provisions of 1958 Act. According to the petitioner, in 1964 he came to know that shop No.1748 had been acquired by Sirajuddin, respondent No.2 in this petition, and the godown (C.S.No.1747) had been acquired by one Qamrul Hai through auction and that the shop had been sold out for Rs.5,000 and the godown for Rs.2,850. The petitioner, being a person in possession of the said shop and godown, challenged the legality of the auction proceedings through two applications filed before the Additional Settlement and Rehabilitation Commissioner, Hyderabad, but by two orders, both dated 22-10-1964, these applications of the petitioner were rejected. The petitioner filed two revision applications which were also rejected by the Settlement Commissioner by his orders dated 22-1-1965. The petitioner then filed two writ petitions in the High Court being Writ Petition No.109/65 (in respect of property No.1748) and Writ Petition No.110 of 1965 (in respect of property No.1747). The aforesaid two petitions alongwith Writ Petition No.87/70, filed by one Wasi Ahmed, were disposed off together by a judgment dated 15-5-1970 of a learned Single Judge of the High Court of West Pakistan Karachi Bench. In those three petitions, respondents had raised preliminary objections about the locus standi of the petitioners to file petitions under Article 98 of the 1962 Constitution. The learned Single Judge who decided those writ petitions, after review of the case law, held that in the circumstances of those three petitions, the petitioners could competently move the High Court under Article 98 of the Constitution. The technical objections raised by the counsel for the respondent in those three petitions were repelled. Paras. 13 and 14 of the judgment dated 15-5-1970 are reproduced here:- "13. The result of the findings given by me above on the legality of the various orders passed in these cases and also on the question of the competency of these writ petitions, is that the impugned actions/orders of the Settlement authorities are set aside. The writ petitions are accepted and the cases are remanded to the concerned Settlement Commissioners, who shall after giving notice to the parties concerned, proceed in accordance with law. There shall be no order as to costs.
14. Before closing the judgment, it may be remembered that the question whether any of the petitioners, who are admittedly in possession of the properties have now become entitled to the transfer of the properties under the changed settlement law, was only touched but was not argued.
I consider it fair that this Court should not give any decision on this question because it may involve some investigation on the factual side, at least in Writ Petition No.87/70."
As regards the merits of the case of the petitioner, it may be convenient to reproduce here para. 8 of the judgment dated 15-5-1970:-- "In reply, Mr.Wasim Rizvi, the learned Additional Settlement Commissioner (Legal) stated that even though it is mentioned in the order of the Settlement commissioner that due publicity was given and that in the written statement also the same position has been adopted, but after careful consideration of the entire case and after hearing the arguments which were fairly lengthy, he had come to the conclusion that he would not controvert the assertion made by the petitioner that there was no publicity with regard to the auction of this property. As noted earlier, he however stated that this question requires enquiry and that in case he fails in his legal objection, he would concede that these petitions be accepted and the matter be remanded for redecision.
Mr.Mahmud, learned counsel for the respondent No.4 in Writ Petition No.109/65 was also unable to controvert the position that no publicity was given to the auction in respect of the property in dispute. He, however, half-heartedly tried to support the order of the Settlement Commissioner in this behalf, by relying on the written statement filed by the Department, but on the position adopted by the learned Addl. Settlement Commissioner 'Legal' gave up that stand. None of the learned counsel has taken the position that the disposal of the property in dispute in this case was in accordance with the law including the scheme and the instructions thereon, applicable at the relevant time. Indeed none of the learned counsel for the respondents has tried to support the transfer in favour of the respondents on merits.
' It needs to be noticed that some arguments were addressed on the question whether or not the appeal before the Additional Settlement Commissioner was time-barred. Learned counsel for the petitioner contended that the appeal was not time-barred as it was filed within limitation if the period is reckoned from the date of the knowledge of the petitioner and that, in any case, it was in fact condoned by the Additional Settlement Commissioner. He also cited some case law. However, after that all the learned counsel for the respondents, in very clear terms, of which I made a note, stated that they did not want to raise this question. Therefore, this question did not proceed any further.
' Mr.Mahmud also raised the question of the locus stand! of the petitioner to file the appeals revisions before the Settlement Authorities. It need not be separately dealt with because similar question is to be considered in respect of his locus standi to approach this Court under Article 98 of the Constitution. However, it needs to be remarked that in order to file an appeal or revision he was only to show that an order/action adverse to his interest had been passed taken by the lower Settlement authority which condition was, undoubtedly satisfied in this case. Therefore, in addition to what I have to say on the general question of grievance and locus standi, the appeals and revisions were competently filed by the petitioners. Mr.Noor Muhammad learned counsel for respondent No.4 (in W.P.No.110/65) adopted the arguments of the other two learned counsel for the respondents in these two petitions. He did not even try to controvert the separate ground urged by the learned counsel for the petitioner against his client which has been noted as item No.(iv) in paragraph 7 above."
' Sirajuddin, respondent No.2 did not file any appeal against the judgment dated 15-5-1970 of the learned Single Judge, whereby, as noted hereinabove, the writ petition filed by the present petitioner was accepted. However, Qamrul Hai, private respondent in the other petition i.e. Writ Petition No.109 of 1965, filed a Letters Patent Appeal No.117 of 1970 against the judgment dated 15-5- 1970 of the learned Single Judge allowing Writ Petition No.109 of 1965 in respect of property bearing No.1748. At the time the present constitutional petition was filed, the aforesaid Letters Patent Appeal filed by Qamrul Hai was pending in this Court by judgment dated 25-10-1982 the said Latters Patent Appeal No.117 of 1970 was allowed and the last paragraph of the said judgment, which is now reported in PLD 1983 Kar. 337, is reproduced hereinbelow:- "After having considered these cases we are of the view that the contention of the appellant (Qamrul Hai) that respondent No.1 (Hazur Baksh) has no locus standi to challenge the transfer in his favour is formidable. We accordingly accept this appeal, set aside the order of the learned Single Judge and hold that respondent No.1 had no locus standi to challenge the transfer in favour of appellant. As the order of the learned Single Judge is set aside by us, the subsequent transfer in favour of the respondent No.1 by the Settlement Commissioner dated 30th October, 1975, is declared without any lawful authority. With these observations the appeal is allowed but in the circumstances of the case we will make no order as to costs."
2. After the judgment dated 15-5-1970 of the learned Single Judge accepting Writ Petition No.110 of 1965 and remanding the case to the Settlement Commissioner (respondent No.1) the matter came up before respondent No.1, Additional Settlement Commissioner, Sukkur, who issued notices to the parties and by his order dated 30-10-1975, he disposed off both the cases i.e. the case in respect of property No.1748 as well as property No.1747 together. The last paragraph of the order dated 30-10-1975 of the Additional Settlement Commissioner is reproduced hereinbelow: - #TBS "Heard the parties as well as the counsel and perused the relevant record carefully. I am now of the opinion that no fraudulent tactics seem to have been played at least to the extent of transfer of property No.1748. However, it is presumed that shop No.C-1747 was not purchased publicly but the bid sheet seems to have been maintained afterwards in the office by his brother lnamul Hai that is why he preferred to remain absent. However, I find no justification to interfere with the transfer documents issued in favour of Sirajuddin, the respondent No.2, and his transfer documents will remain intact but hereby cancel the transfer documents in favour of Ghulamul Hai and thus the same is now available for disposal. The CS No.1747 and 1748 are independent shops on the spot and since CS No.1747 became available for disposal and his form is available on file for transfer he is hereby transferred shop No.CS-1747. The Additional Settlement Commissioner, Larkana, is requested to issue demand notice for #TBE the transfer price of shop No.CS-1747, Seo Bazar as well as rent notice for both the shops CS-1747- 1748. Thus the matter is accordingly disposed off."
' This order dated 30-10-1975 of the Additional Settlement Commissioner, in so far as it relates to property No.1748, has been challenged in the present constitutional petition filed by Hazur Bakhsh. I have heard the arguments of Mr.Kunwar Mukhtar Ahmad, learned counsel for petitioner and Mr.S.Abbas Zia, learned counsel for respondent No.2, Sirajuddin. No one has appeared on behalf of respondent No.1, Additional Settlement Commissioner.
3. The main argument of the learned counsel for the petitioner was that the auction proceedings, whereunder the property No.1748 came to be transferred to respondent No.2, Sirajuddin, had been set aside and the ease had been remanded by judgment dated 15-5-1970 of the learned Single Judge accepting Writ Petition No.110 of 1965 and as such the Additional Settlement Commissioner could not confirm the transfer in favour of respondent No.2 on the basis of the said auction. According to the learned counsel for the petitioner, paragraph 8 of the judgment of the learned Single Judge in the previous writ petition, which has been reproduced in the earlier part of this judgment, the transfer in favour of respondent No.2, Sirajuddin, of property No.1748, had not been supported on merits by the Settlement Department or by the counsel of Sirajuddin and that the learned Single Judge having decided that the transfer in favour of Sirajuddin on the basis of auction was not in accordance with the law, the Additional Settlement Commissioner on remand could not hold that the transfer in favour of Sirajuddin on the basis of auction was proper. The relevant part of impugned order dated 30-10-1975 of the Additional Settlement Commis sioner has been reproduced above and it shows that there is no discussion on the point as to whether the auction had taken place properly and requisite legal formalities had been complied with. All that the Additional Settlement Commissioner observed in his impugned order is that he was of the opinion that no fraudulent tactics seem to have been played in respect of transfer of shop No.1748 in favour of Sirajuddin, respondent No.2. It was further argued by the learned counsel for the petitioner that the decision dated 25-10-1982 in Letters Patent Appeal No.117 of 1970 has no bearing on the present case, as this was an appeal filed by Qamrul Hai, and Sirajuddin had not filed any appeal against the judgment dated 15-5-1970 of the learned Single Judge in the previous writ petition and therefore as far as the judgment of the learned Single Judge was concerned, to the extent it related to property No.1748, it attained finality. Mr.Kunwar Mukhtar Ahmad relied upon four reported judgments in support of his argument. Reliance was placed on the case of Government of Pakistan v. Akhlaq. Hussain PLD 1965 SC 527. The counsel referred to the following passage from this judgment appearing at page 575:- "....................................... If in any civil matter the High Court records a decision and the Government does not appeal the Government becomes bound by the decision. It may in another case challenge the view of law taken by the High Court, but so far as the order of the High Court is concerned it will remain binding. An order of the High Court passed within jurisdiction is as much binding on the parties affected when it takes a wrong view of law as it is when it proceeds on a correct view of law. If a party does not appeal that party loses all rights of challenging the order. I do not see any reason for making a distinction in this respect between an ordinary civil proceeding and the present proceedings."
' The learned counsel for the petitioner then relied upon the judgment of the Supreme Court in the case of Income-tax Officer v. Cement Agencies Limited PLD 1969 SC 342 wherein it was observed that a decision given by a higher Court in another case cannot be a ground for re-opening an issue which stood finally determined by a decision of a subordinate Court or authority.
' Learned counsel also relied upon the case of Mohsan Khan v. Chief Settlement Commissioner 1969 SCMR 306. In this case an order was passed by the Additional Settlement Commissioner against the petitioners, who filed an appeal before the Settlement Commissioner but the Settlement Commissioner also dismissed their appeal in October, 1963. The petitioners took no steps to challenge the order of 1963 of the Settlement Commissioner but in June, 1966 they applied to the Chief Settlement Commissioner for the transfer of the plot in question under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which provision permitted the Central Government to order the transfer in public interest of any property out of the compensation pool in such a manner as it might deem proper. The Chief Settlement Commissioner forwarded the application to the Deputy Settlement Commissioner for enquiry and report. The petitioners again went to sleep until 12-6-1968, when they filed a writ petition under Article 98 of the Constitution before the High Court of West Pakistan, Lahore, but the petition was dismissed in limine by a learned Single Judge and a Letters Patent Appeal was also dismissed in limine by a Division Bench of the High Court. The petitioners filed a petition for special leave to appeal before the Supreme Court. The leave was refused by the Supreme Court and the relevant part of the order of the Supreme Court is reproduced hereinbelow:- "It is true that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiesence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them.
' The facts of the present case clearly indicate that the party knew fully well that the adverse order made by the Settlement Commissioner was in accordance with law, as it then prevailed and, therefore, did not take any further steps to challenge that order. It was only after the decision of this Court in Mst. Mahmooda Tahsin v. S. Ijaz Hussain Shah and Settlement and Rehabilitation Commissioner and others that the law was changed. It was there held that insistence of the Department to show a Pakka construction was illegal, for, all that was required by paragraph 13 of the Schedule to the Compensation and Rehabilita tion Act of 1958 was that there shoud be a permanenet building. The limitations added to the ordinary connotation of a permanent building in Scheme No.VI were, therefore, void as being opposed to the Schedule itself. In the present case it is clear that it is only after this decision which was announced on the 4th June, 1965, that the petitioners revived their attempt to have this question re-opened. But even so, they did not pursue their application of the 2nd June, 1966 with any seriousness.
' In the circumstances we are fully satisfied that the High Court was right in dismissing their application under Article 98 of the Constitution on the ground of laches."
' Learned counsel for the petitioner also referred to the case of Jamia Industires Ltd. v. Karachi Municipal Corportion PLD 1975 Kar. 26, a decision of a learned Single Judge of the High Court. The question involved in that case was whether in the facts and circumstances of that case the plaintiff was entitled to obtain a refund of the amount claimed in the suit. At the time the plaintiff had made payment of the lax, there was decree of the Civil Judge which declared that the Karachi Municipal Corporation was competent to levy the terminal tax in question in accordance with the old schedule. The plaintiff neither filed any appeal nor any cross-objections for varying that portion of the decree which was against it which declared that the plaintiff was liable to pay terminal tax on the goods imported by sea according to the old schedule. The learned Single Judge observed that the declaratory decree became final and binding. It also had that affect under section 43 of the'
Specific Relief Act, 1877 which makes a declaration binding on the parties to the suit and persons claiming damages through them, and that though the said decree of the Civil Judge had later on been found to be erroneous in view of the later judgment of the Supreme Court in Pakistan Tobacco Company's case PLD 1967 SC 241 the correctness of a decree passed by a Court of competent jurisdiction is not a relevant consideration to its finality and operation and that the decision of the Supreme Court in Pakistan Tobacco Company's case could not affect the operation of the decree of the Civil Judge which had become final.
4. On the other hand, Mr.S.Abbas Zia, learned counsel for the respondent No.2, Sirajuddin, opposing the petition, raised the following contentions:-
(i) The case had been remanded by the learned Single Judge accepting the previous writ petitions and the direction was to decide the case in accordance with law and the Additional Settlement Commissioner had decided the case in accordance with law and it called for no interference.
(ii) The direction of the learned Single Judge in his decision in the previous writ petitions to the Settlement Commissioner was to decide in accordance with law and no direction was given to hold any other auction.
(iii) Both the cases i.e. of Sirajuddin as well as Qamrul Hai, were decided by one judgment dated 15- 5-1970 and although no appeal had been filed against that judgment by Sirajuddin, Qamrul Hai, petitioner in Writ Petition No.109 of 1965 filed a Letters Patent Appeal which had been allowed by judgment dated 25-10-1982 PLD 1983 Kar. 337 in which judgment it has been held that a local had no locus standi to challenge the transfer of a property in favour of a displaced persons. According to the learned counsel, in view of this judgment, the transfer of property through auction in favour of Sirajuddin could not be competently challenged by Hazur Bakhsh, a local.
(iv) A constitutional writ is a writ of discretion. If the present writ is allowed it will cause injustice.
According to Mr.S.Abbas Zia, the entire judgment dated 15-5-1970 goes away by the judgment dated 25-10-1982 in Letters Patent Appeal No.117/70 and it will be unjust if now relief is granted to the petitioner.
5. It has been noted that the previous petitions had been disposed by a learned Single Judge by his common judgment dated 15-5-1970. It has also been noted that Sirajuddin did not file Letters Patent Appeal against the judgment dated 15-5-1970. His writ petition was numbered 110 of 1965. However, Qamrul Hai, the other petitioner whose writ petition was also disposed by the common judgment dated 15-5-1970, filed a Letters Patent Appeal. His petition was No.109 of 1965. It has also been noted that Letters Patent Appeal filed by Qamrul Hai against Hazur Bakhsh before the Settlement Department was allowed by judgment dated 25-5-1982 of a learned Division Bench of this Court which held that the local i.e. Hazur Bakhsh in that case had no locus standi to challenge the transfer of the property in favour of Qamrul Hai, a displaced person, and the order dated 15-5-1970 of the learned Single Judge transferring the property No.1747 in favour of Hazur Bakhsh was set aside. In my view, the judgment dated 25-10-1982 allowing LPA No.117/70 does not set aside the judgment dated 15-5-1970 in so far as it related to the acceptance of Writ Petition No.110/65, as no appeal was filed against that judgment by Sirajuddin. The judgment dated 15-5- 1970 in spite of being a common judgment disposing off two other petitions, attained finality in so far as it related to the dispute between the petitioner Hazur Bakhsh and Sirajuddin in respect of property No.1748. To hold otherwise would create legal complications as then a party who may have won a case before a Court may be deprived of his success without his being made a party to the appeal filed by another A party whose case had also been decided by the same common judgment. The principle of finality of judgment is firmaly rooted in our jurisprudence. If a decision has been given by a competent Court or authority and it attains finality under the law, it is not liable to be ignored only on the ground that a higher Court in a different case or proceeding has taken a different view that had been taken earlier by the Court or authority concerned. I may refer here to a passage from the judgment of the Supreme Court in the case of Muhammad Yusuf v.
Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 101 which had also been referred to in the case of Jamia Industries Ltd. v. Karachi Municipal Corporation:- "This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision, it did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act."
' Apart from the fact that the judgment dated 15-5-1970 in Writ Petition No.110/65 had attained finality, the Additional Settlement Commissioner, who decided the case on 30-10-1975, was bound to follow the directions given by the High Court in the judgment dated 15-5-1970. At that time, in any case, the judgment dated 25-10-1982 in LPA No.117/70 had not been given. I am, therefore, of the view that the judgment dated 25-10-1982 deciding LPA No.117/70 arising out of judgment in Writ Petition No.109/65 has no bearing on the decision of this case. The judgment had been given on 15-5-1970 by the High Court and the matter had been remanded to the Settlement Commissioner with certain directions and in the present constitutional petition what is to be seen is whether the decision of the Settlement Authorities is in compliance with the directions of the High Court or not. A perusal of the judgment dated 15-5-1970 clearly shows that according to the learned Single Judge the auction proceedings whereunder the property came t be transferred to respondent No.2, Sirajuddin, were illegal inasmuch as the requisite formalities and proper safeguards required to be taken under the law had not been taken.
It has already been observed that even the counsel who was appearing for Sirajuddin in Writ Petition No.110/65, did not support the transfer in favour of Sirajuddin on merits. The actions and orders of the Settlement authorities impugned in Writ Petition No.110/65 had been set aside by the learned Single Judge by his judgment dated 15-5-1970. Accordingly the transfer o shop No.1748 in favour of Sirajuddin on the basis of auction by the Settlement Authorities was set aside. On the basis of the same auction, which had been found to be held without fulfilling requisite formalities and without taking requisite safeguards under the law, the Additiona Settlement Commissioner could not transfer the property in question by one sentence that in his opinion "no fraudulent tactics seem to hay been played at least to the extent of transfer of shop No.1748". The Additional Settlement Commissioner was required to decide the cas relating to the property No.1748 afresh under the law. If under the law, respondent Sirajuddin was entitled to the transfer of the propert in question, the same could have been transferred to him but not on the basis of the auction which had been found to have been held in an illegal manner.
The other contention of Mr.S.Abbas Zia was that if this constitutional petition was allowed, it will cause injustice and in that connection he cited several reported judgments. There is no quarre with the proposition that even if an order is found to be illegal, in view of special facts of the particular case if the grant of writ would C cause grave injustice, High Court may not exercise its constitutional jurisdiction, which is discretionary in nature. However, this is not case where I would not be inclined to grant relief under the constitutional jurisdiction after having found that the impugned order in so far as it relates to property No.1748 is illegal and has been passed without lawful authority.
6. As a result, this constitutional petition is allowed and the order dated 30-10-1975 passed by the Additional Settlement Commissioner to the extent it transfers the shop bearing CS No.1748 Ward 'C', Seo Bazar, Larkana, to Sirajuddin, respondent No.2, is declared to have been passed without lawful authority and to be of no legal effect. The case of Property No.1748 is remanded to the officer notified under section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 for fresh decision in accordance with law in the light of judgment dated 15-5-1970 of the High Court in Writ Petition No.110/65. There will be no order as to costs.