' The dispute between the petitioner and respondent Maqsood Khan relates to Plot No, 1834/C, situated in Mohallah Karimpura, Abbottabad, which originally was the property of one Roop Chand, who having become evacuee on the partition of the Sub-Continent left it behind to be litigated about between various claimants who joined litigations at various stages on different dates, the petitioner herein coming into picture for the first time on 14-5-1968. The first round of litigation between the parties had ended in the year 1975 when the petition for leave to Appeal against the order of the High Court was dismissed by the Supreme Court on the 15th of October, 1975.
Thereafter, however, to the good or bad luck of the parties, in pursuance of Policy decision taken by the Government at Federal level, the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was promulgated where under Scheme No, 1 was framed by the Provincial Government in the year 1976 for the disposal of Urban Evacuee Property which had not yet been transferred to any person or for the transfer of which no proceeding was pending before any Authority or court, named in the Scheme as an 'available property'. Khanizaman petitioner, taking advantage of this new development, applied for the transfer in his favour of plot No 1834/C. This application he submitted in proper Form, but was rejected by the Assistant Commissioner, Abbottabad, a designated authority, by his order dated 27-12 1976, on the ground that this property, having already been transferred in favour of M. Maqsood Khan respondent was not available for disposal.
In this Constitutional Petition Khanizaman has assailed the said order of the designated authority on the grounds mentioned in the petition, with an added prayer that the designated authority (respondent No, 2) may be directed to transfer the said plot to him under the aforesaid Scheme.
No, I framed by the Provincial Government.
2. The brief facts of the case are that one Muhammad Mustafa Khan, father of M. Maqsood Khan respondent, had submitted on 27-11-1959 an application for the transfer of this plot in his favour. His application was rejected by the Additional Settlement Commissioner, Peshawar by order dated 1- 9-1960 on the ground that the premises could not be transferred to him because he was not in physical possession thereof since 21-12-1958. Muhammad Mustafa Khan had filed an appeal before the Settlement Commissioner, Peshawar Division, Peshawar against the order dated 1-9-1960 aforesaid, which was. However, rejected by the then Settlement Commissioner by his order dated 24-9-1960. The order made by the Settlement Commissioner was challenged by Muhammad Mustafa Khan in revision before an officer exercising powers of Chief Settlement and Rehabilitation Commissioner, Lahore who vide his order dated 16-8-1962 observed as under "I have considered the whole case and feel that the Dy. Settlement Commissioner was perfectly justified in refusing this additional accommodation to him. So far his request is concerned it is rejected. The learned counsel for the petitioner urges that there is a move to transfer this plot on the basis of the reserve price. I do not know if this is so but certainly the petitioner should be given preference over anyone else but in view of the finding of the learned Settlement Commissioner I do not think any would be justified to transfer this plot by mutual negotiations."
' While the matter was being agitated by Muhammad Mustafa Khan before the competent Settlement Authorities the disputed Plot No, 1834/C was auctioned on 26-11.1960 for Rs, 19,500 in favour of Mian Tayab Jan. Before the auction was accepted/confirmed, one Col. S. A. Khan applied on 15-11-1960 for the transfer of Ow on negotiation basis. The Additional Settlement Commissioner ordered the transfer of the plot to Col. S. A. Khan on 17-12-1960 on negotiation basis on an average auction price plus fifty per cent. Col. S. A. Khan however, failed to deposit the price of the plot and consequently this plot was once again included in the auction list. Muhammad Mustafa Khan made an application on 12-8-1961 submitted therein that he being a claimant and allottee, the said plot may be reserved in his name but the reservation would be subject to the decision of the Chief Settlement and Rehabilitation Commissioner, Lahore with whom his Revision Petition No, 235 dated 20-10-1960 was pending for disposal, which petition, as already stated, was rejected with the remarks already quoted by order dated 16-8-1962. Muhammad Mustafa Khan died in the meantime and his son M. Maqsood Khan respondent No, 1 herein, then submitted an application dated 21-6-1962 to the Dy. Settlement Commissioner, Hazara urging therein that he being entitled to the transfer of this plot may be favoured with such transfer. This application was disposed of by Additional Settlement and Rehabilitation Commissioner Peshawar by his order dated 20-3-1964 in the following terms :- "There are orders dated 24-9-1960 and 16-8-1962 of the Settlement Commissioner and the Chief Settlement Commissioner respectively to dispose of the plot in question through open auction, after they had rejected the case of Mr. Ghulam Mustafa. Mr. Ghulam Mustafa has since died and his case is being represented by his son Mr. Muhammad Maqsood. In view of the above-mentioned orders, the plot in question should therefore, be put to open auction. Mr. Muhammad Maqsood Khan requests that the plot may be reserved in his name on the average auction price plus 50% above. This request cannot be accepted at this stage. If he has any case, he can represent to the higher authorities. Announced."
' Muhammad Maqsood Khan, respondent No, I herein, challenged this order by way of appeal in the court of Mr. Muhammad Shafiq Khan, then Distt. Judge/Settlement and Rehabilitation Commissioner, Hazara, who made the following order on 3-5-1965 :- ``Representative of the Department is present. I enquired from him to show me the orders of the Chief Settlement Commissioner, and the Settlement Commissioner referred to by Mr. Iftikhar Ahmed Khan, for perusal. He failed to do so. Besides there is published memorandum No, 10593- PI/Beh/60 dated 24th June, 1960, which prescribes procure for the Disposal of central evacuee properties. This memo. Is also condified in the Settlement 'Manual. In clause 2 of para. (c) of the letter it is laid down that if any person submits an application for deletion of a particular building site from the list and gives an under taking in such application that he is prepared to pay the average auction price plus fifty per cent of such price, he may be treated to be eligible for the transfer of the site by negotiations. The site may then he deleted from the auction list. In view of the Memorandum I consider it more proper that the plot in question be transferred to the applicant. If he gives an undertaking in writing that he shall pay the average price plus fifty per cent of such price the plot shall be transferred to him. The applicant has submitted the necessary bond which is placed on the file. I, therefore, order that the plot shall be transferred to the applicant in conformity with the instructions mentioned above."
' In pursuance of this order made by the Settlement and Rehabilitation Commissioner, Muhammad Maqsood Khan paid about Rs, 7,000 as price of the disputed plot (No, 1834/C) and the Settlement Department issued P.T.O. No, 665082 dated 5-6-1965. The disputed plot thus stood transferred in his favour by an order made by the Settlement and Rehabilitation Commissioner Hazara.
Khanizaman, petitioner herein, then submitted an application dated 14-5-1968 to the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore. Wherein he mentioned that Muhammad Maqsood Khan got disputed plot transferred in his favour by using undue influence and through illegal means, also praying therein for initiation of inquiry and for transfer of the plot in his favour on evaluation basis. On the basis of report which was submitted to him by the Department concerned Chief Settlement Commissioner, West Pakistan, Lahore, by his order dated 26-9-1968 rejected the application submitted by Khanizaman. That order was assailed by Khanizaman before the High Court in Writ Petition No, 403/68 which was dismissed by the High Court by order dated the 6th May, 1974 mainly on the ground that the property in question had already stood transferred in favour of M. Maqsood Khan by a valid order made by the Settlement and Rehabilitation Authority on 3-5-1965 and that Khanizaman had no locus standi to ask for transfer of the disputed plot in his favour and his constitutional petition also suffered from lathes.
The order of the High Court so made was assailed by Khanizaman in a petition for Leave before the Supreme Court which was, however, dismissed on the 15th of October, 1975, as mentioned in the earlier portion of the order.
3. Mr. Fazal Hussain, Advocate appeared on behalf of the petitioner. Respondent No, 1 was present in person and none was present on behalf of respondent No,
2. Mr. Fazal Hussain, Advocate was heard and the record perused.
4. The only point pressed before me by the learned counsel for the petitioner was that on the date when the learned Settlement and Rehabilitation Commissioner, Hazara had made the order directing the transfer of the disputed plot to Muhammad Maqsood Khan respondent No, 1 herein, the memorandum dated 24-6-1960 on which the said order had been based had stood modified by a policy decision taken by the Chief Settlement and Rehabilitation Commissioner, which was conveyed to the authorities concerned in his order dated the 11th March, 1961, whereby reservation of building sites in favour of those who offered to pay the average auction price plus fifty per cent in accordance with the instructions issued by him on 24-6-1960 was stopped and the available building sites were directed to be disposed of by unrestricted public auction. The learned counsel argued that when the appeal filed by Muhammad Maqsood Khan was being disposed of by the learned Settlement and Rehabilitation Commissioner, Hazara on 3-5-1965, the said policy Decision dated the 11th March, 1961 was fraudulently withheld by the Departmental Authorities and was not brought to the notice of the learned Settlement and Rehabilitation Commissioner, Hazara with the result that a wrong order was passed by him on the basis of instructions which had stood modified to the contrary. The learned counsel further argued that since the petitioner herein was not aware of the aforesaid Policy decision dated the 11th March, 1961, he could not place it before the High Court, nor before the Supreme Court in the earlier round of litigation and that after obtaining knowledge of the same he placed it before the designated authority under Scheme I of 1976 but with no success. The learned counsel contended that since the order dated 3-5-1965 made by the learned Settlement and Rehabilitation Commissioner, Hazara was the result of fraud practised upon him by the Departmental Authorities with a view to helping the cause of respondent No, 1, it has no legal value and the disputed Plot No, 1834/C would, therefore, be deemed having not been legally transferred in favour of respondent No, 1 and this being an available property should have been transferred by the designated authority under Scheme No, 1 of 1976 in favour of the petitioner who is in possession thereof. There is no substance in these arguments, for the reasons hereafter enumerated.
Firstly, there was no material on the record to show that the policy decision dated the 11th March, 1961 was intentionally kept back by the Departmental Authorities and was not brought to the notice of the learned Settlement and Rehabilitation Commissioner, Hazara at the time when heA was giving decision on 3-5-1965 and that in so doing they were in league with respondent No,
1. The facts which could prove fraud were, therefore, missing in this case, the ignorance or lack of knowledge of the Departmental Authorities of that policy decision simpliciter not constituting fraud ; Secondly, the instructions issued through memorandum dated 24-6-1960, forming basis for the transfer of disputed plot to respondent No, 1 in the year, 1965, were issued pursuant to the directions given by the Federal Government and there was nothing in the policy decision (Press note) dated the 11th March, 1961, nor on the record, to show or suggest that the modification made by the Chief Settlement and Rehabilitation Commissioner in those instructions had behind it the prior, or even subsequent, approval of the Federal Government, thus making doubtful the validity of this modification ; Thirdly, the ground which should have been taken and urged in the first Constitutional petition before the High Court and the Supreme Court having not been urged, could not be permitted to be agitated between the same parties in second round of litigation, ignorance thereof by the petitioner being not a valid and legal excuse ; Fourthly, the rights which had come to vest in respondent No, 1 in the 1 year 1965 by a final order made by the competent authority resulting in the transfer of the disputed plot to him after realising from him the price therefore could not be taken away by reopening the matter in the year 1977 after a lapse of more than 12 years when the relevant laws where under the transfer had taken effect stood repealed ; Fifthly such re-opening of the matter was not in consonance with the policy underlying the repeal of the Evacuee Laws by a Federal Statute which aimed at closing that chapter once for all as also the organization which had E been set up to administer the evacuee property ; and Lastly, Scheme No, 1 of 1976 was framed by the Provincial Government for the disposal of 'available properties' and it did not apply to those evacuee properties which after their valid transfer had lost their character as such and did not fall within the definition of the term 'available property' as given in the said Scheme, and for that reason the framing of said Scheme did not furnish to the petitioner herein a new cause of action to file a petition before the designated authority under the said Scheme or before High Court when the designated authority refused to give him relief. His second effort was, in effect, directed against the order dated 3-5-1965 of the learned Settlement and Rehabilitation Commissioner, Hazara, and that being so, this writ petition as much suffered from laches as the earlier one filed by the petitioner.
5. The designated authority, therefore, rightly held that the plot in dispute was not an 'available property' within the meaning of Scheme No, 1 of 1976 to be allotted to the petitioner. The impugned decision made by it is unassailable, and there being no merit in this petition, it is hereby dismissed with costs,