JAVED IQBAL, J. -- This appeal, by leave of the Court, is directed against judgment dated 1.11.1992 of Lahore High Court whereby the writ petition preferred on behalf of Muhammad Salim and others has been accepted and the order dated 28.3.1977 passed by learned Commissioner (Land) has been set aside and the consequential order/action taken by the authorities in this regard was also declared to be without lawful authority and of no legal effect, hence this petition.
2. Precisely stated the facts of the case are that "the dispute relates to evacuee khasras 2692 and 2695, situated within the urban limits of Gujranwala. The above-said land along with some other area was proposed at khata RL-II 142 in the name of Barkat Ali, predecessor-in-interest of the petitioners and respondent No. 6, on 10.7.1961. It was confirmed on 7.9.1961. It is alleged that after the demise of Barkat Ali, the disputed , khasras, as a result of private partition, fell to the lot of petitioners 1 to 3. Mst. Kaniz Fatima filed an appeal against the order dated 7.9.1961 before the Deputy Settlement Commissioner who rejected it on 2.5.1963. However failed before the first and second revisional Courts she filed W.P. No. 655-R of 1986 before this Court which was accepted on 22.9.1975 and the base was remanded qua the disputed khasra numbers to the notified officer for fresh decision. After remand, Mr. Anees Nagi (respondent No. 2) in his capacity as notified officer, appears to have made efforts to secure personal attendance of the petitioner, and having failed to do so, ultimately on 28.12.1976 directed issuance of citation in the press, viz daily Maghrab-i-Pakistan' for the appearance of the petitioners on 19.1.1977. It is common point that the citation appeared on 18.1.1977 and yet the case was adjourned on 19.1.1977 to 2.2.1977. It is on 2.2.1977 that the petitioners were proceeded against ex-parte. Ultimately, the matter was decided on 28.3.1977 in favour of Mst. Kaniz Fatima, thereby directing the cancellation of the disputed khasra numbers from the name of Barkat Ali and allotment thereof in her name. An application for recall of the order dated 28.3.1977 and rehearing of the matter was moved, but it was dismissed on 11.2.1978 by another notified officer Ch. Abdul Majid Jamil (respondent No. 3 herein)". Being aggrieved a writ petition was preferred which has been accepted vide impugned judgment.
3. It is mainly contended by Ch. Muhammad Hasan, learned ASC on behalf of appellant that the evidence which has come on record has not been examined in its true perspective which resulted in serious miscarriage of justice and it escaped notice that the entitlement of appellant was confirmed by the same High Court vide judgment dated 22.9.1975 in Writ Petition No. 655-R of 1966 which was never challenged by the respondents and thus attained finality. It is further contended that the learned High Court has not examined the controversy in- depth and various contentions agitated were never considered which caused a serious prejudice.
The learned ASC on behalf of appellant has invited our attention to the written arguments furnished by him which could not be considered for the reasons best known to the learned High Court. It is urged emphatically that controversy has been decided once for all by the learned Settlement Commissioner (Notified Officer) vide order dated 28.3.1977 and land in question bearing Khasra Nos. 2692 and 2695 was confirmed in favour of appellant in view of paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme and no illegality whatsoever committed thus there was absolutely no justification to get his findings reversed which has been done vide impugned judgment without rhyme and reason. It is further contended that the temporary allotment made in favour of appellant could not have been cancelled automatically without affording him proper opportunity of hearing merely on the basis of delay in getting her claim confirmed from central record office as it cannot be attributed to her and it is an admitted feature of the case that her claim was subsequently verified by the central record office and reached in the concerned revenue district but no attention whatsoever has been paid to this significant development by the learned High Court and on this score alone the impugned judgment is liable to be set aside. It is further urged with vehemence that the learned High Court while exercising its power as conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan could not substitute its on findings for that of the Notified Officer by whom the entire controversy was dilated upon and decided in a diligent manner. It is pointed out that a fake and forged certificate was obtained by the respondents that no revision/litigation was pending and under the garb of it the land in question was sold to various persons but the sale being illegal cannot be made a ground for ousting the appellant from the field as she cannot be deprived from her lawful rights merely on the ground that various persons had purchased the land in question. It is pointed out that the respondents had not approached the learned High Court with clean hands and accordingly the equitable and discretionary jurisdiction should not have been exercised in their favour to retain ill-gotten gains. It is pointed out that the respondents instead of approaching the forum concerned available under the hierarchy adopted a fraudulent mechanism by invoking the Constitutional jurisdiction which could not have been invoked as the matter had already been decided by the learned Settlement Commissioner (L) and revision petition filed on behalf of the respondent was also dismissed. It is also contended that the order of learned Settlement Commissioner was passed on 28.3.1977 and thus the Constitutional petition was also hit by latches which aspect of the matter could not be considered by the learned High Court. It is also pointed out that notices were served upon the respondents but they succeeded in avoiding service and resultantly there was no other option available for the learned Settlement Commissioner but to adopt the mode of substituted service which was adopted and notices were published in the newspaper. It is mentioned that the notices were served on the same given address during previous round of litigation before different forums. It is also mentioned that application submitted for rehearing of the revision petition already decided on 28.3.1977 was rightly turned down by the learned Settlement Commissioner (L) vide order dated 11.2.1978.
4. Mr. A.R. Shaukat, learned ASC appeared on behalf of respondents and vehemently controverted the view point as canvassed by Ch. Muhammad Hasan, learned ASC who appeared for appellant by arguing that the order dated 28.3.1.977 passed by learned Settlement Commissioner was nullity in the eyes of law as the respondents were never served upon and controversy was decided ex- parte without affording proper opportunity of hearing causing a serious miscarriage justice. The order dated 11.2.1978 has also been criticized on the ground that ex-parte order dated 28.3.1977 should have been set aside for deciding the controversy on merits which was declined and there was no other remedy available for the respondent and resultantly the Constitutional jurisdiction was invoked. The impugned judgment has been supported being free from any illegality and infirmity. It is contended that the appellant was a temporary allottee having no lawful right to get it permanent without producing the verification of her claim which could not be done and the allotment pertaining to the land in question was confirmed in favour of Barkat Ali as at that particular juncture the appellant was not in picture and more so, previous allotment made in her favour was subject to furnishing verification certificate and on her failure the same stood cancelled automatically. It is contended that proper opportunity of hearing was not afforded to the respondents and report to substituted service through press was uncalled for because the notices should have been issued on correct address at first instance which was not done and besides that the notices were got published in the newspaper namely "Maghrab-i-Pakistan" having a little circulation and land in question was confirmed in favour of appellant on 28.3.1977 without having considered the chequered history of the controversy and nature of allotment made in favour of the appellant which was purely temporary in nature and could not have been confirmed. It is further pointed out that by the time the allotment of land in question was confirmed various other persons had already purchased the same from the successor-in-interest of Barkat Ali which were not impleaded and on this score alone the order dated 28.3.1977 pas'sed by learned Settlement Commissioner was liable to be set aside. It is argued that the land in question being agricultural land in the urban area of Punjab was not available for allotment to satisfy the pending claim in view of the dictum as laid down in case titled Bashir Ahmad v. Punjab University Academic Staff Association (1991 SCMR 377) and thus no allotment could have been made in favour of the appellant.
5. Leave to appeal was granted vide this Court's order dated 12.4.1993 which is reproduced herein below for ready reference:-- "This petition for leave to appeal is directed against the judgment whereby Lahore High Court at Lahore has accepted Writ Petition No. 437-R of 1978 declaring to be without lawful authority and of no legal effect order dated 28.3.1977 passed by the Notified Officer/Settlement Commissioner (Land), who has directed that petitioner herein namely, Mst. Kaniz Fatima has right to get Khasra Nos. 2692 and 2695 situated in Village Gujranwala District Gujranwala, in accordance with paragraph 24 of Supplementary Scheme No. 2 read with para 20 of Rehabilitation Settlement Scheme.
2. Mst. Kaniz Fatima filed her claim for verification of urban land and in her U.R. Form mentioned that she held temporary allotment of two survey numbers mentioned above and till her claim is verified, her temporary allotment be kept in reserve for her. The disputed land was confirmed on 7.6.1961 in the name of Barkat Ali (predecessor in interest of respondents Nos. 1, 2, 3 and 24) and the first round of litigation culminated in the judgment dated 22.9.1975 in Writ Petition No. 655-R of 1966 (pages 259 to 266 of paper book), from which relevant paragraph is reproduced as under:- "As regard the other point that the Settlement Commissioner unlawfully refused to hear the petitioner's revision petition on an unsound plea that the same did not lie, I have already held above that finding was not correct. Further, the petitioner did declare this land in U.R. Form submitted along with her claim, as already allotted to her. She, therefore, had a right to get this land confirmed in her name under paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme. The refusal on the part of the Additional Settlement Commissioner to consider the appeal and the denial by the Settlement Commissioner on the ground that the revision was not competent, is therefore, declared without any lawful authority and of no legal effect. The case with regard to Khasra Nos. 2692 and 2695 should, therefore, go back to the authority exercising the powers under section 3 of the E.P. Displaced Persons (Repeal) Act, 1975 to re-consider and decide the same in accordance with law. There will be no order as to costs."
3. It is submitted by the learned counsel for the petitioners that the judgment mentioned above has attained finality in the sense that it was not challenged in the Supreme Court. Secondly, that Notified Officer/Settlement Commissioner passed order dated 28.3.1977 in compliance of the judgment of the High Court, which reads as under (Page 72 of paper book):-- "From the record of the case, it is evident that the khasra numbers in question were allotted to the petitioner on 24.2.1953 on temporary basis and could have not been allotted to the respondent. The subsequent allotment in favour of the respondent on Khata No. 142 is set aside.
The field numbers in question still stand on Fard Taqseem in the name of the petitioner Mst. Kaniz Fatima. She has a right to get these khasra numbers confirmed in her name in accordance with para 24 of Supplementary Scheme No. 2 read with para 20 of Rehabilitation Settlement Scheme.
She may contact the District Settlement Authority for their confirmation in her favour".
4. The order passed by Settlement Commissioner mentioned above, was impugned in the writ petition which is allowed in the terms stated above against which petition is filed in this Court for grant of leave.
5. The contentions are raised before us firstly, that whether it is competent to re-open question of entitlement of the petitioner in respect of which there is final finding in the judgment of the High Court in Writ Petition No. 655-R/66. Secondly, whether High Court could substitute its on judgment for that of Notified Officer which was in accord with and in compliance with judgment of the High Court in Writ Petition No. 655-R of 1966. Thirdly, whether-L.Rs. Of Barkat Ali kept on selling land during pendency of appeal/revision of Mst. Kaniz Fatima and produced false certificate that no litigation was pending. We grant leave to examine in detail the above contentions."
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused order dated 28.3.1977 passed by learned Settlement Commissioner (L/Notified Officer). We have also gone through the impugned judgment. The entire record has been examined carefully. Let we mention here at the outset that the learned High Court has not examined the entire record and exercised its Constitutional jurisdiction by ignoring the fact that the controversy was resolved upto some extent by the High Court while deciding Writ Petition No. 655-R/1966 on 22.9.1975 with the following observations:-- "Further, the petitioner did declare this land in U.R. Form submitted along with her claim, as already allotted to her. She therefore, had a right to get this land confirmed in her name under paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme.
The refusal on the part of the Addl. Settlement Commissioner to consider the appeal and the denial by . The Settlement Commissioner on the ground that the revision was not competent, is therefore, declared without any lawful authority and of no legal effect. The case with regard to Khasra Nos.
2692 and 269 should, therefore, go back to the authority exercising the powers under section 3 of the E.P. Displaced Persons (Repeal) Act, 1975 to reconsider and decide the same in accordance with law."
7. A bare perusal would reveal that appellant had submitted U.R.' forms along with her claim pertaining to the land in question which was allotted temporary in her favour for confirmation in view of the provisions as contained in paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme. After having found her tentative entitlement regarding the land in question the case was referred to Notified Officer for adjudication in view of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, and in pursuance of said order the learned Settlement Commissioner had decided the claim of appellant vide order dated 28.3.1977 which is reproduced herein below for read reference:- "ORDER This case is an out-come of the writ petition No. 655/R of 1966 filed by Mst. Kaniz Fatima etc. In the Lahore High Court against the order dated 2.5.1963 passed by D.S.C. (Land) Gujranwala wherein the appeal filed by the petitioner was held to be time-barred. The learned Lahore High Court vide its order. Dated 1.10.1975 remanded the case.To this Court to decide the issue of allotment of Khasra Nos. 2692, 2695, situated in village Gujranwala, District Gujranwala.
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2. The brief facts of the case are that in addition to other field numbers land bearing khasra numbers 2692, 2695, was temporarily allotted to petitioners Kaniz Fatima on 24.2.1953, vide Parchi Taqseem, Annexure ' A'. The same land was subsequently allotted and confirmed to Barkat Ali predecessor of respondents (1-5) on 7.9.1961. Thereupon, the petitioners went in the Courts of D.S.C.
(Land) A.S.C. (Land), S.C. (Land), Gujranwala/Lahore but all these Courts dismissed the Appeals/Revisions.
3. The respondents were summoned but they failed to appear. Hence ex-parte. Arguments heard.
Record perused. The petitioners have argued that they obtained the copy of the impugned order on 5.6.1962 and filed the appeal in the lower Court on 21.6.1962. There is no delay involved. in view of the remand order of the learned High Court, Lahore the question of limitation stands disposed of and now only the merits of the case are to be adjudicated upon.
From the record of the case, it is evident that the khasra numbers in question were allotted to the petitioner on 24.2.1953 on temporary basis and could have not been allotted to the respondent. The subsequent allotment in favour of the respondent on Khata No. 142 is set aside.
The field numbers in question still stand on Farid Taqseem in the name of the petitioner Mst. Kaniz Fatima. She has a right to get these khasra numbers confirmed in her name in accordance with para 24 of Supplementary Scheme No. 2 read with para 20 of Rehabilitation Settlement Scheme.
She may contact the District Settlement Authority for their confirmation in her favour."
A careful scrutiny of the above-reproduced order would reveal that it prevailed upon the learned Settlement Commissioner that the land in question was allotted in favour of appellant on 24.2.1953 on temporary basis which could not have been allotted to the respondents and consequently the subsequent allotment made in favour of Barkat Ali was cancelled and the temporary allotment already made by the appellant was confirmed in view of the provisions as contained in paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme.
No illegality whatsoever has been made by the learned Settlement Commissioner. There is no jurisdictional defect or any other flaw which could make the order unlawful or illegal. We are not persuaded to agree with learned ASC who appeared on behalf of respondents that substituted service could not have been directed without issuance of notice on correct address for the simple reason that order of publication could have been made by the learned Settlement Commissioner
(L) in view of rule 6 of Displaced Persons (Land Settlement) Rules which provide that direct publication could have been made. It may be kept in view that the relevant provisions of CPC were neither made applicable nor can be pressed into service as insisted time and again, by the learned counsel for the respondents. It transpires from the scrutiny of record that the respondents have been attending various forms on the given address i.e. Village Garjakh District Gujaranwala at present residents of Ghakhar Mandi Tehsil Wazirabad District Gujranwala. For instance they had appeared before Additional Settlement Commissioner (L) through their counsel in pursuant to notice issued on the said address. It may be out of place to mention here that in the earlier round of litigation (Writ Petition No. 655-R/1966) the same address was given and the respondents had made their appearance. It can thus be inferred safely that the notices were issued by the learned Settlement Commissioner service whereof was avoided and resultantly publication was made and the learned Settlement Commissioner was competent to do so. The esteemed view as expressed by the learned High Court that since appellant could not furnish verification of her claim regarding the land in dispute the question of confirmation of the same in her favour does not arise is not convincing for the simple reason that land in question was allotted in her favour on 24.2.1953 in lieu of her claim and in accordance with the provisions as contained in Paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme.
Admittedly confirmation of her claim was delayed by central record office and she cannot be held responsible for the said delay and ultimately the confirmation was received from the central record office meaning thereby that she was found entitled for the land in question cancellation whereof could not be made without affording her proper opportunity of hearing which was not done. It may be noted that the land in dispute was allotted though on the temporary basis yet it was not available for allotment in favour of Barkat Ali. We are also of the view that the writ petition preferred on behalf of respondents on 14.4.1978 is in fact a futile attempt to flout the order dated 27.3.1977 passed by learned Settlement Commissioner as they could have conveniently moved an application for setting aside the ex-parte order dated 28.3.1977 but they remained indolent and subsequently the same was assailed by filing a writ petition which was hit by !Aches which aspect of the matter should have been considered by learned High Court. Besides that the respondents had not approached the Court with clean hands as they have succeeded in securing a fake and forged certificate that no appeal of appellant was pending before any forum from the office of learned Settlement Commissioner and started selling the disputed land under the garb of fake certificate temporary allotment whereof had already been made in favour of the appellant in spite of the fact that it was within their knowledge that the appeal filed by the appellant was transferred from the office of Mr. A.H. Niazi to the office of Malik Hakim Khan which depicts their conduct which cannot be considered above-board and thus they were not entitled to get equitable relief by invoking the Constitutional jurisdiction. Even otherwise such controversial_ questions could not be decided by High Court in exercise of powers as conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan. In this regard reference can be made to cases titled (State Life Insur. Corpn. Of Pakistan v. Pakistan Tobacco Co. Ltd. (PLD 1983 SC 280); State Life Insurance Corp. Of Pak. v. Pak. Tobacco Co. (PLJ 1983 SC 256). The superior Courts should not involve themselves into a thorough probe or an in-depth investigation of disputed question of fact which necessitate taking of evidence. In our considered view this can conveniently and appropriately be done by the forums available in the hierarchy. The Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. In this regard we are fortified by the dictum laid down in Attaur Rehman's Khan v. Dost Muhammad (1986 SCMR 598); Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. (1981 SCMR 291); Mian Muhammad v. Govt. Of West Pakistan (1968 SCMR 935); Zahid Hussain v. Dharmumal (1971 SCMR 110); Zuhra Begum v. Sajjad Hussain (1971 SCMR 697); Landale and Morgan (Pak.) Ltd. v. Chairman, Jute Board, Dacca (1970 SCMR 853); Mahboob Alam v. Secretary to Govt. Of Pak. (1969 SCMR 217); Umar Daraz v. Muhammad Yousaf (1968 SCMR 880) and Saghir All v.
Mehar Din (1968 SCMR 145). By now it is well-settled that "where a particular statute provides a self- contained machinery for the determination of questions arising under the Act as where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunals. Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie". (Shahid Agency v. Collector of Customs (1989 CLC 1938); Ali Hussain v.
Presiding Officer (PLD 1989 Karachi 157); Bhagan v. State (PLD 1990 Quetta 41); Mojakkir Ali v.
Regional Transport Authority (PLD 1988 Peshawar 9). Let we mention here at this juncture that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties.
It if does not work any injustice to any party, rather it curse a manifest illegality, then the extraordinary jurisdiction ought not be allowed to be invoked." Rehmatu//ah v. Hameeda Begum (1986 SCMR 1561); Rafique Alam v. Dy.S.C. (1990 CLC 1346); Muhammad Baran v. Member (Settle.
And Rehab.) (PLD 1991 SC 691); Raunaq All v. C.S.C. (PLJ 1973 SC 42). The controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence having by the parties can be determined only be the forums concerned and in such like cases Constitutional petition would not be competent subject to certain exceptions. In this regard we are fortified by the dictum laid down in case titled State Life Insure. Corpn. Of Pakistan v. Pakistan Tobacco Co. Ltd. (PLD 1983 SC 280). In the light of criterion as mentioned herein above the case in hand has also been examined and we are of the view that the question of any injustice does not arise because the land in dispute was temporarily allotted in favour of appellant on 24.2.1953 when respondent was not in the field. We are of the considered view that relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains.
8. In the light of what has been discussed herein above we are of the view that the order passed by learned Settlement Commissioner on 28.3.1977 could not have been reversed by the learned High Court in exercise of its Constitutional jurisdiction and the temporary allotment of land in question had rightly been confirmed by the learned Settlement Commissioner (Notified Officer) in view of the provisions as contained in paragraph 24 of the Supplementary Scheme read with paragraph 20 of the Rehabilitation Settlement Scheme: It was never the case of respondents that the land being agricultural in the urban area of Punjab was not available for allotment to satisfy the pending claim and thus it hardly needs any further discussion. The appeal is accepted and order passed by learned Settlement Commissioner (Notified Officer) dated 28.3.1977 is restored.