Munir A. Sheikh, J,-In this Intra Court appeal the appellant has challenged the judgment dated 5-2- 1986 passed by a learned single Judge in Writ Petition No. 864/R-78 by which the appellant's said writ petition stands dismissed in limine.
1. The appellant was allotted land measuring 186 kanals 10 marlas in khata No. 199 in village Minbala Khurd Tehsil and District Lahore against his verified claim and the said allotment was confirmed by the Border Allotment Committee by an order dated 0 7-60 recorded on RL II concerned. Subsequently, however, the Committee scrutinized the said allotment of land to the appellant under Para 10 of West Pakistan Border Area Regulation, 1959, and, on such scrutiny, the allotment of land to the appellant was found to have been correctly made and this fact was expressed by order dated 4-4-1962 passed by the Committee, duly recorded in the said RL-II. Even thereafter on 10-4-1970, respondent No. 1 again issued a notice to the appellant for appearance before the Committee in connection with the scrutiny of his allotment of land. Feeling aggrieved by the said initiation of proceedings for further scrutiny of his allotment, the appellant challenged the action of respondent No 1 oy filing W P. No. 459/R-70 in this Court, which, after c tiling for the report, was admitted to regular hearing. This writ petition was finally decided by a learned single Judge of this Court by judgment dated i-7-1975. In the meantime, ns stated|by the learned counsel for the appellant, the Border Area Committee stood dissolved w.e.f. 31-12-72. However, an officer called the Incharge Border Cell was appointed to look after the routine matters regarding Border Area. On 26- 5-1972 the said officer issued a notice to the appellant with regard to the scrutiny of his allotment, which was again challenged by the appellant through W. P. No. 320/R-76, which was accepted by judgment dated 2(5-5-1976 along with other connected writ petition, wherein it was held that the Incharge Border Cell could not exercise the powers of respondeat No. 1.
2. In order to complete the narration of events it was further stated by the learned counsel for the appellant that subset entry through a notification, Border Allotment Committee was again revived w.e.f 1979. A notice as again issued to the appellant on 25-6-1988 by respondent No. 1 requiring him to appear before him and the purpose was obvious i.e. The scrutiny of his allotment of land. This action was challenged by the appellant through W.P. No. 86/R-78, from which the present appeal has arisen, which has been dismissed in limine by a learned single Judge by the impugned judgment dated 5-2-1986 The view taken by the learned single Judge is that judgment dated 1-7- 1975 passed in W.P. No, 459/R-7Q permits respondent No, 1 to initiate proceedings and issue notice to the appellant and since the proceedings are still pending and no final order having been passed, therefore, the appellant could agitate the objections raised by him in the writ petition before respondent No. 1. The learned single Judge also held that respondent No, 1 has not flouted the provisions of relevant law, in initiating proceedings against the appellant and the said proceedings do not suffer from jurisdictional defect.
3. Learned counsel for the appellant has contended that judgment dated 1-7-1985 passed in W. P.
No. 459/R-70 has not received proper appreciation and it has not been correctly applied. It has been further argued that the orders passed by respondent No. 1 under Regulation No. 90 during Martial Law period prior to coming into force of 1962 Constitution were protected and could not be called in question by or before any authority. Learned counsel for the appellant has taken exception to the findings of the learned single Judge that respondent No. 1 had not flouted the provisions of law by issuing notice to the appellant or that the writ petition was not competent, without any final order having been pas ed. He has submitted that the appellant could not be non- suited on the ground that he could agitate the objections before respondent No. 1,
4. In order to appreciate the contentions of the leamed counsel for the appellant we have gone through the judgment dated 1-7-1975 passed in W.P. No 459/R-70. In Para 4 of the said judgment the learned Judge has recorded his finding on the points involved, reproduction of which shall be useful for the disposal of this appeal. Para of the said judgment is as follows:- "The fact of the matter is that the allotment was made, confirmed and scrutinized by the Border Area Committee in exercise of powers under Martial Law Regulation No. 9. This Regulation, as quoted above, expressly provided that the orders passed by the authorities shall be final. The various provisions of the Regulation are clear and intention manifest that orders passed by the authorities shall he final and immune from examination by anybody, including a High Court or the Supreme Court. Thus, there can be no doubt that the orders were intended to be final and binding.
That being so it would not be open to any authority, including a Committee to review or set at naught these orders. Moreover, it has been laid down in the cases referred to by the leamed to counsel for the petitioner that orders passed during the Martial Law period before commencement of the Constitution of 1^62 are final and immune from examination by any Court. That being so, the orders of the allotment and confirmation passed in favour of the petitioner during the Martial Law period had attained finality and could not be tinkered t-y any authority. Any how, since 31st December? 1972, the Border Area Committee had ceased to exist and had been dissolved by the Chief Settlement Commissioner. That being so, it is apparent that this petition has borne fruit.
Therefore, no direction is required to be issued under the Constitution in this behalf. If any person, or authority purports to aet as a successor of the Committee, or in its own right, if any, it is obvious that it had to initiate fresh proceedings and proceed in accordance with law. If such an eventuality arises, it would be open to the petitioner to challenge the new acts.
I is manifest from the portion of the judgment reproduced above that a finding was recorded that the allotment made in favour of the appellant was confirmed and scrutinized by respondent No. 1, in exercise of powers under Marti 1 Law Regulation No. 9 and further that the orders passed during Martial Law period before commencement of 1962 were final and immune from examination 'y any Court or Authority. It has been so held that the orders of allotment and confirmation passed in favour of the appellate t had attained finality and could not be tinkered by any authority and respondent No 1 was held to be possessed of no power to review or set at naught these orders. The observation of the learned Judge in the said judgment dated I-7-197S relied upon by the learned single Judge i.e. That no direction could be issued to respondent No. 1. Committee having ceased to exist and that if any person or authority purports to act as a successor of the Committee initiates any such proceedings, it would be open to the appellant to challenge the new acts, in our opinion could not te construed so as to hold that the Committee hall have the power to re-open the question of scrutiny of allotment of the appellant. Rather, it was held that such an action, if taken, would be open to challenge.
4. We have considered the arguments advanced on behalf of the learned counsel for the appellant in this background and find considerable force in them, ln W. P. No. 664/R-78 the appellant questioned the jurisdiction of respondent No. 1 which was not based on merits of the case, but on the legality of the proceedings initiated by respondent No. 1. In such circumstances, the findings of the learned single Judge in the impugned Judgment that respondeat No. I had not flouted the provisions of relevant law by initiating the proceedings against the appellant, which did not suffer from jurisdictional defect, is apparently contrary to judgment dated 1-7-19/5 in W. P. Mo 459/R-70 and it also amounts to deciding very objections which the appellant was directed to raise before respondent No. I , which, in these circumstances, if raised would not have been considered in view of the finding of the learned single Judge noted above. This legal position is very well established that if proceedings are initiated without jurisdiction, by issuance of notice, though no final order was passed i, the aggrieved person could maintain writ petition challenging the action of issuance of notice being wholly without jurisdiction The view has been a dinned by case law an 1 a reference to me Wurree Brewery Co, Lid. v. Pakistan Through the Secretary to Government oj Pakistan (PLD 1972 SU 279) Sind Employees Social Security institution v. Dr. Mumta2 All Taj and another PLD 1985 SC 450) and Naseem Ahmad Kharal v. Board of Revenue, Sind (PLD 1979 Note 82 Karachi) can be made with advantage, Respondent No, 1 who was very much party in W. P. No. 459/R-70 did not challenge the said judgment any further, which had become final and binding on respondent No 1.
There is no scope left for respondent No. 1 now to initiate any proceedings in the nature of scrutiny of the allotment of land made in favour of the appellant. This appeal can succeed on this short ground.
5. Learned counsel for respondent No. 1 on the other hand has argued that respondeat No. 1 was fully competent even in these circumstances to undertake further scrutiny of allotment of land to the appellant and in raising this argument he has sought support from the case law reported as Mst. Ghulam Fatima v. Bor Her Area Allotment Committee (1981 CLC 2217) and unreported judgments delivered in ICA No. 110/83 decided on 23-5-1983 and W. P. No. 1Q/R-83 decided on 30- 4-1983. We have gone through these judgments which proceed on absolutely different sets of circumstances and facts. In 1982 CLC 2217 after the allotment a notice was issued for scrutiny of the claim which was challenged and it was held that respondent No. 1 wa competent to undertake the scrutiny. It was a case of first scrutiny after allotment. In the case in band this bad already been done by order dated 4-4-1962 and the said judgment has no applicability to the present case. In the other t wo unreported judgments the allotments of the allottee were cancelled oy respondent No. 1 on account of violation of terms and conditions of allotment, therefore, it was held that respondent No. 1 could under the law cancel the allotment. There is no such circumstance present in this case. It has further be:n argued by the learned counsel for respondent No. 1 that since the appellant obtained the allotment by practicing fraud and mis-representation, therefore, the original allotment and its further confirmation after scrutiny were nullity. He has relied upon The Chief Settlement Commissioner, Lahore, v. Raja Muhammad Fazli Khan and others PLD 1976 SC 331) and Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies PLD 1964 SC 97) to support his arguments that respondent No. I could treat such orders as nullity and non-existent.
6. We are afraid these arguments have little merits and are devoid of any force. The judgments relied upon by the learned counsel for respondent No. 1 are not at all applicable to this case.
Respondent, No. 1, after having scrutinized the allotment of the appellant, passed express order dated 4-4- 962 confirming that the same was correctly made and the said order having attained finality and being protected under presidential Order No. 26 of 1962, as also under Constitution of 1962, cannot now be treated as nullity and non-existent, as is being canvassed by the learned counsel for respondent No. 1 even otherwise, the allegations of fraud made by respondent No. I are general in nature and the plea based on it cannot be entertained. Faced with this situation, learned counsel for respondent No. 1 argued that under the instructions issued by the Chief Settlement Commissioner in the year 1969 these allotments by respondent No. 1 could be re-opened. This contention has no merit and does not deserve any serious consideration. These instructions were never pressed into service by respondent No. 1, when W. P. No. 459/R-70 was being decided. Even if those instructions are there, though not placed before us, these cannot destroy the finality of the orders of allotment and confirmation after scrutiny by respondent No. 1 which have become Immune from any challenge before or by any authority by operation of law as held before.
7. Learned counsel for respondent No. 1 before concluding his arguments also pointed out that the allotment in the name of the appellant was not made by Border Allotment Committee, therefore, it was not immune from scrutiny, which is against facts on record. We have seen RL-11, a copy of which is appended as (Annex; 'B/1') in W. P. No.459/ R-70 and it shows that original order of allotment dated 20-7-1960 and the order dated 4-4-1962, passed after scrutiny, are both of respondent No. I and when this was brought to the notice of the learned counsel, he did not press this argument any further. He has further argued that according to instructions, the allotment of land to the appellant could only be made if the claim of the allottee had been received in the Border-belt on or before 24-12-1952 and not otherwise. His contention is that in this case it was not so received before the said date. Be that as it may, respondent No. 1 cannot be allowed to take up this plea, which requires enquiry into facts and cannot be allowed to be raised at this belated stage. We may observe here that it can safely be presumed this at the time of making original allotment and scrutiny made by respondent No. 1 in consequence of which order dated 4-1-1962 was passed, respondent No. 1 shall be deemed to have satisfied itself regarding all the necessary preconditions for making allotment. We have noted that there is entry on the said RL-1I in the form of a note certifying that the appellant's original claim form certificate had been received after verification and it was thereafter that the original allotment was made. Learned counsel for respondent No. 1 half-heartedly argued that the appellant Chahat himself made an application in the year 1973, for verification of his claim, which fact has been denied by the learned counsel for the appellant. This plea has no merit and cannot be allowed to be raised requiring factual enquiry.
Even otherwise, as has been observed above, W, P. No. 459/R-70 was decided in the year 1975 and no such plea was raised by respondent No. 1 in those proceedings. It is well settled law that when a ease regarding a subject-matter is being decided, the parties are bound to raise all pleas of facts which might and ought to have been raised either for challenging the impugned action or defending it and if no such plea has been raised, it shall be deemed to have been decided against such party and such pleas shall be barred by principle of constructive readjudicate, in subsequent proceedings between the same parties on the same subject- matter, as contained in Section 11 of the Civil Procedure Code, the provisions of which have been held to be applicable to writ proceedings. Reference in this connection may be made to Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1), therefore, respondent No. 1 is debarred from raising all these issues in thete proceedings.
8. For what has been discussed above, the appeal succeeds and it is hereby allowed. The judgment of the learned single Judge dated 5-2-1986 in W P. No. 864/R-78 is set aside and the proceedings initiated by respondent No. 1 in pursuance of impugned notice and pending before it are hereby declared to be without lawful authority and of no legal effect and are, therefore, quashed. However the parties are left to bear their own costs.