' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Rule 9, Order X of the Supreme Court Rules, 1980, prays for declaration that the order dated 14th April, 1990 passed by the Notified Officer/Deputy Settlement Commissioner is without lawful authority and for an appropriate direction to respondent No,1 to comply with the judgment dated 8th December, 1986 passed in Civil Appeal No,195/1981 by the Supreme Court of Pakistan.
2. This case has a chequered history. The dispute relates to the property known as 1, Canal Bank, Lahore. The question of its allotment was contested by Mr. P.N. Boga, the predecessor of the petitioners as also Mr. A.R. Khan, respondent No,
3. It was finally decided by the Custodian in a revision petition filed before him by Mr. P.N.Boga where a compromise was arrived at between the parties and it was observed by the Custodian on 28th February, 1958 that:- "The parties have come to an agreement that the petitioner, Mr. P.N. Boga, shall withdraw his petition for revision and the respondent Mr.A.R. Khan, to whom Bungalow No,1-Canal Bank, Lahore, has been allotted by the Rehabilitation Commissioner shall take symbolic possession of the house.
He is a refugee with a claim of more than a lac of rupees in respect of property left by him in India, Tehsil Batala. The flat occupied by him at present is situated in Laxmi Mansion which is a large property worth very much more than his claim. The value of Bungalow No,1, Canal Bank, is commensurate with his claim and, according to the proposed legislation which has been published in the newspapers, he will be entitled to buy the house on Canal Bank by payment of 40 times its annual rent. The petitioner is a local without any claim and there does not appear to be any provision in the proposed legislation enabling the locals to purchase evacuee houses. They will, however, be entitled to remain in possession of evacuee houses for a period of three years by attorning to the new owners. It is urged that Mr. Khan will suffer a great loss if the allotment of this house in his favour is cancelled and the petitioner will gain nothing because Mr. Khan does not propose to disturb his possession as a tenant. The house was allotted to him in 1954 and he had been living there ever since without committing any breach of the conditions of allotment. He will remain in occupation as heretofore and continue to pay rent to the Rehabilitation Authority but after Mr. A.R. Khan has acquired the property the petitioner will attorn to him as a tenant. This is a fair and reasonable offer which is accepted by Mr. Boga and on these terms the petition for a revision is filed and consigned to the record room."
' On the strength of this order, respondent No,3 approached the Chief Settlement Commissioner for the transfer of property No,1-Canal Bank to him. The case went through vairous stages. However, on 7th June, 1969, Settlement Commissioner in the exercise of his revisional jurisdiction held the transfer of property No,1, Canal Bank, Lahore, to the respondent No,3 as unexceptionable. However, with regard to the flat in Laxmi Mansion, it was observed that the matter be scrutinized by the Deputy Settlement Commissioner and be referred to the Settlement Commissioner for suo motu revision, if a case was made out against the transfer of that flat. This order of the Settlement Commissioner was assailed by Mr.P.N. Boga by filing a constitutional petition (Writ Petition No,939/R/69) which was accepted by the learned Single Judge of this Court on 17th June, 1975. It was inter alia held that Mr. A.R. Khan, not being in possession of the property No,1-Canal Bank, Lahore, was not entitled to its transfer and the P.T.D. Obtained by him was without lawful authority. It was directed that the property be treated as available property and the N.C.H. Form under Settlement Scheme No,VIII, filed by P.N. Boga be disposed of in accordance with law.
3. Aggrieved by the above-noted judgment of this Court, the respondent went to the Supreme Court and succeeded in his appeal which was accepted on 8th December, 1986, and judgment of the High Court was set aside. It will be of benefit to reproduce the operative part of the judgment of the Supreme Court which is as under:-- "The upshot of the above discussion is that the appeal must succeed and the order of the Rehabilitation and Settlement Authorities impugned in constitutional jurisdiction is restored. The appeal is allowed with costs, the writ is recalled and the constitutional petition filed by the respondent stands dismissed."
4. On 20th May, 1989, the petitioners herein filed an application before respondent No,1 praying that the P.T.D. Of property No,1-Canal Bank, Lahore be not issued to respondent No,3 without complying with the order passed by the Supreme Court of Pakistan, whereby the order of the Settlement Commissioner dated 7th June, 1969 was upheld. This was followed by another application on 21st December, 1989 before the Chief Settlement Commissioner/Member, Board of Revenue. By his order dated 14th April, 1990, the application filed by the petitioner was dismissed. It was, however, directed by respondent No,1 that the gist of the order of the Settlement Commissioner be mentioned in the P.T.D.
5. The first contention raised by Ch. Fazle-Hussain Advocate in support of this petition is that the Settlement Commissioner in his order dated 7th June, 1969, which was upheld by the Supreme Court, had directed the Deputy Settlement Commissioner concerned to look into the matter of transfer and refer it to the Chief Settlement Commissioner for suo motu revision if a case was made out against the transfer, but respondent No,1 has refused to undertake this exercise. This contention of the learned counsel is not well founded. As is clear from order of Settlement Commissioner, and the judgment of the Supreme Court, originally the dispute related to the transfer of the two properties, namely, property No,1-Canal Bank, Lahore, and the flat situated in Laxmi Mansion. From the perusal of the order of the Settlement Commissioner, it becomes abundantly clear that as regards property No,1 Canal Bank, the Settlement Commissioner upheld the transfer of the property in favour of the respondent in unequivocal terms. However, so far as the flat in Laxmi Mansion was concerned, a direction was given to the Deputy Settlement Commissioner, to look into its transfer and to refer it to the Chief Settlement Commissioner for suo motu revision, if a case was made out in that behalf.
6. The attempt of the learned counsel, however, is to persuade this Court to read the direction in concluding para of the order as being applicable to both the properties. But there is no warrant for accepting such an interpretation which is not countenanced either by the order of the Settlement Commissioner or the judgment of the Supreme Court. The fallacy in the argument of the learned counsel becomes obvious from a bare reading of the portions of order of Settlement Commissioner which were reproduced by the Supreme Court in its judgment and which are as follows:-- "Thus, under the law with effect from the said compromise and with effect from the date of the order of learned Custodian, Mr. Khan acquired de jure possession of the said bungalow though he did not occupy the same. It has been held in PLD 1967 Lah. 419, that the word `possession' is wide enough to include constructive possession or possession in law, and there is on reason to limit its scope only to physical possession. It has been observed that physical possession is sometimes described by the word occupation and if the legislature intended to restrict the word `possession' to occupation, then it would have used that word, instead of the word 'possession'. That being the position, Mr. Khan was entitled to the transfer of the said bungalow, under Settlement Scheme No,1, and it was not necessary that his case should be covered by the Press Note dated 9-9-1960.
Therefore, in so far as the transfer of the said bungalow in favour of Mr. A.R. Khan is concerned, it does not suffer from any illegality. I hold accordingly."
' The other portion which is relevant for this for purpose is as under:-- "Mr. Khan being the allottee of the said flat and having surrendered the same, it was not open to him to give no objection in respect of the said flat in favour of his mother. In fact under the law he could no longer be deemed to be in possession of the said flat, and for the reason, his mother too could not claim this flat on the basis of her possession or the possession of her son. The transfer of the said flat in her favour, therefore, calls for scrutiny. The D.S.C. Concerned should look into the matter and refer the matter to the learned Chief Settlement Commissioner for suo motu revision, if a case is made out against her in this behalf."
' It will thus be seen that as regards the property No,1 Canal Bank, Lahore, the transfer in favour of Mr. A.R.Khan was held to be not suffering from any illegality but so far as flat in Laxmi Mansions is concerned, it was noticed that Mr. A.R. Khan had surrendered his allotment and he could not have, therefore, granted no objection for the transfer of the flat in favour of his mother (Mst. Hurmat), who could not claim the flat on the basis of her possession or the possession of her son. It was specifically observed that the transfer of the said flat in her favour (i.e. Mst. Hurmat Bibi), therefore, calls for scrutiny by the Deputy Settlement Commissioner concerned. There is no direction that transfer of property No,1 Canal Bank, Lahore, be also scrutinised or a reference be made to the Settlement Commissioner against respondent No,3 i.e. Mr. A.R. Khan in respect of that property. It is also to be seen that while accepting the writ petition filed by Mr. P.N. Boga, this Court had held the P.T.D. Issued to him to be of no legal effect, but this order was set aside by the Supreme Court of Pakistan which restored the order of the Settlement Commissioner. In this view of the matter, it cannot be argued with any success, that the entitlement of the respondent No,3 to the transfer could still be subjected to scrutiny.
7. It was next argued by the learned counsel for the petitioner that as the transfer of property No,1- Canal Bank, Lahore, was procured by respondent No,3 through fraud and misrepresentation, the Notified Officer should have held the enquiry into this aspect of the matter. It was emphasised by the learned counsel by relying upon various precedents that fraud vitiates all solemn proceedings and as such the order of the Settlement Commissioner and the judgment of the Supreme Court should have been set aside on this ground.
There can be no cavil with the proposition that fraud vitiates all solemn proceedings but then the question which arise is as to whether a matter which had attained finality upto the level of the Supreme Court can be reopened on this ground by any other Court or authority. The answer to this question has to be in the negative. To allow a subordinate Court or any authority to interfere in such a matter would not only result any erosion of finality of the judgment but would also be barred by the general principles of res judicata. Consequently, even in case of lack of jurisdiction or fraud, the determination made by the superior Court cannot be re-opened nor the effect thereof nullified. The remedy of the affected persons in such cases lies in approaching the same Court or the Appellate Court, if any and not by separate proceedings in a lower forum. The authority of the Supreme Court in Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) is instructive. The relevant portion may be reproduced with advantage:-- "It is also to be kept in view that although Section 44 of the Evidence Act permits a party to a decision, to show that it was obtained by the other party by fraud or collusion or that the Court acted without competence; but it does not lay down a mandate that it must be shown in a separate suit and not by moving the same Court or the appellate Court. Notwithstanding the foregoing comment on this question it is necessary to explain that the High Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when re-opened before it on any ground which might require further examination in a proper trial by a lower Court, make such observations, as might enable that Court to deal with the relevant questions including that of nullity."
' The same rule was reiterated in Asif Jah Siddiqui v. Govt. Of Sindh and others (PLD 1983 SC 46). This contention of the learned counsel cannot, therefore, be accepted.
' It is also worthy of notice that the learned counsel for the petitioner has himself brought to the notice of this Court that the petitioners have already applied to the Hon'ble Supreme Court for the review of its judgment. If it be so, it is not understandable as to why the petitioner should have initiated the present proceedings.
8. It was then contended that the Deputy Settlement Commissioner himself had earlier on 16-11- 1989 cancelled the P.T.O. Granted to respondent No,1 and that order could not have been subsequently recalled or reviewed. It is evident on the face of the record that the earlier order dated 16-11-1989 was passed in the absence of the respondent No,3 and could, therefore, be set aside on his motion. Reference in this connection may be made to a Full Bench judgment of this Court. (See Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). Even otherwise, the order dated 16-11-1989 of the Deputy Settlement Commissioner was clearly not in consonance with the judgment of the Supreme Court and had, therefore, no legal sanctity. The Deputy Settlement Commissioner was justified in correcting the mistake committed by him. Even if, there is some force in this connection being raised by the learned counsel for the petitioner, discretion should not be exercised in favour of the petitioners who have lost the battle upto Supreme Court and have been making the efforts to have the controversy resolved.
9. It was lastly submitted by the learned counsel that the D.S.C. Has acted illegally in directing that the gist of the judgment of the Supreme Court be mentioned in the P.T.D. This argument is again without any merit. He, however, could not point out as to how, by directing the re-production of the gist of the order of the Supreme Court, the respondent No,1 has acted contrary to law.
10. Although the petitioner, has no case with regard to property bearing No,1 Canal Bank, Lahore, but it appears that so far as to the other property, namely, flat in Laxmi Mansion, the respondent has failed to carry out the directions given by the Settlement Commissioner in his order dated 16th November, 1989 which was upheld by the Supreme Court. The Notified Officer should have scrutinised the transfer of the flat in favour of the mother of respondent No,3 and to have referred the matter to the Chief Settlement Commissioner for suo motu revision, if the case was made out in that behalf. Unfortunately, the Notified Officer did not advert his attention to this part of the order of the Settlement Commissioner which has been upheld by the Supreme Court.
11. For the reasons aforesaid, this petition is accepted only to the extent that the Deputy Settlement Commissioner is directed to act in accordance with the direction given in the order of the Supreme Court dated 7-6-1969 whereby it was directed that the transfer of the flat in favour of Mst. Hurmat Bibi be scrutinised and if a case is made out against her, it should be referred for suo motu revision to the Chief Settlement Commissioner. I . The parties are left to bear their own costs.