' This petition under Article 6(2) of the Provisional Constitution Order, 1969, seeks a declaration that the order, dated 30th April, 1971 passed by respondent No.1, sanctioning the sale of land comprising Khasra Nos.5229 and 5233 in favour of respondents Nos.2 and 3 is without lawful authority and of no legal effect.
2. The facts necessary for the disposal of this petition, briefly stated, are that the petitioner claims to be a displaced person to whom a garden of urban land was allotted at Multan. According to her case, on an application made by her the allotment of garden at Multan was cancelled and instead she was allotted land measuring 31 Kanals out of the land measuring Khasra No.5229 and 5233.
Subsequently, however, a dispute arose between the petitioner and one Col. Muhammad Ishaque as regards the possession of the garden. This was finally decided by this Court in W.P. No.680 of 1957 when the Rehabilitation Authorities were directed to decide the matter afresh after allowing the parties opportunities of being heard. According to the petitioner, she had been agitating the matter regarding the allotment of the garden to her before the Chief Settlement Commissioner and in this respect, orders, dated 22nd January, 1959 passed by Mr. Hashim Raza, Rehabilitation Commissioner and the order dated 21st January, 1961 passed by Pir Ahsan-ud-Din, Chief Settlement Commissioner have been referred to. In the last-mentioned order, it has been stated that the Chief Settlement Commissioner visited the spot and found no garden in existence. He, therefore, proceeded to declare it as a building site under section 2(3) (b) of the Displaced Persons (Land Settlement) Act, 1958 and directed that the same be disposed of as a building site. This order of the Chief Settlement Commissioner was challenged by the petitioner by filing Settlement Revision No.5 of 1969 which came up for hearing before Division Bench on 7th April, 1971 and was dismissed on the ground that the petitioner not being allottee of the garden had no locus standi to file a settlement revision. It was also observed that the petitioner had been granted the land on lease and the same was not allotted to her.
3. It appears that on 29th April, 1971, the notification by virtue of which the land in dispute had been declared to be a buiding site was withdrawn with the result that the agricultural, nature of the land stood restored and revived. Subsequently, it was disposed of by sale through negotiations to the respondents 2 and 3 under section 12(b) of the Displaced Persons (Land Settlement) Act, 1958. The order, as already indicated, has been assailed by the petitioner in this Constitutional petition.
4. Mr. Aamer Raza A, Khan, the learned counsel for the petitioner contended that as the petitioner had applied for the allotment of this land and the application filed by her in this behalf was pending, no sale could be made in favour of respondents Nos.2 and 3 by respondent No.1, who acted in excess of his jurisdiction in transferring the land without disposing of the application of the petitioner. The learned counsel further pointed out that the sale also without any notice to the petitioner was disregarded that a similar matter with regard to the same land has been remanded by this Court in Writ Petition No.712/R/75 inter alia to examine the question as to whether the petitioner in that writ petition had applied for the allotment of land in dispute and if so, whether their applications were pending when the sale in favour of the respondent was made. The learned counsel stated that the case is pending before the Member (Settlement), Board of Revenue; Lahore.
5. Mr. Shahid Hamid, the learned counsel for respondent No.2 and Mr. Zahid Hussain, learned counsel for respondent No.3 vehemently opposed this petition. It was objected that in view of the findings recorded by Division Bench while disposing of Settlement Revision No.5 of 1961, that the petitioner was not the allottee of the land in question, she has no locus standi to file the present petition. The learned counsel further submitted that the effect of the judgment delivered by Division Bench of this Court cannot be whittled down and petitioner cannot be allowed to re-agitate the same matter before this Court. Mr. Shahid Hamid, further argued that even if it is conceded that petitioner had at one time applied for the allotment of this land, yet such application cannot be deemed to be a valid application for allotment inasmuch as no units of the petitioner were validly transferred to Lahore or pending allotment in terms of paras. 68 and 68-A of the West Pakistan Rehabilitation Scheme, 1957.
6. Ch. Muhammad Rafiq Khan, learned counsel appearing on behalf of applicant in C.M. No.1140/88 submitted that the applicant be impleaded as a respondent in the writ petition, so that she may be able to defend her rights. He was also of the view that the petitioner cannot be said to have a locus standi in the matter and the petition filed by her is not maintainable.
' Mr. Zahid Hussain also argued that the application of which reference has been made by the learned counsel for the petitioner was disposed of as far back as 18th May, 1957 by the order of the Rehabilitation Commissioner, who instead of allotting the land to the petitioner had granted it to her on lease.
7. There can be no cavil with the proposition that if a dispute had been decided by the superior Courts of the country, the same matter cannot be reagitated and any decision rendered therein is binding to all concerned. Consequently, even if there be any documents, to which reference has been made by Mr. Aamer Ram A. Khan, treating Mst. Jamila Begum to be allottee of the land, I am not in a position to accept this argument of the learned counsel, in view of the categorical findings recorded by the Division Bench that she was not allotted the land in question. This, however, does not conclude the matter for the question which still remains to be decided is whether an application was filed by the applicant for allotment of the land which was pending at the time when the land was sold under section 12(b) of the Displaced Persons (Land Settlement) Act, 1958, to respondents and if the sale without disposing of the application was valid. On the present record, it is difficult to decide this disputed question of fact which requires evidence. Such exercise cannot be undertaken in the exercise of the Constitutional jurisdiction of this Court. Suffice it to say for the present that from the documents, it appears on a tentative view of the matter that Mst. Jamila Begum had filed an application praying for allotment of the land. I am impressed by the contention of the learned counsel for respondent No.3 that the order, dated 18th May, 1957 should be construed as having finally decided the application for allotment made by Mst. Jamila Begum. There is do reference to this application in the order itself nor does it purport to dispose it of. This aspect of the matter also need not be examined any further lest it should prejudice the parties before the Notified Officer, to whom I propose to remand this case. In somewhat similar circumstances and with regard to the same land at the instance of the applicant in C.M. No.1140 of 1988, this Court while accepting Writ Petition No.712-R of 1975, has already' remanded the matter for re consideration to the Member, Board of Revenue, and there is no reason as to why such treatment should not be meted out to the petitioner. I have refrained from deciding any disputed question raised by the parties in the present proceedings finally, to avoid prejudice to the parties or those persons whose cases have already been remanded by this Court. It may, however, be clarified as was done by this Court while remanding the case in Writ Petition No.712-R of 1975, that the sale in favour of the respondents has not been upset by this Court, but shall be subject to the decision in the post remand proceedings.
8. In view of what has been said above, the petition stands disposed of and the matter is remanded to the Member (Settlement), Board of Revenue, Lahore, for the decision in the light of the observations made above. The parties shall appear before the learned Member (Settlement), Board of Revenue, Lahore, on 10th February, 1991, when the connected matter is stated to be fixed for hearing.