SAYED ZAHID HUSSAIN, J. -- The petitioner herein had made an application under Sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 qua the allotment Of Mst. Lalan. On inquiry the Addl. Settlement Commissioner found allotment of Mst. Lalan in excess of her entitlement to the extent of 986 PlUs, he cancelled it and ordered that the same be given to the appellant. The said order was maintained by the learned Settlement Commissioner in appeal by dismissing the same on 20.6.1967.
W.P. No. 26-R of 1968 was filed there against which was accepted on 10.1.1974 and the matter was remanded to the Settlement Commissioner. On remand the Settlement Commissioner again found that it was not a case of miscalculation but of concealment of true entitlement and upheld the earlier order of Addl. Settlement Commissioner. This was vide order dated 29.9.1976. This order was again challenged in W.P, No. 400-R of 1977 which was accepted by a learned Single Judge on 6.3.1985 with the direction that the cancelled units will be adjusted to the allottee. This order was challenged by the petitioner before the Hon'ble Supreme Court of Pakistan. On. 8.6.1991 his appeal (C.A. No. 729 of 1988) was accepted by taking the view that "it has been ruled in number of cases that when in the same matter a claimant having unsatisfied P.I. Units is pitched against a claimant who after having received his entitlement, seeks additional land or seeks to retain land already' obtained in excess of the entitlement the former would have preference both in law and in propriety. This answer would resolve all the questions, which arise in this case. The appellant, being informer and claimant would be entitled to utilize the land in dispute for the satisfaction of his unsatisfied P.I.Units in preference to the respondents retaining area in excess of their entitlement.
The High Court, therefore, to say the least, should not have exercised its discretion in writ jurisdiction in favour of the respondents. Accordingly, we partly allow this appeal, with the direction that if in case till now the appellant's unsatisfied units have already been satisfied,- the land would be left with the respondents in accordance with the directions of the High Court. The same principle would apply mutatis mutandis to any part of the appellant's claim and the corresponding part of the excess land. There shall be no order as to costs The matter was taken up by the Deputy Settlement Commissioner 'who' ordered on 10.3.1992 that the resumed land was to be allowed to the petitioner.
That order was however challenged -through W.P. No. 85-R of 1992 which was accepted that the officer who passed the order was not competent to determine the said matter. It was in pursuance of this order that on 8.1.1994 the respondent No.1 has passed the impugned . order and declined the allotment in.- favour of the petitioner that he was already holding allotment in excess of 8000 PIUs, a limit prescribed under the Land Reforms.
2. The contention of the learned counsel for the petitioner is that the matter had been decided by the Hon'ble Supreme Court of Pakistan wherein the specific' direction had been given which was to be implemented and complied with by the respondent but he non-suited the petitioner for reasons not tenable after the decision of the matter by the Hon'ble. Supreme Court of Pakistan. It is contended that Section 3 of Lands Reforms Act, 1977 was not applicable in any case.
3. The learned counsel for the contesting respondents as also for the Department contends that limit for allotment had been prescribed by the Chief Settlement Commissioner vide Memorandum dated 21.7.1979, which was applied by the respondent in non-suiting the petitioner in the matter. It is further contended that the petitioner had got the allotment much more than his entitlement. Their assertion is however disputed by the learned counsel for the petitioner.
4. The perusal of the judgment of the Hon'ble Supreme Court of Pakistan the operative part whereof has been reproduced above would show that the matter had been decided and a specific direction had been given by their Lordships, which was to be adhered to by the respondent who was obliged to implement that judgment. It was not open for him to enter into any other controversy. It is to be remembered that respondent No. 1 had to execute and not to adjudicate. He had to carry out the terms of the remand order of the Hon'ble Supreme Court of Pakistan faithfully.
He could not impair its efficacy by any means. It may be observed that the Memorandum of the Chief Settlement Commissioner dated 21.7.1979 was in the field since long and would have been in the knowledge of all concerned but was neither invoked by the Department nor the contesting respondents in the earlier round of litigation which ended up to Hon'ble Supreme Court of Pakistan.
The principle laid down in Fir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 Supreme Court 145) would be attracted to the case. The order of the respondent is thus not sustainable. It was, however, to be examined by the respondent as to whether the petitioner had unsatisfied pending units against which he could be allotted the resumed land. This aspect has not been touched by him. It is .indeed a question of fact, which cannot be determined by this Court in writ jurisdiction which matter will have to be determined by the competent authority.
As a result of the above, order dated 8.1.1994 of respondent No. 1 is declared to be unlawful and no legal effect. Let the Member, Board of Revenue/Chief Settlement Commissioner entrust the matter to a Notified Officer having jurisdiction to hear and decide the same in terms of the judgment of the Hon'ble Supreme Court of Pakistan. Needless to observe that the matter has remained in litigation since long, it will be in the interest of justice and fair to the parties that the Notified Officer takes all possible steps to hear and decide it within six months. No. order as to costs.